Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Original Article Here: https://www.tcpalm.com/story/life/community/2020/11/04/condo-questions-sharing-memberships-personal-information-violates-florida-law/6157739002/
Fair warning – lots of ads there!
Q: Recently, at one of our board meetings, it was revealed that our property manager and board president allowed a member to access all of our membership’s personal information, including medical records, bank records, SSNs, driver’s licenses, sales and lease information, etc. That person reported that they were seeing medical records. Is this a violation of Florida law? Since our personal records contain revealing financial information, should the board be required to notify all owners and renters of this breach? What can we do?
— R.B., Stuart
A: Yes, allowing an owner to access the records you describe violates Florida Statutes Chapter 718 (the Condominium Act), Chapter 719 (the Cooperative Act) and Chapter 720 (the HOA Act), all of which provide that the following records are not accessible to unit owners:
Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.
Medical records of unit owners.
Social Security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, email address, or facsimile number provided to the association to fulfill the association’s notice requirements.
However, the laws also provide that the association is not liable for the inadvertent disclosure of information that is protected under this sub-subparagraph if the information is included in an official record of the association and is voluntarily provided by an owner and not requested by the association.
So, if the disclosure of the records was simply a mistake, the association is not responsible for it. However, if the property manager and president intentionally allowed the person to review the protected records, the disclosure was not “inadvertent” and they could be liable. Depending on the nature of the disclosure, the board should evaluate the real risk that protected information was obtained by the person. If the person made copies or took photos of protected records, the records should be returned and/or the photos deleted.
If the person merely saw the records but did not make copies or make notes of protected information, then I think the risk using the information inappropriately is low. In any case, the person should be put on notice that their access to the protected records was a mistake and they are to return it and not use it for any purpose. How much of this the board discloses to the owners in general I think depends on the specific facts and circumstances surrounding the disclosure.
Support Animal Restrictions
Q: Our governing documents allow pets but prohibit pit bulls. A person who has submitted an application to lease a unit indicated that he has a pit bull but claims it is an emotional support animal. Can we deny the lease application on the basis that the pit bull violates our rules?
— W.L., Fort Pierce
A: If the person has provided sufficient documentation supporting the need for an emotional support animal under the Fair Housing Act, the association cannot deny the application.
Breed and weight restrictions in governing documents applicable to pets do not apply to emotional support animals because legally an emotional support animal is not a pet under the Fair Housing Act.
The necessary documentation would be a letter from a treating health care professional (not necessarily a doctor) that opines that the person has a disability that substantially affects one or more major life activities and that the animal will ameliorate the condition caused by the disability.
However, pursuant to a new Florida law, if the health care practitioner is not practicing in Florida, the out-of-state practitioner must indicate that they have provided care or services to the person on at least one prior occasion before issuing the opinion.
Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit our website www.gadclaw.com, or to ask questions about your issues for future columns, kindly send your inquiry to: email@example.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
In any community association situation (Condominium, Townhome, HOA, etc.), these issues will come up surprisingly often.
I have always encouraged Board Members to treat the owners (and their information) as if they will have to justify it to a judge, and the 5 o’clock news. Because they just might need to at some point!
If you have questions about buying into (or selling and getting out of) a community association, give me a call at 813-489-9789.
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