I have read ARS 33-1812, and although helpful, not as complete to prevent fraud and division within the community. I do have another question.
What is your take on from the floor nominations and write in’s. I read item 2, in 33-1812,
(2. The ballot shall provide an opportunity to vote for or against each proposed action.) as not permitting these actions for HOA’s. I have read a blog or two that it appears lawyers here in AZ agree with that interpetation.

Pam,

There are some state statutes relative to Condo and HOA elections. For Condominiums they are contained in ARS 33-1250 and for Planned Communities they are identical statutes in ARS 33-1812. Despite those laws elections are often abused to serve the desires of the existing board or the management company. I’ve often proposed legislation to fix some of these issues but have not gotten sufficient traction to get them introduced or passed. The HOA industry and their high paid lobbyist work hard to stop any legislation to make the process fairer or clearer. Lack of clarity in the law gives the HOA industry attorneys clear advantage to interpret the law any way that suits the association.

Until we can get enough support to force the legislators to take actions to stop this abuse all my efforts are in vain.

Dennis

Linda,

The legal name of your community was established by the Declaration (CC&R’s) and cannot be changed without an amendment to that recorded document. I cannot understand why any board would want to change the name of the community for any reason? Are you still under declarant control and attempting to sell of remaining lots and homes? The declarant chose the name for the community with marketing in mind so again I cannot understand why a different name would provide any marketing advantage. You can call a website whatever you want as long as the community that it belongs to is referred to by its legal name.

You association by creating a pseudo name for the community is encroaching on false advertising and misrepresentation and could be subjecting the association to legal challenges and suits.

DBA’s (doing business as) cannot be used for a corporation that has been established as such authorized by the Arizona Corporations commission, and are only issued by the Secretary of State. They are typically used by unincorporated entities. I operate this site and provide my support to all homeowners in Arizona under a DBA.

While I’ve never heard of this happening, I do not believe that the association board has any authority to change the name of the community without making that change by legal means by changing the CC&R’s and applying for a name change thru the Corporations Commission.

Dennis

Gerald,

If the CC&R’s allow the association could charge interest on fines and penalties. If the association files and succeeds in getting a lien on your property based on fines and penalties, the cost for filing and the legal fees could be added if awarded by the presiding judge. Also remember once a lien is granted there will be cost associated with recording that lien and when you pay it off cost for removing that lien from the county records.

Dennis

Gerald,

I’d have to see the actual language in your CC&R’s to answer this question correctly. In general all common property is for the use and enjoyment of all members. As such you may have to pay a fee for playing golf but any homeowner should be able to walk the cart paths whenever play is not in session. I assume that your community is an HOA so you have to remember that the association actually owns the common property and as such they are entitled to create any rules they want for the use of that common property. While you pay to maintain that property homeowners have no ownership rights in that common property. If you are a condominium the situation is totally different because the unit owners own all the common property in common with all the other unit owners. An association in that case could not deny you access to property that you own.

Dennis

Gerald,

You are absolutely correct. The HOA industry had this language added in 2010. Mostly because “regularly scheduled ” is undefined and and be interpreted in any way the association wants to not have to apply the open meeting laws to committee meetings. I’ve been opposed to this totally irrelevant qualifier since I’ve been in this business. Since when does the schedule of a committee meeting have anything to do with the significance of the business of those meeting on the community. I’ve seen committee being created with regular monthly meeting frequencies but the charter for that committee specifically states that it will be a non-regularly scheduled meeting so as to avoid open meeting requirements. I’ve also seen more and more responsibilities of the board being assigned to committees once again simply to avoid open meeting requirements. I’ve worked on legislation to correct this for years all to no avail.
Maybe next year.

Dennis

Could the association add on additional fees and interest for non payment?

Update for all,

The reality is that fines are not debt and the Fair Debt Collection Practices Act prohibits the use of collection services for fees or fines that are not debt. State statutes never mention collection cost relative to fines and penalties for these associations. While the association can establish a lien on your home based on fines and penalties that lien must be granted by a judge and recorded to be valid. You will get an opportunity to argue the reasonableness of any fine or penalty in the lien request action before a judge. if you are faced with this situation make sure your attorney reviews all the arguments used in the Turtle Rock III v Fisher case before the hearing. Fines and penalties can never be included in assessment liens that are statutory and foreclosable. A judgement lien for fines and penalties cannot be foreclosed on and can only be made effective in transferring your property under existing Arizona Law. This last statement supports the argument that the judgement lien may not be subject to collection services.

While i understand the fear of collection activity and credit bureau reports affecting credit, they are simply used by the association as extortion to scare homeowners into paying fines and penalties that would never stand up in court.

Dennis

David,

The association is allowed to assess reasonable fines and penalties for violation of the governing documents. If there is no mention of requirement for civil behavior in the rules and regulation they have no right to assess any fine for that issue. Besides that a $500 fine for a comment along with the denial of access to common property is totally inappropriate and excessive.

While I fully understand the frustration that can be experienced by homeowners in some of these communities by the boards or their managing agents, resorting to profanity never helps your cause or your issue. Your options are in this case to pay the fine or sue the association for abuse of power. Any case would have to demonstrate that the association exceeded its authority to fine and penalize you for this issue or secondly that the fine applied was not appropriate for the crime committed. There is an Arizona appellate court case decision (Turtle Rock III v Fisher) that established that for fines to be reasonable they must be established in a published schedule of fines are are established based on the significance of the violation. A fine policy that applies general fines for all issues is not and does not satisfy the requirement of a fine schedule. While i cannot give you legal advice you should consult an attorney if you are considering contesting these penalties in court. The cited case was depublished by the Supreme court but allowed to stand. While this case cannot be used as case precedent the arguments presented in the case are and remain valid and one could reasonably assume that the same arguments used in this case for a similar case will result in the same ruling especially from Arizona Appellate court. A court challenge could run you tens of thousands of dollars in legal fee’s so consider this carefully.

As an aside this charge is not an automatic lien on your property and the association is required by law to file a case against you in court for this lien and if they prevail record that lien in the county recorder office. Associations seldom file liens for fines and penalties, because they would have to justify their charges in court, and you would be able to contest those charges in the same court.

My freedom of speech bill requires respectable speech relative to association issues.

Dennis

Well today I cam home to an hoa newsletter calling the hoa hearing case out in the newsletter, mentioning by name and listing my address and the costs assessed by the hoa to hire an attorney to handle the hearing. I will be selling my house in the new year. The board fully made me a target for harassment and comment been for physical abuse. . Never in my life did I imagine a massive financial investment where my happiness and confidence in my investment would be completely arbitrary to completely ignorant, uninformed and malicious individuals. By far the worse financial burden I will likely ever incur in my life.