You are absolutely correct, in this case the Arizona State Law trumps the lack of guidance in your community documents. The language in the law has an “and” between the in person and the absentee ballots. The language added relative to other forms of delivery are not a substitute for the first two but rather alternatives to snail mail in absentee ballots. This will apply to all votes requiring action from the members or unit owners. The absentee ballots also count toward satisfying the quorum requirements for the meeting.
So to your specific question; are associations required to provide absentee ballots to all members prior to a meeting to vote on an issue, the answer is yes.
I will also note that based on a revision to the language to the open meeting laws that I introduced and got passed in 2017 all votes required from the members must be taken at a meeting of the members called for that purpose. The language change was to the public policy statement in the open meeting laws that specified that members must be allowed an opportunity to speak on an issue prior to any vote on that issue by the members. The only way for that to happen is to have that vote at a meeting of members. Those members not wishing to attend the meeting or speak on the issue must be given an opportunity to vote on the issue via absentee ballot.
If you can send me your CC&R’s and bylaws I’ll gladly look them over and help you understand what the requirements are for your community. Use firstname.lastname@example.org. I’m assuming of course that you live in either an HOA or Condominium? If in an HOA or Condo and the streets are part of the common area (not public streets) the association has a duty and responsibility to maintain those streets and to raise the necessary assessment to accomplish that duty. What approval authority will be required from the association members or unit owners will be specifically prescribed in the two documents that I discussed earlier. The only state law that specifically addressees assessment approval is a statute for HOA’s ARS 33-1803 only that limits the increase in assessment to 20% over the prior year, without the approval of a majority of homeowners. No such limitation currently exist for condominiums. I’m working on fixing this, this year.
One more though to your post. If board or committee members thought like you half of all issues in HOA’s or Condominiums would be solved. You simply applied your on sense of values to determine what felt right and what made sense in making decisions and questions the guidance of the so called professional community manager. I’ve stated many time that if the HOA trade groups really wanted to make these communities better places to live like AACM and CAI continually state in their self serving propaganda that they would start training the community manager to help these communities not focus only on what the laws tell them they can and cannot do but rather help them understand what they should do in making any decision for their communities that truly represents the best interest of the community as a whole. Because the unfortunate language of the current law allows them to avoid the open meeting requirement for these “not regularly scheduled” committee meetings does not mean that they should not apply those standards to these committee to ensure true transparency in the important decision of the community.
Technically since 2010 this use would be within the specific language of 33-1804. I will say that it is not in any way within the intent of the statute, as stated in the opening paragraph and in the public policy statement that was included in the same Bill that included the words “regularly scheduled committee meetings”. This was a very unfortunate inclusion in that bill because regularly scheduled is not defined in any way. This has probably been the most abused language in all the statutes, because by simply stating that a committee even the most significant committee that a community can have is “not regularly scheduled” it is allowed to circumvent the requirement of the open meeting laws for boards. It also open the door for any board to delegate all important decision for the communities to committees and allows them to conduct that business in total secrecy. This loophole in the open meeting laws has been abused for ACH committees, budget review and consideration committees, Rule enforcement committees, and capital improvement recommendation committees, to name a few. Having said this, relative to the conduct of these meetings the records of those decision are and must be maintained as community records. They do not in any way constitute personal information unless the requested deviation from the community documents would relate to health information about that homeowner. the rules for community records request in 33-1805 still apply to all these community records. The only way for the association members can ensure that they are all treated consistently and fairly by these significant committee is to have the conduct and decisions of that committee totally open to the members of the community.
I will commit to you and to anyone else out there, that I will not stop working with the legislators to correct this abuse of the open meeting laws and ensure that these important community committees are made subject to all the provisions and limitations for board open meetings until those laws are changed for both planned communities and condominiums.
Thank you for your question.
Thanks! Very helpful advice. I’ll share this link with my neighbor.
