Comments or Questions

Joe;

Good question. The association must provide access to any association record that is not confidential as defined in the 4 open meeting exceptions. The fifth open meeting exception is an exception only if the individual homeowner choses to make it so. There is no requirement for associations to reveal homeowners e-mail addresses or phone numbers, and most associations treat that as confidential information. Which in my mind is appropriate unless the individual homeowners have elected to make their information public.

I believe that your question may also included the issue of the association board needing to disclose any e-mails between board members or individual homeowners. Most HOA attorneys will advise their clients that if they simply chose to not make board correspondence a record then they can avoid the record request for these correspondence based solely on the claim that they are not records. This is absolute crap. If the board conducts any correspondence involving community business it is subject to the open meeting laws and a discoverable record of the association. These records are routinely subpoenaed in any case involving the courts and are treated by the courts as community records. The open meeting laws clearly define a meeting as any assembly of a quorum of the board, where community business is proposed, discussed, deliberated or acted upon either in person or by technological means. E-mails are technological means as are conference calls. Any such meeting I’m not providing legal advise here simply stating the clear and precise definition of a meeting and the direct position of the Arizona Attorney General from a 1997 and 2005 published opinion. This is why most HOA attorneys will also advise their board to use a community email account rather than their personal e-mail account because they know that if the board uses their personal e-mail account for community the entire account information is discoverable by the court and the parties involved including any personal e-mails totally unrelated to community business. This is another case where HOA attorneys talk out of both sides of their mouth, telling board that they don’t have to provide e-mails to homeowners request for records all the time knowing that they will have to disclose that information to any court at any time.

Dennis

My HOA has restrictions for overnight parking on streets–which I support. However, the community is over run with street parking which is a safety hazard. Aside from the occasional email, the HOA is not enforcing these rules despite repeated requests. How can I get the HOA to start fining residents here?

Morgan;

By law your association must allow voting in person at a meeting AND by absentee ballots for those who cannot attend that meeting. That has absolutely nothing to do with secret balloting or not. The law simply clarifies that if the association’s governing documents allow secret ballots the processing requirements for absentee ballots changes. You can have absentee balloting with or without secret ballots, and you can have secret ballots even with absentee ballots.
Your association and community manager should actually take the time to read the law before they make statement to the community. I’ve often stated that despite all the rhetoric from AACM and CAI about how they train and certify all the community manager, they fail to mention in their training how to actually find and read the law. If they did we would probably have many fewer problems in these communities.
I’ve failed to understand how absentee balloting will impact the transparency of your board? Whether it’s in person voting or absentee voting election integrity is a big deal in these communities, so the voting method is not the problem but rather the integrity of the vote counting process is, and needs to be addressed in statutes as I’ve proposed for this coming session.

Hopefully this answers your question.
Dennis

John;

Before you even consider legal options remember one thing the management company works for the board alone and not the homeowners and they have no responsibility to respond to homeowner complaints. They should but they don’t. The landscapers were probably hired by the management company and not the board directly other than to sign the contract. The board is the only entity bound by contract that is established via the CC&R’s for the community to maintain and protect the common property for the uses and enjoyment of all members of the association. Complain to the board directly along with pictures and as many of your neighbors as you can get.

NEVER ACT ALONE. this will allow the board to simply treat you as a disgruntled homeowner, and an antagonist. You cannot believe the attacks that boards have made on individual homeowners based on simple request for them to do their job.

If the board refuses to consider or act on the communities request for proper maintenance. Than you could generate a petition to remove the offending or the entire board members. Remember one thing the boards duties are to act in the best interest of the association and the members as a whole, they have no responsibility to make everyone happy. If they make a conscious effort to provide the best landscaping service that the community can afford then that is their job and why you put them in those positions to make those decisions. Very seldom will all community members agree with every decision that the board makes, or doesn’t make but as long as the decision was made based on what they believed was best for the community you cannot fault them for that decision. What you do in that case is present your case for better landscaping along with support from many of your neighbors recognizing that nothing is free and there may be higher cost associated with more active landscaping.

If all this fail and as an absolute last resort you could sue your board for breach of contract, on their failure to protect and maintain the common area. Suits of this nature could run up 10;s of thousands of legal cost and the only people that actually win in these cases will be the attorneys. Win or lose the homeowners will end up paying the bills for this litigation. Which could far out weigh the cost of improved landscaping.

In closing let me make one thing abundantly clear. You are unconditionally bound to pay your assessments under risk of losing your home. NEVER, NEVER, NEVER USE YOUR ASSESSMENT AS PROTEST AGAINST THE BOARD ACTIONS OR INACTIONS. You will always lose in the end and your association’s attorney will be able to buy another new boat or vacation home.

