HOA parking enforcement - Are On-Street Parking Bans Valid?

Residential Arizona Parking Laws

Wondering if your HOA can fine you for parking on the street?

We regularly meet with homeowners whose HOAs threaten to impose fines or even take them to court to enforce HOA on-street parking bans. In one case, the HOA spent more than $40,000.00 unsuccessfully attempting to enforce an on-street parking ban against a family that had five licensed drivers in the family.

HOA parking enforcement. Are these HOA street parking bans enforceable?

HOA parking rules in Arizona say that the HOA has "no authority over and shall not regulate any roadway" if it is a public street.

BUT this law only applies to planned communities whose CC&Rs were recorded since December 31, 2014. So if your HOA is new or if it has recorded an amendment to its CC&Rs since December 31, 2014, the HOA does not have the authority to ban you from or enforce parking on public streets.

What about those older HOA’s or those that have not yet amended or refiled their CC&Rs?

The answer often depends on the precise language used in the CC&Rs. However, it does not make sense for HOAs to be able to regulate public streets. HOAs, after all, are not public entities.

No Arizona court has had the chance to address this specific issue. The argument is that the power to regulate public roads is vested exclusively in governmental bodies and private entities, such as homeowners’ associations, do not have the power to impose restrictions on the use of it. In some cases, this can turn on the language used in the CC&Rs, plat map, or other governing documents.

Finally, it is important to keep in mind that HOAs cannot enforce street parking bans, even if they are valid, if they are doing so in a selective, random, arbitrary, capricious, unreasonable and/or potentially discriminatory manner. A use restriction that singles out and targets a particular homeowner is unreasonable, arbitrary, capricious, and unenforceable. If all of your neighbors also park on the street and you're the only one getting fines or threatening letters, you may have a good selective enforcement defense.

If you feel you need legal assistance with regard to the new short-term rental law or if you have any questions, check out our HOA Law or Real Estate Law page for more information. Or contact us today.

If you liked this article, you might also like reading our blog about rental restrictions and collecting fees.

HOA Codes of Conduct and Why They Are Unenforceable

The Issue with HOA Codes of Conduct in Arizona

Codes of Conduct are all the rage in HOAs and condominium communities. Some associations are even attempting to insert these Codes of Conduct into their bylaws, declarations, and other governing documents.

There's just one major flaw with Codes of Conduct -- they are invalid and unenforceable. 

Consider what appears to be a fairly innocuous Code of Conduct:

1. Board Members shall act in the best interests of the Association as a whole. Board Members serve for the benefit of the entire community, and shall, at all times strive to do what is best for the Association as a whole.

2. No Board member shall willingly misrepresent facts to advance a personal cause or influence the community to advance a personal cause.

3. Board members shall use their best efforts at all times to make reasonable decisions that are consistent with the Declaration, Bylaws, and other governing documents of the Association, and to be familiar with all such documents.

4. Board Members shall set high standards for themselves as Association representatives. Board Members shall hold themselves to the highest standards as members of the Association, and shall in all way comply with the provisions of the Association’s governing documents and the relevant law.

5. Board members shall at all times work within the Association’s framework, refrain from unilateral action, and abide by the system of management established by the Association’s governing documents and the Board. The Board shall conduct business in accordance with relevant law and the Association’s governing documents, and shall set upon decisions duly made, and no Board Member shall act unilaterally or contrary to such decisions.

6. Board Members shall behave professionally at meetings. Board members shall conduct themselves at all meetings, including Board meetings, annual meetings of the members and committee members, in a professional and businesslike manner. Personal attacks against other Board Members, Association member, residents, officers, management, or guests are not consistent with the best interests of the community and will not be tolerated. Language at meetings shall be kept professional. Though differences of opinion are inevitable, they must be expressed in a professional and businesslike manner.

7. Board Members shall not defame or disparage any other Board Member, Association member resident, vendor, Association agent or third-party.

8. Board members shall not harass, threaten or otherwise intimidate aby other Board Member, Association member, resident, vendor, Association agent, or third-party.

So what's wrong with it?

Everything.

Literally, everything. Notably, the Code of Conduct does not state who gets to decide what constitutes the “best interests of the Association,” what is “best for the Association as a whole,” or what constitutes a "willing misrepresentation" or a “personal cause.” Who gets to decide whether these standards are met? If your answer is "the rest of the board," then you've just identified one of the biggest problems with Codes of Conduct - they are subjectively and arbitrarily enforced by those who hold power to keep dissenting voices or the opposition from speaking up. Who decides what is disparaging? Truthful statements can be disparaging. Who decides whether someone is feeling harassed, threatened, or intimidated?

Also, keep in mind that board members owe fiduciary duties to the associations that they serve. And these fiduciary duties often require board members to review documents, conduct investigations, and ask hard questions. The above Code of Conduct, however, suggests board members are prohibited from conducting such an investigation if they believe the “system of management” is not functioning properly or that they could violate the Code of Conduct by conducting an investigation if a majority of the board decides there's nothing to investigate? 

When Codes of Conduct are included in bylaws, declarations, or other governing documents, they take on added problems. An association’s governing documents form a contract between the association as a whole and its members. Bylaws, like declarations and the other governing documents, also constitute part of this contract.

Basic rules of contract interpretation, therefore, apply when interpreting them. A fundamental rule of contract construction is that contract provisions cannot be enforced when the terms are too vague or uncertain. Codes of conduct that purport to require individuals to conform behavior to certain subjective standards, such as using “best efforts at all times to make reasonable decisions,” setting “high standards” and “hold themselves to the highest standards as members,” to name but two, are too vague and indefinite because they do not allow individuals, such as Plaintiff, to conform her conduct to the rule or know what conduct would constitute a violation.

Other terms that fall into the “too vague to be enforced” category include similar subjective terms that are “obscure and indefinite in meaning as a matter of law.” A contract provision is not enforceable “[i]f the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken.”

An objective standard is impossible to employ since the determination of such violations is, by their nature, subjective and impossible to calculate on an objective standard. How does an individual know whether she or he is meeting the standard or what behavior violates it? The fact that the majority apparently gets to make the decision unilaterally further underscores the invalidity and unenforceability of Bylaws disqualifying owners based on the subject determination of an individual’s conduct.

Put another way, how does a member possibly confirm his or her behavior to the code of conduct against what objective measure is it to be tested? How does a member know she or he is acting “in the best interests of the Association” or striving “to do what is best for the Association as a whole”? What if a majority of the board believes a board member is not pursuing the “best interests” of the Association because she or he believes that the Association’s best interests diverge with what the majority of the board believes or wants? Also, what is the penalty for violating it and who gets to decide?

Subjective rules might be great for kids on the playground but they have no place in a quasi-governmental association. 

Read more about HOA law by going to our HOA law page or schedule a consultation with one of our highly experienced attorneys for questions and inquiries. Or, continue reading to our next blog about Foreign Court definition.

“Don’t Tread on Me”? Try “Don’t Bite Me, Please!”

