BackerReport |
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BackerReport is a periodical addressing topics of interest to community associations in South Florida and is provided as a service to the clients and friends of Backer Law Firm, P.A. All articles are written by attorneys of Backer Law Firm, P.A. (unless otherwise indicated) and are protected by copyright. It is important to note that court decisions discussed in this newsletter are sometimes subject to change as the parties pursue further appeals or other remedies. The articles that discuss court cases in this newsletter are based upon the courts' decisions that are released when the newsletter was written.
In the current economic climate, many
community associations are struggling with
delinquent accounts. Clients of Backer Law
Firm have been successful in minimizing the
effect of the delinquencies by implementing
aggressive, consistent collection policies.
Even with such prudent policies in place,
those property owners who pay timely and who
may often be asked to bear the burden of the
non-paying owners sometimes want to verify
that their community is doing all it can to
pursue collection of delinquent accounts.
Such owners may sometimes choose to exercise
their right to inspect their association's
financial records to find out just who among
their neighbors are not paying timely.
Questions may arise about whether an
association may legally provide that
information or whether the delinquent owners
have a right to keep their delinquency private.
For condominiums, Section 718.111(12)(a)11
requires that accounting records be kept for
each association and those records are a part
of the Association's Official Records.
Specifically, subparagraph b. of the
referenced statute provides that the records
must include "A current account and a
monthly, bimonthly, or quarterly statement of
the account for each unit designating the
name of the unit owner, the date due and the
amount of each assessment, the amount paid
upon the account and the balance due
(emphasis added)." For homeowners
associations, Section 720.303(4)(j)2 contains
similar language.
Property owners have no right to insist that
the accounting records of the Association
which contain entries to their accounts and
which may reflect delinquencies be kept
secret or otherwise be omitted from the
Association's official records when a request
for inspection is made by another owner or
someone on the owner's behalf. If an owner
requests to see and copy this particular
official record, the Association must provide
access to the record and the record may be
copied. The Association may not alter the
record by removing the owners' names, whether
they are delinquent or not.
Because there are other laws which protect
consumers from improper dissemination of such
information, I recommend that the Association
keep track of requests for these type of
records so that it may be confirmed that the
Association gave the information only to
those legally entitled to have it. If the
information is later disseminated by a person
who received it properly, the Association
will be in a better position to demonstrate
that it provided the information only to
those who the Condominium Act requires have
access.
There are privacy provisions in the both
Condominium Act and the statutes governing
homeowners associations, but they apply only
to specific categories of information. The
following information about unit owners is
not to be made accessible to other owners:
1. Information obtained by an association in
connection with the approval of the lease,
sale or other transfer of a unit.
2. Medical records of unit owners. (other
community residents' medical records in an HOA)
3. In a condo, Social security numbers,
driver's license numbers, credit card
numbers, and other personal identifying
information of any person. (this category is
not currently in the homeowners association
laws).
If the Association's accounting records
contain the information required by Section
718.111(12)(a)11 b or Section 720.303(4)(j)2
and also include some of the information
which is required to be kept private, the
Association should remove the private
information from the accounting record before
producing it for inspection and copying to
the requesting owner. It is far more prudent
to keep the information which must not be
made accessible in a place where potential
accidental dissemination is minimized. Since
the law specifically requires the Association
to keep the owners' names in the accounting
records and since other sections require
owner rosters and other materials containing
owner names, it is not likely that the
legislature intended condominium unit owners'
names to included among the "personal
identifying information of any person" which
is not to be made accessible to other condo
unit owners.
Since there may be legal consequences for
failing to comply with an owners' document
request and they may also be legal
consequences for revealing private
information, your association's legal counsel
should be consulted when there is any doubt.
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