By: Laurie F. Masotto, Esq. (originally published in Summer 2006)
Association websites have become more popular, allowing members to conveniently access information from the comfort of their home, office or laptop without having to make a request to the manager or Board member, and without waiting for “snail mail” to arrive. While these sites have many benefits, an association should be careful to ensure the site does not become a source of potential legal trouble.
Records and information which are only available to association members should not be made accessible to other members of the public who happens to be perusing the internet. A password should be created and disclosed to members to protect unintended disclosure of information and records. Certain associations have created a general or public access portion, so that potential buyers or other interested persons can get a feel for the community, separate and apart from a private access portion that ensures protection as to records which only members are entitled to review.
Although the type of records to which members are entitled has significantly expanded as of July 1, 2006 when Civil Code Section 1365.2 went into effect, it is generally recommended that the type of records posted on the site be limited to the governing documents (CC&Rs, Bylaws, Rules and Regulations, Architectural Guidelines), forms that can be used by members (architectural improvement request forms, change of address, suggestions/complaints, request for maintenance of common area (i.e. broken fixtures, maintenance problem, etc.), minutes of Board and member meetings (other than any executive session meeting minutes), Board or member meeting notices and/or agendas, upcoming social or community events, newsletters, links to manager and other important contact persons, and the like. Although other records may be requested by members pursuant to the new law, such as non-privileged vendor contracts, membership lists (other than those members who have opted out of being included on the list), reserve account balances, financial statements, and other specified financial documents, it is not recommended that these by posted on the site, due to the significant potential for inaccuracy, untimeliness, and possible access and use by non–members.
You may wish to allow owners to access personal account history with a password. The Association will be responsible to ensure this information is accurate and timely, and cannot be accessed by other persons.
An association may also wish to use the website to conduct polling, allow owners to input pet and vehicle information, give links or provide a list of vendors used by owners for repairs or improvements (with appropriate disclaimers as to not advocating same), and to reserve the common area amenities (clubhouse, etc.).
Please keep in mind while the law has become more technologically savvy over time, such as giving associations the ability to notify members by e-mail upon the member giving permission to do so, the website cannot be used to circumvent legal requirements, such as the giving of notice of member meetings, such as by posting a notice of the Annual Meeting on the web-site. Although such can be used as a reminder to those accessing the site, the posting alone would not satisfy the notice requirements contained in most governing documents, which typically require notice by first-class mail (or by e-mail upon the owner’s consent), since this would improperly place the burden on the owner to frequently check the web-site as to notices, rather than being sent the notice.
Further, no “chat room” or other forum for discussion should be offered on the site, since such typically has inflammatory results, such as fueling rumors, defamatory or offensive language, improper forum for complaints and criticism, which may cause potential legal liability for an association, since the site is sponsored and created at the direction of the Association. This would also cause an undue burden on management and the association to have to monitor and control same.
If photos are being considered for the site, if any photo is to be used which depicts a specific home or depicts persons including adults or minors, the association should obtain the written permission of the homeowner to use the photo, and whether to use names of the persons in the photo. Sites should be periodically monitored to ensure it is operating as intended, and to check for accuracy.
In the Real World
Community associations which have actually created websites have, thus far, found them to be helpful and efficient, as homeowners can easily access information and forms, and communicate at any convenient time, without having to request and wait for same to be sent. The Summit at Eastlake, in Chula Vista, has found the website to be beneficial, according to manager Chris Jaeschke of N.N. Jaeschke, Inc., as the site has both public and private access, in which residents can access information and documents, or e-mail their manager. Public access includes lists of local community resources and activities, the governing documents and forms (for potential buyers if they wish to review), a site map, a description of the community (such as the number and type of homes and amenities offered), access to local weather forecasts. The site also has a “shopping” section, such as for those homeowners who wish to offer items for sale.
Senior communities have also found websites to be helpful to promote trips and activities inside the community, and outside activities, such as local theater and city sponsored events, and to inform members of the clubs and organizations they can become involved in, to promote a spirit of community.
If a problem arises or the information placed or proposed to be placed on the website is controversial, an association should contact their legal counsel to obtain advice as to how to address or correct same, so that the Association reduces its exposure to potential liability.
Although there will be pros and cons involved, “surfing” these sites promises to be the “wave” of the future.