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Question & Answer
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Do Arizona laws allow homeowner associations to rewrite CCR's and give themselves vast powers over others' private property?
Our board's proposed poorly written CCRs give them a great deal of authority
July 09, 2006
By
Richard Anthony
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As an addendum to the previous comment:
If and when you do have an attorney review your CC&Rs in light of your question on the proposed Board announced rewriting, when seeking an attorney ask first if their "contract" or "real estate" attorneys clients are Associations, or affiliated with the CAI - their "interpretations" or "opinions" due to their legislative and political activitity and not just strictly "legal" interpretations, will be skewed to their "agendas" and not the "documents" per se, which I found when I attempted to address through the courts a major misrepresentation that had been going on in our community for quite a number of years apparently. They do not like the "older" documents at all, hence, the attempts to rewrite many of these older CC&Rs through the legislature since at least 1994, BECAUSE they were "Associations" and recognized their non-profit status so did incorporate language with respect to monetary issues which included informing and voting of the membership. They, by and large, are not unbiased and will attempt to foster an "agenda" rather than give a "legal opinion" On their website, their stated positions is in giving Board's total financial control over the Association, with unlimited caps for reserves, budgets, etc., so that they then through their vendor entities basically "control" the Association pocketbook, and select key legislators, it would appear due to their success since at least 1994 have supported their agenda hook, line and sinker, apparently for several lunches, special event tickets, and capaign contributions through individual "attorney" members (keeping the PAC money for the paid lobbyist instead).
I would discreetly find out who's "idea" it was, whether the actual Board's or the "Association" attorney to "rewrite" the documents, and who the "Association" attorney might be. Normally it is difficult to amend existing CC&Rs, and basically the old ones were compiled as "Associations" to make it "easier" for the developers to sell the lots since back then it was stressed that members votes and voices were needed for financial issues, recognizing their wallets were involved - it was only with the advent of the litigious CAI bunch who quite frankly are depreciating value for these properties with each new "Board" expanding statute they write, since who would want to purchase a property in which there are no "limits" on assessment increases and they are determined by neighbors relying on vulture management concerns, their attorneys and their for-profit vendors for "estimates" or give Board members perks or discounts in many instances for using their vendors or signing their contracts and then "advising" new "standard" interpretations, or changing the architectural "rules" requiring members to use their vendors? Price fixing, anyone? While this organization's publicized "concern" is for the Associations and homeowners residing in them geared to "insuring" Association's viability or "retaining" home values, it is quite apparent at this point it is their wallets and viability that is the main concern, with even their own paid lobbyists and such, and with each new statute including provisions for attorney fees and costs, or increased fees through legislation attempting to "pass through" management concern costs through the Association to the homeowners contrary to many of their contracts (instead of quoting their contract rates accurately including all services, without attempting to extort money from the homeowners through the Association in breach of many of their documents. The dichotomy of their position on "unlimited" authority for Boards with respect to assessments could not in a million years be construed as a "plus" for a homeowner upon sale, nor will it "maintain" and "increase" marketability and property "value," and with Board authority only needed for assessment levels, I would feel the mortgage industry would begin to become leery of approving any mortgage loans on properties with that type of provision soon as the costs of foreclosures on properties with little equity in the now high Phoenix market will begin affecting their wallets. The CAI is clueless insofar as what their "stances" are costing in quality of life in these communities, and costs to the public at large, but is obvious, cares little about the "viability" of these Associations and does not "connect" Association with the actual human beings paying "their" salaries (and lobbyists). It is interesting to note that the AACM now has a "homeowner HOPE grant for those members who cannot make their assessment payments, and for other "charitable" causes. I hope the next legislative session then, with their realization in starting such a fund, that some of these laws have created financial devastation for many, they will join in rescinding 33-1803 next legislative session, or instead of supporting "mandatory reserve" legislation, will support a total ban on the foreclosure remedy in favor of collection activities under the Fair Debt Collection Act.
Check with a smaller firm or "old timer" contract and real property attorney, or my best suggestion if the "idea" is coming from the "Association" attorney, and your documents are pre-1990 with "fairness" and a "checks and balances" on assessment levels requiring member votes, etc., if their proposed changes have anything to do with negating needed membership voting, or more stringent restrictions without seeking any owner input prior to "presenting" this rewritten document to the membership as a "fait accompli" would be to sell, and sell soon.
Hope this helps.
