Be a Better Leader for your Association!

What makes one community association successful while another struggles?

After 20 years of experience working with community associations, I have come to the conclusion that one of the reasons is leadership. This article will define leadership, talk about the importance of leadership, characteristics of a good community association leader and how boards can lead at a higher level.

What is the importance of leadership?

Strong leadership gives and organization guidance, stability, continuity from year to year and a unity of purpose.

There are many definitions for leadership:

Drea Zigarmi, in his book The Leader Within, defines leadership as “the act of arousing, engaging, and satisfying the motives of followers – in an environment of conflict, competition or change – that results in the followers taking a course of action toward a mutually shared vision.”

What are some of the characteristics of a great community association leader?

1. A leader must be moral and ethical

2. A leader engages in proper behavior

3. A leader has read, understands and follows the governing documents and the laws regarding community associations

4. A leader is educated on community association topics and procedures

5. A leader follows the advice of professionals who are hired to help

6. A leader is respectful of other board members and community members

7. A leader places the good of the association as a priority and encourages others to do the same

8. A leader encourages mentoring and support of board members

9. A leader can conduct an efficient and effective board meeting

10. A leader sets a good example

11. A leader arouses others in the community to step up and help the community and to follow the association’s documents

If leaders are not respected by their members, they can never effectively lead an organization.

Leadership is often divided into 4 styles. What type of leader are you?

Directing leaders give specific instruction and closely supervise group tasks; they show exactly what they want others to do and how to do it.

Coaching leaders direct and supervise tasks but they also explain decisions, ask for suggestions and encourage those they work with. They will encourage all to contribute when deciding what to do and how to do it.

Supporting leaders share in the decision-making. They facilitate and support the group members’ efforts. They might say to the group, “I will be here to help if you need me.”

Delegating leaders give all decision and problem solving responsibility to the group members. The president of a board of directors may be one style, or a combination of the leadership styles. Additionally, he or she may use a different style depending on the desired outcome or the makeup of the committee or board he or she is working with.

Community Association Boards Leading at a Higher Level

Leading at a higher level is defined by Ken Blanchard, the business leadership guru, as is “the process of achieving worthwhile results while acting with respect, care, and fairness for the wellbeing of all involved.” According to Ken Blanchard, in order to lead at a higher level, boards need to do the following:

1. Set sights on the right target and vision. (Develop goals at the beginning of each year to make your community association better and work toward accomplishing those goals);

2. Treat homeowners’ right – (treating all fairly, with respect and in accordance with governing documents and community association law);

3. Treat fellow board members right (working together to accomplish the goals of the association and acknowledging their support of the association).

4. Be the right kind of leader (adhering to the characteristics of a good leader).

I believe leadership and education are intertwined so I hope that you will continue to learn as you lead your communities toward excellence.

Posted in Board of Directors, Community Association Law, Homeowner Associations, HOA, Community Association Management | Leave a comment

Hiring Unlicensed Contractors Costs More Money in the End. Period!

 

Have you ever heard the phrase “penny wise but pound foolish”? Over the years, I have seen some expensive mistakes made by association boards. One common mistake is trying to save a little money by hiring an unlicensed contractor. I’ve often found that, in the end, the unlicensed contractor ends up costing a lot more money for the association.

My advice… Hire licensed and bonded contractors for projects that under Arizona law require you to hire licensed and bonded contractors.

Here’s a good example of a construction project costing an association a lot more money in the long run than it should have. The property manager of an association hired an unlicensed contractor to install new rain gutters on the condominium building. The unlicensed contractor, who did not have workers’ compensation insurance, hired a person to perform some of the work at a contracted daily amount. When a rain gutter came in contact with a high-voltage electrical wire, the worker was severely shocked and fell, sustaining serious injuries. This case eventually came before an appellate court to determine which entity was considered the “employer” for purposes of workers’ compensation liability. The court determined that both the management company and the unlicensed contractor were employers of the injured man. Furthermore, the court found that the homeowners’ association was also liable as an employer based on the management company’s authorized actions in the association’s behalf. In this case, the association was required to compensate the worker for the worker’s medical bills, injuries and loss of income.

This case does have a moral – associations and property management companies should never hire unlicensed contractors (unless it is minor handyman work – see below for definition – or contact the Arizona Registrar of Contractor’s Office for clarification). Both associations and property management companies may be deemed “employers” and subject to liability for workers’ compensation benefits when an employee of an unlicensed and uninsured contractor is hired to work at an association. It should be standard procedure for contractors who work for an association to provide proof of a contractor’s license as well as proof of insurance prior to the start of work.

