Tag: Arizona HOA Attorney

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Arizona HOA Laws

Most Common Issues that Lead to HOA Litigation in Arizona

HOA litigation might not be as common as other types of business litigation, but claims against a homeowners association or planned community can be expensive and prolonged.  They can become a central focus for the board of directors and divisive for the community.  Our firm has represented hundreds of associations and planned communities in Arizona since our founding.  We put together an article on the most common issues that lead to HOA litigation in Arizona and what your association can do to avoid them.

Failure to Pay Assessments

The most common type of litigation is the collection of delinquent assessments.  When an owner purchases a property within an Arizona HOA, that owner becomes contractually obligated to pay the assessments when due. The assessments are also a lien on the property.  Each HOA should adopt a collections policy. If the owner does not pay, an association will usually send the case to a law firm like BLG to collect the unpaid assessments, and if necessary, file a lawsuit.

Violation Enforcement

The board of directors for an HOA is tasked with enforcing the association rules.  This generally includes the covenants, conditions and restrictions (CC&Rs) and bylaws.  Naturally, enforcing the rules with penalties and fines for violations can lead to disputes with members.  HOA litigation can arise from members that fail to accept penalties from the board and disputes about the validity of certain penalties.

Failure to Maintain Common Areas

There are many legitimate reasons that common areas in an association can create maintenance issues.  From a natural disaster to unexpected breakdowns, the board of directors can be caught off guard by serious maintenance challenges and these issues can quickly become a source of heated disputes with members in the community.  These maintenance issues can rise to HOA litigation if they are not resolved quickly and effectively.

Denying Member Requests

Denying member requests for their desired plans for their home and property creates the potential for legal disputes and HOA litigation.  It is also a necessary part of being on the board of directors for the association.  It is common for emotions to be heightened when a member feels their denied request was unjustified.  It is important for board members to understand this potential when reviewing member requests and be cognizant of this potential when crafting a denial for requests that violate governing rules.

Discrimination

Litigation related to discrimination is also common for HOAs and condo associations in Arizona.  All board members should be familiar with federal HOA laws that apply to their operations, like the and Fair Housing Act.  It is important to make sure your association has appropriate accommodations for any people with disabilities and stays vigilant against any discriminatory practices in leases, sales, and application of governing rules for the community.

Disputes Over Actions by Board of Directors

It is normal for members to take issue with some decision by the HOA board.  When these disputes over increased expenses or controversial decisions become contentious, they can lead to members suing the association to prevent these actions.  Many of these issues can be avoided by reviewing potentially controversial decisions with an Arizona HOA attorney.  They can make sure your actions are within the rights of the board of directors and follow state and federal laws.  This will not prevent every lawsuit, but it helps your board know they are following the appropriate process to make difficult decisions for the association.

HOA Election Issues

Close elections for the board of directors always have the potential for disputes.  Whether there are complaints about the election process or concerns from members about board members ability to do the job, these disputes can quickly escalate into time-consuming legal matters that are costly for the association.  Routine review of your association election process can give all members confidence in the process and discourage potential litigation.

HOA Pet Policies and Issues

Most people think of their pets as members of their family so it should not be a surprise that disputes with members over association pet policies can escalate into HOA litigation.  Many associations and planned communities assume their pet policy will be fine and they fail to make proactive efforts to get feedback from members on any potential issues or needs.  We put together an article on crafting an effective HOA pet policy in Arizona and how to make sure your association accommodates any support or service animals.

Tips to Avoid HOA Litigation in Arizona

Anyone can file a complaint in court against their association or planned community, but that does not mean it will be successful.  All HOAs need to have a plan in place to deal with contentious members and potential legal issues that arise.  While you cannot avoid all potential litigation, your association can take many proactive steps to protect the association as much as possible in the long term.  The simplest way to protect the association is routine review of your CC&Rs and bylaws with an experienced HOA law firm to make sure the governing rules are valid and enforceable.  As state and federal laws get updated, the governing rules might need changes.  Having experienced attorneys that specialize in representing associations also means you can leverage their expertise when potential problems arise.  Many common issues that lead to HOA litigation can be resolved appropriately before a lawsuit is filed.  Ignoring member issues or attempting to always squash small violations with excessive fines or penalties can cause the matter to escalate to litigation when it is not necessary. 

