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P. Simmons
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 33663
Experience:  12+ yrs. of experience including real estate law.
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This submission loosely follows my last, but with more focus

Customer Question

This submission loosely follows my last, but with more focus and a revised game plan. State is actually AZ.Situation: A condominium Association want’s to declare a portion of its open street level common property as a “protest area” in the pursuit of a “legal protest” action against a proposed contiguous development that requires rezoning by the municipality in which the condominium is located. Such successful submission by the owner of a qualified “legal protest” area then requires a super majority of the City Council to approve such rezoning.Question: The question then arises as to who/what constitutes ownership of the legal protest area, a portion of the common area.Fact 1: The the ownership of the condominium common area is by the Membership of the condominium as “tenants in common.”Fact 2: The condominium Association, under direction of its Board of Directors, has authority to manage the common areas in any manner it sees fit, but not sell or add to it without a vote of the membership.Fact 3: The State Code (and compliant City Ordinance) regarding the requirements for a “legal protest” requires such action to be filed by the “property owners” of the property containing the “protest area.”So, a) Can the Association simply submit such a “legal protest” action on the basis of a vote of it’s Directors? Or, b) Will the Membership have to concur with a special vote to support such action? Or . . . ??
Submitted: 5 months ago.
Category: Real Estate Law
Expert:  P. Simmons replied 5 months ago.

Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

Expert:  P. Simmons replied 5 months ago.

I think there may be some confusion...can you point me to the ARS you are referring to (the AZ code you are referring to)?

Customer: replied 5 months ago.
ARS 9-462.04.H
Expert:  P. Simmons replied 5 months ago.

Thanks...that I understand (I understand that part of the code). But not sure I understand your question...you seem to be asking about how an association can designate part of the common area as a "protest" zone...so the plan is to take part of the common area and designate it to all "protest"?

Customer: replied 5 months ago.
No. It's a question of whether or not the Association Board can appear as or on behalf of the memberships "tenant in common" ownership of the common area grounds as an "owner" or "owners" of the Association's common property for the purpose of filing a "legal protest" action with the city to require a super majority vote to approve a zoning change which we as a Condo Association oppose. As far as qualifying the "protest area" per the ordinance, that's just a mapping exercise and a slam dunk for us in our plat map situation. In the past, the city has only qualified "legal protest" challenges to other zoning change proposals to the title holders of a proximate property or properties. And they think because we are a condominium property with a complex ownership structure, that we will not be able to file a "legal protest" action per the AZ code I cited above. BTW, the whole "legal protest" property owner tool to thwart zoning changes is common with most municipalities, with just the physical requirements differing -- goes back more than a hundred years per my researches. So there might be some precedent to apply regarding how a condo ownership situation is treated. And in this case, I just care about the common area part of the condo ownership as we have more than sufficient such property to qualify 20% of the protest area per the code.
Expert:  P. Simmons replied 5 months ago.

Thank you
The association board IS the proper body to appear on behalf of the owners. That is, the board of directors for this owners association speaks on behalf of the ownership. So they (the board of directors, particularly the president of the board) will have authority to speak for the owners (via the board of directors)

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Customer: replied 5 months ago.
But what is the common area "ownership" position of the BOD? It's not a conventional ownership position. For instance they cannot sell or add to any part or all of the common area without a vote of the Membership. It's not a representation thing. It's an ownership thing. The state statute and city ordinance version do not say that representatives of the owners can file a "legal protest." It says the owner(s) must file. What is the legal definition of owner(s). The title holder(s)? Or , , , ? And where are the condo association property precedents in this matter. I don't have access to $$$ law firm research tools like Lexus Nexus. "Legal protest" actions are submitted and approved or disapproved by municipalities all over the country (and probably abroad) all the time and over a period of may years. This is the kind of help I come to a lawyer for. Of course I know the BOD "speaks" for the ownership in a general sense. But I am concerned it is not enough as I am getting push back from the City on this.
Expert:  P. Simmons replied 5 months ago.

Ahh...it seems you are looking for "case law" research. I can perform that service. It it takes time (and I have to pay for the access). I will send the offer. If you accept I am happy to perform that research.

Expert:  P. Simmons replied 5 months ago.

I sent the offer...if you accept I can provide my phone #/email and we can proceed.

Customer: replied 5 months ago.
do I have to pay to do my own case law research, maybe a better and more direct approach. $80 in addition to $40? I'm sorry, but you haven't been helpful. Do I have to pay for that?
Expert:  P. Simmons replied 5 months ago.

The offer I sent was for ME to perform the research. I pay for a service that allows me to search case law...and I can perform this service for you...I anticipate I will spend approx 60 mins on this, thus my offer is in addition to the question amount (so $40 +80).
If you are not interested, no problem.

Customer: replied 5 months ago.
I will see what it costs to rent a service and get back.
Expert:  P. Simmons replied 5 months ago.

Certainly.

Customer: replied 5 months ago.
Mr Simmons -- Basically, this has gotten complicated. So I will have to work with a local attorney that has helped me in the past. I had hoped to get some basic "points of law" from you -- my usual reason for touching base with Just Answer as a first step. Not forthcoming here. Please cancel this session. Appreciatively, Bob.

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