AZHOC Inbox: Fed Up With Property Manager
Editorial Note: The following is a story from a homeowner in Mesa. The name of the homeowner and of the community are not included, but the message is very important for our members. This is what can happen to a good community when they get talked into bringing in a professional management company that seems to be a total imposter without any training or certification. Some of the contents were edited slightly for readability.
I am simply fed up with my property’s HOA/Property manager. When I originally moved into my townhome in 1992 it was a beautiful community, well maintained, communications from the Board were regular and open and while all was not “perfect,” it was a community. Several years ago the incumbent Board decided to bring on a “professional” property manager.
Over the years the value of our property has not increased, the grounds and complex in general have deteriorated and the property manager treats resident home owners as “renters,” not home owners, making arbitrary decisions without the input of the home owners or putting matters up for a vote. The decision is made and implemented, and home owners are advised after the fact. This has included such items as paint colors, replacement of common area plants, including those surrounding entry ways into individual units, and such.
Apparently the property manager is now in working with the City of Mesa, having applied for a grant to convert the common areas to xeriscape – again without informing the homeowners or putting the issue up for a vote.
There have been several instances where she has accused/fined people for dues (that had been paid), has failed to communicate with home owners over issues for several months to a year and then hit them with monthly late fees/attorneys’ fees/etc. on top of the “disputed” amount. She lies claiming she has not talked to people that she has and has been witnessed to, and even claimed to one home owner who has been a resident on the property for more than 7 years she had no idea the woman lived there (this is a small townhome complex and this is not a snow bird – the lady is a full-time resident.)
In the few communications I have had with this property manager via email I have been called “negative”, non-productive and other names since I frequently have opposing opinions to hers. The last board meeting I attended I voiced an opposing view and in so many words was told to sit down and shut up.
The property manager targets homeowners who have opposed her for penalties and fines. One example is last year my neighbor and I each received a notice giving us less than 10 days to repaint our gates or face a daily fine of $5 per day until the gates were repainted. I walked the property a month later and several other units’ gates are in worse shape than ours were and in speaking with those occupants they were not issued such notices. Even to this day, more than a year later, many of the other gates have not been “fixed” nor have the occupants been requested to.
I have also called for an audit of the books and have been told it is none of my business, audits are done when required but the results/details are not subject to home owner review. Really? This is my money. Even when I was renting property before my purchase I was never treated like this. Additionally, over the years I have seen more and more units be sold to investors and/or people who rent their units. By best information I can gather, there are 37 of 88 units that are rentals. If 7 more go into rental status, that affects the rest of the community as potential buyers may not be able to obtain loans, however, the Board/property manager does not seem concerned with this trend, even despite the fact since many of the renters that have moved in have been doing damage to the property and simply have no concept or care that they live in a community situation (our town homes face common open areas so what one person does in the common area can cause a disturbance for up to 12 or more units).
I am just so frustrated because every time I have tried to open a conversation or express an opposing view, I am targeted by the property manager – everything from I can’t have a chair sitting outside my gate (for less than a day) to needing to repaint my gate, to the type of sun curtain I have on my back patio does not meet regulation and if I did not take it down I would be fined. (I need to check the CC&Rs but I do not recall there being any specification as to sun shades. Everything is vague and then the property manager states it is open to the determination of the board/property manager.)
What is a person to do? I am not in a position to sell, nor do I want to, but this is becoming unlivable as I feel we are living under a power driven tyrant who refuses to accept we are the home owners and she is to be working on our behalf. It really seems as though she is working – over several years – to drive the resident home owners out and only wants to have property investors owing the units. I’m sorry, I’m venting but I just don’t know what to do any longer and every year the dues and special assessments increase, the property gets further and further run down (they did a special assessment for painting, but just painted over rotting wood, did not scrape peeling paint, etc.), the grounds look horrible, and we have more and more criminal activity in the complex.
It is most definitely not the same place I bought into in 1992. Thank you for listening.
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While this was posted by one of our members it is unfortunately so true for so many communities. Boards need to understand that they are responsible for running the community not the community manager. That manager works for them not the other way around. If that manager violates the law it will be the board that is held accountable not the community manager or the management company. When these untrained and unlicensed individuals are allowed to get total control over a community without oversight chaos ensues, to the detriment of all homeowners. That property manager does not work for you but does work for the board, so hold them accountable for that managers actions and approach to dealing with the community.