The Arizona Registrar of Contractor’s Office (www.azroc.gov or 602-542-1525) has a user friendly website with great information. Check this site for license and bond information and for complaints or disciplinary action against a prospective contractor. Where there is smoke, there is usually fire. So, if the contractor already has open (or closed) complaints, we suggest re-considering the use of that contractor. A contractor must have a current and active license, showing he or she is qualified to perform the type of work required, before he or she can even bid on a project. Violation of this statute is a class 1 misdemeanor.

The most frequently claimed exemption to the licensing requirements is that of the “handyman”. Arizona statute allows individuals who perform minor repairs or installations to do so without being licensed. To qualify for this exemption two conditions must be met: 1) The work does not require a local building permit; AND 2) The total cost of the project, including labor, materials and all other items does not exceed $1,000.00.

Finally, don’t forget to have our law firm review the contract between the association and contractor BEFORE the contract is executed. We can help protect the association by inserting association-friendly language in the contract to protect the association in the event of problems with the contractor down the road.

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What is “reasonable”?

The terms “reasonable” and “unreasonable” are frequently used in the Community Association legal industry. Both the Arizona Planned Communities Act and Arizona Condominium Act use the terms “reasonable” and “unreasonable” throughout various sections of the legislation. For instance, ARS 33-1242 grants the association the authority “after notice and an opportunity to be heard,” to “impose reasonable monetary penalties on unit owners for violations of the declaration, bylaws and rules of the association.”  ARS 33-1817(B) (3) provides that “approval of a construction project’s architectural designs, plans and amendments shall not unreasonably be withheld” by the association or design review committee.

In advising Board Members in Arizona, I typically receive questions about whether or not a particular decision is legal. In rendering my legal opinion to my client, not only do I try to provide advice and options for the client to stay within the confines of the law, but I also try to provide my clients with the best practice and/or advice on how to find a reasonable solution that will help keep them out of legal trouble and be a win-win situation. In my experience, the Boards that I work with that communicate well and that make reasonable decisions, have fewer problems, than those who make unreasonable decisions. While these words may sound obvious, being a Board Member for a Community Association can be extremely emotional, demanding and stressful, and sometimes the reasonable solution may not seem all that clear or judgment may be clouded by the emotional aspect of the position. I am hopeful that this post will provide Board Members with some tips and tools to make more reasonable decisions on behalf of the association.

First, it is important to keep in mind that if a Board decision is challenged in Court, ultimately the determination of reasonableness will be a question of fact for the jury to decide. There will be a number of factors that will likely go into each analysis, but I’m always trying to think ahead to how a court/jury would look at the Board’s decision if it proceeded to a lawsuit. Therefore, Board Members should also treat the determination of what is reasonable in a particular situation, on a case by case basis.  What is reasonable in one set of circumstances may not be reasonable for the next case. Factors may include, but are not limited to: the costs associated with the decision; how the Board has treated a similar situation in the past; if the Board is allowed to grant a variance; the ultimate goal or outcome desired.

Second, the Board should understand the scope of its authority in making decisions by reviewing the Association’s governing documents. Some Articles of Incorporation, CC&Rs and Bylaws give the Board broad authority to make decisions. Others limit the Board’s authority in certain ways. For example, if an Association’s CC&Rs give the Board enforcement power and require each homeowner to maintain the landscaping on his/her Lot, but does not provide details of what the landscaping should entail, would it be reasonable for the Board to require that each homeowner hire a professional landscaping company to maintain the landscaping on his/her own Lot? In my opinion, this would be an unreasonable requirement outside of the scope of the Board’s power and authority.

Third, the Board should learn how to communicate better with the homeowners/members in the community. A Board or Board Member may be automatically perceived as unreasonable if he/she is not willing to listen to homeowners and not willing to open the lines of communication. Advances in technology give Boards additional ways to communicate with homeowners through email, electronic newsletters, websites, and social media. With that being said, the use of email in people’s everyday lives can create a greater sense of urgency or an expectation of a quicker response time. I advise my clients to try to acknowledge receipt of emails within 24 hours and to let the person know when they can expect a Board answer or decision. Individual Board members should not be making decisions on behalf of the whole Board. Therefore a reasonable response may be, “[t]hank you for your email. The Board will add this topic/question to the agenda for the next Board meeting. Please feel free to attend to hear the Board’s discussion.”

