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Board of Director Term Limits

What is your coalition’s position on term limits for HOA Board of Directors? Do you think your coalition would have a good chance at persuading legislators in the 2019 legislative session to enact a firm...
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  • From Dennis Legere on Notwithstanding Meaning and ADRE Complaints

    Nick;
    Unfortunately the law provides for a minimum requirement, that any record can be viewed upon request, and the association cannot deny you access to those records. While access to community documents is the single largest complaint in any petition to the ADRE, it is a very simple task. You can request a copy of the records and the association cannot charge you more than $0.15/page.

    Specifically to your question the statute does not require the association or it’s manager to do anything more than provide you access. It however does not prevent them from doing do if they desire.

    What i have found is that if the association keeps the record electronically that they may simply find it easier to also provide you an electronic copy of that records, simply by asking. While they do not have to provide you that record electronically it is much easier than printing them out and then making a conference room available for you to view them and having someone sit with you while you do that. The better the relationship and the more reasonable the request the better the response will be by the association.

    I actually had a manager testify at an administrative law judge hearing that she would have gladly simply sent the requested records electronically if she had been asked but instead got busy and did not have the records available within the 10 business days required by law. The judge did not buy the response because the manager could simply have provided the records electronically if she wanted too rather than failing to comply with the law.

    Another trick I’ve used and have recommended to other is if the association wont just send you an electronic copy of the record, set up an appointment to view the record and take pictures of them on your phone for detailed review later.
    I cannot tell you how many times homeowners have asked for records and had no idea how to review them when they got them. Do not expect the association or the management company to explain to you what the records say, especially financial records. Go to a record viewing with a plan and specific issues that you are looking for.

    Effective review of records can be a science, that is best approached systematically. Do not ask for more than you can reasonable review in 45 minutes to an hour. Start at a high level and gradually work down to greater detail if the high level review indicates something unusual, with more specific and detailed types of records. If you start with detailed records you will be lost after the first five minutes and never be able to see the trees from the forest. That why I always suggest they you start high and look for smoke then zoom in closer to find the fire.

    Hopefully this helped you and any other homeowner viewing this post.

    Dennis

    Go to comment
    2019/03/15 at 3:41 pm
  • From Nick on Notwithstanding Meaning and ADRE Complaints

    Dennis,

    Thank you for your comprehensive reply. Perhaps if fines were higher, HOA’s it would lead to less rogue HOAs.

    I have a question about A.R.S 33-1812, specifically A7 “Ballots, envelopes, and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.”

    Instead of physically going to inspect the ballots, does this statute permit the HOA Secretary or Management company to send a homeowner a .PDF copy by email of the completed ballots at no charge or to copy the completed ballots for the homeowner at no more than $0.15 per page? Trying to memorize how 100 people voted in a previous election sitting in a chair at an office is a daunting task.

    Go to comment
    2019/03/15 at 12:35 pm
  • From Dennis Legere on Notwithstanding Meaning and ADRE Complaints

    Basically everywhere in statute where the word “notwithstanding” means that that provision takes precedent over and supersede the referenced document. For example “notwithstanding any provision to the contrary in the community documents” means that the section of law following that statement takes precedent over and supersedes any contrary provision in the community document.
    The opposite position would be “unless otherwise specified in the community document” with this language the community documents take precedent over the state statute provision.

    I will add that under property servitude’s law any provision in the community documents that is contrary to state law must be removed from the governing documents, because a covenant that is illegal cannot remain as a restriction on the free use of the land. Each and every board is empowered to unilaterally change the governing documents even the CC&R’s without member involvement to comply with the law , yet I’ve never seen one do that.

    Relative to the ADRE and ALJ dispute resolution process, if the petitioner prevails and wins his case the respondent must pay the petitioner the $500/issue that he paid to file the petition. I will note that it is $500 per issue with up to 4 issues per petition. So if the petitioner has 4 issues it will cost him $2,000 to file and then each issue is decided separately. If he prevails on all 4 issue he will be paid back the full $2,000.

    Fines are rarely applied and for the most part have averaged about $500 per issue. Up until about a year ago my case against my association resulted in the largest fine ever placed on an association by an administrative law judge and that was $2,000. I will note that i had asked the judge to fine the association $500 for every time that they violated the law in the last year and that would have resulted in about $23,000 in fines. Last year one case was heard that resulted in a fine to the association of $5,000 and that still stands as the largest fine awarded for a HOA related case.

    Hopefully this answers your questions. If not feel free to ask more.

    Thanks
    Dennis

    Go to comment
    2019/03/12 at 5:41 pm
  • From Dennis Legere on Board Agenda and Annual Election Tie

    Shelley
    If I understand what you were saying that an individual ran for a board position was put on the ballot and after the individual was elected by the members the board determined that he was never qualified to be on the board because of his ownership status. Does he own the home in your community or is he the owner of record? I don’t understand what you mean by beneficiary deed. Did the original owner die and leave the home to this individual or this individual and other? If that is the case it would seam to me that he was the new owner

    Quite frankly it is the responsibility of the board to determine the qualifications of any board candidate prior to the election. Once elected by law the only way to remove an elected board member is via petition from the members to do so. The bottom line is if they are elected by the members they can only be removed by the members. While most communities have qualification requirement for board members that test should be determined prior to placing that individuals name on the ballot. the only exception to this general expectation is if the candidate was a write in candidate that was not previously screened by the board. As I always state I’m not an attorney but if I was in the individual homeowners position I would challenge the action of the board by petition to ADRE as a violation of ARS 33-1813.

