Basically everywhere in statute where the word “notwithstanding” means that that provision takes precedent over and supersede the referenced document. For example “notwithstanding any provision to the contrary in the community documents” means that the section of law following that statement takes precedent over and supersedes any contrary provision in the community document.
The opposite position would be “unless otherwise specified in the community document” with this language the community documents take precedent over the state statute provision.
I will add that under property servitude’s law any provision in the community documents that is contrary to state law must be removed from the governing documents, because a covenant that is illegal cannot remain as a restriction on the free use of the land. Each and every board is empowered to unilaterally change the governing documents even the CC&R’s without member involvement to comply with the law , yet I’ve never seen one do that.
Relative to the ADRE and ALJ dispute resolution process, if the petitioner prevails and wins his case the respondent must pay the petitioner the $500/issue that he paid to file the petition. I will note that it is $500 per issue with up to 4 issues per petition. So if the petitioner has 4 issues it will cost him $2,000 to file and then each issue is decided separately. If he prevails on all 4 issue he will be paid back the full $2,000.
Fines are rarely applied and for the most part have averaged about $500 per issue. Up until about a year ago my case against my association resulted in the largest fine ever placed on an association by an administrative law judge and that was $2,000. I will note that i had asked the judge to fine the association $500 for every time that they violated the law in the last year and that would have resulted in about $23,000 in fines. Last year one case was heard that resulted in a fine to the association of $5,000 and that still stands as the largest fine awarded for a HOA related case.
Hopefully this answers your questions. If not feel free to ask more.
If I understand what you were saying that an individual ran for a board position was put on the ballot and after the individual was elected by the members the board determined that he was never qualified to be on the board because of his ownership status. Does he own the home in your community or is he the owner of record? I don’t understand what you mean by beneficiary deed. Did the original owner die and leave the home to this individual or this individual and other? If that is the case it would seam to me that he was the new owner
Quite frankly it is the responsibility of the board to determine the qualifications of any board candidate prior to the election. Once elected by law the only way to remove an elected board member is via petition from the members to do so. The bottom line is if they are elected by the members they can only be removed by the members. While most communities have qualification requirement for board members that test should be determined prior to placing that individuals name on the ballot. the only exception to this general expectation is if the candidate was a write in candidate that was not previously screened by the board. As I always state I’m not an attorney but if I was in the individual homeowners position I would challenge the action of the board by petition to ADRE as a violation of ARS 33-1813.
This is exactly what happened in our last elections. The board came back post vote and deemed a member of my household ineligible to be elected because he’s on a beneficiary deed and they decided that wasn’t sufficient. Never mind that he’s been allowed to vote in prior meetings. It was a retroactive eligibility decision just keep someone off the board. Would anyone else consider this electoral malfeasance on the boards part?
Neither the planned community act nor the condominium act specifically addresses this issue. I have proposed legislation this year to make this clear in the applicable statutes. What is clear is that the open meeting laws for public bodies do in fact limit any and all discussion in open meeting to item specifically included and identified in the agenda for that meeting. While i’m not an attorney there is legal precedent that if a statute is silent on an issue one can go to similar statutes for guidance, even if the two statutes are directly cross referenced. See Attorney General opinion 97-012. I will say that there was never an legislative intent to make the very strict and restrictive open meeting laws for
As for the president controlling the agenda, this is the typical process and power given to the board president. They mostly ask for any request from the other board members but are not required by any law or rule to include those suggested topics. Having said that i will say that ignoring he request of other board members is highly suspect and the board should consider calling for a vote to remove that board member from that office. He would still be on the board but no-longer the president. Remember it was the board that elected the officers not the members and the board can remove any board member from any office by a vote of the board.
As for the election process your Bylaws should have guidance on that issue it is not and should not be addressed in law. If the bylaws are silent on that issue than the board has many options, they can run a run-off election between the two candidates for the last position. They also could if the bylaws allow, have both the candidates added to the board at least for one term. This would most likely cause the overall board population to be an even number which could cause issues in the future, with quorum and tied votes of the board.
What cannot happen is anyone on the board deciding who is the elected board member, for any reason.