Another aspect of you message that I did not adequately address was the notification aspects of ARS 33-1804. While the public policy statement of 1804 clearly implies that the association has a duty to inform the members of the subject matter to be discussed at a meeting before the meeting that is not actually a provision of the current law. The association is required to provide notice of a meeting 48 hours prior to that meeting but is not currently required to provide the agenda for that meeting prior to the meeting. Once again the issue here is what they are required to do vs. what they should do if they really wanted people to attend and know what they are considering to do before hand. I will get that law changed some day, and will be part of my legislative proposals every year until I get it changed. Back to your point that your member felt that the board had a duty to inform the community prior to the meeting that they were considering this playground equipment, from Arizona Statutes perspective that is not currently correct.
As you are aware I’m not an attorney so I will tread very carefully with this response. As for the decision to upgrade the playground I would have to see your CC&R and bylaws to comment intelligently on what your board can and cannot do. But as I’ve always stated most issues in HOA’s would be totally eliminated if board focused less on what they can and cannot do and focus more on what they should do in conducting the business of the community for the good of the entire community. On first blush it sound like the decision to replace the playground equipment was reasonable, however with an expense of that magnitude it is also apparent that a reasonable board would have looked at multiple options from multiple vendor to get the best value for the community. Part of the concern is that the upgrade to the common property required an approval of the membership. again I would have to actually see the bylaws to comment intelligently on that aspect of this issue. You address open meeting issue. The law here is very clear. The decision to replace this equipment had to be made at an open meeting and the board had to provide any member present in that meeting an opportunity to speak for or against the issue prior to the board vote. Additionally if the board offers an open forum for community members you are entitled to bring up any issue in a civil and respectful and non-accusatory manner. If you have a concern with n action then raise that concern with the board. The tactic of cease and desist letters from HOA attorneys sent to any homeowner that disagrees with a board decision is for the most part a scare tactic. Defamation is clearly defined in law the fundamental aspect of that law is that the statement either oral or written must be false, if it is true no matter how distasteful it might be to the subject of that comment it can never be defamation. Having said that you want to be very careful about general name calling a board member a liar or a thief even though you may believe it if it is not based in truth words like that can and will get you in trouble. If you believe that the board breached it’s fiduciary duty in taking the action that it did you are free to express that opinion at any time. That is the fundamental freedom of speech allowed every citizen in this country, and is in no way defamatory it is strictly your opinion based on your understanding of the rules governing your association. Even if you are wrong in your interpretation of those rules.
You still have to be careful about what you say and stick to the truth as you know it and you will be OK. While saying or threating a law suit or litigation will surely raise some eyebrows in an open meeting of the board or the members and make some people very angry there is no law preventing you from making such a claim or statement. Just be careful not to use such a threat lightly it will have real consequences that you may not like or want. It will always be better to talk thru issues as much as possible and if you feel that the only way for you to get justice or to enforce the laws or the rules and covenants of the association is through the ADRE dispute resolution process or court litigation than just do it don’t threaten to do it.
The information and facts talked about inside the article are several of the most beneficial offered.
Thank you Dennis for all that you are doing and your comment above.
The Limited Purpose Association concept could be applied to existing communities, but they would have to amend their Declarations, which is exceedingly challenging of course. But, theoretically, it is possible in some cases. Accomplishing similar was my brief Norma Rae-esque fantasy at one stage in my HOA ordeal. I did speak with a Planning official in my town who told me that there was “no requirement” that an HOA exist in the case of mine (in part because it was not part of a larger, master association). She also informed me about a nearby similarly-aged development that is, in fact, only a “Landscape Association.”
I am for anything — Improvement Districts, Landscape Associations, anything — to stop the CC&Rs extortion racket and the high-stakes abuse of innocent good-faith homeowners like me.
