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HOA Records Request

Sunbird Golf Resort HOA is self managed. When a homeowner request HOA records, the G.M. Doesn’t provide the requested records and/or states it’s privilege data. Recently (12/2022) the BOD voted and approved effective immediately all 1,631 homeowners will not become responsible for the shared privately owned golf courses improvements/repairs/equipment in perpetuity. The BOD and G.M. Won’t provide the homeowners with the HOA Attorney’s written legal opinion (they state it’s privilege attorney client information). How do we go about doing an in person records viewing in the HOA office. And any recommendations on a volunteer or reasonable cost HOA audit team.

5 Responses

  1. Dennis Legere

    Jimmy,

    Advice from an attorney is privileged information not subject to records request. While the law protects your rights to reasonable request to view association records, it is not all inclusive. Basically, any information listed as exceptions to the open meeting law are excluded from records request, including advice from an attorney, employee information and personal, financial or health issued about an individual member in the association is excluded.
    Dennis

    1. Jimmie Klatt

      Dennis you’re correct to some degree.
      Update: (i) Unfortunately, the homeowners haven’t been able to collect enough signatures (164) to recall the BOD. (ii) the homeowners hasn’t legally challenged the BOD actions, (lack of funds collected approx. $24K). We are faced with stay and pay or sell and relocate. Next week will be filing a complaint with the AZ RE HOA Dispute Program.
      Your comments are welcome.

      Below is what has happened to Sunbird Golf Resort HOA.
      Dear Sunbird Neighbors,
      The “Seven” Sunbird HOA Board of Directors, “BOD”, of which consisted of, three (3) Golf Course Members/Owners, two (2) reside on the Golf Course and two (2) plus the aforementioned five (5) support the Golf Courses business expenses. All 7 voted, in accordance with their loyalty pledge to vote at all times together, approved and financially indebted all of you (1,631 homeowners) in perpetuity (forever) for the:
      (i) 19 December 2022 HOA Board’s SunBird Golf Courses “GC” Drainage/Stormwater Project and
      (ii) 9 April 2021 CC&R amendment paying your money to the GC.
      The above decisions, gave the BOD the authority to receive GC invoices, to pay your HOA money for GC expenses. Golf Course Source of Funds & Golf Course Stated Maintenances/Improvements Expenses:
      Norby Report Sunbird Golf Resort (available upon request); 2019 Site Visit Summary & Analysis of Golf Course. March 28, 2019, Submitted by: Kevin Norby of Herfort & Norby, (Golf Course Consultants). Page 11, states $3,236,200 in GC improvements/repairs/maintenance/construction required expenses. Page 13, funding sources, #4. Annual Assessments to All Residence of Sunbird. CC&R Amendment to the SBGR HOA, April 2021 (Sunbirdhoa.com/Sunbird CC&R 2021) Surcharge $300.00 to all newly purchased homes. These monies would be available to the BOD to spend on GC expenses. The April 2021 CC&R amendments are invalid per Arizona law. Kalway v Calabria Ranch HOA, AZ Supreme Court, Chief Justice Brutinel, writing for the Court, adopted a rule that an HOA cannot create new affirmative obligations where the original declaration did not provide sufficient notice to the homeowners that a future amendment would subject them to such obligations. Absent proper sufficient notice of a future amendment within the original CC&Rs, an amendment relying on a general majority vote will be deemed unlawful.
      HOA/GC Informational Meeting March 2022 (available upon request). GC SWMB Handout states $1,347,300 required expenses.
      STATEMENT OF FACT: All of the SBGRHOA legal documents for our community clearly state that the Sunbird homeowners are not responsible for the golf course, including its drainage system or any other golf course expenses.
      (i) 1999 Transition Lease (between the Sunbird Golf, Inc and Sunbird Golf Resort HOA. Section 5. Conveyance of Certain Common Area: “Nothing contained in this paragraph shall affect, increase or decrease any liability of (a) the golf course owner to the Association for any future damage caused to the Association’s property by the negligent or reckless actions of such owner or its employees, agents or any person or entity acting on behalf of the golf course owner, taken in the future, or (b) the Association to the golf course owner for any future damage caused to the golf course owner’s property by the negligent or reckless actions of the Association, taken in the future.
      (ii) CC&R dated 07/09/2015; Sunbird Golf Resort Homeowners Association, Inc. Amended, Restated, and Consolidated, Declaration of Restrictions. Page 16; Golf Course: 9 .2 Operation. Neither the Association nor its members shall be responsible for the costs and expenses incurred in the Operation and maintenance of the golf course, driving range, and related golf operation (except for the payment of membership fees, green fees, user fees, and other related golf fees).
      (iii) The CC&Rs (for Golf Course – dated Dec. 1, 1999) is consistent with language found in other agreements in that the Golf Course is not part of the common area of the Association.
      (iv) HOA CC&RS clearly provide that the Association is not responsible for the operation and maintenance of the golf course. See §9.2 (Operation).
      (v) While §9 of the 1990 Master Plan states that the drainage system is “maintained by the Homeowners Association and golf course employees,” this has no legal effect because it was not a contract.
      (vi) Sunbird HOA BOD manufactured a reproduction excuse (act done with intent) to give the mismanaged golf course, at the total cost to ALL the homeowners, an advantage inconsistent with the BOD’s official duty and the rights of others. In addition, the Sunbird Homeowners are NOW providing financial windfall for the Golf Course owners in perpetuity.
      (vii) The Golf Course is owned separately from the SunBird HOA and its common areas. As numerous documents indicate, including the Copper State Engineering report, the golf course land is owned by SB Golf Course Club Inc (AZ Corp Commission ID: 10103203) with the principal officers: Julia Anderson, Jean Pritchard, Dave White, Duane Dub, and Wayne Onyx.
      (viii) The Golf Course Owners/Members typically used arbitrary and capricious “Property Values” and “Stormwater” scare tactics to terrify Sunbird homeowners. What I do know, my home had a higher value in a golf course community when I bought it, and a well-run golf course helps maintain that value.
      (ix) A Mismanaged Golf Course that needs the homeowners to subsidize it runs up my HOA dues and Special Assessments and costs me money every year in perpetuity, and that does not add value but diminishes it. Selling a home in Sunbird will be channeling at best. Buyers (if disclosed) will have second thoughts about paying into a business that the HOA doesn’t own.
      (x) The HOA Board has clearly stated that the drainage system is “on golf course property.” The board’s statements in open / public meetings and townhalls make this clear. Any statement otherwise would contradict the board’s past statements.
      (xi) The Drains / Drainage System is on Golf Course Land. The maintenance and improvement responsibility falls on the Golf Course, not the SunBird HOA.
      (xii) The HOA BOD refuses (asserting attorney/client privilege information) to give homeowners the SBGRHOA Attorney “Legal Written Opinion”. Today you will never know why the BOD voted to make you financially obligated to pay for the Golf Course in perpetuity. Nor will you have an opportunity to vote on this issue!

