HOA Powers Are Derived From The Governing Documents And Arizona Statute
Although homeowner associations are supposed to protect homeowners and make communities a better place to live, homeowners often find themselves battling powerful HOAs and feel they have little power to correct the situation. HOAs and their governing boards derive their powers from the Declaration of Covenants, Conditions & Restrictions ("CC&Rs) that govern most HOAs, together with other rules and guidelines that may be authorized by the CC&Rs. Additionally, Arizona law grants significant powers of enforcement to homeowners asssociations, including the power to institute liens for unpaid assessments and even to foreclosure on members' homes when they fail to pay amounts that are alleged to be due.
Unfortunately, personal disputes and differing interpretations of the rules and regulations often lead to abuses of power by the individuals running HOAs. When this happens, even if the HOA and its leadership are no longer operating in the community's best interests, homeowners become victims with seemingly few resources to batter the powerful HOA.
Homeowners finding themselves in such a situation, however, do have recourse against a rogue Association and/or its leadership. In addition to rights stemming from the CC&Rs, the Arizona legislature has enacted legislation that governs the operations of HOAs and other similar planned communities, which afford Homeowners protections and rights that may not even appear in the CC&Rs. (See the Arizona Condominium Act and the Arizona Planned Community Act).
Homeowners' Options To Ensure HOA Is Acting In The Community Interest
The first thing homeowners should consider when dealing with an HOA that is refusing to act in the interest of the community is to replace the board members who are implementing the questionable policies. Either at a regular scheduled vote or via special procedure set forth in HOA, board members can be removed if a sufficient number of homeowners agree they are not doing the job.
Another option is to attempt to amend community rules pursuant to the terms of the CC&Rs or, if no guidelines are present in the CC&Rs, as may be allowed by Arizona law.
Sometimes, however, replacing board members or amending the community rules can be difficult because a large number of homeowners must agree to the change. Where illegal or inequitable actions by an HOA cannot be stopped by resorting to these options, legal laction may be necessary. Homeowners have legal standing to initiate legal proceedings against HOAs, other homeowners, or board members, if they are violating the governing documents or Arizona statutory or common law. There may be administrative options also available to resolve such legal disputes more efficiently.
Before initiating any sort of legal action a homeowner should discuss his or her situation with an experienced Arizona HOA lawyer, who can help explain the risks and opportunities that accompany such action. In many cases, the costs associated with an HOA lawsuit can dramatically outweigh any upside, and an experienced attorney can help explain the realistic expectations of bringing such an action. In many cases, a legal representative can help resolve such disputes amicably without the need for legal action.