Does an ROC have to allow a former member to inspect and copy the information about that member in the ROC’s files?

One of the resident-owned mobile home cooperatives I work with received a written request several days after the sale of a unit from the former residents that sold the unit.  Those former residents, who were members of the cooperative, wanted to inspect the file that contained their personal information.   The ROC’s manager told me that the former residents were concerned that their social security numbers were in that file.   

Florida Statutes Section 719.104(2)(c) provides that the "official records" of a cooperative association "shall be open to inspection by any association member or the authorized representative of such member at all reasonable times".   A condominium association has the same obligation to allow its "official records" to be inspected (again, by any association member or that member’s authorized representative) under Florida Statutes Section 718.111(12)(c), and a similar provision exists for mandatory homeowners associations in subdivision communities per Florida Statutes Section 720.303(5).

It appears to me that these statutes give the right to inspect only to an association member or that member’s authorized representative.   The governing documents of most, if not all, ROC’s clearly provide that unit or lot ownership is a requirement of membership and many of these documents further provide that membership terminates upon the sale of the lot or the unit.   In other words, a resident ceases to be a "member" of the association when he or she closes on the sale of his lot or unit.  From that point forward, he or she is no longer a "member" (unless, of course, he or she owns another lot or unit in the community) and no longer can require the association to allow either that member or his or her "authorized representative" to inspect the association’s "official records".  This is consistent with the definition of "unit owner" in both the cooperative and condominium statutes and "parcel owner" in the homeowners’ association statute.  An ROC manager or board of directors would certainly have no problem refusing a record inspection request from a prospective purchaser who had not yet become an association member and the request from a former member should be refused for the same reason:  simply because the person requesting the inspection is not a member of the association.

While there do not appear to be any decisions from the arbitrators appointed by the Florida Department of Business and Professional Regulation that deal with whether a former member’s request to inspect records can be denied, an arbitrator’s decision in 2005 held that  "The Concerned Unit Owners of the Deauville Hotel Condominium Association" was not a "unit owner" and the association’s receipt of a written request from that group did not create an obligation on the part of the condominium association to allow a records inspection by that group (Ibarra v. The Deauville Hotel Condo Assn., Inc., Arb. Case No. 2005-03-6532).  A similar decision was reached by the arbitrator in a 2007 case where a condominium association received a records inspection request from the "Plaza Resort and Spa Ad Hoc Committee" (Frank Hock, et. al v. Plaza Resort and Spa Condominium Association, Inc., Arb. Case No. 2006-06-8783). 

I would anticipate that the DBPR’s arbitrators will continue to strictly define "member," "lot owner," and "unit owner" in the future and that only current (as opposed to past or future) association members will be the "members" entitled to inspect and copy the association’s "official records".

I’ve been working with Resident Owned Communities (ROC’s) in Florida for almost two decades and problems with pets continue to be a source of aggravation for managers, board members, and residents alike. Pet rules come in all shapes and sizes. Here’s a small sample of pet regulations that boards and managers are trying to enforce in their communities:

  1. No pets allowed and no exceptions.
  2. Pets allowed only in certain sections (aka "the Pet Section") of the community.
  3. Indoor cats allowed (birds and aquarium type fish also) but no dogs.
  4. Pets allowed but only up to a certain weight limit  (my personal "favorite"–ever tried putting an energetic terrier on a scale–and exactly who serves as the "weight police"?)
  5. Pet allowed except for certain breeds of dogs deemed "dangerous" by the board of directors, the community’s insurance company, and/or the resident "canine expert".

Whatever rules a community is trying to enforce (and the five I’ve listed above are just the tip of the iceberg), sooner or later, every community is faced with one or more residents that insist on attempting to violate that community’s pet rules. Once the violation is brought to the attention of the board or the manager, you can be certain that many community residents will be "taking sides" on how (and whether) the community’s leadership deals with the violation.  

There are several very important factors that should be considered when board members and managers determine how to deal with the violation of a pet rule, including the following:

  1. Has the resident provided sufficient documentation or otherwise established that he or she is "disabled" and requires the pet as a "reasonable accomodation" under the the federal and state provisions of the Fair Housing Laws and the Americans with Disabilities Act? Is the pet certified as a "service animal"? In these situations, community leadership is required to allow the resident to have the pet and should not provide any information to anyone as to the nature of the resident’s disability. Board members and managers should simply state that the resident’s request to have a pet was allowed "on the advice of counsel". In other words, blame it on the attorney (I assure the communities I work with that I have thick skin and it goes with the territory).
     
  2. Are there any other violations of the pet rules in the community that any member of the board knows about?  If so, the board should be prepared to take action against every person that is violating pet rules. One of my favorite conversations occurs when a resident that has received a notice of a pet rule violation calls me to complain that he or she is being harassed and "singled out" by the manager or the board because other residents in the community are violating the pet rules and the board hasn’t taken any action against those residents. This allows me to assure the  resident that the manager or board will take action against any other resident violating the pet rules and to ask that resident to provide me with the names of the other residents violating the rules. I can have this conversation only if I’m confident that the board has taken and will continue to take the appropriate action against other residents violating the pet rules.
     
