Q Our Declaration of Trust states that the books, accounts and records of the
trustees shall be open to inspection by one or more of the trustees and the
unit owners at all reasonable times. Since there is no mention of costs then it
is presumed to be free. The only exception is that under Massachusetts
Condominium Statute Chapter 183A access to said records shall include the right
to photocopy said records at the expense of the person or entity making the
request. At the May 2012 meeting of the Board of Trustees, a motion was made,
seconded and passed by the board that any requests by unit owners for records
from the property management company will be billed at an hourly rate for costs
incurred. Since the Declaration of Trust is silent about costs and the
aforementioned Massachusetts Condominium Statute only allows for charging for
photocopy costs it appears that the aforementioned motion by the board is not
valid since it requires an amendment to the Declaration of Trust which requires
67 percent of the beneficial interests hereunder. Is this a valid assumption?
—Seeking Freedom of Information
A “The short answer to the question is ‘No.’ Your reader’s facts about the statute are right but the conclusion is wrong,” explains attorney Clive Martin of the law firm of Robinson & Cole in Boston. “The relevant section of the statute is M.G.L. c.183A, sec 10(c), which provides
that certain enumerated records of the condominium association, including the
condo docs, minute books, and specified financial records, shall be kept “in an up-to-date manner within the commonwealth” and shall be available for “reasonable inspection” “during regular business hours” and at certain other times. The statute provides that “access to said records shall include the right to photocopy said records at the
expense of the person or entity making the request.”
“It is not contradictory to the statute for the trustees to impose a reasonable
charge for the pro-rata cost of clerical and secretarial time in making the
required photocopies. There is no reported case on the issue to give definitive
guidance, but it is highly unlikely that a court faced with this issue would
disallow secretarial and clerical costs like these — assuming they are reasonable and not set at an extortionately high level.
It is obvious that the spirit of the statute is that the person seeking the
information should pay for it, not that the charge should be imposed on all the
unit owners. It is clearly not the intent of the statute to have the
condominium association as a whole pay for documents requested by individual
owners or mortgagee banks, and the fact that the language of the statute does
not specifically include the words “including an employee’s hourly rate for costs incurred” does not mean they are not included in the general expectation that if you want
copies of the documents you have to reimburse the association the cost of
producing them for you. A unit owner arguing to the contrary would have a tough
time making his or her point.
“In this context, these trustees acted appropriately in levying a charge (and,
although it doesn’t say so, incorporating it into the rules and regulations of the association).
This is quintessentially the trustees’ area of concern – the operation and control of the common areas and elements of the condominium – and is usually part and parcel of the trustees’ rule-making authority as set forth in the Declaration of Trust. It would not
be, in the typical set of condo docs, something that is subject to an amendment
requiring a super-majority of unit owners’ approval.”
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