e-mail me at azhoatruth@gmail.com.
Dennis

Carol;
While Roberts Rules have standard guidelines for meeting minutes, Association boards have no obligation to use Robert’s rules for conducting their meeting or recording their minutes. Because a secretary transcribes such minutes does not mean that the board has to accept those minutes as written. Any reasonable board would never allow such minutes to become a permanent record of the association. Having said that there are far too many unreasonable boards to go a round and use the minutes to embarrass or intimidate homeowners who disagree with them. I’ve seen boards approver minutes with blatant lies about what a homeowner said or did in a meeting because the board did not like that homeowner who simply was trying to get the board to comply with the law. The plan was that if they embarrass him enough he will stop coming to the meeting. All too often that tactic works, and the board simply continues to do what ever it wants to do irrespective of the law.
My recommendation to you is to record the meetings and attend the next meeting, during the motion to accept the minutes identify that the minutes are not correct and show the board exactly wat was said. If they refuse to alter the minutes to reflect the truth than inform them that they have thereby approve a falsified record for the association, which could result in legal action against the board members directly and individually. Their indemnification from liability does not protect them from intentionally falsifying an official association document.

Dennis

The HOA fined me for roughly 3 years for violation of 33-1808 for flying the USA flag on a flagpole in my front yard. My complaint also included that and the judge didn’t think 3 years of fines for flying the flag of the USA on a flagpole violated 33-1808 either. For what it is worth, we are also in the Pinal County Superior court on the same topic of the HOA not being able to write Rules without a valid Restriction. However, the Superior Court Judge has decided to wait for the final action from ADRE before making his final decision. As ADRE has decided that the HOA no longer needs a valid restriction to write Rules, the ADRE has just written a blank check to HOAs to write whatever Rules they want. The HOA argued that having a valid Restriction was needed to write a Rule. Then the HOA argued that NOT HAVING A VALID RESTRICTION was EVEN BETTER as there could be no conflict between the Rule and the Restriction if there was no Restriction. I have to admit, it must be a brilliant strategy as the ADRE Judge bought it hook, line and sinker. The ADRE now says:

1/30/2020 Decision Due
1/30/2020 TRANSM Transmit to agency
2/12/2020 Action Due
3/5/2020 Agency response due
3/9/2020 ALJFIN ALJ Decision final by statute
4/19/2020 45 day tickler for AA after transmit
7/7/2020 Archived

I have heard nothing about the 3/9/20 “Decision final by statute”.

I guess Time Will Tell?
Tom

Nick,
What your association is attempting is totally illegal. You are absolutely correct in your read of the statute. There is an “and” not an or in the law and that will supersede whatever your association has in its bylaws. As a direct violation of law any outcome from that ballot measure can and will be nullified by either a superior court or administrative law judge.
My recommendation to you is to write a letter to the board and the management company informing them that what they are attempting is in violation of Arizona law and if they continue to attempt to conduct this ballot measure they will be challenged by a petition to the Dept, of Real Estate and they will have the measure invalidated and they will be liable for the petition fee and subject to a fine at the discretion of the ALJ. This is important that you inform the association before the meeting that they are violating the law. If they then go ahead with the election it is in total disregard of the law.
The reason the association is doing it is they believe that if they allow absentee ballots that more people will vote and they will most probably get the majority needed to pass the measure. They will tell you the story that it is based on the cost of sending absentee ballots to everyone. Don’t believe this for a minute that is nothing but crap. If they were truly concerned about the cost they should have planned better and provided for the cost of whatever they are trying to do in contributions to the reserve fund over several years instead of trying to sneak in a special assessment.
Dennis

My last visit to ARDE OAH to resolve our above issue in January 2020 regarding the HOA writing Rules and Regulations WITHOUT a valid CC&R ended with the OAH judge allowing them to do it. With Dennis’s help, I supplied case law from AZ Appellate Court, AZ Supreme Court and US Common Law. None of it mattered to her. She made it quite clear that it was her court. The unsaid part was that none of that case law mattered in “her court”. Be aware that ADRE OAH is not always the best place to reach out.