Is there anyone out there who loves rattlesnakes enough to share a house with them? It certainly isn’t the King family! The Kings have caught a whopping 29 rattlesnakes in the one year that they have lived in the home that they purchased for the not insubstantial sum of $700,000.00. Let that sink in: 29. Rattlesnakes. In a single year.

The problem for the Kings, other than the obvious snake infestation, is that their homeowner's association is refusing to let them extend their gate to the road to create a barrier. They’ve spent $7,000 so far on “snake fencing” but need the gate in order to better protect their home. You know, so they don’t get a bit getting into or out of their cars parked in their garage or elsewhere around their house and property. The HOA claims that the gate doesn’t conform with the community’s “aesthetic guidelines.” Those guidelines aren’t written down anywhere and, in our experience, board members are incapable of describing or defining a community’s “aesthetics.” Perhaps the “aesthetic” includes people routinely getting bit by rattlers?

A HOA has the duty to protect homeowners. This duty extends beyond merely protecting property values from vague, make-believe concerns of diminished property values due to one’s choice of house color or landscaping. If an HOA exists to do anything, it should ensure that homeowners have the right to protect themselves from actual threats. Note that the Kings are not asking the HOA to pay for anything; they are simply asking the HOA to give them permission, at their own expense, to protect their home from snakes visiting their home on the frequency of more than two per month. There would be no cost to the HOA to allow the Kings to protect themselves.

Undefinable ”aesthetics,” whatever that might mean, should not trump one’s right to protect one’s life from an actual threat. Snake bites are real. People can die from them. One of the Kings’ neighbors, for example, spent four days in the ICU and needed twenty-one (21 )vials of anti-venom. And that was from a “baby” rattler. Imagine if it was a teenager or mature rattlesnake.

We have no doubt that the community’s “aesthetics” would change overnight if it was one of the board member’s homes that was snake central or if a board member had to risk a snake bite every time she or he exited their car or walked into their garage. And maybe that is really the question that board members should ask when considering whether to place their own subjective ideas of what looks good over the health and safety of a community’s owners.

If snakes traditionally are a symbol of evil, then perhaps this HOA Board of Directors should adopt a snake as the HOA’s banner and fly it proudly at the community’s gates. At least that might give unsuspecting purchasers some warning of the dangers that the HOA won’t protect them from.

https://sacramento.cbslocal.com/2019/07/18/hoa-rattlesnake-barrier-property-family/

For more information about HOA Laws, check out our HOA Law page.

Having issues with your HOA and street parking? Check out this post.

If you are facing any issue with your HOA schedule a consultation with one of our attorneys. Get ahead of your situation before it gets worse.

Related Article:
What About My Emotional Support Pet

HOA President Accused of Embezzlement.

This is why owners need to pay attention, ask questions, and inspect records in an HOA:

A trial date has been established for Joseph Girgenti, a Johnson County resident facing allegations of embezzlement from his own homeowner's association.

Girgenti, who served as the president of the Innisbrooke HOA in Center Grove, near Fairview and Morgantown Roads, is accused of misappropriating over $21,000.

Authorities assert that Girgenti wrote more than 20 checks to himself in the past year, diverting the funds for personal expenses. The investigation commenced in October after another member of the HOA received complaints about the group's failure to meet financial obligations.

Joseph Girgenti's trial is slated to commence on September 24, where he will face charges related to the alleged theft from the Innisbrooke HOA.

The case underscores the significance of ensuring transparency and accountability in homeowner's associations, emphasizing the need for diligent financial oversight to prevent such instances of misappropriation.

You can read the full story here

If you want to learn more about your rights regarding HOA related records inspection. Check out our HOA Law page for more information or schedule a consultation to speak with one of our attorneys.

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Dear Sun City Residents: Your Elected Representative is Lying to You, Nevada Jury Awards $20 Million Against HOA for Failing to Maintain Swingset

New Short-Term Rental Law to Take Effect in August

HOA Rental

New Arizona HOA Short-Term Rental Law

A new law impacting owners of short-term rentals will take effect in August. If you own property that you offer for short-term rentals or are considering getting into the short-term rental business, you need to make sure you are in compliance.

HB 2672, which Governor Doug Ducey signed into law in May, regulates vacation and short-term rentals. The new law plays on fears that short-term rentals are creating an influx of “party houses.” While every industry has its bad actors, we find no evidence behind the fear of rampant party houses.

As companies like Airbnb and VRBO actively discourage so-called party houses by allowing owners to give ratings to tenants, the occasional party house, where neighborhoods are displaced by excessive noise, trash, and traffic, appears to be a rare exception.

The law’s aim is designed to regulate short-term rentals and prohibit their use s venues for weddings and other large events. Newly-signed House Bill 2672 gives local governments authority to regulate short-term rentals to prevent their commercial use and requires owners to provide contact information.

It also requires cities and towns to notify the Arizona Department of Revenue and the owner of any violation of law within 30 days.

Owners are subject to fines starting at $250.00 and increasing to $1,500.00, and more, per violation.

HB 2672, which takes effect on August 2019, can be found here.

Legal Help with Your HOA

If you feel you need legal assistance with regard to the new short-term rental law or if you have any questions, check out our HOA Law or Real Estate Law page for more information.

Are Short-Term Rental Restrictions Valid?

Short-term HOA rental restrictions are currently a hot topic.

Notwithstanding changes in tax laws providing significant benefits of short-term rentals of second homes, more and more HOAs and condominium associations are attempting to amend their CC&Rs to add short-term rental restrictions. We believe most of these amendments are invalid under Arizona law.

What is a Short-Term Rental Restriction?

Before we address why short-term rental restrictions are likely invalid and unenforceable, it is first necessary to define the terms we will be using. A "short-term rental restriction" is, generally, any restriction on the length of time that a property can be leased and often refers to restrictions of less than six months though it also can refer to restrictions of less than one year. For purposes of this article, restrictions of rentals on a daily, weekly, monthly, or biannual basis fall under the "short-term rental restriction" umbrella. "CC&Rs," short-hand for "Declaration of Covenants, Conditions, and Restrictions," refers to the recorded document or documents that govern the Association. CC&Rs are not Bylaws or Articles of Incorporation or Organization.

The following is a common CC&R provision:

Leasing Restrictions. Occupancy of an entire Dwelling Unit on a Lot, but not less than the entire Dwelling Unit, may be granted to a tenant from time to time by the Owner, subject to the provisions of the Master Declaration and the Association Rules. Written leases are required for any Dwelling Unit on a Lot. All leases must restrict occupancy to a Single Family. Before the commencement of each lease term, the Owner of the Lot shall provide the Board with written notice to the Board of the names of the lessee and their family members and the terms of the lease.

In addition, if the Board of Directors creates and/or adopts a "rental registration form," the Owner shall submit such form to the Master Association for every rental. Any agreement for the lease of a Dwelling Unit must be expressly subject to the Governing Documents of the Master Association. The lease must contain a provision that any violation of the Governing Documents of the Master Association shall be a default under the lease and is grounds for eviction.

