AZHOC - Arizona Homeowners Coalition
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Homeowner

I sent a request for original documents to verify the large amount of reserves our HOA has reported. At the agreed upon meeting there were no original documents provided and the copies did nothing to...
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Business Judgement Rule

Can a homeowner file a complaint with the AZ Department of Real Estate regarding a Board decision that in the homeowner’s opinion violates the business judgement rule? I don’t want to get too specific, but...
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  • From dennisl on recordings

    Dave,

    I sorry if I missed your post in February. that is something a very seldom do but sometimes they get by me. So i take it that the association has recorded meeting and you are asking for copies of those recordings. The way that i structured the language in the bill that passed in 2016 is that the board cannot prevent any homeowner from recording any meeting of the board, unless they record the meeting and make that recording available to any homeowner wishing to get a copy. The fundamental premise is that the homeowner has a right to record and the association cannot abridge that right unless they record the meeting for the homeowners and provide them a copy of that recording. The loophole in that law is that if the association does not prevent any homeowner from recording and they record the meeting for their own purposed, there is no obligation for the board to provide copies of that recording to the members.
    The crux of the issue will be if the association records the meeting does that recording become a record of the association obviously your association will be arguing that the official record of the meeting are the minutes and the recording are simply used as an aid in developing the minutes for that meeting. That is an argument that they will probably win. The key to your case is did prevent any homeowner from recording the meetings in question if the answer to that is yes then you have a slam dunk case. They violated the law in not making those recording available to any member.

    If however the answer to that question is no than you have no real case unless for some reason the association has made those recordings association records.

    While i can provide you no legal advice you need to decide if the association denied anyone the right to record the meeting in any way and then denied any member access to recording they made of that meeting. The ALJ can only rule on direct violation of the law and unless you can prove that the association violated the literal language of the law you will be throwing away your filing fee.

    You all have the right to record any meeting and to use that recording in any way and share that recording with anyone that you chose. That is what I fought for in that bill. The association has the exact same right to any recording they make for their own purposes. Because you chose not to record a meeting does not mean that the association must share any recording that they made for their own use.

    What would you say if the association asked for a copy of your recording of a meeting? What i would say is if you wanted a recording you could have recorded the meeting on your own, you have no right to my personal property.

    Dennis

    Go to comment
    2020/09/18 at 7:50 pm
  • From Dave Green on Recording HOA Board Meeting

    Hi Dennis,
    A couple of us are getting ready to file a complaint with ADRE re the tapes the BOD made and will not provide copies to any of us. I have filled out the forms and have included an email thread between the property management company (Amcor). Is there anything I should know or be prepared for? Should I have an atty review the forms?

    Thanks,
    Dave

    Go to comment
    2020/09/16 at 11:51 am
  • From joyce monsanto on HOA harassment, retaliation and falsifying minutes

    I also have been a victim of HOA’s and the ARIZONA DEPT OF REAL ESTATE AND SUPERIOR COURT….ALL ARE INCOMPETENT AND BIASED AGAINST HOMEOWNERS.

    Go to comment
    2020/09/12 at 6:00 pm
    • From dennisl on HOA harassment, retaliation and falsifying minutes

      Joyce,
      The plight of the homeowners is real and a very difficult fight within the legal system because so many laws all favor the associations and the association has little to no accountability to the law. This is what we try to change. To change the balance of power in these communities and protect the homeowners fundamental right. It is easy to blame the ALJs or Superior court judges but until such time that the homeowners in this state get involved and do something to change the laws there will be no justice for homeowners in any of our courts. This is what I try to do, I’m already meeting with legislators even before the election to get legislation introduced in January that will protect our rights in these communities. Whenever I ask the members to raise their voices in support of our legislation the silence is deafening. We have over 630 members of this coalition but I can only count on about 3 dozen people to actually get involved and voice their support of good legislation or their opposition of bad legislation. Every one wants help from me when they have problems but very few are ready to work for changes that help the other 3.5 million homeowners who live in these communities.

      We all need to stop being victims and start being change agents.

      Dennis

      Go to comment
      2020/09/12 at 8:53 pm
  • From dennisl on Parking CC&R

    Rob,
    Unfortunately your assumption is incorrect the right to regulate the streets is not based on changes to the rule for street parking but rather any change to the CC&R’s. If a new set of CC&R’s or any change to existing CC&R’s for any reason is recorded after December 31 2014 than the association loses the rights granted in the CC&R’s to regulate the public streets or to regulate parking. The HOA Industry will and has on several occasions argued that the intent of the existing law was to only apply to new associations, but that argument is totally self-serving and based on no actual fact. What the law says is any recorded CC&R after that date abolishes the power of the association to regulate public streets. Any CC&R whether it is an original set or a simple editorial change must be recorded to be effective. If the law intended to apply only to new CC&R’s it would have said “Initial recording” So once again the HOA industry is wrong including the self-serving attorneys. They want homeowners to challenge their interpretation in court even if they are proved wrong because guess what they make a lot of money from that legal action even if they are proven wrong. They is only one party that ever wins in any HOA dispute or legal actions The HOA attorneys.

