e-mail me at email@example.com.
While Roberts Rules have standard guidelines for meeting minutes, Association boards have no obligation to use Robert’s rules for conducting their meeting or recording their minutes. Because a secretary transcribes such minutes does not mean that the board has to accept those minutes as written. Any reasonable board would never allow such minutes to become a permanent record of the association. Having said that there are far too many unreasonable boards to go a round and use the minutes to embarrass or intimidate homeowners who disagree with them. I’ve seen boards approver minutes with blatant lies about what a homeowner said or did in a meeting because the board did not like that homeowner who simply was trying to get the board to comply with the law. The plan was that if they embarrass him enough he will stop coming to the meeting. All too often that tactic works, and the board simply continues to do what ever it wants to do irrespective of the law.
My recommendation to you is to record the meetings and attend the next meeting, during the motion to accept the minutes identify that the minutes are not correct and show the board exactly wat was said. If they refuse to alter the minutes to reflect the truth than inform them that they have thereby approve a falsified record for the association, which could result in legal action against the board members directly and individually. Their indemnification from liability does not protect them from intentionally falsifying an official association document.
The HOA fined me for roughly 3 years for violation of 33-1808 for flying the USA flag on a flagpole in my front yard. My complaint also included that and the judge didn’t think 3 years of fines for flying the flag of the USA on a flagpole violated 33-1808 either. For what it is worth, we are also in the Pinal County Superior court on the same topic of the HOA not being able to write Rules without a valid Restriction. However, the Superior Court Judge has decided to wait for the final action from ADRE before making his final decision. As ADRE has decided that the HOA no longer needs a valid restriction to write Rules, the ADRE has just written a blank check to HOAs to write whatever Rules they want. The HOA argued that having a valid Restriction was needed to write a Rule. Then the HOA argued that NOT HAVING A VALID RESTRICTION was EVEN BETTER as there could be no conflict between the Rule and the Restriction if there was no Restriction. I have to admit, it must be a brilliant strategy as the ADRE Judge bought it hook, line and sinker. The ADRE now says:
1/30/2020 Decision Due
1/30/2020 TRANSM Transmit to agency
2/12/2020 Action Due
3/5/2020 Agency response due
3/9/2020 ALJFIN ALJ Decision final by statute
4/19/2020 45 day tickler for AA after transmit
I have heard nothing about the 3/9/20 “Decision final by statute”.
I guess Time Will Tell?
What your association is attempting is totally illegal. You are absolutely correct in your read of the statute. There is an “and” not an or in the law and that will supersede whatever your association has in its bylaws. As a direct violation of law any outcome from that ballot measure can and will be nullified by either a superior court or administrative law judge.
My recommendation to you is to write a letter to the board and the management company informing them that what they are attempting is in violation of Arizona law and if they continue to attempt to conduct this ballot measure they will be challenged by a petition to the Dept, of Real Estate and they will have the measure invalidated and they will be liable for the petition fee and subject to a fine at the discretion of the ALJ. This is important that you inform the association before the meeting that they are violating the law. If they then go ahead with the election it is in total disregard of the law.
The reason the association is doing it is they believe that if they allow absentee ballots that more people will vote and they will most probably get the majority needed to pass the measure. They will tell you the story that it is based on the cost of sending absentee ballots to everyone. Don’t believe this for a minute that is nothing but crap. If they were truly concerned about the cost they should have planned better and provided for the cost of whatever they are trying to do in contributions to the reserve fund over several years instead of trying to sneak in a special assessment.
My last visit to ARDE OAH to resolve our above issue in January 2020 regarding the HOA writing Rules and Regulations WITHOUT a valid CC&R ended with the OAH judge allowing them to do it. With Dennis’s help, I supplied case law from AZ Appellate Court, AZ Supreme Court and US Common Law. None of it mattered to her. She made it quite clear that it was her court. The unsaid part was that none of that case law mattered in “her court”. Be aware that ADRE OAH is not always the best place to reach out.
Tom you are absolutely right, that is why I always ask people to let me see their petition before they send it in, I may be able to save them $500. The ADRE dispute resolution process is based on specific violation of Arizona Statutes in Title 33 Chapter 9 or 16 or Community documents. If the issue does not direct violate state statutes then they must violate a specific and clear provision in the governing documents. The problem is the ALJ is not required to interpret the governing documents or rule of their appropriateness. Case law established in appellate and supreme court can rule on the appropriateness or on the consistency with Property Servitude common law. If you issue goes into this grey area it is a total waste of time and money to try and pursue that with an ALJ.
