Q & A:
- Can an HOA charge an owner for a copy of the CC&Rs? No. An HOA is required to make certain documents available to owners free of charge, via the association’s website or, if none, at the association’s address, including the CC&Rs. See 1.1 below.
- Does an HOA have to keep records? Yes, every association is required to keep certain records. See 1 below.
- What records have to be kept by an HOA? This chart shows what records must be kept and must be provided to an owner when requested, as well as where certain records must be kept and how quickly they must be given to an owner.
- Can an owner see the records of the HOA? An owner is entitled to see certain association records. The owner is required make a written request that includes certain information. See 2.1 below. This chart shows what records must be provided to an owner when requested.
- What if an HOA doesn't provide records to an owner that properly requests them? There are penalties if an association fails to fulfill a request (but an association is not liable for erroneous documents identified or produced in good faith). See 2.5 below.
- Who is responsible for the records? An association is required to appoint a specific person to be responsible to prepare and keep its records. See 1.5 below.
1. Association Records
1.1 On Website (or at Registered Address). An association is required to keep and make available to owners a copy of the following, free of charge, on the association's website, or, if the association does not have an active website, it must make physical copies of the documents available to owners free of charge during regular business hours at the association’s address registered with the Utah Department of Commerce’s HOA Registry:
(1) the governing documents, including the CC&Rs (declaration), articles of incorporation, bylaws, the recorded plat of the development, and the rules,
(2) the most recent approved minutes, and
(3) the most recent budget and financial statement.
See Sections 57-8-17(1)(a) and 57-8a-227(1)(a).
1.2 Permanent Records. The law requires an association to keep certain records. The following must be kept permanently:
(1) minutes of all owner meetings and of all board meetings;
(2) a record of all actions taken without a meeting by the owners or by the board;
(3) a record of all actions taken by a committee of the board in place of the board on behalf of the association; and
(4) a record of all waivers of notices of meetings of members and of the board or any committee of the board.
1.3 At Principal Office. An association is required by law to make certain records available to owners who request them. An association must keep a copy of each of the following records at its principal office (records kept electronically satisfy this requirement as long as such electronic records are capable of being transmitted to, or viewed by, others, such as via email from an electronic storage medium or via website):
(1) all governing documents (including board resolutions relating to the characteristics, qualifications, rights, limitations, and obligations of members);
(2) minutes of all owner meetings for a period of three years;
(3) records of all action taken by the owners without a meeting, for a period of three years;
(4) all written communications to owners generally as owners for a period of three years;
(5) a list of the names and business or home addresses of the current board members and officers;
(6) a copy of its most recent annual report (annual renewal) delivered to the Division of Corporations; and
(7) all financial statements prepared for periods ending during the last three years, if any, that show in reasonable detail the assets and liabilities and results of the operations of the association.
1.4 Other Records. In addition to the above records, an association is required to keep and make available to owners:
(1) the most recent reserve analysis;
(2) the certificate of insurance for each insurance policy the association holds;
(3) "appropriate accounting records" (see Utah Code § 16-6a-1601(2)); and
(4) a membership list, specifically a list of the names and addresses of the association's members in alphabetical order and showing the number of votes each member is entitled to. This list must be kept at all times and must be kept in written form or in another form capable of conversion into written form within a reasonable time. Additionally, unless the bylaws exempt the association from the following requirement, the membership list must be current whenever a member meeting or action by written ballot without a meeting is conducted, and must be made available to members before and during the meeting in accordance with Section 16-6a-710(2). See Index, membership list, for more details. See Sections 57-8-17(1)(a)(i), 57-8a-227(1)(a)(i), and 16-6a-1601(3).
1.5 Record Keeper. A board must delegate to the secretary or someone else responsibility for the preparation, maintenance and authenticating of (1) minutes of the directors' and members' meetings, and (2) other records and information required to be kept under Sections 1.2 - 1.4 above, unless the bylaws delegate those duties to a person already.
2. Owner Requests for Records
2.1 The Request. If an owner wishes to view and copy or receive certain association records, then in a written request to the association:
2.1.1 Info. The owner must include the association's name, the owner's name, property address and email address, and a description of the documents requested.
2.1.2 Choose How to Receive the Records. In the request, the owner should specify that the owner chooses:
(1) to view and copy the records in person (including that the owner be allowed to bring any necessary imaging equipment to the place of inspection and make copies or electronic scans of the documents while inspecting the documents),
(2) to receive the records electronically, and that either the association or a third party duplicating service make the electronic scans of the requested documents, or
(3) to receive hard copies of the records, and that either the association or a third party duplicating service make the copies of the requested documents. See Sections 57-8-17(3) or 57-8a-227(3).
2.1.3 Requirements Based on Type of Record Requested. (The request must describe a proper purpose for records other than website documents and principal office records.)
