Are membership lists public?

Q: Our HOA has never made public the names and addresses for its members. Are we bound by North Carolina law to make this information available to all members of the HOA? There is nothing in our covenants or bylaws that addresses this issue, and we have a member who is requesting the membership roster.

We (the board of directors) are not sure if we should make this information available. Does anything address email or phone number publication as well?

A:  This is a good follow-up question to my last column, which discussed homeowners’ right of access to the HOA’s financial records under North Carolina law.

The Planned Community Act and Condominium Act do not specifically address members’ right of access to the membership roster.

For that, we have to look to the North Carolina Nonprofit Corporations Act, since most HOAs are organized as nonprofit corporations. Section 55A-16-02 of that law says “a member may inspect and copy (certain records, including the membership list) only if:

1. “The member’s demand is made in good faith and for a proper purpose;

2. The member describes with reasonable particularity the purpose and the records the member desires to inspect; and

3. The records are directly connected with this purpose.”

The law imposes additional requirements specifically on members’ right of access to the membership roster (which must only include members’ names and addresses – not email addresses or phone numbers). 55A-16-05 reads “a membership list or any part thereof shall not be:

1. “Used to solicit money or property unless such money or property will be used solely to solicit the votes of the members in an election to be held by the corporation;

2. Used for any commercial purpose; or

3. Sold to or purchased by any person.”

It would be wise to require anyone requesting the membership list to put the reason for the request and how they intend to use the information in writing.

The strict restrictions on members’ right of access to the membership list is important in this age of widespread identity theft and citizens’ increasing concern over privacy and unauthorized access to their personal information.

Law for older HOAs?

Q: Your columns often mention the Planned Community Act, which applies to HOAs formed in 1999 or later. What are the requirements for HOAs in communities developed prior to 1999?

The North Carolina Planned Community Act (the “PCA”) applies to planned communities (generally, single-family subdivisions and townhomes) created in 1999 or later.

However, some of the provisions of the PCA are “retroactive” and apply to planned communities regardless of when they were formed.

The second statute in the PCA (47F-1-102(c)) has a list of which provisions are retroactive (found here: http://bit.ly/142zQwx).

The provisions dealing with assessments and the collection process, as well as those dealing with violations of the community’s restrictive covenants, bylaws, or rules and regulations, are among the ones that HOA boards deal with most frequently. Fortunately, those are some of the provisions that apply to pre-1999 communities.

If yours is a pre-1999 community, and you have an issue that is not covered by the retroactive provisions of the PCA, you should be guided by your community’s governing documents (Declaration of CCRs, bylaws and rules/regulations), and general principles of common law.

If you are not sure what document or law applies to your situation, or how it applies, seek out a lawyer familiar with HOA or real estate law.

Originally published in the Charlotte Observer on June 22, 2013.

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