A discussion of routine & complex issues which confront all types of shared ownership communities.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.

Condo and HOA Law Blog By Donna DiMaggio Berger, Esq.
This blog covers every topic under the sun related to condominiums, cooperatives, HOAs, timeshares and mobile home communities from the unique perspective of attorney Donna DiMaggio Berger.

Friday, May 13, 2011

Can HOA's charge an Inspection Fee in addition to a Copying Fee?

A reader of this Blog recently asked the following question:

"Can an HOA impose an Inspection Fee to view official records? My HOA's management firm has said that they require an 'inspection fee' of $20/hour to allow me access to the association's official records. Apparently, the justification is that the management firm must have a member of staff supervise my visit. I contend that neither the HOA or its agent can charge a fee for me to just inspect the records but only in relation to providing copies of the records."

My answer is as follows:

This issue comes up frequently. Here is what the HOA Statute says:

"The association may impose fees to cover the costs of providing copies of the official records, including, without limitation, the costs of copying. The association may charge up to 50 cents per page for copies made on the association's photocopier. If the association does not have a photocopy machine available where the records are kept, or if the records requested to be copied exceed 25 pages in length, the association may have copies made by an outside vendor or management company personnel and may charge the actual cost of copying, including any reasonable costs involving personnel fees and charges at the hourly rate for vendor or employee time to cover administrative costs to the vendor or association."

Some associations try to separate the "personnel" fees from the "copying" function discussed above and charge a fee for merely monitoring the inspection even if the association is not being asked to perform copying services. If you read the language carefully above, that is a very liberal interpretation of what is written. It appears to me that the personnel charge is tied to the copying function and not independent thereof. For communities who have concerns about preserving the sanctity of their documents during the inspection process, they can certainly request an employee or board member to sit in on those inspections. If there is an additional charge for the association employee to perform that function that would be a cost of doing business for the association like any other.

In fact, some owners merely want to look with no need to copy. Others show up with their own portable scanners so there is no need to burden the manager, board member or any other person with that function. Associations who are concerned about nuisance inspection requests can adopt reasonable rules regarding inspections including limiting the number of documents and/or amount of pages that can be requested at one time as well as the number of hours permitted in any one sitting.

For some fortunate associations, the inspection process is a breeze. The documents are well organized, easily reviewed and there are few concerns about nuisance requests or owners showing up with a malicious intent to destroy or alter records. Other associations are not so fortunate and they have endured repeated requests for the same documents and/or requests for catch-all inspections for "everything pertaining to the association since its inception"! Associations would be well advised to the control the process but not thwart it. Any attempt to make the process more difficult or even impossible for an owner to inspect the association's governing records will certainly be met with disfavor by a trier of fact. Speak with your association attorney about how the inspection process can best be handled.

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

4 comments:

Martin Kelly said...

Thank you for this blog.

I agree that any “incidental” cost that is incurred by the association, or its property manager, as a result of a member's inspection of the official records is simply the “cost of doing business.”

The interpretation of Ch. 720 F.S. in relation to costs associated with providing copies of official records may be a challenge, and I can understand how a volunteer board member or a property manager may struggle with the lingo. However, there is no doubt in my mind that a homeowners' association, or its manager, is not authorized to charge a fee for the inspection of records, but may only impose fees to cover the costs of providing members copies of those records.

Unfortunately, aggressive or opportunistic associations may try and impose an unauthorized “inspection fee” as a device to frustrate a concerned member from researching a legitimate issue; and that is an abuse of power!

Furthermore, the imposition of a financial penalty may constitute the willful failure of the association to provide a member with access to official records in accordance with Ch. 720 F.S., and that could result in a claim for damages by the member.

This is an important matter, but I don't believe, for one second, that our legislators had any intention of allowing associations to penalize association members for asking to inspect the official records.

Anonymous said...

Here's my story. I finally ran for the Board last year and was elected. The only reason I ran was because I could not inspect the records. I was GIVEN the position of Secretary and STILL was never able to inspect our records. I even mailed two certified letters as Secretary. One went unanswered. Finally I sent one to more than one Board member and was given a date and time to inspect the records. I stated that I could not be there at that time and date and could we agree on a time and date that was agreeable to both of us. I was told no. We now have a new Board and I have asked again. I was told anytime after April 1st. 2012. So I waited and then made my request after that date. Here is what was posted in our minutes as of April 12, 2012, " You all have the right to look at records, but please be aware that if you are going to sit in an office and just go through the records it is costing you and the association money. Someone needs to sit in the record room with you and it is going to cost an hourly rate." I have been a President of an HOA, or on a Board of some type, my entire adult life and have never encountered anything like this. Our records for the entire year can't possibly be more than one file drawer. I know when there is something wrong. So what do I or anyone else do? Records should be kept so that anyone can see them at anytime. If kept properly it is very easy to do.

Anonymous said...

Thank for your input sounds great..... HOWEVER
lets talk about what happens in the real world with real people controlling boards who really don't follow, understand or even read the "statues of suggestions" for HOA's which is why you have so much to write about.

We all know how these Board operate... never noticing the community for changes in common area uses age or other lot rules. HOA's Board and ARC decisions made in private meetings, no record of minutes of decision made, no bids for capital improvements, selective enforcement of rules.
Just read other blogs were boards are charging fees to "SEE THE RECORDS".

What is the solution for HOA members...okay, lets review the process.......
Request records inspection certified mail return receipt requested, wait ten business days, dododododo.....ddodo.

Response of the Board... Pay us to see the records Mr. Member who is not a friend of the community, how dare you challenge our authority....your driveway needs cleaning....

File a statement of claims in small claims court!
YES , if the Board make unreasonable rule ( you must see my bookkeeper who keeps the financial record for our little associations with a budget of 20K per year until the end of the year and will charge you $50 per hour to view those records)

Make your records request, show up, refuse to pay the ridiculous fee, send a demand letter for your Board to pay statutory $50 bucks a day for a total $500 penalty( which they will refuse to pay), request mediation as required (for $900 split 50-50 between you and the board total time 20 days for board to agree, pick a Mediator, mediate, disagree: total 110 day or so)

File your claim, serve paper on associations Attorney (registered agent) Show up at your pre trial hearing, 60 Days later...Hear guilty or not guilty out of Board,
Wait 60 days or so
Final hearing, Small Claim Court
You as plaintiff will tell Judge they didn't let me see the record; Defend will say they did
LIEING WILL FOLLOW.... we said they could look, they stole records the last time judge...etc\
Judge will rule ???? Yes or No hears you $500 have nice day.

REAL WORLD.......
Did you get to see the records?
Will Judge order them to open records them ?
Effort in Days 180 - 200
Cost Mediation $450
File Small Claims $350
Summons to Board$35
Total $835 plus $500 if you win
if you lose... ad attorney fees below to your cost to see the records.
Conclusion: dont cause trouble and if you do be prepared to pay
No regulatory overseer for HOA's
Don't asks for records,
Judges are burnt out
Statue are noting more than mere suggestions or recommendations to follow
Board Attorney fees $1,500- $2,500 win or lose
Play Rolling Stone song... under my thumb......and
Have a nice day from your Board President

Donna DiMaggio Berger said...

Some boards push the legal and ethical envelope; some owners do this as well. It is a glittering generality to assume that every board and owner that plays games will "get away with it". It is also not helpful to assume that every judge and court will provide no relief whatsoever; that simply isn't the case as many do understand these nuances and rule accordingly.

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