Get an Experienced HOA Attorney

Some associations and board members might feel that HOA litigation is something they will deal with when needed.  Proper planning and experienced legal representation can help your association avoid many matters rising to that level.  The Brown Law Group only represents Arizona homeowners associations and planned communities.  Our firm helps our clients keep their governing rules updated and enforceable.  We help associations keep operations as smooth and effective as possible, while addressing most potential legal matters before they become HOA litigation.  Contact our firm today at 602-952-6925 to schedule an initial consultation to review your HOA representation needs or make an appointment on our contact us page.

The Brown Law Group shares this article for informational purposes only, and it does not create an attorney-client relationship.

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Arizona HOA Laws

What are Federal HOA Laws and How Do They Impact Arizona HOAs?

Arizona has many state specific laws for planned communities and condominiums, but there are several overriding federal laws that apply to all HOAs.  All HOA board members and individual property owners should understand the federal HOA laws that apply to their association and how they impact operations in Arizona HOAs.

HOAs: Federal and State Laws

Homeowners associations in Arizona are governed by many state laws, including the Nonprofit Corporation Act, the Planned Community Act, and the Condominium Act.  There are also several federal laws which apply to Arizona HOAs. These federal laws are superior to state or local laws. That means, if the laws conflict, the federal law will take precedence. The federal laws will also take precedence over any confliction provision of the community’s governing document.

Federal Laws Governing the Operation of HOAs in Arizona

State authorities allow for the creation of associations and planned communities to ensure smooth running and maintenance of all the houses within that defined area. From maintenance to fee collection, the association is responsible for all governance and operation of that community detailed in the covenants, conditions and restrictions (CC&Rs).  State laws include statutes that govern the HOA’s ability to file a lawsuit against an owner to collect delinquent HOA dues. For instance, if the homeowner owes more than $1200 to the HOA or the homeowner has not paid his or her dues in at least 12 months, the HOA can even pursue a lien foreclosure on the property.

Although HOAs do everything to make the area safe for homeowners, they might sometimes make unfair decisions. That’s why federal laws include a set of rules and restrictions that govern the operation of any HOAs in Arizona. Here are the main federal HOA laws all Arizona HOAs need to follow:

Arizona HOAs and Americans with Disabilities Act of 1990

The Americans with Disabilities Act (ADA) impacts Arizona HOAs that have publicly accessible common areas and employees. The law was established in the 1990s to protect disabled people from discrimination at work, transportation, and public accommodations. The public accommodations include recreational areas, gyms, swimming pools, and other areas open to the general public. For any place to be considered a public accommodation, it must be accessible to the public, not just the HOA members. If the HOA is building a recreational spot or a pool in the area that is open to the general public, it must be built and maintained to ADA specifications for accessibility.  If the HOA’s amenities are not open to the general public, and only to its members and guests, the ADA will not apply.

Applying the Fair Housing Act as an HOA

The Fair Housing Act prevents discrimination in residential housing based on race, color, religion, sex (including gender identity and sexual orientation), disability, familial status, or national origin. The law prohibits any HOA in Arizona from taking any action against a member based on their membership in a protected class.  Most people understand that overt discrimination is unacceptable and illegal.  However, there are many ways the Fair Housing Act can be violated unintentionally.  Issues most often arise when a disabled owner requests a reasonable accommodation to assist with a disability. It is important to forward all such requests to an Arizona HOA attorney to review the request. All HOA board members need to be familiar with the Fair Housing Act and generally aware of any potential violations related to discrimination.

What HOAs Need to Know about the Fair Debt Collection Practices Act

Federal laws have established legal ways to collect debts. Association dues, assessments and other charges that homeowners owe to the HOA are considered valid and enforceable debts. HOAs are not considered debt collectors as long as the association collects the dues and assessment from their own members. The Fair Debt Collection Practices Act (FDCPA) does apply when an HOA utilizes an HOA law firm to collect those same debts. Attorneys and debt collectors appointed by the HOA must comply with the FDCPA while collecting dues from homeowners. These laws put restrictions on the language and collection techniques they can use when attempting to collect any debt for an HOA.

