From Vehicle parkingon
I just realized that I never responded to your question from August. You are absolutely correct this is nothing short of harassment and you could walk into any municipal court and file a complaint against harassment by the association. Hopefully you have the documented proof from the prior cases and attacks by the board.
Unfortunately HOA’s are totally dictatorial entities with no oversight so they get to decide what laws they want to comply with and which laws they simply want to ignore because they can for the most part get away with violating the law.
The insurance does not indemnify them the CC&R’s and bylaws provide the indemnification. Corporate law also provides indemnification to some extent as well. Property servitudes law provides a definition of what are the duties and responsibilities of any HOA board . Those duties are case law for Arizona and I have been trying for several years to make them statutory law as well. That definition is very simple and required that the board treat all members fairly and that they act reasonable in their Discretionary enforcement of rules and design controls. They can be individually liable for any breach of those duties but the burden of proof is on the individual contesting their actions.
Until such time that the community members elect a board of directors willing to comply with the law you will unfortunately have to fight this issue until you move out of your home.
While I work to make the laws of this state consistent with the National common law over these communities. HOA property managers and attorneys have no interest in advising the HOA board based on common law because it does not work in their financial interest and they don’t have too because it would take someone suing the association to actually enforce that law and they know that most people don’t have the money to do that and they can get away with it.
I know that this does not help but unfortunately you will continue to have to prove to each new board that you have the authority to park your van in your community.
You have to remember one thing ADRE can only address violations of the law or violations of the governing documents. The association violated the law only if they prevented anyone from recording meetings. Just because they said that they would allow members to view the recordings and then failed to do so does not violate the law in and of itself.
Your Articles are unusual but a quick check of the ACC’s web site for the status of your association would answer your question. CC&R’s also have a typical validation period, but they auto renew so it is a meaningless provision.
The proposal from a management company for consideration by the board would be proprietary and therefore confidential and excluded from records request under the law. But once the association signs a contract with that management company it is a record of the association and subject to records request under the law. Like I’ve always said most management companies could be replaced with trained monkeys and you would get the same service. Because a management company or manager says something does not mean it is true or in any way valid it is simply what they were told to say.
Thanks, Dennis –
No, you didn’t miss answering. I posted to something I posted in Feb re taping of BOD meetings. I’m going to file a complaint with AZDRE tomorrow or the next day. Like you said, it will be a slam dunk. Not only do I have written proof, I have video proof where the BOD said we can “make an appointment to view the recordings with a board member”. It’s ridiculous. And I really do appreciate your help.
I have two more questions.
Our Articles of Incorporation were formed in 1975. In it Article V states: The commencement of this corporation shall be the issuance to it of the Certificate of Incorporation by the Arizona Corporation Commission, and it shall endure for the full term of twenty-five (25) years thereafter unless said term shall be hereafter extended in accordance law.
Is our Corporation invalid?
We want copies of contracts with the management company (Amcor Properties). They say that their contract with the HOA is proprietary and and won’t be given. Seems to me this is illegal. I’ve read 33-1805 and there are very few exceptions for withholding records and “proprietary” isn’t one of them.
One more thing. They (Amcor) and the HOA claimed to have had a “noticed” meeting on June 7. We (some of us homeowners) know, without doubt, that that meeting actually took place a week earlier on May 31 with ONE homeowner present. It wasn’t noticed. We were told that that meeting (June 7) was posted in our clubhouse (which is closed) and on their website (nowhere to be seen) and emailed (doesn’t exist).
These people, the HOA and management company, are clearly acting without regard to law. It’s amazing to me that there is no state or any government oversight of HOA’s.
Sorry for the rant.
I sorry if I missed your post in February. that is something a very seldom do but sometimes they get by me. So i take it that the association has recorded meeting and you are asking for copies of those recordings. The way that i structured the language in the bill that passed in 2016 is that the board cannot prevent any homeowner from recording any meeting of the board, unless they record the meeting and make that recording available to any homeowner wishing to get a copy. The fundamental premise is that the homeowner has a right to record and the association cannot abridge that right unless they record the meeting for the homeowners and provide them a copy of that recording. The loophole in that law is that if the association does not prevent any homeowner from recording and they record the meeting for their own purposed, there is no obligation for the board to provide copies of that recording to the members.
