So, this is really a question about an owner’s rights under the Federal Fair Housing Act and other similar Arizona statutes. These laws give rights to certain protected classes of owners, tenants and occupants of real property. Disabled persons are indeed such a protected class under the act. It only makes sense that a certain HOA restriction or rule shouldn’t keep a disabled owner from enjoying her property.

Rules and restrictions need to be enforced uniformly, but if a disabled homeowner needs to build a wheelchair ramp on her property to access her front door, it makes sense that the HOA shouldn’t be able to enforce an architectural guideline that normally prohibits ramps. Aggressive enforcement of the “no ramps” policy would effectively deny this homeowner access to her own property. Access and enjoyment are two of the oldest and most fundamental rights enjoyed by those who own real property. A board’s “no ramps, no matter what” position would put a board at risk for a fair housing complaint or ultimately a lawsuit.

The fair housing laws allow a homeowner to make a request for “reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford [the handicapped] equal opportunity to use and enjoy a dwelling.” Using the ramp example, the homeowner can ask that the HOA ignore its “no ramp” rule to allow for its installation so she can fully use and enjoy her property. Again, that seems straightforward and reasonable. When homeowners and associations disagree about the reasonableness issue, finding common ground can be a challenge and association’s are at greater risk for a complaint in these gray areas.

In this instance, the question really is if the committee or board is the homeowner’s request for an extra 11 inches of concrete reasonable? Looking at the facts and the spirit and intent of the law, it may not matter how wide the wheelchair is, but whether or not 11 extra inches is reasonable related to the homeowner’s disability. It’s risky to insist on 11 inches. On its face, it may seem unreasonable. Boards taking issue about 11 inches on an owner’s lawful accommodation request might challenge a state investigator or judge. Of course, much of this depends on the Association’s documents, the layout of the driveway and proposed extension and other ways the homeowner can have the same enjoyment and use of the property with less than 11 inches.

Fair housing complaints are simple for homeowners to make. There is no filing fee. The form is straightforward. The State of Arizona Attorney General’s office aggressively prosecutes these cases for homeowners. If we’re talking inches, the attorney general is sure to help an owner pursue her rights under the Act.

Author:
J. Roger Wood
Law Offices of J. Roger Wood, PLLC
1628 E. E. Southern Ave., Suite 9-310
Tempe, Arizona  85282
(602) 324-7126
jrogerwoodlaw.com

The law also changed how and when notice is to be provided.  More to come on that topic…

ANSWER:  House Bill 2609 (ARS 33-1804 and ARS 33-1248) was passed into law by the Arizona legislature.  The new language leads to questions about whether director to director, director to committee, or director to manager emails are considered association discussions subject to the open meeting and notice provisions.  Admittedly, the language of the new law is ambiguous and open to interpretation but many attorneys in the industry believe it means that any discussions between directors (sufficient to establish quorum) about “open meeting topics” may not be discussed in email communications but should be reserved for discussion in the next open meeting.  Of course, email communications between directors about confidential items are not subject to open meeting laws but it is this attorney’s opinion that discussions about association business be reserved for either a regular/emergency executive meeting (if the topic is time sensitive/confidential) or the next open meeting (if the topic is does not fall under one of the exemptions provided for in ARS 33-1804(A)(1-5) or ARS 33-1248(A)(1-5).

This leads us to the next question…are emails “association records” governed by ARS 33-1805′s and ARS 33-1258′s disclosure requirements?  In order to say “yes, they are,” one would have to conclude that emails are “records” of the “association.”  The legal definition of “records” may be defined to include emails under a liberal interpretation.  A strict interpretation may not be so supportive.  Until the higher courts rule on this issue we are left with arguments for or against their disclosure.  Some courts may require disclosure if the issue were to be litigated and others may not.

Unfortunately or fortunately, the law is not black and white until an issue is decided by the higher courts.

Actually, ARS 33-1812 requires that members vote via “absentee” and “in-person” ballots.  The statute then goes on to say that the board may provide for some other form of delivery, meaning the board may provide absentee ballots to members by mail, fax or some other delivery method.  The delivery does not negate the fact that “in-person” ballots are still required.  In-person ballots are those ballots that are cast by the members at the meeting.  In other words, members can choose to either attend a meeting and cast their vote there or not attend the meeting but still vote on the issues at that meeting via their absentee ballot.

Selecting good trees for the chosen location is the first step toward avoiding damage to the tree later. Be aware of the characteristics of different trees as well as what their mature size will be. Make sure the tree is sized properly for the planting site and surrounding structures or walkways. It is a bad idea, for example, to plant a Eucalyptus tree in a narrow passageway. Blue Palo Verdes chronically develop brittle branches that break easily. Another thing to watch for are root-bound trees.

Most of the trees grown for landscape plantings in Arizona are grown in containers rather than being field-grown. These trees are moved to successively larger containers as the grow. If they are not moved at the right time, roots collide with the wall of the container and begin to circle. When planted, the roots continue to circle rather than spreading out into the soil to anchor the tree. Root-bound trees often blow over in storms. Many people attempt to right these trees and secure them with stakes and/or cables. More often than not, these trees never develop the ability to stand on their own and fall over again when their weight becomes too great for the stakes and cables.

