hoa restrictions

An hvac was put on the property roof in 2013 and could be seen from the street. When the house sold in 2015 there were no HOA violations, in 2016 the seller is trying to sell his home and the HOA declared a hoa violaion of being able to see the Hvac from the street. If this was not a problem the year before how can it be a problem now. As it was not a violation in 2015 it should be grandfathered in 2016.

Bob,

I just checked AZ statutes. I don't think that they will be of help to you.

Here is the statute [emphasis added]:

33-1806. Resale of units; information required; fees; civil penalty; definition

(e) If the statement is being furnished by the association, a statement as to whether the records of the association reflect any alterations or improvements to the unit that violate the declaration. The association is not obligated to provide information regarding alterations or improvements that occurred more than six years before the proposed sale. Nothing in this subdivision relieves the seller of a unit from the obligation to disclose alterations or improvements to the unit that violate the declaration, nor precludes the association from taking action against the purchaser of a unit for violations that are apparent at the time of purchase and that are not reflected in the association's records.

(f) If the statement is being furnished by the member, a statement as to whether the member has any knowledge of any alterations or improvements to the unit that violate the declaration.

Bob,

ARS 33-1806 requires that the seller and the association prepare statements for the buyer. Of interest is paragraph A(e):
(e) If the statement is being furnished by the association, a statement as to whether the records of the association reflect any alterations or improvements to the unit that violate the declaration. The association is not obligated to provide information regarding alterations or improvements that occurred more than six years before the proposed sale. Nothing in this subdivision relieves the seller of a unit from the obligation to disclose alterations or improvements to the unit that violate the declaration, nor precludes the association from taking action against the purchaser of a unit for violations that are apparent at the time of purchase and that are not reflected in the association's records.

That seems to muddy the waters more than to clear it up. I read it to mean that the seller must disclose possible violations even when the association has not objected, that the association may take action later even if it remained silent. This places a burden on the seller to know that his alterations may be in violation of the CC&R's even when the association has made no objection and places a burden on the buyer to also know whether there are violations that the association may act on at some future date.

Who is the person they are supposed to call? A property manager? President?

As a realtor, you might know--but I don't. Can't your client seek something or other from the realtor who sold to your client and from that seller for failure to disclose?

Is the sticky note signed and dated?

Bob,

Keep in mind that while the president and the treasurer are officers and board members, neither is usually empowered to act for the board. That is, it is the board acting as a whole, and not its individual members, that must agree to any remedies such as parapet walls.

Has the board issued any notice of violation? ARS 33-1803 requires a notice and an opportunity to be heard before an action may be taken regarding a violation.

Your seller is in an awkward spot. His least expensive way out right now is to build that parapet wall, assuming that will remedy the problem. (My understanding is that if the HVAC cannot be seen from the street then there is no violation.) All of his other remedies, such as suing the association or suing the person who sold him the home are going to cost big piles of money and delay the sale for months or years.

BTW, my take on this is that the seller owes you your commission as you produced a ready, willing, and qualified buyer.

Until now I had never read through the current version of ARS 33-1806(A)(3)(e) and I am especially offended by the clause that permits the association to take action against a buyer even after certifying that there are no violations. In most other situations, when a person relies on the words of another to his detriment he would have a cause of action. In this case, however, it's tough bananas for the buyer.

Yes, there are other Hvac showing from the street. However, the board president said that did not matter, because when those homes sell, there will then be a violoation to them.
Unfortunately this is a sad state of affairs when the HOA waits for a sale, like in this instance. Does the seller have that kind of money to fix these type violations in such a short time frame? NO, plus they do not have a chance to dispute the matter.

No, the first and only notification was through the Title company, while in escrow. That's why I started this conversation to find something in writting that would resolve this issue in a short amount of time.