At some point, every community association—whether it be an HOA, condominium, or co-op—has encountered a records inspection request and understands how time consuming they may be depending upon the scope of the request. A new case issued by the Fifth District Court of Appeal (or the “5th DCA”) solidifies the importance of an owner’s right to access association records and confirms that the duty to maintain and provide access to records is mandatory and cannot be circumvented through “substantial” or “sufficient” compliance. Rather, deadlines for official records requests are inflexible and mere substantial compliance with an inspection request can subject an association to penalties under the HOA Act. See Pecchia v. Wayside Estate Home Owners Association, Inc., 49 Fla. L.W. D1242a (Fla. 5th DCA June 7, 2024).

In Wayside, members of an HOA requested official records pursuant to Section 720.303(5), Florida Statutes, including the association’s insurance policies for prior years and financial records reflecting maintenance expenditures and upkeep of the association’s property. The association, however, failed to provide access to the requested documents within the required 10 business day time frame. Several weeks after the deadline passed, the association provided the owners with some, but not all, of the requested records. Because the records provided were incomplete and failed to include items the association was required to maintain as part of its records, including financial statements and insurance policies, the owners sought an injunction against the association demanding that the missing records be produced. The trial court found that, although the requested documents had not been provided by the statutory deadline, the association was not in violation of the HOA Act because a “sufficient” amount of documents were provided to the owners.

Disagreeing with the trial court, the 5th DCA overruled the trial court’s decision and found that, pursuant to the HOA Act, the association had a mandatory obligation to not only maintain all the records listed in Section 720.303, but also to make such records available to owners upon request.  Simply put, “sufficient” or “substantial” compliance with the obligation to maintain and provide access to official records is not enough to meet the statutory requirement. Specifically, the 5th DCA noted that the plain language of HOA Act, which specifically states that associations “shall maintain” certain documents as official records and are required to provide access to documents within ten (10) days of receipt of a written request from an owner. Relying on previous Florida case law, the Court noted that that the word “shall” has consistently been given a “mandatory” connotation rather than a “permissive” one under Florida law. Thus, the fact that the association “substantially complied” with the request or that they produced a “sufficient” amount of documents was irrelevant. What mattered was that there was an obligation for the association to maintain and produce the records in a timely fashion, but they failed to do so.

Although this case primarily deals with provisions of the HOA Act, this decision is informative for similar provisions in the Condominium Act and Cooperative Act concerning official records requests.  All community associations should be familiar with the specific records inspection requirements imposed upon their community and establish procedures for maintaining official records, receiving records inspection requests, and ensuring timely and complete access to records is provided.

At Haber Law, we have experience dealing with record requests for community associations organizes as HOAs, condominium, and co-ops under Florida Statutes Chapters 720, 718, and 719, respectively. If you have further questions about the Wayside case or other concerns regarding maintaining and providing access to official records, please feel free to reach out to our office.