There is nothing in this "Leasing Restriction" prohibiting or restricting rentals to a set term. So the question is whether and under what conditions an Association can amend this Leasing Restriction to prohibit short-term rentals. The CC&Rs also contains a generic amendment provision allowing for amendments based on a Majority of the Members (i.e., 51%).

Notwithstanding such a generic amendment provision, the Dreamland Villa case states that a Majority of the Members generally does not have the right to amend CC&Rs to add new restrictions that "unreasonably alter the nature of the covenants." Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 51, 226 P.3d 411, 420 (App. 2010). In order to determine whether the new proposed restrictions "unreasonably alter the nature of the covenants," courts look at whether the proposed amendment is foreseeable based on the language of the existing CC&Rs. If the existing CC&Rs do not place a purchaser on notice that they might be subject to new restrictions of the nature of the one being proposed, then a majority vote of members is insufficient to pass the amendment and unanimous approval of all members is required.

We recognize that the requirement of unanimous consent might seem unfair to some. There are some who argue that the mere fact that CC&Rs can be amended should be sufficient to put an owner on notice that she or he might be subject to new restrictions. But this superficial analysis ignores that real estate is often the single biggest asset most people will buy and they are entitled to buy in reliance on the existing CC&Rs. An owner who buys property specifically to use as short-term rentals and relies on the absence of such a prohibition in the existing CC&Rs does not reasonably anticipate that the singular purpose for their purchase might be outlawed by 51% of their neighbors.

Accordingly, substantial and unforeseeable limitations on an owners' rights generally require unanimity (100%). Amendments to recorded declarations cannot create new obligations or restrictions where the recorded declaration’s provisions did not alert the homeowners to the possibility that they would be subject to the new restrictions. If a recorded declaration does not contain or at least provide for later adoption of a specific restriction or requirement, it is invalid.

The Arizona Legislature has made this unanimity requirement part of the Condominium Act. A.R.S. § 33-1227 states that "an amendment shall not create or increase special declarant rights, increase the number of units or change the boundaries of any unit, the allocated interests of a unit or the uses to which any unit is restricted, in the absence of unanimous consent of the unit owners." Because short-term rental restrictions change "the uses to which any unit is restricted," the Condominium Act expressly would require "unanimous consent of the unit owners." Although the Planned Condominium Act does not contain a similar provision requiring unanimity, the Dreamland Villa case and other legal authorities recognize that the requirement of "unanimous consent" also applies in planned communities.

There are two final considerations. First, though the determination of whether a rental restriction is "substantial and unforeseeable" would appear to be one that can be made as a matter of law just be looking at the original CC&Rs, several courts have ruled that it is up to a jury to decide whether the new restrictions are "substantial and unforeseeable." Second, the Condominium Act requires that any challenge to the validity of an amendment "shall not be brought more than one year after the amendment is recorded." This means that, out of an abundance of caution, any lawsuit challenging the adoption of a rental restriction should be brought within one year of its adoption.

For more information or to discuss a short-term rental restriction in your association, contact Jonathan Dessaules at [email protected] or 602-274-2360 or visit our HOA Law page.

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DLG Prevails in Jury Trial in Challenge to Short-Term Rental Ban, New Short-Term Rental Law to Take Effect in August

DLG Prevails in Jury Trial in Challenge to Short-Term Rental Ban

Dessaules Law Group attorneys recently prevailed in a jury trial in a lawsuit brought against an HOA challenging the validity of a short-term rental ban. The HOA's Board of Directors obtained the approval of more than 75% of the owners to adopt the ban on rentals of less than six (6) months and recorded the proposed amendment. Five property owners voted against the ban.

The original CC&Rs did not contain any rental restrictions and allowed for an amendment if 75% of the owners voted in support of its amendment. DLG argued that, notwithstanding the 75% amendment provision, the unanimous consent of all owners (that is, 100%) was necessary because the rental ban was a new and material restriction that was substantial and unforeseeable in the original CC&Rs. The case went to the jury to decide whether rental restrictions prohibiting rentals of less than six (6) months was a substantial and foreseeable change.

The jury, after deliberating just over one hour following a two-day trial, returned a verdict finding that the proposed amendment was invalid because it was a new prohibition that was not contemplated in the original CC&Rs.

We believe this was the first case of this nature to be tried to a jury in Arizona.

Related Articles:
Are Short-Term Rental Restrictions Valid?, New Short-Term Rental Law to Take Effect in August

To see the team behind this victory, you can check out our attorneys page and find out more about their background and other achievements.

Post-Judgment Collection of Unawarded Attorneys’ Fees Violates the Fair Debt Collection Practices Act

Arizona Judgment Collection

The United States District Court for the District of Arizona has ruled in a case brought under the Fair Debt Collection Practices Act (“FDCPA”) that a law firm that submits a demand for payment of unawarded post-judgment attorneys’ fees in a judgment-debtor’s refinance violates the FDCPA.

In March 2016, the law firm representing a homeowners’ association obtained a judgment against the debtor for $7,373.57. Although the law firm had included language in the judgment purporting to entitle the judgment-creditor to post-judgment attorneys’ fees and costs, the justice court that entered the judgment specified that any fees and costs would only be awarded “after submission and approval by the court.” In April 2016, less than one month later, the law firm claimed that the amount owed under the judgment was $8,760.09, which included an additional $1,053.88 in post-judgment attorneys’ fees and costs incurred after entry of the judgment. In May 2016, the law firm claimed that the post-judgment fees and costs had grown to $1,655.88 and that the total amount of the judgment was $9,162.26. And in June 2016, the law firm wrote the lender refinancing the debtor’s property (so that the debtor could pay off the judgment) that the balance due was $9,476.21. The law firm collected the full $9,476.21 out of the refinance proceeds, including approximately $2,000.00 in post-judgment attorneys' fees and costs. 

The debtor filed an FDCPA action, claiming that the law firm violated the FDCPA because its representations in collecting the judgment were “false, deceptive, or misleading” and the firm had used “unfair and unconscionable means to collect or attempt to collect [a] debt.” The District Court ruled that the law firm violated the FDCPA by demanding and collecting almost $2,000.00 of post-judgment attorneys’ fees without ever submitting those fees to the court for approval.” The Court explained:

Essentially, [the law firm] saw an opportunity to recover all the fees they wanted without the trouble of justifying the amounts to a court, and they took it. This is precisely the type of exploitative behavior the FDCPA was enacted to prohibit. Therefore, the Court concludes that Defendants violated [the FDCPA] by misrepresenting to Quicken Loans that these feeds were legally due and owing... The Court also concludes that Defendants violated [the FDCPA] by collecting an amount that was not expressly authorized by law because the Judgment specifically required approval by the justice court of additional attorneys’ fees. 

The case is Jason v. Maxwell & Morgan PC. DLG represented the Plaintiff. 