Pay very close attention to what specifically is authorized in the CC&R’s relative to rules for the association. While the board can create and establish rules on their own without any approval from the community they can only create rules specifically authorized in the CC&R’s. They cannot create a restriction on the use or the behaviors on and within your property that does not exist in the original CC&R’s without amending the CC&R’s and that amendment would require 100% approval from the members. This is common law for the country compiled in the Restatement of Servitudes Law published in 2000.
Please if the board is trying to do something that just does not feel right it is probably not. Contact us and if necessary we will provide you contact information for qualified attorneys, to help you stop the board.
“They cannot create a restriction on the use or the behaviors on and within your property that does not exist in the original CC&R’s without amending the CC&R’s and that amendment would require 100% approval from the members.”
This is not true, many HOAs only require a majority of homeowners in good standing to approve changes to the CC&Rs.
If you we could put a he in place of a she, then we have the same frustration.
The scary art is that the HOA secretary has 100% control over a $250000 researve
I picked up the Arizona homeowners statutes and quote from the statute. It seems to scare the board.
I was living at this address since 2004 and after 2-3 month hoa manger sent a letter to paint my house outside within 14 days I try to call let them know I just moved in and I cannot afford it to painted right away but yet they added the fine try to call without any luck then I decided to attend the meeting let them know my problem it was a surprise for them and the manager told me he will remedy my fine and remove but yet I still receive the fine them one after another even after I did paint my house it was another one for landscaping and always pay in time but yet there is two late fees the first as waiting to hear from them and I decided to pay the first one but never remove it and the manager change another one promised to take care of my charges but not all I did apply to remedy my problem after promised to remedy my charges was $135 changed to $350 and they said the board refuse to remove the charges and I asked before the final decision with adding charges no idea where it comes from and asked to receive a copy of the board decision they ignored my message but yet after I paid one fine for being late never show it plus one time I asked Nicely if I disagreed to pay the charges they told me we will have to kick you out and I keep receiving charges even after i did fix the problem same day I’m sure they are doing on purpose try to let me move because of my ethnicity so I’m asking your help to remove all charges please and I appreciate your assistance with this problem thank you
State law prevents an association from applying a fine unless they first notify you that you can request an opportunity to be heard by the board to contest your sledged violation, and they provide you that opportunity. Obviously in your case the community manager is incompetent and flying blind. And the board has no idea of what this manager is doing. It is absolutely ridiculous for this association to send a notice about painting a house and expect it to be painted in 14 days. When I want to paint my house I spend at least a month getting bids and evaluating contractors and when I pick a contractor I schedule the painting with what ever work the painter already has. And that could take another month. Besides what specific provision or condition is specified in your CC&R’s would be the trigger for an immediate painting violation. This is called arbitrary and Capricious rule making and enforcement and will never hold up in court.
This is what I want you to do, write a letter to your board or community manager for the board requesting a hearing in open session of the board meeting to contest all of your violations and fines. Hopefully you kept all the letters and notices of violation for this community manager. Give them the fact and ask that they expunge you record of all violations and fines because they failed to allow you the die proless required by Arizona Law. If they do not you will file a petition with the Arizona Dept. of Real Estate and and administrative law judge will force them to do so. You should also request a detailed record of all transactions on your individual since all of this began. You will want to put in a specific date. You will wand and need this for your opportunity to be heard before the board.
Let me know what they tell you and if the refuse I’ll help you prepare you petition.
You forgot to advise him that filing with the AZ Dept. of Real Estate will require a fee of $500 to be paid with the petition.