(a) Website (or at Registered Address) Documents. An owner should not need to request the governing documents, most recent approved minutes and most recent budget and financial statement, because the association must make them available as provided in the law and summarized in 1.1 "On Website (or at Registered Address)" above. If the association does not make the records available as provided in the law, an owner may request them and if the association fails to provide them, the association is subject to the penalties described in 2.5 below.
(b) Principal Office Records. To request any of the records in 1.3 "At Principal Office" above, the owner must make the request for the records in writing. The owner is entitled (1) to view or copy the records in person during regular business hours at the association's principal office if the owner makes the request at least five business days beforehand, (2) to receive the records electronically as provided in 2.1.2 above, or (3) to receive hard copies of the records as provided in 2.1.2 above. See Section 16-6a-1602.
(c) All Other Records, Proper Purpose Required. To request any of the records of the association other than the records listed in 1.1 and 1.3 above: (1) the request by the owner must be made in good faith and for a proper purpose, (2) the owner must describe with reasonable particularity the purpose and the records the owner desires to inspect, and (3) the records must be directly connected with the described purpose, and (4) the owner must make the request at least five business days in advance. "Proper purpose" means a purpose reasonably related to the member's interest as a member of the association. The owner is entitled (1) to view or copy the records in person during regular business hours at a reasonable location specified by the association, (2) to receive the records electronically as provided in 2.1.2, or (3) to receive hard copies of the records as provided in 2.1.2. See Section 16-6a-1602.
2.2 HOA Response.
- Within five calendar days, an association must comply with a request by an owner for the governing documents, the most recent approved minutes and the most recent budget and financial statement (which are the records described in 1.1 above).
- An association must comply with a request to view and copy records upon the sixth business day after the request is given1 to the association.
- An association must comply with a request to receive records, either electronically or by hard copy, upon the sixth business day after the request is given1 to the association, if the association can reasonably do so, and if not, then as soon as is reasonably possible. (An owner is entitled to receive records either electronically or by hard copy after giving five business days' notice to the association, if that time period is reasonable. See Section 16-6a-1603(2).
FN 1. Notice to an association by an owner is effective at the earliest of the following: (1) when received; (2) five days after it is mailed; or (3) on the date shown on the return receipt if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee. See Section 16-6a-103(5). Also, associations should be aware that the law says that written notice to an association may be addressed to: (1) its registered agent at its registered office; or (2) the corporation's secretary at its principal office. See Section 16-6a-103(3). Thus, an association should always be sure its information is current with the Utah Division of Corporations, particularly the address of its registered agent and principal office, because if a records request is sent by an owner to an outdated registered office or principal office address causing the association to fail to respond within a required time, the association could be on the hook for penalties.
2.3 Who Pays for Copies or Scans and for the Time Spent Meeting With the Owner? If an association produces the copies or electronic scans, the owner must pay the association the reasonable cost of the copies or electronic scans and for time spent meeting with the owner, which may not exceed: (1) the actual cost that the association paid to a recognized third party duplicating service to make the copies or electronic scans, or (2) 10 cents per page and $15 per hour for the association employee’s, manager’s, or other agent’s time. See Sections 57-8-17(4) and 57-8a-227(4).
2.4 What Records Can an Owner See? An owner is entitled to receive a copy of the records listed in 1.1 through 1.4 above. Note that an association is not required to create records in response to a records request, unless it's a record the association is required to maintain but failed to do so. The law does not require an association to create various records that it does not otherwise keep in the ordinary course of business or that are not required to be kept by law.
In complying with a request for association records, an association does not have to produce, and may redact: (1) any communication subject to attorney-client privilege, (2) a Social Security number, and (3) a bank account number. Additionally, the minutes of board meetings held in executive session need not be produced, because naturally they are confidential just as the executive session itself is. See Index, minutes. An association is not required to produce the email addresses and phone numbers of its members. See Walker I Investments v. Sunpeak Ass'n, 2015 UT App 216, ¶ 11, 359 P.3d 675.
2.5 Penalties. If an association fails to comply with the statute when responding to an owner's document request, the association must pay: (1) the costs of inspecting and copying the requested documents, (2) the requesting owner's attorney fees and costs, and (3) $25 to the requesting owner for each day a request for the items that must be available on a website or at the registered address (namely, the governing documents, the most recent approved minutes, and the most recent budget and financial statement) continues unfulfilled beginning the sixth day after the request. In addition, if the owner gives 10 days notice to the association stating how the association has failed to comply with the law and demanding compliance, the owner may file an action in court to compel the association to comply and to request $500 or actual damage, whichever is greater, and the prevailing party is entitled to its attorney fees and costs. See Sections 57-8-17(5) and 57-8a-227(5).
(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)