Fourth, there is a balancing act between being flexible and also being consistent. One of the most prevalent complaints I see homeowners make is that the Board is selectively enforcing the governing documents. While some governing documents authorize the Board to grant variances in certain situations, in most cases the Board should aim to enforce each provision equally and consistently among homeowners. With that being said, the Board is governing a group of neighbors and sometimes it can be more effective and reasonable to do the “neighborly thing.” For example, if there is a person in the association who lives alone who recently broke his/her leg and cannot adequately maintain his/her landscaping, rather than levying a fine each day and/or week after hearing the reasons for the violations, the Board could consider discussing alternative options to keep the yard maintained. Maybe a Board member or other neighbor would be willing to volunteer and do a cleanup, or maybe the Board can help the neighbor find a landscaping company. This solution is more reasonable in my opinion because the end goal for the Board should be compliance and trying to improve and keep up the property values.

Fifth, the Board should learn how to complete a cost/benefit analysis. The costs associated with some decisions do not always outweigh the benefits. There are many times when the Board should consider whether a specific decision could end in litigation or an increase its insurance premiums. The Board should look at its options and conduct a cost/benefit analysis of a situation if there is a risk of litigation. While the prevailing party in a breach of contract lawsuit is entitled to its reasonable attorneys’ fees, there are certain causes of action where the prevailing party may not be awarded its attorneys’ fees. Therefore, the Board should discuss the risks of litigation with its legal counsel. In my opinion, part of being reasonable is using “preventative   legal.” Further, the Board has a fiduciary duty to do what it believes to be in the best interest of the Association. As such, if the Board does not have expertise or knowledge in a certain area, it should consult with legal, a CPA, reserve specialist or other expert in the field to help make the reasonable and best decision.

Finally, the Board is going to have to work to get along in order to make a reasonable decision as a whole. Board members bring different experiences and expertise to the Board, and there will likely be many different personalities on the Board at any one time. In my experience, Board conflict can be reduced if each Board Member understands the type of persons he/she is working with. I recommend that Board Members working together each take a DiSC profile personality test. The DiSC profile test provides a report about your personality and in my  experience helps improve communication among team members. My employees take the personality test prior to starting at Mulcahy Law Firm so that I can better communicate and work with each individual employee on my team. I would encourage you to consider taking the free test. Here is a link to the free Disc personality test: https://discpersonalitytesting.com/free-disc-test/.  In my experience, sometimes knowing that a person may react a certain way or speak a certain way helps relieve some of the emotional responses you may have if you didn’t know that is just the way the person is. Emotional decision making can lead to unreasonable decision making.

It is important to remember that sometimes there is no right or wrong answer. Sometimes the Board can only do its best, given the circumstances. In these cases, my advice is to have justifications for the ultimate decision and consult with experts if you are feeling uneasy or unsure.

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Tips on keeping the board meetings in control…

We often receive questions from board members seeking advice on how to handle board meeting conflicts. We are here to help.

Board member vs. board member

Board Member to board member conflict will bring the association board meeting productivity to a halt. It is important that all board members work together to prevent conflicts, and, when they do arise, the members should work together to properly address the conflicts.

Limit potential board member conflict by focusing on these points set forth below:

  1. Give all board members an opportunity to contribute with equal time;
  2. Consider enacting regulations, such as discussion time limits;
  3. Allow follow up discussion on a topic after all board members have been given the opportunity to speak;
  4. Educate new board members on board processes and outstanding issues;
  5. Encourage mentoring of new board members.

Other times, the conflict at a meeting is caused by a difficult owner or owners. Difficult owners can be very outspoken regarding their view of the management of the association. The “Gadfly” is an expert at criticizing, cajoling and pinpointing the errors of others. S/he demands change, constantly interrupts, attacks personal integrity and alleges conflicts of interest.

Do you have an “expert” criticizer that finds thrill in pointing out the errors of others on the board? Someone that demands change, constantly interrupts, attacks personal integrity and alleges conflict of interest? This “Gadfly” can be exhausting and very difficult to deal with.

How to deal with the “Gadfly”:

  1. Establish and announce meeting procedures at the beginning of a board meeting, in a newsletter or in the meeting notice;
  2. Enforce established meeting procedures uniformly;
  3. Host a homeowner forum at the beginning of the board meeting with a strict time limit;
  4. Establish control. No one should be allowed to interrupt board meetings by speaking out of turn and raising irrelevant issues;
  5. Respond in a modulated, non-argumentative voice. Do not respond with anger, argue or trade insults. The board does not have to rebut the comments of any member;
  6. Utilize parliamentary control — by knowing when and how to a) table a motion; b) postpone a motion; c) refer a matter to a committee; d) adopt special rules of

Lastly and most importantly, it is very important to establish that name calling, interrupting and personal attacks should be prohibited at all board and committee meetings.

