FAILING TO PAY TAXES ON COMMON AREAS CAN HAVE DIRE CONSEQUENCES

A recent article in the Washington Post chronicled the plight of an upscale San Francisco community, which failed to pay its common area property taxes, and the savvy investors who took advantage (https://www.washingtonpost.com/news/morning-mix/wp/2017/08/08/residents-of-an-exclusive-san-francisco-street-didnt-pay-their-taxes-so-someone-bought-their-street/?utm_term=.f35a82ccda43).

 

We are aware of Arizona communities who have faced similar issues.  All property owners in Arizona (including individual parcel owners and community associations who own common areas) who are subject to property taxes, could potentially lose their property pursuant to a tax lien foreclosure if they fail to keep the property taxes current.  This can be a very costly and time consuming oversight to correct. 

 

Similar to the San Francisco community referenced in the article, the most common reasons we see for failing to pay taxes is a lack of awareness that the taxes are owed and/or that the taxes are past due.  Take the following steps to ensure that your community does not fall victim to tax lien problems: (1) ensure that your community’s mailing address on file with the County Treasurer (http://treasurer.maricopa.gov/) and County Assessor (https://mcassessor.maricopa.gov/assessor/assessor.php) is up to date (if the tax bill is being sent to the incorrect address, you are far more likely to fall behind); (2) regularly check the tax status of your common area parcels with the County Treasurer; and (3) if you are unsure of the tax status of your common area parcels, immediately contact your community association attorney for assistance.

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Becoming a Champion Board

How can your Board of Directors become the Golden State Warriors of community associations?  While it might seem silly to compare multi-millionaire athletes playing professional sports to volunteer board members of a non-profit corporation, there are a number of similar underlying keys to success.

  • Teamwork: the Warriors are known for playing unselfish, “team” basketball. In much the same way, your Board can achieve success by acting as a team, prioritizing the interests of the community ahead of the interest of any individuals, and playing to the strengths of each individual Board Member.
  • Leadership & Determination: the Warriors lost the 2016 NBA Finals, but used that loss as a road map to avoid similar mistakes and to fuel their 2017 NBA Championship. Similarly, your Board should learn from its mistakes, or mistakes made by prior Boards, to improve future performance.  Furthermore, if your community endures difficult times, the Board will be relied upon for guidance and leadership.
  • Practice Makes Perfect: the Warriors credit much of their incredible play to hard work and practice. Board Members can “practice” by familiarizing themselves with the community’s governing documents and applicable Arizona laws, being prepared for Board Meeting and Meetings of the Members, and committing to a Code of Conduct.

Although performing at an elite level on your Board may not earn you fame and fortune, you will be doing a great service to yourself and your community.  Please visit www.mulcahylawfirm.com/publications for more helpful information on becoming a championship Board Member!

 

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

New Federal Drone Restrictions

Did you know that in April 2017 the Federal Aviation Administration (FAA) established air space regulations over 133 military locations in the United States? Pursuant to 14 CFR 99.7, through an agreement with the Department of Defense, the FAA has the authority to establish special security instructions for the operation of drones in order to protect the nation’s security. The recent air space regulations prohibit drones up to 400 feet within the boundaries of 133 specific military facilities. The air space regulations apply 24 hours a day, 7 days a week. There are only a few exceptions for these restrictions, and in order to get an exception, the drone operator will need to seek approval from a specific point of contact at the designated military facility. Drone operators who violate these air space restrictions can face both civil penalties and criminal charges.

There are several other federal air space restrictions on drone flights within the United States that you may not be aware of. If you are considering flying a drone, make sure you review all of the federal air space restrictions.  Some of the federal air space restrictions include the following areas:

  • There are Temporary Flight Restrictions that may be active on any given day, in any area of the country, due to a temporary hazardous condition in that area of the country, for example a chemical spill or wild fire. To see a list of active Temporary Flight Restrictions please visit:  http://tfr.faa.gov/tfr2/list.html.
  • There is a “No Drone Zone” in the airspace around Washington D.C. It is the most restricted air space in the country. For more information on            the “No Drone Zone” please visit: https://www.faa.gov/uas/where_to_fly/no_drone_zone/.
  • Drones are prohibited within a radius of three nautical miles of the venue/arena/stadium, one hour before and one hour after any Major League Baseball events, National Football League events, NCAA Division One Football events, or any NASCAR Sprint Cup, Indy Car, and Champ Series races. For more information on the air restrictions for these events please visit:             https://www.faa.gov/uas/where_to_fly/airspace_restrictions/media/Sports_TFR-UAS_Handout.pdf.
  • There are also airspace restrictions for drones around airports. Drone operators should not fly the drone within a 5 mile radius of any towered airport without first notifying the airport and airport control tower. For more information on restrictions in relation to Phoenix Sky Harbor International Airport please visit: https://skyharbor.com/Business/RulesAndRegulations/drones.

For more detailed information on Federal Airspace Restrictions for drones please visit: https://www.faa.gov/uas/where_to_fly/airspace_restrictions/.

Our firm will continue tracking federal regulations on drone usage and those regulations’ impact on community associations. Stay tuned!

Posted in Annual Meetings, Board Meetings, Board of Directors, Community Association Law, Homeowner Associations, HOA, Community Association Management, Education, Enforcement, Nuisance Issues, Safety in Associations, Social Aspects | Leave a comment

HOAs Turned Police

How far should a homeowners association go to enforce speeding, traffic violations and reckless driving within their community? What should a Board of Directors do when a homeowner or resident speeds or endangers the safety of others in the association with their driving?  In some states around the United States, including Illinois and Florida, there is a growing trend among homeowners associations to issue traffic citations for speeding and reckless driving. A Board in Illinois hired a security department to use radar, lights, and recording devices to issues citations, with established fines in their community.  The security officers also wore special uniforms and badges.[1] Is this taking it too far? Should traffic violations be left to law enforcement?

Arizona does not have a law that specifically allows a homeowners association, through either the Board or other committee, to issue traffic citations. However, under Arizona law, a homeowners association has a duty to protect the safety of its members against foreseeable activities that create a danger or pose a threat. Further, many CC&Rs and Bylaws give boards broad rule making authority to adopt rules and regulations. The CC&Rs and rules and regulations often contain provisions that prohibit an owner from creating a nuisance or threatening the safety of other members. Further, under Arizona law, a homeowners association is allowed to impose reasonable monetary penalties for violations of the governing documents.

So, if your homeowners association is having these traffic issues, what should you do? Our firm has put together some suggestions to reduce speeding and reckless driving in your association.

  1. Talk to local law enforcement about the issue and check with your municipality on whether they have additional support for speed awareness or a speed reduction program.
  2. If your streets are public streets, talk to your local law enforcement about the issue immediately.
  3. If your streets are private streets, post signs in the community and amend your governing documents to include restrictions on speeding and reckless driving. Post speed limit signs and use speedbumps and/or a radar tracking device.
  4. Use the Association’s newsletter, website and bulletin boards to communicate the importance of a safe community.
  5. If your streets are private, and the speed limits are incorporated into the governing documents, write a violation letter and allow for notice and an opportunity to be heard. After the notice and opportunity to be heard, fine owners for the reckless behavior.

If you have questions regarding a reckless driver within your community, call your local police enforcement or an attorney to better understand your enforcement rights and remedies.

 

[1] If you would like more information about a specific case in Illinois where the Supreme Court of Illinois upheld the association’s ability to enforce its rules for speeding violations in the community, please see the case cited below. The court held that the association could stop members for traffic violations and issue citations, with associated fines for the violations. Poris v. Lake Holiday Property Owners Ass’n, 983 N.E. 2d 993 (2013).

Posted in Board Meetings, Board of Directors, Community Association Law, Homeowner Associations, HOA, Education, Enforcement, Fair Housing, Nuisance Issues, Safety in Associations, Social Aspects | Leave a comment

No Lifeguard on Duty? HOA Members and Neighbors on Duty

Summer is officially here.  A few years ago, I witnessed the heroic efforts of a bystander revive a young child that nearly drowned at a community pool. Needless to say, as a mother to two young children, I was rattled to the core by the events of that day. Pool safety is something we all need to keep an eye on.   