    Dennis

    Go to comment
    2019/02/26 at 11:10 am
  • From Shelley on Board Agenda and Annual Election Tie

    This is exactly what happened in our last elections. The board came back post vote and deemed a member of my household ineligible to be elected because he’s on a beneficiary deed and they decided that wasn’t sufficient. Never mind that he’s been allowed to vote in prior meetings. It was a retroactive eligibility decision just keep someone off the board. Would anyone else consider this electoral malfeasance on the boards part?

    Go to comment
    2019/02/26 at 9:09 am
  • From Dennis Legere on Board Agenda and Annual Election Tie

    Nick,

    Neither the planned community act nor the condominium act specifically addresses this issue. I have proposed legislation this year to make this clear in the applicable statutes. What is clear is that the open meeting laws for public bodies do in fact limit any and all discussion in open meeting to item specifically included and identified in the agenda for that meeting. While i’m not an attorney there is legal precedent that if a statute is silent on an issue one can go to similar statutes for guidance, even if the two statutes are directly cross referenced. See Attorney General opinion 97-012. I will say that there was never an legislative intent to make the very strict and restrictive open meeting laws for

    As for the president controlling the agenda, this is the typical process and power given to the board president. They mostly ask for any request from the other board members but are not required by any law or rule to include those suggested topics. Having said that i will say that ignoring he request of other board members is highly suspect and the board should consider calling for a vote to remove that board member from that office. He would still be on the board but no-longer the president. Remember it was the board that elected the officers not the members and the board can remove any board member from any office by a vote of the board.

    As for the election process your Bylaws should have guidance on that issue it is not and should not be addressed in law. If the bylaws are silent on that issue than the board has many options, they can run a run-off election between the two candidates for the last position. They also could if the bylaws allow, have both the candidates added to the board at least for one term. This would most likely cause the overall board population to be an even number which could cause issues in the future, with quorum and tied votes of the board.

    What cannot happen is anyone on the board deciding who is the elected board member, for any reason.

    Dennis

    Go to comment
    2019/02/06 at 6:01 pm
  • From Dennis Legere on HOA Planned Community authority over public roadways

    Eva
    You are absolutely. Correct. That statute was written to grandfather any association who’s declaration was recorded prior to the effective date of that legislation. You are also correct that any association that modifies its declaration and records that amendment would loose that grandfather protection and also lose the ability to regulate roads that are public property and not private property. Simply invoking Rules does not trigger this action.

    Dennis

    Go to comment
    2019/01/23 at 1:40 pm
  • From Dennis Legere on Illegal behavior?

    Joseph.
    Under Arizona law any board member may be removed from office with or without cause except a board member appointed by a declaration during the period of declaration control., by only one process. That process is one where a petition is approved by 25% of the voting community to request a meeting of the members to vote for the removal of that board member or members. The majority of members voting decides the issue. Your questions relative to the legality of actions described i’ll Not comment on because I’m not an attorney. The fact is if you want a board member removed circulate a petition to have the board call a special meeting of the members to accomplish that. If you.cannot convince 25% of the voting members to do that then you have more work to do either convince the homeowners of your concerns and fact or you have to wait until the offending board members term is over and convince your fellow homeowners to elect someone else.

    Go to comment
    2019/01/22 at 2:09 pm
  • From Dennis Legere on PRODUCING FINANCIALS

    Joseph;

    Assuming you are in an HOA the state law is clear. The association must provide access to any association record within 10 business days of a written request fo those records. There could be nothing clearer in all of Arizona Law yet record request are by far the violated provision of HOA governance and the single most litigated issue. Make your request specific and reasonable , for example do not ask to see all financial records since the beginning of time. What I always tell people in requesting records is be as specific as possible. Don’t go on fishing expeditions. And don’t ask for records that you will not be able to understand once you get them. Know what you want to ask for and only ask for that. One important point to remember is that the association is under no obligation to create a record that does not already exist. So don’t ask for a summary of multiple years of information if that summary does not exist. If at all possible stray within the current year to keep the request reasonable and to allow the association to obtain the information in a timely manner. The law only requires that the association make the records available for you to review. It does not require that they give them to you. If you ask for a copy of the records they are allowed to charge you no more that $0.15 per page. If you want copies ask for them up front. If you would like electronic files sent to you in e-mail there is no harm in asking, they are not required to send you electronic files. But in many cases it is easier for them to do so, if their records are electronic.
    The is specific with the request being written. An e-mail is acceptable as a written request but can be argued that they never received the request. So you want to make sure that you have a record of the associations receipt of that request. Some e-mail programs allow for read receipts to be provided. If not and if for some reason you believe that the association will ignore your request then send the request by certified mail for the proof of receipt. If the association does not respond or does not provide you access to the requested records, I would provide them a simple e-mail reminder that the law either ARS 33-1258 for condo’s or ARS 33-1805 requires that they provide the requested records in 10 business days and if they fail to do so you will file a petition to the Arizona Real Estate Commissioner to force them to do so. That will end up costing them $500 if they are forced to provide the records and comply with the law.
    This petition process does not require an attorney , but will cost you $500 per issue to pursue. If you prevail the association will be forced to pay you back your application fee. See our reference information page for all the information about the commissioners dispute resolution process.
    Thanks
    Dennis
    PSJoseph actually called me after his post and I was able to answer his questions directly. This response is for everyone else’s information and use.

    Go to comment
    2019/01/22 at 1:05 pm
  • From Joseph Allan on Board Members verbally abusive toward homeowners

    I have a board HO meeting in March and plan on bringing up serious safety and financial issues. I am told to expect the same treatment as described above.
    One for the questions is to show the Homeowners proof of funds in deposit for the HOA. I am told that the Secretary will not produce the doc’s
    Other than hire a lawyer. What can I do?

    Go to comment
    2019/01/22 at 12:07 pm
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