Tag: HOA fundamentals

HB 2158;  Ariz. Sess. Law Ch 125 (2022)

Reformatted for ease of comprehension. New law is shown in blue caps according to legislative rules. The law duplicates the provisions separately for Condo (ARS 33-1600 et seq.)  and Planned Community HOA (ARE 33-1800 et seq.)  statutes.

ARS 33-1261 (p. 3 – 4)

H. NOTWITHSTANDING ANY PROVISION IN THE CONDOMINIUM DOCUMENTS,

  • AN ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT THE INDOOR OR OUTDOOR DISPLAY OF AN ASSOCIATION-SPECIFIC POLITICAL SIGN
  • BY A UNIT OWNER BY PLACEMENT OF A SIGN ON THAT UNIT OWNER’S PROPERTY, INCLUDING ANY LIMITED COMMON ELEMENTS FOR THAT UNIT THAT ARE DOORS, WALLS OR PATIOS OR OTHER LIMITED COMMON ELEMENTS THAT TOUCH THE UNIT, OTHER THAN THE ROOF.
  • AN ASSOCIATION MAY ADOPT REASONABLE RULES REGARDING THE PLACEMENT, LOCATION AND MANNER OF DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS,
  • EXCEPT AN ASSOCIATION SHALL NOT DO ANY OF THE FOLLOWING:

1. PROHIBIT THE DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS BETWEEN THE DATE THAT THE ASSOCIATION PROVIDES WRITTEN OR ABSENTEE BALLOTS TO UNIT OWNERS AND THREE DAYS AFTER THE CONDOMINIUM ELECTION.

2. LIMIT THE NUMBER OF ASSOCIATION-SPECIFIC SIGNS, EXCEPT THAT THE ASSOCIATION MAY LIMIT THE AGGREGATE TOTAL DIMENSIONS OF ALL ASSOCIATION-SPECIFIC SIGNS ON A UNIT OWNER’S PROPERTY TO NOT MORE THAN NINE SQUARE FEET.

3. REQUIRE ASSOCIATION-SPECIFIC POLITICAL SIGNS TO BE COMMERCIALLY PRODUCED OR PROFESSIONALLY MANUFACTURED OR PROHIBIT USING BOTH SIDES OF THE SIGN.

4. REGULATE THE NUMBER OF CANDIDATES SUPPORTED OR OPPOSED OR THE NUMBER OF BOARD MEMBERS SUPPORTED OR OPPOSED IN A RECALL OR THE NUMBER OF BALLOT MEASURES SUPPORTED OR OPPOSED ON AN ASSOCIATION-SPECIFIC POLITICAL SIGN.

5. MAKE ANY OTHER REGULATIONS REGARDING THE CONTENT OF AN ASSOCIATION-SPECIFIC POLITICAL SIGN, EXCEPT THAT THE ASSOCIATION MAY PROHIBIT USING PROFANITY AND DISCRIMINATORY TEXT, IMAGES OR CONTENT BASED ON RACE, COLOR, RELIGION, SEX, FAMILIAL STATUS OR NATIONAL ORIGIN AS PRESCRIBED BY FEDERAL OR STATE FAIR HOUSING LAWS.

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J. NOTWITHSTANDING ANY PROVISION IN THE CONDOMINIUM DOCUMENTS,

AN ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT A UNIT OWNER’S ABILITY TO PEACEFULLY ASSEMBLE AND USE COMMON ELEMENTS OF THE CONDOMINIUM IF DONE IN COMPLIANCE WITH REASONABLE RESTRICTIONS FOR THE USE OF THAT PROPERTY ADOPTED BY THE BOARD OF DIRECTORS.

AN INDIVIDUAL UNIT OWNER OR GROUP OF UNIT OWNERS MAY ASSEMBLE TO DISCUSS MATTERS RELATED TO THE CONDOMINIUM,

* * *

 1. “ASSOCIATION-SPECIFIC POLITICAL SIGN” MEANS A SIGN THAT SUPPORTS OR OPPOSES A CANDIDATE FOR THE BOARD OF DIRECTORS OR THE RECALL OF A BOARD  MEMBER OR A CONDOMINIUM BALLOT MEASURE THAT REQUIRES A VOTE OF THE ASSOCIATION UNIT OWNERS.

