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Executive Mtg

The Board of Directors held an executive meeting to discuss a light repair proposal and a Management agent addendum. The Mgmt agent contract addendum deals with a negotiation between the Board and Mgmt agent regarding...
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POA and white roofs

I live in a POA association which encompasses many homes. 4100 lots are covered Welcome SRP, our electric supplier, is offering a rebate for home owners who coat their flat roof white as an energy...
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HOA Landscapers

Hi, The HOA landscapers recently dug up 8 plants from behind my wall. I had a landscaper designer measure my property line with a measuring wheel and based upon his measurements, my property extends 7’...
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  • From Joseph Danielek on ARS 33-1813 A. 4. (g) request petition

    Good morning Dennis, association attorneys are infamous for game playing, which was the reason for my question that your response nailed… again. I’m calling the petition for a Special meeting of Members a REQUEST by way of signatures being called a petition for lack of another word to describe. The person that drafted the first Request got hung up on the word ‘petition’ confusing it with requests relative to Government action i.e. recall of an Municipal, State or Federal elected official; official initiative and or referendum that require specific petition formats and the requirement for the circulator to witness petition signatures, totally ridiculous. That said, again the first Request is littered with errors that I’m certain it will be rejected. Then we face the situation my question was about.

    As our POA is in a remote off-grid location consisting of 294 forty acres parcels (17 parcels to a section of land) checkered boarded with State Trust sections, organizing and communicating is difficult. We have a large number of Owners (70%) that are uninvolved and unaware as to what is going on. The Board has the power of the purse to send slanted mailers.

    As the revision to ARS 33 1813 takes affect October 30, 2023 the 31 day Board removal is in play. Plan is to let the submission of the first Request for the meeting to take place and if accepted great. The plan B Request – petition is ready to be mailed the end of September for a return date of November 7th. Copies will made to turn in, they will be arranged in parcel numeric order, listed on a master cover sheet to then be hand carried to the Statutory Agents office with a transmittal signature required by who accepts delivery. Clock, 31 calender days start day after turn in.

    Go to comment
    2023/09/09 at 8:46 am
    • From Dennis Legere on ARS 33-1813 A. 4. (g) request petition

      Joseph,
      You are absolutely correct on the effective date of the new law and the expectations of that law. Once you submit a petition with the required number of valid signatures the clock starts. There is no formal requirement for the petition and all it requires is to identify that the undersigned members of the association request to call a special meeting of the members for the purpose of recalling board members X, y and Z by name. (very important). You can request to recall one or all or any number in between but must identify each board member by name. This will require that the ballot for the special meeting will have to allow each member to vote for or against the recall of each identified board member. Other than that point there is no other format or process requirement needed for that petition. Because all your owners are remote you can have them individually sign a form and collect all those forms for the submittal.

      Dennis

      Go to comment
      2023/09/09 at 11:09 am
  • From Dennis Legere on Question about Open Meetings and Minutes

    Michael,

    While the association is free to close any meeting to receive advice from an attorney. The closed meeting would exclude any member from the community. The association board has a right to restrict access to their meetings for any person that is not a member of the community or a designated representative of a member of the community. This does not make those open meetings of the association closed meetings, as defined and used in the open meeting laws. All association meetings can be closed to any nonmembers unless they were invited including meetings of the members. The association should not try and use word games to get around the open meeting laws. There are only five approved subjects that can be considered in closed meetings of the board, everything else must be considered in open session. The public policy statement clearly puts the responsibility on the shoulders of the association board and community managers to construe any aspect of the open meeting law in favor of open meetings. If a board meeting is open to the members, they must allow any member to record that meeting, or the association must record it for everyone themselves. I know what this provision says because I drafted that provision myself. Because an attorney is present at the meeting does not negate the law. If the board wants advice from the attorney, they can go into executive session exclude everyone else and get their advice then re-open the meeting for the members. So, whomever stated that because an attorney was present no-one could record the meeting was absolutely wrong. If what you stated is true than this association is absolutely violating the law and the attorney that condoned and supported or directed this action should be disbarred or at least disciplined via a complaint to the Arizona Bar.

    I’m sick and tired of HOA attorneys believing that they have to right to create law where it does not exist. Only the legislature and the Governor create laws for this state and all attorneys are obliged as officers of the court to abide by those laws as written. No attorney is granted the authority to create a law or to interpret a law in a manner that is clearly in violation of that law. The Arizona Bar needs to hear about every time any attorney tries to do this. Every homeowner as members of the association has the right to file a derivative complaint to the AZ bar on behalf of the association based on the bad actions or advice from an HOA attorney.

