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Audit

I asked my HOA for a copy of the audited financial statement. They said they do not need to do one, but did send me a copy of the Tax Compilation. Our CCRs state 14.4...
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  • From Bente on HOA harassment, retaliation and falsifying minutes

    What is your opinion about AACM?
    Is it worth filing a complaint there?

    Go to comment
    2019/10/10 at 10:52 pm
    • From Dennis Legere on HOA harassment, retaliation and falsifying minutes

      Bente
      The Arizona Association of Community Managers claims to hold their members accountable to their standards, but I’ve never experienced that to be true in any way. Community managers pay a significant amount annually to be part of this trade group in order to claim some sort of legitimacy by paying for and attending their training classes, and to take advantage of their lobbying power. AACM is a meaningless certification similar to participation trophies for youth sports, you get it for participation in their training program not for actually knowing or understanding the fundamentals or property servitudes law that truly govern these communities. In fact the principles of this common law are not even taught in their certification courses.
      If you think that Linda Lang the CEO of AACM cares in the slightest about what any homeowner thinks of their community manager, you would be wrong. The community managers don’t work for the community homeowners they work for the association, and their focus is to only serve the board representing the association not the homeowners paying for their service. This organization is about making more money for its members in any way that they can, and all that money comes out of the pockets of the homeowners. AACM will not drop or discipline any management company that pays them thousands of dollars a year simply because homeowners complained to them about a particular manager or the company in general. While AACM will claim that they only represent community manager the reality again is quite different, They have affiliated partners that are mostly HOA attorneys that also pay up to $12,000 per year for that affiliation, do you believe for one minute that AACM will refuse that money because those attorneys abuse homeowners?
      I thing you get a picture of what I think of AACM. Any homeowner looking for help from AACM is a waste of time. The only homeowner that I know of who looked for help from AACM and actually got it relative to an issue with a community manager just happened to be the lobbyist for the Arizona Realtors Association the most powerful political force in the state. Of course those two facts were totally unrelated.

      Dennis

      Go to comment
      2019/10/11 at 10:21 am
  • From Bente Hewitt on HOA harassment, retaliation and falsifying minutes

    Hi Dennis
    Thank you for responding so quickly. Yes our attorney Jon Dessaules told us not to spend any more money as nothing got accomplished. The last straw for him too was the falsified minutes.
    We got s copy of Jan8th 2019 minutes through our attorney not stamped approved. We knew right away they were falsiifuef, because we
    had a copy of the original approved minutes. Because of our conflict with the board and knowing our president was not up front and honest we had printed out all the minutes for
    2018 and 2019 because we suspected they were cabable of doing just what they did.
    We are positive it was the president changing the minutes together with our manager, but she took the fall and the HOA attorney said it was an honest mistake.
    This is when out attorney advised us we would not get anywhere unless we filed a lawsuit and that was not worth paying for.
    Since then we have met with upper management of the management company and they also told us the manager had confessed, but does not know why she did it.
    I also had a long talk with the CEO and he is telling me that they cannot fire the manager because she is now protected by the HOA attorney.
    Last meeting they voted to amend the Jan 8th 2019 minutes to include werbage that never took place. I just looked today and the amended Jan 8th minutes are now posted and approved, but not the werbage they approved in the meeting.
    We are just disgusted.

    There is nowhere for homeowners to go at all.
    What is you experience with AACM?

    Go to comment
    2019/10/09 at 6:01 pm
    • From Dennis Legere on HOA harassment, retaliation and falsifying minutes

      Bente;
      As usual Jonathan is right in his recommendation. To pursue falsifying corporate records would be cost prohibitive unless that act caused significant harm for which you could claim damages. And you are again accurate in your assessment of justice for homeowners, there is little you can do or few options to get justice with these communities. What you can do however is initiate a petition to remove the board or at least remove the leaders of that board for not fulfilling their obligations to the community. It’s not easy to do that but it remains the only answer for many of homeowners issues.

      Dennis

      Go to comment
      2019/10/11 at 10:35 am
  • From Dennis Legere on HOA harassment, retaliation and falsifying minutes

    Bente;

    Unfortunately the AG will do little to nothing to deal or help homeowners in Common Interest communities. As corporations operating under terms of a contract HOA or Condo issues are beyond the scope of authority of the Attorney General. Unless you can provide credible cause for action against an association or its board that is criminal in nature like embezzlement or fraud you will get little help from the AG’s office. Trust me many have tried in the past all to no avail.