The American Red Cross has a complete list of safety guidelines.  If you have a community pool, I encourage you to download this Red Cross Manual on Swimming and Water Safety and provide to members at your next board meeting. Below are some tips that I think are important for associations to consider:

  • If you have the option and the finances to hire a lifeguard, seriously consider doing that for the months/times the pool is open
  • Pool rules should be clearly posted
  • Encourage pool users to swim with a buddy; never swim alone
  • Never take your eyes off a young child at the pool
  • Use non-slip materials on surfaces such as pool decks, diving boards and ladders to prevent pool-goers from falling/slipping
  • A fence of at least six feet (or whatever your city or county code requires) should surround all side of the pool with a locked gate
  • Check (or have a vendor check) the pool often for cleanliness and upkeep
  • Have a sign posted on the pool deck which provides the address of the pool (in case a pool-user needs to provide address of pool to 9-1-1 dispatcher). If your pool has a phone, this sign should be posted near the phone.
  • Have a sign posted that provides CPR instructions
  • Make sure that any railings to be used to get in and out of the pool are properly insulated from heat so that no one burns themselves when they climb in or out of the pool.
  • Prohibit alcohol in the pool area

Does your association have a resident or vendor who likes to “prop open” the pool gate for convenience purposes? For safety and liability reasons, your board should take a proactive stance regarding the improper propping open of a gate/fence. First, the board should consider adopting and enforcing a rule stating that propping open the pool gate/fence at any time is prohibited. The association should also notify homeowners and all vendors (i.e. pool companies/landscapers who might prop a gate open) of rules/policies prohibiting propping open of a gate/fence in writing (i.e. letters, newsletters, etc.). Our firm also suggests that a board post sign(s) at all pool gates and in the pool areas stating the safety rules including the rule that propping open the pool gate/fence at any time is prohibited; also state that these rule(s) were enacted to protect the health and safety of all residents/guests; and that violators will be fined after notice and an opportunity to be heard for a violation.  Additionally, we suggest that the board research an alternative to deter owners 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. This 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.

If the association’s CC&Rs allow the board to revoke residents’ common area pool privileges for violations of the pool rules and regulations, our firm suggests that the board revoke pool privileges for violations of pool safety rule(s).  Have a great summer and be safe in and out of the water!

Posted in Annual Meetings, Board Meetings, Community Association Law, Homeowner Associations, HOA, Community Association Management, Education, Enforcement, Maintenance, Nuisance Issues, Safety in Associations, Social Aspects | Tagged , | Leave a comment

THE FUTURE OF GOING SOLAR?

Arizona law favors the use of solar energy devices by homeowners within community associations. In fact, pursuant to A.R.S. Section 33-439(A), “[a]ny covenant, restriction or condition contained in any deed, contract, security agreement or other instrument affecting the transfer or sale of, or any interest in, real property which effectively prohibits the installation or use of a solar energy device as defined in section 44-1761 is void and unenforceable.”

A common issue in Planned Communities is the location of solar roof panels.  Although Planned Communities are permitted to adopt certain rules and regulations regarding the placement of solar roof panels, those rules shall not effectively prohibit installation or adversely impact the functioning, cost or efficiency of the device. Oftentimes the Board’s desire to limit the aesthetic impact of the solar roof panels is at odds with the homeowners’ statutory right to place the solar panels in a location where they will function properly.  Has Tesla created the perfect compromise?

The Tesla solar roof utilizes solar panels that also act as, and mimic the aesthetic appearance, of roof tiles.  In other words, the roof tiles are the solar energy device.  For more information and details, please visit https://www.tesla.com/solarroof.

Although these types of roofs may not become common immediately, we can certainly expect homeowners who are interested in solar energy to consider it as an option moving forward.  Furthermore, an Association interested in a solar initiative may consider the Tesla solar roof on common areas.

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Monsoon Season Madness – Be Prepared!

