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HOA Institute BlogWho should the HOA send violation notices to? Homeowner or Tenant?March 7th, 2010QUESTION: “Must the HOAs contact owners instead of the renters?” ANSWER: Generally, community documents require that owners, not renters, be contacted by the HOA for any alleged/perceived violations. This is because it is the owner of the property, not the renter, who must… Read the rest of the answer by clicking here. Can the HOA place a lien on my house?March 6th, 2010QUESTION: Can the HOA put a lien on my house? ANSWER: Yes, but there are rules the HOA must follow. The idea of an association being able to place a lien on your real property is frightening to many homeowners. However, homeowners do not realize that according to the Declaration of Covenants, Conditions and Restrictions (the “CC&Rs”) of many associations, a lien is automatically placed on your home January 1 of each year. This lien is for the annual, bi-annual, quarterly, monthly, or periodic assessments that each member of the association must pay to the association for upkeep, maintenance and community functions. The association agrees not to record a separate lien or foreclose on the lien if the homeowner will pay their assessments timely. If a member timely pays their assessments, the association will not record its lien. In short, most associations already have a lien on your home. Although the association has a lien for the amount of annual assessments, the association does not have an automatic lien for the fines or the fees it imposes in connection with violations. Under Arizona law, an association may only place a lien on your property for fines or fees associated with violations of the CC&Rs if it has obtained a judgment in a court of law against the homeowner for those violations. The Superior Court must sanction any Justice Court judgment before the Justice Court judgment becomes a lien. Thus, if a homeowner fails to maintain his yard, the association must notify the homeowner of the violation, give the homeowner a chance to contest the violation, sue the homeowner for the unresolved violation, and win the lawsuit on its merits before the association can place a lien on that home for the CC&R violation. Therefore, a homeowner do not need to worry about the association placing a lien on their property if the owner pays their regular assessments and abides the provisions of the CC&Rs. Can HOAs force homeowners to do something that is not in the CC&Rs?March 5th, 2010QUESTION: Can an HOA force a homeowner to do something that is not in the CC&Rs?? ANSWER: The Declaration of Covenants, Conditions and Restrictions (“CC&Rs”) constitutes a contract between the association and its homeowners. Thus, homeowners are typically contractually obligated to comply with express provisions of the CC&Rs so long as it does not violate the law or is no longer enforceable. HOAs may impose reasonable rules on members when impliedly authorized by the CC&Rs. For example, CC&Rs in the ABC HOA grants it a general power to promulgate rules to preserve the aesthetic beauty of the community. Under these facts and circumstances, ABC HOA … Read the rest of the Answer by clicking here. Can an HOA turn off the water for non-payment of fees or fines?March 4th, 2010QUESTION: Can the HOA cut off water for non-payment of fees or fines (we do not have individual water bills)? ANSWER: Some older Condominium projects were apartment conversions, also some townhome developments were built with a common water supply to all of the units. In both cases HOA fees may be used to pay the water bills. Depending on the utility that supplies the water, there may rules or regulations concerning discontinuing water service which may prevent the water from being turned off. But, it is possible that… Read the rest of the answer by clicking here. HOA dog parks, liability and waiversMarch 3rd, 2010QUESTION: With regard to dog parks… If the HOA posted self liability signs , had dog owners sign waivers, etc. similar to the warning or info signs that cities put on the entrances to dog parks, would that change the liability environment as far as the HOA was concerned? I would guess that in the event a lawsuit was filed it would be between the parties injured, the HOA could be named but would the HOA actually have to defend itself? ANSWER: The HOA may still have to defend itself. Those types of warning signs, assumption of the risks and waiver agreements may be set aside if the Plaintiff can show the HOA was negligent. True, these types of signs/agreements may increase the chances of getting an HOA dismissed from a case but just because it gets a waiver or because the homeowner assumes the risk does not mean… Read the rest of the answer by clicking here. Must I comply with the Association’s rules when adding onto my home?February 27th, 2010QUESTION: We want to construct a new 6’ high block fence. Our CC&R’s state