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I am in Scottsdale, AZ. - Which ARS law number specifies…

I am in Scottsdale...

I am in Scottsdale, AZ. - Which ARS law number specifies that no owner of a condominium can be kept from being on the board just because he/she lives outside the community?

Lawyer's Assistant: What steps have you taken so far? Have you prepared or filed any paperwork?

None

Lawyer's Assistant: Where is the condominium located?

Scottsdale, AZ.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

We have 84 units condo. How many votes do we need to pass anything?

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Answered in 4 minutes by:
3/19/2018
P. Simmons
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 36,565
Experience: 12+ yrs. of experience including real estate law.
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Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

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I am sorry for this dilemma. But not sure I understand your specific question. What is going on? The HOA requires the board members to be residents?

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Customer reply replied 1 month ago
In other words, Can a Homeowner be on the Board even if they live outside the community? Which law was enacted to allow that board member to be part of the board?

Is this rule in the HOA bylaws?

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Customer reply replied 1 month ago
I do not wish to call
Customer reply replied 1 month ago
May I answer any additional question?

Is this rule in the HOA bylaws?

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Where is this rule coming from? The Board of Directors?

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Customer reply replied 1 month ago
The ex President really...long story. I heard that there was a new law stating that one could not keep a Homeowner from being on the board because of a living situation outside the community
Customer reply replied 1 month ago
If there is such a law. Could I have the ARS number please.

I am an AZ attorney...and I do not believe there is such a law. That said, the President does NOT get to make the call on this. The bylaws of the association can require members to reside in the community...but you need to see if the bylaws actually state as much

Again this is NOT in the ARS's

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.

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Customer reply replied 1 month ago
The President did get it voted on. It is now in our ByLaws. I thought I had read somewhere that one could not limit the right of a Homeowner to be on the board.

I will opt out...it may be another attorney can assist you with this.

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Customer reply replied 1 month ago
sorry!
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 8,306
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
Verified

I am an Arizona licensed Attorney. Do you have a copy of your governing documents for the Condo Association?

I will provide the laws that apply in order to the Association.

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"Homeowner Associations are governed by a chain of governing documents and laws.

  • The Articles of Incorporation filed with the Secretary of State provide the legal basis of the association in the form of an Incorporated Non-Profit Corporation.
  • The recorded map or 'plat' defines each owner's title to property including the association's title to common areas.
  • The CCR's (Covenants, Conditions, and Restrictions) are publicly recorded deed restrictions.
  • The Bylaws are the rules for management and administration.
  • Resolutions are additional rules and regulations that the association may adopt.
  • Federal Laws also apply. Some but not all include the The Fair Housing Act, Internal Revenue Codes, the American Disabilities Act, the Virginia Graeme Baker Pool and Spa Safety Act , the FCC OTARD Rule (Over the Air Reception Devices - Satellite Dishes) and the Fair Debt Collection Practices Act.
  • Information regarding State Laws specific to common interest communities such as condominiums, cooperatives, and homeowner associations are provided below and in the FAQ section of the Resouce Center. In addition there are typically additional state laws that are not specific to Common Interest Communities which require compliance. Some examples include stormwater runoff, coastal development, elevator inspections for condos, and pool operations to name a few.
  • Local Ordinances, while not specific to homeowner associations, apply to building codes, animal control, abandoned cars, water restrictions, etc.
  • Additional legal regulations can exist in the form of case law; standards set by professional organizations such as accountants, engineers, architects, home inspectors, and real estate brokers; as well as lender requirements.

Considerations:

  • State laws affecting Common Interest Communities vary widely.
  • Bills affecting Common Interest Communities are frequently being introduced in state legislatures and may be in different stages of consideration, approval, or enactment.
  • It is not uncommon to find conflicts within or between governing documents such as the covenants and the bylaws. There may also be conflicts between governing documents and statutes. When this occurs, attorneys must often consider applying Rules of Intepretation.
  • Because of the wide variance in state laws, constant changes and possible conflicts in governing documents or statutes, it is strongly recommended that association boards and members seek legal counsel and especially with firms that have expertise or strong practice experience in the area of Common Interest Community law. A good starting point is to check the HOA-USA Partner Directory for your respective state.

Arizona Laws:

  • Nonprofit Corporation Statutes generally apply to any incorporated Common Interest Community. In Arizona, look to the Arizona Nonprofit Corporation Act (A.R.S. 10-3101 et seq.) Title 10, Chapters 24-40
  • Arizona Revised Statutes, Title 33 - Property, Chapter 9 - Condominiums, Articles 1-4" https://www.hoa-usa.com/statelaws/az.aspx
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Customer reply replied 1 month ago
Good document. Thank you.
OK, I have it in front of me. Our ByLaw was amended in December of 2011 to include: All members of the Board of Directors shall be unit owners WHO RESIDE AT MARIPOSA SCoTTSDALE CONDOMINIUMS AT LEAST 9 MONTHS OF THE YEAR.
I was told it legal then, but not now - something to do with the home owner not being restricted - having rights.
Customer reply replied 1 month ago
You said no such law protecting the Homeowner. I understand. Thank you.

The Bylaws set out the voting rights for owners in accordance with open meetings law.

