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Perimeter Walls/Common Area

Townhome Community: HOA refusing to accept their responsibility of maintenance on the perimeter walls that abuts Common Area/Lots. Homeowners maintain everything upon their lots. CC&R’s clearly state Association maintains Common Areas. They quoted a section...
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Annual Meeting Question

Our Annual Meeting didn’t meet quorum and the Annual Meeting wasn’t held. No new meeting date was set during that meeting. The meeting was adjourned. The monthly meeting took place and the board voted to...
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  • From DennisL on Question

    Nicole,
    The board had a right to assess the cost to repair any damage to the common property caused by an individual. Assuming of course that you actually caused the damage. If a contractor working for you caused the damage, then you are also responsible for the cost to repair that property. If you deny causing the damage then you must contest this issue with the board and ask for any proof that they have to assume that you caused the damage that they say you caused. You also have the right to see the receipts of any expense that they incurred directly to affect the repair. if they have not accomplished the repair and you are responsible for the repair you have the right to contract separately, to affect that repair. The board does not have to contact your contractor they worked for you not them, but if they caused damage then you can ask them to have their insurance and bond cover the damage they caused, if they refuse you can go after then in small claims court or file a complaint with the registrar of contractors office.
    You board actually the open meeting law but that fact does not invalidate anything decided in that illegal meeting under the current law. You may go after the board for violating the open meeting law but it will change nothing in your situation. The current law simply does nothing to protect for from this abuse of power by your board.

    Dennis

    Go to comment
    2022/05/02 at 9:37 pm
  • From Dave Green on Recording

    Hey Dennis,
    Two homeowners (one who was removed at recall last year and the other the husband of one of the losers from the last election) have gone to Jon Dessaules and have demanded the recordings made by the homeowner who is also a director. I also used a camera to record from behind the board of directors out into the audience. They claim that since it was a board member who recorded the meetings it has automatically become an official record of the HOA and subject to records release. We have reiterated our policy that anyone can record meetings at every meeting and in our newsletter. The question is – does the fact that a board member recorded meetings automatically make it an HOA official record? Our lawyer said, “As far as the law on recording, there is gray area if directors are individually recording. There isn’t a case where the directors are wearing a different hat and courts tend to favor homeowners. I think a court would still make you all disclose in the end”.

    I have another question. We have a director that refuses to attend any board meetings. I assume there is nothing we can do about that. We had the recall last year and he received a plurality majority to remove him but the management company and our lawyer said it had to be an absolute majority. I find nothing in ARS except that the only way to remove a director is by vote of the homeowners. Am I correct?

    Go to comment
    2022/05/02 at 5:43 pm
  • From Arvid on Can HOA restrict street parking on public street?

    Hello,

    My HOA is a public road and was formed in 2004. My family has 5 drivers in the family and the language at the end of the parking section in the CC&R’s makes it unclear if we can park one car in the street.

    Owners motor vehicles shall be permitted to park
    only in garages or on paved driveways on Lots and may not be parked so as to obstruct any sidewalks, and no motor vehicle may park on the roads or streets within the Project (the “Roadways”) except as specifically permitted by signage; provided, however, vehicles of guests and invitees may park on the Roadways for a temporary period of time not to exceed ten (10) hours provided that such parking is done in a fashion so as not to obstruct driveways on other Lots or traffic within the Project. All motor vehicles of Owners, Occupants, guests and invitees shall be kept in garages whenever such facilities are sufficient to accommodate the number of motor vehicles on a Lot.”

    What are your thoughts?

    Go to comment
    2022/04/28 at 9:24 pm
    • From DennisL on Can HOA restrict street parking on public street?

      Arvid,
      There is absolutely nothing that is unclear about your communities parking restrictions. You cannot park any of your vehicles on the streets, while your guest can for short period of time. Because your streets are owned by the municipality there is a law that stipulates that if the CC&R’s are changed for any reason after December 2014 that the association loses the right to regulate the streets in any way. If that occurred, then your street parking restrictions are void and unenforceable and only the municipality can regulate the parking on the street.
      Dennis

      Go to comment
      2022/04/28 at 10:07 pm
  • From RS on HOA voting quorum

    Dennis,

    Thanks for the reply. A member of the community reached out to the management company regarding the vote totals and was sent this reply:

    We have never released the actual vote totals before, just who was elected. We always have homeowners and a board member (not running for the board) confirm the votes and if a homeowner ever wishes they could look at the votes it is community knowledge. Since we have never announced vote totals prior I really don’t want to break previous practices.

