If you live in a homeowners’ association, then you know that you have specific rules and guidelines that regulate how you use your property and that the homeowners’ association may declare you to be in “violation” if you fail to follow its rules. Violations may, sooner or later, lead to HOA fines that you believe are unwarranted, unfair, or unreasonable. Disputes between homeowners and their associations are far too common.

A 2015 survey by the Coalition for Community Housing Policy in the Public Interest revealed that 72 percent of people surveyed had been involved in a dispute with their association. In other words, If you live in an HOA, it is statistically just a matter of time before you find yourself in a dispute with the HOA. Noise, parking, walls and fences, painting, landscaping, tenants, garage storage, new construction, repairs, remodeling. Literally just about anything can lead to a dispute. And disputes will lead to violations, which will in most cases lead to fines.

You can fight such violations and fines.

Fight Your HOA the Right Way

When it comes to fighting your HOA, it is important that you understand how to take on your HOA board. There are most certainly do’s and don’ts when it comes to HOA disputes.

Before we get into all the details, if you have been cited, fined, or sued by your HOA, your first step should be to contact an HOA attorney. A reputable HOA attorney will be knowledgeable and experienced in HOA dispute matters as well as state laws. Your attorney can advise you of your rights and responsibilities and also represent you when negotiating with your HOA or in court.

Common HOA Violations Against Homeowners

Here are some of the most common HOA violations filed against homeowners:

• Failing to pay HOA assessments timely (though not technically a “violation” in the sense we are talking about, it can lead to substantial penalties and fees)

• Failing to upkeep your home to the standards required in the CC&Rs, rules and regulations, design or architectural guidelines

• Failing to obtain permission before changing or adding to the features of your home (including architectural, landscaping, or even occasional yard trinket)

• Parking vehicles in unauthorized areas

• Having features (such as gazebos, trailers, or boats) visible from beyond the property

• Violating regulations regarding pets, their sizes or numbers

Exact steps to take to fight HOA fines:

1.       Research Your HOA’s Regulations and Guidelines

Perhaps you didn’t read through your CC&Rs (covenants, conditions, and restrictions) with a fine-tooth comb when you first purchased your home, but if you find yourself in a dispute with your HOA, you need to get really familiar with them now. Perhaps you didn’t think that you needed the board’s permission before placing the cute garden gnome in your front yard? Perhaps you assumed that you could install an RV gate without permission because you bought a house with RV parking in the back and noticed all of your neighbors had RV gates?

Take a look at the rules that set the scope of the HOA’s power. If you’ve been fined, these documents should clearly define the rule(s) that you violated. And your HOA should be following their written policy of issuing notices and fines for rule violations accordingly.

2.       Understand Your Rights as The Homeowner

It’s important that you know (a) whether you are actually in violation of the HOA’s rules and, if so, (b) whether you have grounds for an appeal or a variance. Even if you are in violation and no grounds exist for an appeal or violation, it does not automatically lead to the conclusion that you should be fined. Fines must be reasonable and “reasonableness” in the context of fines means many things.

Is it reasonable to charge someone thousands of dollars because they left their trashcan on the curb or have an emotional support animal that is slightly bigger than what the rules allow? You need to evaluate whether or not you truly violated an explicitly stated rule or guideline. If you did not, this could be grounds for an appeal. Additionally, evaluate whether the HOA adhered to the proper process for issuing notices and fines for the rule violation. If they did not, this too could be grounds for an appeal.

This is a crucial time and consulting a lawyer is highly recommended. There may be compelling reasons not to appeal the alleged violation and what you say or do not say may be of paramount importance to your eventual success. If you submitted a design review request that was ignored, for example, what you say will be different than if you submitted one that was denied or if you never submitted one at all. Speaking with a lawyer before you undertake the appeal process will help you shape what you say and when.

3.       Contact Your HOA

If you have received a notification that you are in violation of the HOA’s rules, you may want to avail yourself of any appeal rights. Write your HOA to inform them that you are disputing the violation and any fine. Make sure that you follow any timelines set forth in the violation or fine notice. Under Arizona law, you have the right to request certain information (including who observed the violation and when the violation was observed).

Often, violations are identified, and fines are imposed by a management company that has not consulted with the board of directors. Your contact with the HOA may be the first time the board is learning of your specific issue. Do not assume that the board of directors knows about your situation.

4.       Prepare Your Appeal

Yes - You CAN appeal an HOA decision! Most of the time the entire appeal will be the letter you send to the board of directors disputing the fine. For this reason, you will want to err on the side of including more, rather than fewer, details. But at the same time, you do not want to include too many details. What is “too many” versus “too few”? It is one of the reasons we recommend you consult a lawyer.

Remember who your audience is. It is not simply the board of directors. It is also the judge who may end up hearing the case if you or the HOA bring the matter to court. For that reason, we recommend that you imagine your letter blown up on a giant screen in the courtroom. Is there something in there that you are going to regret saying or need to explain? If so, maybe you need to revise the letter.

Some of the important points to include in your appeal are:

(a) state if you have corrected the alleged violation;

(b) if the alleged violation is something that has existed for a long time, you will want to mention that as well (it is a lot harder for a board of directors to tell you to get rid of the tree if the tree has been there for 10-12 years than if you just planted it);

(c) are there extenuating circumstances;

(d) if you observe the identical violation throughout the community, include this fact (with photographs);

(e) if you previously received permission from a prior board, this is a key fact to mention. Make sure to include photographs, copies of documents and records (if you have them), etc.

