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Letters to the HOA Board of Directors:

Yes, Owners Can Review Letters

In most states, owners’ correspondence to the HOA is an official record, and therefore all owners are permitted to review it.

Florida is typical. “Under Florida law for both HOAs and condos, all correspondence, such as letters that come into the board, is part of the association’s official records and is accessible to all owners, anyway,” says Dennis J. Eisinger, a partner at Eisinger, Brown, Lewis & Frankel PA in Hollywood, Fla., who represents more than 500 condo and HOA associations.

Why are such letters part of the record? “Owners aren’t sending a personal letter, but a letter to the association or to a person sitting in a capacity of a board member,” says Ben Solomon, an attorney and founder of the Association Law Group in Miami Beach, Fla., who advises more than 500 associations and also represents developers through his second law firm, Solomon & Furshman LLP. “Because of that, it could technically constitute an association record, not something of a private nature.”

The rule is much the same in Minnesota. “One of the things to consider is what the association is required to maintain as a record under state law,” says Nancy Polomis, a partner at Hellmuth & Johnson PLLC in Edina, Minn., who advises associations. “Under Minnesota’s Common Interest Ownership Act, records the association has to maintain include material correspondence and memoranda relating to its operations. The association would have to retain owners’ letters.”

But Should You Voluntarily Release Letters?

While owners are entitled to review other owners’ correspondence to your board, the question is whether you should release all letters without requests from owners. That’s a tougher question.

“I think it’s should be decided on a case–by–case basis,” says Polomis. “I have some associations that have some difficult homeowners, and they want to publish everything so other owners know why they’re spending money on attorneys’ fees. Maybe it’s my nature, but I do always urge caution. I’ve seen boards that have included letters in minutes, and that has fueled the fire. The owner thinks he’s writing a letter to the board that he doesn’t want anybody else to see, so is publishing it fair? But the board thinks that if it gets a correspondence, owners should expect it to be shared.

“It’s really a topic-dependent question,” adds Polomis. “Some stuff you shouldn’t share, but if an owner is complaining about how the grounds look, the owner should expect that letter to be shared. Whether the board wants to take the action to distribute correspondence depends on whether it’s worth it. Sometimes doing that fuels the fire more than it’s worth. And it might deter people from stepping up to the board because they think being a board member is more trouble than it’s worth. I generally urge caution because it usually does more damage than good.”

Solomon also urges caution. “This could be a bit of a slippery slope,” he says. “Boards could create more issues by publishing letters, and there could be potential complaints about publishing some letters and not others. We urge associations to treat all owners uniformly. So they should establish some formal or informal policy about how and why they do it.”

Eisinger, however, advises boards to send only certain letters. “If an owner asks a question, the board is required to furnish answers and opinions,” he says. “Unit owners should certainly know why legal or managerial fees are higher, and at a lot of associations, that’s a problem. You have people forcing the HOA to spend money because of frivolous questions. So I think it’s OK for HOAs to publish those letters. Maybe because of peer pressure from others who say questions or issues were extraneous or harassing to board members, the guy won’t write the letter the next time. Maybe the pressure will chill him out a little bit.

“But if I’m on the board,” Eisinger adds, “I’d vote to send out only letters that make owners look ridiculous, not the ones that make the board look ridiculous. As a practical matter I’d pick and choose, not enact a policy that every letter gets sent out.”

Of course, the natural conclusion is that if you’re aren’t comfortable releasing some letters your board has sent, perhaps your board hasn’t been reasonable in its responses to owners. Maybe it’s time for your board to rethink its behavior or its position on those issues.

Be Careful Where You Publish Letters

Solomon doesn’t often get asked by board members whether they can publish owners’ letters. But he does get questions on a related issue. “What I’ve seen is a little different,” he explains. “A lot of times boards come to us about publishing a delinquency list in the lobby. Owners have a right to see their HOA’s delinquency list, but our advice is that boards need to be on offense, not defense because it’s done something that could be a violation of the federal Fair Debt Collection Practices Act.

“We tell boards,  You want to be doing things in a calculated, safe, way. You don’t want to publicly display things but provide it only to members.

“My response to publishing letters is the same,” says Solomon. “Don’t embarrass someone, and do it in a way that nonmembers won’t be able to see the information.”

Polomis suggests your board be more discrete. “When an owner asks, ‘Why are we spending so much money on attorneys’ fees?’ a board member could say, ‘We’ve been dealing with a homeowner who has concerns; why don’t you come review the records?’ Then the word gets out without the board looking like it threw open the door. The board looks like it took the high road. But owners are smart enough to figure out what’s been going on.”