    There will not be another election held. Some communities have sliding quorum requirements, so if you don’t meet quorum at the first meeting it lowers for the next meeting. Parkwood Ranch does not have that and there is no requirement to make quorum for the annual meeting.

    Looking at the votes online it did not seem there was a rush of last second votes. In my opinion or email blast reminding people to vote via email to the entire community more than likely got more votes than a couple more hours of the portal voting being up.

    ——————————————————————————————————————————

    Many of us are perplexed because of these statements that there isn’t a requirement to meet quorum and the fact that the online voting was shut down on Saturday and no one was able to vote on Sunday. So yes, there wouldn’t be a last minute rush to vote because people couldn’t through the portal.

    I would like to know so it can be shared with others, how do we go about getting the vote totals per candidate? I would assume we go to their office to see them, but can we just show up or do we need to advise them we want to see them or is there some official notification process.

    Thanks for what you do here, you are a great asset to everyone involved with an HOA.

    Go to comment
    2022/04/27 at 10:36 pm
    • From DennisL on HOA voting quorum

      As for the viewing of the voting records you simply have to write to the community manager and request to view all records of the election including all actual ballots submitted and the number of total ballots received and counted. While you are at it include aa request for the proof that the on-line voting system used by the community manager satisfied all the requirements of law for that system and that no person involved with the handing of that software had any ability to alter or add and votes not submitted by legitimate association members. The only member of the association is the owner of record for the property their system must validate that the person voting was that person only and not someone else from his/her household. They also have to validate that every vote case was confirmed to be the vote recorded by the system, how they do that should be an acknowledgment by the system to the voting member of what they received as their vote.
      Dennis

      Go to comment
      2022/04/28 at 10:17 pm
    • From DennisL on HOA voting quorum

      RS
      Your community manager is wrong. There is a requirement ARS 33-1804 that a meeting of the members be “held” annually your meeting was not held as they claimed that a quorum was not achieved. If a quorum was not achieved the meeting did not happen and was never held. Additionally, like I mentioned earlier ARS-33-1812 requires that the association allow votes to be submitted in person “and” by absentee ballots, both can be used to satisfy the quorum, they only counted the absentee ballots they never asked or counted if anyone was at the meeting that had not yet voted and wished to vote at the meeting. Whatever the community manager never provided before is totally irrelevant they are required by to provide any member access to view the records of the vote including the vote count and actual ballots submitted, because some community manager did not do his/her job before does not justify continuing to do it incorrectly now. Quite frankly not providing the vote count is just plain stupid. One last point it appears that your association used an on-line voting system that is not currently authorized for you by the planned communities act. There is a provision in non-profit corporation statutes that allow an on-line voting system if it satisfies certain criteria, there is no such authorization in the planned community act and in fact ARS-33-1812 specifically excludes the use of the section within non-profit corporation law that provides for use of an on-line system. While I personally have no objection to the use of a legitimate on-line voting system that actually satisfies the criteria specified, it is currently not allowed by law for these communities. On-line systems created for the individual use of community managers by their own firms should never be trusted for votes in these communities without certified independent validation that it satisfies the criteria required by law and there is no way that anyone from the community managers firm could manipulate the voting data. I would never under any condition trust an on-line voting system run and operated by any community manager. Their jobs could depend on the outcome of the vote and to put the control of that vote in their hands in my opinion is totally foolhardy by any community. In my opinion you have a very strong cause of action to challenge the actions of the association and the community manager relative to the handling of this election in violation of Arizona law in court either through the ADRE dispute resolution process or civil court.
      Dennis

      Go to comment
      2022/04/28 at 10:01 pm
  • From DennisL on AZ Supreme Court Decision

    Margaret,

    While I responded to your direct question via e-mail I’ll repeat that response here for the benefit of all homeowners.
    Because an amendment increases the size of a document is not the issue , it is what specifically changes that is covered in the amendment is what is important. The issue in point is that the association has no right to create new restriction or materially change existing restriction on the use or occupancy on private property that could not have been reasonably foreseen from the original CC&R’s, without unanimous consent. To challenge the validity of an amendment you must first determine if any provision in that amendment violated that precise limitation. The right to challenge that amendment (cause of action) can only be brought by someone you opposed that amendment. If you voted for it you forever give up the right to challenge that amendment in the future. That is why I’ve repeatedly advised people that if they have any doubts about a CC&R amendment they must vote “NO”.
    If you believe that the amendment is invalid and you have a cause of action (did not approve the amendment) then you must get an attorney and file suit in Superior Court against the association for the invalid amendment to the CC&R’s. The Supreme Courd decision in Kalway will go a long way in helping your case but you would have the burden of proof so do not take this on lighly, or for trivial issue. Even if your prevail in this case you will only get removed the provisions that directly violate the unanimous consent premise. Do not underestimate the financial cost of such a case, you must realize that if the association believes they will lose the case they will attempt to file motion after motion to force your attorney to respond simply to drive the cost of this litigation thru the roof hoping that you would be forced to drop the case because you can no longer afford it.

