Post Script: This was not a regular meeting, but a special meeting called by the Board and labeled as a Board Meeting. Thank you.
I the post it states:
Arizona law demands that any meeting of the board to conduct business or take action must be noticed at least 48 hours in advance and members must be allowed to attend and participate in that meeting.
33-1804(B) states (excerpt):
Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association. Not fewer than ten nor more than fifty days in advance of any meeting of the members the secretary shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address for each lot, parcel or unit owner or to any other mailing address designated in writing by a member.
33-1804(D) states (excerpt): Notwithstanding any provision in the declaration, bylaws or other community documents, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors.
Our HOA called a “Board Meeting” using the language in D, stating only 48 hour notice was required. I took issue with this and quoted B. Was the Board wrong to hold a meeting providing only 48 hour notice?
Any meeting of the board requires 48 hours notice to the members. The earlier provision that you quoted only applies to meeting of the members. So in this case the association was correct and you misunderstood the language of the law. I will note that meetings of the board subject to the open meeting law is not limited to meeting where the board takes action. Any time a quorum of the board gets together in person or electronically to discuss deliberate propose or consider any business of the association constitutes a meeting of the board and must comply with the open meeting laws even if they are training or informal sessions. If a quorum of the board are at a party and they discuss community business in any way they violate the open meeting law.
Thank you Dennis for the information. I will be sending a bill to my HOA! Along with a copy of the Case Martinez v Woodamar.
Your HOA is blowing smoke up your skirt. The common area is the property of the association and the association has not only the right but the duty to protect it. If crimes are occurring on the common property Arizona case law as defined that the association could be held liable for those crimes if that failed to take reasonable measures to protect the property or the members using that property.
The case in point involved a man (visiting a homeowner) that was shot on the private street of the community by neighboring gang members. The association was found liable for that shooting because they failed to maintain street lighting, and failed to man the community gatehouse that was intended to be manned around the clock. The association knew of the gang activity in adjoining communities and failed to take reasonable measures to protect the members of the community or their guest on their private streets. The association was forced to pay millions of dollars in restitution to the injured homeowner guest.
The case was Martinez v Woodmar IV Condominiums from 1996.
So if your association refuses to install security cameras on their common property to protect not only their property but that of the owners then send them a bill for your stolen golf cart and tell them they can either install cameras or pay to replace all stolen golf carts from their property. Or they could be sued for substantially more based on case precedent.
The danger is clear the association knows of the issue and either they do something about it now or they will be liable for anything that happens in the future. What is the difference between the cited case and if a cart owner happens upon the thief and in the confrontation the cart owner is seriously injured or killed. If no actions is taken by the board they could be held liable for the death of that individual.
Dennis, Thank you so much for clearing this up for me. I was not sure where else to go or who else to discuss this with. I am very passionate about getting this overturned, whether my child will be effected by this or not, our community as a whole needs and has to have this service.
I will be reaching out to the Attorney General in the next few days.
Again, thank you so much for your responses.
My HOA recorded a CC&R change in 2016 by “Board Resolution”. Does it matter if the recorded CC&R modification is approved by Board Resolution or Homeowner Vote?
Hopefully the modification means my HOA can no longer regulate parking on our public streets?
First of all the CC&R’s cannot be changed by board resolution other than to make the CC&R’s consistent with either state or federal law. If they in fact did so they violated the law. They may however change the bylaws of the association if those bylaws allow board modification. Relative to your specific question Arizona Law enacted in December 2014 allowed any association to continue to regulate streets owned by the municipality unless they modified their CC&R’s for any reason. If they do so they no longer can regulate public streets in any way. The key point here is a recorded amendment to the CC&R’s and does not apply to any other modification of the other governing documents articles of incorporation bylaws or rules.
So if your streets are owners and maintained by the local municipality and they modified and recorded the amendment to the CC&R’s than they can no longer regulate anything about the streets like parking or anything else.
