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Should violations be addressed in writing or can you talk to the person in violation?

I live in a condo community in Sun City that is a not for profit corporation. We have had numerouis violations, including with the Board chairperson. The chairperson feels we shoiuld verbally address violations because she wants to be kinder and gentler and wants people to like her. No where in our documents does it say to verbally address viiolations the first time or any time. ARS 10-11601 says to mee everything should be in writing. Can you address this?
Also, when dealing with violations, do you have to hold an Executive session to even write a violation letter? Is it a majority vote of the Board to individually address violations, or are we obligated to address them because we are supposed to enforce the governing documents. There is a great lack of trainion g in these areas. The chairperson has major violations she is guilty of and now is stonewalling addressing other violations. Please help!

17 Responses

  1. DennisL

    Lisam,

    I’m not quite sure exactly what you mean when you say verbally address violations? Under the law if the association cites you for a violation of the governing documents, they must provide you notice of that violation. If that notice is in writing it must contain certain information including what specific requirement was violated, who identified it by name and what you must do to contest the violation along with the dispute resolution process under ADRE. I’ve always believed that the language clearly specified that the notice must be in writing but in rereading the statute there could be an interpretation that would allow a notice to not be in writing at least initially. I can’t imagine why anyone would benefit and choose to take the time to go to your house and tell you to your face that you are violating the governing documents. The association could never act on a notice of violation issued in that manner because it could never be presented as evidence in court.
    Most associations claim that violations are personal matters and not public and can therefore be discussed in executive sessions but that is absolutely not true. Violations must be visible from outside the home and can be seen by anyone knowing the rules of the association and therefore are public information and must only be discussed in open session or if at the request of the homeowner in closed session.
    Never go to non-profit corporation statutes to address planned community issues. The statutes relative to violation in planned communities are ARS 33-1803 and open meeting ARS 33-1804. The board does not have to vote to issue a notice of violation they typically assign the task to the community manager. Once you are provided a notice of violation you must be given an opportunity to contest that violation directly to the board in either open or executive session of the board at your discretion alone. The board cannot dictate that they will only discuss that violation in a closed meeting.
    At the end you talk about stonewalling, that again is confusing, are you saying that the board is not citing violations? Or not allowing hearing on contested violations? The association must act reasonable in its discretional power to enforce the rules, but it must treat all homeowners fairly. That means they cannot enforce the rules for some but not for others.

    Dennis

  2. lisam

    When I say verbally address the violation, the chairperson has a habit of going to the person who is in violation and verbally telling them they are in violation of the Governing documents. She wants other Board members to do the same, and I have absolutely refused to address violations verbally because of the possible danger to myself. Additionally, I understand the violation process in ARS 33-1248. I don’t see anywhere in it that it says verbally confront someone.
    We are a self managed COA for the last year for many reasons, but mostly because of the incompetance of the local management companies. One of the problems we are having is once a complaint of a violation is in writing, who is responsible to follow through with the violation letter? Typically the Secretary handles all correspondences. The chairperson is now demanding that no violations can be addressed without a majority vote of the Board. The chairperson is not following the documents, but addressing complaints given to her in which ever way she sees fit. For example, we have parking restrictions. A trailer was parked on the property since last Thursday. We have a 48 hour time limit for trailers. This is not a construction project. It is a homeowner using the parking area to store their trailer while they are in town purchasing golf carts. After many complaints from homeowners, I put a sign on the trailer that it was illegally parked in violation of our By-Laws and it needed to be moved immediately. They moved it to a different parking area a few feet away. The chairperson is refusing to tell them it can’t be on the property.
    The chairperson basically bends the rules in the governing document which ever way she wants. She has also violated the governing documents by doing two projects in one week on one of her units without an architectural change form. I have stated that this is also in violation of ARS 33-1221.2. Board members are afraid to hold her accountable because of the division it can cause in the community that is already filled with a history of Board members abusing their powers and doing whatever they want. I have been insisting that you have to separate the person and personality from the violation and just address the violation as a fact in order to stay impartial. Many residents do not understand their rights or how things are supposed to be with a Board. I do and I do not want to be a part of violating other’s rights for my own personal interest or gain. I just want to fulfill my fiduciary duty to uphold the governing docs along with other Board responsibilities. I don’t want to get into a debate with the chairperson with evey violation committed. This exasperates other Board members that are less experienced and don’t want to be in the middle. I do not know what to do.

