Board not responding
Need help concerning the Board not answering or responding to questions. They state the information is protected attorney privilege , under litigation or just refuse to answer or provide misleading and wrong information. There is no litigation, no privileged information is requested. What can be done?
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I’m having the same problem.
What did you ask for? Any information from an attorney or information relative to a current litigation would be privileged and protected. The most violated statute for these communities is the open meeting law the most litigated statute is the records request law.
Associations across the state repeatedly ignore or violate the records request statute. The statute for a planned community is ARS-33-1805 and for a Condominium is ARS 33-1258. Read them. There are some restrictions but other than those specific restriction the operative statement is “all financial and other records of the association shall be made reasonably available for examination by any member, or any designated representative designated in writing as the members representative. The association shall have ten business days to fulfill the request for examination.”
If they fail to comply with this, they are violating the law, and you can file a petition to ADRE to have an administrative law judge review the case and mandate that the association provide the requested records. Do not file a petition without talking to me first via e-mail. It will cost you $500 for every issue in the petition.
Dennis
Hi Dennis,
There has been no litigation concerning this issue by the owners affected. One reason the Board has refused to give information is based on their statement that there is a possibility of potential litigation. This is not a reason by the law. The HOA attorney provided information to the Board and told the Board it was privileged: Based on the attorney opinions the Board then took negative fee raising actions to some the owners but Board will not share or explain the Boards actions. Board and attorney mantra is everything is privileged information. Petitions, emails, meetings etc have been sent to the Board. The one consistent explanation provided by the Board is they need more money to lower HOA fees. Yes, emails where never responded to. The 10 day rule is ignored. There has been no open meeting on this issue. There is no benefit to the Board to provide information and without information we are stymied.
Again no matter what the attorney or board says it is all irrelevant. The law is the law, depending on exactly what you asked for if it is not explicitly excepted all records of the association are subject to records request. If you believe that your request were reasonable and reflected an actual record of the association then you can petition the ADRE to have an ALJ hear the case and decide the truth. I simply caution you and anyone that in the last 2 years the quality of all ALJ decisions have been lacking at the least and most down right and absolutely wrong. These judges are totally biased and swayed by whatever the attorney tell them because they have absolutely no clue about property servitude law governing these communities. If you want to win a case before an ALJ you absolutely need an attorney and if you’re going to do that you might as well go to Superior court and get a real judge, instead of these bozos. You have the full extent of the law available to you, the court costs are a quarter what you will spend for an LAJ hearing and there is no additional cost for any additional issue you want to bring forward.
While e-mails between board members are typically not maintained as records by most associations if challenged in court they can and will be subject to subpoena from the judge upon request, no matter if they were officially retained as records or not. Because an attorney says anything does not make it true. You have to understand that at all times. Their job is not to tell the whole truth or any part of it at all, their job is to do and defend what their clients want them to do and did. That is why no attorney is every sworn to tell the truth in any litigation. Their job is to distort the truth as much as possible to make their clients look as best and innocent as possible. They can and will use any distorted argument of the law to try and convince the Judge of their perspective. If they don’t, they are not doing their job.
Dennis
Dennis,
Thanks for the information – another avenue offered by the state is arbitration. Any suggestions on this process. Need an attorney?
Apparently you have a lot of experience in understanding the situation that HOA home owners are facing when dealing with a HOA Board. Do you offer a case review service to help guide owners?
Mark,
I’m not an attorney so I do not have access to the easy access to case law available to all attorneys. I find relevant case history based on brute force review. As for Arbitration no homeowner should ever feel that arbitration is a good option. Homeowners will always lose arbitration cases, especially if you attempt to enter arbitration without the support of an attorney. You have a far greater chance of success in court.
Dennis
This biggest disadvantage to a home owner is the cost of going against a Board that has almost unlimited attorney access and funds. Does the “Arizona Homeowners Coalition” have attorneys on retainers. Do you keep a record or scorecard on Attorneys that have the ability and success in winning cases? Do you maintain a referral system with attorneys that gives home owners a package deal on costs? . To go to superior court what would be an estimated costs and time?
Mark,
We have none of those resources. We are a volunteer organization that has no membership fees and I cover most of the cost of this association out of my pocket. Any time to try to litigate against the association you are essentially Sueing yourself. Win or lose the homeowners always end up paying all litigation cost. Only the attorneys win with any litigation which is why they give so much bad advice to Association boards. If the association gets sued, they make money right or wrong, win or lose. There are no Attorneys that I’m aware of that will represent a homeowner pro-bono. In fact, there is only one law firm that exclusively represents homeowners against their associations, and that law firm is Dessaules Law group. In all cases most attorney will represent you at an hourly rate and the cost of litigation could range from $10,000 to $200,000 depending on the complexity of the case. That is why the ADRE dispute resolution system at $500/issue is relatively affordable.
Dennis