I am simply fed up with my property’s HOA/Property manager. When I originally moved into my home in 2004 after a few month I received a letter stated I have to paint my house within 14 days it I called the office with no luck to even get back with me to assist me by giving me more time to paint my house but but I kept receiving extra charges for same reason kept increasing till $135. I went to attend one of the board meeting to remedy the charges and explains my situation ended with solving my problem but yet with a hassles they ask me to appeal on line instead of removing the charges they kept sending me letters to clean the yard and every time I fix the yard to pull the weed but the charges remained without a notice after Several years ago they hired a new manager again asked to solve my problem she promised to remove part not all but then I found they send me a letter the board refused to remove and received a letter showing the charges increased again from $135-$350 I asked if I can have a copy of the board decisions and based of what to increase instead of decreasing but When I called that if I disputed the charges they said we don’t care if you didn’t pay the fines you will be kicked out
After that I found it must be because of my ethnicity
I’m asking your assistance with this matter will be greatly appreciated and if you have any questions especially I kept all documents please call me at my phone number
Dennis is right on the money. Our HOA got a new property manager September 2015. She hassled me about my flagpole and flags up until late last year. She would quote R&R 3.14 based on CC&R 3.14 about signs and flags. I fought it every time and then, last year took a look at the CC&Rs, specifically 3.14. Turns out 3.14 is correct about signs but not a mention of flags. So I did a search of the entire CC&Rs for the word flag just to be safe. The word flag does not appear in our CC&Rs. I now have a letter exonerating me from all fines and abuse with regards flags and flagpoles. Unfortunately, the R&R still exists. I would, once again, have to take the HOA to task with the Arizona Dept. of Real Estate and and administrative law judge. Pay attention. HOA Boards, especially those which are “run” by the property manager (allow the property manager to basically run the show), can/will write (illegal) R&Rs regardless of the CC&Rs.
Well stated Tom, and thank you for standing up for your rights and holding the association board and it’s managing agent accountable to the actual law and requirements of the CC&R’s. Please everyone while any board can write rules they have absolutely no authority to write rules that are not specifically and explicitly authorized in the CC&R’s. The CC&R are the only document that can place restrictions on your use or occupancy of your property.
I am so fed up with our HOA management company that a month ago, I added a Trump 2020 flag under the Stars and Stripes. I got a letter last Friday, NOT from the HOA or the management company, but from the new HOA Lawyer. He told me I have 10 days to take it down. Being a stubborn Dutchman, it stays. His firm ( a well know firm in the Valley) has a great website. On his website he has a great document that specifies, in no uncertain terms, that Rules and Regs MUST be based on a valid CC&R. So I responded to him with a nice letter 🙂 using his own words and a copy of our CC&Rs to alert him that the flag stays. I have sent you a copy of the letter by email. It appears that not only do the management companies and the HOA boards do whatever they want but their legal advisers don’t do their homework either.
I have been in this particular community since 2004. It was well run and the neighbor was the HOA president at that time. Unfortunately, a new president of our HOA was elected in 2008 and things have gone down hill from that time. The common pool areas are not being maintained, the owner of our management company lives in our community and just this month is taking over the treasurer’s position on our board of directors. I feel the current president and manager are stealing money from the reserve funds and that is all they are concerned with.
The president assured one of the homeowners that the board was taking into consideration her concerns of the pools as she and I had taken pictures of paint peeling, the pergola boards rotting, caulking missing around tiles in the poolside bathrooms, the decking buckling from the water being too high in the pools, chairs that needed plastic lacing replaced so people would not fall through and the caulking in the pool to prevent water from going under the decking was deteriorating. But both of us are concerned that the people or person who does the work will not do it right, such as prep an area for painting or use inferior paint. The person they have designated to do the cleaning of our pool bathrooms and outside shower is also our security guard and she reports erroneous things to the president so homeowners get fines and get yelled at by the president.
The HOA manager says he charges $250 to send an email to homeowners with the newsletter to inform us what is going to be done in the community but the newsletter is more of a reprimand when people question him or the president on anything. I am trying to find out if any of this is grounds for taking them to the real estate board or even if it would do any good.
Thank you for listening.