Related Articles: 
Ninth Circuit, Court of Appeals Clarifies When and How HOAs Can Collect Fees

If you want to learn more about your rights as a consumer or HOA law in general. You can read more about it on our HOA Defense and Consumer Rights page.

Ninth Circuit Concludes HOA Attorneys’ Post-Judgment Debt Collection Practices Were Misleading

The Ninth Circuit Court of Appeals in McNair v. Maxwell & Morgan, P.C., recently held that a law firm that files a judicial foreclosure action to collect unpaid homeowner association assessments is acting as a "debt collector" and engaging in "debt collection" activities subject to the Fair Debt Collection Practices Act ("FDCPA"). 

The FDCPA applies to "debts" and regulates the conduct of "debt collectors." A "debt" is defined in the FDCPA as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5). A debt collector is any entity or person who "regularly collects or attempts to collect ... debts owed or due ... another.” The district court had concluded that filing a judicial foreclosure action was not "debt collection" activity and the law firm that filed it and a subsequent writ of special execution to conduct the sale of Ms. McNair's home was not engaged in “debt collection” activities. 

The Ninth Circuit rejected this conclusion. In holding that judicial foreclosure actions constitute debt collection activities, the Court distinguished judicial foreclosure actions from non-judicial foreclosure actions. Because the object of the action is "to retake and resell the security," not to collect money, and deficiency judgments following non-judicial foreclosures are prohibited in many states, the Ninth Circuit held that the latter is not debt collection activities subject to the FDCPA.

Judicial foreclosure actions filed over unpaid homeowner associations, by contrast, principally seek to collect unpaid homeowner association fees. The Ninth Circuit rejected the argument that such fees are not "debts," holding that they constitute obligations "to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes[.]” Thus, the Court found that the record was clear that the law firm and its lawyers "were in fact 'debt collectors' collecting 'debt.'”

Having established that homeowner association assessments were "debts" under the FDCPA and the law firm and its lawyers were "debt collectors" subject to the FDCPA, The Ninth Circuit held that the law firm and its lawyers violated the FDCPA by including $1,597.50 in unawarded post-judgment attorneys' fees in a writ of special execution filed to complete the sale of McNair's property because "no court had yet approved the quantification of the 'accruing' attorneys' fees claims in the Writ." 

The Ninth Circuit held that the law firm "falsely misrepresented the legal status of this debt, by implicitly claiming that the accruing attorneys’ fees of $1,597.50 already had been approved by a court."

The case is McNair v. Maxwell & Morgan, P.C.

Related Articles:
Post-Judgment Collection of Unawarded Attorneys’ Fees Violates the Fair Debt Collection Practices Act, Court of Appeals Clarifies When and How HOAs Can Collect Fees

For more information about HOA Laws, check out our HOA Law page or schedule a consultation with one of our attorneys.

Court of Appeals Clarifies When and How HOAs Can Collect Fees

The Arizona Court of Appeals, in a recently-published decision, clarified the circumstances under which an HOA was allowed to collect attorneys' fees from a homeowner. In Bocchino v. Fountain Shadows Homeowners Association, the Court of Appeals held that an HOA was not entitled to collect attorneys' fees that it purportedly incurred in obtaining an Injunction Against Harassment against a homeowner when it did not seek an award of attorney fees from the court and no fees were awarded by the court. Dessaules Law Group represented the successful homeowner.

The HOA in Bocchino sought and obtained an ex parte Injunction Against Harassment on behalf of several board members claiming that the homeowner was harassing them. The homeowner did not challenge the Injunction, did not request a hearing, and instead decided to sell her home and move out of the community. The HOA never requested fees from the court issuing the Injunction but simply added fees to the homeowner's account that is collected at closing. Although the HOA never mentioned the Declaration in the Injunction Against Harassment action, it argued that the Declaration allowed it to obtain its fees from the homeowner.

The Superior Court ruled that the HOA was not allowed to collect the fees it incurred. The Court of Appeals affirmed on two grounds. First, it held that a party seeking attorneys' fees relating to an Injunction Against Harassment had to request fees in that action or waived any claim to its fees. Second, the Court of Appeals held that the HOA's Declaration "does not expressly provide that the Association may assess, directly against a homeowner, attorney fees incurred in a judicial proceeding that has not been awarded by a qualified tribunal. "

It is a common practice among HOAs in Arizona to collect attorneys' fees from homeowners without obtaining an award from a court. Once an HOA has obtained a money judgment, for example, it will seek to collect additional attorneys' fees not specifically awarded in the judgment that it incurs post-judgment. Although the Court of Appeals in Bocchino did not expressly address this practice, it made several comments suggesting that this practice is unlawful. For example, the Bocchino court rejected on "sound policy" reasons the Association's argument that judicial approval of an HOA's fees was not necessary because the fee provision in the Declaration allowed the Association to recover “all” the fees incurred.

The Court further observed:

[T]he Association has cited no authority for the proposition that it was permissible to simply charge Bocchino’s Association account for attorney fees it incurred without first receiving an award from the court. Requiring the tribunal that resolves the litigation to evaluate attorney fee claims – as generally required by our statutes and rules – constitutes sound policy. Courts play a significant role in assessing and awarding attorney fees incurred in judicial proceedings. 

Finally, in a footnote, the Court of Appeals observed that "[w]hether the fees the Association incurred were prima facie reasonable (or clearly excessive) was a question for the court that issued the injunction." There is no reason to believe that this "sound policy," however, is limited to Injunctions Against Harassment and there is nothing in the opinion that suggests it should be narrowly construed. 

While we do not believe that the Bocchino opinion will end the practice of HOAs collecting unawarded attorneys' fees without any judicial oversight, Bocchino provides clear direction that the practice is improper and should end.

The case is Bocchino v. Fountain Shadows Homeowners Association.

Find out more about your rights on our HOA Defense and Consumer Rights page. You may also like to read about Post-judgment Collections.

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Nevada Jury Awards $20 Million Against HOA for Failing to Maintain Swingset

The failure to maintain and repair can cost an HOA. In this case, the failure to repair a known faulty swing set will cost an HOA $20,000,000.00.

The swingset in question failed on four previous occasions. Despite spending over $100,000 per year on landscaping, repairs, and maintenance, the HOA refused to pay just $150.00 per month for a monthly inspection and maintenance plan repeatedly recommended by the swingset’s manufacturer. The plaintiff suffered a crushed skull and other permanent injuries.

An HOA's duty to maintain and repair common areas is its central function. 

Read the full article here:

 https://www.reviewjournal.com/local/jury-awards-20m-in-las-vegas-case-involving-playground-injury/

Or you can read my recap and takeaways:

The civil suit was filed by a teenager, Carl Thompson, who suffered a traumatic brain injury in a playground accident in 2013. Thompson, then 15, was using a swingset at Lamplight Village at Centennial Springs when the 42-pound metal crossbar broke, landing on his head and causing severe injuries.

The jury held the Lamplight Village at Centennial Springs Homeowners Association (HOA) responsible, awarding $10 million in compensatory damages for pain and suffering and $10 million in punitive damages.

