AZHOC - Arizona Homeowners Coalition
Voice for homeowner rights and justice.

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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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Homeowner

Have yet another question and this has to do with surplus funds from your HOA budget. Dennis and I have been discussing it. I’ve discussed it with my Association’s CPA and I guess now the...
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Homeowner

Need some information on how your HOA conducts your Board elections with absentee ballot and in-person voting. It’s actually been years since my community has run their elections in accordance with ARS 33-1812. Shocking. Yes...
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  • From Lynn on Harassing letters from HOA

    Thanks Dennis! I apologize if I sounded overzealous. I’m just so upset to learn our retirement is marred by such nonsense and stress. Hearing about others being bullied only added fuel to the fire. I’m feeling calmer now. Thanks for the advice, it’s been very helpful.

    Go to comment
    2019/05/05 at 8:53 pm
  • From Dennis Legere on Harassing letters from HOA

    Lynn;

    I edited your post to eliminate your email address , you probably don’t want to post that on the web site. While we go to great lengths to protect members identity and contact information. You can always contact me at the help@azhoc.org address. Management company employees and board members have both been involved in embezzlement schemes to often to count. That is why it is so important for homeowners and board members as well to “Trust by Verify”. As a board member it is your fiduciary duty to the community to ensure that the associations money that you take from the homeowners is protected and only spent on legitimate community expenses authorized by the board as a whole. Embezzlement only happens when people are not watching, either other board members or members of the community .

    It is my intent to energize the community homeowners to get involved in their communities. I will guarantee that the old adage of “what you don’t know can’t hurt you” in an HOA or Condo the opposite is more correct. “what you don’t know can and will hurt you eventually”. This should not be about a coup, it should be about a community helping their board make the right decisions. Clearly sometimes some boards or individual board members do not want any involvement or engagement of the community because they have a power trip and want to make all the decisions without any suggestions from the community.
    If a board or an individual board member refuses to listen to the input of the community he or she has no place as a board member and must be removed. Please do not attempt to remove a board member without first giving them an opportunity to change and actually listen to the community. No one wants controversy in their community, and a petition to remove a board member will generate controversy. But when it is necessary for the good of the community there is no avoiding it.

    Dennis

    Go to comment
    2019/05/05 at 8:42 pm
  • From Dennis Legere on Removal of 25+ Yr Old Rubber Tree

    Kathleen;

    Let me apologize for my delay in responding to your initial post, I hope that delay did not affect in any way the results that you mentioned.
    The decision to remove the tree had to be made by the board in an open meeting of the board, for which minutes must be published as a record of that meeting. You should request in writing to see the notice of the meeting and the draft meeting minutes for the board meeting that decided to remove the tree. Since you don’t know when that occurred you cannot request a specific meeting date. It is important to request both because if the meeting was not noticed it was illegal, and the decisions made at that meeting could be overturned. It is also important to specifically request the draft minutes because many associations claim that the minutes are not records until they are approved by the board at the subsequent meeting. This is totally bogus as any record created by the association is a record of the association even a draft or preliminary version.

    Why is this important, will this get your tree back? First it sends the message that the community is watching and paying attention to what is being done, and that this decision was not supported by the community and at the very least needs to be explained why it was done by the board.

    The last part is important to get many people to attend the next board meeting and to collectively ask the board to explain its actions. Please have someone record the meeting on their cell phone or a digital recorder. It is important that this is not just one person because one person is easy to dismiss as simply a disgruntled individual, this has to be a group. it will also help protect you from retaliation if they are so dispositioned. You can expect retaliation attempts from the management company because they stand to lose a lot of money if they are fired, but keep a record of everything that the manager says or writes to you and if they are harassing you show that to the board.

    You will not get your tree back unless you were to sue the board for their actions and force them to replace the tree at their own expense and not the expense of the community. It does not sound to me that you are inclined to pursue such an action. But if you do than please talk to an attorney first.

    Dennis

    Go to comment
    2019/05/05 at 9:39 am
  • From Lynn on Harassing letters from HOA

    Dear Dennis: First of all, let me say you are a peach and a lifesaver! Maybe a peach-flavored life saver! Secondly, thank you for all of this information. I don’t know what your background is but it is obvious that you are an expert! Thirdly, I would love to have you guide us or even lead us but I don’t think you should do it for free. Your know,edge and expertise deserves something.

    I’m not sure we have an accountant. I think Cadden handles the money which makes me nervous. I’ve heard of management companies stealing funds.

    What is the best way to proceed? I live next door to the HOA President. Should I just email her a request to fire the management company and if she refuses then proceed with the petition?

