Members of a Florida community association have a statutory right to access their community association’s “official records”, subject to limited exceptions, including for example, records protected by the attorney-client privilege and records containing a member’s medical information. Both Chapter 718 and Chapter 720 of the Florida Statutes, regarding condominium associations and homeowners’ associations, respectively, provide that association members have the right to inspect the official records of the association, which includes the right to make or obtain copies, often at the member’s expense. The failure to timely respond to such a request can lead to statutory damages.
In the event a community association fails to timely make its official records available to a requesting member within 10 days of the request, a rebuttable presumption of the association’s willful failure to comply with an official records request is created which can subject the association to a claim for damages, too. That said, many times the same mistake is made when seeking to obtain copies of desired official records – the member requests the association send them copies of the desired official records rather than requesting an inspection of the official records.
Imagine this scenario, a member of a condominium association sends a letter to the manager of their condominium association requesting copies of the association’s repair records regarding repairs which were recently conducted by the condominium association to the member’s balcony, be sent to him within the statutory timeframe. Weeks pass, and the unit owner never received the copies of the requested official records. Using the force of Chapter 718, Florida Statutes, as his sword, the member sends the manager of the condominium association another letter, this time erroneously demanding the copies be provided to him together with the full amount of statutory damages for failing to timely respond which can be $50.00 per day up to $500.00, or actual damages.
While the member’s frustration is understandable, because damages for the association’s failure to timely make its official records available to the member are statutorily provided, the language of the statute regarding the inspection and copying of an association’s official records must be “strictly construed,” meaning that the statute is interpreted solely based upon the language of the statute.
Due to this strict construction of the statute, many arbitration decisions of the Division of Florida Condominiums, Timeshares, and Mobile Homes (the Division) have held that when request is only made for copies of official records, instead of requesting access to inspect the official records, then the request is not in compliance with the requirements of Chapter 718, Florida Statutes, and therefore, is not subject to the timing requirement and monetary penalty of the statute. A few examples of the Division’s arbitration orders follow:
- The demand by the unit owner’s attorney for minutes, accounting records, receipts and expenditures, and financial reports of the association was not a request for inspection; therefore, the arbitration case was dismissed. Franklin v. Village Square Condominium Association, Inc., Arb. Case No. 2012-02-1447, Final Order Dismissing Petition without Prejudice (May 16, 2012).
- The unit owner’s e-mail request to provide copies of specified documents was not a request for inspection of official records; therefore, the arbitration case was dismissed. Federico v. Mariner Pointe Condominium Association, Inc., Arb. Case No. 2011-04-1330, Final Order of Dismissal (Aug. 23, 2011).
- The plain language of the statute does not require condominium associations to provide copies on demand or any particular form of copies; it is limited to providing access upon request, with an opportunity for the requestor to make copies. Lee v. Winston Towers 100 Association, Inc., Arb. Case No. 02-4897, Final Order (Jan. 3, 2003).
- In order to fall within application of the statute, a unit owner must request an opportunity to inspect official records. The unit owner requested that certain documents be mailed to him which did not comply with the statute; therefore, the unit owner’s request for statutory damages was denied. Bolt v. Bayshore Terrace Condominium Inc., Arb. Case No. 2010-04-6107, Summary Final Order (November 10, 2010).
Further, an association is not required to research its official records and cherry-pick those records requested by members. Notwithstanding the form of the member’s official records request, an association may comply with a member’s request by having a copy of its official records available for inspection or copying within the community, within 45 miles of the community, or within the county in which the community is located, or the association may offer the option of making the records available to a member on the internet or by electronic format on a computer screen and printed upon request. Remember, too, that an association can adopt reasonable rules and regulations governing the inspection such as where the request must be delivered, and the length of a member’s inspection so long as the inspection is not limited to less than one, eight hour day per month.