  3. Is the board and the community prepared to incur the costs of enforcing the pet rules? When verbal and written requests fail to persuade the resident to remove the pet. the board has to decide whether the importance of enforcing the rule outweighs the money that the community will have to spend to have its attorney take the steps needed to attempt to force the resident to comply with the pet rule. If the resident is a unit owner in a cooperative or condomium, the community will have to submit the dispute to mandatory non-binding arbitration as required by Florida Statute Section 718.1255 (for condominium associations) or Florida Statute Section 719.106 ( for cooperative associations). In addition, because the arbitration proceedings are "non-binding," even if the association wins at the arbitration, the resident can delay removing the pet by filing a court action. This may result in the association having to try its case twice with a substantial increase in its legal costs that may or may not be recoverable from the resident violating the pet rule. Even where the resident is a non-member mobile homeowner subject to an eviction action under Florida Statute Section 723.061 (without the need to first submit the dispute to non-binding arbitration), costs and legal fees will be incurred by the association. In addition, anytime a dispute comes before an arbitrator or a judge there is no way to guarantee that the case will be decided in the community’s favor and there are not many people that enjoy the stress and preparation involved in testifying under oath in a courtroom setting or at an arbitration.

I’ve always suggested that another factor to be considered by boards and managers when dealing with violations of pet rules is the behavior of the pet.   Would you rather be living next to a well-behaved Great Dane that has never disturbed anyone in the community or a yapping lap dog that barks at all hours of the day and night?

In some cases, the board may decide that a particular pet rule needs to be revised or removed entirely.  For example, perhaps there are now so many cats that have been allowed to live in the community in spite of a "no cat" rule that it makes no sense to keep that rule in the community’s governing regulations.  However, the time to make that decision is not when the community is in the midst of a dispute with a stubborn owner who insists that the pet rules apply to everyone but him.  It’s on these occasions that the board has to take a reasonable but at the same time forceful approach to the enforcement of its community rules.

Another hurricane season has arrived in Florida and with every approaching tropical storm system I expect to receive at least one call from an ROC manager or board member asking whether the residents can use the community clubhouse as a storm shelter.  My answer is consistent although not always popular:   Unless the community clubhouse has been certified as a "hurricane evacuation shelter" (which means it meets the safety standards established by the American Red Cross), managers and board members should do everything in their power to discourage the use of the clubhouse or any other community building as a storm shelter.

When a condominium, neighborhood, subdivision, or manufactured housing community is placed under a mandatory evacuation order by Florida’s Governor or county or local authorities, "mandatory" doesn’t mean "I’ll leave if and when it’s convenient" or "I’m not leaving without my dog/cat/bird"–it means that the refusal of that resident to leave the community in spite of being ordered to do so is a crime–a second degree misdemeanor under Florida law.  I’m certainly not going to advise any client community to help a resident commit a crime and technically that’s what managers or board members are doing when they give residents a reason to remain in the community once that order is issued by allowing the clubhouse to be used as a gathering place during a storm.

Here’s a partial list of what can go wrong when residents are allowed to use a clubhouse that has not been certified as a hurricane evacuation shelter:

  1. The hurricane roars through, the clubhouse doesn’t withstand the force of the winds and/or the storm surge, and residents that were using the clubhouse for shelter are injured or killed
  2. The clubhouse manages to withstand the storm but one of the residents in the clubhouse suffers a stroke or heart attack and dies because the clubhouse had neither the trained personnel nor equipment present to treat that resident and the county’s paramedics were busy dealing with numerous other emergencies or were unable to safely enter the community.
  3. The hurricane roars through, the clubhouse survives, and everyone is fine until a resident walks outside, and steps on a downed power line in the community and suffers severe injury or death.

The community association’s liability in each of these situations may be substantial and it’s entirely possible that the association’s insurance company will–with good reason–say that its coverage does not protect the association from claims filed because of an injury or death that occurred because the association allowed the clubhouse to be used for a unauthorized and unlawful purpose.

I’ve even suggested that associations padlock the clubhouse when a mandatory evacuation order issues or at the very least post signs in bold letters at every entrance way to the clubhouse and any other community buildings to warn every resident that the building is not a hurricane shelter and that any resident that uses the building for that purpose does so at his or her own risk.

There’s no reason in this day and age for anyone living in Florida  to be unprepared for an approaching tropical storm system.  Media outlets such as The Weather Channel have almost constant updates when tropical weather threatens our area and the National Hurricane Center provides timely and accurate information that allows all residents to follow and prepare for hurricanes and tropical storms.    Almost every local newspaper and television station publishes an annual hurricane special insert that contains suggested preparedness lists, tracking maps, and locations of certified hurricane evacuation shelters.  Florida’s laws also provide shelters for residents with pets, and seek to identify residents with "special needs" who may require assistance in evacuating to the appropriate shelter.  In short, no resident in a community without a certified hurricane evacuation shelter remain in that community when a mandatory order issues to evacuate that community and no community association should encourage its residents to use the community clubhouse or other community owned building to "ride out the storm."