Thompson, now 20, experiences headaches, memory loss, movement problems, and an increased risk of dementia.

The HOA had reportedly ignored warnings and declined inspection plans, despite previous incidents with the swingset.

This incident underscores the importance of proactive safety measures within homeowners' associations.

HOAs should prioritize regular inspections and maintenance of communal facilities to prevent accidents and injuries. The case highlights the potentially severe consequences of neglecting safety warnings and failing to invest in necessary repairs.

HOA members, you CAN advocate for thorough safety protocols, ensuring proper funding for maintenance, and holding the association accountable for negligence. This accident emphasizes the need for HOAs to prioritize the safety of community amenities and allocate resources responsibly, not only to protect residents but also to avoid legal consequences that can result from inadequate care of shared spaces.

If you feel like your HOA is ignoring their duties to keep you safe, make sure to reach out!

If you liked this article, you might also like to read about Kevin Payne and HOA President Accused of Embezzlement.

For more information about HOA Laws, check out our HOA Law page or schedule a consultation with one of our attorneys.

What About My Emotional Support Pig (or Chicken, Dog, or Cat)?

Many people when they think about their homes or families, they think about the family pet or pets. Dogs, cats, birds, hamsters, chickens... Many people who live in homeowners associations or condominiums, however, are told that they are not allowed to have pets or that they are only allowed to have certain pets or that their pets are only allowed if they fall within certain size and weight restrictions. We recently met with a gentleman whose dog had gained weight and it went from being "allowed" to "not allowed" due to his added girth. "Sorry, Cooper is no longer welcome here at the condominium. We look forward to seeing him back here when he loses the extra five pounds."

The questions we most common encounter with pets is whether an association has the right to ban pets altogether and whether the association has the right to ban a particular pet. 

Generally, if the CC&Rs do not prohibit the right to restrict pets or animals, the HOA is probably barred from attempting to create a new rule without unanimous consent. If a declaration expressly allows pets is silent, a board of directors lacks the power to adopt rules banning them. This is not to say that associations cannot impose reasonable restrictions (they can). Of course, what constitutes reasonable restrictions is, as with beauty, often in the eye of the beholder.

However, associations generally cannot prohibit support animals (such as the emotional support pig shown in the photo above). Both the Arizona and Federal Fair Housing Act require HOAs and condominiums to make reasonable accommodations to ensure that homeowners are afforded equal opportunities to use and enjoy their property and the common areas. An association that refuses a reasonable accommodation can face a lawsuit, damages, and attorneys' fees. Both the state and federal versions of the FHA exist to ensure that individuals with disabilities, whether obvious or not, receive the same rights, benefits, and privileges as their neighbors.

Keep in mind that a homeowner cannot simply declare any animal to be an emotional support animal. You can't just grab any bird out of the air and call it your emotional support pigeon. There are rules and requirements as to what constitutes such an animal and there is usually a certification process that is required.

Associations need to tread lightly when it comes to emotional support animals, in general, and the state and federal Fair Housing Acts, in particular. Please give us a call at 602-274-5400 if you have any questions about your emotional support dogs, pigs, chickens, or other animals.

Do you want to find out more about your rights for an emotional support animal? You can talk to our attorneys today, schedule a consultation now. Or, continue reading to our next blogs about getting sued and Arizona Legislators.

How to (Properly) Remove HOA Board Members

Always get a lawyer involved early and often. Why? Because if you do it incorrectly you’ll likely make things a lot worse for you and your neighbors. More importantly, a board member generally does not have to face more than one removal petition during his or her term of office. So, an improper removal could prevent your neighbors from doing it correctly.

Assuming your community is not under declarant control (or the declarant has not appointed the board member in question), there are three different numbers that generally determine the success or failure to a removal petition. The first you’ll need to remember is an either-or: 25% or 100. In a community with one thousand or fewer members, a petition for the removal of one or more board members must be signed by either at least 25% of the votes or by 100 (whichever is less). If your association has more than one thousand members, however, you only need ten percent. Keep in mind that these are the thresholds. You have to assume that the board, its property managers, and its attorneys are going to scrutinize your petition to try to invalidate it. If you have signatures of exactly 25%, you’re making their job easier for them.

The next number to remember is 20%. This is the percentage of owners necessary to establish a quorum for purposes of a special meeting called for the purpose of removing a board member. Submitting a petition was just the first step. You need to mobilize your troops and keep them invested in the process. If you get 40% of the owners to sign a removal petition but only 10% show up at the special meeting, the process is over and you’ve lost. 

You’ve gotten your 25%+ signatures, you’ve submitted a removal petition, and you’ve mustered your allies to show up at the board meeting so you pass the 20% threshold. You’re still not done. For the removal to be effective, a majority of those voting (either in person or by absentee ballot) must vote in favor of removal. So, the third number to remember is 51%. Obviously, if the board members subject to removal show up with more votes, then they will successfully defeat the removal petition.

These are the basics. Removing a board member can often be a complicated process. The statute, for example, imposes rigid timelines to be enforced. The law also says that a petition calling for the removal of a board member “shall not be submitted more than once during each term of office for that member.” It also entitles the prevailing party in any civil action filed regarding a removal to be awarded reasonable attorneys’ fees and costs. 

There are a number of nuances in any removal petition and follow up questions, such as who fills the vacancies if successful? What happens if the board does not honor or challenges the petition? We highly recommend hiring a lawyer to walk you through the process to make sure it is done correctly. We cannot guarantee success in the removal process, but our professionals can guide you to avoid making mistakes that could continue to haunt you for months or even years.

To learn more about HOA law, click on HOA Law and read more. Or read more HOA related articles such as HOA Codes of Conduct or SB-1531.

2018 HOA Legislative Update — Not Fixing the Real Problems (and Creating Some Really Bad Ones, too).

The 2018 Arizona Legislative session has gotten off to a fairly unremarkable start for homeowners that potentially promises to make some really bad law for homeowners and fails to fix any of the real problems that homeowners, individuals, and consumers face on a daily basis. 

Let’s start with  a bill so bad that its own sponsor pulled it after less than one week. Senator John Kavanaugh, R-Fountain Hills, proposed amending legislation to HOA laws that would speed up the foreclosure process. Although the current laws allow homeowners associations and condominiums to foreclose if the homeowner is either one year or $1,200.00 past due, Senator Kavanaugh's proposed legislation (SB-1080) would have shortened that period to just six months. Apparently, he tried to package this nonsense as friendly for homeowners. This was literally the only change to the existing law that Senator Kavanaugh proposed. Fortunately, he withdrew the proposed bill just days later. With HOAs already foreclosing thousands of homes in Arizona (yes, I said thousands), do we really need to speed up this process?

But homeowners are not out of danger yet. A new bill seeking to amend the same laws has recently dropped in the House: HB-2609. While this might seem like another feel-good measure that, on its face, might be beneficial homeowners, it is a wolf in sheep's clothing. 