Thank you for your response. They have been blocking the Apache Junction Unified School District buses for 12 years now. This has only effected me directly since 2018, the last 2 years. It sounds ridiculous, because it is! I just need some help getting the school to understand the HOA has no say so in any of this. I have gone as far as writing a letter to the school board members, the school bus driver, transportation department, the special education department at the school, and it is literally me against everyone else. The HOA has been winning this battle for years. My daughter is now at a different school, because I simply do no trust the AJUSD with her and her special needs. AJUSD dismissed her from her IEP (Individualized Education Plan), or special needs classes, at the end of last year right after I refused to take my daughter to the end of the street, because it says in her IEP that she had to have hand to hand, and curb to curb. I have adjusted my schedule and the things that I do during the day in order to take to her a school that has no transportation, but is assisting us with our daughter’s special needs.
I am reaching out in hopes in finding the right resource to assist me fight against the HOA and make it known that AJUSD is allowing things like to happen. A few issues with this though, I have no been working so I have not had the funds for an attorney, I am not sure where to really start with taking this to the next level, and I have no solid resources out here to assist me (and my neighbors) with this situation. The neighbors that moved in 12 years ago had a petition and it “disappeared” as if it never happened according to them. Since then, they too, have had to readjust their lives in accordance to the HOA blocking the school bus.
I simply want a safe community for the children of our neighborhood. If that means me not paying my HOA and having them take me to court, then I am ready to go. I have no paid the association a dime since I got the phone from the school asking me to take my child down to Ironwood and Broadway at 8am. I am willing to fight this until the end, I just don’t know where to begin.
Thank you so much for your input. Do you have any resources or should I just keep posting in different blogs like this one?
Below is the letter that I sent out a few days after the incident happened.
“To Whom It May Concern,
In accordance with Sunny Lane Estates CC&R (Section #.## included) there is nothing stating that school buses are not allowed in or through our neighborhood. Vehicles weighing 1500 lbs or ¾ ton are allowed to pass through the neighborhood i.e. UPS, FedEx, and garbage/recycling trucks (school buses should be included in this group). Basically any type of vehicle that consists of single axles. Vehicles with multiple axles such as Atlas Van Lines, Mayflower Van Lines, or vehicles delivering roofing supplies/furniture, etc. are allowed into and to pass through the neighborhood.
Recently, the HOA has started complaining about school buses coming down to pick up our child and our neighbors’ children. We have a major issue with receiving calls about our daughter’s transportation changing in regards to our HOA calling and threatening to sue the school.
This is a discrimination against children attending school especially in lieu of the fact that delivery and moving trucks are allowed into and through the neighborhood. Please take this information into consideration as you are blocking ALL buses from coming into the neighborhood via Stardust Lane. The newly recommended pickup zone for our children will be located at the wall along Broadway . Placing children, especially small children, on a fast-paced five lane road is dangerous and unsafe.
There have been too many accidents where children have been killed on busy streets because drivers fail to stop for children getting on/getting off school buses . These drivers fail to stop for the stop sign attached to the side of a school bus whether they’re ignorant of the law, in a hurry, or not paying attention. We do NOT want our child or any of our neighbors’ children to become a statistic because of our HOA and the situation they have created or are creating. No parent or family should have to bury a child due to the indifference shown by an HOA.
I have not heard anything from the school or any of the departments within the school about the letter or in regards to allowing any bus to come back through.
Again, thank you for any help.
I’m sorry to hear of the duration of your struggle. If I was in your shoes and my child had a legitimate special needs that the association and the school district refused to accommodate, I would immediately file a complaint to the Attorney General citing both the association and the Apache Junction school district for violating the American Disabilities act. Both the association and the school district are equally liable. While the association is run by incompetent amateurs the school district has to deal with these issues on a daily basis and should absolutely know better. When they failed to accommodate your Child’s special needs simply because the association did not want them too is simply a cop our of their responsibilities and they should know that. That is simply stating that they knowingly abandoned their duty and responsibility to accommodate, because the mean HOA threated me if we complied with the law. Let them they will lose in any court of law.
