Over the last several years, the Indiana General Assembly has given considerable attention to the regulation of Homeowner’s Associations (“HOAs”). The 2013 session was no exception. Effective July 1, 2013, House Bill 1084 created new requirements for HOA recordkeeping and access. HOA’s must now keep certain records and make them available at the request of their Owner – Members. Those records are:

- The HOA’s financial records, including all contracts, invoices, bills, receipts, and bank records, of a homeowners association must be available for inspection by each member of the homeowners association upon written request. A written request for inspection must identify with reasonable particularity the information being requested. A member’s ability to inspect records under this section shall not be unreasonably denied or conditioned upon provision of an appropriate purpose for the request. This “appropriate purpose” basis for HOA records requests is a requirement under the Indiana Non-Profit Corporation act, which was the prior standard for HOA records requests. This is no longer the case under the new Act.

- Other communications are also excluded. An HOA is not required to make available to a member for inspection: (1) unexecuted contracts; (2) records regarding contract negotiations; (3) information regarding an individual member’s association account to a person who is not a named party on the account; (4) any other information that is prohibited from release under state or federal law; or (5) any records that were created more than two (2) years before the request. For instance, this may include information pertaining to debt collection records which may be regulated by the Federal Fair Debt Collection Practices Act.

These new regulation provide a new minimum level of access to an HOA’s records by its members. However, if an HOA’s own documents provide for greater records access to its members, these new regulations would not limit those existing standards or would prevent an HOA from increasing its access to records to its members. The bill also recognized the costs that can arise from keeping and producing these records that previously may not have been required to be available. An HOA may not charge a fee for the first hour required to search for a record in response to a request for records. After the first hour, however, an HOA may charge a search fee for any time that exceeds one (1) hour of up to $35.00 per hour, pro-rated for any partial hours over the first hour, for a total fee not to exceed $200.00.

HOA Board members and their managers should implement new practices to collect and catalogue the required records. For instance, this might include collecting and keeping communications not previously saved in the HOA’s records, such as e-mails between Board Members and / or the HOA’s management concerning a potential covenant enforcement matter, written third-party complaints to the HOA about a lot, or architectural approval request forms or written communications. An HOA may not have previously kept these items. These types of written communications would now need to be kept a minimum of two years. If an HOA does not presently keep a record of those communications, it should develop a method to do so. Board members should also be mindful that email communications between Board members about a lot, regardless if there is a dispute, would need to be catalogued and saved for the required two years. Therefore, copying management into all such communications to capture the records is advisable. Or, for self-management communities, designating a board-member, ideally the Board Secretary, to keep these records would be advisable.

These new standards, however, do not mean that oral communications, such as phone calls or face to face conversations about a lot need to be transcribed and made into a record. Likewise, these new requirements do not necessarily apply to matters not involving a particular lot or the financial records designated; for instance, a written communication between board members concerning where to deposit reserve funds, common property maintenance, or a governmental issue.

JEFFREY M. BELLAMY is a Partner with the Indianapolis law firm of Thrasher Buschmann & Voelkel, P.C., where he counsels clients in the areas of real estate, land use and litigation. He regularly represents homeowner’s association boards and their managers throughout central Indiana. He earned his B.S., M.A., and J.D. degrees from Indiana University. Mr. Bellamy is a member of Indianapolis Bar Association Land Use Law Executive Committee, a 2009 graduate of the Indianapolis Bar Association’s Leadership in Law Series and a 2013 Superlawyers “Rising Star” in the area of Real Estate and Litigation. Jeff can be reached by telephone at (317) 686-4773 or e-mail at bellamy@indiana-attorneys.com.

On November 1, 2009, the City of Indianapolis’s new Office of Code Enforcement started its plan review process for Class 1 structures. The term “Class 1 structure” references the Indiana Building Code. Class 1 structures are typically commercial, industrial and multi-family structures, not single or two-family structures. Under this new review process, any new Class 1 structure must undergo a thorough pre-permit review procedure with the Office of Code Enforcement. Prior to November 1, 2009, Class 1 structures in Indianapolis only needed to receive a Design Release from the State of Indiana before submitting a permit application with the City. Under this process, plan review was conducted on a permit-by-permit basis with design changes being suggested after the construction started. The new pre-permit review will be done before any local permits are issued. One of the purposes of the new process is to view large structures as a whole, rather than in a piecemeal fashion permit by permit. The Office of Code Enforcement believes this will catch more building design flaws earlier in the building process, thus enhancing building safety and saving time for plan revisions early on, rather than when individual permits are requested.

The new pre-permit review requires that plans be submitted to the Office of Code Enforcement before building permits will be issued. These plans must include:

Ø A numbered index furnished on the cover of the plans,

Ø The area and scope of work of the project, including the project address,

Ø Scaled site plans, foundation or basement plans, and detailed floor plans,

Ø Exterior wall elevations with wall sections and details,

Ø Floor and roof details,

Ø Electrical, Mechanical, and Plumbing plans,

Ø Fire detection, alarm, and fire-extinguishing plans, and,

Ø A material specification manual.

As you might surmise, this new process can add time to a project timeline if not properly planned for. Also, a city cannot issue building permits on a project until a Design Release is issued by the State. However, the Office of Code Enforcement can begin its review process before the State issues its Release. This may be an attractive option for a commercial builder as the City estimates the initial plan review process could take between 15 and 20 business days.

What does the new pre-permit review process mean for new commercial and multi-family projects? Here are just some of the practical considerations builders will be adjusting to under this new process:

Ø No matter how it is presented as a time-saver, or as a method to decrease construction insurance rates, this process will take an important construction resource; TIME. Three to four weeks of delay in a pre-permit review can alter project delivery schedules, contractor scheduling, financing, and every other facet of a project. If a new project is to start in July and the new pre-permit review process is not factored in, the real start date is in August, which is maybe not a big deal. However, if a project is to start in October, then this new process can push a project into November, and in Indiana, weather then becomes a factor.

Ø Costs will increase: the new permit process imposes a new filing fee of several hundred to a few thousand dollars depending on the project. These fees should be planned for, but should not be deal-killers. What is implicit with the process is now your design professionals and counsel on a project will be splitting time between the State Emergency Management Agency – the department that governs the State Design Release process – and the Office of Code Enforcement for the pre-permit review. And, if changes are made by one agency, those changes need to be communicated to the other. A State Design Release petition must have a licensed engineer or architect’s certification on it, so any such changes cost not only time, but also money in the form of professional fees. You should fully expect your soft cost budget to increase under this new process.

Ø This new process will not apply to new single family residential development, renovation or rehabilitation of existing structures, or for any other structures that do not qualify under the State’s residential building code, such as equipment storage buildings.

The real impacts, both positive and negative, of the new pre-permit review process will not be known for some time. Increased building safety and the potential for improved insurance ratings are certainly good things, but there will be ‘growing pains’ for this brand new process that will undoubtedly yield unexpected hold-ups in permits and higher invoices from design professionals who deal with these problems. As such, the best legal and practical advice that can be given is “plan accordingly.” Increased costs and delays are bound to occur – the better your project planning at the outset of a project, the more likely you will be to either avoid or absorb these problems during the permit approval process.