    1. DennisL

      Thank you for that explanation. Now it is clear.
      Basically, there is nothing wrong with a verbal notice of violation as a courtesy notification but it and of itself is not actionable, in other word you could never fine someone without first providing a written notice of violation and provided them an opportunity to contest the violation before the entire board. I strongly recommend against this simply because of the confrontational nature of this action. This is simply bad policy. So is the policy where the board has to vote on any notice of violation. Far too cumbersome and may worse weekly meetings of the boards. As I mentioned any such meeting would have to be open meeting duly noticed and open to the members. Because you are self-managed a far better policy would be to appoint one board member as the enforcement officer. That individual could cite any unit owner for any alleged violation in accordance with the due process required in the law. If you do not have an enforcement policy or fine schedule, then develop one. This is very important to validate your enforcement process for everyone to understand. Violations could simply be written up and e-mailed to the offending member. If the unit owner wants to contest that violation before the board, then and only then should the entire board be involved in the decision. The rules are the rules either you are violating the rules, or you are not you do not need a board decision to decide if you are violating the rules. Verbal notice without enforcement is totally useless. The most important things a board must understand is that they have a duty to treat all unit owners fairly and that they must act reasonably in their enforcement discretion. What this means is that you must enforce the rules equally and cannot selectively enforce the same rules for some and not for all. You also have the right to decide to not enforce some provisions of the governing documents that you do not believe are necessary as long as you do that equally.
      I applaud you for standing up for fair treatment of the homeowners in your community and for your beliefs. Please do not let the arrogance of one or the uninformed nature of other dissuade or discourage your commitment to the unit owners in your community. You are doing what every board member in all 9,600 communities in this state should be doing. Please do not give up. While no one likes confrontation the only action any bully ever pays attention to is someone standing up and saying no they will not stand for this continued tyrannical behavior. Remember any unit owner in a community including a sitting board member is free to organize a petition to remove another board member with or without cause from office. The petition will be for a special meeting of the unit owners to vote on the recall of one or more board members. The petition must have 25% of the unit owner’s signatures and the association has 30 days to call that meeting upon receipt of that petition.
      Hang in there I will help you with anything that you need.

      Dennis

  3. lisam

    Thank you so much for the encouragement and guidance. I lived in a COA for 9 1/2 years in Mesa in which the majority owner was a slumlord and completely violated the open meeting laws. I vowed I would never treat people wrong after that experience and volunterred my services to the new community . I did not imagine being in the boat I am in now. It has been tough in many ways, but I want to do what is best, legal and right. Thank you, again.

  4. lisam

    Since the chairperson resigned, there are members in the community demanding a full story behind what has happened. I have never been in this situation before and have not received any education on how to handle this. The chairperson is already causing problems misleading people further. Do I have an obligation to give an account of what happened that lead to her resignation?

    1. DennisL

      Lisam
      Be very careful here. There are endless reasons why anyone makes a decision and for anyone to believe that they know or understand what those reasons are is very presumptuous. The best response would be you will have to talk to the person who resigned. The issue is irrelevant, the person resigned from the position on the board and the board and community has to move on. If the person wants to tell a false story that is on that person. The remaining board has a duty to stay above the frey and stay focussed on the business of the community going forward. Do not ever fall into the trap of countering claims or continuing any personality battle in communications to the community. It will polarize your community, and everyone loses in those battles. As the president or chairperson clearly, the person was not a victim of pressure from the board because that individual had power over the rest of the board. Fill the vacant position and take a vote of the board on who the next president should be. This often involves many officers changing positions.

      Dennis

  5. Katherine Marzec

    I need clarification. So the board must hold an open meeting, with appropriate notice to the community to discuss a violation by a property owner before sending out the warning letter? If so, is a unanimous vote or a majority vote needed by the board members?

