The former management board is withholding the homeowners’ association’s records – what can you do?

Who should hand over the records to the homeowners’ association’s new management board?

Records relating to the operation of a homeowners’ association are used to conduct its affairs and ensure proper management of the common property. Duties concerning record-keeping and the retention of technical documentation arise, in particular, under Article 29 of the Act on Ownership of Premises. Under this provision, the management board or the property manager entrusted with management of the common property must maintain, for each common property, non-ledger records, as specified by the association, of the costs of managing the common property, advance payments made towards those costs and other settlements relating to the common property. The management board or property manager must also retain the building’s technical documentation and maintain and update a register of unit owners and their respective shares in the common property.

In the case of a property administrator, the terms of the contract and the provisions governing contracts of mandate, applied as appropriate, are also relevant. Article 740 of the Civil Code requires the mandatary to provide an account and hand over to the principal everything obtained for the principal in performing the mandate.

A change of management board or the termination of cooperation with a property manager or administrator does not deprive the association of its right to take over its records from the former board or manager. The records should be handed over without delay to those authorised to take over the duties. Once their authority has ended, former board members and service providers may no longer use the records to conduct the association’s affairs or retain them or restrict access to them without a legal basis. In other words, the homeowners’ association’s records belong to the association.

Which documents should be handed over to the homeowners’ association’s new management board?

The new management board’s takeover should cover all documents relating to the association’s affairs held by the former board, property manager or administrator. These include, in particular:

• resolutions of the homeowners’ association and voting records, notices and minutes of association meetings,
• records relating to court proceedings, including proceedings concerning challenges to the association’s resolutions and debt recovery by the homeowners’ association,
• financial records, records of costs and advance payments, individual owners’ account records, invoices, bank statements and repair fund accounts,
• contracts, including construction contracts entered into by the association, and contracts with utility providers, insurers and building service providers,
• technical documentation, construction and as-built documentation, inspection reports, repair records and the building logbook,
• court case files, including statements of claim for payment, as well as demand letters, complaints and official correspondence,
• electronic data, email archives, files, schedules and backups relating to the association, in a format that allows their continued use.

The new board must also be able to use the association’s bank account, email and management systems. This does not always mean handing over existing passwords. For personal user accounts, new permissions should be granted and the predecessors’ access revoked.

The handover does not automatically include the administrator’s own copy of its contract, its entire IT system or documents relating to other clients. However, the association should receive its own archive and the data necessary to continue managing the property.

When and how should the records be handed over?

The homeowners’ association’s records should be handed over as soon as possible after the new board takes over its duties. The Act on Ownership of Premises does not establish a single universal deadline, such as seven or fourteen days, for handing over the records. However, the handover should certainly take place without delay so that the new board can begin performing its duties.

The requirement to hand over records without delay was expressly stated in § 7 of the Communication of the Minister of Construction of 6 December 2006 on the agreement of professional standards for property managers (Official Journal, 2007, No. 1, item 3): “1. A property manager must maintain and update the records of the managed property on an ongoing basis. The manager must also collect those records properly and store them with due care. 2. The records must be handed over without delay, and in any event no later than the deadline specified in the property management agreement.” However, the Communication is not a source of generally binding law, and the standards published in it lost their statutory basis on 1 January 2014 following deregulation of the property management profession. The quoted provision should therefore not be presented as an independent legal basis currently in force for demanding the immediate handover of records. It may, however, be used as supplementary guidance reflecting a historical expression of the standard of professional care in property management.

The documents should be handed over under a handover report. This should specify, above all, the date of the report, the details of the person handing over the records (the former board) and the person receiving them (the new board), a list of the documents handed over, the periods covered by the accounts and any files, access credentials, passwords, permissions and similar items. The report should specify whether originals or copies have been delivered, identify any missing items and set a deadline for providing them.

If only some of the records are handed over, they should be accepted and the missing items recorded. A partial handover does not prevent the association from seeking the remaining documents.

Can a property manager retain the association’s documents because of unpaid invoices?

No. A dispute at any stage, whether before or during court proceedings, does not entitle the manager to retain the association’s records. If the manager considers that the homeowners’ association has outstanding liabilities, those claims should be pursued in court using the appropriate legal remedies. Property managers sometimes rely on Article 461 § 1 of the Civil Code, under which a person required to return another person’s property may retain it until their claims for reimbursement of expenditure on that property or compensation for damage caused by it have been satisfied or secured (a right of retention). However, this right concerns specific claims for reimbursement of expenditure on the property or compensation for damage caused by it. It does not automatically secure every disputed or undisputed claim arising from an administration agreement.

The former management board is withholding the homeowners’ association’s records – what steps should you take?