First let me apologize for the delay in responding to your question. Let’s start with the fact that the president of the management company is a member of your board. Was he appointed to the board to fill a vacancy or elected by the members? There are many things that the association is involved in that would be a direct conflict of interest for this board member. While Arizona’s conflict of interest laws are weak at best for any issue before the board that could provide financial benefit to this board member he must under the law declare the conflict of interest before any discussion on that issue is made. If he fails to do so than the action or contract is void. Watch this closely by attending meetings and reviewing meeting minutes. Many of the issues you raised are speculative and potential concerns but to bring any action or to file any petition to ADRE you need facts and proof. You are entitled to view all financial records of the association upon written request and the association is bound by law to provide you access to those records within 10 business days. Ask for a copy of the monthly financial reports provided to the board for both the operating and reserve accounts for any period of time that you are concerned with. You should also ask for the monthly bank statements for those accounts for the same time period. You are also entitled to ask for copies of those record and the association cannot charge you more than $0.15 per page. You will need to take time to review those records because if something is happening the culprits will try hard to cover and hide their tracts. If something looks fishy than dig deeper into the specific transactions that you identified by requesting details on the specific transactions, what was it for, who was it paid too, who authorized the transaction, who validated that the work was completed etc. Thru all of this you need to remember one thing management companies work for the board and can only charge fees that are authorized by the board in their contract with the board. If the board president and treasurer are working together for personal gain than it is up to the rest of the board to wake up and take action to protect the community. If the board refuses to do that than it is up to the community to protect themselves and get together and vote to remove the offending or all the board members. If you need help doing this than contact me and I’ll work you thru the processes to remove the board. Board members and entire boards can be removed with of without cause so if the community is concerned that they are being damaged they can act to protect them selves without the burden of absolute proof. These are not easy task and involve community action and participation that the board will fight in any way it can to suppress. We are working on a bill this session to protect this right for community action and assembly in State Law.
To sum it all up, I too am fed up w/HOAs and MCs. They are an annoyance at best. Imho, what produces the best results is to go after and file complaints with the Arizona Dept of Real Estate. If you read the HOA Bylaws as well as State Statute you’ll likely find lots the Board are failing to comply with. The beauty of the AZDRE Petitions are that they go to the Statutory Agent, (generally an attorney) and if/when the Board complies you will likely get your $500 advance to them returned to you. To date the complaints that I’ve filed have resulted in the Board complying and my money being refunded w/out having to go to Office of Administration Hearings. I am convinced all Board Members and MC’s do a very bad job. Board Members rarely if ever read their own governing docs. They are tyrants. It’s unfortunate Legislators are failing to step up the the plate to protect Members.
While not perfect and very limited in scope the ADRE HOA dispute resolution is the best too that we have today to enforce the law and the governing documents.
My last visit to ARDE OAH to resolve our above issue in January 2020 regarding the HOA writing Rules and Regulations WITHOUT a valid CC&R ended with the OAH judge allowing them to do it. With Dennis’s help, I supplied case law from AZ Appellate Court, AZ Supreme Court and US Common Law. None of it mattered to her. She made it quite clear that it was her court. The unsaid part was that none of that case law mattered in “her court”. Be aware that ADRE OAH is not always the best place to reach out.
Tom you are absolutely right, that is why I always ask people to let me see their petition before they send it in, I may be able to save them $500. The ADRE dispute resolution process is based on specific violation of Arizona Statutes in Title 33 Chapter 9 or 16 or Community documents. If the issue does not direct violate state statutes then they must violate a specific and clear provision in the governing documents. The problem is the ALJ is not required to interpret the governing documents or rule of their appropriateness. Case law established in appellate and supreme court can rule on the appropriateness or on the consistency with Property Servitude common law. If you issue goes into this grey area it is a total waste of time and money to try and pursue that with an ALJ.
The HOA fined me for roughly 3 years for violation of 33-1808 for flying the USA flag on a flagpole in my front yard. My complaint also included that and the judge didn’t think 3 years of fines for flying the flag of the USA on a flagpole violated 33-1808 either. For what it is worth, we are also in the Pinal County Superior court on the same topic of the HOA not being able to write Rules without a valid Restriction. However, the Superior Court Judge has decided to wait for the final action from ADRE before making his final decision. As ADRE has decided that the HOA no longer needs a valid restriction to write Rules, the ADRE has just written a blank check to HOAs to write whatever Rules they want. The HOA argued that having a valid Restriction was needed to write a Rule. Then the HOA argued that NOT HAVING A VALID RESTRICTION was EVEN BETTER as there could be no conflict between the Rule and the Restriction if there was no Restriction. I have to admit, it must be a brilliant strategy as the ADRE Judge bought it hook, line and sinker. The ADRE now says:
1/30/2020 Decision Due
1/30/2020 TRANSM Transmit to agency
2/12/2020 Action Due
3/5/2020 Agency response due
3/9/2020 ALJFIN ALJ Decision final by statute
4/19/2020 45 day tickler for AA after transmit
I have heard nothing about the 3/9/20 “Decision final by statute”.
I guess Time Will Tell?