AZHOC - Arizona Homeowners Coalition
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recordings

Hi Dennis, I posted in a question from February so maybe you didn’t see it so I’m posting this. A couple of us are getting ready to file a complaint with ADRE re the tapes...
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Parking CC&R

I have an update to my previous question. I just received an email back from the city of Surprise telling me that the Surprise Farms streets are “public and maintained by the city”. Our HOA...
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HOA Parking

In another post regarding HOA governing street parking, I read “See ARS 33-1818. The only problem with that legislation is that it grand fathered any CC&R restriction that existed prior to the enactment of that...
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Vehicle parking

I purchased a home in the particular country club in 1987. I have a van, which is specially designed for my landscape photography. It was quite expensive. I parked it in an area adjacent to...
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  • From Carol Payne on No access to community clubhouse

    Dennis,
    The complex I live in is a condo complex, not a planned community. The CC&R’s state:
    1:6 Portions of the Project for which title is held by all of the owners as tenants in common, including the recreational common area.
    I’ve owned since March of 2018 and do not have access to the clubhouse nor does my key card work electronically to access the clubhouse, only the pool and jacuzzi. Neither do any of my neighbors key cards work to access the clubhouse. And we are not behind on our HOA dues either. Apparently this has been going on for a number of years. Do we have the right to ask the members of the board who have been serving on the board for five plus years to step down as this has been happening on their watch? And yes they are using common property for their sole and exclusive use, while only allowing homeowners access if they let us in to use the clubhouse. And yes I do believe there is more to this story but as a relative newcomer I get only second hand information from long time homeowners. Thank you.

    Go to comment
    2019/08/12 at 8:54 pm
  • From Dennis Legere on No access to community clubhouse

    Carol;

    I apologize for the delay in responding to your earlier message for some reason i was not notified that the question was there. To answer your question i actually need more information. Is your community a condominium or a planned community like an HOA? Why is that important, you may ask it is relative to who actually owns the common property of the club house. In a condominium the association represented by the board does not own any of the common property, the unit owners awn it all collectively. While the board can establish reasonable rules on the use of the common property they cannot restrict access to the facility to all other members of the community. In a Planned Community the association as represented by the board actually owns the common property, and not any of the individual homeowners. That board does have the authority to ban use of the common areas based on violations of the CC&R’s or non-payment of assessments.

    I’ve a feeling that there is more to this story than what had been mentioned in your question. I cannot ever in my wildest dreams imaging that a community would stand still and allow a board to ban everyone from the use of the common property that was granted them in the contract they entered when they bought their individual homes or units for 10 years without removing that entire board from office. Nor can I imagine any board actually doing such a thing. Taking common property for their sole and exclusive use. While i continue to be amazed every day with what a board can attempt to do under the guidance of their community managers and attorneys that are absolutely illegal, so i should never assume that anything is not possible.

    If you provide me more specific details of what is going on in your community either in this public forum or directly to my help@azhoc.org email. I’ll be better able to answer your question.

    Thanks
    Dennis

    As I alluded earlier in either type of community a board can and has legally banned individuals from access to community property based on unpaid fines or unpaid common area assessments.

    Go to comment
    2019/08/12 at 3:07 pm
  • From Carol Payne on No access to community clubhouse

    I’ve not received an answer to my inquiry July 24, 2019 as to whether is is legal to restrict access to the community clubhouse for at least 10 years to homeowners. Only the board members have access. Thank you.

    Go to comment
    2019/08/11 at 2:24 pm
  • From Dennis Legere on Dissolve HOA

    Elle;

    Good question. Every set of CC&R’s contain provision for dissolving the association and to lift all covenants and restriction on the units. You mentioned that you are in a condo. As a condo the association owns no part of the property. the unit owners own it all, either individually (for their specific unit) or collectively for all common property. Your CC&R’s again would precisely define what is individually owned property and what is common property. While you maintain your individual yards front and back they may not actually belong to you individually.

    Arizona Laws has a section specifically focused on the termination of Condominiums. The section is ARS 33-1228. We’ve made some significant progress in improving that particular statute in the last two years, it is still not where it needs to be but it is significantly better. As you alluded to the greatest issue in dissolving a condominium association is how to deal with the common property. You will definitely need to consult an attorney on how best to deal with the common property. The easy part is the community vote to dissolve the condominium association and the CC&R’s, call for the vote and if you get the required number of owners to agree with the action to dissolve the association it is done. The hard part is how to equitably deal with the ownership and maintenance of the common property. You will definitely need to consult with an attorney on how best to achieve the results that you want relative to either assignment or long term maintenance of common property.