    Let’s talk more about the best way to stage a “coup!” Sincerely, Lynn Rutman

    Go to comment
    2019/05/05 at 9:27 am
  • From Dennis Legere on Harassing letters from HOA

    Lynn;
    The management company works for and contracts with the association as represented by the board. so no the community cannot vote out the management company but the board can fire them with 30 days notice, with or without cause. You would have to look at the specific contract between the board and the management company but every contract that I’ve seen has that clause.

    You best bet is to complain to the board about the management company or the individual manager and ask that the board take action to change out the manager or terminate the contract with the management company. If the board fails to listen to the homeowners and the situation persist than you are free to generate a petition to remove individual or all the board and replace them with people that will represent the people in the community. You need a petition signed by 25% of the homeowners and once that is received by the board they have 30 day to call for a meeting of the members to vote to remove how many board members were identified on the petition. The quorum requirements would only be 20% of the community and the majority of members voting in person or by absentee ballot decides the issue.

    The decision on so called professional management companies is one of convenience for the board. The board still needs to comply with the law and will need an accountant to manage the finances and taxes, and some type of individual to maintain the records and to coordinate the contractors to maintain the facilities. If your community goes that way I’ll gladly work with your board to share my experience in helping other communities do the same thing. All for free of course.

    Dennis

    Go to comment
    2019/05/05 at 9:18 am
  • From Kathleen Oehlberg on Removal of 25+ Yr Old Rubber Tree

    Thank you, Dennis. I wish I had found your organization in time for guidance. They removed the tree after we sent emails asking the Board not to. I have since requested meeting minutes
    showing decision and have not had response. I am very disappointed with our board members most of whom I have known for 20 years. It seems any complaints are grounds for a power play decision, with no responses to emails. Since the tree has been removed, is there anything else I can do?

    Go to comment
    2019/05/05 at 7:43 am
  • From Dennis Legere on Removal of 25+ Yr Old Rubber Tree

    Katheen;
    I can only assume that the rubber tree was on association common property. If you live in an HOA the common property belongs to the association and they have the right to do whatever that believe is appropriate to maintain it. This would include the right to remove a tree.

    This is what they can do but the real issue is what they should do. In a community of neighbors the board should seek advice and make decision about issues like this in open meetings of he board, where the input of homeowners impacted by this decision is actively sought and received. In no way should a management company make any decision to remove a tree. That decision must be made by the board acting as a whole and not by any individual board member. You simply do not replace a 25 year old tree overnight nor make a decision to remove that tree that probably preceded any home in the community.

    Any discussion on this issue in a closed or executive meeting of the board would have violated the Arizona Open Meeting laws for these communities.

    Write or call the board and ask that no decision be made to remove the tree without input from the community. Ask that it be put on the agenda for the next board meeting. Get your neighbors to do the same. Together hopefully you will all be able to work together, review all the facts and impact and make the right decision.

    This is how these communities should be run. With the emphasis on SHOULD.

    Dennis

    Go to comment
    2019/05/05 at 7:18 am
  • From Dennis Legere on Harassing letters from HOA

    Lynn;
    Sorry to hear about your situation, this is a pattern that is very popular by managers from Cadden Management. We have many people in that same plight. While these community managers get some level of training by the trade organizations it is simply token, and for the most part never even confirms that the prospective community managers can even read. Clearly anyone that could read would not site a violation for not removing trash can by midnight when they were removed by noon.

    The law requires that for any alleged violation of the community documents the association must identify the specific provision of the documents that were alleged to be violated and who by name observed that violation. You have 21 days to contest that violation by certified mail, and request a hearing before the board. You and you alone are allowed to chose if that hearing will be held in an open or closed meeting of the board. The association is also required to inform you that at any time in this process you can contest the alleged violation to the Arizona Dept. of Real Estate. I do not suspect that any of this was done, Cadden never does. And that alone is also a violation of the law.

    The simple fact is that many community management contracts incentivise the community managers to enforce the governing documents because the boards do not want to be involved in that process. The responsibility belongs to the board alone and the board assigns the responsibility to the community manager, you absolutely and all your neighbors all want to contest any violation and demand hearing before the board in open meeting where other members of the community will be present. This is the only way for these incompetent community managers to be stopped. Make the board rule on each and every alleged violation in an open meeting and i’ll bet that the nuisance violations and harassment will stop.

