New Civil Complaint – ARS § 33-1805
Hi everyone! Glad to find this group. I’m just in the process of finalizing a complaint against my HOA & Mgmt company, for Maricopa Superior Court because my HOA won’t provide me with access to any books and records as required by ARS § 33-1805 (over a month post demand letter now…). This is just a preamble to a much larger case involving my neighbor building a massive new structure in his side yard, but getting access to the information is the first step!
I was just wondering if anyone had a similar case or a case# related specifically to ARS 33-1805 and stonewalling from the HOA. I’ll be happy to provide a template for it for everyone, if and when my case is successful!
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Jon, you might want to do the ADRE Dispute Resolution Route, instead, such as was done successfully here: 24F-H013-REL. It’s only $500, and they can’t stick you with massive legal costs if you lose.
Hi, I read the case you provided. So, you only had to pay one $500 petition filing fee even with two occasions of the HOA breaking the same rule? So if same exact law is broken three times, it’s just one filing? I’m curious what it takes to prove the justification for civil penalty – it seems that burden wasn’t met.
Very few civil penalties are ever awarded. It depends of the proof and the severity of the violation. Totally at the discretion of the ALJ.
Dennis
PJ, yes, I could have filed and paid $1000 asserting two violations of the same statute. I chose 1 as being enough because I only needed to prove 1 that way (simplicity is nice) and I wanted to see how the whole process works. I used the second occasion to simply demonstrate that Respondent was a repeat offender. I’ve helped others through the OAH process and we’ve won every case so far. Knock on wood.
Civil Penalties are considered for cases where it can be demonstrated that the HOA has acted either punitively or in bad faith (see https://www.azoah.com/Vol42.html). You’ll need good evidence for that. If you decide to go the ADRE/OAH route, however, include that page in your exhibits because I have seen some judges that use a different (stricter) standard, and that’s not the standard for an OAH hearing.
It’s worth sitting in on a hearing (they’re open to the public). And it’s a good idea to get a recording (they’re free) of a case your assigned ALJ has heard to learn his style. Every ALJ is slightly different as to how they approach things like courtroom style, exhibits exchange, etc.
One other thing, is that you can do subpoena’s (free) with the OAH cases, and I’ve done that, too, to get records. I got mine issued in an hour. And you just email it to the HOA. That’s much cheaper and faster than doing subpoena’s in Superior Court. Just be prepared for idiots at your HOA to claim something stupid like (paraphrase) “anything and everything that we show to our attorney instantly becomes attorney-client privileged”. That’s not how privilege works, but my HOA tried that balognie.
Hope this helps.
Thank you, Fish7. I appreciate your advice. Can you explain more what you mean by free subpoena’s with OAH cases? Do you mean that you must have an active case filed with OAH against your community association to subpoena records related to that case? Why would you need to subpoena records?
PJ
An ALJ will issue a subpoena if requested and justified for record discover about a case before them only. Far too often associations refuse to provide the information that you need to prove your case against them and the subpoena is the only tool available to you to accomplish that. It is a very risky approach to file a case against an association hoping for a subpoena to provide you the proof you need to present your case. You bear the burden of proof and to engage in a case without that proof is simply throwing away $500. You can use the subpoena to get additional supporting documentation but never base your case on a hope and prayer of what you may get with a subpoena.
Dennis
Thanks Fish! I am considering this as a first step, although I may go straight to Superior Court just given the other issues involved. How do I find that case there? (I went to the site and couldn’t find a way to search cases…).
Jon
No worries…found it! Thanks!
Jon,
Failure of associations to provide record requests is probably the most litigated aspect of these communities. If the request is reasonable and not a fishing expedition, it must be supplied within 10 business days. When someone asks for all canceled checks for 3 years, that request will be rejected and upheld by any court, but if they asked for canceled checks for 1-3 months based on a specific concern from summary reports, then those will be upheld. As long as everyone uses reasonableness in their records request the association has no leg to stand on in denying those requests. Many associations try to hide behind the non-profit corporation record provisions to limit what can be asked. Still, they do not apply to these communities, and these community statutes list “all association records.”
All ARC decisions and supporting documentation are association records and must be made available to anyone upon request. Many associations have claimed that those records are personal and can be withheld, but that claim is false. The design guidelines apply to everyone the same and any resultant actions is visible to anyone simply walking by the home.
Dennis
Belated thanks for the response, Dennis!