HOA Renting waiting list

You will have to ask your Association for that information, as there interpretation is the only one that counts. If you disagree with their interpretation, then you will need to challenge the issue in court or get elected to the board to change the interpretation.

My interpretation, based on what you provided, is that the rental unit quits being a rental unit when the owner moves back in or the unit is sold to someone else.

My understanding was that if the HOA has established a wainting list and the association only allow a max of 4 apartment to be rented and the same owner 4 owners keeps renting their unit forever, how are the other owners on the waiting list suppose to get a chance to rent their units. It seems unfair.

Carlos,

Are these renting rules part of your recorded deed restrictions or are they rules adopted by the board?

This is important because in Arizona the courts have held that an association may not adopt bylaws that create deed restrictions that do not appear in the CC&R's. This came about when a condo association tried to amend its bylaws to create a 55+ community, as described in Wilson v. Playa de Serrano.

The Court said, "[G]enerally, to impose a restriction on a lot owner’s use of the lot, the restriction must appear in the recorded declarations. If the recorded declaration does not contain or at least provide for later adoption of a particular restriction or requirement, that restriction or requirement is invalid."

Assuming that the rental restrictions are not in the CC&R's, you have a lot of options and none of them are any too good as all will cost you.

You could just go ahead and rent your unit out and let the board deal with it. As long as you pay your assessments, they cannot foreclose. They can fine you but then they must take you to court before they can file a lien. While this would give you an opportunity to present your case that the board has no power to make this restriction, you would be doing so as a defendant in a justice court. Justices of the Peace are not usually attorney's and presenting any sort of defense based on the law in a justice court is risky.

You could just sell the place, take your lumps, and move on with your life.

You could also seek declaratory judgment or an injunction that would prevent the association from enforcing its rules. This will cost you some money up front but you may be able to recover some or all of your expenses if you prevail. The advantage to this approach is that you start out in Superior Court where the case is heard by a real judge and can be appealed if you lose.

As a last resort, you could form an association for the rehabilitation of violent offenders and put the association on your deed as co-owners. Then inform your board that since you cannot rent your unit that all future occupants will be those previously convicted of violent crimes.

If you could prove that there is a difference between a lease and a rental.

Carlos,

I am not sure what California rule you are referring to but in AZ the association has several options to collect from a non-paying owner.

The association can file a civil suit against the owner and obtain a judgment. In this case, where someone is paying rent, the association may be able to get a court order to attach the rental payments. That is, to make the tenant pay his rent to the association until the judgment is satisfied.

Once an association has a judgment for the unpaid assessments, it can initiate a foreclosure action but in this economy it is not recommended. If the owner has a deed of trust he may owe far more than the property is worth and the deed of trust takes priority over association liens. Therefore, the court-ordered foreclosure auction would likely not raise enough money to pay both the deed of trust and the association.