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This article provides a general overview of Maryland Homeowners Association law governing records requests by homeowners. The article summarizes requirements and limitations that apply to a homeowner\u2019s request to examine the books and records of a Homeowners Association (\u201cHOA\u201d).<\/p>\r\n
In Maryland, a member of a Homeowners Association (sometimes referred to as a \u201clot owner\u201d or \u201chomeowner\u201d) has a right to examine and copy the \u201cbooks and records\u201d of an HOA. This right is created by Section 11B-112 of the Maryland Homeowners Association Act (\u201cMD HOA Act\u201d) and may also be affected by procedures in the HOA\u2019s governing documents.<\/p>\r\n
Examples of records that a lot owner might requested include:<\/p>\r\n
A lot owner seeking to examine or copy records in person may be required to do so \u201cduring normal business hours, and after reasonable notice.\u201d MD HOA Act \u00a7 11-112(a)(1)(i). The place for inspection is typically the community manager\u2019s office.<\/p>\r\n
Most lot owners, however, make a written request to the board of directors or its community manager representative, to deliver the documents to them, at which point the records are simply copied and supplied to the requesting lot owner by email or other electronic transmission. Regular mail or personal delivery is also permitted under Maryland HOA law. See MD HOA Act \u00a7 11-112(a)(1)(iii).<\/p>\r\n
Maryland HOA law gives an HOA 21 days or 45 days to provide lot owners with \u201cfinancial statements\u201d or \u201cminutes of a meeting.\u201d The deadline depends on when the records were prepared. Specifically, once a homeowner makes a written request that financial statements or meeting minutes be delivered to them, the HOA \u201cshall compile and send the requested information by mail, electronic transmission, or personal delivery \u2026 [w]ithin 21 days after receipt of the written request\u2026.\u201d MD HOA Act \u00a7 11B-112(a)(1)(iii). However, if the financial statements or minutes were prepared more than 3 years before receipt of the request, then may be more difficult to track down the documents so the statute allows 45 days for documents, prepared more than three years before the lot owner\u2019s written request. MD HOA Act \u00a7 11B-112(a)(1)(iii).<\/p>\r\n
Maryland HOA law does not provide specific deadlines for delivering documents other than \u201cfinancial statements\u201d or \u201cminutes of a meeting.\u201d<\/p>\r\n
An HOA may impose a \u201creasonable charge\u201d upon a lot owner desiring to review or copy the association\u2019s books and records or who requests delivery information. MD HOA Act \u00a7 11-112(b)(1). \u00a0If a charge is imposed, it typically covers the costs associated with the HOA\u2019s reproduction and administrative expenses. The cost and time commitment can be substantial, depending on how many records are requested, and over what tome period, so it is wise to adopt a uniform fee schedule. However, under Maryland HOA law, a charge imposed for copying may not exceed the fee charged by the circuit courts in Maryland. MD HOA Act \u00a7 11B-112(b)(2).<\/p>\r\n
Exception for Examination or Electronic Receipt of Financial Statements<\/em>.: HOAs are prohibited from charging members any fees for examining financial statements in person or receiving them electronically. This exception to the law noted above, which allows HOAs to impose reasonable charges for copying and delivering of records. No charge may be imposed for in person examination of financial statements where they are maintained or electronic transmission of financial statements. MD HOA Act \u00a7 11B-112(b). In practice, this means that owner members can inspect financial statements at the manager\u2019s office or in the common area facilities without charge and may request that financial statements be emailed to them without charge, two circumstances where an HOA’s expense is minimal.<\/p>\r\n \u201cAccess to the books and records is of vital importance to … home owners who wish to participate in the democratic process of their associations\u2026. However, some of the records maintained by the HOA as part of its governance of the homeowners association community contain sensitive information, such as private information about individual [homeowners], employees, or legal proceedings or advice.