Live in a home governed by a condominium, co-op or homeowner’s association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: Our HOA president and board, along with our management company, ignores us when we ask for copies of vendor bills and estimates. Do I have to write a letter to them, or under Florida law do they have to give us this information? And do I have a right to hire an attorney at their expense if they refuse? Signed, R.M.
Dear R.M.,
First, you do not have a right to hire an attorney and try to charge that expense to the association — nor would any attorney agree to represent you on that basis. Now, if you sue the association because they violate the HOA Act and you win that lawsuit, you are entitled to recover your costs and “reasonable” attorney fees, which is usually the majority, but rarely 100%. But, you would have to make that investment on your own. And, if you lose (and this is true even if you were to represent yourself) you would have to pay the association’s legal fees, which can be quite significant.
I get the impression from your question that you have been verbally asking the board and management to give you copies of these bills. That’s the wrong way to go on a couple of different levels, and that’s why they’re ignoring you. First, the statute says that you have a right to make a written request to inspect the association’s records; and I recommend that written request at least be mailed and preferably mailed in a manner that has delivery tracking (such as certified mail).
Second, you have a right to request to inspect and copy the records (either on your own device, or on an association copier for a reasonable fee); but you do not have a right to simply demand they give you copies of records.
In the condominium context (which is at least instructive in HOAs, given that the statutory language is so similar) there are arbitration decisions where arbitrators have said that demands for copies of records were improperly worded and therefore invalid. So, your letter should expressly ask to be allowed to inspect and copy the desired records within the statutory timeframe (10 working days from when the association receives your request). Make sure your request is specific with respect to the documents that you want, as well — don’t just demand to inspect “vendor bills,” but give a very specific list of the types of vendor bills you want to see, and a date range as well.
If you make that proper request and the association still ignores you, then you have little choice but to hire an attorney to enforce your rights. It’s a flawed system, but there is no other enforcement mechanism, so it will depend upon how important it is to you to see these records. Alternatively, it might be cheaper and easier to organize your neighbors to replace the board with directors who are willing to be more transparent.
Question: Our master association board has decided to charge a markup on the cost of personal services provided to the residents. For example, when a resident needs a new bar code sticker to enter the property, instead of just charging for the actual cost of the new sticker the property management company has been instructed to charge that cost plus a profit margin. Is it legal for HOAs to make a profit on what would be considered standard operating expenses? Or should our HOA fees be sufficient to cover the operational costs? The profits are then used to supplement the HOA budget. Signed, J.B.
Dear J.B.,
What you’re describing is extremely common. Most communities do charge for gate access, stickers, keys, fobs and other items related to use of the association facilities. And very few of them treat those costs as a direct passthrough expense. Consider that the cost of providing those items to owners is certainly more than just the item itself — there’s ancillary costs like shipping, there’s the administrative time involved in ordering and distributing those items, and in tracking them when they’re lost. Yes, the association is collecting dues to cover budgeted expenses, but those dues would not normally include replacing owners’ lost access cards and stickers.
Further, keep in mind that the fact that the association is a not-for-profit corporation does not mean that they are prohibited from “profiting” off individual items such as the sale of access devices. If the association makes an overall profit at the end of the year it could have a minor tax consequence, but that’s an accounting question.
An argument could be made that it is improper for an association to charge owners for anything that isn’t described in the declaration of covenants. But by the same token, access devices probably aren’t described in the declaration at all, and you’d rather the association be providing them than not. I don’t think this is something to make a major issue of unless the additional charge is patently unreasonable.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Getting records from Florida HOA not as simple as just asking
Reporting by Ryan Poliakoff, Special to the Palm Beach Post / Palm Beach Post
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