Having trees regularly pruned by skilled tree trimmers under the supervision of an Arborist will ensure the best possible outcome. Too often, trees are either left untrimmed or are trimmed by individuals with no training. Maintenance crews frequently use hedge trimmers to repeatedly cut off low hanging branches at the same point, creating a thick mat of heavy, brittle deadwood in a tree’s canopy. This turns the tree into a heavy sail which absorbs the force of the wind rather than letting it pass harmlessly through. Years of no trimming or poor trimming also often results in a branch structure which is unbalanced, leaving the tree most susceptible to wind damage.

When trees are young, they should receive some structural pruning. Structural pruning means selecting branches which will create a strong, aesthetically pleasing scaffold of main branches while pruning away branches that cross or have a weak connection to the trunk. This should happen before the end of the second growing season after a tree has been planted at its permanent site.

Most trees should be pruned at least every other year, although certain species such as Desert Museum Palo Verdes, Blue Palo Verdes and Chilean Mesquites may need yearly attention, especially if they are receiving a lot of supplemental water. This is often true of trees planted in or near turf areas. Pruning should thin the canopy of the tree to allow a reasonable air flow. You should be able to see at least as much blue sky through the canopy as you can see when you hold your hands in front of your eyes with your fingers spread. If the tree is located near structures, walkways or other trees, the canopy may need to be reduced in breadth also.

At any one trimming, no more than 25% to 30% of the tree’s foliage should be removed. More than that will stress the tree, making it susceptible to pathogens such as insects or infections (both viral and bacterial). If a tree has been neglected for several years, it may not be possible to correct all of its problems in a single trimming. It might take two or three seasons to correct all the issues the neglected tree has developed. Sometimes, trees that have been neglected too long are best removed.

Having your tree inventory managed on a regular basis by qualified professionals is a sound investment. It is cost prohibitive and often impossible to replace a fallen or badly damaged mature tree with an equal specimen. Make sure you hire a vendor with at least one Certified Arborist on staff and make sure the vendor is adequately insured. And remember, in the long run, regular maintenance is usually more cost effective than waiting too long to give the trees the attention they need.

Authored by Mike Meyer
South Mountain Landcare LLC
2942 N. 24th St., Suite 114
Phoenix, AZ 85016
Tel. 480-318-8121
www.SouthMountainLandcare.com

Condominiums, through the board of directors, are typically responsible for the “general elements.” “General common elements” are those areas of the condominium that benefit the entire community like roofs, tennis courts, swimming pools and the like. Most CC&Rs require that the condominium association pay maintenance and replacement costs associated with these areas.

“Limited common elements” benefit only one unit owner or a select few. CC&Rs should define what the limited common elements area. Some examples include balconies, porches, patios, driveways and air-conditioning units. Generally, limited common elements are maintained and replaced by the unit owners that benefit from the common element to the exclusion of others, meaning the unit owner. Thus, unit owners generally pay to replace a/c units. See CAVEAT below.

Sometimes the condominium documents do not define the limited common elements. We look to the Arizona Condominium Act in these situations. Arizona Revised Statute §33-1212(4) defines limited common elements as any “fixtures designed to serve a single unit, but …

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Whether this method is reasonable is subjective and based on a variety of factors.  First, does the process allow for questions to be answered on an expedited basis if the question is pressing.  For example, is the homeowner contacting the association about a ruptured sewer line or is the homeowner asking about clarification on a design review guideline requirement?  Second, is the question or issue about monetary penalties?  Both the Arizona Planned Community Act and Condominium Act require that the board respond “within ten business days after receipt of the certified mail” from the homeowner in response to a notice of violation or fine letter.  The procedure above may not allow for a response within 10 days.  Third, many questions need not be answered in writing and can be addressed rather quickly. 

It appears that a procedure requiring that all questions be addressed at the next regularly scheduled meeting is a good idea but, frankly, some issues need to be addressed before the next meeting.  This is one reason why the law allows ”actions in lieu.”  Actions in lieu require the written approval of every director.   

If a member writes to the Board and requests a reply in writing is the Board required to answer?
Our Association has recently enacted a Rule that any correspondence to the Board (unless deemed an emergency) will not be viewed by the Board until it is placed in their Board meeting packet (usually one month away). It will them be answered at the next regularly scheduled Board meeting and the Board, at that time, will decide if they will answer in writing. Thus if you are unable to attend the meeting you will never received an answer.

Additionally, all correspondence is answered by the HOA Manager and only “reviewed” by the Board. Is this the proper procedure for an HOA Board and a non-profit corporation?

The statutes above control voting and TRUMP any provision in any community documents.  This means that CC&Rs, Articles of Incorporation, Bylaws or other documents that attempt to impose requirements that conflict with the statute on “mail-in ballots” versus “absentee ballots” are likely void and unenforceable because they are both the same.