    Dennis

    Go to comment
    2019/05/05 at 6:25 am
    • From Lynn on Harassing letters from HOA

      Thank you, Dennis! We noticed yesterday they quietly closed the violation on line. I wonder if they will send us a letter too? How difficult is it to vote out a management company like Cadden? I’m hearing from neighbors that they have been very intimidated and unhappy for 8 years. Yet no one does anything about it. I’m told the residents had a Facebook page and scheduled hikes and events for the residents. Cadden fined them and ordered them to stop using the Rams Pass name. It had a chilling effect on the neighborhood. The hikes and parties stopped. I thought I would create a flyer to put in every residents mailbox asking them if they are being harassed and intimidated and asking them to come to a meeting and vote out Cadden. But do we have the power to vote them out? Are we stuck with them? Is there contractual liability here? I even wonder why we even need a management company. We only have 84 residents. No pool. Just a playground. Why couldn’t we just hire an accountant to collect fees and keep the books for us? How hard is it to keep the park mowed? We are paying a lot of money to Cadden to do what exactly? It’s a waste!

      Go to comment
      2019/05/05 at 8:03 am
  • From Dennis Legere on Upstairs Guy With SuperHero Hearing

    Tobin

    I’ll provide a more detailed response to your direct e-mail, but for the benefit of all of our members I’ll provide this response here. Let me just start with it is unusual that your AC unit is your responsibility to maintain in a Condo unit. These would mostly be common property with the association responsible. The first thing that you want to do is validate in the CC&R’s that the AC unit is your responsibility, and not common property. By law if the association cites a violation of the governing documents they must identify the specific provision of the governing documents that you are allegedly violation. You should have received a copy of the condominium documents before you closed on your unit again by law. They must give you 21 day to contest that violation and request a specific hearing before the board. You as the homeowner have the choice for that hear in either open session or closed session of the board.
    It sounds like you have done everything possible to ensure that the AC unit is operating properly, my only recommendation from here is that most AC technicians have a decibel meter to measure the sound level of the unit when running. Have them measure and document the decibel level for your unit and take a walk around the complex and measure the decibel level for other units when operating. If the noise level of your unit is similar to that of other operating units they have no legitimate basis for any alleged violation.
    This is simply a case of a homeowner that does not like living in a condo, if he does not like living in close proximity with other people and units he should not have moved into a Condo. Because he’s an attorney does not make him credible or right. Most but not all are simply a legend in their own mind.

    Dennis

    Go to comment
    2019/04/29 at 4:01 pm
  • From Dennis Legere on Placing a cap number of rentals in condo complex

    Carol,
    Excellent question. The issue is very complicated and all depends on how exactly your community documents are structuted particularly the CC&R’s. That document defines the sum total of the covenants and restrictions placed on your property by the developer. If the CC&R’s do not place restrictions on the ability of the homeowner to rent his/her property than the association is powerless to change that without the unanimous consent of all homeowners. The issue is property rights. If the community documents do not limit an owners ability to rent or lease his unit than it is the owners fundamental property right to do with his property anything that he wants. This issue has come up most recently relative to short term rentals via AirB&B and similar services. But that does not appear to be your primary concern.
    As you mentioned many CC&R’s written in the last 10 years include provisions that allow the association board to establish limitations on the number of units or homes that can be leased or rented to comply with the FHA limits of financing further home purchases, to maximize the value retention on those properties. If the FHA threshold is exceeded every home in the community’s value is potentially negatively impacted,.

    If your CC&R’s have that provision than your board is empowered to enforse that financing restriction without any further CC&R change. If it is not there you would have to change the CC&R to apply such a limitation.

    The real question is how many votes would be required to do this. If you Community is a condominium than both Arizona Law and Property Servitude Common law would dictate that unanimous consent of all owners would be required to implement such a change. If however you are a planned community than Arizona law is silent on the issue but Property Servitude common law would still apply, and the same unanimous consent would be required.
    Many HOA attorneys would advise their clients that they would only need the number of member to approve such a change as is specified for any other change of the CC&R’s. I’m not an attorney and represent no one but myself but from my study of Property Servitude’s common law which is the compilation of case law decisions on the subject from across the country the unanimous consent would be required.

    If you can provide me an electronic copy of your CC&R I’ll read them and have a better picture of your actions going forward. One thing you have to remember is that CC&R changes are for ever and should never be undertaken lightly. They not only affect all current homeowners but also affect all future homeowners in your community. Most CC&R require a super majority of all homeowners of 2/3 or greater to vote for a change . This is not out of the quorum for a meeting or even the votes case at a meeting this is of all eligible votes in the community. So in this case any non vote counts the same as a no vote on the issue. It is a very difficult thing to achieve but can be done with a plan and effective and honest communication with all homeowners on the issue.
    Send me your CC&R at help@azhoc.org. And I’ll look them over for you and we can go from there.
    Dennis

    Go to comment
    2019/04/23 at 3:56 pm
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