This is OAH case 07F-H067009-BFS where HOA wanted to buy commercial building using transfer fees to cover the purchase of the building, instead of using a special assessment with the restrictions on special assessments.
What are valid transfer fees?
APACHE WELLS HOMEOWNERS ASSOCIATION, INC v. DEPARTMENT OF FIRE, BUILDING AND LIFE SAFETY; WALTER A. STROMME and JUDITH A. STROMME, Case No.: LC2007-000189
This Appeal is about whether the Department of Fire, Building, and Life Safety (the “Department”) abused its discretion and acted arbitrarily and capriciously by disregarding controlling statutes, law, and provisions of governing documents to hold that Apache Well’s decision to increase its transfer fee was improper.
One of the main arguments made by the HOA in the appeal is summarized by:
In reaching its conclusion, the Department seeks to substitute its opinion of what amount of increase is justified for that of the Board of Directors of the Association, which is vested with that responsibility. That position is on dangerous ground and contrary to law.
Additionally, repeated reference was made to The Restatement Third, Prpoerty: Servitudes and Sec. 3.5 on transfer fees. The restatement, or common law, applies only in the absence of statute or case history. The HOA attorney did not cite Johnson v. The Pointe Community Assn., Inc., CA-CV 02-0160 (Ariz. App. Div. 1 2003) (court does not give deference to HOA board).
Stay tuned for developments on these issues of transfer fees and challenges to OAH decisions.
