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2 Responses

  1. dennisl

    Susan,

    In late 2018 the Arizona Appellate court ruled in the case Turtle Rock III v Fisher not only that for fines to be reasonable they must be based on a fee schedule that is commensurate to the significance of the violation and that that schedule must be published and distributed to all homeowners. That ruling specifically determined that their is a difference between a fee schedule and a fee policy that is one size fits all, and that the later does not satisfy the ruling. The Court did not stop there it also stated that for any fine to be reasonable it must be based on the actual cost to the association. This ruling had the entire HOA industry in a turmoil not only in Arizona but across the country. The HOA industry with it’s hundreds of attorneys appealed this decision to the Arizona Supreme Court but the court refused to hear the appeal and upheld the ruling but de-published the ruling. What that means is that that decision cannot be used as case law precedent in any other subsequent case. In my non-legal opinion the part of this decision that stated that fines must be based on cost went way too far and is what cause it to be depublished. Any attorney presenting a similar case should study the arguments presented in this case because they were legitimate and sound and will most likely result in similar court ruling in the future.

    To answer your question directly from Turtle Rock III v Fisher yes the fines must be based on a schedule that is based on the significance of the violation. The fine for painting your house pink without approval should be significantly greater than the one for leaving your trash can out too long.

    Dennis

  2. Susan Lukawski

    Thank you for your response. In our case, The Cease & Desist letter states “the Board will fine you in the amount of three hundred dollars which is the fee for my office (the attorney who wrote the letter) to send the letter”. Legal fees? I thought legal fees could not be assessed until adjudicated by a court… I could be wrong… your thoughts please. Legal fees or a fine?

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