The crux of the issue will be if the association records the meeting does that recording become a record of the association obviously your association will be arguing that the official record of the meeting are the minutes and the recording are simply used as an aid in developing the minutes for that meeting. That is an argument that they will probably win. The key to your case is did prevent any homeowner from recording the meetings in question if the answer to that is yes then you have a slam dunk case. They violated the law in not making those recording available to any member.
If however the answer to that question is no than you have no real case unless for some reason the association has made those recordings association records.
While i can provide you no legal advice you need to decide if the association denied anyone the right to record the meeting in any way and then denied any member access to recording they made of that meeting. The ALJ can only rule on direct violation of the law and unless you can prove that the association violated the literal language of the law you will be throwing away your filing fee.
You all have the right to record any meeting and to use that recording in any way and share that recording with anyone that you chose. That is what I fought for in that bill. The association has the exact same right to any recording they make for their own purposes. Because you chose not to record a meeting does not mean that the association must share any recording that they made for their own use.
What would you say if the association asked for a copy of your recording of a meeting? What i would say is if you wanted a recording you could have recorded the meeting on your own, you have no right to my personal property.
A couple of us are getting ready to file a complaint with ADRE re the tapes the BOD made and will not provide copies to any of us. I have filled out the forms and have included an email thread between the property management company (Amcor). Is there anything I should know or be prepared for? Should I have an atty review the forms?
I also have been a victim of HOA’s and the ARIZONA DEPT OF REAL ESTATE AND SUPERIOR COURT….ALL ARE INCOMPETENT AND BIASED AGAINST HOMEOWNERS.
The plight of the homeowners is real and a very difficult fight within the legal system because so many laws all favor the associations and the association has little to no accountability to the law. This is what we try to change. To change the balance of power in these communities and protect the homeowners fundamental right. It is easy to blame the ALJs or Superior court judges but until such time that the homeowners in this state get involved and do something to change the laws there will be no justice for homeowners in any of our courts. This is what I try to do, I’m already meeting with legislators even before the election to get legislation introduced in January that will protect our rights in these communities. Whenever I ask the members to raise their voices in support of our legislation the silence is deafening. We have over 630 members of this coalition but I can only count on about 3 dozen people to actually get involved and voice their support of good legislation or their opposition of bad legislation. Every one wants help from me when they have problems but very few are ready to work for changes that help the other 3.5 million homeowners who live in these communities.
We all need to stop being victims and start being change agents.
From Parking CC&Ron
Unfortunately your assumption is incorrect the right to regulate the streets is not based on changes to the rule for street parking but rather any change to the CC&R’s. If a new set of CC&R’s or any change to existing CC&R’s for any reason is recorded after December 31 2014 than the association loses the rights granted in the CC&R’s to regulate the public streets or to regulate parking. The HOA Industry will and has on several occasions argued that the intent of the existing law was to only apply to new associations, but that argument is totally self-serving and based on no actual fact. What the law says is any recorded CC&R after that date abolishes the power of the association to regulate public streets. Any CC&R whether it is an original set or a simple editorial change must be recorded to be effective. If the law intended to apply only to new CC&R’s it would have said “Initial recording” So once again the HOA industry is wrong including the self-serving attorneys. They want homeowners to challenge their interpretation in court even if they are proved wrong because guess what they make a lot of money from that legal action even if they are proven wrong. They is only one party that ever wins in any HOA dispute or legal actions The HOA attorneys.
My community has no street parking which reviewed my cc&rs. I like some other homeowners own a truck that won’t fit in my garage and is within the required dimensions based on CC&RS. However, my HOA has decided without A member vote to impose towing and fees due to my vehicle being parked in my driveway which is short in length. (What is the required length/depth of a driveway in AZ) It does hang 3 inches over onto the sidewalk. I feel like I and other homeowners are being targeted for owning trucks. It is AZ and I’ve owned a truck most my life.