Sometimes, after a change of board, former members refuse to hand over the association’s records without providing any substantive justification. In other cases, they justify their refusal by disputing the validity of the former board’s removal or the appointment of its successors. However, merely disputing the new board’s authority is not a sufficient basis for retaining the association’s records.

The records serve the association’s operations and are not the private property of those who previously managed it. Any dispute concerning the change of board should be resolved through the appropriate procedure. The mere existence of such a dispute does not justify blocking access to documents needed for the day-to-day management of the property.

A practical example from Polish case law:

“(…) the status of the Association and the terms of the management agreement between the parties indicate that the defendants were required to account to the Homeowners’ Association after ceasing to serve on its management board. The fact that they dispute the authority of the current board does not release them from that obligation. All records relating to the Homeowners’ Association, as its property, should have been handed over to the Association following the change in the board’s membership and, in this particular case, to the current board” (judgment of the Court of Appeal in Szczecin, First Civil Division, dated 28 September 2107, case no. I ACa 220/17).

Demand for the handover of the homeowners’ association’s records

If the records have not been handed over voluntarily, the new board, or a lawyer acting on its behalf, should first issue a written demand for their handover. The letter should be sent by registered post with proof of posting and acknowledgement of receipt. The demand should include, among other things:

1. the new board’s authority to represent the homeowners’ association;
2. the basis for the demand;
3. the documents, data and periods covered by the demand;
4. the deadline and method of handover;
5. the person authorised to receive the documents on the association’s behalf;
6. the requirement to identify any missing items in the records.

The deadline should reflect the size of the archive and the urgency of the association’s needs. Documents necessary for current duties may be requested as a priority.

A claim for the handover of records through the civil courts

If the demand is unsuccessful, the association may bring a court claim for the handover of its records. The claim is based on Article 222 § 1 of the Civil Code, under which an owner may require a person in actual possession of the owner’s property to surrender it, unless that person has a right to possess it that is enforceable against the owner. This claim protects ownership, in this case the homeowners’ association’s ownership, and is available to an owner against a person who possesses the owner’s property without a legal title. A claim for recovery of property is objective in nature: for the court to uphold it, it is sufficient to establish in the proceedings that the claimant owns the records and that the defendant has no right to possess them.

The claimant will be the homeowners’ association, represented by its current, newly appointed board. The defendants should be the persons who actually hold the association’s records and are required to hand them over.

The relief sought in a claim for the handover of records should identify the records sufficiently clearly, rather than referring generally to “all of the association’s records”. It may help to specify the period covered by the documents, their type and their connection with the association’s activities. For example, the relief sought may include:

“an order requiring the defendants to hand over to the claimant the documents in their possession which belong to the claimant and were obtained or produced during the defendants’ term as members of the Homeowners’ Association’s management board, namely from 1 January 2025 to 1 January 2026, comprising:

• contracts entered into in the name and on behalf of the Association, together with amendments;
• declarations made in the name and on behalf of the Association;
• powers of attorney for court proceedings and substantive legal matters granted in the name and on behalf of the Association;
• resolutions of unit owners and notices of their adoption;
• written and electronic correspondence with unit owners and third parties concerning the Association’s affairs;
• accounting books, if maintained, non-ledger records and the Association’s accounting and financial documents, including invoices, bills, bank statements and account reconciliations”.

The above list is, of course, illustrative and must be adapted to the particular case. Where possible, individual categories should be specified more precisely by reference to dates, contracting parties, resolution numbers or accounting periods.

A claim for the handover of records based on recovery of property is a pecuniary claim. The statement of claim must therefore specify the value of the subject matter of the dispute, generally corresponding to the market value of the items sought. No separate court fee is prescribed for this type of claim. If the value of the subject matter of the dispute does not exceed PLN 20,000, a fixed fee applies according to the bands set out in Article 13(1) of the Act on Court Costs in Civil Cases. Above PLN 20,000, the fee is 5% of the value of the subject matter of the dispute, capped at PLN 200,000 (Article 13(2) of that Act).

Interim relief and protection of documents against destruction

The new board’s lack of access to the homeowners’ association’s records can undoubtedly jeopardise its day-to-day operations. It is therefore worth considering an application for interim relief alongside the statement of claim. This requires substantiating the claim and a legal interest in obtaining relief: in practice, explaining to the court why waiting for a final judgment could hinder the achievement of the proceedings’ purpose. Naturally, an application for interim relief requires proper preparation and persuasive reasons; courts do not grant it automatically in every case. In many cases, however, it may offer a practical solution, so its appropriateness should be considered.

Demand for the handover of the homeowners’ association’s records

In certain circumstances, failure to hand over records to the association’s new board may also constitute a criminal offence. Criminal liability depends on establishing the conduct of a specific individual and satisfying the elements of an offence. Accordingly, not every delay, disorganised archive or dispute over the scope of the handover constitutes an offence.

