March 11th, 2010
QUESTION: Can you please direct me to a Resource so that I can find the original author of ARS 33-1804, the Arizona HOA Open Meeting Statute
ANSWER: Begin your inquiry with www.chore.us. The owner of CHORE was involved in that legislation. If that doesn’t work I’d tell you to contact the Arizona Senate and ask them how you can find that information. I wrote a detailed article about Arizona’s HOA Open Meeting Laws for the Arizona Republic. The question was from a director seeking advise on how to hold HOA meetings. I responded by writing:
“ANSWER: First look to the statute. A.R.S. 33-1804 provides that all members can attend and speak at an appropriate time during meetings. The appropriate time is not exactly spelled out in the statute but must take place sometime before the board takes formal action (i.e. votes on issues). While the board may place time limits on persons speaking at the meeting, those time limits must be reasonable. A reasonable time limit would be enough time to take comments but short enough to ensure that all of the items on the agenda are covered.
“Generally, the following procedure helps to make membership meetings effective: one, an issue is presented to the board for consideration, two, comments from the membership are taken and considered, and three, the board deliberates and then votes. The process is repeated for each additional issue.
“Failure of boards and homeowners to follow the law may result in a court ordered do over; so it is important to get it right the first time. In some Arizona HOAs, the issues are so hotly contested that it may make sense to have a police officer in attendance to keep the peace.
Tags: Arizona HOA Open Meeting Law, Arizona Open Meeting Laws
Posted in HOA Enforcement, HOA Homeowner Rights, Questions & Answers | No Comments »
March 11th, 2010
QUESTION: Our HOA is currently voting on a change to the CC&R’s. The CC&R’s state that to accomplish this change a majority (50% plus 1) of the owners of the lots must approve the change. There are some delinquent homeowners who have not paid their current dues. Should the HOA subtract the number of ineligble voters from the voting requirements?
ANSWER: The CC&Rs [Declaration of Covenants, Conditions and Restrictions constitutes a contract with the Arizona HOA and homeowner. This means that the provisions in the “contract” should be interpreted pursuant to their express language. The express language of the amendment provisions may determine who can and should vote. If the CC&Rs provide that an amendment requires more than 50% vote of the members, then all of the members should be allowed to vote. This is because the contract expressly requires all members’ votes and does not distinguish between the delinquent and good-standing members. For example, XYZ HOA has 100 members. 30 are delinquent. XYZ HOA would still need to obtain 51 votes for an amendment.
Conversly, other amendment provisions in other Arizona HOAs may require that an amendment to the CC&Rs may be made upon receipt of more than 50% vote of “eligible” members. So, for example, XYZ HOA has 30 delinquent members, so it needs 51% of 70 members, or 36 votes.
Caveat- this particular issue about amendment language has not been interpreted by the higher courts so it is subject to differing opinions among Arizona HOA lawyers. However, most of the lawyers that I have spoken with agree with the analysis above.
Tags: CC&R amendments
Posted in HOA CC&Rs and Rules, Questions & Answers | No Comments »
March 7th, 2010
QUESTION: “Must the Arizona HOAs contact owners instead of the renters?”
ANSWER: Generally, community documents require that owners, not renters, be contacted by the Arizona HOA for any alleged/perceived violations. This is because it is the owner of the property, not the renter, who must…
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Tags: HOA Enforcement, Tenants
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March 6th, 2010
QUESTION: 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.
Tags: HOA Enforcement, HOA Liens
Posted in Ask the Experts, HOA Collections, HOA Enforcement, HOA Homeowner Rights | No Comments »
March 5th, 2010
QUESTION: 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 …
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Tags: CC&R Enforcement, CC&R Rules, HOA Enforcement
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March 4th, 2010
QUESTION: 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…
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Tags: HOA Enforcement, HOA water bill
Posted in Ask the Experts, HOA Enforcement | No Comments »
March 3rd, 2010
QUESTION: 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…
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Tags: dogs, HOA rules
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February 27th, 2010
QUESTION: 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…
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Tags: HOA home editions
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February 26th, 2010
QUESTION: 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…
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Absent other facts and circumstances, it appears the HOA is acting reasonably because they are complying with the statute.
Tags: hoa parking, parking
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February 25th, 2010
QUESTION: 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…
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Tags: hoa vote allocation, voting
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