Q&A: Boards, management companies cannot obstruct requests for association records
QUESTION: Everything at our homeowner association has become too complicated for me to deal with! I recently asked our HOA board for copies of board meeting minutes for the last 12 months. I asked in person and also made a request via email to the management company.
In response, management sent me a “Documents Request Form” to complete. The form requires the date, address, unit number, name, name of LLC or trust and driver’s license or California ID number of the requester, with copies attached. It also requires a description of the documents requested and a stated reason and purpose for requesting the documents. Finally, titleholders must sign a declaration that the documents received by the homeowner “will not be copied or distributed for improper use, nor sold to third parties for personal benefit.”
None of our governing documents require that we provide a copy of our driver’s license. In November 2015, the board wrote and adopted a new set of rules and regulations requiring the use of this form. Is this legal?
ANSWER: First, know that Civil Code section 5205 gives owners the right to inspect association records upon request.
If an association does not have a business office within the development, the association can make the specified records available for inspection and copying at a place agreed to by the association member.
As for getting copies of documents, titleholders must make a written request but there are only so many hoops that a board can require a homeowner to jump through for records.
If the form was created by the management company without an accompanying board vote, then the form is itself not valid. Failure to use a management company’s form cannot be a basis to deny a legal request from a homeowner for association records.
Homeowners would only be required to use such a form if the board took a legal vote on the matter. That would require the board to give notice of a meeting, hold a vote and record the results and the new rule in the minutes.
The board also needs to authorize a person to receive such documents on behalf of the association. That person should be named in the association’s annual policy statement. If no person has been designated to receive documents, the document should be delivered to the president or secretary of the association.
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Still, merely adopting a rule does not automatically validate the form itself.
The form includes the troublesome phrase that it “will not be copied or distributed for improper use, nor sold to third parties for personal benefit.” It fails to define the terms “improper use” and “third parties” let alone provide a legal definition of “personal benefit,” thus making the declaration invalid. No law requires the owner to sign a declaration in order to view or obtain association documents.
It also appears that much of the information requested on the form is superfluous to the owner’s request to obtain documents. Because any current titleholder has a right to inspect the association’s records, the association need only confirm the identity of an owner making a request. Demanding more of a homeowner can be seen as an unreasonable barrier to exercising a fundamental right of association membership – namely access to information regarding association governance.
While certain documents may be withheld or redacted according to Civil Code section 5215, there is nothing in the law that requires the production of a copy of your driver’s license or an attestation requiring a stated declaration for use of the documents.
Providing superfluous information also creates a danger of identity theft.
Once an owner volunteers personal information, it becomes the property of the homeowner association. Typically, that information is retained by boards and management companies with no assurances it won’t be sold, shared or accessed by third parties. Thieves covet drivers’ license and bank account numbers.
The risk of identity theft also creates a liability for the board, since associations are responsible for custody and control of all the data they collect. The board should seriously consider eliminating this form because of this potential risk.
For further guidance to both boards and titleholders, Civil Code section 4035 spells out how certain specific requests must be made, including:
>To change the owner’s information in the association membership list, opt out of the membership list or to cancel a prior request to opt out of the membership list.
>To add or remove a second address for delivery of individual notices to the owner.
>For individual delivery of general notices or to cancel a prior request for individual delivery of general notices.
>To receive a full copy of an annual budget report or annual policy statement.
>To receive all reports in full, or to cancel a prior request to receive all reports in full.
As a general rule, all communications with the association should be in writing and sent using a recognized method of tracking with signature receipt. Using a tracking method requiring a signature receipt is also a good idea when sending association payments. Hang on to those tracking and signature receipts; you may need them later.
Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 ornoexit@mindspring.com
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