Condo Record Requests – What Do You Have To Hide?

By Jan Bergemann
8:20 a.m. EST, February 24, 2012

FS 718.112(12) states very clearly which association records are public records – and which are not. The statutes even explain in detail the rights of the owners to inspect these records and get copies of the records on demand.

Nevertheless, record requests are most likely the most disputed issues in condominiums. The Division of Florida Condominiums, Timeshares, and Mobile Homes gets flooded with complaints. A huge number of arbitration rulings show that the fight over records is one of the most common battles fought in condominiums.

I never understand why each year hundreds of thousands of dollars are wasted on legal fees to “hide” these records – meaning avoiding record inspection. The only reasonable explanation I can come up with is: Boards and/or management companies have lots to hide – making it worthwhile to spend lots of money to try to avoid producing these records.

Many record demands are answered with lengthy letters trying to explain why the owners shouldn’t be able to inspect these records or the demand of pre-payment of outrageous costs for inspecting these records, hoping that the high dollar amounts demanded will discourage the owners enough to stop demanding to inspect these records.

FOR THE RECORD: FLORIDA STATUTES DON’T ALLOW ANY CHARGE FOR RECORD INSPECTION – ZERO, ZIP, NADA!

Because of the many complaints from condo owners, the Florida legislature added in 2008 a special enforcement tool to the statutes by giving the Division subpoena power for failure to produce records. The paragraph added to FS 718 leaves no doubt about the fact that the division shall issue a subpoena. It doesn’t say can, may or it’s up to the Division to issue a subpoena. The magic word is SHALL!

FS 718.501(1)(d) 7. If a unit owner presents the division with proof that the unit owner has requested access to official records in writing by certified mail, and that after 10 days the unit owner again made the same request for access to official records in writing by certified mail, and that more than 10 days has elapsed since the second request and the association has still failed or refused to provide access to official records as required by this chapter, the division shall issue a subpoena requiring production of the requested records where the records are kept pursuant to s. 718.112.

But board members, managers and some attorneys just rely on the Division’s reputation for not following the statutes and for finding all kinds of excuses to avoid taking boards and managers to task. Even the great excuse of “records don’t exist or were lost” works perfectly with the Division. I dealt with a case where the board claimed that the financial records demanded had been lost, caused by a hurricane. The fact that there was no hurricane after the records were created didn’t bother the Division. “If they don’t exist, they don’t exist” – even if they are required by law to exist.

But if you think condo owners are having a hard time to inspect the records they have the right to inspect by law, wait until next week when we discuss the problems of record requests in homeowners’ associations. Believe me, inspecting records in a condo is a cakewalk compared to record inspection in an HOA.

Let’s face it: The fact that boards, managers and some attorneys are allowed to “hide” records, especially financial records, makes it possible that we read headlines like: ”Woman accused of stealing $2 million from Palm Beach condos.” The bad guys know full well how easy it is to avoid record inspections for a long time – courtesy of the Division’s failure to follow the laws!