Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: Our condominium association has an owner that repeatedly requests access to the same records, over and over again, and is looking for a smoking gun to use against the Board. It is consuming a large amount of management resources and half of the time his requests are buried in lengthy emails. What can we do?
A: The statute requires a condominium association to make records available upon receipt of a written request to access the official records. The condominium must make the records available within 5 business days of receipt and there are penalties if the condominium does not make the records available within a total of 10 business days. There is a multitude of ways to make the records available. For example, you can email the specifically requested documents to the requesting owner, you can provide access to a box of the relevant documents for inspections, or you can provide access to all of the official records (that are not privileged and exempt from inspection) and let the owner find what he or she is looking for. The statute also permits documents to be made available electronically so that the Association does not need to print the records. Any of these methods is permissible.
When you have an owner making numerous requests, the statute specifically permits the condominium to adopt a rule concerning the manner, frequency, notice and number of requests. For example, you could draft a resolution limiting owners to specific number of requests per months, or providing a maximum number of hours per month to inspect records, or require requests be submitted to a particular person at the condominium. If the condominium is receiving numerous emails from this individual and the emails contain requests for access buried in the emails, there is an arbitration decision that indicates refusing to comply may not be willful, but there can be a significant penalty to either miss or ignore a request to inspect records.
Because there are numerous arbitration decisions which provide what is, and what is not, permissible in a rule governing access to official records, I would highly recommend you work with legal counsel to adopt a standard procedure and limitations on access to the official records. The simple fact is that these numerous and repetitive requests from a single owner will consume a lot of your management resources to search for specific documents and those resources could be used towards managing the entire community.
Q: A number of homeowners in our community are tirelessly trying to get the Board to address a certain item of business. The Board has been reluctant to place the matter on an agenda for discussion. How can the membership force the Board to take action?
A.J., Pt. St. Lucie
A: There is a mechanism to compel the Board to address a specific item of business, but there is no mechanism to force a Board to vote on a matter of business. Specifically, Florida Statutes section 720.303 provides “if 20 percent of the total voting interests petition the board to address an item of business, the board shall at its next regular board meeting or at a special meeting of the board, but not later than 60 days after the receipt of the petition, take the petitioned item up on an agenda. . . Each member shall have the right to speak for at least 3 minutes on each matter placed on the agenda by petition, provided that the member signs the sign-up sheet, if one is provided, or submits a written request to speak prior to the meeting. Other than addressing the petitioned item at the meeting, the board is not obligated to take any other action requested by the petition.” So, as you can see, you can collect signatures from at least 20% of the total voting interests and the Board must place the matter on its next agenda. The membership is guaranteed an opportunity to address the Board and speak to the Board, but there is no statutory requirement for the Board to take any action other than listening.
I should also note that despite the fact there is no requirement for the Board to vote on the business raised by the petition, the Board is nevertheless governing by its fiduciary duty. If the petition raises an issue that triggers a response pursuant to the Board’s duty, there may not be a statutory obligation to act, but there may be an obligation under the Board’s fiduciary duty.
John C. Goede Esq. is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.