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Addresses are public records

June 08, 2003|Stephen Glassman and Donie Vanitzian | Special to The Times

Question: When we purchased our home on several acres in a deed-restricted development, we didn't receive all the necessary paperwork at the closing. A year later we are still requesting the original name and address list from the board. The board refuses to communicate but instead turns everything over to the management company to answer.

When we asked the management, we were told that to request a name and address list of homeowners in our association we would have to put it in writing. Yet our written letter requesting the list was ignored.

When we phoned, the management told us they had not received the letter. We sent the next one "return receipt requested" and upon confirmation of the postal acceptance we awaited the list. Still, no list.

We called the management company again and they said they "received the envelope but there was only a blank sheet of paper inside."

Next time, we videotaped the contents of the letter and sent it via a private hand-delivery messenger. Two months later we received a letter back from the management company informing us that they "would be unable to provide us with the list unless we wrote them another letter detailing a proper purpose for wanting the list."

We wrote back that our proper purpose was "we wanted to communicate to the homeowners that we would like to run for a position on the board."

We finally received the address list, but it came with a letter from management stating, "The California Corporations Code Section 8338 restricts use of this list. It is for your use only and only for the purpose so stated in your written request. It may not be provided to anyone else and may not be used for soliciting."

The next paragraph said, "The Corporations Code Section 8338 states, in part, that the membership roster may not be 'used for any purpose which the user does not reasonably and in good faith believe will benefit the corporation.' " The end of the letter stated "misuse of this membership list could subject you to liability under the Corporations Code Section 8338."

We consider this letter threatening and believe that the managers, in concert with the board, are consciously abusing their positions and hiding key information from owners.

Does the management company have the power to prevent property owners from obtaining information like this, and who determines whether a homeowner misused the list? What "liability" are they referring to?

Answer: The most obvious liability is the one your board and management company are subjecting all property owners to by preventing homeowners from exercising their rights.

When the management company cites a code section, that could constitute the practice of law without a license. In California such actions are a crime. Because the management company is not a law firm, its warnings do not constitute legal advice and can be ignored.

In addition to violating its fiduciary duty, a board that refuses to communicate with homeowners may be in violation of the covenants, conditions and restrictions, or CC&Rs, or the law. Instructing homeowners to communicate with a management company that refuses to respond could subject the board to a suit for breach of that duty.

It is outside the scope of a management company to determine misuse of an address list. The board will be hard-pressed to do so as well. Titleholder names and addresses are a public document and obtainable by anyone. As such, continued threats of "misuse" could constitute harassment.

The management company acts at the direction of the board, and the association is responsible for the company's actions. Without explicit board instruction and supervision, the management company has no authority to act.

While the prospect of filing a lawsuit is never a pleasant one, homeowners have the right to sue to enforce the CC&Rs and to acquire a list of association member names and addresses. If an owner is successful in a suit to enforce governing documents, the court must award attorney fees and costs to the owner.

It is also beyond the purview of a management company to assign a "proper purpose" to an owner's request.

Upon receipt of your association's name and address list, a proper purpose might be to solicit proxies to vote the existing board out of office.

Please send questions to: P.O. Box 451278, Los Angeles, CA 90045, or e-mail your queries to noexit@mindspring.com.

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