Official Records of Condominium Associations Part 3 of 3

Section 718.111(12) of the Florida Condominium Act and Rules 61B-22.002, 61B-22.003(3), 61B-23.002(7) and 61B-23.0021(13) of the Florida Administrative Code provide guidelines for the maintenance and inspection of the association’s official records.  Part 1 of this 3 part blog identified what records constitute official condominium association documents.  Part 2 of this blog identified what records are specifically exempt from inspection by unit owners. This posting will identify specific official records retention requirements and logistical considers associated with unit owner inspections of official records.

Granting of Official Records Access

Florida law requires that condominiums maintain the official records of the association within the state for at least 7 years. The records of the association shall be made available to a unit owner within 45 miles of the condominium property or within the county in which the condominium property is located. However, such distance requirement does not apply to an association governing a timeshare condominium.

An association’s official records must be open for inspection by each association member or the association member’s authorized representative at all reasonable times. The records must be made available within five working days after the board or its designee receives a written request.  The time frame is ten days for a Homeowners Association under Chapter 720. An association may comply with this requirement by maintaining a copy of the official records on the condominium association property and making them available for inspection or copying.

In addition to the right to inspect the official records, unit owners have the right to make or obtain copies when they inspect the records. A reasonable fee may be charged for copies. A fee cannot be charged simply for the inspection of records. Reasonable rules regarding the frequency, time, location, notice and manner of record inspections and copying may be adopted by the association.  The Association may comply by sending copies of the official records via electronic methods.

Denial of Official Records Access

The failure of a condominium association to provide the official records within 10 working days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply.  The association’s noncompliance and denial of official records access entitles the unit owner to seek actual or minimum damages. Section 718.111(12)(c), Florida Statutes provides for minimum damages of $50 per calendar day, for up to ten days, beginning on the 11th working day after receipt of the written request. Such damages must be awarded by a court of law. A unit owner who prevails in court may also recover reasonable attorney’s fees from the person in control of the records who knowingly denied access.  The failure of the board to allow inspection of books and records constitutes a dispute for which a unit owner may either file a complaint with the Division or petition the Division for mandatory nonbinding arbitration.

Another option, if a unit owner was not granted access to review books and records, would be to pursue mediation or mandatory, non-binding arbitration, as described in Section 718.1255 of the Condominium Act. The Division of Florida Condominiums, Timeshares, and Mobile Homes maintains several brochures and booklets describing what is involved in filing a request for mediation or arbitration. Generally, for disputes regarding access to official records the unit owner should file a petition for mandatory non-binding arbitration before the dispute will be heard by a court. After the arbitrator issues a final order, the unit owner, or the association, may appeal in court within 30 days.

Any person who knowingly or intentionally defaces or destroys accounting records that are required by the Condominium Act to be maintained during the period for which such records are required to be maintained, or who knowingly or intentionally fails to create or maintain accounting records that are required to be created or maintained, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to Section 718.501(1)(d). The association shall maintain an adequate number of copies of the declaration, articles of incorporation, bylaws, and rules, and all amendments to each of the foregoing, as well as the question and answer sheet as described in Section 718.504 and year-end financial information on the condominium property to ensure their availability to unit owners and prospective purchasers.

In most cases unit owners will not encounter problems with their requests to view books and records. In those few cases when problems arise a clear knowledge of the applicable statutes and a methodical approach to the request will assist association in ensuring that unit owner rights are observed.  It is imperative that the condominium association board members and the condominium association manager have a clear and thorough understanding of the all aspects of retention and maintenance of condominium association official records in order to comply with Florida law.