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Chris T., JD
Chris T., JD, Attorney
Category: Legal
Satisfied Customers: 4779
Experience:  Experienced in both state and federal court.
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I live in a private residential community and many of us are

Customer Question

I live in a private residential community and many of us are disgusted with our POA board of directors. They refuse to be transparanet and refuse to send us any financials or board meeting minutes. On the community website they have a tool bar that says "click here for a copy of meeting minutes and they will be sent to you" but they still refuse to do so. The main porblem is the president is an out of control, control freak. I cannot find in our by-laws that the board has to be transparent and send financials or meeting minutes when requested, although I have been told by other POA's that the law in South Carolina states that POA boards have to be transparent and send that information. Where I live on Hilton Head Island, SC we recently had a management company embezzle about $300,000.00 from various communities that they managed. We currently do not have a managment company and the board is trying to do it themselves to save money and they are failing miserablely. We are solvent with about 90k in reserve and another 40k in the operating account. Last Thursday eve was the monthly board meeting and 25 owners attended to express their frustration and then they were told that by law they could not remain for the rest of the board meeting. I have attended several board meetings with a different with the past president never objected to me remaing for the rest of the meeting. I believe our community is a not for profit corporation in South Carolina. What is the law and can I have a judge put a court order on the board to release financials and minutes? I and many others obviously dont trust the current baord and have no faith in them.
Thanks,
Gregg Flory
Submitted: 1 year ago.
Category: Legal
Expert:  Chris T., JD replied 1 year ago.
Hello, Gregg. I'll be happy to assist you.
To answer your question up front, you can find the law here: http://www.scstatehouse.gov/sess119_2011-2012/bills/218.htm
You may enforce that law by seeking injunctive relief from a judge. Basically, you would have to sue the president of the HOA (and potentially other decision makers within the HOA, as the facts dictate) and ask the judge to order him (or them) to follow the law by making the financial, bylaws, minutes, etc. available to the members. If he refuses to do so despite the order from the court, the judge may hold him in contempt, which could entail a fine or even jail time. My guess, however, is that if an attorney representing the members like yourself sent him a letter demanding that he meet his statutory disclosure obligation, he may see the error is his ways and comply without the expense or headache of litigation. All that said, I'm a former federal prosecutor, so I sometimes view situations like this somewhat skeptically. The only reason to hide facts to do prevent people from finding out the truth. If he doesn't fairly quickly comply, you may have a fraud situation on your hands, in which case the police can get the financials with a subpoena or search warrant. Obviously, that would be a less than ideal situation, but there is definitely some smoke here. Below I've included all of his obligations pursuant to the statute I cited above. I hope that answers your question. If not, feel free to ask follow up questions. If so, please remember to "Rate" my answer before you go. Good luck.
Section 27-52-160. (A) The homeowners' association shall maintain and preserve in its office complete and accurate books, accounts, and records as the department may reasonably require to determine if the association is complying with the provisions of this chapter and rules and regulations adopted in furtherance of its provisions. The books, accounts, and records must be maintained in accordance with generally accepted accounting principles, be apart and separate from another business in which the organization is involved, and retained for at least three years.
(B) At a minimum, each of the following items, as applicable, must be maintained and held in a place easily accessible to the homeowners' association's members:
(1) a copy of plan, specification, permit, or warranty related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace;
(2) a copy of the association's declaration, bylaws, articles of incorporation, rules, and any amendments to them;
(3) the minutes of all meetings of the board of directors and of the members;
(4) a current roster of all members, their mailing addresses, and lot or unit identifications. The association also shall maintain the electronic mailing address or alternate mailing address designated by members to receive notice pursuant to Section 27-52-150;
(5) all of the association's insurance policies or a copy of them;
(6) a current copy of all contracts to which the association is a party, including management agreement, lease, or other contract under which the association has an obligation or responsibility;
(7) a copy of a bid received by the association in the past year for work to be performed;
(8) a copy of the association's annual budget for the past three years; and
(9) the financial and accounting records of the association, including records of receipts and expenditures, a current accounting for each member, association tax returns, and financial reports.
(C) The association's records must be maintained in this State and be open to inspection and available for photocopying by members or their authorized agent at reasonable times and places within five business days after receipt of a written request stating the specific books and records the member requests of the association. A member who is denied access to official records is entitled to ten dollars per day for the association's failure to comply. The calculation begins on the eleventh business day after receipt of the written request.
(D) The homeowners' association shall prepare an annual budget. The budget must reflect the estimated revenues and expenses for that year and the estimated surplus or deficit as of the end of the current year. The budget must delineate all fees or charges for recreational amenities. The association shall provide each member with a copy of the budget or written notice to the member's lot or unit mailing address or alternate address provided in writing by the member that the budget is available pursuant to Section 27-52-160(C).
(E) The homeowners' association shall prepare an annual financial report within ninety days after the close of its fiscal year. The association shall provide each member with a copy of the budget or written notice to the member's lot or unit mailing address or alternate address provided in writing by the member that the financial report is available pursuant to Section 27-52-160(C).
(F) A homeowners' association annually shall, on or before April fifteenth, file a written report with the department relating to the operation of the association during the preceding calendar year. The report must be made under oath on a form prescribed by the department. The department may impose a late penalty of ten dollars a day for each day the report is past due.