    The AG will also no longer even write an AG opinion on an HOA or Condo issue even is asked to do so by a legislator. In the history of Arizona there has been only one AG opinion ever written directly related to Common Interest Community issues and that was in 1997.

    Let me just tell you that what you are experiencing is far too common. The association knows that they have an endless supply of money thru assessments and special assessments and if they cannot win a case on the law they will use every tactic they can come up with, to out last the limited personal assets of a homeowner or group of homeowners. They will file motion after motion and feign ignorance in providing even subpoenaed documents to delay the hearings. If they cannot win on the law than time and money is on their side and they will simply wait you out until you fold.

    If you have an attorney he should be advising you and taking action to stop this game in your best interest. Just remember that billable hours are billable hours and he will make more money the longer this is drawn out as well.

    As for falsifying minutes, creative minute writing is an art form and totally within the direction of the board. Because minutes do not include everything that was discussed in a meeting does not make them false. If however a vote of the board was taken to take action and the minutes do not reflect that action the minutes are not falsified they are simply incomplete. If however minutes were taken and subsequently approved and then changed without a new approval of the change, then official corporate documents were falsified after the fact without the approval of the board. To make such a claim you would bear the burden of proof and would need to file suit in Superior Court.

    If proven this could be criminal in nature and the AG does have a separate division that investigates and prosecutes fraud cases. I highly doubt that the AG would take on such a case for one set of minutes unless that act was based on concealing more significant criminal activity.

    What are the issues you are pursuing maybe I can help on that front?

    Dennis

    Go to comment
    2019/10/09 at 3:53 pm
  • From Rick Colbert on Small claims court as a vehicle to contest HOA abuse

    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.

    Go to comment
    2019/10/08 at 10:17 am
    • From Dennis Legere on Small claims court as a vehicle to contest HOA abuse

      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

      Go to comment
      2019/10/08 at 12:39 pm
  • From Dennis Legere on Small claims court as a vehicle to contest HOA abuse

    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

    Go to comment
    2019/10/08 at 9:53 am
  • From Carol Payne on Marijuana use in community

    Dennis,

    The problem isn’t so much with homeowners as it is with the rental units. Since we do have the power to adopt reasonable rules to address and protect the community, how do we get the tenants of the rentals to be respectful of the community? Do we issue violations to the homeowners? I’m assuming in their lease agreement there is a sub-section that deals with smoking whether it’s cigarettes or marijuana. Many landlords require their tenants to sign a crime free addendum. Nobody is trying to play God but some of the residents don’t like the fact that people are openly smoking marijuana on the premises and they feel uncomfortable. Where do we stand when it comes to rental units abusing their “medical need”? Thank you.

    Go to comment
    2019/10/07 at 7:32 pm
    • From Dennis Legere on Marijuana use in community

      Carol;
      Your community documents would define the expectations of your association relative to requirement for owners that lease their units. Typically they require that the renters comply will all association rules and regulations. The homeowner is the person that the association will hold accountable for any violations of the community documents. It will then be up to the homeowner to decide what to do with the renter. As I mentioned earlier whether other homeowners like or dislike what other homeowners do that is legal is irrelevant. You have no right to impose your will on others. What you do have the right to do, is ask the association to adopt rules to limit the impact of these individuals on your ability to enjoy your property and the community common property with the potential health concerns from second hand smoke no matter what the source of that smoke. If the association choses not to act on this issue, unfortunately your only recourse is to remove the current board and elect a new board with a greater understanding of how this issue impacts you and other homeowners in the community.

      Dennis

      Go to comment
      2019/10/08 at 1:16 pm
  • From Dennis Legere on Marijuana use in community

    Carol;

    Obviously if the homeowners have legitimate medical marijuana cards, they have the legal right to use the product on their property. Ask them simply to verify that they have the license to use the product, and then ask them nicely to limit their use to certain times of the day that will not impact immediate neighbors.

    Under Property servitudes common law compiled in the Restatement of Law Third property servitudes section 6.7, the association has the rights as stated below:

    (2) If the declaration grants a general power to adopt rules, the common interest community also has the ability to adopt reasonable rules designed to protect community members from unreasonable interference in the enjoyment of their individual lots or units and the common property caused by use of other individually owned lots or units.

