Providing for a reasonable number of homeowners to speak on each side of an issue
I have not been able to secure access to narrowly requested books and records of the association, nor have I been granted the opportunity to speak at committee and board meetings of my HOA. I am a disabled homeowner living in the planned community of Civano in Tucson. The City of Tucson has zoned the community under PAD-12, a planned area development that ensures ADA access on both the private roads and the common areas. Homeowners paid a municipal improvement bond to live in this specially zoned community and the HOA is obligated to comply with the City zoning. The current HOA Board is not permitting me to speak about ADA access at committee or Board meetings. The same small hand-picked group of Board members and their friends are chosen to speak at meetings and the minutes are generated weeks and months later missing key financial information and decisions. Homeowners who appear at the meetings and attempt to participate are called “the audience”. The past Board president restricted any dissent by recognizing and calling on only homeowners who agreed with the spending. The budget was not distributed 30 days in advance of the fiscal year as required. Homeowners who objected to the 16% increase were not allowed to speak. The current president stated at yesterday’s open meeting that she will allow the homeowners only to ask questions, which she will address. She replies with her own opinion and does not refer to any guidance documents. I contemplated a disability discrimination action, but this is a bigger problem of multiple homeowners being disenfranchised of their rights. I am simply the example most obviously advocating for my rights. I am ready to take this matter to dispute resolution since my own efforts over the past year have not improved the Board’s willingness to comply with either the open meeting or books and records requirements. I would appreciate your thoughts on right timing and whether to petition over both issues or just narrow the dispute to the open meetings issue. Once the open meeting laws fall in to compliance, the Board may be motivated to establish and make available adequate books and records.
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Lora,
Welcome to the world of HOA’s. We have clear laws governing these communities that provide for transparency in the conduct of business for these communities. The transparency requirements are addressed in both the open meeting laws and the records request laws. Transparency is the key to building trust and respect in these communities and the fundamental reason why there are specific laws requiring that function. The problem is that the only enforcement tool available is for individual homeowners to sue the associations for violating the law. When this happens, the individual homeowners are attacked and made to be the villain by the association. The homeowner has to risk their own money on that action while the association gets to spend the community’s money in their defense. As a matter of fact the open meeting statute is the most violated statute in all of Arizona Law and I would venture to estimate that some aspect of that law is violated daily somewhere in this state. The Records request law is the single most litigated statute again for all statutes. Why does this happen? Because HOA attorneys and community managers provide guidance to the board that allows their interpretation of the laws or the use of non-profit corporation statutes to contradict the clear and specific provision of the law for these communities. For the record the non-profit corporation act cannot ever supersede any specific provision of the condominium act or the planned community act. This is well established case law, and any attorney knows that and if they do not advise their clients accordingly, they should all be disbarred. The association and their attorneys ignore the law because they can get away with it. Most homeowners will not take on these issues, based on the financial and personal impact of taking on this fight.
The law requires the board to allow any members present to speak on any issue before them to vote. If a specific agenda item is not related to handicap accessibility, then there is no requirement for the board to allow members to speak to that issue. If they have an open discussion period during the meeting you should be allowed to bring up any issue that you have relative to the governance or physical limitations of the community. If you have a specific concern relative to handicap accessibility for which you are requesting a reasonable accommodation, to allow you the opportunity to use any common property or to modify your home to accommodate your handicap then the association board is required under Federal law (ADA) to provide that reasonable accommodation. If the board refuses to provide you that accommodation, then you can file a complaint to the state attorney general who is directly authorized to enforce the ADA. The AG’s office has a division dedicated to this purpose. The AG will order the HOA to honor the accommodation and if necessary, sue the association directly to enforce the Federal law.
Use this power carefully.
While I cannot do any of this for any homeowner all that I can do is inform you of the truth of the laws protecting you and try to get the laws changed to provide greater clarity to eliminate the ability of misinterpretation or misapplication of the law.
I have another bill prepared for this coming session to specifically address clarity in the laws for open meetings.
One thing for everyone to remember, the law cannot dictate integrity of the board’s actions so what or how a board member acts cannot and should not be regulated in law.
Dennis
Thanks, Dennis. I’ll look forward to supporting your bill and appreciate your dedication to homeowner rights. The ADA access item was on the HOA meeting agenda. This planned community municipal bond project was built with narrow private lanes and no sidewalks. The same non-compliance that is blocking the ADA access is also obstructing fire and paramedic vehicles. I achieved a good result working with Tucson Fire Department to document the situation and will let the City continue dialoging with the HOA on that matter. The frequency of statute violations is sobering. My limerent thinking that the Board will self-correct as a result of dispute resolution has changed. You’re forthright reply is tremendously helpful.
Lora,
Any time. Whenever dealing with your board be as specific as possible. This issue prevents me from accessing this common property and I would request you provide some accommodation to allow me the access that I need to be able to use that property like any other homeowner in this community. Try not to engage in any generalities like this aspect is not assessable to the handicapped.
Dennis