\u201d Baltimore City Circuit Court Memorandum (Clark v. Zalco Realty, Inc.) at p. 8<\/a> (quoting Office of the Maryland Attorney General in support of amendments that created the current versions of MD HOA Act \u00a7 11B-112 and MD Condo Act \u00a7 11-116 which govern an owner\u2019s request for records of a homeowners association and condominium association, respectively).<\/p>\r\n Maryland HOA law attempts to balance these competing interests, by allowing an association to withhold\u00a0certain sensitive or confidential records from inspection by a lot owner to the extent that they concern:<\/p>\r\n (i) Personnel Records. <\/strong>Records concerning personnel who work for the HOA can be withheld. MD HOA Act \u00a7 11B-112(a)(2)(i). However, this does not include information on personnel salaries, wages, bonuses, and other compensation paid to employees of the HOA as these records are part of the association\u2019s financial records.<\/p>\r\n (ii) Medical Records.<\/strong> The medical records of an individual that are in the possession of the HOA can be withheld. MD HOA Act \u00a7 11B-112(a)(2)(ii).<\/p>\r\n (iii) Personal Financial Records of an Individual.<\/strong> An individual’s personal financial records can be withheld by the condominium association. This includes \u201cassets, income, liabilities, net worth, bank balances, financial history or activities, and creditworthiness.\u201d MD HOA Act \u00a7 11B-112(a)(2)(iii). An HOA may come into possession of such records in connection with efforts to collect delinquent condominium assessments.<\/p>\r\n (iv) Contracts Under Negotiation<\/strong>.\u00a0 Records relating to business transactions that are currently in negotiation be withheld. MD HOA Act \u00a7 11B-112(a)(2)(iv). This would include contracts currently under negotiation between the HOA and another person or entity that have not yet been finalized and signed by the parties.<\/p>\r\n (v) Written Legal Advice.<\/strong> Written advice from the condominium association\u2019s attorney can be withheld. The Maryland Circuit Court for Baltimore City has held that the section of the Maryland Condominium Act allowing an association to withhold \u201cwritten advice of legal counsel,\u201d (\u00a7 11-116(c)(3)), should be interpreted to cover any records that are protected by the Maryland attorney-client privilege or work product doctrine. See Circuit Court Memorandum<\/a> (Clark v. Zalco Realty, Inc.) at p. 16. This rationale applies equally to homeowners associations because the language of MD Condo Act \u00a7 11-116(c)(3) and MD HOA Act \u00a7 11B-112(a)(2) is virtually identical. Both statutes allow an association to withhold \u201cwritten advice of legal counsel.\u201d This identical language was added to both statutes as part of the same bill enacted for the express purpose of allowing condominium associations and HOAs to withhold\u00a0 certain documents requested by owners. Therefore, communications between an HOA and its attorney that fall within the attorney-client privilege as well as documents protected by the attorney work product doctrine may be withheld. See Note at end of this article for more detail on what types of documents are protected by the \u201cattorney-client privilege\u201d and \u201cwork product doctrine.\u201d<\/p>\r\n (vi) Executive Session \/Closed Meeting Minutes.<\/strong> Minutes of closed meetings of the board of directors or other governing body of the condominium association may be withheld. MD HOA Act \u00a7 11B-112(a)(2)(vi). Maryland HOA law allows an association board of directors hold private \u201cclosed meetings\u201d (also known as a meetings held in \u201cclosed session\u201d or \u201cexecutive session\u201d) in order to allow a board of directors to discuss sensitive or confidential matters that require privacy, such as legal issues, personnel matters, contract negotiations, delinquent assessments, and other such topics that the board determines should not be discussed in a public forum and which fall within the categories set forth closed meeting statute (i.e., Maryland HOA Act \u00a711B-111). By holding a closed meeting or \u201cclose session,\u201d the HOA board can address these matters without public scrutiny and maintain confidentiality. Specific procedures regarding close sessions may vary depending on the condominium association’s governing documents.