WHY DOES THE FLORIDA LEGISLATURE PASS LAWS IF THE DIVISION OF CONDOMINIUMS IGNORES THESE LAWS?

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc.

Published November 23, 2010

    

Considering the multitude of complaints from condo owners about associations plainly ignoring record requests as regulated by 718.111(12), the Florida legislature passed in 2008 CONDO BILL H 995, adding a very important enforcement provision to the Florida Condo Act.

 

The bill, sponsored by House Representative Julio Robaina, was one of the greatest achievements for condo owners in the past decade.

 

The intent of the provision contained in the bill was supposed to achieve fast enforcement of the rules regarding record requests. Often time is of the essence, especially in cases where owners suspect financial wrongdoing by board and/or management. Many complaints led to this provision of the bill being enacted.

 

FS 718.501(1)(d) 7.  If a unit owner presents the division with proof that the unit owner has requested access to official records in writing by certified mail, and that after 10 days the unit owner again made the same request for access to official records in writing by certified mail, and that more than 10 days has elapsed since the second request and the association has still failed or refused to provide access to official records as required by this chapter, the division shall issue a subpoena requiring production of the requested records where the records are kept pursuant to s. 718.112.

 

The legislative intent was easy to understand -- and was supposed to stop the often prolonged and costly litigation boards started by refusing to produce the requested records.

 

Owners are required to send a detailed RECORD REQUEST by certified mail to the association -- for a second time if the first request triggered no response. The law is written very clearly, there is no doubt about the exact meaning of the wording. 

 

This would have been a great achievement -- and would have seriously helped to protect the finances of the owners -- if the employees of the Division of Florida Condominiums, Timeshares, and Mobile Homes would do what they are being paid to do: Enforce Florida laws as written in the statutes.

  

But for many years we all know that the Division seems to be under the impression that the staff is getting paid to protect the violators and the bad guys. Millions of dollars of owners' money have been wasted because the Division didn't take timely action -- or invented interpretations to circumvent Florida's laws -- to the detriment of the condo owners!  

  

Instead of following the wording of the statutes, they invented all kinds of excuses not to issue a subpoena, as required by Florida statutes.

  

From offer of mediation, discussing the issue with the board or "We'll get the records for you" -- owners, who followed the law step by step, have heard all the excuses, but nothing came even close to the requirements of the Florida statutes.

 

Employees of the Bureau of Compliance, directly being asked to follow the law, have even offered to send violation letters to the boards that refused to follow the law. Anything but a subpoena!

In many cases time is of the essence, because owners are looking for the records in order to be able to prove embezzlement or waste of money.  In short: To stop the bleeding! The DBPR employees clearly don't care about the financial damage they are causing by their failure to act.

When will our elected officials send VIOLATION LETTERS to the DBPR folks saying, "You are fired for not doing your job!"?  Gee, we didn't elect Donald Trump, but we elected Rick Scott, the candidate who promised to get rid of more than 6,000 government workers. Here is a great place to start, Mr. Governor!

Since we hear so much about creating less regulation, maybe our elected officials should eliminate the Division of Florida Condominiums, Timeshares, and Mobile Homes. Condo owners are better off with no governing agency rather than with an agency defending the bad guys!

 

Nothing is worse than a government agency that ignores the state statutes it is paid to uphold! And the Division of Florida Condominiums, Timeshares, and Mobile Homes is a poster child for a non-functioning government agency that does more harm than good!


FS 718.111(12)  OFFICIAL RECORDS.--

(a)  From the inception of the association, the association shall maintain each of the following items, if applicable, which shall constitute the official records of the association:

1.  A copy of the plans, permits, warranties, and other items provided by the developer pursuant to s. 718.301(4).

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

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

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

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

6.  A book or books which contain the minutes of all meetings of the association, of the board of administration, and of 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 the numbers designated by unit owners for receiving notice sent by electronic transmission of those unit owners consenting to receive notice by electronic transmission. The electronic mailing addresses and telephone numbers must be removed from association records if consent to receive notice by electronic transmission is revoked. However, the association is not liable for an erroneous disclosure of the electronic mail address or the 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 which the association operates. All accounting records shall be maintained for at least a period of not less than 7 years. Any person who knowingly or intentionally defaces or destroys accounting records required to be created and maintained by this chapter during the period for which such records are required to be maintained, or who knowingly or intentionally fails to create or maintain such accounting records required to be maintained by this chapter, 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 s. 718.501(1)(d). The accounting records must shall 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 upon 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 be 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, notwithstanding paragraph (b).

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. 718.504.

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 provided in s. 718.301(4)(p).

(b)  The official records of the association must be maintained 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 within 5 working days after receipt of written request by the board or its designee. However, such distance requirement does not apply to an association governing a timeshare condominium. This paragraph may be complied with by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request. The association is not responsible for the use or misuse of the information provided to an association member or his or her authorized representative pursuant to the compliance requirements of this chapter unless the association has an affirmative duty not to disclose such information pursuant to this chapter.

(c)  The official records of the association are open to inspection by any association member or the authorized representative of such member at all reasonable times. The right to inspect the records includes the right to make or obtain copies, at the reasonable expense, if any, of the member. The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. The failure of an association to provide the records within 10 working days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply with this paragraph. A unit owner who is denied access to official records is entitled to the actual damages or minimum damages for the association's willful failure to comply. The minimum damages shall be $50 per calendar day up to 10 days, the calculation to begin on the 11th working day after receipt of the written request. The failure to permit inspection of the association records as provided herein entitles any person prevailing in an enforcement action to recover reasonable attorney's fees from the person in control of the records who, directly or indirectly, knowingly denied access to the records. Any person who knowingly or intentionally defaces or destroys accounting records that are required by this chapter 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 s. 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 provided for in s. 718.504 and year-end financial information required in this section on the condominium property to ensure their availability to unit owners and prospective purchasers, and may charge its actual costs for preparing and furnishing these documents to those requesting the documents. Notwithstanding the provisions of this paragraph, the following records are not accessible to unit owners:

1.  Any record protected by the lawyer-client privilege as described in s. 90.502; and any record protected by the work-product privilege, including any record prepared by an association attorney or prepared at the attorney's express direction; which reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the association, and which was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or which was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings until the conclusion of the litigation or adversarial administrative proceedings.

 

2.  Information obtained by an association in connection with the approval of the lease, sale, or other 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, driverís 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 associationís notice requirements, and other personal identifying information of any person, excluding the personís 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 owns a copy of the same software used by the association. The data is part of the official records of the association.

  

(d)  The association shall prepare a question and answer sheet as described in s. 718.504, and shall update it annually.

(e)1.  The association or its authorized agent is not required to provide a prospective purchaser or lienholder with information about the condominium or the association other than information or documents required by this chapter to be made available or disclosed. The association or its authorized agent may charge a reasonable fee to the prospective purchaser, lienholder, or the current unit owner for providing good faith responses to requests for information by or on behalf of a prospective purchaser or lienholder, other than that required by law, if the fee does not exceed $150 plus the reasonable cost of photocopying and any attorney's fees incurred by the association in connection with the response.

2.  An association and its authorized agent are not liable for providing such information in good faith pursuant to a written request if the person providing the information includes a written statement in substantially the following form: "The responses herein are made in good faith and to the best of my ability as to their accuracy."



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