Comments or Questions

Joe;

You don’t need to worry or be nervous. You can simply use “see attached” on the form and type out your petition on a separate sheet. Be as brief and to the point as you can be. You want to make sure that the issue you are concerned about is valid. You had mentioned earlier that this was an executive session and members are not allowed in executive sessions, if this was an executive session they would not normally provide agenda other than to the board member themselves. The notice for this meeting was required to identify the specific exception that allowed this meeting to be closed. Your concern is that you believe that they were discussing issues in executive session that was not allowed by statute. That is fine, however you bear the burden of proof so if your are to spend $500 on the petition you need to prove your case by the preponderance of evidence. Not by speculation or assumption. Look at it this way, knowing the law could you convince someone that that happened directly violated the law? if not don’t file and save your money for another day. If you believe that you can and feel that the issue is significant enough or if you have evidence of this happening on several occasions than go ahead and file the petition, You need to be prepared for the attacks that you will get from the board to the community. They will try to paint you as a trouble maker for costing the community to defend themselves from this baseless petition. You are not alone this happens to everyone. They violate the law and because they control what the community hears they paint you as the villian for calling them out on this issue. I’m not trying to either encourage you or discourage you from filing please separate yourself from the emotion of being kicked out of a meeting and ask yourself is this worth it. I will tell you that I started my advocacy work based on open meeting law violations for my own community. I won and the hate campaign against me by the board member that are still in office has continued for years. I don’t regret my decision in the least the blatant and total disregard for the open meeting laws that had gone on for years, had to stop.

Dennis

Joe;

You are absolutely right, while we have laws that are meant to protect the rights of individuals, boards that want to do what they want to do irrespective of the law can with for the most part impunity. Mostly because they bank on the fact that homeowners will not risk their hard earned money trying to get the board to follow the law. By the way the board get to use your (community) money to pay for attorneys to defend their actions if you try and take them to court. Until we can get real accountability and consequences for violating the law this will never change. The ADRE and ALJ process is not perfect but it is far better than going to superior court to enforce the law. The one advantage of the ALJ process is that if you prevail the judge will order the association to comply with the law in the future. If they refuse to comply with that order you can file contempt of court charges against them that could lead to significant fines and even jail time for the individual board members.

Please don’t get me wrong I’ve no interest in having everyone go out and bring charges against their boards but the issue is the open meeting law is there for a reason. When no one is watching an association is when bad things happen and money is lost and stolen and your communities go to ruin. Clear violations of the law cannot be ignored because if it is it will simply keep getting worse and worse for your community. There is absolutely no reason to not have complete transparency of the business of the community. The board has the absolute power to what they believe is right as long as it is done in the open. There are many communities that conduct their business with complete transparency so any complaint that it is too hard is totally baseless.

In Joe’s case the board claimed that it was conducting an executive session. Which is fine as long as they were only discussing issues allowed for exceptions to open meeting authorized in the law. As a reminder we did get changes to the law that required the board to identify the specific exception they were using to conduct the executive session in the notice for that meeting. Discussion of any community business that does not meet those exceptions in executive session violates the law.

Thanks
Dennis

Richard a little follow up.

HOA management companies and attorneys will tell the board whatever they believe that the board wants to hear. The reality is that gang mailboxes are for the most part common property of the association and not the property of the post office. As such the association can establish rules for posting on that property but the post office has nothing to do with it. The same goes with walls, if the walls that you are talking about are private property either owned by the community as common property or by individual homeowners the city will not get involved in the regulation of those structures nor will the police. Unless the wall are public property the city has no authority to regulate them. These scare tactics are used to pass the buck and attempt to legitimize the boards attempts to censor the homeowners and deny them their fundamental freedom of speech. While HOA and Condo’s are corporations and not governments and the Constitution was written to protect the people from abuses of their governments the rights of individual citizens are still public policy and no contract even the contract that establishes the property servitudes your CC&R’s may not unreasonably burden your fundamental constitutional rights as a violation of public policy not under constitutional law but rather under property law. Any provision in the CC&R that would unreasonably burden your constitutional rights as public policy is void and unenforceable. Restatement of Law third Property Servitude 2000 American Law Institute section 3.1.

Dennis

My sincere apologies for the delay in responding. Thank you for your broad and detailed overview. This information will greatly assist me in the initial conversations with our board. I greatly appreciate you offering to come for a visit. I will reach back if the board feels this is something they would like to do.
Again – Thank you!

Tom;
This is one of the most important and difficult task that any HOA can undertake.

First and foremost is the transition of the associations money. You must locate all association financial accounts and transition signature authority and access for those accounts. You then need to secure all bank statement records from the past management company or financial institutions and particularly for the last couple of months and scrutinize all the financial transactions in that time period to determine if they were all appropriate. Along with the financial access and records comes the assessment payment status and history records of all homeowners. You should ask for a current financial status from the management company including accounts receivable as well as accounts payable. If your association has a long term maintenance plan or reserve study you need to get a copy of that plan.

Then you must obtain all association records starting with the original and all changes to the governing documents for the association (CC&R’s, Articles of Incorporation , bylaws, and rules and policies) then all other records of the association such as meeting minutes, board resolutions, violation notices. Also include any committee records such as architectural review committee records of approved or rejected change request and minutes.

You must obtain copies of all current association contracts with any vendor.

You must obtain any records of legal action taken by the association and against the association.

You must obtain the address of record and contact information for all current home owners.

From what it sounds the community manager probably has all of this in several boxes of paper, use this list to find and organize the essential records and separate them from the chaff. Any new management company should scan these paper records and organize them for easy access and retrievability.

As for the board duties and responsibilities for that I’ll need to go to Tucson and meet with your remaining board and members of your community to get to understand your specific community and encourage members to participate an take interest in their community. Contact me with the site email and we can coordinate such a meeting if you desire.

