Another aspect of you message that I did not adequately address was the notification aspects of ARS 33-1804. While the public policy statement of 1804 clearly implies that the association has a duty to inform the members of the subject matter to be discussed at a meeting before the meeting that is not actually a provision of the current law. The association is required to provide notice of a meeting 48 hours prior to that meeting but is not currently required to provide the agenda for that meeting prior to the meeting. Once again the issue here is what they are required to do vs. what they should do if they really wanted people to attend and know what they are considering to do before hand. I will get that law changed some day, and will be part of my legislative proposals every year until I get it changed. Back to your point that your member felt that the board had a duty to inform the community prior to the meeting that they were considering this playground equipment, from Arizona Statutes perspective that is not currently correct.
As you are aware I’m not an attorney so I will tread very carefully with this response. As for the decision to upgrade the playground I would have to see your CC&R and bylaws to comment intelligently on what your board can and cannot do. But as I’ve always stated most issues in HOA’s would be totally eliminated if board focused less on what they can and cannot do and focus more on what they should do in conducting the business of the community for the good of the entire community. On first blush it sound like the decision to replace the playground equipment was reasonable, however with an expense of that magnitude it is also apparent that a reasonable board would have looked at multiple options from multiple vendor to get the best value for the community. Part of the concern is that the upgrade to the common property required an approval of the membership. again I would have to actually see the bylaws to comment intelligently on that aspect of this issue. You address open meeting issue. The law here is very clear. The decision to replace this equipment had to be made at an open meeting and the board had to provide any member present in that meeting an opportunity to speak for or against the issue prior to the board vote. Additionally if the board offers an open forum for community members you are entitled to bring up any issue in a civil and respectful and non-accusatory manner. If you have a concern with n action then raise that concern with the board. The tactic of cease and desist letters from HOA attorneys sent to any homeowner that disagrees with a board decision is for the most part a scare tactic. Defamation is clearly defined in law the fundamental aspect of that law is that the statement either oral or written must be false, if it is true no matter how distasteful it might be to the subject of that comment it can never be defamation. Having said that you want to be very careful about general name calling a board member a liar or a thief even though you may believe it if it is not based in truth words like that can and will get you in trouble. If you believe that the board breached it’s fiduciary duty in taking the action that it did you are free to express that opinion at any time. That is the fundamental freedom of speech allowed every citizen in this country, and is in no way defamatory it is strictly your opinion based on your understanding of the rules governing your association. Even if you are wrong in your interpretation of those rules.
You still have to be careful about what you say and stick to the truth as you know it and you will be OK. While saying or threating a law suit or litigation will surely raise some eyebrows in an open meeting of the board or the members and make some people very angry there is no law preventing you from making such a claim or statement. Just be careful not to use such a threat lightly it will have real consequences that you may not like or want. It will always be better to talk thru issues as much as possible and if you feel that the only way for you to get justice or to enforce the laws or the rules and covenants of the association is through the ADRE dispute resolution process or court litigation than just do it don’t threaten to do it.
The information and facts talked about inside the article are several of the most beneficial offered.
Thank you Dennis for all that you are doing and your comment above.
The Limited Purpose Association concept could be applied to existing communities, but they would have to amend their Declarations, which is exceedingly challenging of course. But, theoretically, it is possible in some cases. Accomplishing similar was my brief Norma Rae-esque fantasy at one stage in my HOA ordeal. I did speak with a Planning official in my town who told me that there was “no requirement” that an HOA exist in the case of mine (in part because it was not part of a larger, master association). She also informed me about a nearby similarly-aged development that is, in fact, only a “Landscape Association.”
I am for anything — Improvement Districts, Landscape Associations, anything — to stop the CC&Rs extortion racket and the high-stakes abuse of innocent good-faith homeowners like me.
I also don’t think critical infrastructure like public roads should be in the purview of an HOA, but that is a whole ‘nother huge topic. I now, mercifully, live in a non-HOA neighborhood; the City repaved our roads about a year-and-a-half ago, the street sweeper comes by every week, the trash gets picked up, the sewers are tended, etc. It works great, and I don’t have to be tormented and threatened by psycho board members, unscrupulous management companies, and crooked HOA lawyers.
In Nevada, an alternative to the standard-issue HOA — per Nevada Revised Statutes (NRS 116) and Nevada Administrative Code (NAC 116) — is the “Limited Purpose Association.”