    1. DennisL

      Katherine,
      You’ve misunderstood my responses. Boards or their managing agent can issue a notice of violation without a vote of the board or conducting a meeting on that issue. Once a notice is issued each homeowner can contest that notice of violation before the board and is given the right to have that hearing in either open or executive session. The choice is the homeowners not the boards. If the homeowner choses to have the hearing in open session the board is required by law to notice and hold the meeting in accordance with the open meeting laws. A majority of board members present at a meeting where a quorum of the board is present can approve any issue before the board. The unanimous consent issue only arises for an emergency issue where the board must act sooner than the 48 hours required for notice without a meeting.
      Hopefully this clarifies your concern.
      Dennis

  6. As a result of the violation letter that was sent out to the homeowner and resigned chairperson (they own the unit together) for building a shed attached to the condo and the satellite that was moved on the front of the unit with drilling and sawing done to the roof without an Architectural change form, the former chairperson has waged war in the community by having people who received violation letters in 2021 go door to door spreading lies to get them to sign a recall petition of me as a Board member. I know I have not done anything wrong, but that does not matter according to the law and ARS 33-1243.
    I have some questions about the recall.
    Am I allowed to defend myself in any way like in the form of an answer or a rebuttal?
    Am I allowed as a Board member to contact each homeowner via e-mail and defend myself?
    Our association has 50 people. Does that mean only 13 have to sign the recall petition?
    Of those that sign, do they have to be the actual owner of record or can it be a proxy?
    If there are 13 valid signatures I have 30 days to call a Special Meeting. When I call the Special Meeting, am I supposed to include a ballot for the recall?
    I do not understand the process completely. Do the 20% mentioned in ARS 33-1243.4d have to be at the meeting in person? Or is it comprised of ballots also?
    What constitutes the number of votes to remove the Board member?
    If I am removed as the Board member, are the remaining Board members allowed to appoint me to the office of Secretary?
    I am understanding that the law says the Board is to hold the Special meeting and has a right to have the petition. I am under the impression that they are using the Sun City COA to try and handle the special election. Is this legal?
    I would appreciate any help you can give. I can not believe the ugliness and how low people will go to try and get their way to circumvent the law and blame other’s as wrong when they committed the wrong.

    1. DennisL

      Lisa,
      There is a lot her to answer I’ll try and get it all. Yes, you are allowed to defend yourself, and as a board member you have the power to communicate to all homeowners in an e-mail that most associations do not allow for homeowners. Plese keep it above board and based on your vision to the community and your accomplishments. Do not resort to threats or name calling or claims of lies, those are easy to say, but then force the community to pick a side. Any time a special meeting of the members is called the notice must state the time and place for the meeting and the absentee ballot that anyone can use in lieu of attending the meeting. The quorum (20%) is achieved by all people in person at the meeting and all absentee ballots submitted. A simple majority of all votes submitted decides the issue. If your CC&R’s and Bylaws allow officers of the association to not be board members, (very rare) than yes you could be appointed by the board to assume an office position, but you would have no voting power and cannot be a board member, for the remainder of the term you had as a board member. The board represents the association, and the community manager works for the board, I’m assuming that when you say the “sun city COA” you are referring to the community management company. The management company is not the condominium association, while it may seem to many as the organization that they deal with related to community issues it simply is a contracted entity working for the board to assist them in their duties. The management company is not the association,and has no authority to do anything other than what is specifically authorized by the board.

      1. Lisa Marx

        Our C, C, and Rs do not address whether you have to be a Board member in order to be an Officer. The Not for Profit Corporation Act would lead one to believe that you can be an Officer without being a Board member because of the statement of Standards for Directors in ARS 10-3830, Duties and Authority of Officers ARS 10-3841 and Standards of Conduct for Officers ARS 10-3842. ARS 10-3843 B states, ” A board of Directors may remove any officer at any time with or without cause. ”
        We are a self managed COA. Sun City COA is the organization that assists COAs in Sun City, but their information is not always accurate which is very frustrating.