    Dennis

    Go to comment
    2022/04/27 at 6:35 am
  • From RS on HOA voting quorum

    I would like to tell you about our annual meeting that was supposed to take place tonight.

    To meet the quorum requirements our community requires 10% of eligible home owners.

    This meeting was done virtually and from the management office which is located in Gilbert and our community is in East Mesa. There were three board members at the management office and two virtually.

    The president called the meeting to order and the management company stated that quorum of eligible home owners voters was 132 and that votes came in at 113 and quorum wasn’t met.

    At this point it was announced that since quorum wasn’t met, that we couldn’t hold the annual meeting. For a brief moment they said voting was still open and they would leave it open and gave an e-mail address to e-mail in votes. However that was for two minutes and in a rushed attempt the board members in the office adjourned the meeting and didn’t announce a new meeting date. All that was said by the management people is that the board remained the same.

    They then went into the regular monthly meeting. During that meeting a question regarding an existing board member came up about them moving and the answer was they stayed on the board until their home sold and they moved out the community. That’s fine but later another person asked for a reading of the vote totals from the annual meeting, the management folks said 113, the person clarified that they wanted the vote totals by candidate to be read and they were told no, since quorum wasn’t met they won’t do it and that if quorum was met they would announce the top three people who received votes.

    A couple of other items I wanted to add which may be of importance. There was a short period of time to vote and some people didn’t get ballots until this past Friday with Monday being the meeting. The other thing is this company has an online home owners portal.

    In the set up for the election, the option to vote for quorum only wasn’t present, the option to vote to rollover the surplus wasn’t there and they stated that you could vote until 1159PM on Sunday, however when trying to vote on Sunday they had already taken down the option to vote. I can see why they rushed through this meeting.

    Can you advise if this was all within the rules based on your reply to johnp, if it wasn’t within the rules can you tell me which parts and what can be done if anything.

    Thank You

    Go to comment
    2022/04/25 at 10:57 pm
    • From DennisL on HOA voting quorum

      RS,
      Once again, a totally incompetent community manager that does not have the basic skill or ability to read negatively impacting an election in one of these communities. Arizona law requires that associations must provide for an opportunity to vote in-person and by absentee ballot. This is not an “or” you must allow both, and both apply to satisfying the quorum requirements for the meeting. In your case the absentee ballots alone did not satisfy the quorum requirement, but the manager did not even consider those people in person on the zoom meeting relative to quorum requirements. The law also requires that a meeting of the members be held annually, and in this case because they claimed that the quorum was not achieved the meeting was never held and had to be re-convened at a later date to actually “hold” the meeting and the election when quorum can be satisfied. This is not rocket science and simple common sense. Elections must be “held” annually. The law also requires that ballots be provided to homeowners at leas 10 days prior to the meeting once again this community manager failed to satisfy the basic premise of the law. Board do not get to extend their terms of office because they simply want to they must be elected by the members and you have an absolute right to know and review the results of that election. Your question on vote count for each candidate was totally appropriate and the association must provide that answer to anyone asking it. Your board hired this community manager and they need to be held accountable for the total incompetence of this individual.

      This election and annual meeting was a total sham and illegitimate. Inform your board that they can either reconvene the meeting using the votes already cast and allow anyone that had not previously voted to submit a vote and to count quorum based on both absentee ballots and person in attendance at the meeting or you will sue the association and the board individually for grossly violating the law.

      Dennis
      Dennis

      Go to comment
      2022/04/26 at 8:40 am
  • From Cars on Election rules help please

    I have several questions relating to this topic. The HOA’s bylaws call for a nominating committee, but also specifically allow nominations from the floor at the annual meeting. With meetings online and secret ballots due in advance of the meeting, do the AZ statutes preclude HOA’s from requesting nominations from the floor? If HOA members choose a write-in candidate on the ballot, does it have to be considered? Can a secret ballot be submitted by email as an attachment? Are the HOA management companies generally responsible for receipt and count of election ballots without overseers? Can a nominating committee choose specific candidates to move forward onto the ballot as long as the number of candidates is covered? For example, 5 candidates are interested in 3 board positions, and the nominating committee only moves forward with 3 candidate names for consideration onto the ballot.

