Homeowners with unkempt front yards just caught a bit of a reprieve from the Arizona Court of Appeals. A recent decision by the court makes it more difficult for homeowners associations to levy fines.
Beth Mulcahy, an attorney whose practice is centered on representing community associations, explained the impact of the ruling to attendees at a recent HOA summit held by the city of Chandler.
The workshop draws residents who serve on HOA boards as well as many who do not. Chandler Mayor Jay Tibshraeny, alongside Chandler City Council members and Police Chief Sean Duggan, were on hand and addressed the crowd.
The typical complaint HOAs deal with is the neighbor who allows weeds to proliferate in the front yard. “In the past, what associations would do is first reach out to the owner. If that didn’t work they would levy fines,” Mulcahy said.
That has changed in recent months.
“It’s become more and more difficult for associations to levy fines for violations. This case almost puts it on the brink of making it impossible.”
Mulcahy was referring to the Turtle Rock HOA vs. Linda Fisher case heard in Phoenix and decided last October. The decision resulted in the reversal of a nearly $4,000 fine the HOA imposed on Fisher and is binding on all HOAs in Arizona.
“When I first started in 1995, it was easy to levy fines,” Mulcahy said. “We just had to give notice, and if the owner didn’t pay the fines, we could put a lien on the property.”
Under the new ruling, HOAs are required to adopt and publish a schedule of “appropriate” fines and make it available to homeowners. Fines imposed prior to the publication of the schedule are not enforceable. Mulcahy offered to provide a schedule of fines HOAs could adopt and cautioned that the schedule must be approved by the board at an open meeting.
Even if an HOA has a validly adopted list of fines, she said, the burden of proof is with the association to prove damages.
“If you can’t show through testimony or affidavits, we can’t collect,” Mulcahy said. “When we provide photographs and affidavits from neighbors, that’s sufficient to prove it to the judge.”
An example of proving damages could be an affidavit from homeowners claiming that they couldn’t get a good price when selling their house because a neighbor isn’t maintaining his property.
The HOA must prove that the offending homeowner is in violation of the community’s bylaws, and the offender must be notified and given an opportunity to respond prior to levying the fine.
“Reaching out to the owner should be the first line of defense,” Mulcahy said. “Many times when you do that, you find out about extenuating circumstances such as an illness or an elderly person.”
She pointed to community resources and non-profits that can address those circumstances. She also touched on the possibility of mediation, though “both sides have to agree to come to the table to talk.”
And for those sticky situations where common areas are damaged, Mulcahy recommended reaching out to the offender/homeowner first. “If they refuse, you can put a lien on their property, but you need to have good documentation if you’re going to go that route. One mistake I see is that associations don’t take pictures before they fix the damage.”
For the habitual stinker who leaves trash cans out, the first course of action should be to send a letter, Mulcahy said. “The key is to tell them up front what the charges are going to be if the violations continue and give them a way to be heard.” Associations that communicate well have the fewest problems, she told the crowd.
This isn’t the first year Mulcahy has addressed Chandler’s HOA summit. Last year she spoke about short-term rentals vis-a-vis HOAs.
Chandler City Council member Terry Roe, who said he once served on his HOA, urged attendees to be patient in their dealings with neighbors and all things HOA.