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This Old House - Do-it-Yourself

Condominium Mailing Lists Are Public Documents

Written by Posted On Tuesday, 20 March 2018 19:59

Question. I live in a large condominium complex. Many of the owners are becoming increasingly upset with the practices and the conduct of our Board of Directors. Our annual meeting is coming up in about three months, at which time we will be able to elect several new Board members. We have asked our management company for a copy of the mailing list of all unit owners, so we can send a position paper to everyone. However, we have just been informed that our Board has instructed management not to make this list available to anyone. What can we do?

Answer. Whenever a condominium owner has a legal question regarding the operations of the Association, you must first look to your basic legal documents. In most associations throughout the country, there are generally four sets of documents governing a condominium association, although in some states, they have different names.

The "Declaration" is the document that actually created (declared) the condominium. This document is recorded among the land records where the condominium is located. The Declaration, among lots of other things,defines what constitutes common and limited elements, as compared to units. The Declaration also spells out the percentage interests and voting rigohts that each unit owner holds within the Association.

The "Bylaws" of the condominium outline the basic operating procedures as to how the Association functions. In effect, it is the "bible" of the association. For example, Bylaws generally define such matters as the number and role of the Board of Directors, what constitutes a quorum for voting at annual or special meetings, and what unit owners can and cannot do within their specific unit.

The third set of documents are the "plats and plans" of the complex. If they were prepared properly and by a licensed architect, they are very valuable because the define and show -- right on the appropriate location on the plans -- what is a common element, and what is a limited common element. This is extremely important to give guidance as to whether –for example -- the condo or the unit owner is responsible and has to pay for certain repairs, such as a pipe burst.

The last set of documents are the "Rules and Regulations" of the Association. These are promulgated by the Board of Directors, and should be circulated to all owners prior to final implementation. Usually, these Rules deal with such issues as trash collection, keeping pets, use of the swimming pool and health club, and similar housekeeping matters.

There is a legal heirarchy in connection with these legal condominium documents. Absolute priority must be given to the condominium law in your jurisdiction. Every state has a separate condominium law. Although most of the laws are substantially the same, there are some differences which must be carefully looked at when considering a legal issue.

The next level of priority goes to the Declaration. If there is something specifically spelled out in that document, it must be followed, unless the Condominium law states otherwise. It takes a very large majority of the owners to amend the Declaration.

The third level of priority is found in the Bylaws, which also requires amendment by a large majority, usually 66 2/3 of the percentage interests. Finally, we get to the lowest priority level -- namely the Rules and Regulations.

The specific answer to your question probably lies in your Bylaws. Of all of the various condominium documents which I have reviewed, I cannot recall a single condominium association that does not contain language permitting unit owners (and their mortgage lenders) access to the books and records of the Association. Clearly, the mailing list of unit owners falls within the category of "books and records."

The Board of Directors -- or the management company -- may charge you for copying this information. This is, in my opinion, fair and equitable, and you should be prepared to pay a reasonable copying fee. However, if the Board refuses to give you the current names and addresses of all the owners, you should bring this matter to the attention of the full membership at the next annual meeting.

You should also consult your attorney -- as well as contact the attorney for the Condominium Association. You have the legal right to this information, and the Courts will enforce this right if you ultimately have to bring a lawsuit against your Association.

There is, of course, a privacy issue involved. Clearly, unit owners do not want their names and addresses circulated for commercial or solicitation purposes. I do not think it appropriate for the mailing list to be used for such purposes. All too often, unit owners -- under the ruse of condominium business -- will obtain these mailing lists, only to use them for their own personal or professional reasons. Although living in a condominium subjects the unit owner to the concepts of democracy, the concept of privacy is -- or should be -- an important aspect of this democracy. Thus, if an owner does not wish to have his or her telephone number released, the Association must honor that request.

However, the name and address of each unit owner is a matter of public record in the Office of the Recorder of Deeds for the jurisdiction in which the property is situated. Since this is public information -- and since the law (the highest priority) as well as your legal documents allows each owner access to all books and records -- there is no excuse for not giving you this important information.

Often, however, in order to preserve privacy, on behalf of client association, I have negotiated with owners seeking the mailing list that if they submit in a closed envelope the information they want to circulate, and submit enough envelopes for all owners, and if they pay the mailing costs, the board –through management– will address the envelopes and mail them. I believe this is an appropriate solution.

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Benny L. Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of Kass, Mitek & Kass, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.

kasslegalgroup.com

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