I’m not sure what exactly you are looking for. While title 10 in section 3821 allows corporate boards to take action without a meeting, Title 10 for corporations have no open meeting laws. HOA’s and Condo’s do have open meeting laws that take precedence (specific statute always take precedence over general statutes) over the Title 1`0 provisions. Any communication between a quorum of the board discussing community business even if no action is taken even by technological means (e-mails) constitute a meeting subject to the open meeting laws for HOA’s and Condo’s.
There are many ways to conduct business under the open meeting laws but it take forethought and planning. If you wait to the last minute or don’t think ahead as a board it will seam hard. If you actually thing about what you have do ahead of time it is quite easy to conduct all the business you need within the normal meeting schedule for the association.
I am specifically looking for the document with the language shown in the post above:
” The tribunal in DeBoer v. Turtle Rock III HOA, concluded that the Board’s “practice of taking actions in the absence of a meeting by obtaining unanimous written consent of the Board members via email violated the charge provision of A.R.S 33-1804.” ”
I’m not on the board I speak of. I want to stop the conducting of business via email. I saw where you are trying to get specific language prohibiting that into the statute, but for now the text implies that it is improper but does not explicitly prohibit it, such that management companies can claim that it is allowed. A court ruling establishing the implied prohibition would be helpful until the specific language prohibition can be passed. If you have the tribunal (?) decision quoted above, please share. I cannot find it no matter how I search online.
The case your are looking for is case 17F-H1616006-REL that can be found on the Office of Administrative Hearings web site. Richards case in 2017 was based on my case in 2014 and 2015 directly related to the illegality of actions without a meeting by HOA boards. There are also at least two other cases that again directly referred to my case in 2015 on the same subject. All of this stems from two basic facts, first that the attorney general in a 1997 opinion determined that the definition of a meeting for HOA boards must use the only definition for a meeting in statutes and that is the definition established for public bodies. In that definition it states that a meeting is established if a quorum of the board proposes, discusses or deliberate or votes on any action that should come before the board in person or by technological means. The last part is the key point a meeting takes place even if the board is not physically present in the same room. So a discussion by conference call or e-mail will constitute a meeting. Arizona law demands that any meeting of the board to conduct business or take action must be noticed at least 48 hours in advance and members must be allowed to attend and participate in that meeting. If a quorum of the board discuss any community business via e-mail they are violating the Arizona open meeting laws.
The second important part of this issue deals with the fact that most CC&R’s and Title 10 for non-profit corporations allow “actions without a meeting by unanimous consent” ARS 10-3821. All association attorneys and most community managers cite this statute as justification for e-mail actions. Which of course is totally wrong. The Supreme Court of Arizona established in Larson v Farley in 1970 that Specific statutes always control over general statutes if conflicts arise. Title 10 applies to all non-profit corporations while Title 33 chapters 9 and 16 apply to all condominiums and all planned communities. Title 10 has no open meeting laws and as such provision relative to meeting must be subject to the specific statutes of Title 33. The open meeting laws for HOA take precedence over the general meeting provisions of ARS-10-3821.
When I won my case I tried to get AACM to include that case in their training of community managers so that boards would stop using action without a meeting. After months of pushing them on this issue I finally got a letter from AACM’s attorney stating that they would not be including any reference to my case in their training “because they did not have too.” This is when AZHOC was born.
Hopefully this clarifies the issue?
Yes it does. Thanks! I’m ready to donate to the cause now. I will look up the case you gave in the administrative hearings.
Interesting question. There is a lot in your question. Let me start with the basics. Arizona Laws are extremely weak relative to limitations on the ability of the association to determine their annual budgets or the subsequent assessments from those annual budgets. For an HOA the law limits the ability of an association to raise the annual assessment to 20% above the previous year with out approval of 50% of the community. There is no such limit for Condominiums. However, for Condominiums there is a very weak provision that addresses the need of the association to have each annual budget ratified by the community, but the rejection of the budget will require greater than 50% of the community to disapprove of the measure. In this scheme everyone that does not vote at all is counted as approving the budget. Making it virtually impossible for any community to reject any proposed budget by the Condo board. These are the classic influences and results of CAI and AACM in the structure of our statutes prior to our existence.
