HOAleader.com - Tip of the Week - April 30, 2021
Published: Fri, 04/30/21
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Don't Dance with the Bear, AKA How to Limit Harassing Condo/HOA Records Requests
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There's a fine line between a legitimate number of records requests and a barrage that becomes harassment. In this week's tip, in response to an HOAleader.com reader's question, we offer a few ideas for reining in the onslaught.
More and more people are noting that anger seems just below the surface today, and it bubbles up in ways that this reader describes.
"Right now, in this atmosphere we're in, I'm seeing this a lot," says Jennifer Horan, a shareholder in the Naples, Fla., office of Becker & Poliakoff, who has represented condos and HOAs for more than 15 years. "I'm seeing scorned directors, ex-directors, people who wanted to be on the board and didn't get on, and people who run for the board because they don't like what the current board is doing and then come on the board and ask for legal opinions that were issued five years ago when they weren't a director but were involved in the dispute at the time.
"A lot of that has been happening, and I don't know if it's because of the pandemic or national election," she adds.
Whatever the cause, you have tons of options for reducing the effect and stress of frequent requests, whether they're from an angry ex-board member or just a vexatious owner. Here are several:
* Know your obligations and act proactively. "There's a step to take before boards get to the point the reader is asking about," says Daniel J. Miske, CCAL, a partner at Husch Blackwell in Milwaukee who represents 650 associations at any given time. "I tell my clients: 'Here's a list of documents you're legally required to produce. Put them on our website and update them monthly. Then no matter what owners ask for, your response is, "Please check the website; you'll find on it all the documents we're legally required to provide."'"
* Assess permissible fees. Your state law may allow you to impose a charge on records requests. "In Arizona, we have a statute that allows any owner to request books and records, and basically they can have just about everything except a few categories of information," explains Beth Mulcahy, founder of and senior partner at the Mulcahy Law Firm PC in Phoenix, who has represented more than 1,000 associations in Arizona and is also licensed in California and Wisconsin.
"Under the statute, we can charge owners 15 cents per page for copies," she adds. "But we can't charge for the time it takes to put the records together, which can be a lot of time. Typically management companies do the work, and they have it in their contract that the association has to repay them for the time."
There's no such limit in New Hampshire. "The board has a right to assess a reasonable cost for oversight and things like that for records requests," notes Robert E. Ducharme, founder of Ducharme Law in Stratham, N.H., who specializes in representing community associations. "I had a request where the owner said, 'I want to look at the documents from 9 a.m.-4 p.m. Monday through Thursday.' That requires someone to watch that person that whole time to make sure they're not destroying things, adding things, and so on.
"Charging those fees separates the wheat from the chaff and weeds out people on a fishing expedition," he adds. "I once read a court opinion that essentially said to boards, 'You don't have to grant all these requests; owners aren't allowed to go on fishing expeditions.'"
Our experts are just getting started. Get more ideas for shielding yourself against unreasonable requests—including a really smart one that involves a dancing bear—in our new article: https://www.hoaleader.com/members/4315.cfm
Best regards,
Matt Humphrey
President
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