that fence height shall not exceed 4’. However there are existing fences that are higher than 4’. I have to submit a sketch with the proposed fence location and height. If my plan for the 6’ fence is rejected could I pursue the issue of existing 4’ plus fences or am I at the mercy of the board of directors? ANSWER: This is a complicated question without a simple answer. The mere fact that there are fences in the subdivision that do not conform to the existing requirements of the CC&Rs does not mean that you automatically can ignore the restrictions. It may be that the HOA has waived its right to enforce the height restriction, but there are many additional factors to consider, such as whether or not the Board has granted variances from the requirement in the past or merely allowed the fences to be constructed. I would suggest… Read the rest of the answer by clicking here Can associations restrict parking of police/fire?February 26th, 2010QUESTION: HOA’s say that you can not park your car on a city owned street, but they allow emergency vehicles to park on the street at there home address. Is this fair treatment or does it fall under not being fair according to Arizona? ANSWER: The Arizona Condominium Act and the Planned Community Act both… Read the rest of this Q&A by clicking here. Absent other facts and circumstances, it appears the HOA is acting reasonably because they are complying with the statute. Can our association give more votes to those that own larger units/homes?February 25th, 2010QUESTION: Our By-Laws state in all matters requiring a vote of the Owners that voting shall be on a percentage basis and the percentage of the vote to which each owner is entitled is the same as the percentage interest in the common elements which is appurtenant to such unit. The units vary from 870 to 2130 sq. ft. Is this legal? ANSWER: For condominiums, ARS 33-1217 provides that “The declaration (i.e. CC&Rs) shall allocate…a portion of the votes in the association, to each unit and state the formulas used to establish those allocations.” It goes on to say that “the declaration may provide: That different allocations of votes shall be made to the units on particular matters specified in the declaration.” The planned community act doesn’t give any guidance on this issue. Moreover, most associations are non-profit corporations. The non-profit corporation act, ARS 10-3721 provides that “Unless the articles of incorporation or bylaws provide otherwise, each member is entitled to one vote on each matter voted on by the members.” Thus we see that the Declaration, bylaws or articles may specify allocation of votes. According the the Restatement of Property, a treatise the Court often refers to, votes may be allocated on a different basis by statute or by the declaration. Unless variations from the one-unit one vote rule are imposed by statute (which they may be in Arizona pursuant to the Condominium Act and Non-profit Corp Act) they must… To read the rest of this article click here. Should our association hire experts to help the Design/Architectural Review Committee review/approve applications?February 25th, 2010QUESTION: Our CC&Rs state that the Design Review committee may hire architects and engineers, as necessary, to assist them in the performance of their duties. In this context, what does “as necessary” mean. Our community is already built out and when a homeowner has a major project they hire their own architects. The Design Review Committee is asking for a full time architect at every meeting at $80 hr. Does this fit the definition of “as necessary”? ANSWER: It appears that this provision is meant to allow the DRC to retain expert opinion to either confirm that an application is structurally sound and will not present any unforseen problems that may not be anticipated by the layman. The provision appears to be reasonable and I would not have a problem advising a DRC to retain an expert to verify that the plans submitted 1) are what they say they are, 2) do what they say they will do. The expert may also be able to advise the DRC when more information is necessary and what that information should be. Now, whether the Association should hire a full-time expert is another question. If… Read the rest of this article by clicking here. Does the Condominium Act now govern all older CondominiumsFebruary 24th, 2010QUESTION: If an association was under the horizontal regime act and they file a law suit in 2009 using that legalities in their old documents but not he Condo law which law is in control now? Should the CC&R’s be revised to match the Condo Laws? ANSWER: The law changed. Now, all condominiums, regardless of when they were created, must comply with the Condominium Act. ARS 33-1201. It may make sense to contact a licensed attorney to determine whether your community should amend its documents so it can avoid confusion in the future. |
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