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The firm’s latest Miami Herald “Real Estate Counselor” column was authored by Laura Manning-Hudson, the managing shareholder of our West Palm Beach office. The article, which is titled “Rulings on Records Requests Serve as a Lesson for Condo Associations,” focuses on recent rulings that illustrate how disputes over records inspection requests often represent regrettable self-inflicted wounds for condominium associations. It reads:
. . . One of the most telling examples of such a case involved the Boca View Condominium Association, which asked the Florida Supreme Court to take up an appeal of its trial court loss stemming from a 2019 records inspection request. The state’s highest court declined to hear the case, which has also yielded rulings against the association by the state’s Fourth District Court of Appeal and even at the federal level by the U.S. District Court in West Palm Beach.
The latest state appellate court ruling involving a records inspection was issued in early June by the Fourth District Court of Appeal in the case of Gamboa v. Newth Gardens Condominium Association, and it too illustrates the potential pitfalls for associations in the handling of such requests. Florida law stipulates that the official records of condo associations are open to inspection by their members within 10 working days of the receipt of a written request.
The new appellate decision focuses on requests to inspect association records by unit owner Alberto Ruiz de Gamboa from April and June of 2018. For the April request, the president of the association claimed that he wrote, and the association mailed, a letter responding to the owner to schedule an appointment for the requested inspection. The owner claimed he never received the response. In the ensuing trial, the president testified that he “probably gave [the association’s response] to one of [his] staff members to mail.”
However, prior to the owner’s initial filing for arbitration over the matter with the state’s Department of Business and Professional Regulation, the owner sent a follow-up letter informing the board of directors that he had not received a response. The association failed to respond to this second letter, and the ensuing arbitration before the state agency resulted in a decision in the owner’s favor. That decision was subsequently appealed by the association to the Circuit Court for Palm Beach County, which concluded that the letter was likely lost in the mail and the association did not willfully deny access to the records.
In the owner’s appeal to the Fourth DCA, the appellate court concluded that the association failed to present competent and substantial evidence demonstrating that it had actually mailed the letter. It further concluded that the additional lack of response to the owner’s follow-up letter (prior to filing for arbitration) doomed any arguments by the association that it had not acted willfully, leading the appellate court to reverse the lower court’s decision and rule in favor of the owner.
Also at issue in the circuit court was the number of requests sent by the owner. In June of 2018, the owner sent two separate requests to inspect different association records on the 15th and the 27th of the month. The association complied with the first request and provided the owner with the requested records, but it replied to the second request with a letter indicating it would not respond because the request had exceeded the association’s rule limiting an owner to only one such entreaty per month.
The circuit court found that the association’s rule limiting an owner to only one request per month was unenforceable because it was so restrictive that it erodes an owner’s access rights, and “makes no distinction between a request that may take minutes to fulfill and one that may take much longer.” The trial court ruling concluded that the association did not provide any evidence or proof that the requests were overly burdensome or unduly taxed its resources, and found the association’s rule to be unreasonable and unenforceable.
The Fourth DCA affirmed the portion of the lower court’s decision regarding the association’s unenforceable rule without discussion, resulting in the unit owner prevailing entirely over these 2018 records requests. Because Florida law provides for the prevailing party to also be awarded court costs and attorney’s fees in addition to any damages in such matters, the association will now likely be on the hook for the owner’s legal costs as well as its own, both of which presumably being fairly substantial. . .
Laura concludes her article by noting that the takeaways from this recent appellate decision as well as the rulings in the case involving Boca View are clear for Florida condominium associations. She writes that board members and property managers should avoid any potentially unreasonable rules and inadequate responses to records requests from owners. Laura notes that the Florida law granting access to such records is unambiguous, and the state’s courts are likely to find in favor of owners and against associations that fail to provide reasonable access.
Our firm salutes Laura for sharing the takeaways from these recent rulings with the readers of the Miami Herald. Click here to read the complete column in the newspaper’s website.
Our firm’s South Florida community association attorneys write about important matters for associations in this blog and our Miami Herald column, which appears every two weeks on Sundays, and we encourage association directors, members and property managers to click here and subscribe to our newsletter to receive our future articles.