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Need guidance about HOA Board of Director rules

I joined our HOA Board of Directors just about 1 year ago. I do not have any real issues about how the board is governing the HOA.

There are only two board members at this point. Me, and a person that has been on the board 10 years.

My only issue with how the board and management company are operating is that I think the board needs to keep the members better informed of pending actions.

I believe that if a pending actions is not being taken for emergency or safety issues, the board has a duty to inform the members of the pending action, and solicit input.

The other board member is telling me that the board is the sole arbiter of what should and should not be done in the common areas, and that we do not, and should not, communicate with the members.

Both the other board member and the management company representative have told me that I may not attach my personal phone number or email to any communication I send out to association members.

They’ve also told me I may not communicate with any association member without board approval. For the record, I have not.

I’m looking for guidance about these issues.

Is there anything in Arizona law that prohibits an HOA Board Member from telling the association members his/her email address or phone number? Is there any law, or court precedent that precludes a board member from communicating with the association members?

Is there any law, or case law regarding an HOA communicating, or failing to communicate with their association members?

Any background or guidance would be welcome.

5 Responses

  1. dennisl

    Kevin,
    The other board member and your community manager are full of crap. There is no nicer way to say that. While it is true the the board is the sole authority for any decision. Relative to the common property and any other authority given to you by the CC& R’s and the bylaws. It is totally arrogant and dictatorial to believe that you can do that in a vacuum Without seeking community involvement or input. If it is your desire and power fetish to run your community as a dictatorship than you can but the community will resent you and become a nightmare to live in. If however you want to run a community it’s that is a great place to live in, where people feel safe and respected and free to live their lives and enjoy their home and their community then be transparent and open and inclusive in your management of the community it’s. Seek input into all important decisions, treat people with respect and fairly and you will be treated with respect in return. While the ultimate decision is the boards and you must remember that decision may not make some people happy, that is not your job. Your job is to act in the best interest of the community as a whole .

    You are absolutely right in your beliefs and understanding of what you should do and how you should act as a board member. I assure you there is no law that prevents any board member from communicating with any homeowner in his/her community. In fact the whole reason that we have open meeting laws for these communities and not for normal corporations is because of the need for openness and transparency in the conduct of business in these common interest communities.
    An interesting point you made in your note was that there were only two board members on your board, which is unusual but you realize that no decision can be made by your board without your approval. The community manager does not count. So the long time board member has no authority to do anything without your approval. I’m assuming that your bylaws call for three board members but one has resigned. You do realize that the board can appoint a replacement to fill the remaining term of the open board seat , without a vote of the community. You would have to do it in an open meeting that was properly noticed to the community.

    The problem with many community boards in Arizona is that they get advice from community managers who for the most part are uninformed and from association attorneys who will tell you what you can do and what you can get away with and never what you should do for the best interest of your community. They want you to run your community like a faceless and heartless corporation instead of a community where people live and raise their families.
    It is well beyond time when we stand up against the HOA industry and take back our communities to be run they way they should be run and not as simple money machines for the HOA Industry.
    I apologize for the length of this letter but board members like you are why I do what I do. If we had more of you we would not need more laws at the state level to counter the money hungry HOA industry and the board tyrants focused only on power over other people.
    Please if you need any help in running your community please do not hesitate to ask. I will be there for you.

    Dennis

  2. dennisl

    Kevin
    One more thing. You cannot divulge any confidential information about discussions in legitimate executive sessions (see ARS 33-1804) or about any specific individual to anyone else. But for everything else you are free to discuss community issues with any community member at at any time.
    Dennis

  3. Kevin Conde

    Dennis:

    Thank you for your reply I was purposely vague when I was describing my problem, as I didn’t want to sound like I had an ax to grind. I’m honestly asking for input, and hope that you can give me some examples of case law or other things like that for me keep in preparation for future issues.

    Some background. The other board member has been on the board for more than 10 years. For the majority of that time she was the only board member. I would guess that even when there were other board members, she was the one that was effectively in charge.

    The Association is well-run, financially in the black, and there are no major complaints about the maintenance or upkeep of the Association’s common areas. The only complaint I have gotten from members is a tendency for the board to not communicate to the members.

    The feeling I’ve gotten from the other board member and the Association manager is the less we talk to the members the better. This is not been said to me in so many words. The impression I get is that the other board member and the management Association feel that soliciting comments from the community will only cause dissension.