I also don’t think critical infrastructure like public roads should be in the purview of an HOA, but that is a whole ‘nother huge topic. I now, mercifully, live in a non-HOA neighborhood; the City repaved our roads about a year-and-a-half ago, the street sweeper comes by every week, the trash gets picked up, the sewers are tended, etc. It works great, and I don’t have to be tormented and threatened by psycho board members, unscrupulous management companies, and crooked HOA lawyers.
In Nevada, an alternative to the standard-issue HOA — per Nevada Revised Statutes (NRS 116) and Nevada Administrative Code (NAC 116) — is the “Limited Purpose Association.”
Here’s some information:
NAC 116.090 “Limited-purpose association” interpreted. (NRS 116.1201, 116.615)
1. An association is a limited-purpose association pursuant to subparagraph (1) of paragraph (a) of subsection 6 of NRS 116.1201 if:
(a) The association has been created for the sole purpose of maintaining the common elements consisting of landscaping, public lighting or security walls, or trails, parks and open space;
(b) The declaration states that the association has been created as a landscape maintenance association; and
(c) The declaration expressly prohibits:
(1) The association, and not a unit’s owner, from enforcing a use restriction against a unit’s owner;
(2) The association from adopting any rules or regulations concerning the enforcement of a use restriction against a unit’s owner; and
(3) The imposition of a fine or any other penalty against a unit’s owner for a violation of a use restriction.
2. An association is a limited-purpose association pursuant to subparagraph (2) of paragraph (a) of subsection 6 of NRS 116.1201 if the association is created for the sole purpose of maintaining:
(a) Areas on an official plat that are designated as unsuitable for building;
(b) Areas required by the governing body to be designated as floodways, natural drainage or spillways; or
(c) Other areas that the governing body requires to be used for the purpose of collecting, facilitating, retaining or channeling storm water drainage of the residential property of the common-interest community.
3. An association is a limited-purpose association pursuant to subparagraph (3) of paragraph (a) of subsection 6 of NRS 116.1201 if:
(a) The association has been created as a rural agricultural residential common-interest community;
(b) The residential lots in the common-interest community are a minimum of 1 acre and are zoned for agricultural purposes by the county in which the community is located; and
(c) The governing documents of the association authorize the residents to farm or raise livestock on the residential lots.
4. As used in this section:
(a) “Governing body” has the meaning ascribed to it in NRS 278.015.
(b) “Landscaping” has the meaning ascribed to it in NRS 278.4781.
(c) “Public lighting” has the meaning ascribed to it in NRS 278.4783.
(d) “Security wall” has the meaning ascribed to it in NRS 271.203.
(e) “Trails, parks and open space” means trails, parks and open space that provide a substantial public benefit or are required by the governing body for the primary use of the public. The term does not include a private street or roadway, gated entry, swimming pool, gazebo, clubhouse, pond, tennis court, miniature golf course or frisbee golf course.
(f) “Use restriction” means any provision of the governing documents of an association that restricts a unit’s owner in the use of his or her unit.
(Added to NAC by Real Estate Div. by R114-99, eff. 5-5-2000; A by Comm’n for Common-Interest Communities by R129-04, 4-14-2005; R205-05, 9-18-2006)
Thanks Jenn for your comment. While I’m constantly searching other state statutes for possible relevance and applicability for Arizona. This concept would apply mostly for what we call Property Owners associations in Rural Arizona, that are currently governed under Planned community statutes. The one concern is the primary expense for our property owners associations are roads and road maintenance is excluded in Nevada’s Limited purpose associations. While the concept is interesting any attempt to create such an option could never be applied to existing communities and I cannot see a major land owner subdividing his/her land and creating an organization with maintenance responsibility with covenants that are not enforceable by the association. Our improvement district would not have an association providing the maintenance it would have a municipality, and covenant enforcement would be done by homeowners just like your limited purpose association.
After our last HOA meeting was adjourned, I witnessed a homeowner in our community approach two board members and a committee member. Apparently, she must have asked to speak at the next board meeting about... Read More