If you are fighting a Crime Free Lease Addendum in Arizona that gives your association the right to terminate your lease, the 2014 Arizona Legislature has provided you all the necessary ammunition you'll need. The legislature added ARS 33-1806.01 which provides that "Owner may designate in writing a third party (e.g., residential property manager) to act as the owner’s agent with respect to all Association matters relating to the rental unit, including the official recipient of legal notices." This means that as of 2014, an owner can easily argue before the DFBLS that his/her HOA is attempting to re-interpret the law such that an owner "must" (forcibly, and under the threat of fine or lien) designate the HOA as a third party beneficiary to the lease. This is a clear violation of an owners right as defined in ARS 33-1806.01.
The Travis Law Firm an HOA Law Firm in Arizona whose specialty is Community Association Law and Litigation is in the midst of a lawsuit by a homeowner in the west valley. The Travis Law firm is headed by Attorney Travis Chandler and Attorney Melissa S. Lavonier. In their first complaint, plaintiffs claim that The Travis Law Firm engaged in an abuse of process when they required that plaintiff pay hundreds of dollars for the privilege of reviewing HOA books and records. The Travis Law Firm claims that they didn't bill the homeowner, but rather they billed their client to process these records and that the homeowner (the adversarial party in a lawsuit against the President of the Association at the time) was required to pay the costs of reviewing these records by the court. In their second complaint, plaintiffs claim that The Travis Law Firm aided and abetted a breach of fiduciary duty by blocking homeowners from succeeding the 1 year director and a director who served in an expired term in order to preserve the majority board. The complaint originated in small claims so that the Plaintiff could recover ~$500 in damages. However, The Travis Law Firm hired an attorney to represent their firm, and thus the matter has automatically moved to the civil division. I will keep you updated.
Saturday, December 14, 2013
Monday, February 4, 2013
REALLY THE FINAL POST...
If you are fighting a Crime Free Lease Addendum in Arizona that gives your association the right to terminate your lease, the 2014 Arizona Legislature has provided you all the necessary ammunition you'll need. The legislature added ARS 33-1806.01 which provides that "Owner may designate in writing a third party (e.g., residential property manager) to act as the owner’s agent with respect to all Association matters relating to the rental unit, including the official recipient of legal notices." This means that as of 2014, an owner can easily argue before the DFBLS that his/her HOA is attempting to re-interpret the law such that an owner "must" (forcibly, and under the threat of fine or lien) designate the HOA as a third party beneficiary to the lease. This is a clear violation of an owners right as defined in ARS 33-1806.01.
For those who have happened upon this sight, seeking justice from a rogue board and/or management company, here are some of the lessons learned from my dispute process:
GENERAL CONSIDERATIONS: The HOA dues paid by you and your neighbors fund Board members with protection of a lawyer, and litigation insurance. If they are caught acting outside the boundaries of the law or the CC&R and Bylaws, they may continue doing so without fear of any personal liability. In other words, they may extend their middle finger, and require you to expense your complaint in court. This rogue behavior is obviously very profitable to the lawyer since win or lose they will be paid, so don't expect your HOA lawyer to sympathize with your reasoning despite how solid and fact based it may be.
If the board loses your challenge, the cost for their representation and any fines or punitive damages will ultimately be paid for through homeowners dues. I am not aware of a case in Arizona where board member(s) were held personally liable for breach of contract or breach of fiduciary responsibility. For this reason, it is very important to find like-minded neighbors who may help you change the balance of power in your HOA. I was able to do it with a good pair of sneakers, and www.nextdoor.com. When my complaints were heard by my neighbors, they sided with me (as well they had their own complaints), and together we fired the management company, and toppled every member of the board within a year.
SELF HELP
For those who have happened upon this sight, seeking justice from a rogue board and/or management company, here are some of the lessons learned from my dispute process:
GENERAL CONSIDERATIONS: The HOA dues paid by you and your neighbors fund Board members with protection of a lawyer, and litigation insurance. If they are caught acting outside the boundaries of the law or the CC&R and Bylaws, they may continue doing so without fear of any personal liability. In other words, they may extend their middle finger, and require you to expense your complaint in court. This rogue behavior is obviously very profitable to the lawyer since win or lose they will be paid, so don't expect your HOA lawyer to sympathize with your reasoning despite how solid and fact based it may be.
If the board loses your challenge, the cost for their representation and any fines or punitive damages will ultimately be paid for through homeowners dues. I am not aware of a case in Arizona where board member(s) were held personally liable for breach of contract or breach of fiduciary responsibility. For this reason, it is very important to find like-minded neighbors who may help you change the balance of power in your HOA. I was able to do it with a good pair of sneakers, and www.nextdoor.com. When my complaints were heard by my neighbors, they sided with me (as well they had their own complaints), and together we fired the management company, and toppled every member of the board within a year.
SELF HELP
- Attempt to reason directly with the Management Company. They do not want to lose the business of the community and may attempt to reason on your behalf with the board.
- If the matter is an obvious breach of CC&R/Bylaw contract, or ARS 33 Chapter 16, then consider filing a complaint with the Arizona Department of Fire and Building Life Safety (DFBLS). Be absolutely certain that you will win before you choose this route! If there is any doubt, then seek a one time consultation with a lawyer to review your DFBLS complaint. TO WIN YOUR CASE AT DFBLS, YOUR COMPLAINT CANNOT BE BASED ON EMOTION, OR EVEN REASONABLE PERSPECTIVE - IT MUST BE AN OBVIOUS BREACH OF A SPECIFIC PROVISION CONTAINED IN THE COMMUNITY DOCUMENTS OR ARS 33 Chapter 16. Be sure to read George K. Staropoli's article on DFBLS procedures before you consider a case with the DFBLS. Note that you will not be able to collect any punitive damages from the DFBLS. If you win, you will only receive your filing fee back, and may ask the ALJ to impose Civil Penalties against the board for each instance of a breach.
- Never, never, never represent yourself in any other court outside of DFBLS. The courts are way more formalized then DFBLS to the advantage of your opponents lawyer, and while your case may be absolutely solid, your filing procedures are almost guaranteed not to be. Likewise, your court procedures and strategies are almost guaranteed not to be appropriate either. This post details how I lost $4k representing myself in civil court despite being victorious before the judge with the same argument in the DFBLS! I lost $4k, yet was ultimately victorious!
- If your complaint is specific to ARS 10, if you seek damages, or you're not comfortable navigating the legal system alone, then hire a lawyer. I recommend Bainbridge Law Firm
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