The Condominium Act (“The Act”) has a catchall provision which essentially provides that “other written records” related to the operation of a condominium are considered official records of an association. In 2017, the Act underwent some changes as it pertains to official records and these changes are important to keep in mind to avoid a problem. For instance, “bids for work to be performed” have long been considered official records. Beginning July 1, 2017, however “bids for materials, equipment or services” are official records. In other words, whether an association accepts the bid or not, all bids are official records and are subject to inspection. Also, beginning July 1, 2018, associations required to have a website must post “summaries of bids” on their website for one year. The Act does not detail what constitutes a summary so depending on the nature and extent of the bids received, an association will need the guidance of its attorney as to what should go in to the summary for compliance purposes.
In terms of access to official records, notable changes include the ability of a renter to both inspect and obtain copies of the by-laws and rules of the association. Note, the access is specific to the by-laws and rules, not the declaration, articles of incorporation, meeting minutes, and so forth. Additionally, the right is limited to the renter, not a guest or someone living in the unit who is not on the lease. Another change in 2017 centered on inspections of official records. If the person seeking access to the official records is doing so as an authorized representative of the owner, then they have the same rights of inspection and copying as an owner. There is no definition of “authorized representative” and it would be improper to assume that only an attorney or someone with a power of attorney would meet that criteria. If for example, an owner advises that the renter is his authorized representative, then the renter as the authorized representative is entitled to inspect and obtain copies of minutes, bids, and all other non-privileged official records of the association. The authorized representative however is not permitted other owner related rights such as the use of the pool or gym simply because they are the owner’s authorized representative. Associations which will be required to have a website beginning July 1, 2018, should also keep in mind that just because some of its official records will be posted to the website, does not mean that written records requests for inspection of those records will no longer have to be honored. On the contrary, the website requirement is in addition to and not in lieu of the ability of an owner and their authorized representative to send a written inspection request. Nor does it mean that an authorized representative or renter has access to the secure portions of the website as The Act limits access to owners. In order to ensure uniformity and timely handling of inspection requests, associations will need to have a system in place which considers not just the nature of the records sought but also the person requesting them.
Another and quite important point as it pertains to new developments with official records stems from the refusal to allow inspection or copying of records which are not confidential. In such an instance, if the refusal is in furtherance of a crime, the refusal itself is considered a criminal act. The same criminal consequences apply if the official records are destroyed in furtherance of a crime. The criminal component however does not do away with the monetary damages (or any other civil liability) faced by an association for the failure to timely provide or properly maintain its official records.CUP