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Subject: Overturn board member.
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TaraR
(Arizona)

Posts:24


06/04/2006 10:17 PM  
I'm 9 months new in a community that has been here for 19 years. There are issues within the community, parking with my concern of this posting, with homeowners and renters not following the CC&R's rules. The board members are reluctant to take action, because the community property manager has been advising the board that the town of Gilbert Arizona has tied the hands of the HOA, not allowing to take legal action without being sued and has made it difficult to issue fines. The attitude of the property management and the board members are negative. Hearing statement such as, "it's been like that for years". Well, a few members of the community got together and prepared information flyers in reference to parking on the streets and side walks, placing the flyer on the vehicle in violation. I e-mailed the property management company with addresses, makes of cars, license plate #'s (as requested by the property manager when history complained about the parking). This action of the homeowner had an 86% of those that were violating the CC&R’s to move their vehicle and is now in compliance. The board and property management has attacked myself by sending responses by e-mail claiming that what has been done is a vigilante approach and that members must serve to the pleasure of the board. Question: where can I find information on the legality of the HOA board members and what control they have within the compliance of the laws in Gilbert Arizona? Is it true that homeowners cannot take form an 'information' flyer and place it where violations occur (mind you, we are talking to the owners/renters and have thanked them because they were not aware of the rules)? Can the board appointment a committee and the chairman without allowing other homeowners in the board meeting to volunteer to be chairman?
RogerB
(Colorado)

Posts:5067


06/05/2006 7:00 AM  
Tara, I like your initivative. Apparently your MC and your Board are not be doing their job.

With regards to "the community property manager has been advising the board that the town of Gilbert Arizona has tied the hands of the HOA, not allowing to take legal action without being sued and has made it difficult to issue fines." ask the manager to provide you with the City ordinance(s) involved and ask them to explain their conclusion. Also, the HOA can enforce parking restrictions which are in their CC&Rs irrespective of the City Ordinance if the CC&Rs were specifically retained on the dedication plat when the streets were dedicated.

The members do serve on committees at the pleasure of the Board. The President can often appoint a committee and appoint the chair. However, the association members do not serve at the pleasure of the Board. The Board members serve at the pleasure of the members and can be removed when they are not doing their job. My main concern is why the Board is not enforcing the CC&Rs.

Anyone can place a flyer on a car. But if it is not legal to do so, that person could be legally liable. This action is done with a price - obviously it has created a rift between you and other Board members and the managing agent.
WilliamT
(Arizona)

Posts:489


06/05/2006 8:34 AM  
Tara,

I am also in Gilbert, AZ. From your description I know that we are not in the same HOA, but could be in the same area. I don't want to mention any names on the forum, but if you would like to exchange information and ideas using names, then you may communicate with me via email.

Below are links to the Gilbert ordinances and the Arizona statues which you should be aware of.

Here is a link to the Gilbert ordinances:
http://www.municode.com/resources//gateway.asp?pid=12036&sid=3%20

Here is a link to the AZ statutes:
http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp

Look through title 10 regarding Non-Profit laws, then title 33 regarding Planned Community Laws.

Be aware that some of the non-profit laws are over-ridden by the Planned Community Laws in Title 33. (Example -- non-profit law allows proxies. However, the Planned Community laws in title 33 do not allow proxies any more. That prevents a board member from collecting a pile of proxies and controlling the membership.)

Title 33 Chapter 16 33-1801 through 33-1813 deal with Planned Communities, and you should read all of them.

Here is a site where you can find the 5 new laws that will take effect in a couple of months.
http://www.mulcahylaw.net/newsletters.php
SB1007
SB1055
SB1138
HB2205
HB2824

Your MC may be referring to SB1007 when referring to their hands being tied. However, this is a State Statue that will become law in a couple months, and is not a Gilbert Ordinance. And it does not tie their hands; it simply provides for procedure for certain notices to be given.

If your streets are private and maintained by the association, and if the bylaws or CC&R's have parking restrictions, then the board must enforce them. Note that the "Rules" that a HOA adopts cannot be less restrictive than the CC&R's.

Here is another site you should be aware of:

http://www.theleadershipcentre.org/si/default.htm

This will take you to the Solve It Mediation program that is designed to help neighbors solve problems through mediation. The leadership center provides classes and seminars for planned community homeowners and managers. It is an excellent source of information for interested homeowners and board members.

As for putting flyers on cars as an individual, I highly discourage that. It will not be effective because you have no authority and will only get everyone mad at you. That should only be done by the MC or a board member on a compliance committee. It is their duty and responsibility.