Why? It requires an association, before filing for foreclosure, to first seek and obtain a money judgment against the homeowner.  If the HOA cannot recover "the full amount of the assessments owed by execution or garnishment," then it is free to proceed with foreclosure. Sounds great; right? Homeowners cannot lose their home right away because the HOA or condominium association must first take you to court, get a money judgment, and then try to collect that money judgment. 

So what's the problem with this? Fees, for starters. Those money judgments come at a substantial cost and, you, the homeowner, are the one who is expected to pay for them. All of them. Then there's the ambiguity that the new statute creates. If your HOA gets a money judgment against you for $1,000.00 in assessments and $2,500.00 in fees and costs, that's $3,500.00 that you have to pay. If you don't have $3,500.00, does this mean that the HOA can proceed to foreclosure? 

There's also a problem with the amounts. The lawyers who prepare these money judgments for the HOA often contain "blank check" language purporting to award the HOAs with all future costs and fees incurred collecting the money judgment. This means that the $3,500.00 judgment easily could become $5,000.00 or more. Sadly, this is often done without a court ever looking at any of these additional fees or the HOA even asking for permission to collect them. Quite simply, it becomes impossible to pay off the money judgment.

Then there's the biggest question of all -- what is the amount that you have to pay to avoid foreclosure? Is it the $1,000.00? Is if the $3,500.00? What if you paid $500? What is the new amount you have to pay? You can bet the bank (and you may have to) that the HOA will argue that, to avoid foreclosure, you have to pay not just the $1,000.00 but the entire amount of the prior judgment. They'll wrap the money judgment into the new foreclosure lawsuit.

The bottom line is that this new legislation benefits the HOA lawyers. It gives them the power to charge virtually unlimited fees. At best, this proposed bill creates further ambiguities and problems. At worst, it codifies a system that is already in place designed to run up attorneys' fees on behalf of an HOA to make it difficult, if not impossible, for Arizona homeowners to catch up once they fall behind.

If Legislators wanted to fix the problem, one solution is an easy one -- clarify that homeowners can avoid foreclosure, at any time (before or after a lawsuit is filed), simply by paying the amount of the unpaid assessments. All too often, homeowners are paying thousands of dollars to pay these unpaid assessments only to find that the attorneys representing the HOAs refuse to dismiss the foreclosure lawsuits because the homeowners won't pay the attorneys' fees and costs that have not yet been (and may not be) awarded.

 
If you have any questions or concerns with your HOA, our attorneys will be more than willing to help you out. Schedule a consultation today and speak with our experienced attorneys directly. Or, continue reading another HOA law-related blog by clicking here.

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A Practical Guide to the Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act (“FDCPA”) was adopted to “eliminate abusive debt collection practices by debt collectors….” 15 U.S.C. § 1692(e). Debt collectors include lawyers and law firms regularly engaged in the collection of debts through litigation constitute debt collectors for purposes of the law. Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 1493, 131 L.Ed.2d 395 (1995).

A debt collector’s behavior is measured according to a “least sophisticated debtor” standard, which “ensure[s] that the FDCPA protects all consumers, the gullible as well as the shrewd… the ignorant, the unthinking, and the credulous.’” McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939, 952 (quoting Clark v. Capital Credit & Collection Serv., Inc., 460 F.3d 1162, 1171 (9th Cir. 2006)). The FDCPA is a strict liability statute that “makes debt collectors liable for violations that are not knowing or intentional.” Reichert v. National Credit Systems, Inc., 531 F.3d 1002, 1005 (9th Cir. 2008).

Absent evidence of a bona fide error, courts have held that a debt collector violates the Fair Debt Collection Practices Act as a matter of law where it misstates the balance owed, misrepresents the legal status of a debt, pursues a non-existent debt, or collects or garnishes more than the amount owed. 

Although a debt collector can violate the FDCPA in numerous ways, most violations fall into one of the following two categories. We will address additional FDCPA violations in subsequent blog posts.

False and Misleading Misrepresentations.

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. This includes, but is not limited to false representations as to:

(A) the character, amount, or legal status of any debt; or

(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.

(3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.

It also prohibits debt collectors from representing or implying: that nonpayment of a debt will result in arrest or imprisonment or the seizure, garnishment, attachment, or sale of any property or wages of any person (unless such action is lawful and the debt collector or creditor intends to take such action); threats to take actions that cannot legally be taken or that are not intended rot be taken; false representations or implications that the consumer committed any crime or other conduct in order to disgrace the consumer; and falsifying documents to make it appear they are authorized, issued, or approved by courts, officials, or the U.S. or state agencies.

This section of the FDCPA generally prohibits using false representations or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. 

Unfair or Unconscionable Means.

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. This includes:

1. Collecting amounts (including any interest, fee, charge, or expense incidental to the principal obligation) that are not expressly authorized by the agreement creating the debt or permitted by law.

2. Accepting a check or other payment instrument postdated by more than five days (unless such person is notified in writing of the debt collector's intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit).

3. Soliciting postdated checks or other postdated payment instruments for the purpose of threatening or instituting criminal prosecution.

4. Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument.

5. Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if (a) there is no present right to possession of the property claimed as collateral through an enforceable security interest; (b) there is n present intention to take possession of the property; or (c) the property is exempt by law from such dispossession or disablement.

6. Communicating with a consumer regarding a debt by postcard.

Violations of the FDCPA carry penalties, including statutory and actual damages as well as attorneys' fees and court costs.

 If you like this article, you may also find these topics interesting: HOA Law, HOA Defense and Consumer Rights, Civil Litigation and Appeals, Bankruptcy. Or, continue reading to our next blog about how HOA codes of conduct are impossible to enforce.

Board Members Can't Exclude the Opposition from Meetings

HOA boards cannot exclude or prohibit board members from executive sessions or other meetings. In McNally v. Sun Lakes Homeowners Association #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (October 13, 2016), the Court of Appeals rejected an association's argument to exclude a board member from all executive sessions, holding that "bypassing the motion, the Board prevented [her] from performing her duties and responsibilities as a director."

The Court wrote:

Participating in executive sessions was critical to McNally performing her duties as a director. Pursuant to A.R.S. §§ 33–1804(A)(1)–(5), directors of a homeowners' association are permitted to discuss a wide variety of important matters in executive session, including: legal advice from an attorney; pending or possible future litigation involving the association; personal, health, or financial information about association members, employees, or contractors; and job performance, compensation, health, and complaints regarding association employees. Indeed, during McNally's term, the Board frequently held executive sessions to discuss important matters such as the Association's budget, members' code of conduct, remodeling projects, creation/elimination of staff positions, and hiring a general manager. However, based on the Board's motion, McNally was not allowed to participate in any of these discussions.

When members are elected to serve as board members, "it is contemplated that the corporation shall have the benefit of the judgment, counsel, and influence of all of those directors.” Id. (quoting 2 William Meade Fletcher et al., Fletcher Cyclopedia of Law of Corporations § 406 (perm. Ed., rev. vol. 2014)). The Court of Appeals held that a meeting held in the absence of some of the directors and without notice to them is most likely illegal.

