Email pitfalls for HOAS

If you are an agent interested in leads in your HOA, you might be inclined to distribute your email address to the entire membership. The disclosure of your email address to an HOA can cause you problems.

1. Email Addresses on the Roster. I recently attended an annual meeting of an HOA in which the membership is unusually genteel and friendly. At the meeting, the Board passed out a roster of the entire membership. The roster included the members' email addresses. The Directors' email addresses were included. There is a risk of receiving unwanted spam and viruses under this practice.

Under ARS section 33-1805 for Planned Communities and section 33-1258 for Condominiums, the books and records of the HOA are open to the membership for inspection and copying. There are certain exceptions, but there is no exception for the membership roster. If the HOA's membership roster includes the email addresses of the members, any member can obtain the email addresses.

There is little risk in a community in which the membership is polite and courteous. Such folks do not turn over the email addresses to the local franchisees for marketing, or to a spammer or virus spreader. In communities that are in conflict, such circumstances have occurred.

Community association disputes are laden with emotion. On a scale of 1-10 with 1 being extremely emotional disputes, and 10 being the least, community association disputes are near the bottom, just above divorce. At the top would be a conflict between a bank and an insurance company - both making rational decisions weighing the risks and benefits of decisions in the conflict. The emotional content of the HOA disputes arises from the emotion we feel about our homes. We do not live in "Residential Dwelling Units" as defined in the CC&Rs. We live in "homes". Our homes are sacred and intimate sanctuaries. We care about how our neighbors treat and perceive us. We care about the perception our neighbors project to our guests. When homeowners perceive a violation of their expectations relating to their home and community, many become emotional.

Our law firm was involved in a conflict in which an angry homeowner deluged the Directors with emails. Someone (perhaps the angry homeowner) provided the Directors' email addresses to a spammer. Thousands of unwanted emails resulted. Someone also provided the roster to some local retail franchisees. Many more unwanted emails arrived to the Directors and entire membership.

There are a couple precautions that can be taken. ARS section 33-1258 (Condominiums) and 33-1805 (Planned Communities) provides in part that personal records of the homeowners are exempt from disclosure. The Board or the members can specifically designate their email addresses as "personal", and exempt them from disclosure. The downside to this precaution is that members will not have each others' email addresses in a roster format. In my experience, that sacrifice is worth avoiding the burden of being added to spam lists.

Another solution is to obtain an email address for HOA or personal business only. If it is abused, its use can be discontinued in favor of another HOA-only address. Retain the privacy of your business email address. One more precaution is for Directors to provide the email address to the management company as a record for the management company only. The address does not become an HOA record, subject to inspection by the members.

2. Director Communications by Email Directors often communicate with each other by email. HOAs are subject to open meeting laws. Those laws require that deliberations by a quorum of the Board on HOA business must be done in a meeting open to the membership. There are a few exceptions related to advice of counsel, personal matters of a homeowner, litigation or employees of the HOA.

If two of five directors exchange emails on HOA business, there is no quorum of the Board deliberating. Three of five is a deliberation, if the directors are addressing the same subject in a circular pattern. Directors should avoid creating a distribution list containing the entire Board. They should also avoid using the "reply all" feature, when the recipients constitute a quorum of the Board.

Violations of the open meetings laws can be devastating. If the Board arrives at a meeting and announces that a vendor contract has been approved, some members will draw the worst inferences. They will accuse even the most well - intentioned Board of conducting secret meetings and receiving kickbacks from the vendor. Some members are that suspicious. Limited use of email is helpful, but directors should be mindful that deliberations by a quorum of a Board should be done in an open meeting.

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