We have an interesting alt version of Carol’s issue. Our president is convinced that, after submitting their vote, in the event of a tie they get to call the outcome – in other words, break the tie.

With a board of 4 (a different issue), ties happen. So after all have voted (including the president), the president claims privileged to break it with essentially another vote.

Am I wrong in correcting the president (and board) that we all only have 1 vote and ties result in a failed motion?

Yuke

Carol,

Your bylaws are typical to all similar communities. The community elects the board for whatever term the bylaws specify and the new board then elects the officers of the association for one year terms. That ensures that any new board member elected in any specific year has an equal opportunity to run and get an officer position.

While Arizona law requires associations to provide for both in-person and absentee ballots the pandemic has caused most associations to eliminate in person meetings. So while technically any association that does not provide for in person voting at the annual meeting of the community is violating the law, there is probably no court that would find the association culpable under these unprecedented circumstances.

There is no legal requirement for the association to inform the candidates other than the announcement to the entire community. One issue that is important is that the association is required under the law to retain all ballots and related documentation including any signed ballot envelopes as association records for one year and make those records available to any member wishing to see them. If anyone questions the validity of the ballot count then they can request to see all the ballot material including the ballots them selves in that year after the election.

Dennis

Dennis, I live in a community with an HOA established prior to 2014 with no amendments that I know of. The streets are public. I have parked a car on the street for the last 3 1/2 year and no issues. Now a complaint by a neighbor and I had a notice. Other people park on the street and I don’t believe anyone else has gotten any notices. Is it legal for them to only give me notice because of the complaint or do they have to enforce with everyone?

Here is the verbiage in the cc&r’s:
3.16 Vehicles and Parking: Any and all motor vehicles not prohibited by provisions hereof shall be stored in a garage so as to conceal the same from view from adjoining lots or from street or public way, except that vehicles (other than recreational vehicles, commercial vehicles, motorhomes, campers, trailers, boats and similar vehicles, as provided below) may be parked upon the driveway surfaces of each lot when there are more cars on a lot than number of garages constructed thereon. Parking and/or storing of rec vehicles, commercial vehicles, motorhomes, campers, trailers, boats and similar vehicles is prohibited on all portions of the property unless such vehicles are not visible from neighboring property or are otherwise permitted pursuant to the design guidelines. such vehicles may be parked on the parking area of an owners lot for purposes of loading or unloading, but may only be visible from neighboring property for short periods of time. The use or occupancy of a recreational vehicles, motorhome, van, camper, trailer or boat as living quarters on either a temporary or permanent basis is strictly prohibited on any portion of the property. At no time shall there be any outside storage of motor vehicles in stages of construction, reconstruction, modification or rebuilding of parts of motor vehicles such as frames, bodies, engines or other parts or accessories.

** So the warning from the management company said :

Homeowners are required to park in the driveway and garage at all times. Guests may park in an open space on the driveway when available.

I don’t see anywhere in the CC&R’s where a guest has to park in the driveway and the verbiage above in the cc&r doesn’t say no street parking or no overnight parking just that motor vehicles shall be stored to conceal from view from lots or street or public way and you can park on the driveway if you don’t have enough space in the garage.

Brandy,

I’ll be glad to help you in any way i can. Can you give me some specifics on your particular issues? The most effective way to bring about change in any community is direct involvement of the community member. The board is elected by you to run the association and manage the affairs of the association in the best intertest of the community as a whole. Attorneys will tell you that the board is only required to protect the interest of the corporate entity of the association , under corporate law but that is absolute crap. The community is a community first that is represented by a corporation for convenience and tax advantages. Corporate law is totally subservient to Property Servitude law for these communities.

If the board refuses to respond to the needs and concerns of the community than you are empowered to remove that board from their positions and elect a new board that will do their job. Having said that it is important to note that board can never satisfy everyone in the community and should not try. Their job is to act based on their beliefs as to what is in the best interest of the community as a whole not any individual homeowner or group of homeowners. Now you may not like what a board did but if they did that with a legitimate belief that the action was in the best interest of the community than they are simply doing the job you put them in that position to do.