    Go to comment
    2022/04/25 at 10:27 am
    • From DennisL on Election rules help please

      Cars,
      Basically, any nomination committee must put forward on the ballot any qualified candidate wishing to run. The scenario that you proposed where the committee only put on the ballot three candidates for three positions would be essentially electing the board and no committee or board has the power to do that. That would be totally illegal in any state. As for nomination from the floor the first question is yes, a community can do that but must have the required quorum present to do anything like that. Qurum can be satisfied by the combination of in-person attendees and all absentee ballots submitted. If the in-person attendees do not independently satisfy the quorum then they cannot take any action, including submitting nominations that were not on the ballot that the absentee members voted on.
      Arizona law requires that association provide for voting both in-person and absentee ballots they do not have the right to exclude either of those options. While the law does not specifically address virtual meeting mostly because they were never really needed prior to the pandemic, a virtual meeting is essentially equivalent to an in-person meeting and is acceptable. What your association is doing is preventing your community from voting in person at the virtual meeting which violates the law. There is nothing wrong with requiring the absentee ballots from being due or even counted the day before the meeting, but the association must allow anyone who wishes to vote at the meeting must be allowed to do so. The law does not address write-in candidates, if your bylaws or CC&R’s allow them, they must be provided for. While management companies typicall receive rthe ballots for the community many associations have a group of independent members along with the community managers count the ballot. No management company should ever be trusted in counting or handling the ballots unsupervised. None of them can be trusted to this task. They have far too much at stake to trust that they will not manipulate the vote to ensure that they get the outcome that they want irrespective of the true votes of the community. While the law does not specifically require oversight, this is why the law requires that all ballots and related material be retained for one year and must be made available for any member to review irrespective of the secret ballot or not.
      Dennis

      Go to comment
      2022/04/25 at 12:20 pm
  • From DennisL on Removal of Directors

    Steve,
    The petition is for the special meeting to consider the recall of directors. So only one petition is needed but you do have to list by name each director that you want recalled. This way once the meeting is called each director must be on the ballot for recall individually. So that everyone has to vote either for or against the recall of that individual board member.
    I always advise association to have a good idea and if at all possible, a list of candidates ready to run for the board right after the recall vote. The very last thing you want to do is put new members in office that will be worse than the ones you just removed. The association only has 30 days after the recall to hold another special meeting to fill the vacancies created by the recall. Please remember when doing this that winning on a successful recall must affect a majority of the board if you are to have any say in the replacements. if only two are successfully recalled the board get to appoint the replacements without any vote from the members. You can bet they will appoint people that think like them and will support the prior board.
    Dennis

    Go to comment
    2022/04/24 at 12:02 pm
  • From DennisL on ARC Documents

    Steve

    Absolutely any ARC request and the disposition of that request must be maintained by the association as an association record. It is public information and not confidential in any way obviously because the results of that decision will be on public display for anyone in the community to see. There is a legitimate need for the transparency of these request and disposition for the association to assure the fairness and reasonableness of any decision of the ARC. An April 7th a Nevada Supreme Court decision (Moretti v Elk Point country Club) was directly related to the authority of HOA’s to apply any design controls on private property coupled with a Connecticut Appellate court decision Grovenburg v Rustle Meadow Associated on the reasonableness standard for any design control issue. Both of these cases relied on the transparency of this process.

    Dennis

    Go to comment
    2022/04/22 at 6:48 pm
    • From Steve Gordon on ARC Documents

      Thanks! They did provide these to me….after review, it is proven in these documents that….(1) the resident submitted an ARC approval but did not list the size of the pots in their yard–the request was approved but he exceeded the rules for heights and qty. (2) He submitted ARC documents for approval AFTER I began my effort and since filing my request –this resident is/was the PRESIDENT of the board. He installed lights but called them yard art to get away from height requirements–again, height and AFTER the fact. (3) he has metal cactus (3 of them) that have not been submitted nor approved. Since this time, another question I have posted, he has filed a CODE OF CONDUCT violation against me for “harassment”… Never, have I reached out to him nor his wife directly, only the board (again, he is the President at the time, Secretary as a new year began) or the Mgmt Company. Now, because of this notice, I cannot apply to special committees that have been opened up. I have appealed this effort but, after nearly a month, they still refuse to resolve and discuss. — I have posted this as a question in another thread. Reasoning for my push on this–this board has sent a large number of violations to other residents for similar actions….I have received violation letters that were NOT violations-true harassment effort. The board contineus to overstep based on our rules and refuse to address

      Go to comment
      2022/05/22 at 1:39 pm
  • From Henry Schubel on ARC Documents

    Architectural Requests are “unprotected” documents and should be made available to any HOA member on request.

    Go to comment
    2022/04/22 at 9:08 am