April 30th, 2010
QUESTION: If the majority of homeowners are not in favor of a declarant board’s decision to build a facility and charge the homeowners an assessment, can those not in favor refuse to pay the special assessment?
ANSWER: This question depends on what the CC&Rs say about the developer’s development rights, obligations and exemptions. It may also hinge on what the CC&Rs say about special assessments. Absent other facts and circumstances, and assuming the CC&Rs grant the declarant the unilateral power to impose special assessments, the conclusion could be reached that all homeowners are required to pay the special assessments or face steep consequences such as collection actions.
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April 29th, 2010
QUESTION: Can declarant boards of a community ignore the will of the majority? Is this decision against equal treatment for all homeowners?
ANSWER: Declarant appointed boards may be able to direct the development of the community without homeowner input if the respective CC&Rs authorize it. However, regardless of what a declarant board decides to do, it should be reasonable as a declarant board owes certain duties to the non-profit corporation, one of which is to act reasonably and in good-faith.
Reasonableness is subjective and analyized on a case by case basis.
Equal treatment issues exist when a board refuses to enforce a violation against one member but enforces the same violation against another member.
Tags: declarant board, declarant duties Posted in Questions & Answers | No Comments »
April 29th, 2010
What can associations do when the banks refuse to foreclose?
1) Purchase tax liens if it makes sense. Attorneys should provide specific guidance to any association considering this outside-the-box approach.
2) Execute a ”deed in lieu of foreclosure” with the delinquent owner in exchange for an agreement not to sue him/her or the unpaid balance. Then, put a renter into the property until the bank forecloses. The association is not obligated to pay the mortgage so it could pocket all of the rent until the bank finally takes title to the property. Contact a qualified attorney to help you draft the lease agreement. Some associations don’t want to be in the rental business so those associations may want to consider retaining a management company that specialize in not only filling units with renters but maintaining those units so that they are clean and neat. I strongly encourage anyone considering this option to consult with an attorney about whether this approach would solve their specific needs.
CAVEAT-some scholars may argue that associations risk losing their non-profit corporation status by renting homes out in this manner. Others disagree. The higher courts have not decided this issue yet so there is some depate on this topic.
3) If the homeowner is willing to make payments to the association under a settlement agreement, memorialize that in a second deed of trust. That way, if he/she defaults, associations don’t need to go through the time and cost of a judicial foreclosure to get title to the property but can do so through a trustee sale (usually takes about 90 days). An added advantage of this outside-the-box approach is that some banks may choose to initiate their own trustee sale when they see the association’s notice. If the bank still won’t act, associations may choose to follow the rental suggestion outlined above.
Admittedly, these are not the standard collection strategies. However, legal support does exist to show these as potential solutions.
Tags: HOA Collections Posted in Questions & Answers | No Comments »
April 28th, 2010
An “action in lieu” is generally defined as a decision or specific action taken by a board without a meeting. Bylaws may allow directors to act in lieu of a meeting but caution should be taken to ensure that any action taken outside of a meeting complies with all relevant laws as set forth in the Planned Community Act or Condominium Act or Non-profit Corporation Act.
Actions in lieu apply to decision made by a board outside of a meeting, not necessarily the actions of the attorney as authorized by the board.
Tags: association action in lieu, board decisions without meeting, condominum board action in lieu, hoa action in lieu Posted in Ask the Experts, Questions & Answers | 1 Comment »
April 28th, 2010
Recorded Declarations of Covenants, Conditions and Restrictions (CC&Rs) are “deed restrictions” or “servitudes” and run with the land. They place contractual obligations upon each owner of every lot in the Association. The parking provisions in CC&Rs are generally not impacted by the civil City Codes not applicable to private developments. Because CC&Rs constitute a contract, they are enforced pursuant to their express language. That is, the intentions of the parties will be determined by what the CC&Rs say.
Some CC&Rs prohibit inoperative vehicles from being parked on any lot. Lots are generally defined as the entire real property owned by each respective owner as illustrated on the final plat. The way these kinds of CC&Rs read, no homeowner can park or store any inoperable vehicle of any kind anywhere on their property…front yard, back yard, side yard.