You also may want to consider gathering witness statements for you appeal to the HOA board as well. Boards can often be swayed by public opinion. If all of your neighbors like your paint color and you can present their statements to the board, this may have a positive effect for you. Also, try to talk to others who have similar conditions or violations in the neighborhood. It is not uncommon for property managers to play favorites so find out whether your neighbors are being fined or whether they’ve been granted a variance.

Finally, there is beauty in brevity. Long is not always the best strategy. A board member is not going to read 10, or even 5, and probably not even 3, pages. Make your point, make it clear, and make it concise.

5.       Attend Your Appeal Meeting

If you have requested a hearing, you should receive the opportunity to speak with the board. It is important to do your homework. Know where your board members live. Do any of their homes have a similar condition or violation? Be on time. Express a willingness to find middle ground.  

It is important to understand that the HOA decision appeal serves two purposes:

1. You are hoping to convince the board members to give you what you want.

2. You are gathering facts for possible legal action. Does it appear they are acting arbitrarily? Can they explain why the feature in dispute does not fit into the “aesthetics” of the community? Can they explain to you why you shouldn’t be allowed to have the same feature that countless others have?

Under Arizona law, you have the right to record the meeting. Because Arizona is a “one party” state for purposes of recording, you do not even need to inform anyone else that you are recording (you are, in other words, the “one party”). If you anticipate that the appeal will not be the end of the dispute, you may want to exercise that right. If you end up in court, one argument you may want to make is that the decision is arbitrary or unreasonable. A recording of the proceeding may prove vital to asserting this defense in court.

6.       Await the Decision

It is unlikely the board will make a decision with you in the room. They likely will go into an executive, or closed, session to discuss your appeal and you will be notified later on. If the HOA does not grant your appeal or variance, it likely will begin or continue to impose fines if the condition is not addressed. It also may consult with a lawyer of its own to bring legal action to compel you to change the condition. You can find more about the HOA dispute process here.

HOA Attorneys Will Make Sure Your Best Interests are Protected

Having an HOA attorney in your corner will be beneficial in cases appealing or defending yourself against your HOA. Should your case continue, you’ll need the legal expertise of a professional to help you navigate the lawsuit and ensure that your best interests are protected.

If you need additional legal advice regarding your HOA, get in touch with the team at Dessaules Law Group today to see how we can help protect you and fight against unjust HOA fines and violations.

Wondering how to fight your HOA fines and win? You can find that here.

The Arizona Court of Appeals recently imposed significant restrictions on homeowners' associations' rights to impose fines and penalties against homeowners.

In Turtle Rock III Homeowners Association v. Fisher, 243 Ariz. 294, 406 P.3d 824 (October 26, 2017), Division One of the Arizona Court of Appeals held that homeowners associations are prohibited from imposing and collecting fines or penalties if the HOA did not have a valid, published written fine penalty policy. The absence of such a policy was per se unreasonable and, as such, the fines were unenforceable.

HOA Penalties

Arizona law generally allows HOAs to charge reasonable monetary penalties. See, e.g., A.R.S. § 33-1803(B). However, the Court held in a previous case that it was unreasonable to impose late fees based on a retroactively adopted fee schedule. In Turtle Rock III, the Court of Appeals considered whether daily or weekly fines were reasonable or "akin to a punitive damages award." The Turtle Rock homeowner faced "escalating monetary penalties for her failure to cure" certain maintenance violations. 

The Turtle Rock III court rejected the fines on several grounds. First, it held that "[a]d hoc fines," that is fines that are imposed seemingly out of thin air, "are per se unreasonable." This is true "even where the HOA has the authority to levy fines." In addition, any fines must be promulgated pursuant to a prior published schedule of fines. In other words, secret fine policies are just as prohibited as no fine policies at all. The absence of a fine policy in the Turtle Rock case was a significant factor in the Court of Appeals' ruling for the homeowner. "The trial court did not make a finding that a promulgated fee schedule existed."

Finally, and perhaps most significantly, the Court of Appeals held that it was the Association's burden to prove that the fines imposed were reasonable. In Turtle Rock, the fees were $25.00 per day. The homeowner "was not required to present evidence controverting the existence of the fee schedule." That burden fell squarely on the Association suing to collect the fines. The Court of Appeals held that there was "no support in the record for a determination that a fine of $25 per day, for any violation, is reasonable. A stipulated damages provision made in advance of a breach is a penalty, and is generally unenforceable." 

The Court's central holding is worth repeating: 

Although the HOA had the authority under state statutes and the CC&Rs to promulgate a fine schedule for monetary penalties, there is no competent evidence in the record before us that it did so. Without competent evidence of a fee schedule timely promulgated demonstrating the fine amounts and the appropriateness of such amounts, monetary penalties are per se unreasonable. Even if a fee schedule existed, the HOA had the burden to prove its damages. Given our resolution of this matter, we need not address Fisher's due process claim related to the required thirty-day notice of a penalty. The trial court's award of monetary penalties is reversed and the attorneys' fees award below is reversed.

The last part of this ruling will continue to resonate: "Even if a fee schedule existed, the HOA had the burden to prove its damages." While an HOA may have the right to impose fees or penalties for CC&R violations, Turtle Rock suggests that any such fines, in addition to being set forth in a published fine policy, must relate to some damage that the HOA might suffer. 

Most HOAs that have fine policies charge a minimum of $25.00 for an initial violation. These fines often escalate quickly. $25.00 becomes $50.00, which becomes $100.00, and so on. But if these fines bear no relation to any actual damages that an HOA actually suffers, it raises serious questions whether the HOA can even enforce such fines in the first place.

Have you been fined? Did you pay the fines or are you contesting them? 

Call us today to discuss your legal rights

Learn more about how to fight hoa fines and win!