I am hopeful that the strategies in this Blog will help bring order to your meetings!

The author wishes to acknowledge that Conducting Meetings – A Guide to Running Productive Community Association Board Meetings by the Community Association Institute and M.J. Keats was a source for this publication

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It’s pool time – pay attention!

The heat is here, the first day of summer is tomorrow (June 21) and owners and their guests are flocking to the association’s pool… pool safety starts with you. It goes without saying; the importance of pool safety is something that we can’t stress enough.

What to say to that person who likes to “prop open” the pool gate?

PLEASE close the gate! For safety and liability reasons, your board should take a proactive stance regarding the improper propping open of a gate. If your board has not already done so, your board should consider adopting and enforcing a rule stating that propping open the pool gate is prohibited – no excuses for leaving the gate open! The association should notify homeowners and all vendors (i.e. pool companies/landscapers who might prop a gate open) of the association’s rules and pool policy prohibiting propping open of a gate — in writing (i.e. letters, newsletters, etc.).

What to do today?

Go check your association’s pool gate to confirm that it is a self-closing gate and the lock is high enough that a young child cannot reach it without assistance from an adult.

What’s that beeping sound?

That’s the alarm notifying us that the pool gate is open! We suggest that the board research an alternative to deter owners and vendors from propping open the pool gate. An effective method is to install a gate alarm. When attached to the gate, the alarm creates a loud beeping noise if the gate is propped open.

It is important to point out that an alarm can be an annoyance to owners living near the pool so the board will need to weigh the pros and cons of a gate alarm vs how serious this issue is at your association.

What to say to that owner that keeps violating pool rules?

PLEASE follow the rules! If the association’s CC&Rs allow the board to revoke residents’ common area pool privileges for violations of the rules and regulations, our firm suggests that the board revoke pool privileges for violations of pool safety rule(s).

What to handout to your members?

This, right HERE! This American Red Cross handout has a complete list of safety guidelines that your board, members and their guests should review.

Some final [important] thoughts..

Put serious thought about the signs that are posted at your pool…

  • No Lifeguard on Duty
  • No Diving
  • CPR Instructions
  • In case of an emergency, call 9-1-1
  • Please keep gate closed

Finally, make sure the address/location of the pool is POSTED in an obvious location on the pool-deck. In the unfortunate event that a patron has to call 9-1-1, they will need to be able to provide authorities with the address of the pool.

Have a great summer and be safe!

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Special Assessments

If you live in a community association, either a planned community or a condominium development, chances are that you pay an annual, quarterly, or monthly assessment to the community association. Regular assessment payments from homeowners are necessary for the community association to pay for things like, the maintenance of the common elements, vendors’ contracts, like a management company, and for insurance premiums.

While the Arizona Condominium Act does not have a limitation on assessments, the Arizona Planned Communities Act places a limitation on the amount the regular assessment can be increased by the association each year. ARS 33-1803(A) states in relevant part, “unless limitations in the community documents would result in a lower limit for the assessment, the association shall not impose a regular assessment that is more than twenty percent greater than the immediately preceding fiscal year’s assessment without the approval of the majority of the members in the association.” Neither the Arizona Condominium Act nor the Arizona Planned Communities Act contains provisions that specifically address “Special Assessments.”

A special assessment is an assessment that the community association levies against homeowners, in addition to the regular assessment, when the association does not have enough money in its operating or reserve account to fund a specific project, accident, or other unpredicted expense. The association’s governing documents, typically the Declaration of Covenants, Conditions and Restrictions (CC&Rs), usually contains a provision outlining the process that the association must adhere to in order to levy a special assessment. The board of directors for the association should review the requirements in the association’s governing documents before levying a special assessment. There may be specific notice requirements and voting procedures for the special assessment process and there may only be certain things a special assessment can be levied for. Most CC&Rs require a homeowner vote and a certain percentage of homeowners to approve the special assessment before the association is allowed to levy it.