      1. Dennis Legere

        Jimmie,
        This is a completely different situation from what you stated earlier. What your board has done both in the CC&R amendment and the policy decision is totally and completely illegal under Kalway. Your community has one choice to either challenge this amendment and policy in court or forever subsidize the golf course. Get owners together and raise the money necessary to hire an attorney. I would recommend Jonathan Dessaules or anyone from his firm. In my non-legal opinion you will win this case because Kalway is clear, and irrefutable, and get your money back. Do not delay time is of the essence. Speak to Jonathan as quickly as you can get an appointment.

        Dennis

  2. Fish7

    > Recently (12/2022) the BOD voted and approved effective immediately all 1,631 homeowners will not become responsible for the shared privately owned golf courses improvements/repairs/equipment in perpetuity

    I presume you meant to write “now”, and not “not”…

    If so, Dennis, isn’t that “creating a new obligation for homeowners”, and therefore require 100% approval by all members vis-a-vis Kalway v Calibria Ranch Supreme court determination?

    1. Dennis Legere

      Fish7,
      What are you talking about? This particular association was never responsible for the cost of the privately owned golf course. However, the board decided that association money should be used to subsidize the golf course. I advised the homeowners in that community that that act was totally illegal and to challenge the board for that action. They did and the board capitulated, after getting an opinion from legal counsel confirming their inability to do that. The question from the owner is that he wanted to see the letter from the attorney, and I told him, that the association was right, that letter is privileged information.
      Kalway had absolutely nothing to do with this issue. None of this was an amendment to the CC&R’s
      Dennis

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