Being a homeowner at Pointe South Mountain automatically makes you a member of the Association, as per the Declaration of Homeowner’s Benefits and Assurances. As such, you have the right to inspect the records of the Association. This article is to inform you of your rights and to provide some good advice on how best to ensure success when you make your request.
ARS 33-1805:
This Arizona Law is the law governing your right to inspect association records. You can find and read the law in its entirety by typing the law’s number into your computer’s search engine. There is plenty to learn there, so we highly recommend you take a look and become familiar with the law’s contents.
Not ALL records are YOUR records!
There are a few exceptions to what can be reviewed by a member of the association, but they only amount to five (5). If you have a desire to view any information that falls under the exceptions category, you may be denied access. However, according to a 2020 post by Carpenter, Hazlewood, Delgato and Bolen, the association may, in certain instances, redact the protected information and provide you the with remainder of the document’s content that is not protected. The following list, pulled from a post by a leading HOA attorney group in our area, nicely summarizes the exceptions for you.
- Privileged communications between an association attorney and the association.
- Pending litigation
- Meeting minutes from closed, executive sessions
- Personal, health or financial records of a member or employee
- Records related to job performance, compensation of, health records of or specific complaints against an employee
Additionally, under section C of the law, the association is not required to disclose financial and other records of the association if disclosure would violate any state or federal law.
What records ARE MY records?
As one leading attorney group put it, “almost everything.” They provide these as examples: minutes from the Open Board meetings, financial records, bank statements, vendor contracts, bills, invoices, checks, and voting records.
So, how do I get them?
The standard and accepted means of obtaining association records is by presenting your request in writing. This can be by simple mail or can be by email. If you try to make your request only in oral form, such as over the phone or by showing up in person at the management company’s office, you will likely not see success. If you are asked to go an extra step and send your written request in the form of certified mail, you should know that a request such as that is not stipulated within the law and, thus, is not a requirement you must adhere to.
What if I need to delegate my request to someone else?
You must provide, in writing, the information that clarifies the fact that the person is acting on your behalf, that they are your “designee.” Unless you do so, your request is deniable, even though legitimate. From all available resources, it appears the reason for this requirement is to prevent association records from falling into the hands of non-members. Remember, association records are the property only of only those who are members of the association. They are not the property of vendors, contractors, outside attorneys, or anyone else who is not a homeowner, thus a member.
Clarity is the key to success!
The internet is filled with stories of association members across the country being denied their requests. In reading through these internet stories, it seemed there were a few consistent issues that led to these denials:
- The communication was laced with so much “other language” that the recipient was unable to discern the actual request.
- The requestor had such a long history of rambling, ranting communications that, when the one that contained the actual request arrived, it was shoved off to the side as “just another one of those.”
- Emails were erroneously triaged by the recipient’s server into their spam folder.
- The member had requested records so many times and had requested such an exorbitant number of records in the recent past that they were deemed to be overutilizing and abusing their right to receive them. Associations do have the right to refuse based on this type of “abuse.”
- The requester asked for something that was not actually an association record. A couple of examples are provided: a spreadsheet of expenditures that would have to be created from a larger file, not one that was a standard part of financial analyses; a vendor list dealing with only one type of service, which would have to be culled out of the master vendor list. The association has no obligation to create a new record just to provide the member with the specific information they are looking to review.
So, what is a member to do?
- First, know, definitively, that it IS your right to review records. Next, check the community portal on the Management Company web page to see if the records you are interested in are already posted there and can be downloaded for your review. If they are not present, and it seems a reasonable amount of time has passed to have allowed for their posting, then requesting the record(s) is appropriate. You may begin with a request that they be posted, which would help the entire community, but you certainly may request a direct receipt of what you are asking for! And remember, the minutes of any Open meeting of the PSMRA Board are not approved until the following month’s meeting, and thus will not be posted until after that approval has occurred – so there will always be a month’s lag in minutes being posted to the site. This would also apply to the financial records, as they are part of the Open meeting.
- Next, think about the wording you want to include in your request and be sure that it is clear and concise in its request. The more there is in there to lead to confusion or ambiguity, the longer the delay in receiving your requested records.
- Avoid including any blaming, finger pointing, or “reporting” in your request. Keep it simple and on task.
- Be specific. This may seem like the same thing as “clear and concise,” but specific means just that – if you want to see the financial report from April and June of 2023, for example, ask for only those things.
- You do not have to justify your request. No one in the association needs to know you are requesting for any reason! Remember, it is your right to review association records, and if they have not been made available by any other means than by direct request, you are simply executing your rights.
- Avoid adding characters or abbreviations into your “content line” (subject line) when making an email request, as this may trigger them to be triaged into spam. It has come to the attention of this author, as an example, that using “Re:” in the content line (subject line) is a trigger for some servers. So, keep it simple…just type Records Request…let the body of the request be the place where you specify what you are requesting.
Is there a charge for making a request?
NO! Section A of ARS 33-1805 explicitly forbids an association from charging a member for making a request. The language states “The association shall not charge a member or any person designated by the member in writing for making material available for review.” The only way there would be a dollar amount associated with the request is if copies of records were made and provided in their hardcopy form. Then, a maximum charge of $0.15 per page may be imposed. If the records are provided to you electronically or the originals are made available for you to review in person, there is no charge!
How long of a wait to receive is appropriate?
The law states “The association shall have ten business days to fulfill a request for examination.” Note the language is “business days” – not “days.” So when marking your calendar, take that into consideration. Also, realize that they don’t know you made a request at the time you mailed your letter or hit “send” on your computer keyboard, so you need to allow a little bit of a grace period for the information to transfer to its recipient. However, if you have not heard anything from the recipient within a short period from the time you made your request, follow up! Things do happen that are a legitimate obstacle to them receiving communications, so just inquire as to the status of your request. You may be asked to adjust your deadline date and that will be up to you to negotiate, but may be worth it in the long run.
Can it take longer than 10 business days?
If the association/management company/community manager feels they cannot fill your request within the acceptable 10 business-day deadline, they may ask for an extension. This can happen for legitimate reasons, such as the records resting in the hands of a third party, the historical nature of the records necessitating a longer search period, or there is a lot of protected information that needs to be redacted. So, again, this will be up to you to negotiate, but do not allow this to be such a delay tactic that you never receive what you requested. If the records are a legitimate record of the association, and are not one of the “exceptions,” then they fall into the category of records that you have the right to review.
What if the law doesn’t make sense when you read it?
There are some very helpful resources on the internet to help you understand the legal language of many, if not all, of the laws in Arizona that govern Planned Communities. A great place to look is on the Mulcahy Law Firm’s webpage under “Cheat Sheets.” They take many topics of law and render them down to language that is clear to the layperson. There are many other resources out there, just be sure the resources are being specifically applied to Arizona law because there are variations between the states. And, lastly, as this author has been advised, don’t get too deep into your own interpretation of the law. You may be correct, but you won’t necessarily come out on the winning side!
We hope this article has been helpful and that it contains new or clarifying information to make your residency here at The Pointe South Mountain more productive and enjoyable. If there are topics on which you would like more information, please don’t hesitate to contact this Advocacy site to make your interest known.
Image: Mohamed Hassan from Pixabay