    This all came to head because of a tree. A homeowner who borders on the common green space wants a weeping acacia tree removed because it dumps too much junk into his pool. From the very beginning I said that if the tree is a danger, or diseased, then there is no reason to communicate with the rest of the Association, the tree comes down. However, if the tree is healthy, we should not remove it without at least informing the Association that we intend to do so.

    My inclination has always been to remove the tree unless there is a compelling reason not to. Removing it, and replacing it with a new young tree, removes any possibility of litigation against the Association should a weather event because that tree to fall and damage the homeowner’s property. It’s one of those things that once the homeowner has told us that he has a problem with the tree, if we don’t remove, it and the worst happens, were going to end up being held liable.

    I honestly don’t know why this is turned out to be such a big deal. The other board member actually gave me a print out of the CCR’s, which I already have, saying that the board has absolute authority to make all decisions regarding landscaping in the common areas, and this meant we could do whatever we wanted to do whenever we wanted to do it, we being the board.

    Included in that handout was a further part of the same paragraph that says the board is the sole authority to make decisions about things in the common area. She told me that meant I had to do what I was told to do. Imagine my surprise, I told her what it meant was that I was a board member and my opinion mattered, and since there were only two of us on the board, if we could not agree that nothing would happen.

    As mentioned in my original question, she also tried to convince me that somehow the CCR’s prevent me from communicating with members of the Association without board approval, and I could not provide my email address and phone number in any emails I send to Association members. I’ve asked her in writing to provide the legal source of that assertion.

    That all was a moot argument. When I went and looked at tree, it was obvious the tree to had come down. It had significant rot in a 12-inch section of the first of two main branches. All along I said if the tree is a danger, if comes down.

    I don’t think this is going to go away, so I’m hoping to find caselaw citations, or other source material of a legal nature regarding what my responsibilities are towards communicating to my Association members, and what could possibly make anyone think I don’t have a legal right to do that.

  4. dennisl

    Kevin,

    I’ve tried to base most of my work in the HOA arena on the fundamental principles of Property Servitudes Common law as stated and defined in the Restatement of Law third Property Servitudes issued in 2000 by the American Law Institute. That restatement dedicates chapter 6 and most of volume 2 to Common Interest Communities. In sections 6.13 and 6.14 it establishes that the business judgement rule applicable to most corporations does not apply to these communities and instead defined the duties of a board to the members of the community and the duties of the board to the association within those identified subsections.
    Those definitions became case law for Arizona in Tierra Rancho v Kirtchikov. You can find that decision under our resources and tools tab and HOA case law.

    The board has the absolute authority for decisions relative to common area because that common area actually is the property of the association. But that does not mean that it has to make those decisions in a vacuum and without input from the community.

    Let’s talk about your tree. Because an individual complained about a tree does not mean that it has to be removed. You have to appreciate the inherent beauty and benefit to the community of a mature tree and how long that tree took to grow to its existing size. Any tree has inherent value to a community that cannot be lost to a complaint by one homeowner of the droppings from that tree. Like I said earlier you can never make everyone happy with any decision that you make for the community. So don’t even try.

    As for liability because someone has complained, that fact alone has absolutely no relevance to your decision. The complaint was not about safety but rather about leaves dropping in his pool. Having said all of this in my opinion the only reason why any tree should be removed is because of real and eminent threat to the safety of residents. Because a branch could fall some time in the future is not a reason to remove a tree, if it was every HOA would be wise to remove all trees from their property making them barren waysides absent of any shade from the Arizona sun. Why would this be in the best interest of the community? One of the purposes of HOA’s in the first place is to protect the property value of the homes in that community. What would be more attractive to you as a home buyer a community of homes with abundant mature shade trees, or one without any trees at all. Your answer to that question will tell you how you should approach decisions about removing a tree to the property values of the homes in your community.

    If a branch is weakened and poses a threat to anyone remove the branch but save the tree. This is simply common sense that no court would ever question. As a board member you have an absolute right and duty to independent decision making. You do not have to follow the lead of anyone other than your own conscience. That is why boards are always made up of an odd number of members so that stalemates do not happen. Having only two members is a disservice to your community and should be remedied at the earliest opportunity. I would also bet that it is a requirement of your bylaws. Under no circumstances should an HOA board consist of only one member, especially if that member see’s himself or herself as the all powerful deity for the community.

    Dennis

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