The Differences Between Homeowners Association and Condominium Association Law in Florida – Part II: Records Inspections and Alterations to Property

Our previous post, the first of a three part series, discussed the differences between homeowners association and condominium association law in Florida pertaining to basic board operations. This post, the second of a three part series, discussed the differences between homeowners association and condominium association law in Florida pertaining to records inspections and alterations to property.

Record inspections

For condominiums, official records of the association are open to inspection by any member or authorized representative of member at all reasonable times. This includes the right to make or obtain copies at a reasonable expense of the member. The Association may adopt reasonable rules regarding frequency, time, location, notice, and manner. See Fla. Stat. § 718.111. If an Association fails to provide records within 10 working days after receipt of a written request, said failure shall create a rebuttable presumption that the Association willfully failed to comply. Fla. Stat. § 718.111(12)(c).

When it comes to association records requests from condominium owners, section 718.111(12)(c), Florida Statutes, provides that unit owners or their authorized representatives have a right to inspect and make or obtain photocopies of certain official records of the association. In order to limit excessive demands upon the time and attention of the manager and the board to the detriment of regular business of the association, the statutory section goes on to say that the association may adopt reasonable rules governing the frequency, time, location, manner and notice of inspection and copying.

For HOA’s, official records must be maintained within the state and must be open to inspection and available for photocopying by members or authorized agents at reasonable times and places within 10 business days after receipt of a written request for access. The Association may adopt reasonable rules regarding frequency, time, location, notice, and manner. See Fla. Stat. §720.303(5). Failure of association to provide access to records within 10 business days after receipt of a written request submitted by certified mail, return receipt requested, creates a rebuttable presumption that Association willfully failed to comply. Fla. Stat. § 720.303(5)(a).

The Associations can charge reasonable per page copy costs and limit an owner’s inspection right to no more than one eight-hour business day per month. Boards can adopt resolutions with provisions designed to prevent abuse of this inspection and right to copies. In addition to the one day per month limitation, the resolution can provide that the request must be made in writing, with reasonable particularity at least five (5) days for condominium associations; 10 days for homeowner’s associations, before access is desired.

The association decides who makes the copies and how much per page, and can require an association representative be permitted during the inspection to insure the records are not damaged or removed. A requirement that only one owner may inspect the records at a time should be included in the resolution.

As community associations are rightfully required to operate in the sunshine in the Sunshine State, some simple ground rules when it comes to speaking at association meetings and looking at association records can prevent abuse by a few of their right to give their two cents worth and take a look see.

Regarding condominium associations, 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.  The official records of a condominium association are specifically identified in section 718.111(12), Florida Statutes.  Below is a complete list of condominium official records:

1. A copy of the plans, permits, warranties, and other items provided by the developer pursuant.

2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.

4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.

5. A copy of the current rules of the association.

6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners, which minutes must be retained for at least 7 years.

7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the electronic mailing addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The electronic mailing addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided.  The association is not liable for an inadvertent disclosure of the electronic mail address or facsimile number for receiving electronic transmission of notices.

8. All current insurance policies of the association and condominiums operated by the association.

9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.

10. Bills of sale or transfer for all property owned by the association.

11. Accounting records for the association and separate accounting records for each condominium that the association operates. All accounting records must be maintained for at least 7 years. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant. The accounting records must include, but are not limited to:

a. Accurate, itemized, and detailed records of all receipts and expenditures.

b. A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.

c. All audits, reviews, accounting statements, and financial reports of the association or condominium.

d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association.

12. Ballots, sign-in sheets, voting proxies, and all other papers relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates.

13. All rental records if the association is acting as agent for the rental of condominium units.

14. A copy of the current question and answer sheet as described in s.

15. All other records of the association not specifically included in the foregoing which are related to the operation of the association.

16. A copy of the inspection report as described in s. 718.301(4)(p).

It is imperative that the condominium association board members and the condominium association manager have a clear and thorough understanding of the condominium association official records in order to comply with Florida law.  It is also important to know what records are exempt. Pursuant to section 718.111(c) of the Florida Condominium Act, the following categories of documents and records are not accessible to unit owners:

1. Records prepared by or at the direction of an association attorney which reflects legal conclusions, strategies or legal theories and which were prepared for civil or criminal litigation or adversarial administrative proceedings until the conclusion of those proceedings.

2. Certain information obtained by an association in connection with the approval of the lease, sale or some other form of transfer of a unit.

3. Personnel records of association employees, including, but not limited to disciplinary, payroll, health, and insurance records.

4. Medical records of unit owners.

5. Social security numbers, driver’s license numbers, credit card numbers, e-mail addresses, telephone numbers, emergency contact information, any addresses of a unit owner other than as provided to fulfill the association’s notice requirements and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, and property address.

6. Any electronic security measure that is used by the association to safeguard data, including passwords.

7. The software and operating system used by the association which allows manipulation of data, even if the owner owners a copy of the same software used by the association. The data is part of the official records of the association.

Alterations to property

With Florida condominiums, unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any unit in any material fashion, materially alter or modify appurtenances to unit, or change proportion or percentage by which unit owner shares common expenses of condominium and owns common surplus of condominium unless record owner of unit and all record owners of liens on unit join in execution of amendment and unless all record owners of all other units in same condominium approve amendment. Fla. Stat. § 718.110(4).

Material alterations or substantial additions to the common elements or to real property which is condominium association property also requires unit owner approval in most circumstances. The required unit owner approval will be that which is provided in the declaration of condominium, and if none is specified in the declaration, the approval must be by not less than 75% of the total voting interests of the association. Fla. Stat. § 718.113(2)(a).

Florida HOA law is different in that there is no owner alteration provision in Chapter 720, but there is a substantially similar requirement regarding approval of common property alterations. Material modifications and alterations to the shared or common property of the HOA require specific approval of the owners in almost all circumstances. The required approval will be 100% of all the property owners unless the declaration of covenants or the HOA documents provide for another method of making material modifications or alterations.

Any amendment to the community documents attempting to change the percentage or share by which an association member shares in the common expenses will also require the approval of each owner and may also require approval by all owners of liens on property in the community.

Our next post, the third of a three part series, seeks to discuss the differences between HOA and COA law pertaining to certain rights in litigation.