<\/p>\r\n \u00a0<\/strong>Exception for Records Concerning the Lot Owner Making the Request<\/strong><\/p>\r\n Even if the requested records fall within one of the six sensitive or privileged categories listed above that may be withheld, Maryland HOA law provides that the records must nonetheless be turned over if they concern the lot owner making the request. Specifically, the statue statutes that that a condominium association may withhold those records \u201cfrom public inspection, except for inspection by the person who is the subject of the record <\/em>[emphasis added] \u2026.\u201d MD HOA Act \u00a7 11B-112(a)(2). This makes sense as there is no concern in this circumstance about disclosure of sensitive material about an individual lot owner for public consumption. The only person who will see the sensitive records is the homeowner who is the subject of the records. Moreover, by requesting a record pertaining to themselves, a homeowner is, in effect, giving the HOA permission to disclose the otherwise sensitive information.<\/p>\r\n However, there is an exception to this exception, discussed below, for written communications with attorneys concerning the requesting lot owner.<\/p>\r\n Records Concerning the Lot Owner Making the Records Request that also Constitute Written Advice of Legal Counsel <\/strong><\/p>\r\n What happens if the records being requested by homeowner constitute written legal advice from the association\u2019s attorney concerning the homeowner making the request? For example, if the requesting homeowner filed a lawsuit against the HOA and the HOA\u2019s board is communicating with its attorney in writing about its strategy for dealing with the lawsuit, does the HOA have to turn over these attorney communications? Likewise, if the HOA is bringing a legal claim against a homeowner for failure to pay condominium assessments, can the homeowner obtain the internal notes of the association\u2019s attorney pertaining to the attorney\u2019s preparation for trial regarding the delinquent payment of assessments?<\/p>\r\n The Maryland Circuit Court for Baltimore City has answered these questions in the context of records requested from a condominium association. The court held that written legal advice from the association\u2019s attorney maybe withheld even though the advice concerns to the requesting owner so long as the record falls within the laws of Maryland which protect documents from disclosure under the attorney-client privilege or work product doctrine:<\/p>\r\n \u201cAccordingly, Section 11-116 is read as being in harmony with the common law privilege and doctrine: it allows a unit owner who is the subject of the written advice of the condominium\u2019s legal counsel to inspect that information, provided that it is not protected by the common law attorney-client privilege or the work product doctrine. Lutz<\/em>, 167 Md. at 12; MD. CODE ANN., REAL PROP. \u00a7 11-116(c).\u201d<\/p>\r\n Circuit Court Memorandum<\/a> (Clark v. Zalco Realty, Inc.<\/em>) at p. 16. This rationale applies equally to homeowners associations, since MD Condo Act \u00a7 11-116(c)(3) and MD HOA Act \u00a7 11B-112(a)(2) contain virtually identical language added to these respective statutes at the same time for the same purpose.<\/p>\r\n In short, if the HOA\u2019s attorney is providing written legal advice to the association that concerns the requesting a lot owner, such as regarding an assessment collection matter, or preparing a legal strategy to defend against a lawsuit filed by the requesting unit owner, those documents are privileged under the attorney- client privilege or work product document doctrine, and do not need to be disclosed. The Circuit court for Baltimore city reasoned that by enacting the Maryland Condominium and HOA laws on records disclosure to unit owners that allows unit owner to see documents that concern the requesting unit owner (i.e., MD Condo Act \u00a7 11-116(c)(3) and MD HOA Act \u00a7 11B-112(a)(2)), the legislature did not mean to nullify these long-standing privileges in agonized under Maryland law. Circuit Court Memorandum<\/a> (Clark v. Zalco Realty, Inc.<\/em>) at p. 16.