To answer your question appropriately it is most important to see the actual language of your CC&R’s and association rules. And to understand how you believe that selective enforcement is taking place.
The association has a duty to enforce the CC&R’s fairly and uniformly across the community. The association is also free to change the way the enforce any provision of the CC&R’s as long as it is a conscious documented decision of the board, that is communicated to all members prior to enforcement of that changed interpretation and finally that they now enforce that new interpretation uniformly across the community.
Because as association has not applied the commercial vehicle restriction in the past the same way that it is now does not make it selective. But if they decide to change the way they have applied this restriction in the past they must communicate that change to all homeowners directly before they can enforce that position. What happens mostly in these communities is the board is not involved in the change at all , either a new management company or a new community manager comes along and decides for themselves how to interpret the CC&R’s. This is totally inappropriate. Only the board has the authority to interpret or enforce the CC&R’s.
My advice to you is contact the board directly or attend the next board meeting and ask the question directly. Has the board decided to change the way they address company marked vehicles parked in private driveways? And if so when and in what open meeting was that decided and recorded and how was it communicated to the community?
Arizona does have laws (ARS: 33-1809) that prevent the HOA from restricting public service vehicles where the homeowner is required to respond to emergency calls outside of normal business hours. Do if your vehicle meets these qualification you are free to park your company vehicle no matter what the CC&R’s say.
Hopefully this helps
Well stated Tom, and thank you for standing up for your rights and holding the association board and it’s managing agent accountable to the actual law and requirements of the CC&R’s. Please everyone while any board can write rules they have absolutely no authority to write rules that are not specifically and explicitly authorized in the CC&R’s. The CC&R are the only document that can place restrictions on your use or occupancy of your property.
I am so fed up with our HOA management company that a month ago, I added a Trump 2020 flag under the Stars and Stripes. I got a letter last Friday, NOT from the HOA or the management company, but from the new HOA Lawyer. He told me I have 10 days to take it down. Being a stubborn Dutchman, it stays. His firm ( a well know firm in the Valley) has a great website. On his website he has a great document that specifies, in no uncertain terms, that Rules and Regs MUST be based on a valid CC&R. So I responded to him with a nice letter 🙂 using his own words and a copy of our CC&Rs to alert him that the flag stays. I have sent you a copy of the letter by email. It appears that not only do the management companies and the HOA boards do whatever they want but their legal advisers don’t do their homework either.
Dennis is right on the money. Our HOA got a new property manager September 2015. She hassled me about my flagpole and flags up until late last year. She would quote R&R 3.14 based on CC&R 3.14 about signs and flags. I fought it every time and then, last year took a look at the CC&Rs, specifically 3.14. Turns out 3.14 is correct about signs but not a mention of flags. So I did a search of the entire CC&Rs for the word flag just to be safe. The word flag does not appear in our CC&Rs. I now have a letter exonerating me from all fines and abuse with regards flags and flagpoles. Unfortunately, the R&R still exists. I would, once again, have to take the HOA to task with the Arizona Dept. of Real Estate and and administrative law judge. Pay attention. HOA Boards, especially those which are “run” by the property manager (allow the property manager to basically run the show), can/will write (illegal) R&Rs regardless of the CC&Rs.
My concern in my own community is that the president of the board owns an Air BnB property and has pronounced he would never vote to change the CC&R’s. Seems that’s a conflict of interest, but how can it possibly be fair to require a unanimous consent when obviously there are (in Carol’s case) 40% of the homeowners who would vote no because of their financial interest. Our CC&R’s call for a 2/3 vote to change the CC&R’s. Does the “unanimous rule” override them? Is it contract first, statute second?
The issue is fundamental property rights. The only restrictions placed on your property are those that are specifically applied by the Declaration. If the CC&R’s allow rentals than any homeowner buying a property has the right to assume that he/she can rent that property as they see fit. While you can change some of the provisions in the CC&R’s by the supermajority voter of the members, to change or restrict the use or occupancy of an individual home not currently restricted in the CC&R’s will require unanimous consent of all owners. the concept is know as tyranny of the majority and is based on the foundation of this country not as a democracy but as a republic. The bottom line is that even if 99% of the homeowners want the change they have no right to force that change on the use of your property. The concept is a pillar in property servitude common law for the country and is made part of the black letter law in Arizona for Condominiums.
