Back to Basics – Record Requests
Record requests have been one of the most contentious issues in condominiums for many years, with some condominiums treating records like closely guarded trade secrets and some owners making unreasonable requests to support their fishing expeditions. As of November 1, 2017, there is a mandatory process for owners, mortgagees, and purchasers requesting records in condominiums. This post will briefly explain the basic process that must be used to request records.
Types of Records
There are now two types of records: core and non-core records. The Act and regulations define core records as:
- Declaration, by-laws, rules
- Shared facilities agreement
- Current budget
- Latest financial statements and audit report
- Most recent reserve fund plan
- Record of owners, mortgagees, and leased units
- Periodic information certificates from the last 12 months
- Minutes for owner or board meetings (from the last 12 months)
- Any other record specified by by-law as a core record
Every other record is considered a non-core record.
Accessing Records
The Act and regulations have described a new complex process for fulfilling record requests, including prescribed forms, defined timelines, and the maximum fees that may be charged by the condominium.
The basic steps are:
- Request: The person submits their request on the Request for Records form;
- Board’s Response: The condominium must respond within 30 days using the Board’s Response to Request for Records form, which includes the estimated fees (if applicable) and any reasons for not providing a record (i.e. does not exist, not entitled to access it);
- Requester’s Response: The person responds using the bottom portion of the Board’s Response to Request for Records form to confirm the records they still want to access and they pay any applicable fee;
- Access and Accounting: Access to the record is provided by the condominium to the owner. If the fee paid by the owner is more than the actual cost, the condominium returns the excess to the owner. If the actual cost is more than the fee paid by the owner the condominium may demand further payment, up to 10% of the estimated cost.
The amount of time to respond to the request and the fees that may be charged to the owner depend on the type of record requested, the format it is kept in, and if it requires redactions. Fortunately, there are charts and guides to assist people in making and responding to record requests. There is one for core records and one for non-core records.
It is important for the condominium to reply to requests quickly. The requester can file a complaint to the CAT and the penalty for failing to provide a record without a reasonable excuse has increased from $500 to $5000.
Final Thoughts
I have never been a huge fan of the mandatory new process as it is cumbersome and time intensive. I appreciate that the amendments were designed to address a problem, but it was only a problem for a very small percentage of owners as most condominiums provided access to records when requested without much difficulty or cost to the requester. In many cases, the manager would simply respond to a request sent via email by attaching a copy of the requested record to the reply email. Technically, if a manager did so now it would be inconsistent with the process set out in Act, unless the parties sign another prescribed form (the Waiver by Requester of Records) agreeing to modify the process.