Certified Mail Requirement
Hello Dennis
We are once again experiencing change-over in our community management. Our interim Community Manager (same company as before – just a new person) informed one of our residents that in order for her to comply with the homeowner’s request for records, the request must be made in writing AND sent via certified mail. She said this is pursuant to AZ State Statute. The resident, who is very knowledgable regarding the statutes, challenged that claim. The CM responded that she had been advised by the Association’s legal counsel that certified mail is the requirement. That resident and I have both read through 33-1805 numerous times and have searched the web for any other source of information the CM may have been quoting, and neither of us can find a single reference to certified mail for requesting association records. I believe this is a BS move on the part of the CM and/or legal and/or our Board, or all of the above. Can you clarify which party is correct in their understanding of the requirements?
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Rhonda,
You are absolutely correct request for association records need only be provided by written request. That can be a simple as an e-mail. There is no requirement for certified mail in ARS 33-1805. This community manager should try to actually read the law before they try to quote it. But then again there is no requirement in community manager training that community managers actually know how to read. Just because he/she claims to have been told this by the attorney is totally irrelevant because attorneys will say anything that you are willing to pay for them to say. But then again, I cannot believe that any attorney said something to easy to prove wrong. It is one thing to interpret the law wrong but a totally different thing to make it up.
Dennis
Oh, goodness, Dennis….we are a hot mess over here! Thank you for your clarity and for confirming what I and my neighbor believed to be correct about the law. It is sad that there is so much willingness, on the part of those who are supposed to be helping us and protecting our assets, to refuse to stand up for what is so blatantly right, to refuse to educate themselves, or to blatantly mistreat the residents of the community! I thank you, again, for all you do!
Out of additional curiosity, would there be any reason to believe that an internal policy of a management company or a branch of said company would supersede AZ Statute; ie, could they hold homeowners to a more stringent requirement than what the law stipulates? And if so, could they apply that stipulation suddenly, without letting owners know, and/or in an inconsistent fashion?
Rhonda,
The sum total of all restrictions and covenants in your community or any common interest community lies in your CC&R’s. But state law is structured in a way that most of the provisions in those statutes supersede any contrary provision in the CC&R’s. State Law is the highest level of authority superseding any lower-level document. Members of a common interest community are in no way obligated to any provision in an internal community management company policy, they are totally separate and distinct from any association rule or policy. The association has no authority to establish any rule that violates a provision of a higher document for the community. State law is the highest rated document and as such any rule or policy adopted for the community can never supersede state law and that includes any community manager policy, they the association adopts as their own.
So, the direct answer to your question is “NO”.
Dennis
Again, many many thanks!!!
Sorry to pull you deeper into the weeds of this situation, Dennis, but here I am again!
I have gone back through the language of ARS 33-1805 (A). What I see now when I read it with new eyes is that the only thing that must be provided in writing is proof that a person is the designee of an association member when the designee is making the request. The language is repeated two more times after the opening sentence and the structure of the sentence remains exactly the same each time: ” member or any person designated by the member in writing”. What this leads me to believe is that the request for records need not be, specifically, in written form; that the law leaves room for a person to present in person to their association’s representative, whether that be the Board Secretary, Board Treasurer, Board President or the Community Manager/Management Company.
Could I possibly be correct in this interpretation?
Rhonda,
I believe that your interpretation of the actual language goes too far. A verbal request has no qualifying evidence of when it was made. If the law is to set a timeline for response it must be from a verifiable starting point. With a written request the receipt of that document happened on a specific time and date from which to measure the required response. When you send an e-mail it is time stamped and that provides the necessary starting point. Interpretation of the law is reserved to licensed attorneys, that is why I’ll never interpret the law for any of you. I will tell you what it says, and the literal meaning of the words used to describe that provision. I caution all of you out there to not try to interpret the law and then base your actions on your interpretation. What it says is what it says and that is all. All request to view association records must be in writing from either the member or their designated representative. To designate a representative also must be in writing.
Dennis
Understood, Dennis! Thank you!