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Are Homeowners Associations a necessary evil – or just evil?

Are Homeowners Associations a necessary evil – or just evil?

2016-08-09 
| by James Hodl | Posted in STV News

HOAs provide services in areas not served by local government, but they can also nitpick the rules

“What are these Homeowners Associations (HOAs) and why do they have the power to tell me what I can do with my property?”

    That refrain echoes throughout San Tan Valley where nearly every collection of homes is under the jurisdiction of an HOA, as in many other planned communities throughout Arizona. But to answer the question:

    HOAs are an old concept that first appeared with the gated communities established by the wealthy owners a century ago. The idea was to set standards for maintenance of private and common areas and to keep out Nuevo Riche riffraff like F. Scott Fitzgerald’s character Jay Gatsby.

    This concept morphed after World War II into the modern HOAs established in planned communities and condominiums occupied by middle class families.

    “HOAs began to grow in number in Arizona about 25 years ago as builders and developers saw a need to leave behind a community organization to maintain the parks and green areas they were required to create within new subdivisions outside incorporated towns as a condition of their building permits,” explained Linda Lang, director of the Arizona Association of Community Managers (AACM).

    As is the case in San Tan Valley, builders contracted with a professional HOA management company that worked with the initial buyers of the homes to establish a community organization to provide common services (park maintenance, street cleaning, etc.) while establishing local standards for property maintenance. To support HOA services and activities, monthly HOA membership assessments were set.

    Also created at the beginning was the governing document for HOA membership known as the CC&R (Covenants Conditions and Restrictions). Based on a sample document, the CC&R, which usually runs about 40 pages and includes the HOA’s articles of incorporation, by-laws, and spells out the regulations, restrictions and obligations of membership.

    Membership in the HOA is subsequently mandatory for all persons buying a home in the subdivision under an HOA’s jurisdiction. Thanks to the lobbying of AACM, a trade group for professional HOA management firms formed in 2003, all home buyers are required to sign a document verifying their membership and that they have read to CC&R since 2007.

    The CC&R usually sets standards for homeowner property maintenance, and where motor vehicles can be parked. Homeowners are required to get HOA permission before making any changes to their homes, such as planting new trees or bushes, or changing the design of a front door, garage door, or security gate. Failure to do any of these tasks properly can result in the HOA fining the owner.

    HOAs also can order homeowners to upgrade their properties, such as removing damaged trees or painting the outside of the house, or risk a noncompliance fine. Some HOAs forbid homes under their jurisdiction to be rented out, or for the HOA to clear renters for occupancy to screen out undesirables. A handful even require entry and exit fees for homeowner membership.

    All HOAs are supposed to have a civilian board made up of seven local homeowners who interact with the manager assigned by the management firm, and who have the power to change rules and restrictions or establish new ones. They usually meet several times a year at meetings that are open to the public where changes to rules and citizen complaints can be debated.

    Membership fees vary based on the services provided, with HOAs that have a clubhouse and a pool among other amenities charging more than one that simply maintains parks and common areas and regularly provides street sweeping.

    Especially troublesome occupants who fail to pay membership fees and noncompliance fines can have the HOA place a lien on their property and can force the owner to sell and leave the subdivision.

    Arizona law has in recent years been eating away at some powers of HOAs. As of December 31, 2014, HOAs can no longer ban solar panels on roofs that can be seen from the street, nor ban for sale, for rent or political signs on front lawns. For political signs, Arizona even bars HOAs from limiting them to professional signs, thus allowing handmade signs to be hung even from second floor balconies.

    What puts homeowners at odds with HOAs is “perceived selective enforcement,” according to Melanie McKeddie, a partner in the Scottsdale-based McKeddie-Cooley Law Firm, one of more than a dozen legal firms that specialize in representing homeowners in HOA disputes.

    Selective enforcement can be seen as a homeowner being denied the right to park his RV on the street when he neighbor has permission, or being denied permission to install a backyard pool when several neighbors have them. But McKeddie noted that many such cases result from power issues involving HOA board members going after people they don’t like, citing them for weeds on their lawn when there are worse offenders down the street.

    “I am known as the ‘special’ as I have neighbors with vehicles on jacks in the street, junk all over their driveway and weeds that are never completely gone. Yet I get notices and fines, once the third notice coming almost a year after the second,” said Steve Sywarungsymun of the Magma Ranch subdivision in San Tan Valley.

    “Why? I have a neighbor on the HOA board who doesn’t like my family. The Magma Ranch HOA is being used in an inappropriate manner in my opinion when I get cited for having a kid’s wagon on the front porch while a person across from the board member has garage junk piled on his driveway and doesn’t get cited,” he complained.

    Citations involving motor vehicles abound.

“We came home from camping and left our popup on the driveway (not even on the street) to clean it before going out camping again and got a notice,” complained Castlegate resident Heidi Christine.

