Homeowners’ associations (HOAs) are common in Arizona’s suburbs and planned communities. While not everyone is always a huge fan of HOAs, they are often necessary to maintain order and keep the peace within a community. If someone disputes the HOA’s authority or breaks the rules, a lawyer may be necessary.
HOAs are typically run by a board of community members who may or may not have any legal background or experience. Even so, HOA’s are legal entities, and their rules carry real legal weight. As such, HOA boards often need guidance from experienced attorneys when handling disputes, enforcing rules, or collecting fines and fees. It would be unwise to handle any legal issues, big or small, without a lawyer.
Call our HOA attorneys for boards and communities at Halk, Oetinger, and Brown at (602) 759-9205 to ask for a private case review.
Enforcing and Collecting HOA Fines and Fees in Peoria, AZ
Fines and fees are a normal part of an HOA’s daily operations. It is wise to consult a lawyer before imposing serious fines, or if the HOA’s ability to collect them is disputed.
Notice Requirements
If a homeowner breaks the rules, the HOA cannot immediately collect a fine. First, the HOA must send written notice of the violation to the homeowner.
The notice should explain the nature of the violation and, if possible, include evidence, such as photos of the violation.
The notice should also explain the homeowner’s recourse to challenge the violation, including their right to a hearing before the HOA board.
If the notice is insufficient, the HOA may be unable to legally enforce the violation and collect payment.
Fine Schedules
Fines must be imposed in accordance with a fine schedule. The fine schedule must be reasonable and proportionate to the accompanying violations. If a homeowner believes a fine is disproportionately expensive, they may challenge it in a hearing.
Also, the fine schedule must be made publicly available before the HOA can impose any fines. Homeowners must be given the chance to review potential fines and penalties in advance. If the schedule is not made available, the HOA may not be able to legally impose the fines.
What Happens if a Homeowner Refuses to Pay?
It is somewhat common for homeowners to refuse to accept responsibility for breaking the rules and refuse to pay the fines. They may try to challenge the violations or ignore them. In such cases, the HOA should have a lawyer step in and take over collection attempts.
Our HOA attorneys for boards and communities can send demand letters to homeowners and advise the board on next steps. In serious cases, an attorney can help the HOA sue the homeowner for non-payment of fines.
Creating and Revising HOA Covenants, Conditions, and Restrictions
The HOA rules, known as covenants, conditions, and restrictions (CC&Rs), are legally binding and enforceable, and a lawyer may need to review them to ensure they are valid.
Review for Compliance
When drafting new rules, it is imperative that you have a lawyer review them for compliance. Do newly proposed CC&Rs comply with state and federal law? If not, they may not be enforceable.
Have the laws changed requiring that the CC&Rs be updated? Again, if the rules do not comply with the law, they are unenforceable. If an HOA attempts to enforce such rules, they may be in serious legal trouble.
Amending Foundational Documents
To introduce new rules or revise old ones, the HOA’s founding documents may need to be changed. If the official list of CC&Rs is not changed, the new rules do not legally exist and cannot be enforced. If you are not sure how to revise these documents or even where to find them, a lawyer should help.
Navigating Legal Procedures
Rules cannot be changed with a snap of your fingers. There are legal procedures to follow. For example, before revising existing laws or drafting new ones, the HOA board may be required to call for a vote among community members. Not only that, but significant changes to the rules may require filing them with the county recorder.
When Should an HOA Board Call an Attorney for Help?
While a lawyer is not needed for every little thing an HOA does, it is a good idea to periodically review HOA news with an attorney.
Annual Reviews
It is a good idea to have at least one yearly meeting with the HOA board and its attorney. If anything has come up that warrants the lawyer’s attention or advice, it can be discussed here. Often, an attorney may catch important legal issues at the meeting that the HOA board members have missed.
When Disputes Arise
Has a homeowner in the community refused to comply with the rules? Maybe they refuse to pay fees or fines or are undertaking home renovations that violate rules on exterior modifications.
In such cases, the HOA should consult a lawyer to determine which legal steps, if any, are necessary. Avoid tackling any potential legal disputes without first speaking to the HOA’s lawyer.
When Initiating Legal Action
If it is clear that some sort of formal legal action is necessary to enforce the rules or resolve a dispute, get help from the HOA’s lawyer before doing anything.
The HOA board may not know exactly which legal action is most effective, or even necessary. Also, legal action must be initiated carefully. If legal procedures are not followed, the HOA’s actions may be illegal or unenforceable.
Is a Lawyer Necessary for Every HOA Violation?
No. Minor violations (e.g., noise complaints, trash cans by the curb, uncut lawns) are usually handled by the HOA board with minimal assistance from a lawyer. However, serious violations that require more serious legal action (e.g., liens or lawsuits) typically require a lawyer’s guidance, advice, or representation.
Can an HOA Hire a New Lawyer?
Yes. If an HOA wants to cut ties with its current lawyer and hire a new one, it may do so. However, the board may need to vote on this decision. Check the HOA’s governing documents to determine the proper protocols, if any, when hiring a new lawyer.
When Should an HOA Consider Suing a Homeowner?
Suing a community member is a major decision, and it may be a good idea to first consider alternative legal options with the HOA’s lawyer. Alternative dispute resolution methods, like mediation or arbitration, may be helpful or even required before you think about suing. Lawsuits can be time-consuming, expensive, and may create division within the community.
Do You Need a Lawyer to Create a New HOA in Peoria, AZ?
Generally, yes. Creating a new HOA requires drafting foundational governing documents, including CC&Rs and bylaws, that must be reviewed to ensure legal compliance with state and federal laws. Additionally, an attorney can file articles of incorporation with the state to formally create the association and record CC&Rs with the county recorder.
Ask Our Peoria, AZ HOA Attorneys for Boards and Communities for a Legal Review
Call our HOA attorneys for boards and communities at Halk, Oetinger, and Brown at (602) 759-9205 to ask for a private case review.
