A reader asks: ”
“Can a Board charge a homeowner ($10/page) for records inspection without any inspection policy in the governing documents? Our By-laws only state that the HOA shall adopt rules to enforce records inspection, which has never been done.”
“Civil Code 1365.2.5 (b)(1) The association shall make available association records and enhanced association records for the time periods and within the timeframes provided in subdivisions (i) and (j) for inspection and copying by a member of the association, or the member’s designated representative. The association may bill the requesting member for the direct and actual cost of copying requested documents. The association shall inform the member of the amount of the copying costs before copying the requested documents.
Comment: The costs are limited to “direct and actual”, which is left to some interpretation (direct?). And collection of the charges is left up in the air. The association is to tell the owner the costs before the copies are made, and can bill the owner, but if the association attempts to withhold the records until payment is received, and misses a deadline for providing the records, it is subject to the $500 penalty if sued. It is a catch-22 situation. If the Association governing documents allow for collection of a reimbursement assessment, this is one possible way to collect if an owner does not pay.”
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When I say that the limitation of “direct and actual” is left to interpretation I mean that people interpret it differently. One common interpretation is that whatever the management company charges is an actual cost to the association so therefore its legit. However, there is a case in California that deals with records inspection issues and although it is not definitive on what can be charged, I believe it suggests that charging high costs for records retrieval for records that should be readily available, such as minutes from meetings of the past several years, would be frowned upon. The case is MORAN v. OSO VALLEY GREENBELT ASSOCIATION, 117 Cal.App.4th 1029, 12 Cal.Rptr.3d 435.
What is reasonable is always arguable. $10 a page seems like a lot for document retrieval; however, if certain factors are present, it might be very reasonable. Some of the factors I would say might justify higher costs:
1. The document sought is from old records and not one that would normally be kept in the current records, or is one that requires pulling together information or pages from various files so there is reasonable retrieval time involved.
2. The owner who wants to see the records is untrustworthy or suspect or the board has simply adopted a prudent practice of carefully protecting the association records and the owner wants to go through lots of original records, and won’t settle for copies. So, the HOA or Condo Association feels it is necessary/prudent to have a someone (I fondly call that person a “babysitter”) present so records to not get left out of order or removed.
Whether or not an association has memorialized or adopted a formal policy, it is subject to the law and limitation stated above and found in Civil Code Section 1665.2.5, and/or is entitled to act within the limit of the statute, which ever way you want to look at it.