The association is never authorized to increase the annual assessment in excess of the limits established in the CC&R’s. This is little relief because most CC&R’s provide very little limits on the ability of the association to increase the annual assessments. But many if not most CC&R’s to require some level of community approval for special assessments above the normal annual assessments for routine maintenance and operating cost.
This is where many association boards have taken the strategy that to avoid having to get member approval of special assessments they create a plan where they will increase their annual assessments by 20% every year until they get the money they need to complete the project that they wanted the special assessment for. In doing this the presumption is that they are not exceeding the limits if any within the CC&R’s and staying within the state limits. This is not approving a budget in advance for future years but rather a strategy for getting the money they need for a project while excluding any member approval of that money. Many association that I’ve run across utilize this perfectly legal if not inappropriate way to circumvent any member input into their assessment growth.
I’ve tried for years to increase the resale disclosure requirements for properties to identify these type of tactics being used by an association to potential buyers before they buy these homes. I’ve presented legislation 3 out of the last 4 years on this subject. But in all cases that legislation was opposed by the Realtors, as a treat to their ability to sell homes in these communities. They would rather make the sale than inform the buyer of the true financial obligations that buyer will experience after he/she buys a home in these communities. There is no current obligation for an association or a home seller to identify association plans for future special assessments or of strategies for 20% assessment increases every year. You are also not obliged under the law to provide annual assessment history that would reveal the 20% increases every year in the immediate past. All of this is simply wrong and totally unfair to potential buyers, but as long as I cannot convince the Realtors that true disclosure is the only fair way for them to treat their clients we will never get better laws in this area.
As for disclosure by the association the truth about a vote for assessment increases. The truth and full story of any issue presented by the association for member votes is a very rare if not none existent commodity. You will be fed their story and their spin on the issue to convince you to vote as they want. Don’t believe a thing they say. Investigate it on your own, ask questions, look for facts and evidence of what is really going on. Talk to other homeowners seek the truth from any source available they do whatever you can to spread the truth on the issue to your neighbors. This is why SB-1412 that is being considered in the legislature this year is so important. This bill will protect your fundamental freedom of speech and assemble to organize community involvement in community issue. You cannot legislate integrity but you can legislate the ability of the community to free speech and seek the truth so that informed decisions can be made by the association members in the affairs’ of the community.
Thank you so much for your comments. Perhaps more info on my part will help here in what I was looking for. This is a single-family home development. Our CCRs limit annual assessment increases to US Price index something…, basically a very small % a year as you mentioned unless they get 2/3 of the vote to increase it beyond that. They crammed this down people’s throats going to everybody’s doors as many times as necessary. Some people caved just to keep peace. I knew this would have to be disclosed on resale contracts in the HOA addendum & should really be put in the SPDS & mls as well. They passed it by one vote, but people I spoke with said they would not have voted for it if they had known they would have to disclose it to future buyers. They passed an increase on annual assessments to increase more every year than CCR limits every year for the next 15 yrs! The homeowners absolutely have to disclose this & most homeowners didn’t know that. The HOA board & management company were asked before the annual meeting if they had any obligation to inform voters of this prior to getting their vote, and were asked exactly what they were going to disclose in their HOA buyer packets to title. They ignored the requests for answers. After several emails we have gleamed that they have no intention of disclosing it at all (only current dues.) But CCRs tell a buyer fees won’t go up more than X% a year without a vote of 2/3 of the members. I’m starting to believe they don’t have to disclose anything to any homeowner before getting their votes so that isn’t my biggest concern anymore. They only passed this by one vote & held the mtg on the 1st Sat after annual dues would become late which disqualified a portion of our voters, so if it had been held one week earlier it would also not have passed. (Legal but shady & done to get their way.) Besides the fact that they are deceitful to the homeowners, when they release a packet to title with current dues as X combined with CCRs stating dues won’t be increased without 2/3 vote of owners, but do not disclose to the buyer that their voting rights on the matter have been usurped for 15 years to come, I believe it will be a material omission.
I honestly don’t know why realtors would not want HOAs liable for disclosure because homeowners still have to disclose it anyway and don’t need their HOA packet to be deceiving.
I believe annual dues voted in by members implies an annual vote, not a one-time vote forever (unless you were to modify CCRs) Any thoughts on that?