Chris;
I’m not sure what exactly you are looking for. While title 10 in section 3821 allows corporate boards to take action without a meeting, Title 10 for corporations have no open meeting laws. HOA’s and Condo’s do have open meeting laws that take precedence (specific statute always take precedence over general statutes) over the Title 1`0 provisions. Any communication between a quorum of the board discussing community business even if no action is taken even by technological means (e-mails) constitute a meeting subject to the open meeting laws for HOA’s and Condo’s.

There are many ways to conduct business under the open meeting laws but it take forethought and planning. If you wait to the last minute or don’t think ahead as a board it will seam hard. If you actually thing about what you have do ahead of time it is quite easy to conduct all the business you need within the normal meeting schedule for the association.

Dennis

Dani;

Interesting question. There is a lot in your question. Let me start with the basics. Arizona Laws are extremely weak relative to limitations on the ability of the association to determine their annual budgets or the subsequent assessments from those annual budgets. For an HOA the law limits the ability of an association to raise the annual assessment to 20% above the previous year with out approval of 50% of the community. There is no such limit for Condominiums. However, for Condominiums there is a very weak provision that addresses the need of the association to have each annual budget ratified by the community, but the rejection of the budget will require greater than 50% of the community to disapprove of the measure. In this scheme everyone that does not vote at all is counted as approving the budget. Making it virtually impossible for any community to reject any proposed budget by the Condo board. These are the classic influences and results of CAI and AACM in the structure of our statutes prior to our existence.

The association is never authorized to increase the annual assessment in excess of the limits established in the CC&R’s. This is little relief because most CC&R’s provide very little limits on the ability of the association to increase the annual assessments. But many if not most CC&R’s to require some level of community approval for special assessments above the normal annual assessments for routine maintenance and operating cost.

This is where many association boards have taken the strategy that to avoid having to get member approval of special assessments they create a plan where they will increase their annual assessments by 20% every year until they get the money they need to complete the project that they wanted the special assessment for. In doing this the presumption is that they are not exceeding the limits if any within the CC&R’s and staying within the state limits. This is not approving a budget in advance for future years but rather a strategy for getting the money they need for a project while excluding any member approval of that money. Many association that I’ve run across utilize this perfectly legal if not inappropriate way to circumvent any member input into their assessment growth.

I’ve tried for years to increase the resale disclosure requirements for properties to identify these type of tactics being used by an association to potential buyers before they buy these homes. I’ve presented legislation 3 out of the last 4 years on this subject. But in all cases that legislation was opposed by the Realtors, as a treat to their ability to sell homes in these communities. They would rather make the sale than inform the buyer of the true financial obligations that buyer will experience after he/she buys a home in these communities. There is no current obligation for an association or a home seller to identify association plans for future special assessments or of strategies for 20% assessment increases every year. You are also not obliged under the law to provide annual assessment history that would reveal the 20% increases every year in the immediate past. All of this is simply wrong and totally unfair to potential buyers, but as long as I cannot convince the Realtors that true disclosure is the only fair way for them to treat their clients we will never get better laws in this area.

As for disclosure by the association the truth about a vote for assessment increases. The truth and full story of any issue presented by the association for member votes is a very rare if not none existent commodity. You will be fed their story and their spin on the issue to convince you to vote as they want. Don’t believe a thing they say. Investigate it on your own, ask questions, look for facts and evidence of what is really going on. Talk to other homeowners seek the truth from any source available they do whatever you can to spread the truth on the issue to your neighbors. This is why SB-1412 that is being considered in the legislature this year is so important. This bill will protect your fundamental freedom of speech and assemble to organize community involvement in community issue. You cannot legislate integrity but you can legislate the ability of the community to free speech and seek the truth so that informed decisions can be made by the association members in the affairs’ of the community.

Dennis

Hello Dennis,

I found the DeBoer v. Turtle Rock III HOA decision, but not anything to do with “tribunal” as shown in the OP above, nor language about emails for decision making. Can you point me to a copy of what the OP refers to?

As you might guess, my HOA board and management company have been conducting business via email lately. I’m asking for all emails and I want to stop the recent opaque actions.

Hi Dennis,

I have requested a copy of the Feb 2020 board meeting via email to the HOA president. At the March meeting he told me that he responded. I never received his response and have requested via email that he resend it. He told me that they were going to put a “link or something” on our website to view the meetings. I doubt this will ever happen. Others have also contacted board members to view the recordings to no avail.

What now?

Dave

Thank you Dennis