Here’s some information:
NAC 116.090 “Limited-purpose association” interpreted. (NRS 116.1201, 116.615)
1. An association is a limited-purpose association pursuant to subparagraph (1) of paragraph (a) of subsection 6 of NRS 116.1201 if:
(a) The association has been created for the sole purpose of maintaining the common elements consisting of landscaping, public lighting or security walls, or trails, parks and open space;
(b) The declaration states that the association has been created as a landscape maintenance association; and
(c) The declaration expressly prohibits:
(1) The association, and not a unit’s owner, from enforcing a use restriction against a unit’s owner;
(2) The association from adopting any rules or regulations concerning the enforcement of a use restriction against a unit’s owner; and
(3) The imposition of a fine or any other penalty against a unit’s owner for a violation of a use restriction.
2. An association is a limited-purpose association pursuant to subparagraph (2) of paragraph (a) of subsection 6 of NRS 116.1201 if the association is created for the sole purpose of maintaining:
(a) Areas on an official plat that are designated as unsuitable for building;
(b) Areas required by the governing body to be designated as floodways, natural drainage or spillways; or
(c) Other areas that the governing body requires to be used for the purpose of collecting, facilitating, retaining or channeling storm water drainage of the residential property of the common-interest community.
3. An association is a limited-purpose association pursuant to subparagraph (3) of paragraph (a) of subsection 6 of NRS 116.1201 if:
(a) The association has been created as a rural agricultural residential common-interest community;
(b) The residential lots in the common-interest community are a minimum of 1 acre and are zoned for agricultural purposes by the county in which the community is located; and
(c) The governing documents of the association authorize the residents to farm or raise livestock on the residential lots.
4. As used in this section:
(a) “Governing body” has the meaning ascribed to it in NRS 278.015.
(b) “Landscaping” has the meaning ascribed to it in NRS 278.4781.
(c) “Public lighting” has the meaning ascribed to it in NRS 278.4783.
(d) “Security wall” has the meaning ascribed to it in NRS 271.203.
(e) “Trails, parks and open space” means trails, parks and open space that provide a substantial public benefit or are required by the governing body for the primary use of the public. The term does not include a private street or roadway, gated entry, swimming pool, gazebo, clubhouse, pond, tennis court, miniature golf course or frisbee golf course.
(f) “Use restriction” means any provision of the governing documents of an association that restricts a unit’s owner in the use of his or her unit.
(Added to NAC by Real Estate Div. by R114-99, eff. 5-5-2000; A by Comm’n for Common-Interest Communities by R129-04, 4-14-2005; R205-05, 9-18-2006)
Thanks Jenn for your comment. While I’m constantly searching other state statutes for possible relevance and applicability for Arizona. This concept would apply mostly for what we call Property Owners associations in Rural Arizona, that are currently governed under Planned community statutes. The one concern is the primary expense for our property owners associations are roads and road maintenance is excluded in Nevada’s Limited purpose associations. While the concept is interesting any attempt to create such an option could never be applied to existing communities and I cannot see a major land owner subdividing his/her land and creating an organization with maintenance responsibility with covenants that are not enforceable by the association. Our improvement district would not have an association providing the maintenance it would have a municipality, and covenant enforcement would be done by homeowners just like your limited purpose association.
Thank you for the detailed and informative reply. So if I understand correctly, if a term limit law were to be enacted in 2019 that limited a Board member’s service to 20 total years, one would have to wait 20 more years from 2019 before a current Board of Director who is in their 20th year of service would be affected by a term limit law due to Article 2 Section 25 of the Arizona Constitution? I personally think 20 years is an excessive amount of time to serve on a Board, especially alongside other long-serving entrenched members who exhibit a bunker mentality. I am familiar with HOA’s that have Board members who have over 20 years of service.
If a term limit bill was crafted with a high limit threshold for years of service, such as 10 years, I think it would have a good chance of passing. Such a bill would help those rare communities that are small in size, have a low turnover of homeowners and entrenched Boards that are difficult to challenge. Arizona has a very transient population and a generally high turnover rate of homeowners in HOA’s. Most HOA’s in this state are on the medium to large size in number of homeowners and thus a term limit law would not negatively affect the majority of homeowners in HOA’s, because due to these structural factors, there is high probability of a good supply of capable, conscientious Board members willing to serve. I have studied the pros and cons of term limits and that’s why I specifically think a high limit on years of service is a good way to strike a balance between reducing entrenched Boards and keeping good Board members.
Again, thank you for your reply and I hope you or others will re-consider drafting such a term limit proposal.
Actually if a term limit bill were to be passed it would apply to any board member in office on the effective date of the law. So if on that effective date a board member had already served for 5 years with 2 year individual terms and the established term limit was 6 years than he could not run for a new term after his current term expired. The retroactive prohibition in a case like this would say that if a board member had already served 7 years with two year terms and the term limit was 6 years, he/she would not be forced out of office prior to the expiration of his/her current term. He/she could not run for an additional term however after this current term expired.
