Sue BOD to Comply With CC&Rs

I live in an association located in west Phoenix. The board of directors is out of control. They ignore the requirements of the CC&Rs, articles of incorporation, bylaws, and applicable Arizona Statues. There are no government agencies in Arizona with any enforcement authority over HOAs even when atate law is broken. CC&Rs have not been enforced in over two years because the president doesn't think they are fair. The common areas have not been maintained supposedly because there was a lack of money to do so, yet the president hired a private security firm to periodically patrol the association for a period of about 12 months. There is a lot more to this horror story, particularly the actions of the president.

Can I sue the association and the board of directors to force reasonable compliance with the duties required in the CC&Rs? I am not looking for a picture-perfect neighborhood. All I want is the parking on yards to stop, the trailers full of junk to be moved out of sight, the outside storage to go away, the yards full of foot-tall weeds to get cleaned up, and the common areas to be maintained.

Thanks in advance

Proof of CC&R non-enforcement is easy. The conditions I wrote about - yard parking, etc. - have existed for over two years on the same lots. I can reference many cases opened and tickets issued by city code enforcement officers to show how extensive the problem is. That includes several violation notices issued to the association for the poor condition of the common areas. I have spoken to the president about the problems and he was the one that said he didn't want to enforce the CC&Rs because he didn't think they were fair or that he felt parking a boat on the yard is really not a problem. I throw the question back to you - shouldn't the board have proof of enforcement actions?

Do I attend board meetings? What board meetings? I have requested minutes from any board meeting that I didn't hear about and have received no replies. The last meeting I knew of was over two years ago, and there were no minutes taken at that meeting because the president didn't think they were necessary. I have requested documents that I am entitled to per Arizona Revised Statutes and received on only one document of the several I requested.

Yes I blame a lot of stuff on one person. Mainly because for over a year the president was the sole individual on the board. With no meetings and prevalent member apathy, there was no way to remove him from his position. The president lost his last property in the association earlier this year. According to the articles of incorporation, bylaws and CC&Rs, he cannot serve on the board. Guess where he still is? He says he changed the necessary documents. That is not possible because changing them requires an open meeting and a quorum of members. There have been no meetings.

And now the management company used by the association is owned and operated by the president. Only any member would have a hard time proving that in court because any document from the management company has no signature block and the address is a post office box in a mail store. Call their phone number and guess whose voice you hear on the voice-mail box? Only the president doesn't use his name, he uses the name of the management company. He has also instructed the owner of the store where he rents the post office box to never accept any certified mail addressed to the president of the management company.

I served on the board for several years before I had to leave to attend school after retiring from the military. I am very familiar with board procedures and the challenges faced by boards.

When I refer to complying with the CC&Rs, I don't just mean the requirements the homeowners have. I am also refering to requirements placed on the board itself. Things like fiscal responsibility, following all applicable laws, ensuring dues are at a sufficient level to fund required common area maintenance, etc.

Thanks, MaryA1. I will have to speak with Jonathan. I am hoping I can start in justice court and have the court direct the board to:

1. Allow only association residents to serve on the board per association documents.
2. Provide the documents I have requested per Arozona Statutes.
3. Write, publish, and follow a CC&R enforcement policy that follows CC&R requirements to include making a list of actions taken to enforce CC&R compliance available to all association members. That would not include the status of fine payment, if the board elects to use fines.
4. Write and publish an annual budget prior to the annual meeting.
5. Record meeting minutes and make them available to all members.

I know this sounds like really basic stuff you would think the board is doing, but they aren't. Maybe a court order will get them to realize they must comply with the association documents and state laws. If they don't, I am sure the judge making the order would not be happy that he was ignored and maybe would find the board in contempt.

Any action the President took while he was the only one on the BOD is probably in violation of your CC&R's and/or Bylaws. In most case, regardless of size, you need at least 3 BOD listed and at least 2 present at a OPEN meeting to have a quorum. I have faced a similar situation with my BOD but so far I haven't been able to utilize an Attorney because of cost and had to resort to Small Claims. I am not recommending this and it sounds like yours requires an attorney to assist you. Good luck.