    What this says is that the association has the right to adopt rules even if they are not specifically authorized in the CC&R’s to prevent one home owner from doing things that impact other homeowners ability to enjoy their home or the common property. Those rules should be based on that direct impact and focus only on limiting the homeowners use of marijuana when the neighbor windows and doors are closed or when the adjacent homeowners are not on their patio’s or in the immediate vicinity of them. Or something to that affect. You cannot limit them from using the product that is medically necessary for their well being. You can only establish rules that prevent that use from negatively impacting their neighbors.

    Don’t try to play God here, or even judge these people because of their medical need. What you believe or how you stand on that product is irrelevant here, you have absolutely no right to impose your beliefs or will over anyone else. If you believe that the incidental intake of that product is a detriment to your health and welfare than you have the right to ask the association to take action to protect your health and the health of your family on this issue.

    Dennis

    Go to comment
    2019/10/07 at 5:34 pm
  • From Dennis Legere on Sketchy Vote

    Shawn
    You are absolutely correct. There is a clear disconnect between the policy statement and the actual language in the statute. This is the classic example of attorneys interpreting the law in a fashion that it was never intended to be used because they can. And they know that even if someone challenges the board based on their advice that they simply make more money even if they lose and they are proven wrong. That is why I’ve been trying to close those loop holes for so long. For homeowners to have a chance of knowing what the board is doing they must get the agenda before the meeting and not simply at the meeting. People have families to raise and cannot go to every board meeting in case they discuss something important to the community. This has all been a plan to keep homeowner in the dark about what the board is doing or planning. This is coupled with the practice of not allowing homeowners to speak during the meetings or worse yet badgering any homeowner who dares to ask a question or to question the actions of the board.

    We have a long way to go to get truly open and participatory board meeting, but that has and will continue to be our primary objectives. But if we can get the homeowners in this state to unite with us we can get our laws changed to work for the homeowners paying all the bills instead of for the HOA industry that makes incredible profits based on their influence with the legislators and the Governor.

    Dennis

    Go to comment
    2019/09/24 at 6:11 pm
  • From Shawn on Sketchy Vote

    Thank you, Dennis. I appreciate your time and your insight.

    I was hoping that ARS 33-1248 (E)(1) would help, when combined with the policy statement in subsection (F).

    (E)(1) “The agenda shall be available to all unit owners attending.”

    (F) “It is the policy of this state as reflected in this section that all meetings of a condominium, whether meetings of the unit owners’ association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the unit owners of the matters to be discussed or decided and to ensure that unit owners have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board or directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.”

    However, it looks like there is plenty of weasel room for the unscrupulous Board. The real kicker is that the Board is basically a lame-duck Board. They are going to lay waste to our finances and then leave. Frustrating, but I assume that I am preaching to the choir on this one!

    I am glad that I encountered your web site. I will pass the word around my community, and hopefully we can increase your numbers.

    Thanks again,
    Shawn

    Go to comment
    2019/09/24 at 3:24 pm
  • From Dennis Legere on Sketchy Vote

    Shawn;
    Unfortunately Arizona statutes only require that meeting of the board be noticed. I’ve been trying for years and have an additional proposal to require that the board post the agenda of the meeting along with the notice of the meeting so that members have a chance to see that such an issue is to be discussed and then they can decide to go to the meeting to voice their input into that decision making. As I’ve always said The board advisors, attorneys and community managers tell the board what they can do but never advise them of what they should do. Even if the board has the sole authority to approve such an expenditure they should as part of their responsibility to treat members fairly provide for a public question and answer session to at the very least let the community know that they are even considering such a move.

    What makes these issue even more egregious is the fact that for most association these decisions are not support with resources available in the capital reserve fund or worse yet money is available but all dedicated to other long term maintenance, other than the project being considered. This is nothing short of total breach of the fiduciary duty of the board to the community members. They take money from you for use on some projects in the future but then divert that money to do something altogether different leaving the communities long term needs under funded.

    The only real issue before you is whether you community documents allow the board to make such expenditures with community input and vote. If you documents require this then they violated those documents even though they did not violate the law. If you have the community documents in an electronic format you could send them to me and I’ll look them over for you. Send it to help@azhoc.org.

    What you and your community can do right now is join our coalition and help me and us fight for better laws that protect our fundamental rights as homeowners and help board make decisions based on what is right for their communities and not just on what they can and cannot do,

    Thanks
    Dennis

    Go to comment
    2019/09/24 at 12:31 pm