When Will HOA Boards Learn that the HOA is NOT a Social Club?

In September 2006, a new Arizona statute gave homeowners the right to file a complaint against their HOA through the Office of Administrative Hearings, a state entity under the Administrative Procedures Act (APA). The rules of civil procedure do not apply, and the conduct of the hearings are less formal than required in the courts giving the homeowner a more level playing field in order to obtain justice.


One of the first cases, OAH # 07F-H067007-BFS, exposed the functioning of the HOA board as a social club, in spite of the board's use of a CAI attorney and member of its College of Community Associations Lawyers to review the marked amendment to its 1983 CC&Rs. By "social club", I mean the board's overt behavior that reflected an ignorance and intentional disregard of the laws,of the governing documents, and of its legal, contractual and fiduciary duties and obligations. I have witnessed this lack of accountability and arrogance by many HOA boards, many times.

At the hearing, the board member repeatedly used such phrases as, "we didn't think", "we always did it this way", "we couldn't find any law", "we wanted to", etc. This is shocking when it comes to transfer of property to the HOA via an amendment rather than by signed deed. By the "fiat" of an amendment, the board appropriated the sidewalks of homeowners as part of the common area. No homeonwner signed over his property by any deed.

In regard to a request for the results of a member survey of changes, the board felt that they were not HOA records but were confidential statements, and it didn't feel it necessary to comply with ARS 33-1803 pertaining to providing HOA records to homeowner requests. An open meeting of members to debate the changes never took place before the vote.

In her closing statement, the board member said that they felt the survey was confidential and that they wanted a court or judge to tell them that they had violated the law. Another board member saw no problems with the amendment. A third board member was asked, "Do you feel that you own your sidewalk", since the board maintains the landscaping?

If it were not for the OAH law, this important case would not be heard and the HOA would continue to abuse its authority with apparent attorney approval.