Get a copy of the MC contract. They must, by law, (See the new SB1007 that I mentioned above) provide you with a copy. Call the company and ask for an appointment date and time to go there and get a copy of the contract. On the day prior to the appointment, call to confirm the time you'll be there and get the persons name who is confirming.

See what the contract says about inspecting the property for the property maintenance condition, and for CC&R violations. If they are not contracted for those duties, then someone on the board must be assigned to do the inspections.

Keep attending board meetings and at the proper point in the meeting where homeowners are given time to speak, bring the issue up, and ask what the board is doing to enforce the rule. Keep written notes on what transpires each time.

Make copies of all of the laws and ordinances that pertain to your question. Again ask the board and management company to provide you with the Statute or Ordinance number to which they rely on. If you have them all with you, then you can ask them to look through them and point the proper law out to you.

If you find that the MC is not living up to their contract, then you can write a letter to the MC company and to the board stating where the MC is in breach of the contract.

Get a few of your homeowner friends to study these laws and contract with you so that you know they are interpreted correctly.

Another suggestion is to ask if there is a Compliance Committee (whose job is to enforce the CC&R's.) If there is none, then ask the board to form one and volunteer to serve on that committee.

Bill
HaroldS
(Arizona)

Posts:906


06/05/2006 12:54 PM  
Bill - how refreshing to find someone who knows the laws. But many BODs could care less about laws because they know there are no enforcement teeth. For instance: ARS 33-1804. Open meetings; exceptions

A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the association and board of directors are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be permitted to attend and SPEAK AT AN APPROPRIATE TIME DURING THE DELIBERATIONS AND PROCEEDINGS.(My emphasis.) The board may place reasonable time restrictions on those persons speaking during the meeting but SHALL PERMIT (My emphasis.)a member or member's designated representative TO SPEAK BEFORE THE BOARD TAKES FORMAL ACTION ON AN ITEM UNDER DISCUSSION (My emphasis.)in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue.

Many Arizona HOA boards ignore this law by refusing to allow members to speak at all at board meetings, or if they do, it is at the beginning BEFORE the meeting or any discussions starts.

HB2824 the "ombudsman" bill if passed and signed by the governor might give some relief, but if they retain the earlier suggestion of a $500 fee to submit a hearing request; for people living payday to payday it might as well be $5,000. In addition the BOD can still cause it to go on to Superior Court which is even more costly. The recent political chaos in Nevada and Florida with their ombudsman programs is a bad omen for Arizona trying to implement this one. Harold
WilliamT
(Arizona)

Posts:489


06/05/2006 2:17 PM  
Posted By HaroldS on 06/05/2006 12:54 PM

Many Arizona HOA boards ignore this law by refusing to allow members to speak at all at board meetings, or if they do, it is at the beginning BEFORE the meeting or any discussions starts.




Harold,

They can't ignore the law if pressed on the issue. They can only ignore it if no one objects. If there is an MC, then the MC should advise the board that them must set aside a time for a HO forum. Also, during the board discussion of a motion, the homeowners have the right to speak on the issue before the vote.

If an MC does not do it's job, then a formal letter of complaint to the MC company is in order.

The board can have the homeowners open forum at any time it pleases, but it is really best for the homeowners if it is prior to any discussions on motions. The homeowners present are entitled to have a copy of the agenda so they will know what is to be discussed and can comment before the item is opened for the board to discuss.

Of course, if something comes up during discussion that is not on the agenda, then all one has to do is hold up their hand to be recognized to speak on that subject. If refused, then the President should be handed a copy of the statute.

Bill



BrianB
(California)

Posts:2820


06/05/2006 2:21 PM  
good advice from the others, i won't repeat it.

I will mention, however, the bad analogy expansion being used by the board.

Board COMMITTEES serve at the pleasure of the board. Home owners don't serve at the pleasure of the board at all... they have no control over your life, except to the extent that you contracted with them in purchasing your home (the covenants).

I too agree that a soft/informative approach will make 80% of the people comply, and applaud your efforts to take that stance. A letter to a violator might often do wonders. I would be careful with the flyers on cars... In tempe, for instance, that is illegal, and could be considered litter.
TaraR
(Arizona)

Posts:24


06/27/2006 6:02 AM  
William,

I'm getting documentation for the board meeting regarding the issues within our community. I've looked at the sites and the laws that you provided. However, I still have many questions. Please e-mail at [email protected] I can go further into detail.

Good news, I have talked to several community members. They are in agreement that they want to move forward on our parking issues, along with other concerns. I think I’ve started a participation revolution! But, I want to gather all the details I can to approach the board and understand why they cannot take action on so many CC&R violations.

Thanks,

Tara
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