You are absolutely. Correct. That statute was written to grandfather any association who’s declaration was recorded prior to the effective date of that legislation. You are also correct that any association that modifies its declaration and records that amendment would loose that grandfather protection and also lose the ability to regulate roads that are public property and not private property. Simply invoking Rules does not trigger this action.
From Illegal behavior?on
Under Arizona law any board member may be removed from office with or without cause except a board member appointed by a declaration during the period of declaration control., by only one process. That process is one where a petition is approved by 25% of the voting community to request a meeting of the members to vote for the removal of that board member or members. The majority of members voting decides the issue. Your questions relative to the legality of actions described i’ll Not comment on because I’m not an attorney. The fact is if you want a board member removed circulate a petition to have the board call a special meeting of the members to accomplish that. If you.cannot convince 25% of the voting members to do that then you have more work to do either convince the homeowners of your concerns and fact or you have to wait until the offending board members term is over and convince your fellow homeowners to elect someone else.
From PRODUCING FINANCIALSon
Assuming you are in an HOA the state law is clear. The association must provide access to any association record within 10 business days of a written request fo those records. There could be nothing clearer in all of Arizona Law yet record request are by far the violated provision of HOA governance and the single most litigated issue. Make your request specific and reasonable , for example do not ask to see all financial records since the beginning of time. What I always tell people in requesting records is be as specific as possible. Don’t go on fishing expeditions. And don’t ask for records that you will not be able to understand once you get them. Know what you want to ask for and only ask for that. One important point to remember is that the association is under no obligation to create a record that does not already exist. So don’t ask for a summary of multiple years of information if that summary does not exist. If at all possible stray within the current year to keep the request reasonable and to allow the association to obtain the information in a timely manner. The law only requires that the association make the records available for you to review. It does not require that they give them to you. If you ask for a copy of the records they are allowed to charge you no more that $0.15 per page. If you want copies ask for them up front. If you would like electronic files sent to you in e-mail there is no harm in asking, they are not required to send you electronic files. But in many cases it is easier for them to do so, if their records are electronic.
The is specific with the request being written. An e-mail is acceptable as a written request but can be argued that they never received the request. So you want to make sure that you have a record of the associations receipt of that request. Some e-mail programs allow for read receipts to be provided. If not and if for some reason you believe that the association will ignore your request then send the request by certified mail for the proof of receipt. If the association does not respond or does not provide you access to the requested records, I would provide them a simple e-mail reminder that the law either ARS 33-1258 for condo’s or ARS 33-1805 requires that they provide the requested records in 10 business days and if they fail to do so you will file a petition to the Arizona Real Estate Commissioner to force them to do so. That will end up costing them $500 if they are forced to provide the records and comply with the law.
This petition process does not require an attorney , but will cost you $500 per issue to pursue. If you prevail the association will be forced to pay you back your application fee. See our reference information page for all the information about the commissioners dispute resolution process.
PSJoseph actually called me after his post and I was able to answer his questions directly. This response is for everyone else’s information and use.
I have a board HO meeting in March and plan on bringing up serious safety and financial issues. I am told to expect the same treatment as described above.
One for the questions is to show the Homeowners proof of funds in deposit for the HOA. I am told that the Secretary will not produce the doc’s
Other than hire a lawyer. What can I do?
I wanted to add my thoughts here because I too was recently abused where a board member came out and called me fat and then gave me the middle finger obscene gesture. I cannot speak without the board being rude to me. I’ve seen the President abuse other HO’s. I just don’t get why these personality challenged people run for the office. Same person won’t return phone calls or e’s of residents she does not like. The Community Manager is non-effective but has a great accommodating personality at the meetings and then immediately turns her back to HO’s and hides in her office. It’s a war zone. Don’t buy in an HOA.
It’s fairly easy to find information on what boards are not supposed to do – a little bit harder to find good information on the best practices boards and committees might use to conduct effective, efficient working meetings while still respecting open meeting laws.
Not very surprising that many sites in the web advise readers to rely on the management company and their vendors to conduct most of the business between meetings. And for routine, repetitive, cyclical stuff, that probably makes sense. But not for large projects and complex decisions.
