Dealing with Tricky Issue of Association Records
Occasionally, a homeowner will ask to review association records. This can be a tricky issue if you don’t know exactly how to handle this request and what you can and can’t show to a member. A recent court case highlighted the specific issue of associations withholding records based on “protected” status.
In that case, a condominium member asserted that a resolution in the governing documents, which classified certain association records as “primary and/or protected records” that couldn’t be inspected by members, was invalid. The member asked a trial court to order the association to produce 10 types of records that she had asked the association to provide, but that it refused to.
A Pennsylvania trial court invalidated the resolution. It ordered the association to permit the member to inspect and view the documents.
The trial court determined that, pursuant to the Pennsylvania Non-Profit Corporation Law, which permits a member to apply to the court to compel inspection if the member has not been permitted to inspect a document or if an association has not replied within five days of the member’s request under certain circumstances, members of the condominium association should have access to requested records.
The association argued that it didn’t have to share so-called “protected” records. But the trial court noted that denying access to records either based on the type of record—that is, those defined as “protected records”—or by finding that considerations of privacy, confidentiality, or privilege outweigh the purpose for the record request is prohibited by the Pennsylvania Condominium Act.
The act states that “all financial and other records shall be made reasonably available for examination by any unit owner and his authorized agents.” Pursuant to the bylaws, the association is governed by the Non-Profit Corporation Law, said the trial court. The act expressly provides that members have access to examine “all financial and other records.” Although this association’s bylaws enumerate specific documents that members are permitted to examine, they don’t preclude any documents from examination. The resolution permits the prohibition of member review of documents. This is beyond the authority of the board without an amendment to the bylaws confirmed by the required vote of the unit owners, the trial court stated. Therefore, apart from the procedure to request document review and the permission to view and copy documents defined as primary records, the resolution is invalid.
The trial court noted that the procedure set forth in the resolution requires members to state the purpose of their record request. “Such a requirement is consistent with the procedure in the non-profit corporation law. So the board has the authority to request such information from its members, but the board is not permitted to deny a record request based on the member’s stated purpose,” the trial court determined.
Additionally, while the court ordered that the association had to allow the member to inspect and view the records, it was not required to allow the member to copy them [Rosianski v. Four Seasons at Farmington Condo. Ass’n, December 2017].