If you are an HOA board member and this happened to you or if you feel you need legal service regarding this matter, schedule a consultation with one of our attorneys or read more about your rights on our HOA law page.

Second Mortgages and Lines of Credit

Arizona law prohibits a lender from filing a lawsuit to collect on a home loan where the loan represents “purchase money,” that is, money used to purchase the property. This includes purchase money loans that are technically denominated as “home equity lines of credit” taken out at the time of the original purchase of the home. It also includes first, second, and even third mortgages where the money was borrowed as part of the purchase of the property.

Consider the following illustration: You buy a $300,000.00 house. It is structured as two loans in what is commonly called an “80-20” transaction, meaning that the first loan is 80% of the purchase price, or $240,000.00, and the second loan is 20% of the purchase price, or $60,000. Because both of these loans are considered purchase money loans, the lenders cannot sue the borrower to recover the money in the event the borrower defaults. This is true even if the borrower has refinanced the original loan to get a better interest rate or other terms (note: the same may not be true, however, if the borrower has refinanced in order to withdraw some equity). This is also true even if the lender calls the second loan a “home equity line of credit.”

A common scenario in today’s real estate market is that the first mortgage forecloses. Ordinarily, this leaves the second lender without any remedy because they cannot file a lawsuit seeking to recover the difference. A number of lenders, however, are either unaware of, or deliberately ignoring, this prohibition by filing improper lawsuits. In many cases, the original loan has been sold to a different bank and the new bank fails to do its due diligence to determine whether the loan is a purchase money loan before filing a lawsuit. Because borrowers are unaware of the rules, in many cases they do nothing and let the lenders obtain substantial default judgments against them. Judgments to which the lenders otherwise would not be entitled except the borrower has forfeited his or her right to defend the lawsuit! In many cases, you may be entitled to recover your attorneys’ fees and costs if you are forced to defend such a lawsuit.

Don’t become a victim of predatory collection practices on the part of unscrupulous or unknowledgeable banks. If a bank has sued you on a second loan, we strongly advise you to consult with a lawyer to determine your legal rights. Contact the lawyers at the Dessaules Law Group today at 602-274-5400 to schedule a consultation.

Can they really shut off my water?

Homeowner and condominium associations are increasingly adopting policies for shutting off water or other utilities where an owner has fallen behind in his or her assessments, owes fines or penalties for violating the governing documents, or is supposedly refusing to follow rules.  Although people who own in a homeowner association generally are obligated to pay assessments, associations commonly use these water shut-off policies in order to force members to pay assessments, fines, penalties or other charges that they may not owe.  These owners often face an unfair choice: Pay what we tell you to pay or live without water. 

What many homeowners do not know is that such policies in many cases may be unenforceable. There is no reported case in Arizona that authorizes a homeowners association to shut off water or other utilities. The determination of whether the policy is enforceable depends on several factors, including (a) an association’s governing documents, (b) Arizona’s planned community and condominium laws, (c) the history of the policy and its enforcement, and (d) whether the association is seeking to collect assessments or fines and penalties.  In many cases, the water shut off policy is not enforceable and can be successfully challenged in court.

In most cases, we find that the application of these factors provides fertile ground for challenging a shut-off policy.  While this is especially true where the association does not pay for the utility that is the subject of the shut-off policy, the association does not necessarily gain the right to shut off essential services even if it pays for the utilities.

Please understand that we are not advocating you to refuse to pay assessments.  Assessments have been called the “lifeblood” of a homeowners association and an association has every right to collect assessments…provided that the assessments are valid and it does so within the law.  If you believe that assessments are invalid, we strongly encourage you to seek legal representation to learn about your rights and obligations.  We recommend you seek legal counsel before taking any action.  Although many people believe that they can simply stop paying assessments, it is our experience that this is not the wisest course of action and many people who stop paying assessments quickly regret it.

Courts cannot, and should not, condone a homeowner who has refused to pay valid assessments.  But the courts also should not condone a homeowners association that has exceeded its lawful powers and seeks to use unlawful collection tactics.  And, in many cases, the association is using the threat of water shut off to force a homeowner to pay disputed fines or penalties. 

An Association’s Governing Documents Rarely Permit the Disconnection of Water of Other Utilities.

Although many associations will argue that their governing documents (CC&Rs and Bylaws) in general provide sufficient authority for shutting off utilities, this is rarely the case. Unless an association’s CC&Rs explicitly creates the right to shut off utilities as a collections tactic, then no such right exists.   Even if the CC&R’s provide such an explicit right, that provision may be found to be unlawful.

The CC&R’s constitute a contract between the Association and the homeowners. In most cases, the governing documents spell out the rights and remedies of the association.  Rarely do these enumerated rights include the ability to shut off water or other utilities for non-payment.  Rather, they generally permit an association to commence legal action for damages or foreclosure (if applicable) and on occasion may also allow the association to suspend certain rights and privileges, such as the right to vote.  If the right to shut off water is not expressly spelled out in the CC&Rs, then it is not part of your contract with the association.

Nor can the right be inferred or implied from a general right to collect assessments or charge fines. One court addressing this question has decried this “extra-legal means of enforcement,” holding that the association, in that case, lacked the legal right to shut off a homeowner’s water.  See Western v. Chardonnay Village Condominium Ass’n, 519 So.2d 243 (1988).  In general, the absence of express language authorizing utility shut off, and the inclusion of specific language spelling out the methods for collection of unpaid assessments, as if often the case, defeats any argument that such an implied right exists.

The association’s CC&R’s generally do not give it the right to employ collection tactics such as shutting off the water, disconnecting utilities, or prohibiting parking any more than the association could threaten to change the locks on your house or condominium.  And an association does not have the right to change the locks on your house or condominium.

Arizona Law Does Not Permit the Disconnection of Utilities.

Arizona law also does not authorize the disconnection of water or other utilities.  Arizona’s statutes governing condominiums and planned communities generally restrict exclusive an association’s remedy for non-payment of assessments to commencement of a civil action for damages and/or foreclosure of its lien (where applicable).  Nothing in Arizona’s Planned Communities Act or Condominium Act allows an association to disconnect these essential services any more than it could change the locks on your home.  Simply put, an association does not have the authority under Arizona law to deny water or other utilities as a means of collecting for past due assessments or penalties.

Arizona courts have analogized homeowners associations to landlords in many respects.  See Martinez v. Woodmar IV Condominiums Homeowners Ass’n, Inc., 189 Ariz. 206, 941 P.2d 218 (1997).  A homeowners association has no greater right to shut off water or other utilities than a landlord.  And a landlord generally cannot shut off essential utilities in Arizona—even where the landlord pays for those utilities—as a means of compelling payment of rent.  See A.R.S. § 33-1364.  Thus, the fact that the homeowners association might pay the utility bill as a common expense does not necessarily create the right to shut off that utility to a non-paying homeowner.