Some CC&Rs may say that no vehicles can be parked in or on the front yard other than designated driveways. In this example, vehicles can only be parked on designated driveways. The board is the one that determines what area is “designated.” Moreover, the intent and meaning of CC&Rs typically would prohibit parking of vehicles on front yards.
Associations are entitled to judicial recourse to ensure that members comply with the CC&Rs. In fact, Associations have a “duty” to reasonably enforce the CC&Rs in order to preserve the character of the community.
Tags: arizona hoa parking, HOA parking enforcement, hoa parking rules Posted in Questions & Answers | No Comments »
April 28th, 2010
Everyone is talking about Arizona’s new immigration law. “Shameful” writes E.J. Dionne of The Washington Post. “Misguided” declares President Obama. Others applaud the new law. Bryon York of The Washington Examiner writes Arizona’s immigration law is “a reasonable, limited, carefully-crafted measure designed to help law enforcement deal with a serious problem in Arizona.”
I wonder if Senator Russell Pearce knew his immigration reform ideas would cause such a commotion. I won’t tell you what I think about this new law, but I will write about its impact on Arizona Condominiums and Arizona Planned Communities (HOAs). I was asked whether an Association could get into trouble under the new immigration laws if it lets known illegal aliens live in its community. I was also asked whether the Association Board of Directors have to tell federal or state law enforcement agencies that it has illegal aliens. I don’t think so.
Arizona’s new immigration law requires law enforcement, not Condominiums or Arizona Homeowners Associations, to investigate whether a suspect is in the country illegally. It does not impose an affirmative duty on Association’s to report these folks.
Arizona’s new immigration laws do not apply to Homeowners Associations but the law may cause local law enforcement agencies to enforce other laws that do. For some years now, it has been a crime to employ illegal aliens in Arizona. Associations that employ illegal aliens may find that this new law will make them think twice. If you are an association hiring illegal aliens, stop. If enforcement is heightened, you may face hefty fines under the current employment laws. But, aside from the “legal” problems, practically speaking, it is never a good idea for Associations to employ unlicensed and unbonded vendors to work in your community.
Posted in HOA Enforcement | No Comments »
April 24th, 2010
Congratulations! Being elected to serve on an HOA Board can be a great opportunity! At the same time, however, it can be a nightmare if board members fail to take their position seriously enough to effectively prepare and properly execute their duties. The key to any successful homeowners association is a strong and committed board of directors, made up of members that understand their role and pursue it with passion. Effective directors are not only intimately familiar with their community’s needs, but they know the association’s history and what must be accomplished to ensure its future well-being.
This article addresses some things folks can do to make sure the time as a director is meaningful and enjoyable.
As a newly elected director, the first thing one should understand is that running a homeowners association is tough work and will require a substantial amount of time. Be prepared to spend hundreds of hours reviewing records, attending meetings and listening to homeowner complaints. Still, directors also need to know that, while they will find that being a director is demanding, they’ll soon find out that few things in life can bring satisfaction like that satisfaction directors will feel when hundreds or thousands of homeowners brag to their neighbors about how wonderful their association is. When directors hear all these positive comments, they will know it is because of their efforts that homeowners feel the way they do. So, that is any director’s primary goal … to make their association one that neighbors will brag about.
It is extremely important that directors know what the purpose of an association is and how it should be run. An association acts through its officers and agents. While the board of directors makes the policies for the association, the officers and agents carry out these policies. Some of the officers’ duties are clerical, while other officers’ duties include carrying out substantive functions. Each and every director and officer has an affirmative obligation to act in good faith. They cannot make decision based on personal biases. Nor should they implement self-serving policies or rules.
The first thing anyone notices when they enter a community is the landscaping. It should come as no surprise then that the fastest way to make a community happy is to keep the common areas looking sharp and attractive. In fact, the primary role of a board of directors is to maintain the common area. Keeping the parks clean and the roads well maintained will boost the community’s trust in the board and its efforts. A caveat … one of the fastest ways that a board can lose the community’s confidence is to spend too much to maintain the common areas. For large jobs, it is always best to get three bids. That way, boards can be satisfied—and the community can be confident as well—that the association is not paying too much.
