When Arizona homeowners’ associations allow members of the community to walk dogs in common areas without leashes, they are risking serious trouble.  Arizona HOAs are required to comply with all state and local laws.  Most times, Arizona HOAs expressly incorporate these laws into the CC&Rs.  But even when state and local laws are not incorporated into the community’s CC&Rs, HOAs are required to keep the community’s common areas in a safe condition.

Arizona HOAs’ responsibility to maintain safety in the community’s common areas is multi-faceted.  This responsibility includes keeping the areas free of hazards and unsafe structures, as well as taking measures to keep community members safe from dangers such as unleashed dogs.  It is widely accepted knowledge that dogs sometimes behave erratically.  Arizona HOAs that do nothing to protect community members from being bitten by a dog in a common area can be held liable for damages.

If a dog attacks somebody in a community’s common area, of course the dog owner is primarily liable.  However, certain circumstances may extend liability to also include the HOA.  For instance, HOAs that knowingly turn a blind eye to leash laws may be held liable to dog bite victims.  In addition to contacting law enforcement agencies, dog bite victims should contact an experienced attorney to discuss the particulars of their situation.

Every so often a story breaks in the news about a homeowners’ association that records a lien and forecloses on a home because the homeowner failed to pay assessments or fines.  Fortunately for people in Arizona, the law protects homeowners from this type of a situation.

Arizona law distinguishes liens and foreclosure actions for assessments from unpaid fines.  Assessments are the dues that HOAs charge homeowners to maintain the community.  When homeowners fail to pay their assessments, HOAs have an automatic lien against their home.  This means that Arizona HOAs do not have to record a lien for unpaid assessments because the lien already exists.  However, this generally does not mean that HOAs can foreclose on a home because a homeowner misses one payment.  Arizona law requires associations to wait for one year, or until the unpaid amount reaches $1,200, before foreclosing on a home.

Fines are penalties that HOAs charge homeowners for violating CC&Rs.  Unlike unpaid assessments, Arizona HOAs do not have an automatic lien against a home when homeowners fail to pay a fine.  A common reason that homeowners receive fines is for failing to keep their yard properly maintained.  Before an Arizona HOA can record a fine lien, it must successfully sue the homeowner in court.  HOAs that try to issue a fine lien without proper court authority can be held liable for $5,000 or more.  Also, even if the HOA prevails in court, it cannot evict homeowners for fine liens.

Paying assessments on time and abiding by the CC&Rs can help Arizona homeowners avoid assessment and fine liens altogether.  Homeowners whose’ HOA does place a lien on their home need to resolve the issue with their HOA to prevent foreclosure.  A qualified attorney can help determine first whether the lien is valid, and second what needs to be done to release the lien from the home.

A significant number of homeowners belong to homeowners’ associations.  This gives rise to many questions about how Arizona HOAs can change their rules.  Homeowners should always check their community’s CC&Rs for a description of the rule-changing process specific to their HOA.

When homebuyers purchase a home in a HOA, they agree to abide by the terms of the community’s CC&Rs.  Homeowners in a HOA become contractually bound to follow the rules outlined in the CC&Rs, including those pertaining to how rules may be changed.  While most CC&Rs outline how rules can be changed, this process can differ from community to community.

Some Arizona HOAs require a majority vote from the membership before the HOA can change any rules.  This provides a means for every member of the association to discover the proposed change and then have an influence over whether or not the change is enacted.

On the other end of the spectrum, some Arizona HOAs allow the board to change HOA rules without first consulting the membership.  These HOAs generally have their attorneys review the CC&Rs periodically to make sure the rules are not outdated.  HOAs only have implied authority to make rules that protect the common area. Also, any rule making must not conflict with the community’s CC&Rs.

Homeowners can take some consolation in the fact that Arizona law prohibits HOAs from abusing their authority.  Even HOAs with authority to unilaterally change the rules are prohibited from acting unreasonably.  Mesa homeowners who believe their HOA board is not acting in the community’s best interest should consult with an attorney about the matter.  Courts will strike down rule changes that they find unreasonable, arbitrary or capricious.

Because a great number of Arizona neighborhoods have homeowners’ associations, a significant population of Mesa belongs to HOAs.  And while HOAs offer people many benefits, sometimes members take issue with their restrictions or policies.  For a brief window, Arizona law allowed for an administrative process to handle HOA disputes, which provided people with an alternative to taking such disputes to court.

Under the old administrative procedure, homeowners filed petitions with the Department of Fire, Building and Life Safety (DFBLS) for an administrative ruling.