So do they have the right to vote in an ongoing incremental increase annually, all at once in one year, to affect many years to come? And if management company/HOA doesn’t disclose it (which I can tell they are not planning to do in spite of half-ass answers and obvious intent to deflect & evade answering questions related to this,) is it legally a material omission? Could buyers sue us in the future because they received misleading information from our HOA which essentially contradicts the CCRs which provide ‘owners’ with a right to vote? Are those dues even binding on a new buyer when buyer’s vote no longer exists?
Next, is there anything we can do about it now? I did not vote for it, but preferred to do a one-time increase that would solve the financial issue for many years, but they treated us like stupid idiots dangling a carrot of ‘it’s only a little increase this next year’ to push us into it. I’m mad because it creates a disclosure issue for any homeowner trying to sell their home in the next 15 years & I don’t see how they can provide a realistic budget 15 years into the future to justify their need to basically double our fees. I realize some buyers won’t care, but others will and some will even see it as a deferred special assessment that should have been paid by the seller at COE & I see it deterring some buyers from buying in this neighborhood at all if the seller properly discloses it themselves.
If there is nothing we can do several of us will just be left with zero trust in our board which in a small neighborhood is your neighbors. We’ve been here a really long time, but right now feel like moving. Thanks in advance for your time.
First you have to read your CC&R’s very carefully. Most similar provisions in all the CC&R’s that I’ve read approach this very differently. They typically establish a specific initial limit on the annual assessment and allow an annual increase based on the increase of the consumer price index from a specific year and month. The CPI varies from month to month and year to year. This does not limit the annual assessment increases only based on the increase from the last year but rather the cumulative increase of all the time back to the base year and month. Think of this in this way say the base assessment is $100 annually, after the first year the max assessment is increased by the CPI for the past year times the CPI for that time period. But say the association does not increase any assessment for that year or the next 9 years. In year eleven they want to increase the assessments and need to find out how high they can raise the assessment without voter approval. Now say that the CPI increased 1% for each of the previous 10 years since the base year, the actual assessment increase allowed for that association would be the sum of all the CPI increases since the base year or 10%. When you put actual CPI changes into the equation and long periods of time from the base year this limit of annual CPI change becomes totally moot because it has grown so large. State law for HOA’s cap the annual increase from any year at 20%. Many associations have taken advantage of that provision to simply establish a strategy that increasing the annual assessment by 20% for multiple years is better than to try and get voter approval of a one time special assessment.
As I mentioned at the beginning of this response you have to read your CC&R’s very carefully. The association cannot by vote of the members change assessment payment schemes without first modifying the CC&R’s. You seam to imply that you believe that they did just that when they said that they asked the association to approve a plan to raise the assessment a certain amount every year for the next 10 years. Here you need to be very careful to what was specifically requested. A special assessment could have been requested to be included in the annual assessment for the next 10 years. Your overall assessment would consist of your normal annual assessment and 1/10 of the special assessment voted on by the members. This does not come under the original CPI limitation or the state 20% limitation because of the two separate parts of the assessment.
I know that this is very confusing, but I would need to see your actual CC&R’s and the measure that the members were asked to vote on to give you any real clarity on the appropriateness of the associations actions.
As for the disclosure issue. The requirement under state law is relatively weak, you must disclose the current assessment value and any active special assessment and how they will be paid out. You are not required to disclose an past assessment or any potential future assessments which I believe is fundamentally wrong. Once again I’ve tried to change these laws for 4 year without any success, but one day I will if we can ever grow this organization to a point where the legislators cannot ignore our membership and our ability to vote any of them out of office if they act outside the best interest of the homeowners.
I found the DeBoer v. Turtle Rock III HOA decision, but not anything to do with “tribunal” as shown in the OP above, nor language about emails for decision making. Can you point me to a copy of what the OP refers to?
As you might guess, my HOA board and management company have been conducting business via email lately. I’m asking for all emails and I want to stop the recent opaque actions.
I have requested a copy of the Feb 2020 board meeting via email to the HOA president. At the March meeting he told me that he responded. I never received his response and have requested via email that he resend it. He told me that they were going to put a “link or something” on our website to view the meetings. I doubt this will ever happen. Others have also contacted board members to view the recordings to no avail.
From Meeting minuteson
Thank you Dennis
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