Susan,

In late 2018 the Arizona Appellate court ruled in the case Turtle Rock III v Fisher not only that for fines to be reasonable they must be based on a fee schedule that is commensurate to the significance of the violation and that that schedule must be published and distributed to all homeowners. That ruling specifically determined that their is a difference between a fee schedule and a fee policy that is one size fits all, and that the later does not satisfy the ruling. The Court did not stop there it also stated that for any fine to be reasonable it must be based on the actual cost to the association. This ruling had the entire HOA industry in a turmoil not only in Arizona but across the country. The HOA industry with it’s hundreds of attorneys appealed this decision to the Arizona Supreme Court but the court refused to hear the appeal and upheld the ruling but de-published the ruling. What that means is that that decision cannot be used as case law precedent in any other subsequent case. In my non-legal opinion the part of this decision that stated that fines must be based on cost went way too far and is what cause it to be depublished. Any attorney presenting a similar case should study the arguments presented in this case because they were legitimate and sound and will most likely result in similar court ruling in the future.

To answer your question directly from Turtle Rock III v Fisher yes the fines must be based on a schedule that is based on the significance of the violation. The fine for painting your house pink without approval should be significantly greater than the one for leaving your trash can out too long.

Dennis

Susan,
First you need to understand that in an HOA all the common area actually belongs to the association and not to any homeowners. So the Association gets to decide any and all rules relative to the use of the common property. The answer to your question is yes the homeowner can consume their own liquor if the association allows them to do that if not than the homeowners cannot. It would be no different if the property in question was your house. if you allow a neighbor into your house they cannot simply bring their own liquor and drink it in your house unless you approve of that action.

In a Condominium the situation is a little different in that all the common property belongs to all the homeowners. So the general rules that apply to HOA’s don’t apply based simply on ownership. If there are 100 unit owners that all own 1/100 of the common property then they would all have to agree to a rule affecting the use of the common property, and you know as well as I to expect 100 different people to agree on anything would be impossible. So the Declarations are written to empower the association board to decide how the common property is used, even though the association owns no part of the common property.

Talk about a double standard, no matter what type of community you have the association gets to decide how the common property is used and what rules it wants to apply to that use.

Dennis

Susan,

You not only have the right it is the law in Arizona that the association identify the individual who filed the complaint. See ARS 33-1803 for HOA. The same language is used in the Condominium statutes as well.

Dennis

Nancy,

As with any government program meant to help people there are people and corporations out there that will try and scam and abuse the program. Why would anyone believe that the HOA industry would be about any of this? I’m just surprised that we have not about more of this from the HOA industry. The payroll protection program was meant to accomplish just that If your association has no-one on the payroll or if those employees are paid thru assessment income those associations are not eligible for that program. While the government has protected people from bank foreclosures based on non-payment or apartment rental evictions based on non-payment no relief was provided to homeowners from assessment non-payment and the HOA industry was not restricted in any way from unrestrained collection cost and foreclosure. Why would this industry then be able to get forgivable loans to protect payroll, while their source of income is not in jeopardy?

If your suspect fraud report that fraud to the Office of the Inspector General thru this link https://www.sba.gov/about-sba/oversight-advocacy/office-inspector-general/office-inspector-general-hotline .

As with anything that happens in an HOA the people can come together and attend a board meeting and demand to know why the board sought and obtained a loan with the required approval of the association.

If you believe that the HOA violated their governing documents by requesting a loan without getting the required approval of the community than file a petition to the Arizona Dept. of Real Estate based on governing documents violation. Request that they comply with the governing documents and get approval from the homeowners prior to applying for a loan. Since the loan that was received was done illegally it should be returned.
These are some of my thoughts on this issue. The rest of my thought should not be posted on a public forum.

Dennis

Jimmy,
The open meeting laws for Common Interest Communities are intentionally substantially different from those for public bodies and municipalities. While the public body open meeting laws mandate that those bodies cannot consider any issue that was not posted on the agenda prior to the meeting. There is no such provision for common interest communities. In fact currently there is no provision requiring the posting of the agenda prior to the meeting at all. Many board and their useless attorneys have used the concept of “if it’s not on the agenda the board cannot consider the issue? to suppress question and issues raised by homeowners in the meeting. While I’ve been trying for several years now to get legislation to mandate that a draft agenda be published prior to any board meeting to give the homeowners an opportunity to decide if they wanted to go to the meeting of not. If the only time you find out what will be discussed at the meeting is at the meeting itself. This suppress public participation which is what the board and management companies want but not what the homeowners need. We need to keep flexibility in this process so that homeowners can bring up issue and have them dealt with by the board at that same meeting, while still making sure that anything the board is considering is brought to the attention of the homeowners prior to the meeting and along with the notice of that meeting.

When reading the law one must be very careful to read what it actually says and not what your would like it to say.

Dennis

South Ranch II, Julie Anderson property manager and Mulcahy law firm are a team they have openly charged me for court fees that I never had a fair fight for in my dispute. I was discriminated against and it’s now a legal matter with the help of the law firm that put two liens on my habitat for humanity home of 2001. I want this legal extortion to stop as it should have never started. /Beth Mulcahy #017005 Mulcahy Law Firm 3001 E Camelback Rd # 130, Phoenix, AZ 85016 602 241 1093 I do not owe any outstanding debt as they have created. I speak the truth and I was a target for inhumanity for not watering a plant not in the CC&R’s. HUD please help save my home my hands have been tide and no attorney can help as they are on the HOA side.

This is very helpful, hello everyone I am new and need guidance in my experience with my HOA of treatment. It’s not honest and I am glad that with people helping people. Nothing worse than knowing your HOA is after your home and only have one agenda. I have never been in violation yet I experience a Sheriff Sales on my home. Unbelievable with South Ranch II and this community if for the less fortunate yet we still pay our bills with honer. We need a new board to represent our scared neighborhood. Thanks for this website, Charlotte

Jamie,

I understand your frustration, but the common property actually belongs to the HOA and under the current situation the association thru it’s board must consider the risk to the community and the association relative to opening up the common property. I’m sure the actions taken by the board are based on advice from their attorneys who are by their nature risk adverse. The test for any action from the board is would any reasonable man/woman under the same conditions take the same actions. In this case the answer to that question is probably yes. If a homeowner contracted the virus based on exposure to an asymptomatic individual using the pool with them and the person died. The association could be subject to a law suit that could cost the community 10’s or 100’s of thousands of dollars. All of that money would come from all the homeowners collectively in the form of special assessments. The association is being guided to err on the side of caution in this case and keep the pools closed.

You are correct their are no laws requiring the association to keep the pools closed. What other communities do really has no bearing on what your board does. They have a duty to treat each homeowner fairly and to act in what they truly believe is the best interest of the association and the community as a whole.

While I’ll often disagree with decisions of boards that act in their own self interest, I believe that your board is acting responsibly and do not find it appropriate to second guess this decision. Their job is not to make everyone happy because that is an impossible expectation. Their job is to act in the best interest of the community as a whole.

Dennis

Well, not anymore. The ADRE ALJ has decided that HOAs do not need a CC&R to write a Rule/Regulation and that is now law, evidently. My breach of contract lawsuit in Pinal County Superior Court judge as adjudicated that, if the ADRE ALJ says you don’t need a Restriction to write a rule, then my breaking the rule that was not based on any Restriction was still valid and has the force of a Restriction. I have fought this for well over a year and I guess I have to give up. If Arizona no longer requires Restrictions to write Rules, Texas is looking better.

So if a new management company took over the hoa after 2016 would that make the parking policy null and void?