Homeowners’ Associations (HOAs) are common in planned communities throughout Arizona. HOAs are meant to provide communal amenities for residents’ benefit while also enforcing rules to maintain peace, order, and community aesthetics. If disputes arise, the HOA may need an attorney.
An attorney may assist an HOA board with collecting fines and fees, creating or changing rules, and representing the board in legal disputes. Enforcing the rules is not always simple, and the HOA may need to follow strict legal procedures. Most HOA board members are community members, not attorneys, and might not know how to navigate these complex channels on their own. A lawyer can represent the board and help them maintain peace and order in the community.
Call our HOA attorneys for boards and communities at Halk, Oetinger, and Brown at (602) 759-9205 for a private legal review.
How Can a Lawyer Help HOA Boards and Communities in Scottsdale?
An HOA is not just a community organization. It is a legal entity, and its rules carry legal weight in the community. As such, HOAs often need legal help to ensure their rules are legally valid and enforceable.
Collection Enforcement
If homeowners in a community fail to pay fines or fees, the HOA may seek legal assistance to collect payment. An attorney can send a demand letter to homeowners regarding their unpaid fines or fees, explaining that if payment is not made soon, further legal action may be taken. Often, this is enough to convince homeowners to pay what they owe.
Creating or Modifying CC&Rs
The HOA’s covenants, conditions, and restrictions (CC&Rs) usually spell out what community amenities are available, the fine and fee schedules, standard ordinances (e.g., noise, trash collection, lawn maintenance), and how homeowners may dispute violations and penalties.
When these rules are created or modified, an attorney may need to be involved. As explained in more detail below, an attorney should make sure that new rules comply with state and federal law, and that proper legal procedures, including voting, are followed.
Representing the HOA in Legal Disputes
Should a homeowner challenge the HOA regarding the enforcement of rules or penalties, the HOA needs a lawyer to represent them. An attorney should communicate with the homeowner on behalf of the HOA and gather any necessary information and evidence.
What Happens When a Community Member Violates HOA Rules?
If a community member violates the HOA’s rules, penalties may be enforced. Enforcing penalties requires following strict legal procedures. If HOA board members are unsure of these procedures, an attorney can offer guidance.
Notice of the Violation
HOAs must provide formal notice of a violation to a homeowner. The notice should explain the nature of the violation, when and where it occurred, who identified it, and evidence to support the HOA’s allegations.
It may be necessary to review such notices with our HOA attorneys for boards and communities before they are sent out. If the notice is lacking or does not comply with legal requirements, the HOA may be unable to enforce the rules.
Hearings About the Violation
Community members have the right to challenge a violation and any accompanying penalties in a formal hearing before the HOA. If the homeowner demands a hearing, the HOA is obligated to arrange it. The HOA’s lawyer may be present during this hearing and offer guidance. If the problem is not resolved at the hearing, the HOA’s attorney may begin preparations for further legal action.
Liens
If a homeowner violates the rules but refuses to pay the associated fines, the HOA’s attorney can help them place a lien on the homeowner’s property. A lien is a legal claim placed on the property to secure an unpaid debt. As long as the debt remains unpaid, the HOA’s lien remains in place, clouding the homeowner’s title to the property.
In less common situations, the HOA, with help from a lawyer, can go a step further and initiate foreclosure of the property after placing the lien if it becomes clear that the homeowner will not pay.
Lawsuits
It is possible to sue homeowners within the community to enforce HOA rules. For example, if a homeowner begins construction on a home renovation project that violates the HOA’s rules on community aesthetics, the HOA can sue to stop construction.
Creating and Modifying HOA Covenants, Conditions, and Restrictions
Just creating or changing HOA rules can be a complicated task that usually requires a lawyer’s help.
Checking for Compliance
Before establishing a new rule, the HOA should have a lawyer verify that it complies with state and federal laws. While HOAs may establish a wide variety of rules and regulations, certain state and federal laws limit what HOAs can do and how far they can go. If a new rule under the HOA’s CC&Rs violates existing state or federal law, it may not be valid or enforceable.
Creating Bylaws
Bylaws are rules that govern how the HOA board must conduct itself. Bylaws ensure that HOA board members follow the same rules as all other residents and provide guidance on internal issues, such as spending HOA funds, voting requirements, and removing board members.
Again, these rules must comply with existing law, and a lawyer should review everything before it goes into effect.
Legal Procedures
Simply having CC&Rs and bylaws is only half the equation. When enforcing these rules, specific legal procedures must be followed.
If the rules are enforced unfairly or fail to give community members a fair chance to defend themselves or assert their rights, the overall outcome may be called into question.
For example, if an HOA attempts to collect fines for violations without following proper legal procedures, the community member who owes the fines may challenge the HOA’s collection efforts and possibly avoid paying altogether.
Do HOA Boards Need Lawyers Only to Settle Legal Disputes with Residents?
No. While lawyers can help with legal disputes, they may also help with internal issues and offer guidance on how the HOA board should enforce rules, create new rules, or assess fines and penalties.
Can HOA Board Members Use the HOA Lawyer for Personal Reasons?
No. The HOA lawyer in your community represents the HOA, not individual board members. If a board member has a legal problem of their own, they must hire their own attorney.
The same goes for community members. The lawyer representing the HOA board does not represent individual community members in personal legal disputes.
How Should an HOA Board Communicate with Homeowners in a Legal Dispute?
All communications should go through the HOA’s lawyer and the homeowner’s attorney, if any. The board or any individual members should not contact a homeowner directly about any legal disputes other than to issue formal notices of violations and penalties. Once formal legal action begins, an attorney should handle all communication.
Speak to Our Scottsdale HOA Attorneys for Boards and Communities About Your Situation
Call our HOA attorneys for boards and communities at Halk, Oetinger, and Brown at (602) 759-9205 for a private legal review.
