HOA Isn't Maintaining the Common Areas…
Can I Withhold My Assessments?
This is one of the most common questions Arizona homeowners ask, and the instinct behind it is sound. You are paying for landscaping that is dead, a pool that is closed, or a gate that has not worked since spring. Withholding feels like the obvious response.
It is also the one move that reliably hurts more than helps a homeowner, and it can have devastating effects.
(So, short answer, no. And doing it will cost you the leverage you currently have) … Learn what you can do instead.
Your duty to pay your HOA is not conditioned on the association's performance
Assessment obligations under a recorded declaration are generally treated as independent covenants.
This means that an association's failure to maintain does not suspend your duty to pay, and you cannot offset what you owe against what the association should have spent.
The consequences follow quickly and automatically:
Unpaid assessments become a lien on your lot or unit.
Late charges accrue at the greater of fifteen dollars or ten percent of the unpaid amount. A.R.S. § 33-1803(A).
Collection costs and attorney fees get added, and
You have handed the board the one thing it wanted, which is something to talk about other than its own maintenance failings.
Every hearing you attend from that point forward starts with your ledger.
What Withholding HOA Payment Actually Exposes You To
Arizona’s Planned Community Act and Condominium Act both allow an association to foreclose for non-payment of assessments.
Before they file a foreclosure action, your HOA will likely file a lawsuit seeking a money judgment for the deficiency, plus its attorneys’ fees. That’s usually how a small debt grows into a giant headache.
Whether the HOA gets a money judgment first or just seeks a foreclosure judgment, the non payment of assessments will be used as a basis for foreclosing and, once they file suit, Arizona law entitles them to a judgment of foreclosure for their fees and other charges.
If you are correct on your HOA assessments, they cannot foreclose. So, keep your assessments current.
An economic boycott of your HOA only makes things worse for everyone.
What Works Instead
Demand the records. Members may examine and copy the association's financial and other records.
Ask for:
The budget
The general ledger,
The vendor contracts for the service that is failing,
The board minutes, and
Any reserve study.
A maintenance failure is usually a money problem, and the money problem is documented.
Put the failure in writing, with dates.
Identify the specific provision of the declaration that assigns the maintenance obligation to the association. Attach photographs. Ask for a written response and a schedule. You are building a record, not venting. Speak at board meetings or petition the Department of Real Estate.
Or sue.
A declaration is a contract. Where the association has breached a maintenance obligation and the failure has caused real damage, a court can order performance and, in a contested contract action, may award fees to the successful party. However, there are serious limitations on who can sue and how many owners may need to join that lawsuit, depending on the facts.
The Rule of Thumb
Pay under protest, in writing, and fight on the merits.
A homeowner who is current and complaining is a problem the board has to solve. A homeowner who is delinquent is a file that the board hands to its collection lawyer.
The attorneys at Dessaules Law Group represent Arizona homeowners in these types of maintenance and governance disputes. If you believe you might need legal counsel, contact us today.