Brittany;

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
Dennis

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.

Dennis

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?

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.

Lynn;

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 help@azhoc.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.

Dennis

Kathleen;

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.

Dennis

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

Lynn;
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.

Dennis

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?