Can an AZ HOA restrict freedom of speech?
I was recently fined for addressing an HOA employee with so-called foul language (F**k you) which was declared to be uncivil. I was fined $500 and restricted from entering HOA facilities for 90 days altho I have paid my yearly dues for their use. Do I have any recourse but to bend over and take this? I am told if I do not pay up, management will submit a claim to a collection agency, thus killing my credit rating for 7 years.
About Post Author
4 Responses
Leave a Reply
You must be logged in to post a comment.
David,
The association is allowed to assess reasonable fines and penalties for violation of the governing documents. If there is no mention of requirement for civil behavior in the rules and regulation they have no right to assess any fine for that issue. Besides that a $500 fine for a comment along with the denial of access to common property is totally inappropriate and excessive.
While I fully understand the frustration that can be experienced by homeowners in some of these communities by the boards or their managing agents, resorting to profanity never helps your cause or your issue. Your options are in this case to pay the fine or sue the association for abuse of power. Any case would have to demonstrate that the association exceeded its authority to fine and penalize you for this issue or secondly that the fine applied was not appropriate for the crime committed. There is an Arizona appellate court case decision (Turtle Rock III v Fisher) that established that for fines to be reasonable they must be established in a published schedule of fines are are established based on the significance of the violation. A fine policy that applies general fines for all issues is not and does not satisfy the requirement of a fine schedule. While i cannot give you legal advice you should consult an attorney if you are considering contesting these penalties in court. The cited case was depublished by the Supreme court but allowed to stand. While this case cannot be used as case precedent the arguments presented in the case are and remain valid and one could reasonably assume that the same arguments used in this case for a similar case will result in the same ruling especially from Arizona Appellate court. A court challenge could run you tens of thousands of dollars in legal fee’s so consider this carefully.
As an aside this charge is not an automatic lien on your property and the association is required by law to file a case against you in court for this lien and if they prevail record that lien in the county recorder office. Associations seldom file liens for fines and penalties, because they would have to justify their charges in court, and you would be able to contest those charges in the same court.
My freedom of speech bill requires respectable speech relative to association issues.
Dennis
Update for all,
The reality is that fines are not debt and the Fair Debt Collection Practices Act prohibits the use of collection services for fees or fines that are not debt. State statutes never mention collection cost relative to fines and penalties for these associations. While the association can establish a lien on your home based on fines and penalties that lien must be granted by a judge and recorded to be valid. You will get an opportunity to argue the reasonableness of any fine or penalty in the lien request action before a judge. if you are faced with this situation make sure your attorney reviews all the arguments used in the Turtle Rock III v Fisher case before the hearing. Fines and penalties can never be included in assessment liens that are statutory and foreclosable. A judgement lien for fines and penalties cannot be foreclosed on and can only be made effective in transferring your property under existing Arizona Law. This last statement supports the argument that the judgement lien may not be subject to collection services.
While i understand the fear of collection activity and credit bureau reports affecting credit, they are simply used by the association as extortion to scare homeowners into paying fines and penalties that would never stand up in court.
Dennis
Could the association add on additional fees and interest for non payment?
Gerald,
If the CC&R’s allow the association could charge interest on fines and penalties. If the association files and succeeds in getting a lien on your property based on fines and penalties, the cost for filing and the legal fees could be added if awarded by the presiding judge. Also remember once a lien is granted there will be cost associated with recording that lien and when you pay it off cost for removing that lien from the county records.
Dennis