A Morning Sun resident grumbled about getting a “no parking violation” from her HOA for a guest who parked his car on the street for a few hours.

“There are more cars than parking spaces in Pecan Creek South,” another resident said. “Park on the street, you get fined by the HOA. But park on your driveway with one tire off the concrete and you get fined as well.”

Several San Tan Valley residents from assorted subdivisions all complain about HOA fines for having a tire off the driveway when parking their wide SUVs or vans on driveways built for compact Chevrolet Aveos.

Not all residents are sympathetic with the complainers. One who argued that when their teenage son got a car, he had to park it on the street (where he was fined) because the two spaces on the family driveway was occupied by his parents’ vehicles was told by an HOA board member to clean out their garage to make room for the third car. Many residents use their garage for extra storage space.

Others noted that the contractors who built their subdivisions built the roads too narrow (perhaps to include more homes in the area) and thus cars parked on the street would impede other cars from getting home or worse, an emergency vehicle being blocked from a fire or health crisis.

Other violations that resulted in fines reported in San Tan Valley include leaving the basketball net on the driveway overnight, or having lights on backyard trees that were in operation five years before the citation. McKeddie has handled a legal case where a person was ordered to restore the security gate on his yard replaced two years earlier because the HOA belatedly thought the new gate didn’t meet architectural standards in the subdivision.

Still other incidents include HOAs ordering the repainting of a house because the shade was too dark, not getting permission to switch a front lawn from desert landscape to Astroturf, and getting rid of a pet dog that grew to be more than 20 lb.

Much of the nitpicking by HOAs is blamed on local busybodies who are severe sticklers to the rules, often referred to by residents as the nosy old lady on a bicycle or the fat guy jumping out of his car to snap pictures.

Residents who feel they have been mistreated by their HOA can always appeal to the local HOA board, which can yield positive results. Last summer in a dramatic moment at a meeting of the Cambria-Ocotillo HOA, and elderly man taking tiny steps behind his wheeled walker confronted the board which his notice of a $75 fine for not cleaning up his weeds and tree debris. The man explained he had a heart attack and was out of his home for more than a month, thus was unable to clean his front lawn. After assuring he had a neighbor do the cleanup, the board unanimously rescinded his fine.

But when a resident cannot get such satisfaction, the next step is to take the dispute to arbitration. AACM has a dispute mediation program where a panel of judges will consider both the HOA’s and resident’s positions and try to reach a solution both can live with. The program is explained at the AACM website at www.aacm.com. The cost of mediation is $750 per case.

The final solution is to consult a lawyer. McKeddie reports handling many cases ranging from the trivial to getting an HOA to take a lien off a house for nonpayment of membership fees and fines. There have been reports of HOAs assessing fines of $2,000 for late membership payments.

Others simply object to the whole concept.

“Having to pay some organization to tell you how to keep your property is no way to live,” said Christian Zeitler.

“A lot of folks in my neighborhood wish that these HOAs would go away, as it seems they can never leave us alone. My biggest question is why am I paying to rent a house I built and paid for?” asked Chrissien Jason Ketchum of Circle Cross Ranch.

Indeed Courtney Ramirez of Briggs Realty, Florence, reported people disliking a local HOA so much that they relocated from one San Tan Valley subdivision to another. The moves are from subdivisions with tough HOAs like Castlegate, Circle Cross Ranch, Johnson Ranch and San Tan Heights to those with more benevolent HOAs like Taylor Ranch and Wayne Ranch. 

    But being at odds with the local HOA may be a resident homeowner’s own doing.

“I think HOAs are necessary to protect homeowner's investments. The biggest issue is residents not coming to meetings and not understanding how everything works,” said Stephanie Apperson Moss. “The breakdown in communication between investor homeowners, management companies, and renters, and HOA boards getting big egos and doing whatever the heck they want instead of truly looking out for their community. Also, because money is involved, there is a risk of kickbacks and such between vendors, management companies, and board members. I think homeowners in an HOA community really have to communicate with one another and get involved.”

One of the biggest problems cited by HOA management firms is finding enough people to fill all resident board positions and to devote time to community projects. HOA boards are supposed to have seven members but are often lucky to have four. McKeddie noted that one HOA has only one board member who has held the job for 10 years because nobody else has volunteered.

AACM’s Lang urges people who don’t like how their local HOAs are run to get involved, to go to meetings, and even run for board positions. Only then can they get rid of what they think are onerous rules and get the HOA to do what they think needs to be done to better the community.

But what if San Tan Valley gets around to incorporating as a city or town. As HOAs were formed to provide community level services in areas where there is no local government, would that be the end of HOAs?

No. Residents would have to go through a legal process to dissolve and disband the local HOA. But that is something to consider for another day.

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