    Dennis

    Go to comment
    2023/09/09 at 6:24 am
  • From Dennis Legere on ARS 33-1813 A. 4. (g) request petition

    Joseph,

    This provision in the law was very poorly stated and has led to many situations where association attorneys have improperly advised their clients that they can deny legitimate calls for a special meeting to recall board members.

    The petition does not recall the board member the meeting vote does. So if a petition is submitted and sufficient signatures are denied the required petition is invalid but that does not stop the community from resubmitting the petition for the special meeting with the required number of valid signatures. Members can petition for meetings of the members to do anything as long as the have the required number of signatures. That petition only requires the board to hold the meeting to address the issue requested by the members. A board member may not be subjected to a recall vote more than once in any term and that is the intent of the statute.
    if a petition is invalidated it is invalidated until the number of valid signatures are achieved. you do not have to redo the petition for any valid signatures you simply have to get the added valid signatures necessary to satisfy the number required. Once you do that the association has 30 days to call and hold the meeting for the members to consider and vote on the recall. If the board fails to call and hold that meeting and vote 30 days from the receipt of the petition the entire board is removed from office at midnight on the 31’st day.

    Dennis

    Go to comment
    2023/09/09 at 5:55 am
  • From Dennis Legere on Open Meeting

    Michael,

    The open meeting laws are in place for a reason and that is to ensure that the business of these communities is conducted with full transparency. The law requires that all actions of the board be taken in open meeting except for emergencies that cannot wait the 48 hours for notice. And that members be afforded the opportunity to speak on any issue before the board votes on that issue. While discussions of certain confidential nature identified in the 5 exceptions to open meetings can be had in closed session everything else violates the open meeting law. Phone or e-mail conversations or actions between a quorum of the board violate the law. The use of the non-profit corporation act provision for action by written consent except for emergency meetings violates the law.

    The ADRE dispute resolution process can be used by any homeowner to challenge any action by the board that violates the planned community statutes or the association governing documents. You must remember that you bear the burden of proof to demonstrate that the association violated the law, so the better prepared you are with evidence and witness testimony the more successful you will be in this venue. The associations do not have to prove that they did not violate the law, and they will use whatever they can to discredit whatever proof that you claim. So going in with circumstantial evidence or hearsay or assumptions will ensure that you do not win your case. With the ALJ it is not about what is right or what is wrong, it is only about what violates the law or the governing documents.

    Having said all of that, from what you have told me it appears that you have a good case against your association, but the devil is in the details and no real specifics were provided here. Write me at the address above and I’ll work with you to prepare for your petition.

    Dennis

    Dennis

    Go to comment
    2023/09/09 at 5:42 am
  • From Michael Holland on Question about Open Meetings and Minutes

    Dennis,

    Our board noticed an Open Board Meeting. At that meeting, the HOA attorney was present. We were told we could not record ANY of the meeting that the atty was present for. He stayed for the entire meeting, even while things expressly disallowed by “closed” meeting standards (like irrigation costs) were discussed. When challenged (at a later date) on the preclusion of recording of the entire meeting, the board and their attorney claim (after-the-fact) that the portions where the atty spoke were “closed”, even though there was no notice of that, no citation of statute to allow for closing the meeting, no formal board vote to change venue from open to closed session, and the minutes (approved at the next meeting) give no indication any portion of the meeting was closed, or that the meeting moved in/out/in/out of closed session as the atty spoke, sat silent during irrigation stuff, then spoke up at a later time.
    They have redefined the word “closed” to now mean “only members present” and so, by their new definition, the meeting was “closed” yet open to the entire membership at the same time. So that is a new work-around they have for ARS 33-1804 preclusion of recording during open meetings.

    Please share your thoughts.

    Thank You,

    Michael

    Go to comment
    2023/09/08 at 1:15 pm
  • From Michael Holland on Question about Open Meetings and Minutes

    Thank you Dennis for both your reply, and all of your effort on this matter I believe that all of us want to believe the best in people, but the fact remains some HOA boards just don’t even try to fall statutes. I greatly appreciate you putting in the right for homeowners to record open meetings I noticed that the law does not include that for close meetings however, I don’t see anything there precluding that, and since Arizona is a one party consent state, if I am present, could I also record a closed meeting?

