Contrary to the title, this article is not about proxies, but a broader topic of when and under what conditions members are entitled to inspect certain records of their community associations. For communities subject to the Colorado Common Interest Ownership Act (“CCIOA”), a list of documents that must be maintained as association records can be found in Section 317. These documents are in addition to any records that are required to be maintained in the community’s governing documents.
This article focuses on common questions that come up related to making and responding to document requests.
Who can make document requests? CCIOA requires all association records be made available for examination and copying by an association member or that member’s authorized agent. This means that an association member may designate another person to act as his or her representative and such person may make document requests directly to the community association or its management company. The community association may require that the member provide such authorization in writing to the Board or its managing agent before producing any records in response to a document request by the agent.
Can the community association require members to use a specific form? Community associations may require members to submit their requests in writing with sufficient information to describe with reasonable particularity the records sought. CCIOA does not authorize the community association to deny a request because a member fails to use the association’s approved form. If a member submits a request in writing and sufficiently describes the records being requested the association must accept the request. However, this does not mean that the documents being requested are, or have to be, available for inspection – more on this below!
When does the community association need to make the requested documents available? CCIOA requires requested documents to be made available within 10 days of receipt of the request, or at the next regularly scheduled board meeting if such meeting takes place within 30 days of the request.
What other conditions can the community association impose? CCIOA allows the community association to: 1) limit inspections of records to “normal business hours”; 2) charge a reasonable fee to cover labor and material; and 3) withhold certain documents from production, which includes, but is not limited to architectural drawings, contracts in or under negotiation, communications with legal counsel, records of executive sessions, and most board email exchanges.
What if the community association does not have the records requested? The answer depends on why the association does not have the requested document. Unfortunately, lost and missing records are a reality. If a member requests a record that the community association should have in its records, but does not, the Board should take reasonable efforts to try and track down that record (if it ever existed). For instance, if the community association is missing board minutes from prior years, the current board may consider calling prior board members to see if they have a copy in their files. Nevertheless, if the requested records cannot be located, the association is not required to create or recreate them.
Sometimes members request explanations to actions or a compilation of data. Under CCIOA, the community association is not required to compile or synthesize records. For example, a member requests a spreadsheet or list of all financial transactions for legal expenses for the last three years. Under CCIOA, the community association is required to provide financial statements; however, it is not required to provide a spreadsheet or list of specific expenses if it does not already exist as part of the financial statements.
Also, it may be the case that a community association does not have certain records because they were intentionally destroyed. CCIOA places limits on how long certain records must be maintained by an association. For example, generally, proxies and ballots must be maintained for at least one year after the election, action or vote to which they relate. Financial statements are three years, tax returns seven years, and written communications to all owners three years. If the time has expired the community association may be authorized to destroy the records.
It is highly recommended that community associations adopt a Records Retention and Destruction policy before destroying any records in order to ensure all similar records are kept and destroyed using the same timelines. This will protect the Association from being accused of purposefully destroying “evidence”. This policy identifies the retention periods for various types of documents and addresses destruction of same.
Please do not hesitate to contact an Altitude Community Law attorney at 303.432.9999 or at [email protected] if you have any additional questions con