SB 1196 Changes Condo/HOA Official Records and Record Inspection Rights
Community association leaders and managers should become aware of changes to record inspection obligations now that SB 1196 has been signed into law.
Roster List (Condo):
The roster list is an important document. Telephone numbers have traditionally been included in the roster list, despite objections over the years. The roster list also includes email addresses of the members if they have consented (or requested) to receive notices and other association information by email. SB 1196 says that the email addresses and telephone numbers of the members must be removed from the association's records if the owner revokes consent to receive notice by electronic transmission. Please discuss modifications to the roster or creating a procedure for owner consent to include this information with association counsel, as many owners have come to rely upon the roster or directory to remain in contact with friends and neighbors.
Civil Penalties (Condo):
Last year the act was amended to authorize civil penalties against anyone (individuals - i.e. board members, manager, etc.) that knowingly or intentionally defaced or destroyed accounting records. It also authorized civil penalties for knowingly or intentionally failing to create or maintain the accounting records. SB 1196 now limits the civil penalties to the time period the records are required to be maintained. Penalties are likewise not appropriate for failing to create or maintain these records unless there is a finding of intent to harm the association or one or more of its members.
Misuse of Information (Condo):
We know the association cannot publish debtor lists or use the delinquency records to embarrass or harass its members, but the board (or management) has little to no control over what happens to records once they are in the possession of a unit owner. SB 1196 says the association is not responsible for misuse of records properly obtained in connection with an owner's rights to inspect and copy.
Personnel Records (Condo & HOA):
Personnel records for association employees such as payroll, disciplinary actions, health and insurance records are no longer accessible to members. I know a few managers that are happy with this change.
Owner Information (Condo & HOA):
Private information such as email addresses, telephone numbers, emergency contact information, social security numbers, driver's license and credit card numbers of the owners are not accessible to members.
Condo and HOA owners are not entitled to obtain the association's passwords, electronic security records, software or operating systems that manipulate data.
Presumption (HOA):
In HOAs the presumption that the association willfully failed to make records available if the records were not available within 10 business days only arises if the request was sent via certified mail, return receipt requested.
Inspection Costs (HOA):
If the association does not have a copy machine at the record site, or the owner requests more than 25 pages of records, copies may be made by an outside vendor or management company personnel - in that case the association may charge for the actual costs of the copies and hourly charges for vendor or employee time to cover the administrative costs to the vendor or the association.
You may need to change your association's record retention and/or inspection policies in light of these changes.
Two questions:
1) If the condo assn has a management company, is the Board (as "the Association") considered to have access to the owner contact information as well as the management company, or is the Board lumped in with "all owners", to be denied access to phone and e-mail contact info unless there is specific consent by the owner?
2) Our Assn currently posts owner name, unit, second address, phone, e-mail and emergency contact on a website accessible to owners and password-protected. The Board uses this list to e-mail or mail regular newsletters and other important information. The list was originally compiled and is updated through personal contact with each owner, but there is no signed consent form. Do we now need to have signatures?
This list often is more up to date than the management company's, since it is proactively collected by the Board rather than waiting for the owner to remember to give it. The emergency contact info is part of our Disaster Preparedness Plan and has been used several times when an elderly owner has health or safety issues.
Comment: I think it's wrong to class basic contact info with the serious personal info such as bank, SS and credit card numbers, driver's license etc. It's very hard to forge a community if you can't even contact people except by knocking on their door or mailing a letter.
Charleen Gorbet, Sarasota
With regard to the new law:
1. Our HOA has been charging $25 per hour for record inspection and copying this past year, in addition to the cost of using the HOA office copier. Could it have lawfully done that prior to the passage of SB 1196? If not, would refunds be in order?
2. The issue of email addresses seems confusing: If the HOA has an email list that it uses to send info to members, and an owner requests a copy of that list to send info to owners from another perspective, if no one has opted out, may the owner request a copy of the email list and be entitled to it?
In another place, it says that email addresses are not to be made available. Is that different from the above meaning that an owner cannot request a "specific" person's email address, but is entitled to the main list if no one has opted out?
Thanks.
The (CONDO/HOA) designations are most helpful. Do they indicate that none of the changes listed also involve cooperatives? I'm in a co-op and find it difficult to track which items also relate to co-ops.
Are any of the SB 1196 changes applicable to cooperatives?
RESPONSE: There are few provisions, the elevator upgrade and fire sprinkler provisions, which do not impact you. Here's the section likely to impact your community:
Cooperative Associations--Collections/Foreclosures
The claim of lien may include late fees and reasonable costs for services for which the association has contracted.
Revises requirements for 30-day intent to lien letter.
Provides that if a unit is occupied by a tenant and that unit owner is delinquent in the payment of any monetary obligation to the association, the association may demand that the tenant pay to the association the future monetary obligations related to the condominium unit.
Requires the association to mail written notice to the unit owner of the association’s demand that the tenant make payments to the association.
Provides that the liability of the tenant may not exceed the amount due from the tenant to the tenant’s landlord. Provides that the tenant’s landlord shall provide the tenant a credit against rents due to the unit owner in the amount of monies paid to the association.
Provides that the association may sue for eviction as if the association were a landlord if the tenant fails to pay a required assessment to the association.
@ Harvey Morse.
Your association cannot charge for inspecting the records even under the new law. They only can charge you the wage costs if they actually have to pay someone to go to let's say Kinkos and make the copies there.
RESPONSE: The new HOA statute (remember, the charges for staff time are only HOA, not Condo or Coop) says the association can pass on the cost associated with making the copies. The association can charge the actual copy cost (no longer designate an amount per page) and "reasonable costs involving personnel fees and charges at an hourly for vendor or employee time" for making the copies. Not the model of clarity, but this is likely to be interpreted as "employee time" for a vendor if there results in an additional charge to the association.
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