<\/p>\r\n See Note<\/strong> below for more detail on what types of documents are protected by the \u201cattorney-client privilege\u201d and \u201cwork product doctrine<\/em>.\u201d<\/p>\r\n It is important to note that specific requirements and procedures for accessing records may be outlined in the HOA\u2019s governing documents, such as the bylaws or rules and regulations. These additional requirements may include procedures that do not conflict with the Maryland HOA law on records disclosure to unit owners (i.e., Maryland HOA Act \u00a7 11B-112).<\/p>\r\n Conclusion<\/strong><\/p>\r\n Whenever a request to examine records is made by a unit owner, it is advisable for the community manager and board members to review applicable law and governing documents, and also consult with a Maryland HOA law attorney if there are any questions or disputes regarding access to books and records.<\/p>\r\n Note on Attorney-Client Privilege and Work Product Doctrine<\/em><\/strong><\/p>\r\n The court for Baltimore city succinctly defined the attorney client privilege and work product doctrine as follows:<\/em><\/p>\r\n The attorney-client privilege, the oldest privilege protecting confidential communications, is a rule of evidence \u201cthat forever bars disclosure, without the consent of the client, of all communications that pass in confidence between the client and his attorney during the course of professional employment or as an incident of professional intercourse between them.\u201d State v. Pratt, 284 Md. 516, 521 (1979); Harrison v. State<\/em>, 276 Md. 122, 133-34 (1975). The privilege is not only \u201cdeeply rooted in common law,\u201d but also statutorily memorialized in Maryland. Pratt<\/em>, 284 Md. at 519; MD. CODE ANN., CTS. & JUD. PROC. \u00a7 9-108 (\u201cA person may not be compelled to testify in violation of the attorney-client privilege.\u201d). The privilege is designed to encourage individuals needing legal advice to disclose information freely without fear that such facts will be made public. Levitsky v. Prince George\u2019s Cnty.<\/em>, 50 Md. App. 484, 491 (1982).<\/p>\r\n *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *<\/p>\r\n Given that the attorney-client privilege has the effect of concealing relevant information from the fact-finder, \u201cit is applied only when necessary to achieve its limited purpose of encouraging full and frank disclosure by the client to his or her attorney.\u201d [Maxima Corp. v. 6933 Arlington Dev. Ltd. P\u2019ship, 100 Md. App.<\/em>] at 455-56<\/em>. The privilege does not extend so far as to protect information that does not disclose the nature of the legal advice or services sought; for example, a client\u2019s payment of his attorney\u2019s fees is generally unprivileged. Id. at 455.<\/p>\r\n *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *<\/p>\r\n Furthermore, communications not shielded by the attorney-client privilege may nonetheless find shelter in the work product doctrine. See E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc.<\/em>, 351 Md. 396 (1998). The work product doctrine protects from discovery the work of an attorney done in anticipation of litigation or in readiness for trial. Id. at 407. A party generally may not obtain such work without demonstrating a substantial need for it and an inability to obtain its substantial equivalent by other means without undue hardship. Md. Rule 2- 402(d)\u2026.The attorney-client privilege is held by the client while the work product doctrine is \u201chistorically and traditionally a privilege of the attorney and not that of the client.\u201d E.I. du Pont<\/em>, 351 Md. at 406.<\/p>\r\n Baltimore City Circuit Court Memorandum (Clark v. Zalco Realty, Inc.) at pp. 12-13<\/a>. Contact an HOA law attorney at Cowie Law Group should your association need advice on what constitutes a document protected by the attorney-client privilege and\/or work product doctrine under a Maryland HOA law.<\/p>\r\n MARYLAND HOA LAW ATTORNEYS<\/p>\r\n MD \/ DC Condo & HOA Facebook\u00a0Group<\/a><\/p>\r\n MD\/DC Condominium & HOA Law Website<\/a><\/p>\r\n 410-327-3800\u00a0|\u00a0202-670-6289\u00a0|\u00a0301-830-8315<\/p>\r\nConfidential or Privileged Documents Which the HOA may Withhold<\/h2>\r\n
Additional Requirements in Governing Documents<\/strong><\/h2>\r\n
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