    Dennis

    Go to comment
    2020/09/03 at 7:20 pm
  • From Jessica Allan on Can HOA restrict street parking on public street?

    My community has no street parking which reviewed my cc&rs. I like some other homeowners own a truck that won’t fit in my garage and is within the required dimensions based on CC&RS. However, my HOA has decided without A member vote to impose towing and fees due to my vehicle being parked in my driveway which is short in length. (What is the required length/depth of a driveway in AZ) It does hang 3 inches over onto the sidewalk. I feel like I and other homeowners are being targeted for owning trucks. It is AZ and I’ve owned a truck most my life.
    Jessica

    Go to comment
    2020/08/19 at 5:45 pm
    • From dennisl on Can HOA restrict street parking on public street?

      Jessica,
      If the association own the streets they have a right under your CC&R’s to regulate and control the streets as they see fit. If they do not own the streets but the CC&R’s allow them to control the streets than they can do so as long as they have not modified the CC&R’s since December 2014 for any reason. If they have they lose the ability to regulate the streets. The board alone decides what is done with the common property and no member vote is required in any way. If you don’t like what the board does then you can remove them at the next election or with a recall special meeting.
      Unfortunately the CC&R’s and all the association controlling documents are a contract that were a condition of buying your home in that community. Far too many people do not read the governing document prior to buying their home then find themselves in a situation that they believe is unreasonable and unfair. Your situation appears to fall in that category. The association did not decide to buy a truck that does not fit in your garage or driveway you did. Now you want the association to make an exception to the rules of the community to accommodate your choice. While the association has discretionary power to make that exception they are in no way obligated to do so under the law. Your best option is to organize all the other homeowners in the same situation and respectfully request that the association board apply their enforcement discretion to allow you to park your vehicle in the driveway even though it extend slightly beyond the drive way. Doing this as an individual has little chance of success but trying this with a large group increases the chance of success. Remember to do this respectfully as they have absolutely no obligation to honor your request.

      Dennis

      Go to comment
      2020/08/20 at 8:31 am
  • From Kevin Conde on Need guidance about HOA Board of Director rules

    thank you Dennis. That’s what i’m looking for, and I have some research to do.

    Go to comment
    2020/08/01 at 5:31 pm
  • From dennisl on Need guidance about HOA Board of Director rules

    Kevin,

    I’ve tried to base most of my work in the HOA arena on the fundamental principles of Property Servitudes Common law as stated and defined in the Restatement of Law third Property Servitudes issued in 2000 by the American Law Institute. That restatement dedicates chapter 6 and most of volume 2 to Common Interest Communities. In sections 6.13 and 6.14 it establishes that the business judgement rule applicable to most corporations does not apply to these communities and instead defined the duties of a board to the members of the community and the duties of the board to the association within those identified subsections.
    Those definitions became case law for Arizona in Tierra Rancho v Kirtchikov. You can find that decision under our resources and tools tab and HOA case law.

    The board has the absolute authority for decisions relative to common area because that common area actually is the property of the association. But that does not mean that it has to make those decisions in a vacuum and without input from the community.

    Let’s talk about your tree. Because an individual complained about a tree does not mean that it has to be removed. You have to appreciate the inherent beauty and benefit to the community of a mature tree and how long that tree took to grow to its existing size. Any tree has inherent value to a community that cannot be lost to a complaint by one homeowner of the droppings from that tree. Like I said earlier you can never make everyone happy with any decision that you make for the community. So don’t even try.

    As for liability because someone has complained, that fact alone has absolutely no relevance to your decision. The complaint was not about safety but rather about leaves dropping in his pool. Having said all of this in my opinion the only reason why any tree should be removed is because of real and eminent threat to the safety of residents. Because a branch could fall some time in the future is not a reason to remove a tree, if it was every HOA would be wise to remove all trees from their property making them barren waysides absent of any shade from the Arizona sun. Why would this be in the best interest of the community? One of the purposes of HOA’s in the first place is to protect the property value of the homes in that community. What would be more attractive to you as a home buyer a community of homes with abundant mature shade trees, or one without any trees at all. Your answer to that question will tell you how you should approach decisions about removing a tree to the property values of the homes in your community.

    If a branch is weakened and poses a threat to anyone remove the branch but save the tree. This is simply common sense that no court would ever question. As a board member you have an absolute right and duty to independent decision making. You do not have to follow the lead of anyone other than your own conscience. That is why boards are always made up of an odd number of members so that stalemates do not happen. Having only two members is a disservice to your community and should be remedied at the earliest opportunity. I would also bet that it is a requirement of your bylaws. Under no circumstances should an HOA board consist of only one member, especially if that member see’s himself or herself as the all powerful deity for the community.

    Dennis

    Go to comment
    2020/08/01 at 3:26 pm
  • From Kevin Conde on Need guidance about HOA Board of Director rules

    Dennis:

    Thank you for your reply I was purposely vague when I was describing my problem, as I didn’t want to sound like I had an ax to grind. I’m honestly asking for input, and hope that you can give me some examples of case law or other things like that for me keep in preparation for future issues.

