602-228-2891 / info@pvtgov.org
updated March 1, 2009
(See Legal Disclaimer at the end of this page).
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The Arizona Office of
Administrative Hearings adjudication of HOA disputes has been declared
unconstitutional by a superior court appeal with the Attorney General and the
Legislature refusing to defend the statute. OAH will not be hearing further disputes. The reversal of the AG from support of
the statute to "not my problem" reflects Arizona's policy not to help
homeowners living in HOAs.
As Pres. Obama said about government during his campaign, "YOU ARE ON YOUR OWN!"
ALERT! Effective April 1, 2007, the HOA complaint
(petition) filing fee is now $550 again for a single count; $2,000
for multiple counts. You should file a a single count on separate petitions. If
you can show intentional violation of the laws or governing documents, you may
obtain penalties of $500 against the HOA for each count.
If you believe that
you have been wrongly assessed, fined or charges levied against you by your
HOA, please read OAH and Restitution.
Your responsibility as
a Pro Per (representing yourself)
DO NOT WAIT TO BE SUED!
The HOA will sue, and will sue in Superior Court where it has an
overwhelming advantage. At the first sign of a disagreement with your
HOA, you need to think civil suit and to take action to protect
yourself. Once you have been served with a court summons and complaint, your
options become severely restricted.
New laws provide an improved
recourse to respond to HOA allegations of violations and fines. ARS 33-1803(C)
- (E) defines your rights, which requires10 days to file a certified
response to the HOA notice, which is not the civil action summons. The
HOA must respond with the information within 10 days, and until it complies, it
cannot take any further legal action against you. It allows you to file a
complaint against the HOA with the Office of Administrative Hearings. See
Important Information below.
With respect to filing as a Pro
Per and Plaintiff's argument that, "Plaintiff is appearing as a Pro
Per, and cannot be expected to meet the club's attorney's high standard of
presentation", the HOA responded with, "Plaintiff errs in
her analysis. Whether represented by counsel or representing herself,
Plaintiff is held to the same standard and has no right to expect the Court to
assist her in resolving filing deficiencies. The Court is a neutral
arbitrator." Payne v. Payne, 471 P.2d 319 (Ariz.
App. 1970).
Important information to help win your
case.
Filing a complaint with the
Arizona Office of Administrative Hearings, OAH, will significantly increase
your chance of winning, only if your case is solid. OAH does not
use the complex Rules of Civil procedure, but still requires a valid and well
defined complaint of a violation of the Declaration or statutes. Arguments made must be supported be legal
authority and be specific, to the point, and either support your
arguments or refute the HOA arguments.
* statutes (see below for more information),
* case law (prior decisions, case precedent),
* the Declaration (CC&Rs), by-laws and any rules and regulations, and
* other evidence -- HOA letters, notices, newsletters, emails, board minutes, etc and testimony of witnesses.
OAH Enabling Statute that grants authority to
OAH to hear these specifc HOA disputes.
ARS 41-2198.01
B. For a dispute between an owner and a condominium
association or planned community association that is regulated pursuant to
title 33, chapter 9 or 16, the owner or association may petition the
department for a hearing concerning violations of condominium documents or
planned community documents or violations of the statutes that regulate
condominiums or planned communities. (See statute excerpt below).
Comment on statute: The above statute was clarified by an ALJ, who
advised parties that complaints must relate to the above mentioned statutes, or
be shown that they relate by submitting supporting legal authority. (OAH #
07F-H067009-BFS).
For example, there is no statute governing HOA directors requiring a fiduciary duty to homeowners. However, the conduct of HOA directors is subject to the nonprofit and membership statutes under ARS 10-3830 (not an HOA statute under the above; see statute excerpt below), that does not require a fiduciary duty to members, but says, "In good faith", "With the care an ordinarily prudent person" and "in the best interests of the corporation". An allegation -- your complaint -- as to improper director actions needs to address this statute, and any other case law pertaining to HOA director conduct, including legal definitions of "good faith" and "prudent man", for instance. Your arguments must present facts to show improper director conduct.
The problem facing the Pro Per is much more complicated when attempting to claim a violation of his rights. Supporting legal authority must be submitted, which must come from outside the statutes regulating HOAs, because the protections of civil and fundamnetal rights are not contained in these statutes.
Understand that you have agreed to grant the HOA broad discretionary powers to govern the association, generally to maintain property values, when you accepted your deed. And you were not required to sign any explicit agreement to that affect -- just accepting your deed was sufficient. YOU have the burden to prove that the board or the directors have violated the governing documents or state laws.
Recommendations
1. See ARS 33-1803(E) and the OAH web site, http://www.azoah.com/HB2824.htm.
2. View the OAH videos on the
hearing process at http://www.azoah.com/
and familiarize yourself with other required procedures. "Preparing for Hearing" (a must-see for hearing
preparation).
3. View at least one real HOA complaint by
selecting an individual Hearing audio file to hear how a real file is
conducted. Decide the case yourself, then obtain the ALJ decision in the
case. Your case will be handled in a similar matter. (Enter %-H%-BFS as
the search criteria under a "matter id" type search. You will get a
list of cases to make a selection.)
4. DO NOT ASSUME YOU ARE TALKING TO YOUR FRIENDS OR SOME SOCIAL CLUB, AND MAKE UNSUBSTANTIATED ALLEGATIONS -- THOSE WITHOUT ANY SUPPORTING AUTHORITY OR FACTUAL BASIS.