ARS 33-1808 (p. 7 – 8)

K. NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS,

  • AN ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT THE INDOOR OR OUTDOOR DISPLAY OF AN ASSOCIATION-SPECIFIC POLITICAL SIGN BY A MEMBER BY PLACEMENT OF A SIGN ON THAT MEMBER’S PROPERTY.
  •  AN ASSOCIATION MAY ADOPT REASONABLE RULES REGARDING THE PLACEMENT, LOCATION AND MANNER OF DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS,
  • EXCEPT AN ASSOCIATION SHALL NOT DO ANY OF THE FOLLOWING:
  • PROHIBIT THE DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS BETWEEN THE DATE THAT THE ASSOCIATION PROVIDES WRITTEN OR ABSENTEE BALLOTS TO MEMBERS AND THREE DAYS AFTER THE PLANNED COMMUNITY ELECTION.
    • LIMIT THE NUMBER OF ASSOCIATION-SPECIFIC SIGNS, EXCEPT THAT THE ASSOCIATION MAY LIMIT THE AGGREGATE TOTAL DIMENSIONS OF ALL ASSOCIATION-SPECIFIC SIGNS ON A MEMBER’S PROPERTY TO NOT MORE THAN NINE SQUARE FEET.
    • REQUIRE ASSOCIATION-SPECIFIC POLITICAL SIGNS TO BE COMMERCIALLY PRODUCED OR PROFESSIONALLY MANUFACTURED OR PROHIBIT USING BOTH SIDES OF THE SIGN.
    • REGULATE THE NUMBER OF CANDIDATES SUPPORTED OR OPPOSED OR THE NUMBER OF BOARD MEMBERS SUPPORTED OR OPPOSED IN A RECALL OR THE NUMBER OF BALLOT MEASURES SUPPORTED OR OPPOSED ON AN ASSOCIATION-SPECIFIC POLITICAL SIGN.
    • MAKE ANY OTHER REGULATIONS REGARDING THE CONTENT OF AN  ASSOCIATION-SPECIFIC POLITICAL SIGN EXCEPT THAT THE ASSOCIATION MAY PROHIBIT USING PROFANITY AND DISCRIMINATORY TEXT, IMAGES OR CONTENT BASED ON RACE, COLOR, RELIGION, SEX, FAMILIAL STATUS OR NATIONAL ORIGIN AS PRESCRIBED BY FEDERAL OR STATE FAIR HOUSING LAWS.

* * *

M. NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS,

  • AN  ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT A MEMBER’S ABILITY TO PEACEFULLY ASSEMBLE AND USE COMMON AREAS OF THE PLANNED COMMUNITY IF DONE IN COMPLIANCE WITH REASONABLE RESTRICTIONS FOR THE USE OF THAT PROPERTY ADOPTED BY THE BOARD OF DIRECTORS.
  • AN INDIVIDUAL MEMBER OR GROUP OF MEMBERS MAY ASSEMBLE TO DISCUSS MATTERS RELATED TO THE PLANNED COMMUNITY,
    • INCLUDING BOARD ELECTIONS OR RECALLS, POTENTIAL OR ACTUAL BALLOT ISSUES OR REVISIONS TO THE COMMUNITY DOCUMENTS, PROPERTY MAINTENANCE OR SAFETY ISSUES OR ANY OTHER PLANNED COMMUNITY MATTERS.
    • A MEMBER MAY INVITE ONE POLITICAL CANDIDATE OR ONE NON-MEMBER GUEST TO SPEAK TO AN ASSEMBLY OF MEMBERS ABOUT MATTERS RELATED TO THE COMMUNITY.
    • THE ASSOCIATION SHALL NOT PROHIBIT A MEMBER FROM POSTING NOTICES REGARDING THOSE ASSEMBLIES OF MEMBERS ON BULLETIN BOARDS LOCATED ON THE COMMON AREAS OR WITHIN COMMON AREA FACILITIES.
    • AN ASSEMBLY OF MEMBERS PRESCRIBED BY THIS SUBSECTION DOES NOT CONSTITUTE AN OFFICIAL MEMBERS’ MEETING UNLESS THE MEETING IS NOTICED AND CONVENED AS PRESCRIBED IN THE COMMUNITY DOCUMENTS AND THIS CHAPTER.

O. For the purposes of this section: ,

1. “ASSOCIATION-SPECIFIC POLITICAL SIGN” MEANS A SIGN THAT SUPPORTS OR OPPOSES A CANDIDATE FOR THE BOARD OF DIRECTORS OR THE RECALL OF A BOARD MEMBER OR A PLANNED COMMUNITY BALLOT MEASURE THAT REQUIRES A VOTE OF THE ASSOCIATION MEMBERS.

Dictatorial HOA presidents and silent directors are at risk

This post is based on the article, HOA Homefront: Presidents are board members not bosses that acknowledges a serious and common problem with most HOA governance.  By Kelly G. Richardson | Kelly@Rodllp.Com. August 26, 2022.[1] 

* * * *

The HOA president’s role is often misunderstood and can result in a very serious board dysfunction. It can as well cause stress and risk for the president. First, it is critical to understand that the role and power of the HOA president are dramatically different than that of a for-profit corporate president.