    Some background. The other board member has been on the board for more than 10 years. For the majority of that time she was the only board member. I would guess that even when there were other board members, she was the one that was effectively in charge.

    The Association is well-run, financially in the black, and there are no major complaints about the maintenance or upkeep of the Association’s common areas. The only complaint I have gotten from members is a tendency for the board to not communicate to the members.

    The feeling I’ve gotten from the other board member and the Association manager is the less we talk to the members the better. This is not been said to me in so many words. The impression I get is that the other board member and the management Association feel that soliciting comments from the community will only cause dissension.

    This all came to head because of a tree. A homeowner who borders on the common green space wants a weeping acacia tree removed because it dumps too much junk into his pool. From the very beginning I said that if the tree is a danger, or diseased, then there is no reason to communicate with the rest of the Association, the tree comes down. However, if the tree is healthy, we should not remove it without at least informing the Association that we intend to do so.

    My inclination has always been to remove the tree unless there is a compelling reason not to. Removing it, and replacing it with a new young tree, removes any possibility of litigation against the Association should a weather event because that tree to fall and damage the homeowner’s property. It’s one of those things that once the homeowner has told us that he has a problem with the tree, if we don’t remove, it and the worst happens, were going to end up being held liable.

    I honestly don’t know why this is turned out to be such a big deal. The other board member actually gave me a print out of the CCR’s, which I already have, saying that the board has absolute authority to make all decisions regarding landscaping in the common areas, and this meant we could do whatever we wanted to do whenever we wanted to do it, we being the board.

    Included in that handout was a further part of the same paragraph that says the board is the sole authority to make decisions about things in the common area. She told me that meant I had to do what I was told to do. Imagine my surprise, I told her what it meant was that I was a board member and my opinion mattered, and since there were only two of us on the board, if we could not agree that nothing would happen.

    As mentioned in my original question, she also tried to convince me that somehow the CCR’s prevent me from communicating with members of the Association without board approval, and I could not provide my email address and phone number in any emails I send to Association members. I’ve asked her in writing to provide the legal source of that assertion.

    That all was a moot argument. When I went and looked at tree, it was obvious the tree to had come down. It had significant rot in a 12-inch section of the first of two main branches. All along I said if the tree is a danger, if comes down.

    I don’t think this is going to go away, so I’m hoping to find caselaw citations, or other source material of a legal nature regarding what my responsibilities are towards communicating to my Association members, and what could possibly make anyone think I don’t have a legal right to do that.

    Go to comment
    2020/08/01 at 12:34 pm
  • From dennisl on Need guidance about HOA Board of Director rules

    Kevin
    One more thing. You cannot divulge any confidential information about discussions in legitimate executive sessions (see ARS 33-1804) or about any specific individual to anyone else. But for everything else you are free to discuss community issues with any community member at at any time.
    Dennis

    Go to comment
    2020/08/01 at 9:57 am
  • From dennisl on Need guidance about HOA Board of Director rules

    Kevin,
    The other board member and your community manager are full of crap. There is no nicer way to say that. While it is true the the board is the sole authority for any decision. Relative to the common property and any other authority given to you by the CC& R’s and the bylaws. It is totally arrogant and dictatorial to believe that you can do that in a vacuum Without seeking community involvement or input. If it is your desire and power fetish to run your community as a dictatorship than you can but the community will resent you and become a nightmare to live in. If however you want to run a community it’s that is a great place to live in, where people feel safe and respected and free to live their lives and enjoy their home and their community then be transparent and open and inclusive in your management of the community it’s. Seek input into all important decisions, treat people with respect and fairly and you will be treated with respect in return. While the ultimate decision is the boards and you must remember that decision may not make some people happy, that is not your job. Your job is to act in the best interest of the community as a whole .

    You are absolutely right in your beliefs and understanding of what you should do and how you should act as a board member. I assure you there is no law that prevents any board member from communicating with any homeowner in his/her community. In fact the whole reason that we have open meeting laws for these communities and not for normal corporations is because of the need for openness and transparency in the conduct of business in these common interest communities.
    An interesting point you made in your note was that there were only two board members on your board, which is unusual but you realize that no decision can be made by your board without your approval. The community manager does not count. So the long time board member has no authority to do anything without your approval. I’m assuming that your bylaws call for three board members but one has resigned. You do realize that the board can appoint a replacement to fill the remaining term of the open board seat , without a vote of the community. You would have to do it in an open meeting that was properly noticed to the community.

    The problem with many community boards in Arizona is that they get advice from community managers who for the most part are uninformed and from association attorneys who will tell you what you can do and what you can get away with and never what you should do for the best interest of your community. They want you to run your community like a faceless and heartless corporation instead of a community where people live and raise their families.
    It is well beyond time when we stand up against the HOA industry and take back our communities to be run they way they should be run and not as simple money machines for the HOA Industry.
    I apologize for the length of this letter but board members like you are why I do what I do. If we had more of you we would not need more laws at the state level to counter the money hungry HOA industry and the board tyrants focused only on power over other people.
    Please if you need any help in running your community please do not hesitate to ask. I will be there for you.

    Dennis

    Go to comment
    2020/08/01 at 9:52 am
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