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

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?

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?

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.

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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.

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

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

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.

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

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

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