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Illegal behavior?

I understand that a board member can be removed for illegal behavior concerning the HOA. 1. Is performing repair work requiring a permit and not obtaining one Illegal? 2 Is hiring for work done exceeding...
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  • From Dennis Legere on Are Assessments, Fines and Legal Fees due from the Seller to an HOA due from the Buyer on Closing?

    Mike;

    The association is required by law to provide the closing agency a true and accurate accounting of the current owners account to the HOA . The current owner is required to close out and true up that account unless he/she has negotiated a separate arrangement with the buyer. If the association failed to provide the true and accurate accounting to the closing agent than those liens and assessment are extinguished under ARS 33-1807 and cannot be made a liability to the buyer. While i’m not an attorney it looks to me like someone dropped the ball and did not provide the closing agent a complete accounting of unpaid fees from the buyer. Without a better understanding of the specifics on the specifics of the individual case, i can only answer in generalities.
    Generally with a true and complete accounting of what the seller owes the association the association is paid out of the proceeds of the sale by the title agency. As mentioned earlier where the buyer and seller directly negotiated a different payment scheme. But in either case the association is made whole via the closing agent.
    If that did not happen then the association has lost any rights to that debt, if they attempt to collect that debt from the buyer the buyer would have cause of action against the association or the seller or both based on failure to comply with ARS 33-1807 and 1806.

    Hopefully this helps.
    Dennis

    Go to comment
    2019/07/03 at 8:37 pm
  • From Dennis Legere on What is a change to CCR&Rs

    Dennis;

    It is impossible for me to answer this question without a better understanding of the context in the CC&R’s. While the board has the right to interpret the CC&R’s as this appears to be they do not have the right to unilaterally change the provisions or restrictions in the CC&R’s. If you could provide me the specific sections where the term “short term” is used i’ll be able to provide you my take on the language and the impact of the boards interpretation. Send them to me at help@azhoc.org.

    Thanks
    Dennis

    Go to comment
    2019/07/03 at 8:21 pm
  • From Kathleen Oehlberg on Removal of 25+ Yr Old Rubber Tree

    Update: It is July 3, 2019 and I have not received a copy of the meeting minutes showing the discussion of the rubber tree removal and the subsequent approval to do so. Our property manager keeps telling me they are not approved yet. I also requested that dying plants be replaced in the same area as the rubber plant, but have had no response since May. Any thoughts?

    Go to comment
    2019/07/03 at 1:29 pm
    • From Dennis Legere on Removal of 25+ Yr Old Rubber Tree

      Kathleen;
      This is where association boards hide behind their attorneys to deny homeowners access to meeting minutes. Under Corporation law the meeting minutes are not a community record until they are approved by the board. Most boards in corporations however approve meeting minutes within days to the board meeting they do not wait for the next board meeting that could be months away to approve the minutes from the last meeting. Corporation boards have no open meeting laws and allow board members to take action without a meeting by phone or email. With a public body like a city counsel they are required to post the draft minutes within 10 days of any meeting. This is where the attorneys get to pick and chose which statutes they advise their boards on.

      If the board truly had an interest in informing the community of the actions they took at meeting they would post draft meeting minutes or at the very least make those available to any member upon request. But many don’t, so they hide behind the fact that HOA and Condo open meeting laws are currently silent on meeting minutes and they take the position around the records request laws by simply stating that draft minutes are not official community records until they are approved by the board. I’ve attempted to change our open meeting laws relative to draft minutes to ensure that they are made available upon request within a reasonable time after any community meeting. I will continue to push for such legislation until we get this clarified and eliminate this loop hole and lame excuse to eliminate transparency in this governance scheme.

      Dennis

      Go to comment
      2019/07/03 at 8:56 pm
  • From Lynn Rutman on Harassing letters from HOA

    Hi Dennis: I would like to schedule an informal meeting with the other two board members in my home in order to identify issues that are important to our community and to brainstorm possible solutions. Anything we discuss would be presented to the community at the next board meeting. I just think it would be an efficient use of our time to try to identify any issues we need to address.

    One board member, the treasurer, thinks its a good idea. The other board member, who is the HOA president, fears the meeting violates the open meeting law.

    I would love to hear your thoughts on this matter. Kind regards, Lynn Rutman

    Go to comment
    2019/06/26 at 8:44 pm
    • From Dennis Legere on Harassing letters from HOA

      Lynn;
      As long as the meeting was not attended by a quorum of the board it is allowed under the open meeting laws for Arizona. The key point for the open meeting law in ARS 33-1804 is that a quorum of the board participates to be considered a meeting subject to the law. No quorum no meeting subject to the law. If your board consist of 5 members two board members does not constitute a quorum if your board consist of 4 members that 2 members would constitute a quorum and such a meeting would require notice and invite to the community membership, along with all other provision of that statute.
      If appropriate and your board is still interested let me know by email to help@azhoc.org .