5. The OAH judge(s) will take into
account, for its decision, only those items "on the record" -- the
OAH filings, testimony, evidence, statutes, case history and HOA documents
provided to the OAH. All else is ignored, so say it all and be sure
that it's relevant and to the point that you are trying to make. Do not
whine with statements like, "I don't think it's fair" or "It's
not right" without showing the ALJ your legal basis in support of your
"empty" statements (called an allegation).
Additional Material
1. Representing Yourself in Court, Nolo.com
Invaluable book. Pay attention to chs. 7 and 8, What You Need to Prove at Trial; ch 22, Legal Research; and ch 17, Organizing a Trial Notebook. This notebook helps you plan and organize your case, and should contain the court filings, list of questions to ask of what witnesses, list of exhibits, your opening and closing statements, etc.
2. Legal Research, Nolo.com.
Shows how to read and undestand case opinions, how to lookup cases, and how to write a legal memorandum. A legal memorandum is a written statement to the court of your arguments with supporting authority. The memorandum is very important for your understanding on how to make legal arguments before the ALJ or court.
3. Neighbor Law, Nolo.com. Contains everyday issues with neighbors -- noise, trees, fences, etc.
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Selected Arizona Revised Statutes (See AHLIS Legal Information web page for non-inclusion case authority and Arizona statutes.
10-3830. General standards for directors
A. A director's duties, including duties as a member of a committee, shall be discharged:
1. In good faith.
2. With the care an ordinarily prudent person in a like position would exercise under similar circumstances.
3. In a manner the director reasonably believes to be in the best interests of the corporation.
B. In discharging duties, a director is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, if prepared or presented by any of the following:
1. One or more officers or employees of the corporation whom the director reasonably believes are reliable and competent in the matters presented.
2. Legal counsel, public accountants or other person as to matters the director reasonably believes are within the person's professional or expert competence.
3. A committee of or appointed by the board of directors of which the director is not a member if the director reasonably believes the committee merits confidence.
4. In the case of corporations organized for religious purposes, religious authorities and ministers, priests, rabbis or other persons whose position or duties in the religious organization the director believes justify reliance and confidence and whom the director believes to be reliable and competent in the matters presented.
C. A director is not acting in good faith if the director has knowledge concerning the matter in question that makes reliance otherwise permitted by subsection B unwarranted.
D. A director is not liable for any action taken as a director or any failure to take any action if the director's duties were performed in compliance with this section. In any proceeding commenced under this section or any other provision of this chapter, a director has all of the defenses and presumptions ordinarily available to a director. A director is presumed in all cases to have acted, failed to act or otherwise discharged such director's duties in accordance with subsection A. The burden is on the party challenging a director's action, failure to act or other discharge of duties to establish by clear and convincing evidence facts rebutting the presumption.
E. A director shall not be deemed to be a trustee with respect to the corporation or with respect to any property held or administered by the corporation, including property that may be subject to restrictions imposed by the donor or transferor of that property.
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Note: "Good faith" is defined in Black's Law Dictionary as:
A state of mind consisting in (1) honesty in belief and purpose, (2) faithfulness to one's duty orobligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, (4) absence of intent to defraud, or to seek unconscionable advantage.
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41-2198.01. Hearing; rights and procedures (in part)
A. A person who is subject to title 33, chapter 11 or a party to a rental
agreement entered into pursuant to title 33, chapter 11 may petition the
department for a hearing concerning violations of the Arizona mobile home parks
residential landlord and tenant act by filing a petition with the department
and paying a nonrefundable filing fee in an
amount to be established by the director. All monies collected shall be
deposited in the state general fund and are not refundable.
B. For a dispute between an owner and a condominium association
or planned community association that is regulated pursuant to title 33,
chapter 9 or 16, the owner or association may petition the department for a
hearing concerning violations of condominium documents or planned community
documents or violations of the statutes that regulate condominiums or planned
communities. The petitioner shall file a petition with the department
and pay a nonrefundable filing fee in an amount to be established by the
director. The filing fee shall be deposited in the condominium and planned
community hearing office fund established by section 41-2198.05. The department
does not have jurisdiction to hear:
1. Any dispute among or between owners to which the association is not a
party.
2. Any dispute between an owner and any person, firm, partnership,
corporation, association or other organization that is engaged in the business
of designing, constructing or selling a condominium as defined in section
33-1202 or any property or improvements within a planned community as defined
in section 33-1802, including any person, firm, partnership, corporation,
association or other organization licensed pursuant to title 32, chapter 20,
arising out of or related to the design, construction, condition or sale of the
condominium or any property or improvements within a planned community.
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Legal Disclaimer
The information
contained in this written and electronic communication, and our associated web
sites and blog, is provided as a service to the Internet community, and does
not constitute legal advice. We try to provide quality information, but we make
no claims, promises or guarantees about the accuracy, completeness, or adequacy
of the information contained in or linked to this web site and its associated
sites. As legal advice must be tailored to the specific circumstances of each
case, and laws are constantly changing, nothing provided herein should be used
as a substitute for the advice of competent counsel.
No person associated
with AHLIS or Citizens for Constitutional Local Government, Inc. are attorneys
nor are employed by an attorney. Mr. Staropoli is an Arizona independent
paralegal, or Certified Legal Document Preparer as licensed in the state of
Arizona.