While there may be unpredicted emergencies or situations that make it near impossible for an association to avoid a special assessment, there are things that the association and its board can do to limit the risk of a special assessment, including, but not limited to:

  • The board should ratify a well thought out and planned budget for the year. When ratifying a new budget, the board should assess the needs of the community for the future, should review and analyze the association’s contracts and other expenses, and should plan for unexpected and miscellaneous expenses.
  • The board can plan to have a reserve study completed and updated every 3-5 years by a reserve specialist. A reserve study identifies the planned replacement of major community assets. Having a well-funded reserve account reduces the need for special assessments.
  • The board should review its insurance coverage with its insurance agent each year to make sure the association has adequate coverage in the case of an emergency or accident on the association’s property or within the association. The board should also ensure it has adequate D & O coverage and proper fidelity insurance. The board can ask its insurance agent to come walk through the community to evaluate risk areas and to adjust insurance accordingly, if needed.
  • The board should consider adopting a “preventative” legal approach. The board should try to contact its attorney before an issue/situation escalates to litigation. Most associations do not budget enough legal fees in their yearly budget to cover the legal fees involved in a lawsuit.

While associations should try to limit the likelihood of a special assessment, there may be situations that arise, making the special assessment necessary. If a special assessment is necessary in your association, make sure your association adheres to the process and requirements outlined in your association’s governing documents. If you have a question about the process, contact your manager and attorney for assistance.

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IS YOUR COMMUNITY ASSOCIATION A CONDOMINIUM OR A PLANNED COMMUNITY?

In Arizona, the vast majority of community associations are formed as either Condominiums, which are subject to the Arizona Condominium Act (A.R.S. Section 33-1201, et seq.); or, Planned Communities, which are subject to the Arizona Planned Communities Act (A.R.S. Section 33-1801, et seq.).  In many communities, the distinction is clear. However, there are some cases where the classification of Condominium v. Planned Community is less obvious (e.g. townhouses).

Pursuant to ARS Section 33-1202(10) of the Condominium Act,

“Condominium” means real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of the separate portions. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.

Pursuant to ARS Section 33-1802(4) of the Planned Communities Act,

“Planned community” means a real estate development that includes real estate owned and operated by or real estate on which an easement to maintain roadways or a covenant to maintain roadways is held by a nonprofit corporation or unincorporated association of owners, that is created for the purpose of managing, maintaining or improving the property and in which the owners of separately owned lots, parcels or units are mandatory members and are required to pay assessments to the association for these purposes. Planned community does not include a timeshare plan or a timeshare association that is governed by chapter 20 of this title or a condominium that is governed by chapter 9 of this title.

As such, the primary difference between a Condominium and a Planned Community is the ownership of the common elements.  In a Condominium, the Owners typically own an undivided interest in the common elements and such ownership is reflected in the Declaration and on each Deed.  In a Planned Community, the Association typically owns the common elements (or has an easement or covenant to maintain roadways).

While the Condominium Act and Planned Communities Act have many similar provisions, there are also important differences that could potentially impact your community.  If you are unsure whether your community association is considered a Condominium or Planned Community, pursuant to Arizona law, please contact Mulcahy Law Firm, P.C.

 

 

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Associations caught in a pickle. Pickleball v. tennis….

Pickleball is becoming a hot topic for many associations and homeowners throughout Arizona. Mulcahy Law Firm is seeing issues emerge regarding the sport, including the possibility of associations converting tennis courts into pickleball courts and noise issues associated with pickleball. This article aims to walk associations through some of the issues and possible solutions for pickleball disputes.

  1. What is pickleball?

While most people are familiar with the sport of tennis, not all may be familiar with pickleball. Pickleball was invented in 1965 in Seattle, Washington, and is now played by millions of people around the world.[1] Pickleball is said to be a hybrid sport between tennis and ping pong.[2] It is played on a court that is roughly half the size of a tennis court, or 20’ x 44’.[3] Players hit a ball with holes, similar to a whiffle-ball, with a paddle over a net that is 36” high.[4] Pickleball can be played with two or four players and is known to be a sport that is easy for new players and a sport that can be played by people of all ages.[5] It has grown in popularity so quickly because it is known to be a fun sport for all age groups and can be played at various levels.[6]

  1. Can tennis players and pickleball players work together to get along?

The increased popularity in pickleball appears to be creating disputes among homeowners and Boards in associations throughout the valley. The dispute we commonly hear is when there are two primary groups in the association, one pro pickleball group and one pro tennis group, and the groups do not want to see courts in the community used for multiple purposes. Most times, the association will already have a tennis court in the community. Therefore the question is whether the tennis court should be converted into a pickleball court or if instead the association should add special lines for pickleball to the tennis court.