Freedom to Display the American Flag Act

The Freedom to Display the American Flag Act (FDAFA) is unique among the federal HOA laws because it speaks directly to associations and planned communities.  The 2005 Act made it illegal for any HOA to restrict the ability of residents and members of the community from displaying the American flag.  The FDAFA does allow reasonable restrictions on displaying the flag properly as defined by law and community rules on the time, place and manner that protects a substantial interest of the association members.

Benefits of Working with an Arizona HOA Law Firm

Arizona HOA board members need to understand the federal HOA laws and state HOA laws that govern the association.  Having a basic understanding of these federal laws and how they can impact your decisions helps guide board members, but any legal matter or issue with a member that delves into these laws should not be taken lightly.  Working with an Arizona HOA law firm that specializes in representing associations and planned communities means your association will know that your rules and regulations are in line with federal and state laws.  The Brown Law Group can help Arizona HOAs review any matters related to state and federal HOA laws.  Contact us today at 602-952-6925 to schedule an initial consultation or make an appointment for your association on our contact us page.

The Brown Law Group shares this article for informational purposes only and it does not create an attorney-client relationship.

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Arizona HOA Board Members

How Arizona HOA Board Members Can Create and Maintain Effective Covenant Enforcement

Homeowners’ associations and board members have a central purpose of building and maintaining a community that members enjoy living in.  The main driving force of that structure of community is the covenants, conditions, and restrictions (CC&Rs) that establish the rules that the members must follow. In most cases, the Board of Directors also has the authority to adopt additional rules, regulations, and policies. By purchasing a home in the community, all members are on notice of the rules, and agree to follow them. Board members have a responsibility to make sure these rules and regulations are clearly and fairly enforced.  An HOA that fails to enforce the covenants will quickly find a growing list of serious issues.  Any board that selectively enforces the rules, whether it’s regarding certain people or certain rules, will likely lose the confidence of members as well.  To help make sure your association is focused on the right things, we put together a guide on how Arizona HOA board members can create and maintain effective covenant enforcement.

How Can an Arizona HOA Enforce Rules?

For any HOA board to be effective they must understand how an Arizona HOA can enforce rules.  All associations should adopt an enforcement and fine policy that lays out the process for enforcement. There are some standard options and processes available to any HOA to address members that violate the rules:

  • Standard Warning Notices – Arizona HOAs are required to provide proper written notice of any violations to the member(s) in question. To simply and expedite this process, it is important to have some standard templates in place.  It is advisable to work with an HOA attorney on these warning templates and review individual infractions to make sure they are addressed correctly.  The enforcement and fine policy should allow deviation from the standard process when appropriate, for example severe violations.
  • Imposing A Penalty – If any association member violates the rules and guidelines stated in the governing documents, the board members should be prepared to issue fines for non-compliance after the appropriate opportunity to cure the violation has passed. Arizona law provides that fines must be reasonable. The enforcement and fines policy should include presumptive fines for run of the mill violations, but also provide factors for the board to evaluate when determining the fine for less standard violations. For members that continue to violate the rules, it might even be necessary to restrict their rights and community privileges, if allowed by the governing documents.

  • Help from an HOA Attorney– If penalties do not get a member to comply with the rules, the association might be forced to pursue legal action. The Brown Law Group offers an enforcement letter program that is very successful in getting owners to comply.

  • Contact Police – Board members can only take enforcement so far and should never put themselves at risk. If a violation escalates to illegal and/or dangerous acts, then it is always appropriate to report the matter to the police and allow the justice system to take the lead.  Some matters simply must be handled by the appropriate authorities to avoid escalation and unnecessary risk to any other members.  Criminal charges against a member can make the process of dealing with their violations easier as well.

More Effective Covenant Enforcement with an Arizona HOA Law Firm

It can be complicated and time-consuming to create enforceable covenants, clearly communicate those to community members, develop a process for addressing violations, and follow through with prompt enforcement actions against any violations.  One of the most effective ways to make sure your homeowners’ association is handling all the details of covenant enforcement correctly is to work with an HOA law firm that specializes in HOA representation.  The Brown Law Group only represents associations and planned communities in Arizona.  Our firm can assist with every detail of covenant enforcement. The Brown Law Group can assist with preparing an effective enforcement and fines policy. Contact us today at 602-952-6925 to schedule an initial consultation or make an appointment on our website here.