In addition any typical term limit bill would also establish how many years an individual would have to wait until they can run again.
The state has 8 year term limits for Senators and Representatives in their respective house, but what many of them do is simply run for the other house and start over again. Legislators in this way can serve for life if they keep getting elected.
I don’t disagree with your position, like I said earlier I actually drafted a term limit proposal at one time, however I believe that there are higher priorities that need to be addressed to protect true transparency in association transactions, duties and responsibilities of boards, election integrity, enforcement of rules and regulation , resale disclosure, and foreclosure protections and so forth. Let’s see what we can get passed in the next couple of sessions before we re-look at the value of this issue. Remember if we can get honest and free elections the people can today establish their own term limits by simply not voting for board members who are not meeting the needs of the community.
First of all, it is against the Arizona Constitution to make any bill retroactive. I debated a term limit bill for some time now and last year actually drafted such a bill. I decided not to attempt to get it sponsored because of the negative aspect of such a bill. While term limits will surely help communities with board members that are entrenched and lose sight of the needs and desires of their community members, but it will also force good conscientious board members off the boards. Finding and keeping good board members is vital to community health. I decided to approach this issue from a different direction. This year I have a bill proposal for the 2019 session that will force association to hold elections every year for any board position who’s term has expired especially in those communities with exorbitant quorum requirement. Many communities have used the inability to meet a quorum requirement in the initial attempt to satisfy the annual member meeting requirement as a way to actually avoid having an election. We have some communities where a quorum of the board has been in place for 17 years without ever holding an election. This core group then fills any vacancies by appointments of their friends who once again are never subjected to an election. My bill will force any board member off the board after his/her term has expired unless they are re-elected by the members. I have also address the process of removing board members, if they are not meeting the needs of the community. While this particular bill will do many other things, and will be our top priority for this upcoming legislative session, it will be one of 4 comprehensive bills all aimed at empowering the Arizona homeowners to provide checks and balances in the governance and operation of their communities. We will provide for consequences for any board or management company that fails to comply with the law, without overburdening any community boards who are really trying to serve their communities. I’ll be providing legislative updates on the details of each of these bill soon to all our members, and will post the full language of each bill on this site once they are introduced by a legislator.
Please allow me the opportunity in this post to remind everyone that while I spend a tremendous amount of time and energy developing these proposal and promoting these bills face to face with every legislator that I can, I still need a membership of sufficient numbers to get the legislator’s attention. Joining our coalition is free, but is essential to truly be able to present our case against the highly funded HOA industry represented by CAI and AACM. Each of those organizations spend hundreds of thousands of dollars every year supporting elections campaigns and paying for their highly respected professional lobbying firms. While we work for the 3.5 million homeowners in this state until our numbers actually approach the 10,000 member level , the Industry money will speak louder than our membership to these politicians. Not to say in any way that politicians are bought but rather until we can demonstrate with our membership following that we truly represent a voice of constituents in their districts we will not be taken seriously. So please if anyone out their sees our site or this post take 2 minutes to join our numbers and help us help all of you. Tell your friends and neighbors about us and help spread the word.
From Bed Bugson
That all depends of what your CC&R’s say. if it can be proved that occupants of a unit caused an insect infestation that impacted other units and the CC&R’s allow for such provisions that the aggrieving unit owner could be required to pay for the treatment. If the CC&R’s address these type of things then the association would most likely take action to treat the infestation and bill the owner of the unit that initiated to issue. Like all things in an Condo, the board is usually not compelled to take action, but it they do take their responsibility seriously they will and if they cannot figure out who caused the infestation simply bill all the unit owners impacted for that service. The laws allow a board to assess either the individual unit owner that caused the impact to common property, or if that cannot be positively determined all the unit owners impacted by the issue for that treatment. While beds are not common property the bed bugs would not be limited to simply the beds in a unit and will migrate from unit to unit,
If I were you I would never wait for a board to take action on an issue like this I would treat my unit as soon as possible and if the association attempts to take action in the future show them that you have already taken action and they need not treat your unit unless you want them to again.
I’d need to see the declaration and the specific provision that allows private property to be used and maintained by the community. This clearly is an unusual situation. While the association is free to establish rules on the use of common property including permitting and identification they would not normally have authority to establish rules on the use of private property even if that property was maintained by the community. Requiring anyone to wear a badge on private property could never be construed as an architectural standard like paint color or length of front laws grass. If you have your CC&R’s electronically send them to me at email@example.com and I’ll look them over and get back to you.
Awesome insight. Thanks Dennis. Much appreciated
Hello Dennis, Thank you for your responce to my quesstion yesterday regarding the height of tower I want on my new home. Your reply gives me hope and courage to stannd up against the HOA... Read More