According to Terri Graham, owner of Spirit Promotions, which produced the 2016 US Open Pickleball Championships, it does not need to be an all or nothing problem.[7] Ms. Graham encourages clubs around the country to schedule play time for both tennis and pickleball groups.[8] Tennis can become harder for older people or persons with injuries to continue playing. According to Graham, pickleball is a great way for people to stay healthy and active and a “part of the fitness continuum.”[9] Further, the sport is likely to continue to grow because the USA Pickleball Association has “Ambassadors, people who are really enthusiastic, whose job it is to hold demos and clinics and help get people introduced to and interested in the sport.” As associations see more people playing pickleball, there may not be another solution, other than to all be friends.

  1. Can tennis courts be converted to also accommodate pickleball courts?  Or should boards consider building new pickleball courts?

From a logistics standpoint, tennis courts can be converted into pickleball courts in two ways, shared use or dedicated use.[10] One tennis court can be converted into one pickleball court, two pickleball courts, or four pickleball courts, depending on how many different lines the association wants painted on the tennis court. For step by step instructions on how to convert a tennis court into a pickleball court for shared use, we found the following blog post helpful: How to Convert a Tennis Court into a Pickleball Court.

The Association could also decide to fully convert tennis courts into permanent pickleball courts. It appears that 1 tennis court can permanently be converted into 4 pickleball courts. This may be a good option for your association if your tennis courts are rarely used and your Association has an enthusiastic group of pickleball players.

If the association currently has tennis courts, and the Board is considering adding lines to it so that the courts can be used for shared use, or if the Board is considering fully converting the tennis court to a pickleball court, the Board should review its CC&Rs to ensure it can change the use of the common areas. Sometimes, an association needs certain homeowner approval in order to change the use of a common area. To the same point, if there are currently no courts within the association and the Board is considering converting other portions of common areas into courts, the Board should review its CC&Rs to ensure it can change the use of the common areas. The Board may need a specific homeowner approval in order to change the use of a common area.

  1. Noise issues for Pickleball

If you google “noise issues with pickleball” dozens of complaints from homeowners within associations that have pickleball courts will emerge. The game of tennis is relatively quiet in comparison to pickleball. Therefore you can understand why someone who purchased a home within a community with tennis courts could become very upset when the tennis courts are converted into pickleball courts and draw more players and more noise.

There are ways to reduce the noise from the ball hitting the paddle in pickleball. Options include: soundproofing material placed around the pickleball court; quieter paddles; and quieter balls.[11] The sun City Grand Pickleball Club in Surprise, Arizona has 22 courts, and 1,303 members.[12] The Board of Directors for the Club issued a list of approved and banned paddles after contracting with an independent sound study company to determine which paddles were “creating sound at a decibel that some residents living in the area found unacceptable.”[13]  The Board created a chart of paddles that are allowed and paddles that are banned at the courts.

In line with what the Board for the Sun City Grand Pickleball Club did, Boards for associations can consider adopting rules regarding the times that pickleball is allowed to be played within the association, and may also consider adopting a list of approved paddles. If the Association has a larger budget for the project, the association may also consider looking into a sound proofing fence to surround the courts.

  1. Where can you play pickleball in Arizona?

If having pickleball courts within your association is not a feasible option, there are dozens of locations around the valley where pickleball enthusiasts can catch a game. There are a number of websites dedicated to coordinating games and playing times for pickleball players. A website called, “Meetup”, helps coordinate games by date and location.[14] Another website specifically listed homes for sale in Arizona that are located within pickleball retirement communities.[15]

Stay tuned for more information on this hot topic. Visit mulcahylawfirm.com for more homeowner association tips and topics.

[1] What is Pickleball?, https://purepickleball.com/pages/what-is-pickleball (visited January 14, 2018).

[2] What is Pickleball?, https://purepickleball.com/pages/what-is-pickleball (visited January 14, 2018).

[3] What is Pickleball?, https://purepickleball.com/pages/what-is-pickleball (visited January 14, 2018).

[4] What is Pickleball?, https://purepickleball.com/pages/what-is-pickleball (visited January 14, 2018).

[5] What is Pickleball?, https://purepickleball.com/pages/what-is-pickleball (visited January 14, 2018).

[6] What is Pickleball?, https://purepickleball.com/pages/what-is-pickleball (visited January 14, 2018).

[7] Pickleball and Tennis: Can They Be Friends?, http://www.tennisindustrymag.com/articles/2015/11/15_pickleball_and_tennis_can_t.html (last visited January 14, 2018).

[8] Pickleball and Tennis: Can They Be Friends?, http://www.tennisindustrymag.com/articles/2015/11/15_pickleball_and_tennis_can_t.html (last visited January 14, 2018).

