A homeowners’ association (HOA) or a housing association is made up of rules and restrictions that apply to homeowners in a specific community. These rules are often legally binding and not always easy to enforce. As such, HOAs often require legal counsel to govern their communities and enforce rules when necessary.
An attorney can assist in HOA governance from the very moment the HOA is created. A lawyer can help a new or planned community create HOA conditions, covenants, and restrictions that govern homeowners and bylaws that govern how the HOA board operates. If an existing HOA is confused about how certain rules work or whether they comply with state laws, an attorney can help review and interpret them.
Receive a free, private legal analysis from our housing association governance lawyers with Halk, Oetinger, and Brown by calling us at (520) 229-3377.
Why You Need a Lawyer to Help with Housing Association Governance in Arizona
Housing associations or HOAs are more than just community organizations. They are formal governing bodies that may impose legally enforceable rules and restrictions on homeowners within the community. As such, regular governance can be tricky, and an HOA or housing association should have a lawyer to help when necessary.
Creating HOA Bylaws
One of the first ways an attorney can help an HOA is to create bylaws. The association’s bylaws are the rules that govern how the association operates, the board’s duties, and the rights of community members regarding voting and disputes.
These rules must comply with state and federal laws to be legally binding and enforceable. As such, an HOA should seek advice from an experienced attorney. If any rules do not jive with existing law, they may be unenforceable. An attorney can identity these rules and help adjust them to be enforceable.
Conditions, Covenants, and Restrictions
HOAs are largely known for enforcing conditions, covenants, and restrictions, also called CC&Rs. These rules govern what homeowners may do with their property, including renovations, construction, yard maintenance, and other aspects of homeownership.
Like HOA bylaws, CC&Rs must comply with state and federal laws to be legally enforceable. Our housing association governance lawyers can help an HOA draft new CC&Rs or review and interpret existing rules to determine whether they are legally enforceable.
Handling Disputes and Delinquent Fees
Another significant component of living in an HOA is paying HOA fees and fines for any prohibited activities. When fees and fines arise, homeowners must be afforded the opportunity to challenge the HOA and raise legal disputes. There must also be methods in place for resolving these disputes.
An attorney can help create dispute-resolution methods that are included in bylaws and CC&Rs. They can also represent the HOA during legal disputes. Also, if an HOA needs to take legal action against a homeowner to compel compliance with the rules or to collect fees and fines, an attorney can help explore legal options.
How a Lawyer Can Help Enforce HOA Rules
An HOA’s bylaws, conditions, covenants, and restrictions mean nothing if they are not enforced. In some cases, homeowners will not comply with the rules unless legally compelled to do so.
Sending Formal Notices
First, an attorney can help you enforce the rules by sending notices or formal letters to homeowners. This is common when an HOA needs to enforce fines or fees on uncooperative homeowners. An attorney can draft and send a formal demand letter explaining that if the fees are not paid, further legal action will be taken.
Interpretation of CC&Rs and Bylaws
Many HOA rules or bylaws cannot be enforced because they are unclear. If you have difficulty understanding the rules of your HOA, your lawyer can review them and clarify what they mean. They can also advise you on whether the rules violate any state or federal laws and how they can be changed.
Formal Legal Action
If a homeowner within your community refuses to comply with the rules despite numerous warnings or letters from your attorney, further legal action may be required.
Your attorney can help the HOA sue homeowners who refuse to pay fees or fines or otherwise violate the CC&Rs they agreed to when they purchased their home. Remember, homeowners are contractually obligated to follow these rules, and a court may help you enforce them if necessary.
In more extreme cases, your attorney may help you initiate foreclosure on the homeowner’s property. The homeowner does not have to be delinquent with mortgage payments, and you may sue for foreclosure if the homeowner refuses to pay fees or fines. Often, the homeowner will pay the fees to avoid foreclosure.
What is Involved in Governing an Arizona Housing Association?
HOA governance can be complex, especially when there are many homeowners within the association. Governance often involves interpreting rules, conducting board elections, fulfilling HOA officers’ duties, and taking legal action to enforce them.
Is a Lawyer Necessary for HOA Governance?
While the daily operations of an HOA usually do not require a lawyer, a lawyer may become crucial when legal disputes arise or homeowners refuse to abide by the rules.
A lawyer can help the HOA board understand the legal options available, such as sending demand letters before initiating any formal court action.
An attorney should also help an HOA create new rules or change rules that no longer comply with state or federal laws. Understanding how and when CC&Rs and bylaws are legally valid is crucial to governance.
Can an HOA Take Legal Action Against Homeowners?
Yes. When homeowners refuse to pay fines or fees, fail to comply with construction or renovation restrictions, or otherwise violate the HOA’s rules, it may be possible to take legal action against them.
One method is to sue the homeowner and get a court to order them to comply with the rules. Another option is to initiate foreclosure proceedings. While this sounds extreme, many homeowners quickly comply with the rules to avoid foreclosure.
What Kind of Authority Does an Attorney Have in an HOA?
A lawyer typically does not have authority over how an HOA operates or enforces the rules, unless the attorney is a member of the community and a board member of the HOA. Instead, attorneys typically work at the behest of HOA board members and assist in understanding and resolving legal disputes.
When Does an HOA in Arizona Need to Hire a Lawyer?
Ideally, an existing HOA should have a lawyer on retainer. When legal disputes or issues arise, it is important to have a lawyer ready who is already familiar with your HOA and the community. If you are looking to create a new HOA for a planned community, you should hire a lawyer to help create the HOA as soon as possible.
Discuss Your Situation with Our Arizona Housing Association Governance Attorney
Receive a free, private legal analysis from our housing association governance lawyers with Halk, Oetinger, and Brown by calling us at (520) 229-3377.
