A Florida homeowners association was found liable in a records requests lawsuit that emphasizes the need for timely response and proper recordkeeping among community associations.

The Fifth District Court of Appeal in Florida emphasized that an association’s failure to promptly and fully respond to a homeowner's request can result in fines and other liabilities against the association and in favor of the homeowner. This was illustrated in the case, Pecchia v. Wayside Estates Home Owners Association, Inc., No. 5D23-0963 (June 7, 2024).

The statutory right to inspect official records is an important tool available to homeowners. A frequent source of disputes among homeowners associations, condominium associations, cooperative associations, and their constituent members, is the timeliness and adequacy of responses to requests for record inspections.

Failure to fully abide by these requests can lead to serious repercussions for associations.

Breaking Down the Appellate Court Opinion

In the small Wayside community in Seminole County, homeowners Pecchia and Porter were dissatisfied with HOA activities. As a result, they made official written requests for association records which they felt might help support them in their disputes with the association.

As is common, the association responded past the statutory deadline (ten working/business days) and without producing all the required records for inspection. Only some records were given. Due to this failure, the homeowners filed suit for injunctive relief and other damages, alleging that they were entitled to numerous records which had been withheld (including financial statements, bank statements, and insurance policies), that the association should be compelled to produce the records, and for an award of statutory damages and attorneys’ fees.

Following a bench trial, the trial court denied the request for an injunction, finding that the association “provided sufficient documents in response to the plaintiffs’ request.” The trial court not only found that certain types of records, such as cancelled checks and bank statements did not need to be provided under the statute, but also that the ten-day statutory time limit would be excused because “sufficient” documents were ultimately provided.

The Fifth District Court of Appeal reversed this ruling. The appellate court found that the plain language of the operative statute requires that associations maintain their official records and provide those records to homeowners within ten business days of receipt of a records request.

Pursuant to the statute, the failure of an association to provide access within ten business days creates a rebuttable presumption of a willful failure to comply and entitles the homeowner to their actual damages or statutory damages of $50 per day for up to ten days. The appellate court concluded that the use of the statutory term “shall” in the operative statute “signifies that there is no statutory flexibility” with respect to its record maintenance and inspection obligations.

Click here to read the full opinion

Records Requests Best Practices for Associations

The Florida appellate court opinion illustrates several important lessons and practice pointers for community associations and their board members:

• Association boards and their members should review the pertinent official records which they are required to maintain and make available for inspection and ensure that the required records are properly maintained [see F.S. Sections 719.104(2) (cooperatives); 718.111(12) (condominiums); 720.303(4) (homeowner associations)]
• Associations should move quickly to respond to official record inspection requests so that the ten business/working day deadline does not lapse;
• Legal counsel may need to be engaged to review specific requests and ensure that records which are not official records — such as attorney-client privileged information, private medical information, personnel records, etc. — are not inadvertently produced;
• Counsel can also assist with crafting an association policy imposing reasonable rules regarding frequency, time, location, notice, and manner of record inspections and copying of records, to avoid undue disruption to the operations of the community and to deter overreaching requests; and
• In the failure to timely provide records, the requesting party may file a complaint with the Florida Department of Business and Professional Regulation. Associations should consider engaging with counsel to review and respond to any such complaint.

Under newly passed legislation, board members of homeowners and condominium associations and management can be held criminally liable for a knowing, willful, and repeated failure to make records available. See F.S. Sections 718.111(12)(c)(2) and 720.303(5)(d).

Although it may be tempting to delay or disregard an owner’s official records request, a board does so at its peril. Instead, all inspection requests should be responded to in a timely and thorough manner to ensure that no statutory violation occurs.