Dennis

I have been in this particular community since 2004. It was well run and the neighbor was the HOA president at that time. Unfortunately, a new president of our HOA was elected in 2008 and things have gone down hill from that time. The common pool areas are not being maintained, the owner of our management company lives in our community and just this month is taking over the treasurer’s position on our board of directors. I feel the current president and manager are stealing money from the reserve funds and that is all they are concerned with.

The president assured one of the homeowners that the board was taking into consideration her concerns of the pools as she and I had taken pictures of paint peeling, the pergola boards rotting, caulking missing around tiles in the poolside bathrooms, the decking buckling from the water being too high in the pools, chairs that needed plastic lacing replaced so people would not fall through and the caulking in the pool to prevent water from going under the decking was deteriorating. But both of us are concerned that the people or person who does the work will not do it right, such as prep an area for painting or use inferior paint. The person they have designated to do the cleaning of our pool bathrooms and outside shower is also our security guard and she reports erroneous things to the president so homeowners get fines and get yelled at by the president.

The HOA manager says he charges $250 to send an email to homeowners with the newsletter to inform us what is going to be done in the community but the newsletter is more of a reprimand when people question him or the president on anything. I am trying to find out if any of this is grounds for taking them to the real estate board or even if it would do any good.

Thank you for listening.

Melanie;

What a mess. I’m assuming that the developer still has control of the association. The city is the true power in this situation. I would request a meeting with the supervisor of the code enforcement office of your city. Bring pictures of the situation and the neighboring lots. This should be an issue between the City, HOA and Developer. The HOA and builder are essentially the same because the developer appoints the HOA board and their job is to protect the developer not to represent you or any other occupant of the community. The city has the power to stop all further building by the developer until he complies with city ordinances. The board is trying to get you to fix the issue so that it goes away, you cannot let them scare you into action you do not want. Do not let up on the city until they step up to the plate and force the developer to fix the code violation issues. This is a safety issue for you and any children that use the pools in this community. You bought a home that you reasonably believed would comply with all city codes and ordinances. Yours does not and you have every right to expect the builder to fix and address the issue, including the option of suing the builder or filing a complaint with the Registrar of Contractors. I’m assuming that the developer does not want bad publicity that may prevent him from selling other homes in the community. You also have the press and people like Joe Ducey “Let Joe Know” from channel 15. You would be amazed what Joe can do when he shows up with his camera crew at the front door of the developer, asking why he refuses to build his home in this community in compliance with city codes and ordinances?
Dennis

Dennis, I was visiting and having dinner at my friend’s place. I parked right outside for less than two hours. When I came outside, my car was no longer there and I had thought it was stolen. I had called Mesa police and it turns out that my car had been towed by the HOA. I thought it was illegal to do that? What is the next appropriate step to take?

I have always paid my dues along with most members of the community. I have always maintained the position that everyone should be pay their dues even when things are not the best. However since this BOD took over it and hired a collections law firm and the management company of their choosing it has all been about voter suppression. They created delinquencies for most of the owners. The management company refuses to return calls or emails. Everything goes though management company to the attorneys that are running the place as if it was under receivership. No hoa meeting since February, no announcements, everything being done in secret.

Nicole;

Thank you for the clarification. As you are hopefully aware I am not an attorney and cannot give you legal advice and this is getting a little off my level of experience. I will comment on several of the points that you brought up. Any action taken by the board by unanimous written consent is a violation of Arizona’s open meeting laws unless it involved emergency actions that could not wait the 48 hours for notice of a meeting of the board. I would seriously doubt the legitimacy of the board action to create bylaws that did not exist since they must have been created at the time of incorporation. Without the authority granted by the bylaws for the board to exclusively modify the bylaws without homeowner approval, they would clearly have no basis to believe that they could create a set on their own. So not only was the act improper, the method for adopting the bylaws was improper and illegal. Once the original bylaws were found that changes the entire game. I can only assume that they included provisions relative to member eligibility to vote. Because bylaws existed but were not provided to homeowners and home buyers raises serious concern of their legitimacy. Arizona law puts the burden of providing the governing documents for the community on the home seller for associations of less than 50 members. But how can a member provide information it was never supplied in the first place. It is the responsibility of the association as a corporation to maintain its governing documents and records and make them available to any member upon request. Your association clearly breached this responsibility and duty. This is where my experience ends and where legal counsel is required to pick up. If you wish to challenge the validity of the bylaws that were found then you absolutely need to seek legal counsel.

Lastly I do want to point out that it is incredible to me to believe that more than half of the community are delinquent in their assessment payments. Clearly you all have to realize that whether their are bylaws or not you are all contractually bound to pay your assessments unconditionally. You do not get to pick and chose which laws you live to and which you ignore. This is what happens to homeowners based on bad boards and their advisors, it cannot be the position that the homeowners take if we are ever to make progress in protecting your rights in these communities. You had 41 homes and 22 homeowners signing a petition to remove the board. If only 11 signatures on that petition were by homeowners current in their assessment than the petition for a special meeting to remove the board was legitimate under Arizona Law. And the board is compelled by the same Arizona law to schedule and hold the meeting 30 days after the petition was received. While I believe in the fundamental right to vote the reality of these communities is that the fundamental premise is that each homeowner is required to pay their share of the cost of the association, it is plain and simple and not subject to interpretation either you pay or you don’t. If you don’t you should not be allowed to have a say in the governance of that community. This is your choice not the associations. What I want to work for is to limit the associations from denying homeowners the right to vote for other reasons other than payment of assessments.

Rather than going to court again, pay your assessments and get the 11 people necessary to call a special meeting to remove the board, but when you do so have candidates ready to run for those board positions that will run this community appropriately.

Dennis