    For example most likely the walls and roof of your existing units are currently defined as common property. You could simply reassign that property to the current unit owners and deed that property to them individually. You could try and transfer the streets and alleys to the local city or municipality and see if they will assume long term maintenance of those streets or alleys. Low probability of success in that option but it never hurts to try. You could also if everything else fails create a new organization simply to maintain the common property that is left (streets and alleys). You would be trading a Condominium for a planned community only without deed restrictions other than payment of fees to support maintenance of the smaller scope common area.

    I’ll gladly discuss this further with you or your community if you are serious about looking into the possibility of terminating your current Condominium.

    As for your comment about not having a meeting in three years, that is clearly a violation of the law that require a meeting of the member at least once each year.

    Dennis

    Go to comment
    2019/08/10 at 8:02 pm
  • From Dennis Legere on My HOA dues are for what?

    Cindy

    I totally understand your frustration. You are absolutely correct that the fact that you have had three different management companies in 6 years but the actual property manager does not change if very unusual. While property managers leave their companies all the time to go to other companies to have that happen simultaneously with the change in management companies for one community is suspicious at best. There may be something going on here that is, let me just say not in the best interest of the community. Somebody on the board likes this particular manager and is willing to change property management companies and all that is involved with that to stay with this person. This means changing the banking accounts and transferring all the community records etc. Whatever is going on here the relationship between this community manager and the board is very much too close. Your community needs to understand what is happening here and assure yourselves that your community is properly run. From what you describe competence is not a strong suit for this particular manager. Unfortunately your only recourse is to find out the facts of what is happening and ask the board that the community manager be changed. If the board refuses or if an individual refuses to remove the community manager than call for the removal of the board or that board member. The members elected the board and the members have the power to remove any board member or the entire board if they are not acting in the best interest of the community and its members.

    Dennis

    Go to comment
    2019/08/04 at 5:45 am
  • From Dennis Legere on Reserve study

    John;

    First let thank you for your generous contribution to the upkeep of this website. It is only with contribution from homeowners like you that we can maintain this website active and to support our ability to reach out to homeowners and help them in these communities.

    There are no Arizona state laws addressing Reserve studies or reserve accounts. Having said that the fundamental concepts of these communities is that the association has an obligation to maintain the common property, and the homeowners have an unconditional obligation to pay for that maintenance. That maintenance includes the short term annual maintenance and the long term maintenance, upkeep and replacement if necessary. To do this, it is my belief that the association has a fiduciary responsibility to the community to understand what the long term needs of the community are and how to ensure that when the need arises that adequate funds are available to pay for that maintenance or upgrade. This is impossible without some sort of reserve study and a conscience plan on how to fund those long term needs. Far too many associations have a reserve study then either fail to fund it adequately or worse yet keep using the funds in the reserve funds as a slush fund for things that are not on the long term plan. Additionally some associations simply use the strategy that the reserves should be kept as low as possible and if a large project is needed than a special assessment will be the way used to fund the project. The problem with this strategy is that all the burden to fund the repair is placed on the shoulders of any homeowners who happen to live in the community at that time. All the previous homeowners get a free ride. This is simply unfair and irresponsible. To answer your question directly there are no state regulations mandating the funding of a long term maintenance plan, but if the association does have one than yes the homeowners are obliged to fund that plan. You all have a right to question the plan or to hold the association accountable to living up to their commitments to that plan. This is a condition of pay me now or pay me latter but all homeowners will be required to pay their share of those expenses.

    In 2016 I drafted proposed legislation to define basic fundamental requirements for reserve studies and funding plans including limitation of managing this plan and funds, however I could not find a legislator willing to sponsor such a bill. Obviously AACM and CAI would oppose any such legislation because it would actually help HOA boards do the right thing for their communities. Clearly the community managers and attorneys are already doing such a great job at advising these associations across the state and they do not need and help from the state??????

    Dennis

    Go to comment
    2019/07/27 at 12:05 pm
  • From Dennis Legere on Are Assessments, Fines and Legal Fees due from the Seller to an HOA due from the Buyer on Closing?

