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Appeals Court….Homeowner’s Association Records…MUST BE PROVIDED!

By January 15, 2016No Comments

Ridge Groves Condominium Association appeals a final judgment
adjudicating various claims and counterclaims between itself and Association member
Michael Misserville. Misserville sued the Association, alleging among other things that it
violated section 718.111(12)(c), Florida Statutes (2009), by failing to provide requested
records. Following a nonjury trial, the trial court ruled in Misserville’s favor. We reverse
the court’s holding that the Association failed to comply with the statute.
In March 2010, Misserville submitted a records request form to the
Association asking for an appointment to inspect and copy a roster of current residents
as well as the Association’s insurance policies. Immediately above Misserville’s
signature, the form stated, “Please provide the undersigned with an appointment to
review the records above. I will call you for the appointment time in the next 5 days.”
Misserville signed and submitted the request but never called for the appointment.
Nevertheless, Misserville maintained that the Association violated the statute because it
did not deliver the requested documents to him.
Section grants condominium association members a general right to inspect and copy anyassociation record not expressly excluded by the
statute. See § 718.111(12)(c)(1)-(4). An association’s failure to provide records within
ten working days of a written request creates a rebuttable presumption that the
association willfully failed to comply with section 718.111(12)(c). Under the statute, a
member who is “denied access” to association records may recover damages for the
association’s willful failure to comply. § 718.111(12)(c). Further, a “failure to permit
inspection” entitles the person prevailing in an enforcement action to recover attorney’s
fees “from the person in control of the records who, directly or indirectly, knowingly
denied access to the records.” Id.
However, a member’s right to inspect and copy is not limitless. An
association may “adopt reasonable rules regarding the frequency, time, location, notice,
and manner of record inspections and copying.” Id. In this case the Association had
promulgated a written form for requesting access to records for inspection and copying,
which provided that the member would call for an appointment. Indeed, testimony at
trial reflected that the Association office was not staffed during all business hours.
Misserville contends, and the trial court agreed, that (1) there was no
evidence that the Association had adopted the appointment requirement as a rule and
(2) the Association was legally obligated to deliver the records. The first proposition is
undermined by the existence of the form itself, which Misserville acknowledged was
required of Association members seeking to inspect records. He has never contended
or proved that the form was improperly adopted or that it was unreasonable. Be that as
it may, the second assertion is simply wrong. The statute does not provide that an
association must deliver records to a member; rather, it must simply furnish the member
a reasonable opportunity to inspect and copy records upon request.
But even if the form had not been properly adopted, and even if the statute
could be read to mandate delivery of records to a member upon request, the fact is that
Misserville employed the form. He thereby asked to “inspect and copy” the mentioned
records and advised that he would call for an appointment to do so within five days. He
did not ask the Association to deliver the records to him. The undisputed evidence
reflected that upon receiving Misserville’s request, the Association copied the records
and set them aside in the Association office in anticipation of his call. The trial court’s
conclusion that the Association failed to comply with Misserville’s records request was
unsupported by evidence or law.

We reverse that portion of the final judgment wherein the trial court ruled
that the Association violated section 718.111(12)(c). We affirm the judgment in all other
respects.

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