Legal Recourse AOAH
Good Morning Dennis,
It goes without saying that your dis-favor with the AZ Board of Administrative Hearing is evident from some of your recent comments. It is certainly true that in recent cases homeowners are not winning favor in most cases.
What I perceive from my review of many of the most recent posted cases is the lack of proper documentation and often the lack of supporting governing documentation necessary to fight the good fight before the hearing judge. In my opinion some of the petitions that are filed seems only to be a means of venting for very angry homeowners. Believe me I get that.
It appears a petitioner needs supporting evidence that a specific CC&R or ARS statue has been violated that is
irrefutable and is clearly black and white before the administrative judge is a necessity, So many of the cases seem to lack that approach and end up disappointed. I understand not everything is black and white Lots of gray areas out there.
I would just like to state the the AZ Office of Admirative Hearing is still the most affordable recourse for homeowners still available to date. With that said the homeowners need to be extremely well prepared, well documented and level headed before presenting a case before the ABOAH. Often Dennis I see you offering your help when someone is considering filing a petition. Those folks would be wise to accept that offer.
Your help, knowledge and experience in HOA issues is unbelievably valuable.
Thanks for listening,
Bob G.
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Robert,
I totally agree with your assessment, that in the past many of the cases were lost based on a misunderstanding of exactly what an ALJ can hear and that what is clearly wrong is totally irrelevant in this tribunal if it does not directly violate a specific provision of the law or the governing documents. For many years the ALJ’s bent over backwards to help the homeowner in the unfamiliar environment of the ALJ hearing room. But still the burden of proof was on the homeowner. Lately more and more cases are being lost not because the homeowner does not have a good case with clear and convincing evidence but because the ALJ is totally incompetent and does not understand the nature and language of the governing documents or the exact statutes. The case that caused me to give up on all ALJ’s is one where the association was conducting elections “pursuant to a proxy” but called them delegates. The judge was convinced by the association attorney that the non-profit corporation act allowed delegate voting and since the planned community act did not specifically mention delegate voting she allowed it to stand and denied the petition of the homeowner. This was absolutely stupid. The statute uses the language of “pursuant to a proxy” it does not limit the prohibition to “proxy voting”, additionally the statute specifically prevents anyone from submitting a ballot who is not the authorized voter. In this community the delegates vote for everyone that does not cast an actual ballot and these individuals decides every issue before members because they vote for everyone who does not vote irrespective of how those people feel on the issue. This is a clear violation of the law, but the ALJ was snow balled by the association attorney and did not know enough to understand that that attorney was full of BS. I will be introducing legislation that it will make it perfectly clear to any 5 year old what the intent of the law really is and maybe we can actually get an ALJ to understand as well.
If you want true justice you cannot bring your case before any ALJ and expect the actual law to prevail.
Dennis
Thank you for working on this important legislation, Dennis. We had an interesting case in my community. A homeowner objected to the voting process used by the HOA and although she did not prevail on appeal, the court required our HOA to clarify the voting process via written resolution. The case is Tober vs. Civano 1 HOA (2010). The board complied and added delivery methods other than in-person voting at the annual meeting. Last year the management company implemented electronic voting using a technology product that they administer and control. I’ve requested the voting material so that I can verify the vote count and of course was told by the HOA attorney that they are not required to provide voting records to me. There should be an audit trail that reveals every vote and changed vote identified by unique user ID. There were 2 members appointed to the Nominating & Elections committee: the VP of the current HOA Board and the husband of the then-president of the HOA Board. If you need any worker bees on this, I am happy to offer my time and efforts on this.
Lora,
I know of the case you cited and the individual who brought the case very well. What was happening in your community was absolutely wrong and totally in violation of the current law. I’ve two bills that will be introduced this year that will correct the errors made by both the Superior and Appellate Courts in that case. Online voting and action by written consent is currently only authorized for non-profit corporations and the statute that does that is specifically excluded from use in these communities. You cannot use the general provisions of “other form of delivery” to negate a specific provision that excludes both written ballots without a meeting and online voting. I swore to that individual that I would not stop until such time that I finally made the law clear and prevented HOA attorneys from creating their own law. The election of board members must take place at a meeting of the members where members are allowed to vote in-person or by absentee ballots. How Absentee ballots get there I really don’t care, they can come by pony express, regular mail, e-mail, fax, or online voting but you cannot allow any of those processes from preventing members from voting in-person at a meeting if they chose. Personally, I would never trust any product developed and controlled by any management company and would highly recommend that any homeowner in this State do the same. While I could not prevent that application in my legislation, I have insisted that any member be allowed the choice between using an online system of submitting a paper in-person or absentee ballot. There are many commercially produced online voting programs that are solid and used for many companies as well as communities across this country.
