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Harassing letters from HOA

My husband and I just retired to Tucson. We bought a house in Oro Valley which is managed by Cadden. Three days ago we received a letter from Vanessa Lubinsky, our Cadden Property Manager, violating us for having our trash cans out on trash pickup day. That’s not a violation of the rules. In fact the rules would have allowed us to leave them out until midnight. We brought them indoors by noon. Now we learn there is a pattern of harassing letters being sent to innocent homeowners for petty reasons that often turn out to be false. One young teacher received 7 since moving in one year ago. Makes me wonder why Cadden is harassing people? Do they make money from fines? Are they hiding something like financial improprieties? Are they engaging in discriminatory behavior? Is there a lawyer in Oro Valley we can turn to?

15 Responses

  1. Dennis Legere

    Lynn;
    Sorry to hear about your situation, this is a pattern that is very popular by managers from Cadden Management. We have many people in that same plight. While these community managers get some level of training by the trade organizations it is simply token, and for the most part never even confirms that the prospective community managers can even read. Clearly anyone that could read would not site a violation for not removing trash can by midnight when they were removed by noon.

    The law requires that for any alleged violation of the community documents the association must identify the specific provision of the documents that were alleged to be violated and who by name observed that violation. You have 21 days to contest that violation by certified mail, and request a hearing before the board. You and you alone are allowed to chose if that hearing will be held in an open or closed meeting of the board. The association is also required to inform you that at any time in this process you can contest the alleged violation to the Arizona Dept. of Real Estate. I do not suspect that any of this was done, Cadden never does. And that alone is also a violation of the law.

    The simple fact is that many community management contracts incentivise the community managers to enforce the governing documents because the boards do not want to be involved in that process. The responsibility belongs to the board alone and the board assigns the responsibility to the community manager, you absolutely and all your neighbors all want to contest any violation and demand hearing before the board in open meeting where other members of the community will be present. This is the only way for these incompetent community managers to be stopped. Make the board rule on each and every alleged violation in an open meeting and i’ll bet that the nuisance violations and harassment will stop.

    Dennis

    1. Lynn

      Thank you, Dennis! We noticed yesterday they quietly closed the violation on line. I wonder if they will send us a letter too? How difficult is it to vote out a management company like Cadden? I’m hearing from neighbors that they have been very intimidated and unhappy for 8 years. Yet no one does anything about it. I’m told the residents had a Facebook page and scheduled hikes and events for the residents. Cadden fined them and ordered them to stop using the Rams Pass name. It had a chilling effect on the neighborhood. The hikes and parties stopped. I thought I would create a flyer to put in every residents mailbox asking them if they are being harassed and intimidated and asking them to come to a meeting and vote out Cadden. But do we have the power to vote them out? Are we stuck with them? Is there contractual liability here? I even wonder why we even need a management company. We only have 84 residents. No pool. Just a playground. Why couldn’t we just hire an accountant to collect fees and keep the books for us? How hard is it to keep the park mowed? We are paying a lot of money to Cadden to do what exactly? It’s a waste!

  2. Dennis Legere

    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

  3. Lynn

    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

  4. Dennis Legere

    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

  5. Lynn

    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.

  6. lindaL

    Lynn and Dennis; I want to thank you for this thread. I have had similar negative experiences with my Board and Cadden. I was recently served a Cease and Desist letter for ‘harassing’ Cadden mandating I no longer contact them via email or telephone. I am regulated to snail mail which of course is a delay tactic and punitive punishment as I pay for certified w/receipt mail to ensure it was received. I don’t know what the LEGAL definition of harrass is but I never swore, called names or made threats. I was attempting to hold the Cadden manager accountable for disseminating the approved minutes and went up the chain of command. The VP told me Cadden works for the board not the member despite the fact our fee pays their fee and the fee of the attorney the board utilized against me.

    1. Dennis Legere

      Linda;
      The fact is that the management company and the assigned community manager does in fact work for the board, and not the members of the association. The fact is that the association or the management company had no right to limit the communication methods to any individual, especially if the member was simply attempting to get information that they had a right to know. The association has a duty to treat all members fairly and equally and unless they limit communication methods for all homeowner they have no right to limit communication methods without real cause for any individual homeowner. Persistency in asserting your right will never be construed as harassment especially if it was accomplished respectfully. What I tell homeowner threatened with harassment charges for simply asserting their rights is to tell the management company or the attorney to go ahead and sue me. They will lose and look foolish in the process. They will also most probable do nothing because the threat was idle and for effect only.
      Having said this it is never appropriate to go up the chain of the management company with a complaint about the performance of one of their employees. You must file the complaint with the board and it is the responsibility of the board to investigate that claim and take any appropriate action with the management company. It is very rare that one person’s complaint will cause the board to take action against the community manager or company but multiple complaint from separate homeowners will most likely generate action. If a community manager is abusing you or denying you access to records or information he/she is probable doing the same thing to others. There is strength and protection in numbers, you are less likely to be dismissed and labeled as a trouble make if your issues are confirmed and repeated from multiple homeowners.

