Condo Association Management Blog

Question: Because the minutes our homeowner association board distributes do not accurately reflect what 
 
is said at board meetings or executive sessions, several owners decided to tape the meetings for a record. 
 
The board then issued a memo telling us not to record meetings — or risk being sued by the board. It said 
 
that owners who tape board meetings are violating Penal Code Section 632 and offered as "evidence" a case 
 
titled People vs. Suite. 
 
The board wants to adopt rules prohibiting audio and video tapings of meetings and begin fining owners who 
 
violate the rule. To ensure that no recording devices are brought into meetings, the board decided to meet in 
 
the private residences of individual board members and said owners entering the meeting room would be 
 
searched. 
 
Some owners have decided to defy the board's orders and surreptitiously tape meetings. Do homeowners 
 
have the right to tape record meetings? 
 
Answer: Yes. Homeowner association titleholders and members, regardless of the form of common-interest 
 
development, do have the right to tape record meetings. No law prevents titleholders or members from taping 
 
association board of director meetings whether openly or surreptitiously. 
 
California Penal Code section 632 was originally enacted to prevent taping telephone conversations without 
 
consent of all parties for later use against one of the parties in that conversation. 
 
Some association attorneys are using the case of People vs. Suite as the basis for denying owners the right 
 
to tape record board meetings. However, that case is no longer the law in California. 
 
Two recent cases helped define the meaning of PC 632 as it relates to the expectation of confidentiality. As a 
 
result of those decisions, boards do not have the right to prevent the taping of association board meetings by 
 
a titleholder or member. 
 
The test of what is confidential was decided by the California Supreme Court in Frio vs. Superior Court. The 
 
case determined that a conversation is confidential if a party to that conversation has an "objectively 
 
reasonable expectation" that the discussion is not being overheard or recorded. This is the standard that 
 
applies in California. 
 
The other case, Ribas vs. Clark, approves recording of meetings by acknowledging the distinction between 
 
"secondhand repetition of the contents of a conversation and its simultaneous dissemination to an 
 
unannounced second auditor — whether that auditor be a person or a mechanical device." By focusing on 
 
"simultaneous dissemination," PC 632 protects against recording and eavesdropping only if a party seeks to 
 
keep the content of a conversation secret by not holding that conversation where it might be overheard, either 
 
Los Angeles Times: Feel free to hit the 'record' button at board meetings Page 1 of 3 
 
http://www.latimes.com/classified/realestate/printedition/la-re-associations2oct02,... 10/4/2005 
 
intentionally or unintentionally. 
 
PC 632 specifically excludes from the definition of "confidential communication" statements made "in a public 
 
gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any 
 
other circumstance in which the parties to the communication may reasonably expect that the communication 
 
may be overheard or recorded." 
 
Recording is permissible, whether announced or surreptitious, because those discussions are not confidential 
 
communications within the definition of that term in PC 632. 
 
Under the Common Interest Open Meetings Act, board meetings are required to be held in public, meaning 
 
there can be no expectation that any statements made during those meetings are confidential. Any 
 
conversations among board members during the course of a meeting are expected to be overheard by 
 
anyone in attendance. 
 
It makes no difference where meetings are held, whether in the president's home or another board member's 
 
unit. All are subject to the act — meaning those meetings are open to the public even if the public consists of 
 
owners or if no owners attend. 
 
This also applies when management company representatives, guest speakers or vendors are present. Their 
 
presence indicates the board intends its conversations to be overheard — meaning they can be recorded. 
 
An executive session by definition is not a meeting. It is a session adjourned to from a regularly convened 
 
board meeting, of which owners have been notified, for a limited purpose pursuant to Civil Code section 
 
1363.05(c). This session can be confidential and closed to titleholders, but discussion must be generally 
 
noted in the minutes distributed from that board meeting. 
 
If desired, the board can tape executive sessions. If outsiders such as management company representatives 
 
attend the executive session, expectations of confidentiality are waived and those sessions could be tape 
 
recorded by anyone in attendance. If only the association's attorney of record attends an executive session, 
 
the attorney-client privilege is not waived and the expectation of confidentiality is preserved. 
 
