Please read BEFORE FILING a petition with OAH.
As I wrote earlier, OAH is spending more time with pre-conference hearings and responding to HOA summary judgment motions. In the Esquire Village Petition, 11F-H1112004-BFS, the ALJ once again clarifies the role of OAH and the rules for subpoenas of documents. This move toward a more formalized process is necessary and benefits the homeowners who have filed 100% of the Petitions.
Much too often homeowners act as if they are at Starbucks having coffee or having a beer at a barbeque, and complaining about their HOA. This is not the judicial process, of which OAH is a more “relaxed” process. But OAH still must follow a basic set of procedural rules. And homeowners, to their benefit, must understand and follow these rules if they expect to get a favorable decision at OAH.
By statute OAH can only hear complaints relating to the statutes in Title 33, Chapters 9 and 16, and the HOA‘s governing documents. It cannot hear complaints involving Title 10, Corporations, nor common law violations as stated in the Restatement (Third) of Property: Servitudes. Sadly, that means, among others, that many of the more common abuses by HOAs cannot be heard by OAH — good faith and “prudent man” obligations of directors, ARS 10-3830, and invalid covenants due to violations of public policy or are arbitrary and capricious or are unreasonable. The Restatement of Servitudes, Sec. 3.1 is not within the jurisdiction of OAH.
In the Esquire Village Petition the homeowner sought the production of documents relating to issues not relevant to the nature of the complaint. As the ALJ wrote,
The parties are advised that this matter involves whether Respondent has appropriately acted in accordance with the laws and community document provisions cited in the Petition that was filed with the Department of Fire Building and Life Safety, namely, by issuing notice of violations for Petitioners’ displaying the Gadsden flag . . . .
However, in the request, the subpoena, the
Petitioner stated the reason for the subpoena request was to show: (i) selective treatment of homeowners; (ii) how Respondent fines homeowners; and (iii) how Respondent finds violations. . . . The issues of selective enforcement, how Respondent has determined violations by homeowners, and how fines have been generally assessed are not issues that fall within the scope of the hearing.
What the ALJ seems to be saying is that the subpoena is related to an arbitrary and capricious, or an unreasonable, decision by the HOA not to allow the Gadsden flag to be flown, and not on the right to fine the homeowner. OAH cannot hear such complaints.
( I am at a loss to understand why, if not, the Petition did not state a plain and straight-forward violation of ARS 33-1808(A)(5), which permits flying this flag as of July 2011. While there are 4 versions of this law which is very confusing as to just what the law is, flying the flag is contained in all of them. Only version 4 is effective as of 1/1/12.)
Restricting OAH to the Title 33 statutes placed a severe restriction on justice for homeowners, as the HOA attorneys who opposed the statutes and its constitutionality well know. We must demand that the Legislature amend the statutes to include Title 10, nonprofit corporations, and the Restatement of Servitudes with its very important Section 3.1, Validity of Covenants and Chapter 6, HOAs. These sections amount to some 33% of the Restatement.
Demand in the upcoming session, in January, that your legislators amend the OAH statutes accordingly.