The disconnection of essential services also arguably raises serious due process concerns.  The Condominium Act and Planned Community Act both require commencement of legal process in order to collect past due assessments or fines.  Where an association has received a specific grant of power under the statute, a collection policy that circumvents the legal process provided, and avoids the judicial oversight inherent in the legal means set forth in the statute, offends basic concepts of due process.

The History and Application of the Policy Is a Crucial Question.

Even if state laws and an association’s governing documents permit shutting off utilities, one should examine the history of the policy and how it is being enforced.  Consider the following questions:  Was the policy adopted in a properly noticed, open meeting? Was the policy communicated to the homeowners?  Is the policy uniformly enforced? Unless you can answer, “yes,” to each of these questions, the homeowner may have valid grounds for challenging the policy.

Policies that are discussed and adopted in closed, private meetings by a select handful of homeowners subvert Arizona’s open meeting statutes (A.R.S. §§ 33-1248 and 33-1804), and are invalid and unenforceable. Although the open meeting statutes do not explicitly spell out the remedies for their violation, the statutes would be meaningless if actions taken during a closed or secret meeting are valid. Even if the policy was adopted in a properly noticed, open meeting, the failure of the association to disseminate the policy to homeowners could render the policy otherwise unenforceable.

Such policies, however, are almost never enforced uniformly or objectively.  The policy is often enforced only against those designated as troublemakers or outsiders, or delinquent board members may exempt themselves or their friends from the harsh application of the policy; or the policy may be enforced arbitrarily or capriciously.  Any evidence that the policy is not enforced on a uniform and non-preferential basis renders the policy enforceable.  It also violates an association’s duty to treat all homeowners equally and fairly.

Is the Association Shutting Off Water as a Fine or Penalty?

The non-payment of assessments, as discussed above, should not be condoned and Arizona law provides remedies for the non-payment of those assessments.  In many cases, an association has threatened to shut off water or other utilities as a means of forcing a homeowner to pay disputed fines, penalties, or fees.  The nature of the monetary amount that is the subject of the collection effort is a crucial factor that must be considered in challenging the water shut off policy.

Although it is our position that water shut-off policies are almost always unenforceable, the challenge to the policy is strengthened where the alleged delinquent balance includes disputed fines, penalties, and charges other than just assessments. The rationale common employed by an association defending a water shut-off policy is that assessments are used to pay the utilities.  This rationale is absent where the balance consists, in part or whole, of fines or penalties for alleged (and unproven) CC&R violations.

Arizona law distinguishes between assessments and fines.  For example, a homeowners association has the statutory right to foreclose where the unpaid assessments exceed $1,200.00 or have not been paid for more than one year, the association generally does not have the right to foreclose for violation fines or penalties.  If an association cannot foreclose if you paint your house the wrong color or leave your trashcan out overnight, why should they be allowed to shut off your water in order to force you to pay fines and penalties that you dispute and may not even be valid!

Conclusion.

In many cases, a policy that allows the association to deny essential utilities or access to your unit is subject to challenge.  Because every case is unique, you should not rely on this article as legal advice specific to your situation.  But if you are faced with threats of having your water shut off, you should immediately consult a lawyer.

Don’t be a victim or abusive practices. Seek legal assistance and learn more about your legal rights on consumer fraud.

My HOA got a $1,200.00 judgment against me. So why are they saying I owe $6,000?

If you live in a homeowners association and have ever fallen behind on your assessments, chances are good you received one or more letters threatening legal action. If you have been unlucky enough to be sued by your homeowners' association and lost, chances are very good that your homeowner association has added court costs and attorneys’ fees to the amount of the unpaid assessments. Arizona law and homeowners association’s governing documents generally permit a homeowners association, if successful in court, to include its costs and attorneys’ fees in addition to the unpaid assessments in any judgment it obtains against you.

The next step would be for the homeowners association to try to collect its judgment. This might include demand letters, wage garnishments, or other collection methods. A common scenario that we see is that the homeowners association never limits its collection to the amount of the judgment and in most cases seeks to collect several thousand dollars, sometimes three or four times, or more, greater than the amount of the actual judgment, as part of its collection efforts. So that small judgment against you of $1,200.00, which you ignored, has suddenly turned into a wage garnishment of $6,000. And the amount continues to grow.

The homeowners association will defend the increase as part of its perceived right to collect costs and fees in connection with the original lawsuit. But whereas the fees and costs incurred getting the judgment may be recoverable, it is our position that a homeowners association and its lawyers do not have the unilaterally right to increases a judgment in order to collect such additional amounts.

Generally, “judgment must be a clear, ascertainable debt” that does not have prospective application. Reeb v. Interchange Resources, Inc. of Phoenix, 106 Ariz. 458, 459 (1971). A party seeking to collect such a judgment should not have the right to decide how much you owe—after all, isn’t that the purpose of the judgment? A judgment is a piece of paper that you should be able to determine, at any given time, exactly how much you owe. Let’s say you want to pay off that judgment, so you call up the association’s lawyer. It is not fair that the lawyer can give you one number in the morning when you call and another number later that afternoon when you call back to give your credit card. When the party trying to collect the judgment is increasing that amount in random amounts, without seeking court approval, it is in our opinion an abuse of the legal process and the judgment itself bordering on extortion.

Where the homeowners association or its lawyers has threatened to garnish wages, or garnished wages, in excess of the amount of the judgment, you are not without legal rights. In addition to challenging the garnishment, the federal Fair Debt Collection Practices Act also may afford a remedy to you to recover damages for misrepresenting the amount of the judgment, collecting more than the amount of the judgment, and other unfair collection tactics.

If you believe you are a victim of an over-aggressive homeowners association that is threatening to collect, collecting, or has collected more than its judgment against you, you should seek legal representation to determine whether you have a case.

Your Almost-Absolute Right to Inspect Records

Arizona law is clear on the subject of your HOA's records -- as a member of the HOA, you have the right to inspect and copy any and all association records. Meeting minutes, financial records, bank statements, vendor's contracts, bills, invoices, checks, voting records...just about anything!

The statutes say that "all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative." Although the association can charge you "not more than fifteen cents per page," the statutes make it clear that it cannot charge you "for making material available for review." The association "shall have ten business days to fulfill a request for examination" or "to provide copies of the requested records."

There are just five limited exceptions to your right to inspect:

1.    Privileged communications between an attorney for the association and the association (note: engagement letters and attorney invoices are rarely considered by courts to be "privileged");

2.    Pending litigation;

3.    Meeting minutes from closed, executive sessions (note: many boards improperly hold closed meetings to discuss matters that should be discussed in open meetings);

4.    Personal, health or financial records of a member or employee; and

5.    Records relating to job performance, compensation of, health records of or specific complaints against an employee.

So why do so many boards of directors refuse to turn over documents? What are they hiding and why?

If you want to learn more about your rights regarding HOA related records inpection. Check out our HOA Law page for more information or schedule a consultation to speak with one of our attorneys.