An administrative law judge would set a hearing, and issue a ruling within 2-3 months.  This saved time and money, but it turned out to have its own set of problems.  In the end, the court ruled that the administrative process was unconstitutional.  As of January 2009, the administrative process has been removed as an option for Arizona homeowners and HOAs.

This fairly recent change in procedure means that at least for now, Arizonans cannot handle HOA disputes with an administrative process.  Rather, most serious disputes must be handled in court.  An attorney experienced in HOA law can be instrumental in helping homeowners navigate the process and resolve their dispute appropriately.

When Arizona homebuyers buy into a homeowner’s association, the HOA sometimes charges them a one-time transfer fee.  The fee can range anywhere from $1 to $25,000 or more, and like most fees of this type, transfer fees sometimes generate quite a controversy.  Depending on an individual’s perspective, transfer fees can be seen as a positive or a negative.

Supporters of transfer fees generally argue that they are important for developing a reserve fund for the community.  These funds are frequently drawn from to pay for unexpected repairs.  Revenues generated from transfer fees can be used to repair and maintain common areas and association property, and even make additions approved by the HOA.

Opponents to transfer fees view them quite differently.  Regardless of the benefits that transfer fees may provide, opponents argue that transfer fees make it difficult for members of the community to sell their homes.  This problem, they argue, outweighs any advantages that transfer fees provide for the community.

These competing perspectives have made transfer fees the topic of many legal discussions in Arizona.  In court battles where transfer fees have been disputed, courts tend to allow them as long as they are authorized in the CC&Rs and they are reasonable

Checking the CC&Rs for authority to charge transfer fees is simple enough, but sometimes what is “reasonable” is not so easy to determine.   What is reasonable in one community may be entirely unreasonable in another.  The reasonableness test is subject to factors such as the value of the home and the number of amenities that the association offers.   Communities that are more expensive to buy in and that offer upscale amenities may charge a higher transfer fee than communities that require little maintenance.

If the transfer fee is indeed reasonable and the CC&Rs permit transfer fees, then the HOA is permitted to charge it even if it restricts homeowners’ ability to sell their home.

There has been a lot of talk about energy policy in recent times.  To encourage alternative energy sources, the government is presently offering homeowners up to $3,000 in tax credits for installing solar energy devices (SEDs).  In a state like Arizona, where the sun always seems to be shining, it makes a lot of sense for homeowners to take advantage of this opportunity.

The one problem with SEDs, however, is that many people find them unattractive or unsightly.  This is generally not the case when they are installed on a rooftop, but it is not unheard of for homeowners to mount them to stand-alone towers on their property.  And most homeowners do not want this type of structure in their neighbors yard.  To prevent members of their community from building these structures, Arizona homeowners can call on their HOA.

Homeowners can petition their homeowners’ association to create and enforce a wide range of rules and restrictions.  HOAs can then enforce restrictions, or even add new provisions to the community’s CC&Rs.  However, despite the latitude that HOAs have, federal statute prohibits them from restricting homeowners from installing SEDs.  Nevertheless, HOAs can adopt reasonable rules about where on a homeowner’s property SEDs can be installed.  As long as a HOA rule does not impair the function of the SED, or make it cost-prohibitive for homeowners to install a SED, the HOA can regulate where a SED can be installed on a homeowner’s property.

To sum things up about how HOAs can regulate solar panels, an association can ban stand-alone towers as long as it does not interfere with the SED’s efficiency or make it more costly for homeowners to install SEDs.

Arizona homeowners’ associations routinely have disputes with community members about parking.  Some homeowners are territorial about the street in front of their home, while others feel that the entire block is open for parking.  Still other homeowners take issue with neighbors that park vehicles in their own driveway.  These divergent views on parking have given rise to a wide range of CC&R provisions that restrict parking.

Not too long ago, a Mesa police officer complained about CC&Rs that prohibited him from parking his patrol car in his driveway.  While extreme CC&Rs are not unheard of in Mesa, the law actually forbids restrictions that go too far.  For instance, Arizona HOAs cannot restrict public servants from parking their marked vehicles on their driveway or street.  This means that any CC&R provision prohibiting this is invalid.

This does not mean that all public servants are immune from CC&R restrictions, however.  Arizona law only forbids parking restrictions in limited circumstances.  First of all, to fall under the law’s protection, the homeowner must work for a public service corporation that is regulated by the corporation commission or a municipal utility.  Secondly, the homeowner must be required to use the vehicle in question to respond to “emergency deployments and equipment for repair or maintenance of natural gas, electrical, telecommunications or water infrastructure.”  Also, the vehicle must have an official emblem or otherwise be visibly marked as a public service or utility vehicle, and weigh less than ten thousand pounds.