    Go to comment
    2023/09/07 at 9:04 pm
    • From Dennis Legere on Question about Open Meetings and Minutes

      Michael,
      If the meeting was a closed meeting, you would not be present and only the board would be there. While Arizona is a single party state that only applies to public spaces. Because the association is technically a corporation a closed meeting t=of the board is not a public space and recording would be prohibited. An open meeting of the board could also be classified as such so that is why the law had to specifically allow it.
      Dennis

      Go to comment
      2023/09/08 at 6:22 am
  • From Amy on Question about Open Meetings and Minutes

    Thank you so much for your reply, Dennis! I actually do have a recording of the meeting which is how I knew for certain that meeting minute entry was not correct. This actually is not the first time the events of the meeting were improperly recorded in the approved meeting minutes, and I have recordings of every one of them. I’ve requested that they correct it, so we’ll see what happens.

    Go to comment
    2023/09/07 at 6:59 pm
  • From Dennis Legere on Question about Open Meetings and Minutes

    Amy,
    There is no current requirement that board must provide homeowners copies of draft meeting minutes. I hope to change that with one of my bills this coming year. Officially board minutes are not records of the corporation until they are approved by the board. The board has a duty to the association to maintain absolutely accurate records for the association. Anything short of that constitutes falsifying corporate records that is actionable by any member of the association. There is no requirement that the board make the minutes or any information that they are considering available to any member present at the meeting. It is very difficult for any homeowner to provide any valid comments on issues being considered by the board if they are not provided copies of those document beforehand. My bill will require that draft minutes be provided to any member upon request 10 days after any meeting. It will also require that certain significant issues to be considered by the board be made available to members 48 hours prior to the meeting.

    This is why I put into the law the ability of any homeowner to record any meeting of the board. The direct recording can then be used against the board if they attempt to falsify the record of the meeting and is absolute truth of what exactly transpired at the meeting, and you will not end up with issue like this. If you were to challenge the actions of the board in this case the burden of proof would be on you, and it would be your word against the word of the board members and the community manager.
    Right now all that you can do is remind the board that the minutes of a meeting are the official record of the actions of the board and if they do not reflect the actual votes and actions of the board then any board member that votes to approve those minutes could be found liable for falsifying corporate records. This is not a game and any attempt by the board to falsify actual motions or votes of the board has personal consequences.
    If the board took this vote outside the open meeting, they violated the open meeting laws. This is why there is an open meeting law in the first place, to ensure transparency in the conduct of association business and to ensure that homeowners have an opportunity to speak to the issue before a vote by the board.

    Dennis

    Go to comment
    2023/09/07 at 6:07 pm
  • From Amy on Question about Open Meetings and Minutes

    Hi Dennis,

    Is there anything that a homeowner can do if the meeting minutes that the Board approved, but did not share a draft of with the community prior to approval or during the vote, are not accurate?

    Example: our Board had requested the manager get bids for updating our Reserve Study. The manager got bids from 2 companies, said a 3rd company who we had never used, was 9 months out, but did not reach out to obtain a bid from the company that did our current study. The Board requested she get a bid from that company, and then moved on – no vote.
    The meeting minutes, which were approved 2 months later due to a “summer break” stated the Board voted to have the company who did our current study update the Reserve Study. No recording of motions or vote totals (because there wasn’t one).

    Because the Board approved these minutes, the management company could now give this company the work without the Board having ever reveiwed a bid or have knowledge of the cost, right?

    Go to comment
    2023/09/07 at 1:50 pm
  • From Dennis Legere on HoA Board Election restrictions

    Bob,
    Statutory law does not currently limit or restrict any provision that you described in this note. On the surface the process you described seems legitimate, but as with anything the validity of that process depends on how it is implemented. The current premise is flawed based on what constitutes eligibility or “good standing” Each community defines “good standing” differently and in many cases association boards or community managers thru selective enforcement of governing documents have weaponized subjective enforcement capability to eliminate eligibility of members to vote and to run for office. This is absolutely wrong and my top priority legislation for this coming year will be to establish statewide policy on the eligibility of any homeowner to vote or to run for office in their community. While the bill proposal is developed, and I have a sponsor for that legislation it is still a very long road that this legislation has to travel before it will be law for this state.

    To your specific question the answer is yes, it is legal, but it is still wrong because of the subjective nature of what constituted “good standing” and the ability of the association to weaponize that process to suppress any opposition to them and any candidate that wants to change the direction of the community.

    I will need the help of every member of this coalition and their friends and neighbors in their communities to help make this bill law.

    Dennis

    Go to comment
    2023/09/07 at 5:36 am