My HOA directors refused to allow me to view a overdue assessments document they were discussing at a duly called Board Meeting?

Asked about 1 year ago - Seminole, FL

During the meeting I asked to view the document or have it added to the package we are getting (minutes, Budget P/L, income). The CAM deferred to the officers and the President declined stating I had to make a records request. I asked for the info on every property of the financial receipts of homeowner assessments by address as well as some documentation on which properties were being taken to collections. I was provided on the 9th day an appoint time on the 10th day to come and view the records but only shown a subset.
I made another request for the information and additional documentation and received notice that the estimate to get the documentation would be 8 hours chargeable @ $20 and must be paid prior to viewing. I intend to use SB580 and will not be demanding copies. Is this legal

Additional information

The Assc has processed and collected via a collections agency, fees from some owners while not attempting the same from all owners. As I am bringing this information to their attention I am earning special attention on violations inspections, Architectural apps and even communications. Several letters I receive from the CAM state, based on board decision, but there are not any documented minutes or meetings. Frequently the directors meet in numbers less than quorum in the street publicly.

Many owners have been subjected to the added expenses but the directors themselves are not and recently they sent out a letter, that they have on an agenda to ratify later, granting clemency to debt incurred by late fees and interest for some owners based on date.

I am concerned they are creating a liability for the community for litigation that could prove costly to all home owners should some debtor want to reverse fees paid that others have had forgiven, is that possible?

Attorney answers (1)

  1. Barbara Billiot Stage

    Pro

    Contributor Level 19

    1

    Lawyer agrees

    Answered . The board is correct that you need to make a records request. There is a law that makes it a violation with a statutory penalty of $1,000 if someone discloses a debt to a third party. Board members should never refer to the debts by the owners name or address and should instead use lot numbers or parcel numbers so the owner is not easily identified. These matters need to be discussed in board meetings, but carefully.

    The board has discretion on who to send to collections or to the HOA attorney. Not all past due accounts are equal. If an owner filed bankruptcy the HOA cannot take action during the automatic stay. If the home is in foreclosure it may very well be a waste of HOA funds to pursue the matter.

    The board members meeting in public is an issue if they are discussing board business. It is only illegal if there is a quorum (majority) of the board present, but as a practice they should not be discussing business except at meetings and not by email (which a majority of HOAs do anyway).

    The HOA has the right to charge you for gathering documents if the request is more than 25 pages and the charge cannot be more than $20 per hour plus 25 cents per page if you want copies. The new law effective July 1st allows you to use an electronic device to scan them, but you can still be charged for the property manager to gather the documents.

    The last issue of the board waiving late fees and interest is an interesting situation because there is no law that prohibits this. There is a duty to enforce the covenants uniformly against all owners, but assessments are affirmative covenants and not a restrictive covenant. While the board should not waive assessments, the board has discretion to waive interest and late fees. The board needs to weigh the likelihood of collecting anything if they take a stance of "all or nothing" versus what they can realistically collect to keep the cash flow going. Assessments are almost always the only source of income and with the average association having a 40% delinquency rate, it makes more sense to waive some charges that are not out-of-pocket costs than to increase assessments on those that do pay. Plus, the law provides a buyer is responsible for the past due assessments of a previous owner, but does not make the buyer liable for the late fees, interest and attorneys' fees. All of these factors need to be considered.

    The board members cannot be delinquent in their assessments or they are removed from office by state law.

    If you think your board is not using proper discretion and is waiving fees for their friends, then that's a different matter. However, there is no state agency yet that regulates HOAs so if you want to take them on in court it can cost way over $100,000 in legal fees plus the winner gets reimbursed by the loser. If you win, great -- you may get some, but not all of your legal fees. If you lose, you could owe the HOA $100,000 or more. It's a very unfair system.

    This communication is not intended to create an attorney/client relationship. It is always recommended you consult... more

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