Inspection of CoE records sometimes means issue

Several court decisions have ruled that the right to inspect the records of the CoE does not necessarily mean a right to issue copies. However, this does not automatically mean that the right to issue copies does not exist anyway. While the court decisions in which this has been ruled are correct, they did not formulate a general rule of law. This means that these rulings cannot simply be applied to all cases in which an owner wishes to inspect the administration of the association. Lawyer Robert van Ewijk explains why he believes the right to issue copies or scans does exist.

Case law on inspection of association records

Case law is casuistic. That means that a judgment arrived at based on the specific facts of a case. The facts are different in every case. This fact means that a court ruling in one case, cannot always be applied one-to-one in another case. Admittedly, the Supreme Court often do include general rules of law, but that does not mean that a court opinion always implies a rule of law. Indeed, most often this is precisely not the case. Yet in practice, it is often assumed that case law would have generally determined that the right of inspection does not imply a right to copies. In my opinion, this is far too short of the mark.

What has been stipulated in rulings on inspection rights CoE?

It has not been decided at all that the right of inspection does not exist. In the case before the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2014:1485) and which is often cited in inspection discussions, was the peculiarity that copies were claimed even though inspection had already been offered. That was the decisive circumstance under which the Court of Appeal rejected the claim for disclosure:

“3.4.4. Neither has it been stated nor shown that the board of the VVE is unwilling to provide [appellant] with information about and access to the final quotation from Gas Service and the updated list of members with the names and addresses of the other apartment owners within the meaning of Section 41 (6) Model Regulations 1983 (as explained above). This cannot be inferred from the VVE board's refusal to give [appellant] a copy of those documents. It is undisputed that the board of VVE offered [appellant] the opportunity to inspect the documents, but that she did not wish to avail herself of that opportunity for reasons of her own.”

If that situation does not arise, there is a chance that the parallel is lame.

Board VvE can provide inspection in several ways

Indeed, providing inspection by making an appointment at the offices of the CoE is one of the ways in which the Board of the CoE can fulfill its obligation to provide inspection. Because that obligation had already been met in the Amsterdam case, the claim for issuing copies was dismissed. However, this does not mean that there is never a right to issue copies or scans.

To date, no judge has ruled that there is never a right to issue

Nor am I aware of any rulings that have ruled that giving inspection at the office of the CoE, is all that can be required of the board. Rather, the opposite is true. For example, the Noord-Holland District Court ruled that inspection can also be provided, by making the documents of the administration available digitally (ECLI:NL:RBNHO:2017:3136). And the District Court of Gelderland ruled that under circumstances the board of the VvE acts contrary to reasonableness and fairness if (copies of) certain documents to which the right of inspection relates are not issued to the VvE member who requests them (ECLI:NL:RBGEL:2017:3530). Similarly, the Court of Appeal of ’s-Hertogenbosch (ECLI:NL:GHSHE:2018:2005).

There are several ways to comply with the right of inspection

The board of the CoE can comply with the right of inspection in different ways. Exactly what an owner may demand from the board depends on the circumstances of the case. If there are many thick files full of documents that are not also digital, then it seems reasonable if inspection is only offered physically. However, if the owner requests a small number of very specific documents, then it may already be more reasonable to require a scan or copy of them. No physical visit then needs to be made. And if the board or administrator is keeping the records digitally anyway, then it may even be soon onbe reasonable to require an owner to come to the office of the CoE (manager) to exercise his right of inspection.

VvE Lawyer: sometimes release documents from administration of VvE

In short: what you can demand of the VvE under the given circumstances, and what you as VvE are obliged to do, depends on all the circumstances of the case. Both the owner and the VvE will have to be reasonable towards each other. Would you like advice on how far you as a VvE (director or administrator) should go within the framework of the right of inspection? Or would you, as owner, like to know whether the VvE is properly fulfilling its obligations in the specific case? Then contact contact with Lexys' VvE attorney.