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Subject: Help! I have been illegally "fired" from the BOD tonight!

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MaryA1
(Arizona)

Posts:2238

08/17/2008 7:17 AM
Posted By GeorgerwilliamsW on 08/16/2008 2:50 PM Mary, You're right. I was not as clear as I should have been. The rules referred to in Section 19 are in addition to those in the covenants. (The covenant rules are specified in sections 1-18 and 20-26* of the declaration. They are not amenable to alteration by board action.) What I am getting at is that this is an incredibly broad range power without any reasonable checks and balances. Basically if the covenants do not speak to an issue, the board has unlimited power to do anything they want. The only check is the ability to recall board members, an incredibly difficult process. There is a large potential for damage to be done. ____________________ *The odd organization of the declaration rules section is just one more example of very poor lawyering The covenants are a cut and paste job. George, Note section 19 says: "governing the use and enjoyment of the Property, including the Common Area", meaning the board does NOT have license to adopt a rule addressing anything they choose -- they are limited to addressing issues affecting "enjoyment of property including the common areas. I know this is broad enough, but doesn't cover everything and anything. And, of course those board adopted rules cannot confict with anything contained in the CCRs. This type provision is found in most, if not all, assn CCRs. This is the language that allows boards to come up with trash can and clothesline rules! I've always been of the opinion that the board-adopted rules cause more problems than the CCRs restrictions. And, I've always maintained they should require a vote of the members.

GeorgerwilliamsW
(Indiana)

Posts:707

08/17/2008 8:24 AM
Ok, Mary, I am game. Please suggest something that does not fall under "enjoyment" umbrella. Having well maintained lawns is enjoyment. Having increasing property values is enjoyment. Prohibiting garage sales is enjoyment. Requiring four oak trees per lot is enjoyment. What isn't?

MaryA1
(Arizona)

Posts:2238

08/17/2008 8:32 AM
Posted By GeorgerwilliamsW on 08/17/2008 8:24 AM Ok, Mary, I am game. Please suggest something that does not fall under "enjoyment" umbrella. Having well maintained lawns is enjoyment. Having increasing property values is enjoyment. Prohibiting garage sales is enjoyment. Requiring four oak trees per lot is enjoyment. What isn't? I said it was broad! Just doesn't necessarily cover everything and anything.

LA
(Arizona)

Posts:10

08/19/2008 10:51 AM
Do not listen to MaryA1. She does not know what she is talking about. (obviously) She "tried" to give me advice and it was completely wrong. I checked with a lawyer. Good thing I didn't listen to her.

BonnieE
(Illinois)

Posts:169

08/19/2008 11:56 AM
OK now….things are getting a little silly here. :-)) The bottom line is that the Rules must be reasonable. The Rules are reviewed by the HOA attorney prior to being sent to the members. There are articles and other info out there to help guide the Board in drafting their Rules. We were provided a copy of (attorney approved) Rules from 2 other similar HOAs to use as a basis for developing our Rules. See: http://www.ksnlaw.com/publications/dailyherald/adoptingrules.html from: http://communityassociations.net/illinois_main.html P.S. From what I have read, Mary has provided very good advice! And, as has been stated by the web site and many members, what is being suggested should not be construed as legal nor professional advice.

DonnaS
(Tennessee)

Posts:2833

08/19/2008 12:03 PM
LA, If you read the disclaimer on this site, you would have read that these are the posters opinions. If it was a subject important enough to seek a lawyers advice, then that is what you should have done to begin with. Mary is from Arizona also so she is pretty up on Az Laws. Obviously we are getting more and more NON Board, committee and manager folks who are coming here for advice and that is not the purpose of this site. I know that it is hard to prevent this from happening but we need to be more or perhaps less responsive when we know that someone is just trying to get out of a situation with their own HOA problems. Every once in a while we need someone to remind us of our mission.

MaryA1
(Arizona)

Posts:2238

08/19/2008 2:45 PM
Posted By LA on 08/19/2008 10:51 AM Do not listen to MaryA1. She does not know what she is talking about. (obviously) She "tried" to give me advice and it was completely wrong. I checked with a lawyer. Good thing I didn't listen to her. LA, OK, I know you now have a chip on your shoulder because you didn't like hearing what I had to say to you on another thread. But think twice before you claim "She does not know what she is talking about" and "She "tried" to give me advice and it was completely wrong". I've reviewed everything I wrote you that could be construed as "advice" and stand by my every word. I don't know who your lawyer is and I don't know what you actually told him I said, but if you quoted anything I said then I would say your lawyer doesn't know what he's talking about! Now, be man enough to tell me exactly what "advice" I gave you that was wrong. To make it easier for you, I've copied below all the perceived "advice" I wrote to you. I'm not afraid to admit when I've made a mistake, but this is not one of those times! In fact, everything I said to you can be verified by state law; but I'm sure you didn't bother to take the time to read the HOA state laws which I also referenced for you. 1. First of all, it's not uncommon for the developer to not hold any meetings while still in control of the assn. 2. Secondly, regardless of what the developer has failed to do, it's very important to CONTINUE PAYING YOUR ASSN ASSESSMENTS. Please heed my words, you home could be foreclosed if you do not pay your assessments! Please inform you neighbors of this also. 3. When you purchased your home you should have been given a copy of the pubic report. This document will give you information regarding the development and the homeowners association. The developer is required, by the Dept. of Real Estate, to give you a copy of this report before you purchase a lot and the potential buyer is required to sign a receipt acknowledging receipt of the report. 4. The AZ Dept of Real Estate is the point of contact for you. I would suggest calling the office, explaining the major things that have not been completed, i.e. any amenities not completed, lack of street lights and road improvements. 5. A few others on this forum have suggested filing a claim with the Office of Admin. Hearings (OAH). While this is an avenue available to homeowners for settling disputes, I would recommend not considering this at this time. If no state laws have been broken or covenants violated there is no basis for a claim with the OAH. I know you've stated there are a number of things the developer isn't doing; however, that doesn't mean he has broken any laws. 6. The HOA has the same lien authority as the mortgage company. If you don't pay your mortgage, the mortgage company can foreclose. If you don't pay your HOA assessments, the HOA can foreclose. And, just like a mortgage company, if the HOA forecloses you have no homestead exemption protection for whatever equity (up to $150,000) you have in your home. This is also spelled out in state statutes -- 33-1256 if you're in a condo assn or 33-1807 if you're in a planned community. 7. I guess this developer doesn't know the laws governing HOAs! Even while the assn is under control of the developer, the members do have certain rights. And, the right to see financial statements is one of them. 8. Both you and your neighbor, who has now been liened, must pay up NOW. The next step after the lien is foreclosure. AZ law states a foreclosure cannot be entered into until the delinquent assessments amount to $1,200 or until delinquent for one year, whichever comes first. However, late fees, costs and attorney fees will continue to mount up until the delinquency is completely paid off. As for your 2-months delinquency, it's only a matter of time b/4 your property is liened. Withholding your assessments because you have a beef with the developer or the BOD is the worst thing an HOA member can do.

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