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CCOC Decision Summary

#598-0, Brian Flickinger v. Parker Farms Condominium Owners Association, (June 9, 2003; Supplemental Order issued October 11, 2004) (Panel: Reilly, Leeds; Commissioner Roseman abstained).

The homeowner (HO)'s complaint alleged the following:

Fraudulent elections

Failure to properly supervise elections

Improper number of board members

False assumption of role

Failure to provide notice of meetings

Refusal to provide access to the Association's records

Refusal to provide a hearing

Creation of a false billing scheme

Misuse of the Association's funds

Misuse in the application of the Association's funds

The Commission determined that the issues of false billing and mail fraud are not within its jurisdiction under Chapter 10B of the CountyCode. The HO offered no evidence that the condominium association (HOA) or its agent failed to comply with the HOA's governing documents or the provisions of the Maryland or MontgomeryCounty laws regarding condominiums.The hearing panel found that the HO was not credible as a witness and his expectations were unreasonable.

The hearing panel felt its mission was to instruct the homeowners and communities as well as to adjudicate the complaint.Of special concern to the hearing panel was the issue of access to the community records.The panel agreed that under State law the HO had a right to access the records, but he must make an appointment at a mutually convenient time.The HOA can limit an inspection of the records to a reasonable time like three or four hours.The HOA must provide the records kept "in the ordinary course of business;" however, that does not mean that the records must be in exact chronological order. Conversely, the HOA cannot reorganize the records in order to make them difficult to inspect. The HOA need not answer questions regarding the documents.The HO does not have a right to conduct a personal search for the records in the file room, but records may be brought to him.HO may be charged a reasonable fee for copies of records, and also for a search of the records if historic documents must be brought from long-term storage.The HO does not have the right to access the HOA's computer and e-mail

The hearing panel also rejected the claim that the HOA misused its funds by consulting an attorney for advice in this dispute.On the contrary, the panel commended the HOA for seeking legal advice on a matter which it did not have the expertise to resolve by itself, concluding that "[r]ather than stumble through and possibly make matters worse they sought the advice of counsel who guided them to a solution.That protected themselves and the association."

The supplemental order ruled that the Commission could award attorney fees to the prevailing party under Section 10B-13(d) of the Montgomery County Code, found that the HOA's attorney fees were reasonable, and ordered the HO to pay the $7,307 fee charged the HOA.

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