Posted Jul 11 2006 9:16AM CEST
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Username withheld
Phoenix, Arizona |
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I would check your current CC&Rs, as most have language regarding how "amendments" must be handled, and normally (especially with "older" CC&Rs) require usually three-fourths of the memberships vote and approval in order to be effective. Also, with respect to "inspections," since "the Association" normally only "owns" the common areas, and all lots or units are still "deed simple" individually owned and titled properties (albeit with "use" restrictions), this could be construed as a violation of a "constitutional" right under the Arizona Constitution as below:
8. Right to privacy
Section 8. No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
You are not a tenant, you are an owner, and while most documents do provide that IN AN EMERGENCY in order to make a repair that is affecting either another owner or the common area and/or a danger, the Association or another owner may enter your property to make that repair, I sure would question under the Arizona Constitution unless YOU specifically would vote to give them such a right, even with a 3/4's vote (as in most documents for amendment) whether that would stick, since constitutional rights may be "voluntarily" waived, but may not be "taken" from you without your consent, and your right to privacy and enjoyment of your private property IS your constitutional right.
But check with an attorney familiar with property law to review your CC&Rs (which as the main contractual document, normally outline amendment procedures and the required number of votes needed), and with respect to the "inspection" issue, constitutional law, on these matters, to check against your current copy of your CC&Rs. Unless the membership has been requesting such changes for years or this was addressed at the annual membership meeting with widespread support, it would seem unusual for a Board to independently attempt to undertake a total "rewriting" of the CC&Rs without even taking a "poll" or sending a "questionaire" to the membership regarding any dissatisfactions with the current CC&R provisions in order to at least see if there was "widespread" rather than "minority" requests or support for those changes.
Posted Jul 10 2006 7:02AM CEST
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Username withheld
Phoenix, Arizona |
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Illegal CCRs do not just give board members a great deal of power. They also create goldmines for the crafty CAI lawyers who write them. Some examples:
In Palacio del Mar Homeowners Association and Desert Crest Homeowners Association, Peters & Freedman recorded illegal CCRs. In Palacio del Mar, David Peters presented a CCR change as merely creating staggered terms of office for board members. In fact, it also eliminated cumulative voting in order to prevent certain owners from gaining office using that method. In Desert Crest, seniors in their 80's and 90's were forced to pay $70 a month to belong to a golf club, even though most could not even swing a golf club. It is projected that the golf club owner (the developer) will make over an extra half a million.
Peters & Freedman then unsucessfully attenpted to rewrite the CCRs of Desert Horizon Homeowners Association to force the owners to pay $625,000 to a private business but the owners ,who had read the reports on AHRC about Peters & Freedman, stopped them.
Encinitas Village Homeowners are battling Peters & Freedman and board members regarding CCRs changes alleged violations of election, disclosure and mediation regulations.
Board member and protege of Peters & Freedman continues illegal CCRs change practices after moving to Northern California - Bryan Ranch Homeoewners Association
Tim Alman, who was president of Palacio del Mar Homeowners Association where Peters & Freedman provided him cover for illegal activities, moved to Bryan Ranch Homeowners Association in Northern California.
Homeowners there reported that Alman and some homeowners went around selectively collecting signatures and then recorded illegal CCRs to stop homeowner David Duffield from building a 17,000 square feet home on his 21 acre property.(Palacio del Mar board members did a similar signature gathering and illegal CCR rewrite and recording to give common area property to a board member, Raul Rubaclava, for a fancy driveway entrance to his palatial ocean view mansion.) . Bryan Ranch homeowners also reported that Alman employed Peters & Freedman to sue a homeowner without the required vote of the rest of the board members.
Related links:
DEVASTATION IN SOUTHERN CALIFORNIA - Seniors forced to sell their trailer home shelters to pay homeowner association lawyers Peters & Freedman - November 06, 2004 - By David Osterpil
DESERT HORIZONS HOMEOWNERS ASSOCIATION TRIES NEW RECRUITING TACTIC - COMPULSION - Peters & Freedman helping another Country Club raise $621,000 a year using enforceable liens
A DAY IN COURT - The Way it Really Is - November 24, 2004 - By AHRC News Services Staff -
Duffield lawyer's letter alleges restrictions invalid- December 24, 2005 - By Linda Davis Alamo, California
Peters & Freedman Helps Another Homeowners Association Record Invalid CCRs That Increase Board Members' Powers and Help Vendors - $98,000 missing from reserves and board refuses to disclose how much was paid to settle a lawsuit that Peters & Freedman lost? - May 02, 2006 - By Sheila Holm
Posted Jul 9 2006 4:33PM CEST
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Username withheld
, California |
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