Next, make sure association financial records are in order and that it can account for every penny spent. Hire an independent CPA to conduct a review, compilation or audit. Believe me when I say that thousands of the lawsuits in this country are brought because a homeowner thinks that their association’s directors or managers have stolen money. Not only that, but some studies show that a lot of embezzlement cases come from homeowners associations. If directors see that their association’s records are out of order, it and the rest of the board need to take action right away to straighten them out. Associations will save hundreds of hours and dollars if they clean up the mess now rather than later. Waiting may mean that the association’s problems will snowball out of control until, one day, it finds itself in court.
Posted in HOA Board of Director Resources | 1 Comment »
April 23rd, 2010
Yes they can but it is up to the board. Here is what Arizona’s Open Meeting Laws say:
33-1804. Open meetings; exceptions
A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the association and board of directors are open to all members of the association or any person designated by a member in writing as the member’s representative and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member’s designated representative to speak before the board takes formal action on an item under discussion in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Any portion of a meeting may [NOT MUST] be closed only if that closed portion of the meeting is limited to consideration of one or more of the following:
1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.
2. Pending or contemplated litigation.
3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.
4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.
Posted in Ask the Experts, HOA Board of Director Resources, HOA Homeowner Rights | No Comments »
April 22nd, 2010
HB2345 amends both the Condominium Act’s and the Planned Community Act’s provisions about for sale signs, for lease signs, open houses and open house signs. Under the new bill, it won’t matter what the community association’s documents say, associations cannot stop its owners from displaying indoor or outdoor for sale signs and sign riders on that member’s property. Of course, homeowners cannot put a billboard on their yard as the size of the for sale sign must be in conformance with the industry standard size sign (can’t exceed 18 x 24 inches) and industry size rider (6 x 24 inches). It also says an association cannot prohibit or regulate 1) temporary open house signs, 2) open house hours between 8am and 6pm, 3) for lease signs in communities that allow leasing.
Many folks now wonder if HB2345 will require associations to open their private grounds to the general public that want to attend the open houses. Some scholars argue that the bill does not require open access to the general public when the community’s documents would not permit the attendees entry. Others argue that this view may be too narrow minded because it would mean that the purpose of this new law would be defeated and circumvented if associations could deny people entry into the community to attend open houses. They would argue that there is no good in an open house if only a limited number (if any) are permitted to attend. We believe that these two opposing views can be solved by a middle-line approach. Obviously, associations should have the right to protect their community by prohibiting overcrowding. By imposing reasonable limitations on how many people can attend, the community may maintain order while allowing the homeowner to conduct his/her open house. See the entire bill by clicking here.
HB2768 deals with transfer fees. More discussion on this to follow in the coming days. See the entire bill by clicking here.
Tags: Arizona HOA laws, House Bills, New HOA laws Posted in Ask the Experts, HOA Board of Director Resources, HOA CC&Rs and Rules | No Comments »
April 22nd, 2010
Most Declarations of Covenants, Conditions and Restrictions (CC&Rs) have a “non-waiver provision.” Under Arizona law, non-waiver provisions are enforceable, meaning that a homeowner cannot argue that the association waived its right to enforce a violation in the CC&Rs simply because a past board, or declarant, failed to enforce the CCC&Rs.
The question one must ask is whether enforcement is reasonable. Several factors will help to decide whether enforcement is reasonable. They are impact, visibility and uniqueness. Parking is a very visible activity that may actually, if excessive, constitute a health and safety risk. In some associations, the streets are so narrow that, if lined on both sides with cars, may impact the ability of emergency responders to quickly reach an emergency like a fire.
Communities may find great benefit in holding a town hall style meeting with the members when enforcement is a hot topic. Seeking guidance and input from the membership may help everyone know the directors truly care about what everyone has to say about the community. Obviously, there will be those who will voice their opinions either way. After considering all of the viewpoints, boards may then be in a better position to make a decision. Decision aren’t necessarily whether the ability to enforce the parking provision are waived but whether enforcement can now be justified as “reasonable.”
Tags: HOA Enforcement, HOA parking enforcement, waiver Posted in HOA Enforcement, Questions & Answers | No Comments »
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