Resolutions or motions to prevent tape recordings are illegal and have no force or effect because they violate 
 
both statute and case law. 
 
Efforts to search owners attending association board meetings without consent of those owners are a 
 
violation of 4th Amendment rights against unreasonable searches and constitute battery (legally defined as 
 
an unconsented touching). Owners may bring suit against the searchers for damages. 
 
Because their assets are at risk, titleholders have an interest in ensuring that board decisions and actions are 
 
accurately documented in the minutes. Minutes are prima facie evidence of board decision-making activities 
 
during association meetings. 
 
If a board deliberately or negligently fails to produce an accurate accounting of decisions entered into during 
 
those meetings, it can be held liable for damages that may ultimately be passed on to individual titleholders 
 
or the association as a body. 
 
Aside from creating a liability for all owners, boards that conduct meetings in secret or try to hide their actions 
 
from titleholders by creating false minutes deserve to be removed and — if damages occur — be forced to 
 
pay those damages individually. For these reasons, it is acceptable to tape record all association meetings, 
 
especially those of boards who ignore or disrespect their duty to produce accurate minutes.

Sorry but you are wrong. The approved minutes of a board meeting are the legal record of the business conducted at a board meeting. It is the only record of the proceedings that a court can consider. Your taping has no legal standing and many consider it ajn invasion of their privacy because with it they may refrain from making a remark whuich if your taper was absent they couyld voice. Remarks out of contect can be verty damaging. I suggest you stiop this practice. It serves no opurpose

In Florida, my understanding is that both audio and video recording of association meetings is legal. Many meetings are not recorded correctly by the secretary, and mechanical recording of the actual meeting makes for a more accurate accounting. If an owner is afraid to speak for fear of being recorded, maybe they should reconsider what they were planning to say.

I also want to tape our meetings as illegal things are brought out that I would not have any proof the board has acted inappropriately. The minutes never reflect the true statements, but are the interpretation of one of the members. I say "go for it" and I am going to begin to attend all meetings with my little tape recorder and place the recording on the website I have started to let the other owners know exactly why some owners are not allowed to do what others can. Unfortunately, part of the meeting is held in secret and why one owner was allowed to go for 18 months without paying and others foreclosed on within two.

We have recorded our meeting to insure accurate records. I just referred to the Davis steirlings and this is what I find:  
Penal Code §632. The Penal Code makes it a crime to record confidential conversations without the other person's consent. However, the prohibition does not apply to open board meetings or to membership meetings. Private membership meetings are deemed public forums for the limited purpose of free speech by the membership. Damon v. Ocean Hills; Penal Code §632. As a result, recording a board or membership meeting does not violate the Penal Code. Even so, recordings that are not subject to criminal penalties under the State's Penal Code can still be subject to fines under an association's rules and regulations.

If all the above is true, you had better start looking at the finances of the building. Ask to see all the financial records and check them line by line.

In Virginia the law allows recording and videotaping of the Board meetings. The law does not allow for meeting in executive session except for limited topics and these topics are listed on the Virginia Condominium Act website. When a topic is discussed in executive session it must then be brought into open session for a vote, and the motion is recorded in the minutes. The Bylaws also give guidance to the Board members as to their actions. 
 
We start our Board meetings by announcing that the meetings are being recorded. Memories are faulty, and I have referred to the recordings to clarify some issues. 
 
Originally, the recording process caused a lot of anger and anxiety amoung the seated Board members, but now it is the accepted practice.

I think that recording is a great idea - I was thinking of actually doing a video record from my laptop...

Your post is interesting. You don't say how you utilize these recordings, but assuming you have noble goals and that fairness and honesty is what you want: 
 
Board meetings in CT aren't public meetings; they're akin to corporate board meetings. Our HOAs are incorporated as non-stock corporate entities. A unit owner is a bona fide voting member of the corporation. There's nothing "illegal" about a member taping a board meeting, but your HOA may have rules against it. I think the HOA would have to promulgate an official rule against taping, which would give all owners a chance to comment about such a rule. 
 