Interestingly, a few sources of knowledge recommend a new sort or “radical openness”. As costs for video streaming and conferencing have plummeted – and cameras and go-pros everywhere – some sites are recommending televising or video streaming work sessions between meetings – at least for city council. Televised work sessions with video streaming *might* be a tool that allows directors (with or without quorum?) to discuss and study complex problems between regularly scheduled board meetings.
Found an article from 2006 on the Arizona Daily Sun titled “Council work sessions televised more often” stating that “Flagstaff City Council work sessions are now televised three times each week on Cable Channel 4” https://azdailysun.com/news/local/council-work-sessions-televised-more-often/article_e7ae3981-cd1b-5cea-916e-f80dc35c4a91.html}
Also some great information on the Michigan Municipal League’s website, www.mml.org. This one pager was particularly helpful “Work Sessions – Use by Legislative Bodies”.
From the MML one-pager:
“Work sessions are intended to provide opportunities for council/board members to study difficult issues,
gather and analyze information, and clarify problems. The public must be given an opportunity to address
the council/board. If council is going to have a meeting, and it is a posted public meeting, then people must
have an opportunity to speak under the Open Meetings Act. That is perfectly fine, but rules governing public participation ought to be enforced, and those in attendance should be made aware of the
purpose of the meeting—to study issues, not to take action.
Citizens often aren’t aware of or understand the differences between work sessions and regular sessions.
This often gives rise to the perception that the decision process in the regular meeting is rigged
beforehand. There are no easy answers to this problem. The best that can be done is to communicate, as
much as possible, the process by which council makes decisions. Make it clear that council holds work
sessions for difficult issues, that these sessions are open to the public, and that no decision is made except
in a regular session.”
The MML one-pager also mentions the importance of educating citizen on how Open Meeting Laws might be used to prevent boards from doing anything productive between regular board meetings – and how the televised or streaming processes might be used to allow board members to meet publicly in order to analyze and clarify problems while still allowing citizens and homeowners to watch the discussions.
If boards can webcast and support remote homeowner participation – committee meetings should also be allowed to webcast and support remote participation.
Dennis – any thoughts on how technology including video webcast might be used to support a new “radical openness” for HOAs in Arizona?
Great comments and post. I could not agree with you more. Current Arizona statutes are considerably out of date and are very limiting with the allowed options for a board or members to meet remotely. I’m actually trying to address that with my top priority bill this session. Amoungst other things i’m Looking to broaden the flexibility of boards to use technological means to conduct meeting and to allow both board members and community members to participate remotely. The variety of options are limitless and advances in technology will only make these options better and simpler to use. As you so well stated is the communities faith In the decision making process of their board of directors comes in transparency and openness inconducting its business. We do not seek to overly burden boards with the open meeting laws only to ensure that those boards, community managers or most importantly association lawyers do not circumvent or simply ignore the law because they can because only the homeowners will hold them accountable. Many board members have complained to me that the provisions in the law relative to informal meetings of a quorum is overly restrictive. What I tell them is i’m willingszzzzzz, to try and work on that language but I need to first get acknowledgement that both AACM and CAI understand and respect the open meeting laws and will hold their clients accountable to know and support those laws, before I do anything to change the current language in the law. That will allow social gatherings of board members where incidental discussion of their community may take place, or opportunities where a quorum of the board walks around their community to look for issues that they and fix or address to improve their community. These make sense for communities but unfortunately I cannot trust current community managers or community attorneys to use any common sense with what they advise their communities to do.
Back to the original question, business applications like go to meeting and basic conference lines or video conferencing like face time or Skype are all means that could allow both board and members to participate remotely. While my current proposal stops short of a totally virtual meeting, I still require that at least some board members participate in a physical meeting so that homeowners not comfortable with technology can still participate in person. Some day that is not out of the question.
Thank you for your comments and site references.
I’m curious if an HOA has any grounds for keeping the community pool closed after they have been reopened by the governor. A sign posted reads: “We are aware that the Governor has lifted the... Read More