If all of these requirements are satisfied, then an Arizona HOA cannot prohibit the homeowner from parking the vehicle on the street or driveway.

Many Arizona neighborhoods belong to homeowners’ associations.  Each HOA has its own set of rules and restrictions that are set forth in the community’s CC&Rs.  New homebuyers should always examine the CC&Rs closely to make sure they can abide by the community’s standards.  Doing so will prevent homebuyers from encountering any unexpected surprises once they move into their new community.

Arizona law requires HOAs with 50 or more units to provide homebuyers with a current copy of the CC&Rs.  The HOA must mail or deliver this notice to the homebuyer within ten days of receiving notice that the sale is pending.  Not only must the HOA deliver the CC&Rs in a timely fashion, but it must also provide the homebuyer with the most current version of the CC&Rs.

While it does not occur very often, Arizona HOAs sometimes inadvertently provide homebuyers with an outdated copy of the CC&Rs.  Homebuyers who rely on an inaccurate version of the CC&Rs when purchasing a home may have recourse against the HOA.  HOAs can be liable to homeowners for monetary damages as well as reasonable attorney fees.

The following example illustrates what might happen if an Arizona HOA fails to provide new homebuyers with current CC&Rs:  A RV owner purchases a home in Mesa after finding that the CC&Rs permit community members to park RVs alongside their home.  After living in his new home for several weeks, the new homeowner receives a fine for storing his RV on his property.  He speaks with the HOA and discovers that the CC&Rs were amended two weeks before he moved in, and that he was given the outdated CC&Rs when purchasing his new home.  This homeowner has good basis for disputing the fine, and even getting an exception to the restriction on RV parking.  This whole scenario does not work if the new amended CC&Rs are already recorded with the county recorder’s office. An attorney experienced in Arizona HOA law can help protect this homeowner from unjust treatment by dealing with the HOA in court if necessary.

Arizona homeowners who belong to a HOA should know what is going on with the association they belong to.  Most times, an association’s management company will provide homeowners with records or financial information upon a homeowner’s request.  If met with resistance, however, homeowners should know that Arizona law requires homeowners’ associations to provide members with this information.

Arizona law speaks clearly on how HOAs are to provide homeowners with access to both information and meetings.  As far as information goes, Arizona HOAs must make financial and other records available to association members without charge.  Associations are required to provide such information to members within ten business days of a request, at no more than 15 cents per page to cover printing costs.  HOAs can only withhold the following types of information:

• Records that pertain to pending litigation
• Records protected by attorney/client privilege
• Minutes of executive board meetings
• Confidential records relating to an individual member or employee of the association.

Arizona HOAs are also required to keep meetings open to every member of the association.  Moreover, association members must be given a chance to speak at such meetings.  To prepare members for upcoming meetings, HOA boards should provide members with a meeting agenda well in advance of the scheduled meeting time.  This agenda can place reasonable time restrictions on how long members are permitted to speak for, and must allow for a reasonable number of members to speak on each side of issues.  Portions of meetings can only be closed to members for consideration of the following:

• Legal advice from the association’s attorney
• Pending or contemplated litigation
• Confidential information about an individual member or employee of the association

Mesa homeowners that run into trouble accessing records or meetings in their HOA need to understand that they are entitled to such information.  The right to this information is not negotiable, and HOAs should not be resistant to inquisitive homeowners.

Many Mesa homeowners raise questions about whether the homeowner associations’ they belong to can place a ban on pets.  While HOAs do have some latitude as to what types of behavior they can proscribe, very few Arizona HOAs actually place restrictions on what homeowners can do inside the privacy of their own home.  So even without a specific Arizona statute prohibiting HOAs from proscribing pet ownership, most Arizona homeowners do not have to deal with this issue.

Every so often, however, an Arizona HOA attempts to restrict association members from keeping a pet in their home.  The way in which they do this is by proposing an amendment to the community’s CC&Rs.

If an Arizona HOA manages to incorporate a pet ban into the CC&Rs, the courts can strike it down for a number of reasons.  For instance, if the court finds that the pet ban is unjust, violates public policy, or is extremely one-sided in favor of the association, it may lift the ban.  Courts may also strike down the pet ban if it finds that a member of the HOA board created the rule to satisfy his or her personal preferences.  Generally speaking, Arizona courts only uphold bans on pets if they are necessary to protect the community’s common areas.

When it comes to pet ownership, Arizona homeowners are generally free to keep pets in their home.  This is especially true of small animals such as fish or cats.  Homeowners who are confronted with a hostile HOA about keeping a pet inside their home should speak with an attorney who can familiarize them with their rights.