[9] Pickleball and Tennis: Can They Be Friends?, http://www.tennisindustrymag.com/articles/2015/11/15_pickleball_and_tennis_can_t.html (last visited January 14, 2018).

[10] How to Convert Tennis courts to Pickleball Courts, https://blog.pickleballcentral.com/2014/10/29/how-to-convert-tennis-courts-to-pickleball-courts/ (last visited January 14, 2018).

[11] Pickleball Nosie Problems: nearby Residents Complain, Shhhh Quiet!, https://www.pickleballportal.com/blog/pickleball-noise-quiet-paddles/ (last visited January 14, 2018).

[12] http://grandpickleball.org/ (last visited January 14, 2018).

[13] SCG News- Pickleball Paddle Approved/ Banned List, http://pball.grandpickleball.org/paddlerule.pdf.

[14] https://www.meetup.com/PhoenixAreaPickleball/ (last visited January 14, 2018).

[15] http://pickleballarizona.com/ (last visited January 14, 2018).

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New Paradise Valley Ordinance Cracks Down on “Unruly Gatherings”

On March 8, 2018, the Town Council of Paradise Valley adopted an Unruly Gatherings Ordinance (2018-05), aimed to deter house parties that disturb neighboring residences and that comprise the safety and welfare of the public. When the police respond to an Unruly Gathering it drains police resources and while the police are responding, it prevents them from securing other areas of town. The ordinance defines “Unruly Gathering” as “a gathering of five (5) or more persons on any private property, including property used to conduct business, in a manner which causes a disturbance of the quiet enjoyment of private or public property by any person or persons and also includes one of the following: excessive noise, impeding traffic, obstruction of public streets by crowds or vehicles, use or possession of illegal drugs, drinking in public areas, the service of alcohol to minors or consumption of alcohol by minors, fighting, disturbing the peace, and/or littering.”[1]

 

The Ordinance outlines processes for the police officers who respond to the disturbance to issue criminal citations for the Unruly Gathering, which will be a class 1 misdemeanor. If convicted, the first citation minimum penalty is $1,000. The penalties increase with additional violations.

 

Further, any Responsible Person[2] receiving a citation where two or more police officers have to break up an Unruly Gathering with eleven (11) or more persons, will also be assessed a Police Service Fee[3], which will be a reimbursement for the costs the police department incurred to respond to the Unruly Gathering. The costs include time for the police officers, dispatchers and vehicle equipment used.

 

Finally, the police will post a Notice on the Property stating the date that an Unruly Gathering occurred and warning that subsequent Unruly Gatherings within ninety (90) days will result in additional citations and fees. If a home is being rented through a short term rental website, such as Airbnb or HomeAway, the notice provides incoming renters with knowledge that an Unruly Gathering took place at the property within the past ninety (90) days.

 

It is our firm’s opinion that this Ordinance can be used offensively by homeowners associations in Paradise Valley to help deter and limit parties at properties where the homeowner frequently rents the home on a short-term basis and the renters are causing disturbances. This ordinance is a good tool to deter repeat offenders.

 

If your homeowners association is located in Paradise Valley and you are planning a community party or get-together, where there may be excessive noise or crowds/excessive vehicles, it is probably best to apply for a special event permit through the Town of Paradise Valley prior to the party. If you forget and the police respond to the event, please note, the ordinance provides an Owner of a property who has been cited with a first offense Unruly Gathering to apply for a special event permit retroactively. The Town Manager has the discretion to grant a special event permit retroactively.

 

[1] All information provided in this article was obtained on the Paradise Valley website and Town of Paradise Valley, AZ, Ordinance 2018-05 (March 8, 2018). (https://paradisevalleyaz.legistar.com/LegislationDetail.aspx?ID=3362329&GUID=079F1245-C64B-43CB-8891-21B797CFCA06&Options=&Search=) (last visited March 21, 2018).

[2] “Responsible Person” means any person in attendance at an Unruly Gathering  including any Owner, occupant, tenant, or tenant’s guest or any sponsor, host or organizer of a social activity or special occasion constituting the Unruly Gathering, even if such person is not in attendance. If such a person is a Juvenile, the term “Responsible Person” includes, in addition to the Juvenile, the Juvenile’s parents or guardians. Responsible Person does not include Owners or persons in charge of Premises where an Unruly Gathering takes place if the persons in attendance obtained use of the Premises through illegal entry or trespassing. A person need not be present at the time of the party, gathering, or event to be deemed responsible.” (Ordinance Number 2018-05)

[3] “Police Service Fee” means the fee to reimburse the cost of services provided by the Police Department in response to the Unruly Gathering. The Police Service Fee is more fully defined in §10-13-7(C).

