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Tape this: What we have here is a failure to communicate

July 15, 2007|Stephen Glassman and Donie Vanitzian | Special to The Times

Question: Because our management company has been sued before, it has a policy of recording all incoming and outgoing phone calls. Before a management employee answers the phone, there is an automatic announcement warning callers they are being recorded. But when company employees place outgoing calls to homeowners, even though we are being recorded, no such warning is given.

Since learning this, homeowners will no longer call the management company -- even in an emergency -- and they now refuse to speak to company employees on the telephone. We communicate only in writing. The management company says it's not cost-effective to limit communication with owners to written letters and it refuses to do so. What should our board do? Also, since the company announces the taping prior to speaking with callers, can I also record my conversations with the management company, and would I need to tell them I am taping?

Answer: Boards should hire vendors whose actions are in the best interests of the titleholders. Whether taping telephone calls qualifies as cause for terminating the management company may depend on the contract terms.

The law allows calls to be tape-recorded as long as an announcement is made or an audible tone is heard throughout the call. Once the announcement is made and the homeowner begins to speak, he or she has consented to the taping of the conversation. There is no need for formal consent.

Even if the management company's announcement states a purpose for taping calls and what the tape allegedly will be used for, the homeowner may still limit the company's use of that recording. As a party to the call, you have a right to demand to know how the tapes will be used. When speaking on the record, state your own warning limiting the recorder's use of your conversation. Management's announcement that the call is being recorded is sufficient notice to everyone who is a party to the conversation, including a homeowner who may be taping the same telephone call.

The board has a duty to obtain copies of all the management company's recordings of its association-related business. All such recordings are considered to be "documents" that are property of the association. The board has a duty to demand that the company provide copies of all such recordings, and to ask for "written assurances" that the tapes will not be destroyed.

A management company that will not put anything in writing and tapes its phone calls is a liability to the association. Until a temporary restraining order can be obtained, an attorney must put the management company on notice using language such as:

"The recordings and the information on them cannot be used, shared, lent, sold, stored, reproduced or transmitted in whole or in part in any form or by any means, including any system now in use or to be invented, for any purpose without written consent from the association and the titleholders who were tape-recorded."

The association should obtain a court order requiring the retroactive preservation of documents (including tape-recordings) and another order preventing the management company from destroying any existing tapes and documents. Even if the company claims it has stopped taping, a court order may be needed to preserve all recorded calls regardless of such claims.

If the board will not take appropriate action, the titleholders should consider pooling their resources and hiring their own attorney. Board members who hire a vendor whose job it is to communicate with individuals on behalf of the association, when the vendor refuses to do so except in tape-recorded telephone conversations, have failed to protect the titleholders who elected them to office.

No board should sign a management company contract that places its records and titleholders' private information at risk.

It appears to be time to elect a new board of directors.

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Send questions to P.O. Box 11843, Marina del Rey, CA 90295, or e-mail noexit@mindspring.com.

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