Open meeting laws require that boards must post notice 48 hours before any meeting of the board and allow any homeowner to addend and speak prior to the vote of the board on any issue. For example if the board is to vote on approving the minutes of the prior meeting they must ask any member of the association present if they wish to speak on that issue before they vote. The same goes to any issue. If 20 people go to board meetings and voice their concerns the board is forced by law to listen to those concerns. Never be the only voice of resistance to the board, you will simply be criticized and labelled a trouble maker and made an example to all other homeowners of what can happen to anyone in the community if they dare to challenge the board. This is not personal it is simply the barbarian technique of sticking a head on a pole in front of the community as warning to all other members. Take a look at the little cartoon we created on the bottom of this page.

Dennis

Robert,

Help me understand your situation better? I’ve no experience with this particular management company so they are not the typical players in this state . What did they buy? Do they own all the 70% rental units? Who owned them before. What exactly is their voting power. They cannot be a declarant, even if they bought all the units from the original declarant, so the rules and capability of a declarant under the period of declarant control to appoint all board members and suspend all conflict of interest provisions of the law for those board members cannot be taking place. If the declarant sold the units to this company the period of declarant control immediately ceases. It sound like this management company thinks that it is the declarant and the declarant control pertains to them. Now if they have 70% of the voting power of the Condo then they can clearly by virtue of that voting power decide who they want on the board at an election held for that purpose. But those candidates must satisfy the qualifications requirements of the bylaws that typically require any candidate to be a member of the community.

There is no state agency that regulates either the HOA’s or Condo’s or the management companies themselves in this state. Only the individual homeowners are left to enforce the law, and you can bet that to these associations and the HOA industry compliance with the law is totally optional if it suits them directly. Because they know that 99% of all homeowners will not sue the association for failure to comply with State law simply because it risk their personal money, and the association will use community money to defend themselves and if that runs out simply raise assessments to get more money.

For the last two years I’ve drafted and got sponsored legislation to prevent the association from suppressing the ability to speak and communicate with other homeowners relative to community issues and business. Both year that legislation was defeated without both houses getting an opportunity to act on that bill. So right now the association is free to retaliate against any homeowner simply for trying to organize resistance to the actions of the board or management company.

Dennis

By the way if you prevail in the ADRE petition the association will be forced to pay you back for your application fee.

Dennis

You do not need an attorney this is a direct violation of Arizona Law and as such you can file a petition to the Department of Real Estate to force the association to comply with the law. It will cost you $500 to file the petition and you will be heard before an Administrative Law judge. The association will lose this issue and they will be forced to allow you to install your solar devices. If you are only interested in suing the association you will make a couple attorneys a lot of money and in the end the association will bear the cost of all the litigation and pass that cost back to all the homeowners. While you may be able to get punitive damages from the association the best you can hope for is that all your attorney cost are awarded and the association is forced to pay. But as i mentioned in HOA litigation only the attorneys win, the individual homeowner even if he wins the case will end up being hated by all his neighbors because their assessment were raised by the association and have his assessments raised as well. Do not under any circumstances believe that the association and its board will be honest with the community and accept blame for the litigation cost, the blame will be put squarely on you, even though it is totally false.

Any Attorney who can actually read the law will be able to present this case if you so desire. If you want to pursue the ADRE approach than let me know and I’ll help you frame your petition.

Dennis

Carol
First a seven member board for a community of 116 homes is a little over kill. I would typically see 5 member boards for community of this size. Clearly your entire board is re-elected each year for continuity reasons I would recommend that terms be extended and staggered to two years, where half of the board is re-elected each year. It is great to see so many candidates running for the board. This is a sign of a very healthy community. The practice you describe is very uncommon and unless specifically called for in your bylaws is totally inappropriate. It diminishes the power and rights of the President to act as a representative of the community. Each board member should have an equal voice in any board decision. This practice should stop for your community as no statute in either common interest community law or corporate law requires this type of restriction on the voting power of any board member.
Typically the homeowners elect the board members then those board members elect the officers of the association. The officers should be elected for only one year irrespective of the term limits for the board members themselves. In this way new board members are equally eligible for officer positions as old board members.

Thanks
Dennis

Arizona law prevents the association from prohibiting the use or installation of any solar energy device ARS 33-1816. The association may apply reasonable rules for that installation as long as they do not effect the efficiency of the unit. Tell them that if they do not authorize the installation of the panels immediately that they will be sued and will lose and be responsible for all legal cost you incure in doing so.

Do not mess around with this if they refuse to allow you to install the solar energy device immediately get an attorney and sue the association for violating state law.

Dennis

Thank you Dennis! I appreciate your assistance…