Your question on whether the CC&R or state law prevails depends on the specific issue. If state law uses the term “notwithstanding” than it supersedes anything in the CC&R, in some provisions the state law provides a basic condition but uses “unless otherwise provided for in the declaration” in those case the CC&Rs prevail.
Thanks Dennis! I apologize if I sounded overzealous. I’m just so upset to learn our retirement is marred by such nonsense and stress. Hearing about others being bullied only added fuel to the fire. I’m feeling calmer now. Thanks for the advice, it’s been very helpful.
I edited your post to eliminate your email address , you probably don’t want to post that on the web site. While we go to great lengths to protect members identity and contact information. You can always contact me at the firstname.lastname@example.org address. Management company employees and board members have both been involved in embezzlement schemes to often to count. That is why it is so important for homeowners and board members as well to “Trust by Verify”. As a board member it is your fiduciary duty to the community to ensure that the associations money that you take from the homeowners is protected and only spent on legitimate community expenses authorized by the board as a whole. Embezzlement only happens when people are not watching, either other board members or members of the community .
It is my intent to energize the community homeowners to get involved in their communities. I will guarantee that the old adage of “what you don’t know can’t hurt you” in an HOA or Condo the opposite is more correct. “what you don’t know can and will hurt you eventually”. This should not be about a coup, it should be about a community helping their board make the right decisions. Clearly sometimes some boards or individual board members do not want any involvement or engagement of the community because they have a power trip and want to make all the decisions without any suggestions from the community.
If a board or an individual board member refuses to listen to the input of the community he or she has no place as a board member and must be removed. Please do not attempt to remove a board member without first giving them an opportunity to change and actually listen to the community. No one wants controversy in their community, and a petition to remove a board member will generate controversy. But when it is necessary for the good of the community there is no avoiding it.
I am about to move into an HOA that is notoriously bad. I am a renter. I am wondering do I owe them anything! I don’t want them coming after me for stupidity. perhaps they don’t like renters. or whatever the issue is. my question is this… this is the United states, the governments are set up already. how is this not just a bunch of people getting together making a posse? none of this should have any legal rights when it comes to stepping over someone’s civil liberties, and legal pursuit of happiness.
they seem to be able to create a shadow government below the city itself.
this would be like a group of people setting up that they no longer want to follow the expectations of the city, and make their own rules.
like a nudist colony, has come up with the idea that they can walk around naked and violate the law.
similar to the union, and the right to work idea, how is it that I have to join any type of HOA or listen to any of their comments, or respond to any of their fines?
someone was able to come up with the idea of right to work, so how is it someone cannot come with the idea of right to live? I don’t have to follow any law that some other guy came up with on his own.
the fees that people are paying are some kind of a shadow tax. the roads on an HOA are still just as public as any other road. yet they are able to make up their own regulations on those public roads? they are able to make up laws that can thwart or be in addendum to the governor or the state? these are not political parties and political positions. it seems to me this is like George Zimmerman on steroids.
if an HOA is legal at all, then George Zimmerman and also called neighborhood watch, is equal to the police. how are they not?
a bunch of people can get together, and deem himself to be the police, busting the people’s houses and arrest them.
as long as the group agree that that’s what they want to do, it seems to me that we can all make Shadow police departments! LOL
how are HOA is legal at all? especially for a renter!
The concept of HOA or common interest communities were flawed from the beginning and ripe for abuse by power hungry individuals who can care less about the people that live in these communities. But the real villian are the HOA industry that feeds off of and taps the unlimited assessment(taxing) power of the associations. The fact is they were created with federal money in the early 50’s and have grown ever since. There are nearly 10,000 associations in Arizona alone housing over 3.5 million people, I have over 750 of them that have joined my organization but when i get bills introduced in the legislature i get very little active support to drive the legislature to protect the rights of the homeowners in this state. I tried for the last two years to simply protect the rights of the homeowners to their constitutional rights of freedom of speech and freedom to assemble peacefully and both years the bill failed to be passed, Despite endless please for the people of this state to write and call their legislators and demand that they support this legislation i actually got support from only the approximately 100 of the people in this group who actually care about improving the lives of the people in these communities. Every one of the 750 members has asked me for help in their own communities and I’ve provided that support but it only goes one way.