Thanks
Dennis

Joseph;

That depends on what you are referring too. Boards do this every day, The board has the ultimate responsibility for everything related to the association. However they can hire a management company to perform some of those duties like paying the bills or collecting assessments from the homeowners, or managing code enforcement. They also routinely create committees of the board to handle code enforcement, or architectural control, or budget preparation or long term capital planning, etc. etc.

I cannot really answer your question unless I know specifically what you are concerned about and what exactly you governing documents say about delegation of authority.

Dennis

Nicholas;

Let’s start with clarifying some of the points in your question. First of all the management company is not the HOA, the only organization that represents the HOA is the board of directors. The management company works for the board alone and has no duty to the homeowners in the community. The same way that you are bound to comply with the CC&R’s and rules for the association the board is equally bound to maintain and manage the community common property. Their failure to do so could be construed as a breech of contract between the association and the owners. It sounds to me like your board is absent in all this and have abdicated their responsibilities to the management company. You have every right to complain to the board about the incompetency of their management company and demand that they do something to correct the situation. If the management company does not respond to the boards direction they should be fired plain and simple. If the board fails to live up to their responsibility to ensure the adequate maintenance of the common area and the protections of all residents then they should be removed.

Each individual board member risk personal liability for their failure to act to address these issue based on the breach of duty. The normal indemnification from liability for the board members does not extend to breach of duty issue.

As homeowners you have two choices create a petition to remove the board and elect a new board that will take their responsibilities seriously or to file suit against the board in court on their failure to satisfy their duties to the association and its members.

Relative to the management companies excuse that the landscapers were doing these action on their own was an absolutely ridiculous response. As the community managers they probably hired the landscapers for the community and they can fire them, or at the very least have the board fire them. Landscape companies are a dime a dozen and I’m sure there are some very good companies out their that would love to have your communities contract.

The hole in the wall is the most serious issue. There is a significant appellate court decision in Arizona, Martinez v. Woodmar IV Condominiums where the association was held responsible for their failure to protect their residents and quest form foreseeable risk. That case involved a guest in the community that was shot by gang members in the area when the association failed to maintain street lights and the community gates.

Dennis

Mike
Yes absolutely. That is contained in the law for both planned communities and Condominiums.

Dennis

Joseph;
State law requires that all ballots be identified with the name and address or unit number of the voting member. This is to authenticate the ballot and to allow the association the means to prevent duplicate ballots from any homeowner. If the association thru it’s bylaws requires secret ballots that the state allows the signature and address to be identified on the envelop containing the ballot instead of the ballot itself. The voted ballot are to be retained for a minimum of one year and able to be reviewed by any unit owner during that time. Many homeowners are concerned about that fact and see it as a violation of their privacy. What your board is doing is not required by law and not prevented by law and in general the right thing to do for the homeowners with this privacy concern. If you want to see who voted the association most probably has a check off sheet where they validated the ballot signature against the official member list for the community. Ask for that record.

I’ll be proposing legislation that will allow the authentication signatures and information to be separated from the actual ballot for all elections and votes of the community so that anyone after the fact can view the ballots cast and the record of who voted but not what anyone actually voted.

Dennis

Jeri;
While every set of CC&R’s are unique, they typically all address this particular situation. Typically CC&R’s automatically renew at the end of 10 year intervals. Some have up to 40 year initial periods with ten year interval after that. The renewal process is automatic with the expectation that if the community wishes to terminate the association and the CC&R’s they must do so within a specified amount of time prior to the current renewal date. In Arizona the statutes allow additional options. The community (and never just the board, other than to make the CC&R’s consistent with state and federal law) can alter any CC&R’s at any time including termination of the CC&R’s and the association altogether, irrespective of the renewal date.

The part of your question as to, should the board notify the community prior to the renewal date that answer is easy and yes. Do they have to , no. I often comment on what boards are advised by their attorneys and their community manager, they are told what they can and cannot do along with what they can get away with, but very seldom advised what they should do.
Boards should always consider the wishes and needs of the community first at all times.

Dennis

My community has specifically targeted street parking by hiring a parking enforcement provider. It seems we also target leaving trash bins out since it is by far the most common violation notice issued. We once had a Manager who would occasionally do a compliance tour at night in order to notify homeowners of a carriage light that needed bulb replacement. In the case of a homeowner complaint about aggressive dogs running loose, no action was taken. :-/