“We can’t do anything to prevent the monsoon, but we can prepare.”  Weldon B. Johnson, The Republic | azcentral.com With summertime comes monsoon season, you never know when a big dust storm or heavy torrential downpour may hit! Is your Association prepared? Today is a good time to put a plan in place for your Association if you don’t have one, or to review your plan if you haven’t done so in a while.

The importance of an emergency plan…

How can YOUR community association plan for a natural event?

The board of directors, with the assistance of a committee, may want to look at the possibilities of a disaster and what it might do to the community.

What should your association emergency plan look like? The Red Cross is a valuable resource and can help with an assessment to determine the risks the association might face, how to prepare for them and what to do following a natural disaster. Find information at: http://www.redcross.org/find-help. Additionally, the federal government has information on how to plan for emergencies at https://www.ready.gov/southwest.

If it is determined that a disaster plan is necessary, the next step is to fully develop the plan and put it in writing. Include association members, local police and ask for information from first responders in the processes to develop the plan. With community buy-in the plan is more likely to be viable and succeed, should it become necessary to implement.

When the plan is developed and in writing, it is important to communicate with the members of the association. Use the association’s website, newsletters and bulletin boards to post the plan, and be sure that all association members receive a copy. The association may want to draw attention to the plan each year at the annual meeting.

With luck, your association will not need to implement a disaster plan. However, being prepared should something happen gives the board of directors and association members direction and a sense of peace.

Emergency meetings…

If an emergency strikes (such as flooding or monsoon/microburst damage) that requires immediate board action, the association has the right to notice a meeting. In these circumstances, the board can suspend the 48 hours notice of meeting to the membership required by Arizona law and conduct an emergency board meeting. Under Arizona law (A.R.S.33-1804 and condo A.R.S. 33-1248), an emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed until the next regularly scheduled board meeting. The minutes of the emergency meeting shall state the reason necessitating the emergency meeting. The minutes of the emergency meeting shall be read and approved at the next regularly scheduled meeting of the board of directors.

Under the new law that becomes effective on August 9, 2017, at an emergency meeting called by the board of directors, the board of directors may act only on emergency matters.

Lastly…

In the event that there is an emergency in the association caused by a natural disaster, the board should immediately reach out to their legal counsel, insurance agency and management company to get advice on how to proceed.

Although we at Mulcahy Law Firm, P.C. hope for a calm monsoon season and a mild summer, should you need us – we’ll be here for your board.

Posted in Board Meetings, Board of Directors, Community Association Law, Homeowner Associations, HOA, Community Association Management, Education, Insurance, Safety in Associations | Tagged , | Leave a comment

Summer Board Meetings Made Easy!

During the summer months, many board members travel outside of Arizona to escape the heat. Due to travel schedules during June, July and August, sometimes it is difficult for the board to obtain a quorum to have a board meeting.

Under Arizona law, all meetings of the association must be conducted in the State of Arizona. However, A. R. S. Section 33-1804(D)(3) and 33-1248(D)(3) permits any or all board members to participate in a regular or special board meeting through the use of any means of communication by which all directors and owners participating in the meeting may simultaneously hear each other during the meeting. As such, board members can appear at board meetings via a conference call, SKYPE, FaceTime, or the website “GoToMeeting.com” and still be in compliance with the law so long as the actual meeting takes place in Arizona and the directors and owners participating in the meeting may simultaneously hear each other during the meeting.

If it is impossible or difficult for the board to meet in person or telephonically during the summer months, don’t forget that decisions by the board outside of a board meeting can be made by the board via unanimous written consent. Pursuant to Section 10-3821 of the Arizona Non-Profit Corporation Act, the board may also conduct business through action by unanimous written consent in lieu of a meeting. The board may use email to obtain unanimous consent in writing. However, if discussion and deliberation among the board is necessary to make a decision, a regular board meeting must be conducted. Any discussions without noticing a meeting would be in violation of the Arizona Open Meeting Law, as the membership would not have the opportunity to hear the conversation and participate before a decision is made. Because the membership has a right to attend and participate in meetings of the board, our firm recommends that actions by unanimous written consent be limited.

