Can You Disclose Who In Your Community Is Delinquent In Payment Of Their Assessments?
Colorado
Homeowners Association Law Blog article 09 | 27 | 2013 Posted By Mark K. Payne
I’ve recently been following a blog that has been discussing
how the paying members of a homeowners association can find out who is
delinquent in paying their assessments. We’ve been asked many times over the
years whether it is lawful, or wise, to publish the names of owners who are not
current in the payment of their assessments. It is interesting, at least to me,
the scope of opinions about this topic.
I take the position that any member in the association who
is not paying his or her assessments is being subsidized by those who do pay. I
believed that the member who is paying is entitled to know who they were
subsidizing.
However, many people (including some of the attorneys in our
office) believed that such information was private information, and should only
be made available to the Board of Directors, and withheld from inquiring
owners.
In conjunction with this disclosure question always came the
question of whether the association should, or should not, publish the names of
the delinquent members. The thought here is that publishing the names would
shame or embarrass the delinquent members into paying.
I’ll address the easiest of these matters first. We strongly
recommend against publishing delinquency lists. The risk of publishing
incorrect information, including names, addresses, or other inaccurate
information such as the amount due, is too great in comparison to the possible
benefits of publishing. If any of the published information is inaccurate in
any respect (for example, the amount of the delinquency was accurate as of a
week ago, but as of the date of publication it was no longer accurate), the
association is liable for defamation. This means that the association could
have to pay damages, penalties and attorneys’ fees in a civil suit brought by
the defamed member. In addition, if the inaccurate information is published,
not by the association itself, but by a third person, for example its manager,
its attorney, or some third party who is determined under various laws to be a
“debt collector,” that third party could have liability under state and federal
fair debt collection acts, which can include specified amounts of damages,
penalties and attorneys’ fees awards.
So, now that we’ve got that out of the way, let’s address
members’ entitlement to know who is delinquent. I’m not quite sure I buy the
argument that such information is private to the delinquent member. However,
one of the strongest arguments I’ve heard about not disclosing such information
is in response to the question “what is the questioning member going to do with
the information?” Generally, the member has no right to do anything with that
information – no decision that the member is legally entitled to make would be
affected one way or the other by having that information. Rather, it is solely
within the discretion of the board of directors to determine what, if anything,
to do with the information, and whether to pursue the delinquent owner or not.
While some people point to the success in collecting delinquencies due to
publishing the names of the delinquents (shaming does work sometimes), it has
far greater potential to backfire, and can be much less effective than other
measures to collect the delinquent assessments, not to mention that it can be
very divisive in the community.
Finally, as many of you readers know, last year our
legislature adopted a new records bill (part of CCIOA) that became effective on
January 1 of this year. It specifically permits an association to withhold
certain records from a member’s request for inspection and copying – the list
includes records to the extent that they concern individual units other than
those of the requesting owner. In other words, in Colorado, an association’s
board of directors has the express authority to withhold from an inquiring
owner any information about another owner or his or her unit. This would
include information about status of payment of assessments.
While the right to withhold such information is not a duty
to withhold, think about the purpose for the disclosure before doing so, and
whether the disclosure will serve any legitimate purpose of the inquiring
owner. Otherwise, keep the delinquency list private for the use of the board
only.
Reader Opinion of the Colorado Homeowners Association Law
Blog Article
From: Fox W.
Glenn foxwood9000@gmail.com
Sent: Sunday,
September 29, 2013 10:27 AM
To: Unofficial Heatherlea
Blog general mail
Subject: Re:
Colorado Homeowners Association Law Blog: Can You Disclose Who In Your
Community Is Delinquent In Payment Of Their Assessments?
Heatherlea Blogger,
I have reviewed several opinions regarding this issue and
have considered the legality and general correctness of posting this information
on our blog.
The first fact to consider is that the vast majority of HOA
information forums are offered by property managers/CAMs and HOA attorneys who
primarily support HOA boards and property managers/CAMs. As such, these forums
rarely offer opinions from the perspective of the homeowner. In fact, most of
them are very defensive of HOA management in almost every scenario.
As for this blog’s decision to provide delinquent lists:
1. This blog is not the HOA website, but rather is a
homeowner-based blog created for the express purpose of informing our
homeowners.
2. None of the contributors to this blog are board members.
3. This blogger remains anonymous.
4. Our purpose of posting the delinquent list is to reveal
the failure of the board and the CAM to collect the dues, rather than to shame
delinquent homeowners into payment. In fact, our hope is that more homeowners
will withhold payment until the board starts equally enforcing the By-Laws.
5. All HOA records provided here (including the delinquent
lists) were freely provided to a homeowner who requested the information from
the CAM.
6. Florida statutes require access to all HOA records
(including aging accounts information). The only information that can be
withheld from a HOA records request in Florida is personal bank account
numbers.
7. As stated in our disclaimer, all personal information (including names and addresses) posted here is widely available on the web. In Florida, the county property appraiser webpage provides all property related data including the homeowner’s name, what they paid for the property, a copy of the deed, survey maps, and details of all county permits associated with the property.
8. The board and the CAM are responsible for any incorrect
information they provide to a homeowner.
9. As stated in our disclaimer, we are providing an ongoing
discussion of point-in-time events that occur over time in the HOA. Any old
information remains to provide long-term perspective of events as they
occurred.
One caveat: Florida law exempts law enforcement officers
from freedom of information laws regarding publication of their personal
information including name and address. For example, our neighborhood has 44
homes, but only 43 owners appear on the property appraiser web page (one is an
FHP officer). Thus we do not provide that homeowners’ personal information
either. We have one other neighbor who works at FDLE (but is not an officer)
who requested that his name be removed…we removed it.
Overall, I disagree with the conclusion of the article. All homeowners are
entitled to all HOA records (including delinquent accounts). My HOA is a
non-profit corporation of which I own one 44th share. I pay $230 per year to
maintain this corporation for the purpose of maintaining our common property. I
have every right to know when any of my 43 “business partners” are not
contributing to this corporation…and I every right to force them to contribute.
Fox W. Glenn
From our friends at Foxwood Glen Homeowners Blog: http://foxwoodglenhoa.blogspot.com
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