Q: Can you clarify the law regarding board members having to turn in association records after going off the board? I am being asked by our property manager and president to turn in any association paperwork in my possession. I am getting off the board after several years. R.I. (via email)
A: The statutes applicable to condominiums, homeowners’ associations and cooperatives all require a director who has been recalled (involuntarily removed) from office to surrender all official records of the association within five days of their removal. Otherwise, the statutes are silent on the point.
It is my assumption that the documents that you have are not the actual “official records” of the association, but photocopies of records that are independently maintained by the association. If documents in your possession are original records, you clearly have the obligation to turn them over. If not, and these are photocopies of existing official records, you would be entitled to inspect and copy them for your own purposes anyway. If you are in possession of copies of any association records that are privileged (such as attorney-client privileged opinion letters), those should be returned to the association.
In sum, if you hold any original official records, you should return them. If you merely hold photocopies, and assuming they are not privileged documents, I do not see why the association would want them back, but you would certainly be free to cooperate with their request.
Q: Is it legal for a condominium association to publicly post the names and unit numbers of homeowners who are late on their assessment payments? M.V. (via e-mail)
A: In my opinion, no. Chapter 559.72(14) of the Florida Statutes, known as the Florida Consumer Collection Practices Act, generally prohibits the publication of “dunning lists.”
However, the underlying documentation involving the delinquencies (such as account ledgers, records of payments, recorded liens, and the like) are part of the “official records” of the association, which any unit owner is entitled to inspect and copy.
In other words, unit owners have the right to get this information, but the association should not volunteer it, and certainly should not try to “shame” people into paying, as that will backfire.
Q: Our documents state that membership in the association is limited to record owners of property. We have a person who claims to have a “power of attorney” from an owner, and claims to have the right to run for the board and vote at our member meetings. What is the law on this? T.G. (via e-mail)
A: In my opinion, one who holds a power of attorney does not have the right to run for the board if the bylaws limit board membership to property owners.
Voting at membership meetings is a different issue. If the power of attorney also complies with the legal requirements for a valid proxy, and assuming the bylaws do not limit proxy holders to property owners, the individual holding a power of attorney could vote at meetings of the membership on behalf of the record owner.
Q: We have a very small homeowners’ association (less than 20 homes). We have generally run it very informally, have had few meetings, and most actions are taken by consensus achieved by email or telephone. Up until now, we have not had any problems. Now, we have a bank that has taken a home in foreclosure and are worried that if we do not properly vote on actions, that we may have a problem. What should we do to ensure that everyone is obligated to pay in case we have to file a lien? C.D. (via e-mail)
A: The alleged failure by associations to comply with technicalities of statutory and documentary provisions is sometimes raised as a defense to paying assessments. This often occurs when someone has decided to stop paying (or cannot afford to pay) and wants to throw up every roadblock they can to be able to live “cost free” for as long as they can.
So, the answer is that you do need to follow the rules set forth in the statute and your governing documents. I would suggest that your board members attend a board certification course, which is sort of an orientation course for serving on association boards. You can get a list of programs approved by the Department of Business and Professional Regulation by reviewing its website at myfloridalicense.com/dbpr/lsc/condominiums/CondoEducation.html.