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Are Bike-Sharing Programs a Nuisance?

If you live near Scottsdale or Phoenix, you have probably noticed a large number of colorful bikes that have recently been introduced to the area. These bikes are part of bike-sharing programs that have partnered with the cities of Phoenix, Scottsdale, Tempe and Mesa. The premise of these programs is very simple: download the company’s app to rent a bike, ride the bike anywhere you need to go and leave the bike at your destination. The bikes are outfitted with a GPS system that allows the company to locate the bike and move it back to a pickup area when a customer is done using the bike. The cost to rent these bikes is minimal. LimeBike, the most prominent bike sharing service in Scottsdale, charges users $1.00 for every 30 minutes that the bike is being used.

Who owns these bikes?

There are several bike-sharing companies that have recently introduced their bikes to the Scottsdale, Phoenix, Tempe and Mesa area: LimeBike (the green and yellow bikes), Ofo (the yellow bikes) and Spin (the orange bikes) are all dockless bikes, meaning that they do not need to be returned to a specific location. GR:D bikes (the green bikes) are docked bikes in Phoenix and Tempe. These companies are not affiliated with the cities of Scottsdale, Phoenix, Tempe and Mesa; and the companies claim that these programs do not result in any cost to the city.

Although the bikes can only be picked up in a designated area, most of them can be left anywhere. This has resulted in many bikes being left throughout neighborhoods in Scottsdale and Phoenix. While many residents are enjoying these bikes, there are others who feel that these bikes create nuisance issues when they are left in high traffic areas and neighborhoods.

Are These Bikes a Nuisance?

Some residents certainly seem to think so. There have been reports of residents throwing discarded bikes into garbage cans and even into the canal. Some residents feel that the discarded bikes are an eyesore and users should not be permitted to leave the bikes wherever they please. Currently, the cities of Scottsdale, Phoenix, Mesa and Tempe do not consider the bikes to be a nuisance, but that could change if enough residents feel that something needs to be done.

Several cities across the country are facing similar concerns. The city council of Coronado, California recently declared all dockless bikes to be a nuisance and has given the city the authority to impound any bikes that are left within city limits. [1] Paradise Valley is considering whether its city council will take similar measures to address the dockless bikes left within city limits.

Some of the bike-sharing companies are attempting to address these concerns by encouraging users to leave the bikes in an approved area. Ofo gives users an in-app credit rating if they have a history of safe parking and responsible bike usage. Users with high credits are offered free rides, company apparel and offers from local businesses. Users with low credit scores can be suspended from the app. Hopefully these incentives will promote responsible parking and help decrease the number of bikes that are left in unsafe areas and neighborhoods.

What can an association do when a bike is left in the community?

Our office has received many questions from boards about what an association can or should do with these bikes when they are left in or near association property. As mentioned above, most of these bikes are outfitted with a GPS system. The company that owns the bike is supposed to track the bike, pick it up and put it back in a designated pickup area. The timeframe to have a bike removed varies depending on where the bike has been left. If your community is near a high traffic area, the bike maybe rented by a new rider before the company has a chance to remove it. However, if your community is in a less populated area it may take some time for the company to pick up the bike.

Every bike has a label with its company’s contact information. If a bike has been left within your community you can contact the proper company and ask them to remove the bike. LimeBike and Ofo employees claim they will remove a bike within 24 hours of it being reported. If a bike is still not removed within 24 hours you can contact the local police department for removal.

Many of our clients live in gated communities and have found bikes that have been left inside of the association gates. When these bikes are left in a gated community the company attempting to pick them up cannot gain access to the bike unless they are allowed in. It can be difficult for owners within the community to remove the bikes because they lock when they are not in use and in order to unlock the bike, someone would need to pay to use the bike. Some frustrated owners have had to pick up the bike and carry it out of the gates so it can be removed by the company.

If you live in a gated community and a bike is left inside of the Association gates you should contact the proper company and ask how they suggest you address the situation. You should also notify the board of directors if the bikes present an ongoing problem. The Board may be able to reach out to these companies so the companies are aware that bikes are being left in the community and they can remove the bikes in a timely manner.

Whether or not these bikes currently are a nuisance remains to be determined, but it seems that bike-sharing programs are not going anywhere for the time being.

[1] http://www.cbs8.com/story/37771242/coronado-to-declare-dockless-bikes-a-public-nuisance

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