Now if your issue is simply to have your kids picked up in your neighborhood instead of on the cities designated pick up route and location that is a totally different situation. I still believe that if the community wanted to have school bus pick up locations within the neighborhood and the school district was OK with that route change than the association truly has no right to restrict that activity even if the streets are owned by the association, without a specific restriction in the CC&R’s stating that school busses cannot pick up and drop off children in the community. Even without special needs that would be a violation of the fair housing act and disclination based on family status. Again prosecutable by the Attorney General. Whatever your situation is please file a complaint with the Attorney General office against the association for either violation of the ADA or FHA as appropriate. If you want to check with an attorney first please do so but once again it will be the attorney general filing charges against the association and or school district not you or your attorney.
It never ceases to amaze me how stupid some of these association boards can be. Have the school provide the bus to pick up your child. There is absolutely no way that the association can interpret their restriction on commercial vehicles to apply to the pick up and delivery of any child by a school bus. The association is required by federal law The American disabilities act to provide reasonable accommodation to any resident with special needs. Your son would qualify for this protection. They can try a sue the school system but would lose. If they try to sue the school or in any way interfere with your son’s ability to be picked up at his home you can simply file a request to the State Attorney General and he will sue the association for violation of the ADA.
If the association wants to pick a fight with the Attorney General they can, but will absolutely lose. This is a very simple and reasonable request and the association has absolutely no right to restrict your son from being picked up directly from his home. No matter how they interpret this provision in their governing documents if it exist at all.
This is a situation that cannot be restricted to only home owners. If you live in the community they must accommodate your son’s needs.
The association also cannot prevent you from attending meeting is the homeowner provides them with a notice that relative to meeting participation you are their designated representative. The owner can still retain his voting rights but simply give you the right to attend and participate in meetings.
From Vehicle parkingon
I just realized that I never responded to your question from August. You are absolutely correct this is nothing short of harassment and you could walk into any municipal court and file a complaint against harassment by the association. Hopefully you have the documented proof from the prior cases and attacks by the board.
Unfortunately HOA’s are totally dictatorial entities with no oversight so they get to decide what laws they want to comply with and which laws they simply want to ignore because they can for the most part get away with violating the law.
The insurance does not indemnify them the CC&R’s and bylaws provide the indemnification. Corporate law also provides indemnification to some extent as well. Property servitudes law provides a definition of what are the duties and responsibilities of any HOA board . Those duties are case law for Arizona and I have been trying for several years to make them statutory law as well. That definition is very simple and required that the board treat all members fairly and that they act reasonable in their Discretionary enforcement of rules and design controls. They can be individually liable for any breach of those duties but the burden of proof is on the individual contesting their actions.
Until such time that the community members elect a board of directors willing to comply with the law you will unfortunately have to fight this issue until you move out of your home.
While I work to make the laws of this state consistent with the National common law over these communities. HOA property managers and attorneys have no interest in advising the HOA board based on common law because it does not work in their financial interest and they don’t have too because it would take someone suing the association to actually enforce that law and they know that most people don’t have the money to do that and they can get away with it.
I know that this does not help but unfortunately you will continue to have to prove to each new board that you have the authority to park your van in your community.
You have to remember one thing ADRE can only address violations of the law or violations of the governing documents. The association violated the law only if they prevented anyone from recording meetings. Just because they said that they would allow members to view the recordings and then failed to do so does not violate the law in and of itself.
Your Articles are unusual but a quick check of the ACC’s web site for the status of your association would answer your question. CC&R’s also have a typical validation period, but they auto renew so it is a meaningless provision.
The proposal from a management company for consideration by the board would be proprietary and therefore confidential and excluded from records request under the law. But once the association signs a contract with that management company it is a record of the association and subject to records request under the law. Like I’ve always said most management companies could be replaced with trained monkeys and you would get the same service. Because a management company or manager says something does not mean it is true or in any way valid it is simply what they were told to say.
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