"33-1804. Open meetings; exceptions

A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association or any person designated by a member in writing as Law Book Revised 11.02.2017 Page 3 the member's representative and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may audiotape or videotape those portions of the meetings of the board of directors and meetings of the members that are open. The board of directors of the association shall not require advance notice of the audiotaping or videotaping and may adopt reasonable rules governing the audiotaping and videotaping of open portions of the meetings of the board and the membership, but such rules shall not preclude such audiotaping or videotaping by those attending, unless the board audiotapes or videotapes the meeting and makes the unedited audiotapes or videotapes available to members on request without restrictions on its use as evidence in any dispute resolution process. Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following: 1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment. 2. Pending or contemplated litigation. 3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association. 4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association. 5. Discussion of a member's appeal of any violation cited or penalty imposed by the association except on request of the affected member that the meeting be held in an open session. B. Notwithstanding any provision in the community documents, all meetings of the members' association and the board shall be held in this state. A meeting of the members' association shall be held at least once each year. Special meetings of the members' association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association. Not fewer than ten nor more than fifty days in advance of any meeting of the members the secretary shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address for each lot, parcel or unit owner or to any other mailing address designated in writing by a member. The notice shall state the date, time and place of the meeting. A notice of any annual, regular or special meeting of the members shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws, changes in assessments that require approval of the members and any proposal to remove a director or an officer. The failure of any member to receive actual notice of a meeting of the members does not affect the validity of any action taken at that meeting. C. Before entering into any closed portion of a meeting of the board of directors, or on notice of a meeting under subsection D of this section that will be closed, the board shall identify the paragraph under subsection A of this section that authorizes the board to close the meeting. D. Notwithstanding any provision in the declaration, bylaws or other community documents, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors. An affidavit of notice by an officer of the corporation is prima facie evidence that notice was given as prescribed by this section. Notice to members of meetings of the board of directors is not required if emergency circumstances require action by the board before notice can be given. Any notice of a board meeting shall state the date, time and place of the meeting. The failure of any member to..." http://www.azre.gov/hoa/documents/Planned_Communities_Act.pdf

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Do you have a copy of the amendment?

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Customer reply replied 1 month ago
I have a copy of the amendment but I cannot copy it :-((
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What does it say?

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Customer reply replied 1 month ago
I am somewhat familiar with the open meeting Law but it doesn't address being on the board, right?

The Bylaws set out who can be on the board and the voting rights. The Bylaws cannot violate open meeting law.

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There is assistance available through the State as set out below:

"In 2011, the Arizona Legislature passed legislation providing Arizona homeowners (as well as condominium and planned community associations) a venue for resolving disputes. These administrative procedures provide an alternative to the civil court system and do not limit the legal rights of the parties to further pursue matters.

In 2016, the Arizona Legislature passed legislation moving the Homeowners Association Dispute Process to the Arizona Department of Real Estate. The Arizona Office of Administrative Hearings will accept all cases as referred by the Arizona Department of Real Estate, and schedule a Hearing date before an Administrate Law Judge.

You may file with the Arizona Department of Real Estate to have your complaint heard before an Administrative Judge. The filing fee is $500 for one violation. Please visit the Arizona Department of Real Estate’s Homeowners Association Dispute Process website for more information about the process. If you have more questions you may contact the Arizona Department of Real Estate’s HOA Ombudsman here. You may also call the department at (602) 771 -7799." http://www.azoca.gov/resources/faqs/open-meetings-law-faq/

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Customer reply replied 1 month ago
I am sorry but is there something I don't understand? I think the open meeting Law addresses only the right to vote, to attend, to talk and not the right to be part of the Board?

The Bylaws set out who can vote. Open meeting laws are the legal requirements (ARS) that must be followed.

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The Statute states that the bylaws set out who can vote and be a member of the board. Your Bylaws must set out this process or your HOA is not operating legally.

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Did the Bylaws change the percentage needed to pass a vote?

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Customer reply replied 1 month ago
OK I will read all carefully. If I understand correctly. My friend can appeal but right now cannot be on the board because she lives outside of the commun ity and the bylaw have been amended to say so.
Customer reply replied 1 month ago
It states 50%
Customer reply replied 1 month ago
You are so kind. Thank you. We have a real bad situation here all around......
Customer reply replied 1 month ago
Our new Board is really struggling to survive the past President

Thank you for the clarification.

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I think you will find this very helpful:

"A homeowners’ association (HOA) is a common interest organization to which all the owners of lots in a planned community or owners of units in a condominium must belong. The four defining characteristics of all HOAs are:

• all owners are automatically members;

• governing documents create mutual obligations;

• mandatory fees or assessments are generally levied against owners and used for the operation of the association; and

• owners share a property interest in the community. " https://www.azleg.gov/Briefs/Senate/HOMEOWNERS'%20ASSOCIATIONS.pdf

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Customer reply replied 1 month ago
I will keep your name handy. Just trying to help. I am not on the board. Have been in the past.
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Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it. A positive rating will not impact your ability to obtain a refund.

You may not be familiar with how the site works. The Attorneys to not receive credit from the site for their time or with customers unless the customer provides a positive rating. We answer your questions in good faith, hoping for a good faith response regardless of whether the law is in your favor or not. If you were unhappy with my service please let me know that you would prefer to work with another Attorney and I will opt out.

Can you see the rating scale on your end, 5 stars?

Thank you for your consideration.

Attyadvisor
Attyadvisor, Attorney
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