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"My Turn" opinion piece published 9/18/07 in the Scottsdale Republic

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Re: "Tiki hut prompts homeowners association lawsuit," Sept. 13 Arizona Republic.

As a board member of a homeowners association, I get aggravated at the lack of respect for contractual relationships.

When buyers consider purchasing a home in a planned community or condo association, they have the right and obligation to read and understand the CC&Rs and other documents that apply to that organization. When they purchase, their signature indicates their acceptance of the terms of a contract between themselves and the HOA.

Those documents define the relationship between the resident and the HOA, and obligations of both the HOA and the resident. The homeowner agrees to abide by rules and other stipulations found in those documents, and in return the homeowner has the right to expect the HOA to provide certain services and facilities, and to enforce all the rules - fairly and consistently.

The rules to which residents agreed when they purchased do, indeed, cede certain rights - such as the right to paint their homes certain colors, to make structural changes or additions outside the architectural guidelines, etc. The benefit- received from being subject to these restrictions is that, by virtue of everyone in the HOA being subject to the same rules, the property values and lifestyle of the community are protected.

Almost every HOA has restrictions on construction and other changes visible from neighboring property - and nearly every HOA requires approval of any such changes. It doesn't matter if the neighbors on the left and right think it's OK to do something- what matters is whether the homeowner has applied for approval, had the application reviewed fairly and in accordance with community documents, and received approval.

Chuck Harman failed to apply for approval before building his structure in Surprise. That he built it anyway doesn't protect him from a decision by the HOA that the structure is inappropriate. If building it without approval did protect him, the rules would be useless; people would just do what they want, such as painting green and purple polka-dots on their homes, and then say it's too late to do anything.

If Harman had applied before building his hut, several things could have happened. The HOA could have approved his application. More likely, the HOA might have said, "Your proposed structure is out of character with the design of the community - if you make the following changes, we will approve it."

Or, the HOA could have said, "If you make your structure 14 inches shorter, it won't be visible by any of your neighbors, and therefore it will be approved." Or, the HOA could have simply denied the application based on the design and size.

If Harman and a sufficient number of his neighbors don't like the rule under which the rejection was issued, they have the ability to call for a change in the rules (which could be accomplished by a vote of the association members) or by running for and serving on the board. Either of these approaches would have made Harman a part of the solution, instead of a source of the problem.

Vilifying HOAs, their boards and their management companies is inappropriate, unnecessary and leads to unnecessary legislation. Following the terms of the legal documents to which both the HOA and the buyers agreed, and using the open processes for changing boards or rules, is a much more positive and constructive approach.


 

 

Here is the text of the original article on which I was commenting:

Tiki hut prompts homeowners association lawsuit

Lily Leung

The Arizona Republic, Sept. 13, 2007 12:00 AM

What was supposed to be a fun purchase to spruce up a bare backyard has become a costly legal burden for Surprise resident Chuck Harman, so he is taking his battle with his HOA to another arena: the Arizona Legislature.

Harman's homeowners association at the Greer Ranch South development in the far West Valley has slapped him with a $35,000 legal complaint, saying his $6,000 tiki hut is out of character with the rest of the gated community.

After investing $15,000 out of his own pocket to hire a lawyer and having secured support from his neighbors, Harman, a retired army captain, is seeking help from his local representative, state Sen. Robert Blendu, R-Litchfield Park. He plans to meet with the lawmaker before attending a Sept. 21 preliminary status hearing on his case.

"If I don't do this, who will?" Harman said. "I can see how (homeowners) can cave in. But I'm willing to go all the way."

Phoenix-based Associated Asset Management, which manages the gated community's HOA, found Harman's 8-foot-tall tiki structure violated several codes.

According to letters from AAM to Harman, the following problems were cited: The tiki hut is taller than the home's privacy wall, and the thatched roof and pillars do not match the color of Harman's home.

The conflict dates to January 2006, when Harman installed the tiki hut. Four months later, his HOA demanded that he take it down because he had failed to obtain a permit for the structure.

He admitted he was wrong to install the hut without permission, and says he was willing to attend an appeals hearing and pay the $500 association fine. However, the HOA never gave him his hearing and he was never fined, he said.

In the course of a year, the association continued to ask Harman to take the structure down, and the legal fine has now reached $35,000.

"I don't believe there has been a due process," Harman said. "This is a fight of intimidation."

State Sen. Chuck Gray, R-Mesa, who authored legislation to make it easier for homeowners to remove oppressive HOA members, said it sounded like Harman's HOA was "being unreasonable by not settling the matter in an amicable fashion."

In his Senate experience, Gray said, he has found many homeowners-association lawyers using small-claims disputes as "profit centers," where "they find extraordinary means to fine and charge the homeowner with different lawyer fees and costs to create a large money stream."

Gray also pointed out the tendency to take these disputes to Superior Court, where both parties are required to be represented by a lawyer. Ultimately, homeowners foot legal bills on both ends: they must pay for their own lawyer, and in the end, their homeowners' fees go up to pay for HOA legal counsel.

"That's how these HOA management companies make their living," Gray said.

Attorney Roger Wood of Carpenter Hazlewood in Tempe is representing the board of directors at Greer Ranch South Homeowners Association, which has been advised not to comment on the pending lawsuit, Wood said.

But the management company did release the following statement: "The structure was not approved before its installation. The structure is too tall and out of character with the architecture at Greer Ranch South. The association's lawsuit seeks an order requiring Mr. Harman, a non-resident, to cure his violation of the recorded, contractual deed restrictions."

Meanwhile, Harman has been seeking neighborly support to make his case. Last week, he got five neighbors to sign a petition saying they have no problem with the tiki hut.

The petition reads: "As the homeowners most directly affected by the tiki hut/palapas, we support Mr. Harman's efforts to have the current structure approved and remain intact as it currently exists. The structure itself is not objectionable in any way, and we find it to be aesthetically acceptable."

Alina Bucur, who lives across the street from Harman, was one of the neighbors who signed the petition.

"To me, it's not even noticeable," Bucur said. "I'd love to get one for myself, even. There's nothing wrong with it."

As an experiment, Harman submitted his tiki-hut plan to Copper Canyon Ranch, another Surprise development where he has property. Within 45 days, the HOA at that community approved the hut and asked only that the height be reduced by 16 inches.

Harman believes the heart of the problem is "an overzealous management company."

Within the past two years, members of the gated community have had three community managers through AAM, Harman said.

The election of new HOA board members will be in October, and Harman said he plans to run.

"I know I made a mistake (not getting permission)," he said. "But no one wants to move into a community where Big Brother is looking over their shoulder when they do something wrong."


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