Failure to Follow ByLaws
I have been reviewing our HOA By-Laws and I am realizing that after our declarant turned things over to the regular board in 2021, the boards since then have not abided by the by-laws. They only refer to the CCRs which don’t address everything that is addressed in the By-Laws. For example, our By-Laws state there should be a nominating committee for board elections. There has never been a nominating committee. Instead, there is an election committee who has dictated everything. However – our By-laws says the Board may appoint such committees as it deems appropriate to perform such tasks and to serve for such periods as the board may designate by resolution. Each committee shall operate in accordance with the terms of such resolution. There has never been a resolution appointing an election committee much less designate any terms for the committee. And now they are saying owners can only vote by absentee ballot and they won’t accept ballots at the annual meeting. Our By-laws specifically say the election of directors takes place at the annual meeting.
There are other things like changing from accrual to cash accounting which they can do but the by-laws say the following management standard of performance shall be follows unless the board by resolution specifically determines otherwise. They talked about it and they voted on it – there is NO resolution clearly stating the change to the bylaws or the authority to do so.
Where do we even start with addressing the complete failure to follow the written by-laws? It’s like they didn’t even read them? And no- the CCRs don’t address any of these things to override the bylaws due to conflict between governing documents. Any advice or suggestions is greatly appreciated.
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Samiharrell73.
Your association must either comply with its governing documents or change them. There is no option to be noncompliant just because they want to. All homeowners must do the same. The problem is that while the association can enforce the governing documents, the only way homeowners can do the same with the board is through the courts, at great legal cost. I just provided a detailed response to a similar question today. We have the ADRE process and an Administrative Law Judge to force compliance with the governing documents that does not require attorneys but still now costs $800 per issue. For the last 20 years, that cost was $500 per issue, which was, in my opinion, excessive, but the current ADRE commissioner just changed that fee to $800 per issue, which is totally unjustified and simply a way to discourage the use of the process enacted by the legislature. This is what happens when a Democrat is elected governor of this state. We all have the opportunity to change that on November 3 and before. I’ll work with the legislature to reverse these fees and provide fairness in the dispute resolution process, but if Hobbs is allowed to control all state departments, Arizona has no hope, and we’ll end up like California, Minnesota, and Illinois.
Dennis