Documenting decisions made and actions taken is both helpful and good practice for community association management. The following example demonstrates the importance of documentation.
An owner raises a concern—for the second time—and asserts that some time ago, the association board and management promised to address this concern. The owner demands immediate action. Association leadership and management are new. Those who previously addressed the concern on behalf of the association have moved or moved on. Association records are searched— nothing.
What does the association do? If prior communications and related actions had been documented, new association leadership and management would know what was done and what is left to do. Without documentation, the parties are left floundering.
Time is limited, task lists are long, and everything is expected to be done yesterday.
It is important for association leadership and management to take time to document what is said and what is done on behalf of the association.
Documenting communications and actions provides benefits beyond verifying a specific request as in the example above. Documentation also helps the association act consistently over time. Many matters requiring action do not arise on a daily basis. Documentation of how the association previously addressed a matter provides a blueprint for future action; allowing the association to repeat what went well and avoid what did not.
Documenting communications may be a little easier now because much communication is routinely in writing through email and text messages. Associations should have procedures in place to maintain relevant email or texts so that these communications may be stored and retrieved when necessary. Correspondence, which may imply an increased level of importance, remains the preferred method of communication in many circumstances. Copies of all correspondence should be kept by the association. (Consult association legal and accounting professionals for guidance regarding the length of time that your association should retain documents.)
This is not to suggest that all association communications must be in writing. Telephone and face-to-face communication are vital. The association should use all forms of communication to address matters as they arise to foster a sense of community. Important information is often conveyed verbally which should not be lost or forgotten. Creating a written record of oral communications helps avoid the vagaries of memory and disputes over what was said.
It is also essential for an association to document actions taken by the association—creating a record of what was done and when. If the action does not generate documentation, make a note to the file. Notifying the parties involved in writing may be a simple way to document the action.
Potential legal claims. Documentation is never more critical than when addressing a matter that may result in legal action. For example, in a slip and fall, association records should include, at a minimum, the date, time, location of the incident, whether there was any injury, whether there were witnesses, and if they took any evidence of the incident (i.e., pictures, notes). (Consult association legal counsel and the association insurance carrier before taking written statements, counsel or the claims adjuster may prefer to take the statements.) It is not uncommon for a slip and fall claim to take several years to resolve. Documentation created at or near the time of the incident may help to bring clarity to the issues when revisited several years later. It is also imperative to document the notice provided to the association insurance carrier. There should be no dispute that notice was provided to the carrier and when that notice was given.
Compliance with association covenants, rules, and regulations. Written notice of the conditions that do not comply with association rules and an opportunity to cure must be given to the owner. This notice should be maintained by the association. Associations typically work with owners to obtain voluntary compliance through letters and email, as well as telephone and in-person conversations. Association records should include copies of letters and email, along with the substance of important of oral conversations. If the matter ends up in court, and the communications and actions of the association are documented, the association will be better positioned to demonstrate its efforts to obtain compliance before initiating legal action.
Internal complaints. Similarly, associations should document all internal complaints by owners. Should the association be called upon to defend its actions, the association should be able to demonstrate in writing what complaint was made, when, and how it was addressed.
Requests for modifications or accommodations under fair housing laws. Under fair housing law, an owner or resident making a request cannot be compelled to submit the request in writing. If a request is made orally, it should be documented by the association. Also, fair housing law requires prompt action when a request is made and, if the request cannot be granted, contemplates an interactive process between the parties to try to work out a mutually acceptable resolution. This interactive process, much like attempts to resolve covenants issues, will include email and oral communications. Documenting all communications and actions taken to address fair housing requests will help to show that the association addressed the request timely and fulfilled its obligation to try to reach a resolution in good faith.
Property damage incidents. Numerous other circumstances should also be documented, including property damage incidents (such as water leaks) that may involve insurance claims, as well as collections matters. Maintaining a written record of these issues will assist the association in pursuing funds due to the association.
Association communications, whether written or oral, should be professional at all times and should avoid harsh language and derogatory remarks. Association communications should convey the facts accurately and explain the association’s position in a clear and easy to understand manner. Any letter, email, or text sent by or on behalf of the association, as well as written communications among association leaders or with management, may end up being reviewed in court. There is no need to undermine the good efforts of the association by including unnecessary and disparaging comments in the documentation.
By Deborah A. Carter, CMCA, AMS, PCAM
Debbie is the general manager of Westridge Swim and Racquet Club in Woodbridge, Virginia. She is also a member of the Quorum Editorial Committee and the Outreach Committee for the Washington Metro Chapter Community Associations Institute.
By Michael L. Zupan, ESQ.
Mike is counsel with MercerTrigiani and a member of the Quorum Editorial Committee and previously served on the Education Committee for the Washington Metro Chapter Community Associations Institute.