        1. DennisL

          Lisa,
          All corporation are run the same way, the officers of the company are separate and distinct from the board of directors with the exception of the COO who is a member of both groups, the board provides oversight and independence from and over the officers. HOAs and Condos are incorporated for convenience only and the board and officers are one and the same. You cannot have officers that are not board members unless the CC&R’s or bylaws specifically authorize that situation.
          Dennis

    2. DennisL

      there are always two sides to any story relative to these communities. How you present your arguments against the recall will be very telling to the community and you have to trust that will see thru lies and self dealing and negativism. While I trust and assume that your story is true, it is impossible for me to past judgement on what is right for your community, that is why the recall process is so important, it is absolutely necessary to protect the community from abuse of authority by board members but it can also be weaponized to unfairly remove a board member for revenge or alternative reasons. Only the people in the community can decide what is right for them.
      Dennis

      1. Lisa

        I completely appreciate your reply. It would be foolish to just try and get a sympathetic ear and waste all of the time researching and writing if I was not telling the truth. I have gone 360 on this and then did anothe 180. I along with the remaining Board will give the homeowners an opportunity to become educated in the facts of what I have done for this community the past 17 months for the betterment of the community. We will remind them that this position is volunter and done for free. We are going to ask them who is willing to step up to the plate and fulfill ALL of the hats that I have had to wear and be willing to be the target of the smear campaigns that go on because of self dealing. I do care about the community and I have the skills and qualifications to fulfill the jobs professionally, BUT I am not willing to serve with all of the bulling and abuse that has gone on. People want to tell the Board what to do, but they don’t want to serve. They want to tell the Board what to do, but they don’t want to become educated in the laws, governing documents and taking care of the daily responsibilities of the common area. If I am removed, the other two board members will most likely resign. We already know that the ship is sunk and that will be the responsibility of the other 47 units in the community to figure out. They will be fully informed of the consequences of attacking the Board that has bent backwards to do thing by the books. They will be given the opportunity to rescind their signatures after give all of the facts and responsibilities. Personally, I am not going to spend the last years of my life dealing with this type of stress and drama. Life is too short. I have to enjoy my life too.

        1. DennisL

          Lisa,
          I fully understand your situation and also agree with the statement that life is too short. I also fully understand that while there are sometimes overbearing and abusive board members there are also very good boards that are truly trying to do the right think for their communities, that are being abused by unreasonable and overly demanding homeowners. I want to support the homeowners in the first case and the board members in the second case. If I believe that a homeowner is unreasonable in their demands for a board, I’ll be the first person to tell them that. There is no place in these communities for abusive board members or abusive homeowners, they destroy the communities that they live in to get their way. My only desire in creating this web site and in all may advocacy work with the legislature is to make these communities better places to live. I’m constantly frustrated with the fact that so many people ask for my help but when I ask for their help with legislation to take 5 minutes to contact their legislators so very few actual do. We will never get better laws to protect all of us if we do not get involved and work together for better communities, free of bullies from either side of the table. The same goes for local communities. The members of the communities must stand up to the bullies in their community on either side of the table or find them subject to those bullies in the long run. I’ve seen far too many good honest board members fall by the wayside based on the abuse of clicks and special interest groups in their communities for the exact same reason “life is far too short for this BS”. Like it or not the community needs a board or you will lose your ability to sell your homes, somebody has to do this. In a small community like your if a few people are allowed to have every honest board member resign then who will your community be left with? The get to chose but they also get to pay the price in the long run.
          Dennis

  7. In this same situation, the former Chairperson is behind a lot of problems being created in the association. Is there any way to prevent this person from getting on the Board for violating her fiduciary duties while she was on the Board? Is there anything in the laws to prevent her from voting or serving on the Board while she has active violations against her? My guess is that she is going to try and remove me as a Board member so that she can get back on the Board and then all of her violations will disappear.
    The former Chairperson had some tie to the financial company that she got to do our financials this past year. This was not disclosed prior to the company being hired. The financials’ company has been giving us absolute grief in preparing our financials. They have refused to address problems with the Oct. – Dec. financials, they have breached their contract in many ways including refusing to pay vouchers and trying to prevent the Board from doing things the community voted on by not cutting checks. The Board fired her on the 3rd. She finally gave us January financials last night. They are completely wrong and I believe they are trying to sabotage the Board. What can be done to hold her accountable for this breach? She was supposed to do our tax returns which are included in the monthly fee. Oh, she is a CPA. Can we withhold payment from her for this breach? Does the former Chairperson have any liability in all of this?

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