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HB 2158

Our Community is working to recall several Board members. As part of this effort, we have been posting flyers and posters around the Community to educate those who may not be aware of the activities of our Board. As quickly as we put them, they are removed. On Saturday, the Board President actually confronted a group of residents who were putting up posters and tried to intimidate them while videotaping. According to HB 2158, what we were doing was protected under this Law. Is HB 2158 enforceable, and if so, how?
Thank You!

3 Responses

  1. Dennis Legere

    Priscilla,
    Any and all statutes relative to HOAs or Condos are only enforceable via a petition to the Dept of Real Estate and a hearing before an administrative law judge or in a suit in Superior court. This law is no different. Unfortunately, whenever any homeowner enters litigation to enforce the law the cost of that litigation is borne by the entire community and not the board or it’s individual directors. So, you are essentially suing yourself based on the actions of the board. Guess who thought up this scheme? CAI and the attorneys that make very good livings off the back of homeowners.

    If board members truly understood that they had a duty to the community to comply with the law and that they could be held personally liable for failure to do so we would not have this problem. That is why my highest priority bill this session will be to do just that. This bill will establish and codify into law the true duties of the board as already established in common law and case law for Arizona and to define accountability for the cost of litigation to any board member found in violation of those duties.

    You have a right of free speech relative to community ballot issue as established under HB-2158. Your board member has absolutely no right to restrict or intimidate you from expressing that right. Whether they like what you say or not. He is also free to post information defending the board actions. But remember what you say matters, and anything you say must be true to the best of your knowledge. posting knowingly false information for the purpose of defamation is slander and you could be held accountable for that.

    Dennis

  2. Priscilla Tramontana

    Thank you, Dennis. If I may, I would like to provide you with additional information. Our BOD is redirecting funds that only part of the Community pays, specifically for the exterior maintenance of those homes that contribute. The Board is taking those funds and putting them into Common Area maintenance. They have done this in the past, were taken to court, and lost. A permanent injunction has been in place since 2013 that details what those funds may and may not be used for (to be used ONLY for exterior maintenance and insurance of the contributing homes). We are pursuing legal action, which takes time. Is there anything we should/could do for more immediate action?

    1. Dennis Legere

      Priscilla,

      Clearly your association has total disregard for the rule of law. You association and individual directors are in contempt of court and can be sued for that contempt in Superior court. Your legal action should not focus on the violation of the CC&R’s but rather on the contempt of court and name each individual board members that voted for this action as a defendant in the case. The board may believe that they are immune from liability for their actions and let a court case that only sues the association play out. By being named individually as defendants in a case they cannot win will change their tune very quickly and may be settled out of court very early on. Do not settle for anything other than a resignation of the existing board and a legally binding commitment to never run again and a complete restitution of the funds to where they belong and a commitment for the individual board members to pay for any legal expenses you incurred in bringing this suit. The only way to stop this total illegal and inappropriate use of these funds is in fact to sue the association and the individual board members that voted for that action for contempt of court. The board members will not be protected by their indemnification clauses and by the D&O insurance. and will have to hire individual attorneys to defend their actions. The association cannot use the association funds to pay for the defense of the individual board members for breach of duty and contempt of court.

      Clearly the first court order did not get their attention enough to sink in. This will and it will cost them dearly.

      Dennis

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