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Arizona Homowners Associations must follow these steps or risk losing their ability to enforce the violation against the offending homeowner.
Hoop One-send out a letter to the homeowner informing him/her what the violation is and when it must be cured. This is called a “Notice of Violation.“ The law says that only after Notice can you issue fines. Make sure your Notice of Violation contains the following information: 1) the provision of the community documents violated, 2) the date of the violation or the date the violation was observed, 3) the first and last name of the person or persons who observe the violation, 4) the process the member must follow to contest the notice. And make sure you give the homeowner plenty of time to cure the violation. You want to be reasonable in this process and not appear over-aggressive.
Hoop Two-if the violation is not corrected within the time to cure set forth in the Notice of Violation and the homeowner has not contested the Notice of Violation, impose only reasonable monetary penalties. What is reasonable in an HOA with multi-million dollar homes may be much higher than the same violation in an Arizona HOA with smaller homes. Make sure the fine fit’s the violation. Don’t impose a large fine for the first violation unless the violation is a serious impediment to the rest of the community.
Hoop three-require that the homeowner be accountable to that fine. Arizona HOA law says that fines do not constitute a lien until a judgment is obtained. In other words, the fine doesn’t have much legal significance until reduced to judgment. If the homeowner does not correct the violation and refuses to pay the fines, the board of directors, may consider obtaining a judgment against the offending homeowner. True, it will cost some money in attorneys’ fees to do so but you can ask the court to order the homeowner to reimburse you all of your attorneys’ fees if you win.
Hoop four-follow the same process for everyone in the community and be consistent. Failing to follow these steps or failing to ensure that homeowners bring their properties into compliance through court order may result in the association being sued. That is, the association should enforce the CC&Rs or run the risk of being sued by a complaining homeowner or homeowners for breach of contract because it did not enforce the CC&Rs against violators. The law is the way it is because people move into HOAs because they don’t want to have to worry about their neighbor’s yard looking atrocious and because they want to have peace of mind knowing that their assessments are going to holding everyone to the same standards.