      Thanks
      Dennis

      Go to comment
      2019/06/26 at 9:02 pm
  • From Lynn Rutman on Harassing letters from HOA

    Thank you Dennis. I will absolutely read those. You and AHC are an invaluable resource. It is comforting to know there is someone to reach out to when these situations arise. Sincerely, Lynn Rutman

    Go to comment
    2019/06/25 at 7:55 am
  • From Lynn Rutman on Harassing letters from HOA

    Thank you, Dennis! I so appreciate your help and expertise. Now that I am on the board, what would you recommend for me to read/study? The bylaws, ccr’s …. are these recorded at the registry of deeds? Cadden has a website that lists the rules of our association but I’m not sure I should trust anything they post. Are there any specific provisions of Arizona law I should familiarize myself with? I really hate having Cadden explain what the rules are. Lynn

    Go to comment
    2019/06/24 at 8:56 pm
    • From Dennis Legere on Harassing letters from HOA

      Lynn;
      Obviously start by reading the CC&R’s and Bylaws of your community. Only the CC&R’s are recorded but simply ask the community manager for all the most current documents. After that Know that Arizona has laws that also govern your community. I’m assuming that you are in an HOA so ARS (Arizona Revised statutes) title 33 Chapter 18 applies to your community. If your read nothing else in the Arizona Statutes read sections ARS 33-1803, 1804, & 1805 for , assessment and violation notices, open meetings laws, and records request respectively. in the future if you have any specific question ask me and i’ll provide any additional references for you to review. If you get any advice from your community manager that does not sound fair ask me about it. Your board has hired the community manager to handle the business of the association including the finances. You must always remember the adage, “trust but verify” The responsibility for the community affairs belongs to the board and the board is accountable even if the community manager screws up. Some level of board oversight is required for everything the community manager does for the community especially finances and code enforcement.
      To whatever extent that you can have the time to do so don’t simply let the community manager ever explain to you the rules. read them for yourself. You would be surprised how many times they get it wrong. No matter what management company is involved.

      Dennis

      Go to comment
      2019/06/25 at 5:52 am
  • From Lynn Rutman on Harassing letters from HOA

    Hi Dennis: I became a board member last week. It was my first board meeting. Cadden ran it like they were completely in charge. The property manager typed everything that was said at the meeting as if she were a court stenographer. It was very strange. I blocked her attempt to change the language of the cc&r’s. She actually wanted to change the language pertaining to the number of board members required for a quorum. I can only imagine why. Afterwards the board members and manager had a closed executive session to discuss violations. I was amused to discover my husband and I had another frivolous violation from June 5th. No letter was sent to us but she opened a violation anyway. Total incompetence. I can handle the violation issue …. I convinced the board to brainstorm better ways to handle issues that arise. My question to you is do you have any advice, books to read, etc. that might be helpful in my new position? Also I have introduced myself to neighbors and encouraged all to attend meetings. I started a Cadden-free Facebook page for residents this weekend. I understand there was one in the past and lots of community involvement but Cadden shut it down. I’d like to see them try it this time. Kind regards, Lynn Rutman

    Go to comment
    2019/06/24 at 6:15 pm
    • From Dennis Legere on Harassing letters from HOA

      Lynn;
      Let me start by thanking you to volunteer to be a board member it is a very difficult and often thankless task. Despite all your efforts simply accept the fact that you can never make everyone happy all you can do is simply act in what you truly believe is the best interest of the community and that is all anyone should ever ask of you. I’ve seen the behavior that you describe far too often especially from managers from this particular company. Remember this, the management company works for the board not the other way around. They have only the authority to take actions specifically authorized in the contract or by action of the board. The community manager has absolutely no authority to change CC&R’s, bylaws or even rules. They don’t even have the authority to interpret rules of the association, only the board can do that.
      State law requires specific due process relative to citing violation of the community document i would recommend that the board require the community manager to actually read the law and not to rely on the crap advise and training they received from their company or AACM or especially CAI. The fact that the community manager recorded an alleged violation without ever notifying you of that alleged violation and providing you an opportunity to contest that violation to the board, violates state law. This is one thing that you want to be very careful with, many bylaws have provisions relative to the qualifications to be a board member, some include a requirement that a board member be in good standing and have no violations. I’ve seen far too many good board members removed from their position illegally based on alleged fabricated violations. I simply make this one statement state law allows for only two ways for duly elected board members to be removed from office, and that is by the board member’s resignation and the other is via a petition initiated by community members for that board members removal. A standing board member once elected cannot be removed by action of the board. This provision has been upheld in many cases by the courts. That does not however stop community managers or tyrannical board members or their attorneys from attempting that tactic. Just be aware.

      If ever you or any other board member wishes to know the truth about their responsibilities or how to deal with community issue i’ll gladly help in any way that i can not as an attorney but as an informed advocate for peaceful and fair communities.