    Mike;

    The association is required by law to provide the closing agency a true and accurate accounting of the current owners account to the HOA . The current owner is required to close out and true up that account unless he/she has negotiated a separate arrangement with the buyer. If the association failed to provide the true and accurate accounting to the closing agent than those liens and assessment are extinguished under ARS 33-1807 and cannot be made a liability to the buyer. While i’m not an attorney it looks to me like someone dropped the ball and did not provide the closing agent a complete accounting of unpaid fees from the buyer. Without a better understanding of the specifics on the specifics of the individual case, i can only answer in generalities.
    Generally with a true and complete accounting of what the seller owes the association the association is paid out of the proceeds of the sale by the title agency. As mentioned earlier where the buyer and seller directly negotiated a different payment scheme. But in either case the association is made whole via the closing agent.
    If that did not happen then the association has lost any rights to that debt, if they attempt to collect that debt from the buyer the buyer would have cause of action against the association or the seller or both based on failure to comply with ARS 33-1807 and 1806.

    Hopefully this helps.
    Dennis

    Go to comment
    2019/07/03 at 8:37 pm
  • From Dennis Legere on What is a change to CCR&Rs

    Dennis;

    It is impossible for me to answer this question without a better understanding of the context in the CC&R’s. While the board has the right to interpret the CC&R’s as this appears to be they do not have the right to unilaterally change the provisions or restrictions in the CC&R’s. If you could provide me the specific sections where the term “short term” is used i’ll be able to provide you my take on the language and the impact of the boards interpretation. Send them to me at help@azhoc.org.

    Thanks
    Dennis

    Go to comment
    2019/07/03 at 8:21 pm
  • From Kathleen Oehlberg on Removal of 25+ Yr Old Rubber Tree

    Update: It is July 3, 2019 and I have not received a copy of the meeting minutes showing the discussion of the rubber tree removal and the subsequent approval to do so. Our property manager keeps telling me they are not approved yet. I also requested that dying plants be replaced in the same area as the rubber plant, but have had no response since May. Any thoughts?

    Go to comment
    2019/07/03 at 1:29 pm
    • From Dennis Legere on Removal of 25+ Yr Old Rubber Tree

      Kathleen;
      This is where association boards hide behind their attorneys to deny homeowners access to meeting minutes. Under Corporation law the meeting minutes are not a community record until they are approved by the board. Most boards in corporations however approve meeting minutes within days to the board meeting they do not wait for the next board meeting that could be months away to approve the minutes from the last meeting. Corporation boards have no open meeting laws and allow board members to take action without a meeting by phone or email. With a public body like a city counsel they are required to post the draft minutes within 10 days of any meeting. This is where the attorneys get to pick and chose which statutes they advise their boards on.

      If the board truly had an interest in informing the community of the actions they took at meeting they would post draft meeting minutes or at the very least make those available to any member upon request. But many don’t, so they hide behind the fact that HOA and Condo open meeting laws are currently silent on meeting minutes and they take the position around the records request laws by simply stating that draft minutes are not official community records until they are approved by the board. I’ve attempted to change our open meeting laws relative to draft minutes to ensure that they are made available upon request within a reasonable time after any community meeting. I will continue to push for such legislation until we get this clarified and eliminate this loop hole and lame excuse to eliminate transparency in this governance scheme.

      Dennis

      Go to comment
      2019/07/03 at 8:56 pm
  • From Lynn Rutman on Harassing letters from HOA

    Hi Dennis: I would like to schedule an informal meeting with the other two board members in my home in order to identify issues that are important to our community and to brainstorm possible solutions. Anything we discuss would be presented to the community at the next board meeting. I just think it would be an efficient use of our time to try to identify any issues we need to address.

    One board member, the treasurer, thinks its a good idea. The other board member, who is the HOA president, fears the meeting violates the open meeting law.

    I would love to hear your thoughts on this matter. Kind regards, Lynn Rutman

    Go to comment
    2019/06/26 at 8:44 pm
    • From Dennis Legere on Harassing letters from HOA

      Lynn;
      As long as the meeting was not attended by a quorum of the board it is allowed under the open meeting laws for Arizona. The key point for the open meeting law in ARS 33-1804 is that a quorum of the board participates to be considered a meeting subject to the law. No quorum no meeting subject to the law. If your board consist of 5 members two board members does not constitute a quorum if your board consist of 4 members that 2 members would constitute a quorum and such a meeting would require notice and invite to the community membership, along with all other provision of that statute.
      If appropriate and your board is still interested let me know by email to help@azhoc.org .

      Thanks
      Dennis

      Go to comment
      2019/06/26 at 9:02 pm