Karolyn,

Amy is absolutely correct. There are additional provisions that stipulate that the board has no authority to elect board members as that is reserved to members. So only the members have the power to remove or recall elected board members.

Dennis

Huck,

The good news is that just today I spoke with two legislators that were willing to sponsor legislation to address this abuse of power, I’ve provided them a draft proposal that address your specific case and the same issues that affect so many communities in this state. What the final bill will actually look like is yet to be determined, but at least a solution is in the works.

Dennis

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

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.

Hi Karolyn,

ARS 33-1243 is for condominiums and 33-1813 is for planned development communities (HOAs) board member removals. Hope this helps!

Speaking of open meeting laws. Of the 5 exceptions to open meetings, do any of them allow a board to discuss in executive matters that are on the general agenda BEFORE they discuss it in the general? In other words, can the board discuss their thoughts and ideas and with the admonition then of a property manager present and that has brought up there being “extra time” the board should use it to discuss BUT NOT AGREE ON what would otherwise be entirely discussed in the general meeting?

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 for the response. I had our realtor check and recently the declarant has offered one unit for sale (985 N Granite Reef Rd #140) at price way above market value. This clearly is a recent attempt to subvert the statute. However there are records of the same declarant buying units (not selling) several years back. It is clear we need better legislation. The legislation should also hold the AZ licensed property management companies liable in any lawsuit since they are violating the established statute. We have a homeowners FB group and can get owners to also write to legislators in district 008. Some owners rent out their units, so they can write to their legislator also.
– Huck

Eric,

What you are experiencing is what is known as the period of declarant control where the Declarant is granted by himself a dictatorship over the community. The members cannot elect a board and have absolutely no say in the operation of the community. This is ripe for abuse, and from what you have described I’ve seen even worse abuse by declarants. and I’ve tried to provide legislation to address this for planned communities all to no avail. There are in fact laws existing limiting the period of declarant control for condominiums but not for planned communities. I’ve drafted legislation to address this and have pitched it to legislators in the Queen Creek Are and Oro Valley are based on specific community issue in those districts. If you want to protect and establish your right to self-governance of your communities, then you need to write your legislators and ask that they sponsor legislation to protect that fundamental right. Have them get their assistants to call or write me at the e-mail address above and I’ll gladly meet with them and explain my proposed solution. Remember Declarants have rights too and my proposal strikes a balance between homeowner rights to self-governance and the right of the declarant to complete the development and sale of the community without interference from the association. This is a far-reaching issue and a significant problem for many communities.

Dennis

Carrie,

Since I answered this question directly by e-mail, I’ll summarize the answer for the rest of the members. What was provided was a survey not a request for special meeting of the members for the purpose of doing anything. Of the 5 issues on the survey only one is actually actionable by the members, and that is the recall of a board member. The association has absolutely no requirement to act on the survey. To do that they would have had to circulate a petition to hold a special meeting of the members for the purpose of recalling the board member by name. If they got the required number of members to sign that petition for the special meeting, then the board would have had to call for and hold that special meeting within 30 days and the members could then vote on the issue. Someone can sign a petition to call for a meeting of the members without agreeing to vote on that issue at the meeting. The petition does nothing to affect the recall it only calls for a meeting.
If you process the petition properly you could use an electronic signature tool for the signature portion, but you would still have to identify the date of signing, the printed name and lot or address of the member.

Dennis