The Brown Law Group shares this article for informational purposes only and it does not create an attorney-client relationship.

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Arizona HOA Board Members

HOA Board Meeting Boot-Camp: What Every HOA Board Member in Arizona Needs to Know

The nominations tendered. The ballots cast and tallied. Suddenly you are on the Board. What was once whim gone as reality settles in and the first Board Meeting closes in on you… What’s your job again?

Getting on the Board is easier than you might think! Serving is something else. As a volunteer, you are required to serve and protect the fiduciary interests of the Association for no pay! Did they even train you for this? Probably not!

Never fear! We are here to help with these just-in-time emergency boot-camp pointers for handling and managing your meetings with professional precision. We address the most popular question at the end, but don’t skip ahead!

1.The Association is required to have an annual meeting of the membership every year. You can have more than this. But you need at least one. Also, all your meetings need to be held in Arizona. Don’t worry, you can still attend remotely, or even virtually! We dig into the advent of virtual meetings, virtual attendance and e-voting in our article <name>. Read more there to find out!

2. Notice of meetings must be provided to all members at least 48 hours before the meeting. Notice may be provided by any reasonable form of communication, including the Association newsletter, a clear and visible posting in the community, or email.

3. Emergency meetings do not require 48-hours’ notice. An emergency is any business or action that cannot be delayed for the 48-hour notice period. Not sure if it’s an emergency? Check with Association counsel!

At an emergency meeting, you must state the reason requiring the emergency meeting in your minutes. You also must read and approve those minutes at the next regular meeting of the Board.

4. Special meetings may be called by: (A) the president, (B) a majority of the Board, (C) by a vote of 25% of the members or any lower percentage provided in the Bylaws. If your Bylaws require more than 25% of the members to call a special meeting, it is unenforceable.

5. The agenda must be available to all attending members. It can be provided to the Members at, or before, the meeting.

6. All Association business must be done at meetings open to the Members, unless the business is subject to a statutory exemption.

This is called a sunshine law. It is a common fixture of public governance.

Under Arizona’s sunshine law, all member meeting, board meetings, or regularly scheduled committee meetings must be open to the Members or the Member’s written representative unless it is a topic that may be discussed in a closed session meeting pursuant to A.R.S. § 33-1804(A) or A.R.S. § 33-1248(A).

7. Each Member is entitled to speak to the Board and community on agenda issues. The Board may adopt time limits on a Member’s right to speak per issue as long as the restriction is reasonable and applied equally to all Members.

How do we determine what is reasonable? It depends!

The Association is installing a new ‘Children at Play’ sign near the clubhouse? The Board might reasonably limit each Member that wishes to speak to 3 minutes.

The Association discovered oil and is converting the Association monument into an oil derrick? We are gonna need more time for that one…

What? They brought cameras?

8. Members are permitted by law to audiotape and videotape open meetings of the Association. The Association may adopt reasonable rules governing recording of open meetings but may not preclude recording unless the Association records the meeting and makes the unedited recordings available to members on request without restrictions on its use.

This isn’t everything, but it’s a start! When you reach a question you have no answer for, and it will happen, remember you have an entire industry of professionals to help you learn, develop and grow as a Director of your Association!

When in doubt, reach out! Don’t forget we are…

Experienced Arizona HOA Attorneys

The Brown Law Group specializes in HOA representation in Arizona.  Our firm only represents homeowners’ associations and condominium communities in the state.  We routinely work with associations to make sure their board meetings are adhering to open meeting laws in Arizona.  We can also review any changes your association has made during the past year to use technology in your voting process.  It is understandable to want to use technology wherever possible to make meeting and voting decisions easier, but these choices can cause more problems down the road for an association if they are not done the right way.  Contact the Brown Law Group today at 602-952-6925 to schedule an initial consultation or make an appointment with our attorneys on our contact us page.