In cases involving association records, article 284 § 2 of the Criminal Code may be particularly relevant. It criminalises the misappropriation of entrusted movable property, meaning treating it as one’s own with the intention of depriving the entitled person of their rights.

Entrustment means transferring control over property subject to an obligation to return it later or hand it over to an entitled entity. For association records, this concerns documents entrusted to the former board, property manager or administrator in connection with their duties. Receiving and retaining those documents is initially lawful; criminal liability may arise if the person subsequently treats the documents as their own property.

To determine whether the former board has misappropriated the records, it is therefore insufficient merely to establish that they have not been handed over to the new board. It is necessary to prove an intention to misappropriate, meaning an intention permanently to deprive the association of control over the entrusted items and treat them as the offender’s own. Refusal to return them may be evidence of that intention, but must be assessed in the context of all the circumstances.

Criminal liability may also arise under article 276 of the Criminal Code, which prohibits, among other things, destroying, damaging or concealing documents which a person has no right to dispose of independently. A former board member, property manager or administrator cannot therefore decide freely what happens to the association’s records merely because they possess them.

A refusal to hand over documents does not, in itself, automatically constitute a criminal offence. Keeping documents and refusing to surrender them is not the same as concealing them. Concealment may be indicated, for example, by deliberately withholding the location of the records from the new board, possibly combined with a false claim that the former manager does not possess them at all. A criminal complaint should therefore describe specific facts, such as moving the archive to an undisclosed location, denying possession, destroying documents or taking steps that make them inaccessible. Merely stating that “the board has not returned the documents” may be insufficient to establish criminal liability. Each set of facts should therefore be analysed in detail.

A practical example from Polish case law:

“In the Supreme Court’s view, even a linguistic interpretation reveals no grounds for understanding the word ‘conceal’ in any sense other than its ordinary meaning. In ordinary usage, ‘conceal’ means to place something in a location that is out of sight, covered or safe, or to hide something from someone (M. Szymczak (ed.), Słownik języka polskiego, Warsaw 1981, vol. III, p. 592; B. Dunaj (ed.), Słownik współczesnego języka polskiego, Warsaw 1996, p. 1174). The offence of concealing a document which the offender has no exclusive right to dispose of therefore involves taking steps that result in the document being placed in a location known to the offender but unknown to persons entitled, even non-exclusively, to dispose of it (keeping its storage location secret)” (decision of the Supreme Court of 21 August 2012, case no. III KK 403/11).

Compensation for failure to hand over records to the homeowners’ association

In addition to seeking the handover of documents, the homeowners’ association may claim compensation for damage caused by their unlawful retention. Lack of ongoing access to contracts, accounts or technical documentation can clearly cause specific financial losses to the association. Furthermore, the subsequent return of the documents does not prevent the association from seeking reimbursement of costs it previously incurred because they were withheld.

Financial losses may include, in particular, reasonable costs of:

• reconstructing all or part of the records, such as financial accounts, records of owners’ payments or schedules of the association’s liabilities,
• obtaining duplicates and copies of documents from banks, contractors, public authorities or other entities,
• additional accounting or legal services necessary to establish information contained in documents that have not been handed over,
• reconstructing technical documentation where necessary for proper maintenance of the building or the performance of required works.

For example, if the former board has not handed over the accounting records and the association has had to commission their reconstruction from bank statements and invoices, the cost of that additional work may constitute a loss suffered by the association. In any subsequent proceedings, however, it must be shown that the expenditure was necessary, its amount reasonable and the need to incur it arose specifically from the missing records.

Where the former board fails to hand over records, evidence should therefore be collected from the outset: demands for handover with proof of delivery, reports identifying missing records and correspondence. The costs of reconstruction should be documented through contracts, invoices and descriptions of the work performed. Evidence showing which documents were missing and why the association could not avoid the expenditure without them will also be relevant.

Refusal to hand over records does not entitle the homeowners’ association to claim an arbitrary amount of compensation. The compensation claimed must always correspond to proven loss that bears a normal causal connection to the conduct of the person who withheld the records. Nor can all former board members automatically be held liable. For each individual, it is necessary to establish the basis of liability, the scope of their duties and the conduct that contributed to the loss.

If the obligation to hand over records arises from a contract with a property manager or administrator, the association’s claim may be based on Article 471 of the Civil Code. This provision concerns failure to perform or improper performance of a contractual obligation. In the proceedings, the association should seek to establish that the obligation existed, that it was breached, that loss arose and that there was a causal connection between the failure to hand over the documents and the resulting loss.

In appropriate circumstances, the homeowners’ association may also seek compensation under Article 415 of the Civil Code, which governs liability for damage caused by a culpable and unlawful act or omission.