      Dennis

  7. Lynn Rutman

    Hi Dennis: I became a board member last week. It was my first board meeting. Cadden ran it like they were completely in charge. The property manager typed everything that was said at the meeting as if she were a court stenographer. It was very strange. I blocked her attempt to change the language of the cc&r’s. She actually wanted to change the language pertaining to the number of board members required for a quorum. I can only imagine why. Afterwards the board members and manager had a closed executive session to discuss violations. I was amused to discover my husband and I had another frivolous violation from June 5th. No letter was sent to us but she opened a violation anyway. Total incompetence. I can handle the violation issue …. I convinced the board to brainstorm better ways to handle issues that arise. My question to you is do you have any advice, books to read, etc. that might be helpful in my new position? Also I have introduced myself to neighbors and encouraged all to attend meetings. I started a Cadden-free Facebook page for residents this weekend. I understand there was one in the past and lots of community involvement but Cadden shut it down. I’d like to see them try it this time. Kind regards, Lynn Rutman

    1. Dennis Legere

      Lynn;
      Let me start by thanking you to volunteer to be a board member it is a very difficult and often thankless task. Despite all your efforts simply accept the fact that you can never make everyone happy all you can do is simply act in what you truly believe is the best interest of the community and that is all anyone should ever ask of you. I’ve seen the behavior that you describe far too often especially from managers from this particular company. Remember this, the management company works for the board not the other way around. They have only the authority to take actions specifically authorized in the contract or by action of the board. The community manager has absolutely no authority to change CC&R’s, bylaws or even rules. They don’t even have the authority to interpret rules of the association, only the board can do that.
      State law requires specific due process relative to citing violation of the community document i would recommend that the board require the community manager to actually read the law and not to rely on the crap advise and training they received from their company or AACM or especially CAI. The fact that the community manager recorded an alleged violation without ever notifying you of that alleged violation and providing you an opportunity to contest that violation to the board, violates state law. This is one thing that you want to be very careful with, many bylaws have provisions relative to the qualifications to be a board member, some include a requirement that a board member be in good standing and have no violations. I’ve seen far too many good board members removed from their position illegally based on alleged fabricated violations. I simply make this one statement state law allows for only two ways for duly elected board members to be removed from office, and that is by the board member’s resignation and the other is via a petition initiated by community members for that board members removal. A standing board member once elected cannot be removed by action of the board. This provision has been upheld in many cases by the courts. That does not however stop community managers or tyrannical board members or their attorneys from attempting that tactic. Just be aware.

      If ever you or any other board member wishes to know the truth about their responsibilities or how to deal with community issue i’ll gladly help in any way that i can not as an attorney but as an informed advocate for peaceful and fair communities.

      Dennis

  8. Lynn Rutman

    Thank you, Dennis! I so appreciate your help and expertise. Now that I am on the board, what would you recommend for me to read/study? The bylaws, ccr’s …. are these recorded at the registry of deeds? Cadden has a website that lists the rules of our association but I’m not sure I should trust anything they post. Are there any specific provisions of Arizona law I should familiarize myself with? I really hate having Cadden explain what the rules are. Lynn

    1. Dennis Legere

      Lynn;
      Obviously start by reading the CC&R’s and Bylaws of your community. Only the CC&R’s are recorded but simply ask the community manager for all the most current documents. After that Know that Arizona has laws that also govern your community. I’m assuming that you are in an HOA so ARS (Arizona Revised statutes) title 33 Chapter 18 applies to your community. If your read nothing else in the Arizona Statutes read sections ARS 33-1803, 1804, & 1805 for , assessment and violation notices, open meetings laws, and records request respectively. in the future if you have any specific question ask me and i’ll provide any additional references for you to review. If you get any advice from your community manager that does not sound fair ask me about it. Your board has hired the community manager to handle the business of the association including the finances. You must always remember the adage, “trust but verify” The responsibility for the community affairs belongs to the board and the board is accountable even if the community manager screws up. Some level of board oversight is required for everything the community manager does for the community especially finances and code enforcement.
      To whatever extent that you can have the time to do so don’t simply let the community manager ever explain to you the rules. read them for yourself. You would be surprised how many times they get it wrong. No matter what management company is involved.

      Dennis

  9. Lynn Rutman

    Thank you Dennis. I will absolutely read those. You and AHC are an invaluable resource. It is comforting to know there is someone to reach out to when these situations arise. Sincerely, Lynn Rutman

  10. Lynn Rutman

    Hi Dennis: I would like to schedule an informal meeting with the other two board members in my home in order to identify issues that are important to our community and to brainstorm possible solutions. Anything we discuss would be presented to the community at the next board meeting. I just think it would be an efficient use of our time to try to identify any issues we need to address.

    One board member, the treasurer, thinks its a good idea. The other board member, who is the HOA president, fears the meeting violates the open meeting law.

    I would love to hear your thoughts on this matter. Kind regards, Lynn Rutman

    1. Dennis Legere

      Lynn;
      As long as the meeting was not attended by a quorum of the board it is allowed under the open meeting laws for Arizona. The key point for the open meeting law in ARS 33-1804 is that a quorum of the board participates to be considered a meeting subject to the law. No quorum no meeting subject to the law. If your board consist of 5 members two board members does not constitute a quorum if your board consist of 4 members that 2 members would constitute a quorum and such a meeting would require notice and invite to the community membership, along with all other provision of that statute.
      If appropriate and your board is still interested let me know by email to help@azhoc.org .

      Thanks
      Dennis

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