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Arizona HOA Laws

What Your HOA Needs to Know About Assessment Payments in Arizona

Homeowners’ Associations carry a great deal of responsibility when it comes to maintaining the community. HOAs are often required by their governing documents to perform many actions, which may include maintaining insurance policies, paying for water or sewer charges, maintaining landscaping, caring for community facilities such as pools, playgrounds or golf courses, repairing roofing damages, maintaining common element areas, and much more.

HOAs cannot effectively meet these obligations without homeowners paying their assessments. Owners that are unable or unwilling to pay assessments may face legal action collect these unpaid assessments. Here is what you need to know about Assessment Payments. 

Obligation To Pay Assessments

All homes located within an HOA are governed by a contract called the Covenants, Conditions, and Restrictions (CC&Rs). By purchasing a property within an HOA, homeowners become contractually obligated to comply with the CC&Rs. Failure to comply is a breach of contract. The CC&Rs obligate homeowners to pay assessments to fund the various obligations of the community. 

Special assessments cover expenses which an HOA may not have sufficient funds to pay for from regular assessment payments.

Assessment payments are contractual in nature. A homeowner’s failure to pay these assessments is a breach of contract. HOAs can enforce their contractual rights to assessments by filing a lawsuit against delinquent homeowners when notices, letters, and requests from the HOA are ignored.

Arizona’s Property Lien Law & Foreclosure

In addition to the owner’s personal contractual obligations to pay assessments under the CC&Rs, property located within an HOA have a statutory assessment lien securing the assessment charges. A lien generally prevents an owner from selling or refinancing a property until the lien is released and assessments are paid, as it clouds the title to the property. 

Arizona Revised Statutes § 33-1807 and 33-1256 provide the statutory basis for the assessment lien. This statute provides that as soon as assessments become due, a lien is automatically placed against the property. HOAs frequently record a lien in their local county recorder’s office to make a public record of the lien in the event the home is refinanced or placed for sale.. 

When demand letters, breach of contract claims, and liens against a property fail to obtain payment of delinquent assessments, an HOA has the power to foreclose on its assessment lien. Foreclosure provides an avenue for HOAs to collect assessments, late fees, collection charges, attorney fees, and court costs for filing the foreclosure lawsuit.

HOAs may only employ the foreclosure option if one of the following is satisfied:

  • Assessments have not been paid for a period of one year; or
  • $1,200.00 or more in assessments are outstanding.

If either prong is satisfied, an HOA may proceed to collect the assessments due through foreclosure.

When evaluating a claim for foreclosure, it is important to note that some properties may already have liens in place. State and federal tax liens and first mortgages have priority over an HOA assessment lien. Other liens can include judgment liens, a second deed of trust, or a home equity line of credit.  The HOA assessment lien is superior to these liens.  It is important to discuss the implications of these liens in relation to the foreclosure process with your attorney.

Procedure To Collect Delinquent Assessment Fees in Arizona

Before an HOA can send an account to collections, homeowners must be afforded at least 30 days’ notice. The notice must be in writing and mailed via certified mail to the homeowner’s address. This is requirement is set out in A.R.S.. § 33-1807(K)  and A.R.S. 33-1256 which also outline that the notice must be boldface typed or in all capital letters. It must also include the contact information of the representative of the HOA that the homeowner can contact to discuss payment. The notice must also provide the following statement:

Your account is delinquent. If you do not bring your account current or make arrangements that are approved by the association to bring your account current within thirty days after the date of this notice, your account will be turned over for further collection proceedings. Such collection proceedings could include bringing a foreclosure action against your property. 

Once a homeowner is provided the statutorily required notice, and fails to satisfy the delinquent assessment balance, an HOA may send a homeowners’ account to collections and enforce its rights under contract and statute.

Find a Law Firm Dedicated to Representing HOAs with Assessment Collection

Whether your HOA is planning changes to your assessments or having issues with collection, The Brown Law Group can offer a many benefits to your association.  Our experienced team of attorneys and collection specialists only represent HOAs and condominium associations in Arizona.  We offer an alternative to the traditional hourly billing and it’s one of the major reasons we lead the state in HOA assessment collections.  Contact us today in our Tempe office at 602-952-6925 or our Tucson office at 520-299-3377 to schedule an initial consultation.  You can also make an appointment on our contact us page.

The Brown Law Group provided this article for informational purposes only and it does not create an attorney-client relationship.