Attorney Recommendation
Can you recommend an attorney to advise us on how we can best protect our 55 and over HOA from potential liability and safety hazards? Our Board is making decisions that breach our electronic security system for non residents to access our recreation facilities with brass keys and combo locks. In addition, they are considering installing a 5 foot ladder so 75 and 80 year olds can climb up to an upper level tier to retrieve tennis balls. They recetnly approved and resealed a hazardous and crumbling steap walking path, using volunteers since no contractor would do it because it is full of tripping hazards. Their response to the concerns of many homeowners about safety and liability is “we have never been sued before and we shouldn’t be so paranoid”.
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Janet,
Case law in Arizona has clearly established that HOA associations have a duty to protect the residents from safety hazards from both internal and external threats. The association has two primary duties, to preserve, protect and maintain the common property and to enforce the CC&R’s. Safety hazards on the common property are a liability of the association if it is due to their negligence in properly maintaining the property. While you can hire an attorney to tell them that they are still free to simply ignore that attorney, but the liability and duty does not go away. Very little can be done from a litigation standpoint against a board decision that are perceived to result in safety hazards, until something happens.
The greatest power and in many aspects of these association the only real power of any homeowner is the power to vote to elect and recall any board member with or without cause. If the board refuses to address the legitimate concerns of the community to safety hazards, then you have the right to request a special meeting of the members to recall that board and replace them with people that will take their duties responsibly. This is not an easy task, but it is achievable if enough community members act together to drive this action.
Nobody wins from litigation except the lawyers and the homeowners always lose because whether they win or lose any case, the homeowners always pay for the litigation cost.
Get your friends and neighbors together and demand that the board take action to eliminate the safety concerns in the community. As for the pool gate access issue that depends on your CC&R’s as to who can access and use the common property.
Please remember because any individual member does not like what a board decides to do does not make that decision wrong. Communities are made up of many individuals and boards are elected to make decisions which in their minds are in the best intertest of the community as a whole. Board will never and can never make everyone happy with every decision they make. But that is what you all elected then to do. If enough of you feel believe that the board is not acting in your best interest, you can attempt to recall them.
Dennis