In a for-profit corporation, the day-to-day running of the business is typically the responsibility of the president, the “boss” so to speak.”  However, in most HOAs the day-to-day execution of board decisions is executed by the association’s professional manager. “The HOA’s boss is not the president but is [] the HOA board.”

 The president has just one vote on the board, and that vote is no more valuable than any other director. Directors should take heed that those “who always automatically defer to the president are not fulfilling their responsibility to the association.”  Furthermore, corporation law holds any director  as implicitly agreeing if he does not post a dissenting opinion, which unfortunately, the governing documents are silent and do not provide an explicit right to file dissenting opinions.

By taking the “boss” role, a president is often outside his authority and disrespects the board that is the actual authority. Such a president could also be acting without corporate authority and exposed to personal liability for corporate commitments made without board approval.

Note 1. Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association expertise.

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protected speech concerning HOA governance

Last month I urged  all HOA members to support Arizona’s HB 2158,

“Many courts have referred to the Declaration of Covenants, Conditions and Restrictions (CC&Rs) as the HOA constitution.  Arizona’s HB 2158 is a second try (Arizona HB 2052 restores homeowner constitutional speech protections ) to prohibit restrictions on HOA members’ freedom of political speech with respect to HOA governance issues and matters.”

(Do you stand behind the US Constitution or your HOA ‘constitution’?)

The bill addresses the right of members to free political speech on matters affecting the governance of the HOA by specifying such rights and prohibiting HOA interference with these rights.  While the bill refers to “association-specific” signs, it is a giant step toward HOA democracy by creating a fair election and voting process, affecting procedures now dominated by the pro-HOA governing documents.

You can read the itemized “freedoms” here.  Just a few,

  • Defines an association-specific political sign as a sign that supports or opposes a candidate for the board or the recall of a board member or a condominium or planned community ballot measure that requires a vote of the COA or HOA owners.
  • Prohibits a COA or HOA from prohibiting or unreasonably restricting an owner’s ability to peacefully assemble and use common areas of the COA or HOA,
  • [prohibits] making any other regulations regarding the content of an association-specific political sign,
  • Allows an owner to invite one political candidate or guest to speak to an assembly of owners about matters related to the respective condominium or planned community.

The bill passed the House and will be heard all over again, as required by law, in the Senate this Monday, March 14th.  The Senate has always been a “stopper” of HOA reform bils; your continued, loud and clear support is necessary.

Email the Senate Government committee members NOW! 

Sonny BorrelliVice-Chairman
Sally Ann GonzalesMember
Theresa HatathlieMember
J.D. MesnardMember
Martin QuezadaMember
Wendy RogersMember
Kelly TownsendChairman

If familiar with the Legislature’s RTS procedure, sign on and make your voice via RTS, which is read by the committee members and made part of the record. Instructions on how to set up your RTS account can be found here.  It may look complicated but it simple, just fill in the boxes.  Your RTS can be used for any bill by just entering the bill number. 

Unfortunately, you must set up your account at a kiosk at the state capitol, after which youc can access your account from your home.

HOA “bible” ignores members’ property rights

An excerpt from the HOA “bible” that was the source of the HOA legal scheme and structure, and included appendices on model CC&Rs and bylaws (Appendices F, G, and H, pages 384 – 402). While over time minor changes have appeared in governing documents, they are for the most part, and in particular on fundamental issues, boilerplate covenants contained in the Handbook.

Note that no mention is made of the homeowner, the HOA member, whose property interests are at stake and the subject of the legal scheme. “Association officers,” as we have discovered, represent the association and not the personal property interests of the members. The members are there, it seems, to fund the HOA. It is a top-down governmental structure with little concern for protecting principles of democratic government.

A history of the institutionalization of HOAs

After 58 years, the public, the legislators, the media, and the HOA boards of directors and vast majority of members have remained quietly accepting HOAs as a private form of local government.

“People could care less about the truth. People buy promises and dreams. They’ll do anything to avoid reality” (anonymous)

The above quote, reflecting human nature,  gets to the very heart of the HOA-Land problem. It applies to all HOA members throughout America.  In a sarcastic Nextdoor  post, the writer expressed his feelings that my posts presenting justifications for restructuring HOA-Land were, in my words too cute. He didn’t want “to be in an association that George had anything to do with . . . and take his trouble making rhetoric to other lucky people.”

I responded:

“My HOA right or wrong! So what if it has violated state laws and the governing documents, and refuses to defend itself. So what! As long as the amenities keep coming and assessments stay low, I guess all is OK.”

I have high hopes that all HOA members will follow their conscience and do what is right for their community, their state, and for America.  The alternative is a rejection of our democratic institutions, our constitutional government,  and the principles and values that we, as Americans, stand for.  The alternative is an acceptance of the HOA-Land Nation Within America.