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Small claims court as a vehicle to contest HOA abuse

My wife and I moved into a HOA community in 2016. We reside on the Colorado river, which has an abundance of wildlife, including feral and stray cats. When we moved in there was no restriction on feeding cats, however, in April 2018 a new rule was created by the HOA. There was no public comment or warning, just a letter telling us we were now in violation.

We agreed the cat problem was getting out of hand, however the HOA had publicly admitted their previous solutions were to trap and dump the cats in the adjacent desert (a felony violation of AZ State law). We had a meeting with the HOA President and came to a verbal understanding we would take steps to remove the growing colony, and in July 2018, we captured 6 adults and 9 kittens. For those interested, the adults were fixed, vaccinated and placed into a County wide farm working cat program. The kittens were fostered and made forever pets with local families.

Status reports were made at a yearly board meeting acknowledging the removal and another letter from the management company was also sent to us in January 2019 seeking an update. I responded to the management company with the update and also informed them were were going to stop trapping and the HOA should seek other methods.

In March we received a notice of violation indicating we had violated the no feeding rule, which we denied. The letter only provided 10 days to respond, failed to provide the date/time of the violation and how to correct, other than to pay a $100 fine.

A letter was sent to the HOA and the management company demanding the date of the violation and the first and last name of the person or persons who observed the violation, pursuant to ARS 33-1803 D. Also noted was the error in times. ARS 33-1803 C provides a member who has been notified of a violation has 21 days to respond. Once a response has been made, the HOA then has 10 days to respond with the requested information.

My question is can this type of action be contested in small claims court instead of the State Real Estate Department? We do not have a real estate board office locally.

Thank you

3 Responses

  1. Dennis Legere

    Rick;
    As I tell people everyday, I’m not an attorney and try very hard to not stray to far away from what I’m directly experienced in. You have accurately depicted the due process required by law and the correct statute relative to the application of fines. The association has no right to assess any fine until the homeowner has been provide the information and the opportunity to be heard by the board required by law. Relative to the dispute resolution process from the Dept. of Real Estate you do not need to be near an ADRE office to file a petition all of it can be done thru the mail, or electronically. The real issue is the proximity to the office of Administrative Law where the hearing will be conducted. You clearly have an appropriate cause for action under the ADRE dispute resolution process as a failure of the association to comply with the due process required by state statute.

    As for your fundamental question could you file your claim in small claims court? This is where I step out of my basic comfort zone. Technically the claim is relative to the collection of money ($100) that satisfies the limitation for the appropriateness of that venue to have jurisdiction. As to whether you would be adequately served in that tribunal I cannot say. I will say that small claims or justice courts are presided over by justices of the peace that are elected to that position and have no requirement to be lawyers or judges at all. On the other hand ALJ’s are both attorneys and judges as a fundamental qualification for the administration of justice for that tribunal. State statutes provide no guidance for how a justice of the peace should run and administer his/her courtroom.

    In my opinion I would not risk your case in small claims, because I believe that with the association attorney arguing for the right of the association to enforce their rules they will be able to snow the JOP to rule in their favor. The true nature and intent of the due process required by law may be lost in this venue, and would not risk it simply based on proximity of that court to your location. While the same argument could be applied to ALJ hearing and I’ve sat thru many of them, at least you have a better chance for the ALJ to cut thru the rhetoric and baseless arguments presented by HOA attorneys.

    This is more than simple economics and more than the simple $100 fine. If the association gets away with ignoring the law for you they will ignore the law for everyone else in your community not only on this issue but in every other issue in these communities forever. Yes you may spend more money traveling to Phoenix to attend an ALJ hearing than the $100 fine but the real issue is justice and accountability to the law.

    Remember the homeowners are the only people that can hold an association accountable to the law and until homeowners stand up and hold them accountable they will continue to ignore the laws that we have fought so hard to get implemented because they can, and still get away with it.

    You are entitled to know who reported the violation and the date and time of that alleged violation. You are entitled to contest that violation within 21 days by certified mail unless the association has informed you that you can contest the violation in another way. You are entitled to an opportunity to be heard before the board in either an open or closed meeting of the board at your sole discretion. And finally the association must inform you of your right to contest the violation via the ADRE dispute resolution process. Until all of this is accomplished the association cannot assess a reasonable fine on you for this alleged violation.

    Dennis

  2. Rick Colbert

    Thank you Dennis.
    I did not want to run on into small things, however, while I have been trying to obtain a meeting with my HOA, and obtain the information required by statute, the fine has grown to over $1000. I have spoken and corresponded with the HOA attorney to get my answers, and quite frankly, have had baseless accusations leveled against me, including a cease and desist demand and an allegation of creating a nuisance, and never received a response.

    One area i am encouraged about is in small clams court, there are no lawyers, unless we both stipulate. So, it would be me against the HOA president. I also understand the Real Estate boards position and experience.

    Thanks for your advise. I will look into the Real Estate Board avenue, and I cant help but think I might need an Attorney to write this up correctly and present it. Can you point me in a direction for a reliable attorney?

    Evidently, the local HOA attorney is a real estate lawyer, and she is married to a local judge. I am in Mohave County. Other local attorneys are hesitant in going up against her.

    1. Dennis Legere

      Rick
      No problem. I do however have a lot of experience in the dispute resolution process, having read every one of the case decision since 2007 and attending in person many hearing themselves. Obviously you have the right to consult an attorney to prepare for this process, but you need not have an attorney represent you at the hearing. Unfortunately I do not know any attorneys in Mohave County. The association will most assuredly have their attorney there. Again while not an attorney, I can help you frame your petition, gather the exhibits you will need to organize your case, and help you prepare for the process of presenting you case to the judge and conducting yourself through the hearing. I do this for free. Because I’m not an attorney I cannot prepare any document that you submit to the court nor can I represent you in any way. I can however attend your hearing as an observer and provide you moral support. If you wish to pursue this avenue we can continue this conversation off line via the help@azhoc.org e-mail.

      Dennis

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