In CT we have very special rules in our condo law about an HOA Board going into executive session. It cannot be a run and hide way to avoid unit owners who attend the board meeting, and most important, in executive session, the board cannot take any vote that is binding on the association.

I live in central western Florida. I too record ALL meetings. When the Board complained, I asked for an opinion of the State governing abency, DBPR. Yes, of course you can record meetings for all owners protection and to make sure you have your points correct. I have found the recordings helpful on many occassions. Good for you.  
 
Perhaps it's time to get the owners together and elect an honest board that welcomes the owners to question their actions.

I posted earlier. I thought I would add the CT state law regarding "executive sessions." 
 
It's from 47-250:(1) Meetings shall be open to the unit owners and to a representative designated by any unit owner except during executive sessions. The executive board and those committees may hold an executive session only during a regular or special meeting of the board or a committee. No final vote or action may be taken during an executive session. An executive session may be held only to: (A) Consult with the association's attorney concerning legal matters; (B) discuss existing or potential litigation or mediation, arbitration or administrative proceedings; (C) discuss labor or personnel matters; (D) discuss contracts, leases and other commercial transactions to purchase or provide goods or services currently being negotiated, including the review of bids or proposals, if premature general knowledge of those matters would place the association at a disadvantage; or (E) prevent public knowledge of the matter to be discussed if the executive board or committee determines that public knowledge would violate the privacy of any person.

Your not allowed into executive session let along tape a meeting so a regular meeting is a PUBLIC MEETING. Feel free to record. There blowing smoke up your A$$ if they tell you that you can't record a PUBLIC MEETING.

I am from Nevada. Under the Nevada Revised Statutes, we are required to tape record all meetings. This seems quite strange to me. What does your Board have to hide?

John; the only thing our Washington state board has to hide is the delinquency report which our CC&Rs state must be confidential. I would love to make the bad debt list known to all homeowners so I say bring on the tape recordings...We would love to let everyone know who is cheating the system.

John, 
 
 
 
I think you are a bit confused. This is what NRS 116.3108 says about recording minutes and also about a member recording meetings: 
 
 
 
" 6. The secretary or other officer specified in the bylaws shall cause minutes to be recorded or otherwise taken at each meeting of the units’ owners.  
 
 
 
10. A unit’s owner may record on audiotape or any other means of sound reproduction a meeting of the units’ owners if the unit’s owner, before recording the meeting, provides notice of his or her intent to record the meeting to the other units’ owners who are in attendance at the meeting." 
 
 
 
As you can see, the minutes must be recorded OR OTHERWISE TAKEN. . . 
 
 
 
This is from the NV UCIOA; the condo statutes do not say anything about tape recording meetings. 
 
 
 

There is nothing in CA Davis-Stirling Act addressing tape recording meetings. 
 
 
 
From what you have written, IMO, the board is in violation of state law by going into executive session when you begin to tape record the board meeting. Following is what state law says. You will note that there are several reasons listed that warrant an executive session. 
 
 
 
"1363 (b) Any member of the association may attend meetings of the board of directors of the association, except when the board adjourns to, or meets solely in, executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member's request, regarding the member's payment of assessments, as specified in Section 1367 or 1367.1.  
 
(c) Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership."  
 
 
 
 
 

In NJ, we can videotape meetings without consent, but for audio recording you must first inform everyone that the meeting will be recorded, otherwise its illegal.  
 

Now available in the U.S. is a legally verified audio recording service for condo associations. Go to http://studioexp.ca/english/home.html . It's hugely successful in Canada, and I am offering it now in America. The audio recording is courts compliant and exact written transcripts are obtained from the audio recording. No more inaccurate "minutes" and a lot more efficient association meetings. It's the way to go. You can contact me for more details.

The post of Bill B. of 12/22/11, regarding the ability to video tape a Board meeting in NJ. Could you give a little more detail as to where you found the info.

I concur with Frank Constabile if Bill B or anyone else familiar with NJ HOA law that could give more details on video taping public hoa meetings for accuracy and accountability