It is very easy to rant and rave about how wrong the situation is in these communities but it’s a totally different story when it comes to actually getting involved in trying to fix the problems that affect so many people.
Talk is cheat and so is outrage, if you want to fix the problems then work with me to that end.
The association can fine owners for violations of the community documents, the owner is then able to pass that fine on to the renter. If you do not know and understand and agree to live under the terms of the CC&R’s then don’t and go get an apartment or try and find a house that is not in an HOA to rent. Those are your choices. If you chose to live in an HOA you must comply with the associations governing documents or face the consequences.
Let me apologize for my delay in responding to your initial post, I hope that delay did not affect in any way the results that you mentioned.
The decision to remove the tree had to be made by the board in an open meeting of the board, for which minutes must be published as a record of that meeting. You should request in writing to see the notice of the meeting and the draft meeting minutes for the board meeting that decided to remove the tree. Since you don’t know when that occurred you cannot request a specific meeting date. It is important to request both because if the meeting was not noticed it was illegal, and the decisions made at that meeting could be overturned. It is also important to specifically request the draft minutes because many associations claim that the minutes are not records until they are approved by the board at the subsequent meeting. This is totally bogus as any record created by the association is a record of the association even a draft or preliminary version.
Why is this important, will this get your tree back? First it sends the message that the community is watching and paying attention to what is being done, and that this decision was not supported by the community and at the very least needs to be explained why it was done by the board.
The last part is important to get many people to attend the next board meeting and to collectively ask the board to explain its actions. Please have someone record the meeting on their cell phone or a digital recorder. It is important that this is not just one person because one person is easy to dismiss as simply a disgruntled individual, this has to be a group. it will also help protect you from retaliation if they are so dispositioned. You can expect retaliation attempts from the management company because they stand to lose a lot of money if they are fired, but keep a record of everything that the manager says or writes to you and if they are harassing you show that to the board.
You will not get your tree back unless you were to sue the board for their actions and force them to replace the tree at their own expense and not the expense of the community. It does not sound to me that you are inclined to pursue such an action. But if you do than please talk to an attorney first.
Dear Dennis: First of all, let me say you are a peach and a lifesaver! Maybe a peach-flavored life saver! Secondly, thank you for all of this information. I don’t know what your background is but it is obvious that you are an expert! Thirdly, I would love to have you guide us or even lead us but I don’t think you should do it for free. Your know,edge and expertise deserves something.
I’m not sure we have an accountant. I think Cadden handles the money which makes me nervous. I’ve heard of management companies stealing funds.
What is the best way to proceed? I live next door to the HOA President. Should I just email her a request to fire the management company and if she refuses then proceed with the petition?
Let’s talk more about the best way to stage a “coup!” Sincerely, Lynn Rutman
The management company works for and contracts with the association as represented by the board. so no the community cannot vote out the management company but the board can fire them with 30 days notice, with or without cause. You would have to look at the specific contract between the board and the management company but every contract that I’ve seen has that clause.
You best bet is to complain to the board about the management company or the individual manager and ask that the board take action to change out the manager or terminate the contract with the management company. If the board fails to listen to the homeowners and the situation persist than you are free to generate a petition to remove individual or all the board and replace them with people that will represent the people in the community. You need a petition signed by 25% of the homeowners and once that is received by the board they have 30 day to call for a meeting of the members to vote to remove how many board members were identified on the petition. The quorum requirements would only be 20% of the community and the majority of members voting in person or by absentee ballot decides the issue.
The decision on so called professional management companies is one of convenience for the board. The board still needs to comply with the law and will need an accountant to manage the finances and taxes, and some type of individual to maintain the records and to coordinate the contractors to maintain the facilities. If your community goes that way I’ll gladly work with your board to share my experience in helping other communities do the same thing. All for free of course.
Thank you, Dennis. I wish I had found your organization in time for guidance. They removed the tree after we sent emails asking the Board not to. I have since requested meeting minutes
showing decision and have not had response. I am very disappointed with our board members most of whom I have known for 20 years. It seems any complaints are grounds for a power play decision, with no responses to emails. Since the tree has been removed, is there anything else I can do?
I am an owner/ investor in a planned community organized as a non-profit corporation for the purpose of securing the value of our real estate investment. Membership is mandatory. The Board has awarded vendor contracts... Read More