In this case dealing with Gainey Ranch and painting home and door with an approved color, as stated in the Rules, ALJ would not permit homeowner to raise the issue of discrimination against the homeowner. Other homes were painted with colors not approved by the HOA. Homeowner had to explicitly show that discrimination was not allowed by governing documents. Furthermore, ALJ said that the discrimination issue was not raised in the petition with an explicit reference to the governing document provision, although supporting documents contain such statements. “Violates due process” if homeowner did not follow the procedures.
IMPORTANT:
Since the HOA does not have to be fair, just or equitable in its decisions and actions, in the absence of any provisions in the govening documents or statutes, the ALJ cannot deal with justice as we the people expect, and is provided under our system of jurisprudence. Why? Because in our efforts to get this important due process procedures for homeowners, this strict application of jursidiction had to be accepted. All the while, the opposition, the CAI attorneys, well knew that the Restatement of Laws – Property governs HOAs in the absence of state laws. Yet the homeowner’s recourse to this common law is precluded by the OAH enabling statute. This gross injstice must be corrected!
In this master planned community, the sub-HOA acceptance of the approved color was rejected by the master-HOA board. Was this before or after the painting? If the master rule was in place, doesn’t the homeowner have a claim of equitable relief because he relied on the sub-board in good faith, and it was the error of the board not the homeowner. If after the fact, this is another ex post facto amendment. In fact, the evidence showed a misinterpretation of the rules by the sub-HOA, and an eventual compliance to avoid litigation between the 2 HOAs.
The witness was a board member testifying against HOA. The attorney said that the witness was violating his fiduciary duty to the board.
The HOA attorneys have managed to turn the OAH process into a strict judicial process, away from “let’s sit down and talk this over”. HOA attorney was aggressive and intimidating, treating the witness in a hostile manner. The HOA attorney, in a haughty manner, was intimidating and condescending to ALJ. Attorney asked the witness what he advised the homeowner. Claim of attorney-client privilege was rejected. BEWARE. HOA attorney thus showed bias by witness. No kidding!
Advocates are fighting to level the litigation playing field, and SB1162 is one such issue. Where is the justice?? It’s oblivious that the HOA was acting unreasonably with respect to the issue, and was seeking a punishment against the homeowner because he didn’t first ask, “May I?” — get prior approval. RULES is RULES, otherwise we have chaos, so said the HOA attorney. If it were raised, the HOA attorney would have replied that it IS reasonable to enforce the rules, that’s the job of the HOA. Homeowners just can’t win.
Arizona HOA Case Reviews 