We hope that these suggestions help your board have effective board meetings during the summer months!

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With Memorial Day, Flag Day and 4th of July right around the corner… let’s talk flags!

Neighbors are bringing our their Red, White and Blue in preparation for the upcoming patriotic holiday. Now is great time to review Arizona’s laws regarding flags in HOAs!

Arizona law is quite clear on this issue. Pursuant to Arizona law (A.R.S. Section 33-1808 (A) and (B) for planned communities and 33-1261 for condominiums), an association cannot prohibit the outdoor front yard or back yard display of the American Flag, or an official flag (or a replica) of the United States Army, Navy, Air Force, Marine Corps, Coast Guard by a unit/lot owner on that unit/lot owner’s property if the American flag or military flag is displayed in a manner consistent with the Federal Flag Code. Associations also cannot prohibit the outdoor display of the following: 1. POW/MIA flag; 2. Arizona State flag; 3. The Arizona Indian Nations flag and 4. Gadsden flag (“Don’t Tread on Me”). Further, the association shall adopt reasonable rules and regulations regarding the placement and manner of display of the American flag, the military flag, the POW/MIA flag, the Arizona state flag or the flag of the Arizona Indian nations.

In a condominium, the association rules may regulate the location and size of flagpoles but shall not prohibit the installation of a flagpole.

In a planned community, the association rules may regulate the location and size of flagpoles, may limit the member to displaying no more than two flags at once and may limit the height of the flagpole to no more than the height of the rooftop of the member’s home but shall not prohibit the installation of a flagpole in the front yard or backyard of the member’s property.

Checkout Mulcahy Law Firm, P.C.’s YouTube video on this topic: https://www.youtube.com/watch?v=WHuQDQA3-tw

Please contact us with any questions.

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I just received notification that an owner has filed bankruptcy. What should our HOA know about bankruptcy?

 

First off, flag the account – “BANKRUPTCY FILE”!

If you have received notice of the bankruptcy this more than likely means that the association has been included in the debtor’s (owner or former owner) bankruptcy as a creditor.

The bankruptcy filing initiates an automatic stay in place, which means the association cannot proceed with collection against a debtor. It is really important that the association is aware of the automatic stay and abides by the law. The association could potentially face strict and costly penalties if the automatic stay is violated. Play it safe!

The two most common types of bankruptcies we see in our office are Chapter 7 and Chapter 13 bankruptcies.

Chapter 7 Bankruptcy

Most Chapter 7 bankruptcies are “no asset”. This means the debtor likely has no available assets. Unfortunately, it is unlikely for the association to get paid pre-petition (any amounts owed prior to the date the debtor/owner filed for bankruptcy)  amounts owed in Chapter 7 bankruptcies. If the debtor owes delinquent assessments, the association should file a Notice of Appearance to assure that the association receives all notices from the Court regarding the bankruptcy. If the debtor receives a DISCHARGE of their Chapter 7 Bankruptcy, the debtor is no longer personally liable to the association for any pre-petition amounts owed to the association. However, if the debtor is still an owner within the association, the association is still a secured creditor of the debtor; therefore, the association still has a valid lien against the debtor’s lot/unit (note: lien is only valid for 3 years from the date the debt became due and owing).

Chapter 13 Bankruptcy

This is typically called a “wage earners” bankruptcy due to the fact the debtor typically has an income when a Chapter 13 bankruptcy is filed. In fact, there’s actually a “means test” in which an owner must pass to qualify for a Chapter 13 filing. In a Chapter 13 bankruptcy, it is possible the association may get paid for the pre-petition amounts owed through the debtor’s Chapter 13 plan. If a debtor files Chapter 13, the association should file a Notice of Appearance and a Proof of Claim in the case. The Proof of Claim should include the pre-petition debt and attorney fees incurred and anticipated in the bankruptcy.

For more information on bankruptcies, check out our Cheat Sheet: http://mulcahylawfirm.com/news/Trustee%20Sales%20%26%20Bankruptcy.pdf

Contact our firm if you’re a recipient of a bankruptcy notice and you need help interpreting it all… we know it can be complicated and we are here to help!

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