      Dennis

      Go to comment
      2019/06/24 at 8:12 pm
  • From Dennis Legere on Reversing or Repealing and Rule or Regulation created by the Board of Directors

    Eva;

    You are correct there is no specific statute addressing this issue in Arizona. Arizona and most CC&R’s do allow homeowners to call for a special meeting of the members to conduct any business of the members. There is nothing that stop a community from petitioning for a special meeting of the members to reverse a board decision or rule. if you first get the necessary petition signatures and they can make sure that a quorum responds in person any by absentee ballot and prevail on the vote then as a non attorney believe that you can reverse any decision of the board that the members elected and put in place. If you have accomplished this and the board ignores this, you have already demonstrated the capability to do everything that is required to remove the entire board and replace them with community members that actually listen to their community. The petition and quorum requirements are less restrictive on a vote to remove the board than are required for a special meeting called by the members.
    While the board is empowered to act for the association it still has the fundamental duty to act in the best interest of the community and simply ignoring the expressed wishes of the community because of a God complex by board members simply begs for removal of that entire board. You have that power now utilize it.

    We have several priorities for legislative action in the future but are always open for more suggestions and i’ll see how i can factor them into our plans and capabilities in the future. I need resale disclosure reform and i need open meeting and voting reform to allow homeowners complete transparency in the conduct of business in their communities and to protect the fundamental right for each homeowner to vote and to have his/her vote counted relative to community business. We also have to find legislation to protect the freedom of speech for all homeowners relative to community business like advertising for informal member meeting or expressing opposing position to board actions or even posting signs for or against board candidates. Most associations ban all these actions in an effort to suppress any opposition to their proposed actions or candidates. They control the information stream and the communication techniques that can be used by the community to promote their agenda.

    To empower the community these are our highest priorities.

    Dennis

    Go to comment
    2019/06/24 at 4:30 pm
  • From Dennis Legere on Can HOA restrict street parking on public street?

    Mike;

    HOA’s have a fundamental right to write rules to control their common property, that is property that they actually own. However developers and their attorneys have frequently expanded that authority by simply adding in the CC&R’s restrictions on parking on streets that they do not own. If challenged in court these CC&R provisions would be found invalid on the grounds that they violate public policy. The city owns the streets they and only they can regulate those streets. I will not that if the CC&R’s do not specifically authorize street parking restrictions the association is not free to write rules that are not authorized in the CC&R’s. In 2016 the Arizona legislature made this fact clear, banning any planned community to place restrictions on the uses of streets owned by municipalities. See ARS 33-1818. The only problem with that legislation is that it grand fathered any CC&R restriction that existed prior to the enactment of that legislation. however if any change to the CC&R is recorded for any reason the provision on roadway restrictions are invalidated immediately.
    So to answer your specific question what you can do depends on your specific CC&R’s. If they contain clear restrictions on street parking than the only course of action you can take is to challenge the legitimacy of that restriction in Superior court with the assistance of a attorney competent in property servitude law, on the ground of “violating public policy”. If your CC&R’s contain no such restrictions but your association has enacted rules limiting parking on public streets then they are violating Arizona law and you can challenge that with a petition to the Arizona Department of Real Estate.

    hopefully this helps
    Dennis

    Go to comment
    2019/06/24 at 7:39 am
  • From lindaL on Harassing letters from HOA

    Lynn and Dennis; I want to thank you for this thread. I have had similar negative experiences with my Board and Cadden. I was recently served a Cease and Desist letter for ‘harassing’ Cadden mandating I no longer contact them via email or telephone. I am regulated to snail mail which of course is a delay tactic and punitive punishment as I pay for certified w/receipt mail to ensure it was received. I don’t know what the LEGAL definition of harrass is but I never swore, called names or made threats. I was attempting to hold the Cadden manager accountable for disseminating the approved minutes and went up the chain of command. The VP told me Cadden works for the board not the member despite the fact our fee pays their fee and the fee of the attorney the board utilized against me.

    Go to comment
    2019/06/18 at 9:55 am
    • From Dennis Legere on Harassing letters from HOA

      Linda;
      The fact is that the management company and the assigned community manager does in fact work for the board, and not the members of the association. The fact is that the association or the management company had no right to limit the communication methods to any individual, especially if the member was simply attempting to get information that they had a right to know. The association has a duty to treat all members fairly and equally and unless they limit communication methods for all homeowner they have no right to limit communication methods without real cause for any individual homeowner. Persistency in asserting your right will never be construed as harassment especially if it was accomplished respectfully. What I tell homeowner threatened with harassment charges for simply asserting their rights is to tell the management company or the attorney to go ahead and sue me. They will lose and look foolish in the process. They will also most probable do nothing because the threat was idle and for effect only.
      Having said this it is never appropriate to go up the chain of the management company with a complaint about the performance of one of their employees. You must file the complaint with the board and it is the responsibility of the board to investigate that claim and take any appropriate action with the management company. It is very rare that one person’s complaint will cause the board to take action against the community manager or company but multiple complaint from separate homeowners will most likely generate action. If a community manager is abusing you or denying you access to records or information he/she is probable doing the same thing to others. There is strength and protection in numbers, you are less likely to be dismissed and labeled as a trouble make if your issues are confirmed and repeated from multiple homeowners.

      Dennis

      Go to comment
      2019/06/18 at 1:37 pm
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