If the association own the streets they have a right under your CC&R’s to regulate and control the streets as they see fit. If they do not own the streets but the CC&R’s allow them to control the streets than they can do so as long as they have not modified the CC&R’s since December 2014 for any reason. If they have they lose the ability to regulate the streets. The board alone decides what is done with the common property and no member vote is required in any way. If you don’t like what the board does then you can remove them at the next election or with a recall special meeting.
Unfortunately the CC&R’s and all the association controlling documents are a contract that were a condition of buying your home in that community. Far too many people do not read the governing document prior to buying their home then find themselves in a situation that they believe is unreasonable and unfair. Your situation appears to fall in that category. The association did not decide to buy a truck that does not fit in your garage or driveway you did. Now you want the association to make an exception to the rules of the community to accommodate your choice. While the association has discretionary power to make that exception they are in no way obligated to do so under the law. Your best option is to organize all the other homeowners in the same situation and respectfully request that the association board apply their enforcement discretion to allow you to park your vehicle in the driveway even though it extend slightly beyond the drive way. Doing this as an individual has little chance of success but trying this with a large group increases the chance of success. Remember to do this respectfully as they have absolutely no obligation to honor your request.
thank you Dennis. That’s what i’m looking for, and I have some research to do.
I’ve tried to base most of my work in the HOA arena on the fundamental principles of Property Servitudes Common law as stated and defined in the Restatement of Law third Property Servitudes issued in 2000 by the American Law Institute. That restatement dedicates chapter 6 and most of volume 2 to Common Interest Communities. In sections 6.13 and 6.14 it establishes that the business judgement rule applicable to most corporations does not apply to these communities and instead defined the duties of a board to the members of the community and the duties of the board to the association within those identified subsections.
Those definitions became case law for Arizona in Tierra Rancho v Kirtchikov. You can find that decision under our resources and tools tab and HOA case law.
The board has the absolute authority for decisions relative to common area because that common area actually is the property of the association. But that does not mean that it has to make those decisions in a vacuum and without input from the community.
Let’s talk about your tree. Because an individual complained about a tree does not mean that it has to be removed. You have to appreciate the inherent beauty and benefit to the community of a mature tree and how long that tree took to grow to its existing size. Any tree has inherent value to a community that cannot be lost to a complaint by one homeowner of the droppings from that tree. Like I said earlier you can never make everyone happy with any decision that you make for the community. So don’t even try.
As for liability because someone has complained, that fact alone has absolutely no relevance to your decision. The complaint was not about safety but rather about leaves dropping in his pool. Having said all of this in my opinion the only reason why any tree should be removed is because of real and eminent threat to the safety of residents. Because a branch could fall some time in the future is not a reason to remove a tree, if it was every HOA would be wise to remove all trees from their property making them barren waysides absent of any shade from the Arizona sun. Why would this be in the best interest of the community? One of the purposes of HOA’s in the first place is to protect the property value of the homes in that community. What would be more attractive to you as a home buyer a community of homes with abundant mature shade trees, or one without any trees at all. Your answer to that question will tell you how you should approach decisions about removing a tree to the property values of the homes in your community.
If a branch is weakened and poses a threat to anyone remove the branch but save the tree. This is simply common sense that no court would ever question. As a board member you have an absolute right and duty to independent decision making. You do not have to follow the lead of anyone other than your own conscience. That is why boards are always made up of an odd number of members so that stalemates do not happen. Having only two members is a disservice to your community and should be remedied at the earliest opportunity. I would also bet that it is a requirement of your bylaws. Under no circumstances should an HOA board consist of only one member, especially if that member see’s himself or herself as the all powerful deity for the community.
We are a small community established in 2006 and have an expensive septic system unlike the typical ones. Our CCRs state the HOA is responsible for maintenance and monitoring of the homeowner’s individual septic systems.... Read More