I fully understand and support both the use of written ballot without a meeting and online voting but only to applications that are appropriate for those tools. The Bill will clearly define those applications.
Your attorney and community manager are absolutely wrong in denying you access to any voting records. The current statute is clear on that fact. While on-line voting terminology is not specifically included in the statute mostly because it is current prevented from being used by the same statute, the law requires that any member may request to see and be provided access to any and all voting records of the community whether secret ballots are used or not. Your attorney cannot default to the fact that online voting systems reports or records are not specifically called out in statute, because they are specifically excluded from use by those same statutes, as an excuse for not providing access to any voting record within one year of any election. HOA attorneys and community managers should all spend far more time explaining exactly what the law allows to these communities instead of trying to create their own laws that suit them better. Only the Legislature gets to write laws in this or any other state in this country and no attorney has that right, and anyone that tries should be disbarred from practicing law.
Once my bill is introduced, I’ll be able to share it with all of your and I believe that it will definitely address all of the issues you and Joan have faced in your community. I’ll surely accept your help and may ask you and Joan to come to Phoenix to testify in committee in support of my legislation.
Dennis
Recently, we’ve been utilizing ChatGPT’s free version for handling ADRE/OAH cases, and the results have been nothing short of extraordinary. Every case we’ve taken on with the assistance of ChatGPT has resulted in a win.
What stood out was the quality of our filings. The attorney wrote to the ALJ, “Petitioners… clearly had legal assistance throughout the case (evident from his filings) and were well prepared, organized” and the filings “appear to have been written… by someone with legal experience, as it is not representative of a pro per litigant.” This was against the backdrop of the HOA being invoiced significant legal fees, to the tune of $36,000, only to lose against a homeowner assisted by a free AI tool. In a different case, after the hearing, the ALJ pointed out that my cadence, style, and preparation (all compliments of ChatGPT) were better than some attorneys he knows.
The case (not ours) involving proxy voting was particularly intriguing to me as I had listened to it as part of my preparation for my latest Hearing. After the surprising outcome, I analyzed the case specifics through ChatGPT. To my surprise it echoed the ALJ’s decision. This exercise revealed the nuanced legal definition of ‘Proxy’ — a detail I had initially overlooked. Correct or not, this is testament to how ChatGPT can offer valuable insights, potentially flagging strong arguments from the opposition and helping to avoid underestimating their case.
On a broader note, I believe ChatGPT (free), and perhaps the professional version at $20/month, is a worthwhile investment for both homeowners and HOAs involved in ADRE/OAH proceedings. In my experience, HOA attorneys often exhibit bias, and that is their downfall. That bias has costed our HOA over $100,000 wasted battling homeowners – and the HOA has never prevailed, losing every fully litigated case. What’s needed is an unbiased perspective on governing documents and relevant statutes, something ChatGPT can provide. While it’s not flawless the professional version does impressively well (scoring in the top 10% of LSAT and ABA Bar Exam) making it an invaluable tool in legal proceedings, especially for the homeowner.
In our cases, ChatGPT efficiently handled a multitude of pre- and post-hearing filings, such as Motions, Responses, Replies, Sur-Replies, Memoranda, etc., — at no cost. This level of efficacy and accessibility makes it an indispensable resource for anyone involved in ADRE/OAH or small claims cases. Its impact on our cases has been profound, demonstrating that success in the legal arena can be both achievable and cost-effective.
Fish 7, thank you so much for making me aware of the Chat GPT tool and associated capabilities. This is very helpful information.
Dennis and Fish7 can we get assistance from you with our fight against our HOA that is violating the CC&R’s and R&R regarding the homeowner community vote being needed for an $1.8m LIP and $8-$10k Special Assessment they want to impose. We are going to have to go to ALJ as we are running out of personal funding for a personal attorney and representation. Can we ZOOM or conference call. We are desperate and your help is our last resort and salvation.
Janet,
I’ll gladly work with you to help you understand your rights and obligations as well as your options, but we are not attorneys and cannot represent you in any way. Your association is required to comply with their governing documents and the law. This is not optional. If they fail to comply you have three options, a recall vote to remove the entire board, a petition to ADRE for an Administrative law judge to force them to comply with the law, or a civil lawsuit in Superior court to force them to comply with the law. For the most part I’ve lost faith that any homeowner will get a fair and impartial hearing before any ALJ, anyone can try but you are risking $500 on that venture. You absolutely bear the total burden of proof that the association violated either the law or the requirements of the governing documents. But sometimes even with that proof the ALJ just differ to the arguments presented by the HOA’s attorneys. Who will throw everything at the judge hoping that something will stick and dismiss your case. Write me at the e-mail address at the top of this page and give me your number and I’ll call you.
Dennis