We have recently encountered several instances of
access revocation that demonstrate abuse of power, in our opinion. In one case,
the homeowner's access rights were revoked because he got in a verbal argument with
the property manager. In another case, the homeowners' rights were revoked
because it they were two years shy of the minimum age in the community, 55. In both
cases, all assessments were paid. In the "age" case, the Court recently granted an injunction forcing the HOA to allow the homeowners to enjoy their property rights associated with the common area. The HOA fought this issue so vigorously that we actually had to file for an injunction, which is an extraordinary remedy. Thankfully, it was granted. The "underage" homeowner, who is dying from cancer, can now enjoy the pool during the excessive heat of the Arizona summer. She can sit in the whirlpool to help her pain. She can attend ceramics classes with her mother. She can attend community dances with her husband. We didn't think this was too much to ask.
The law is almost non-existent on this topic.
There are general references in the Restatement of Servitudes, which Arizona
follows, to the HOA's reasonableness requirement. The Restatement explains the
HOA does have the right to revoke access, and that it is an effective
enforcement tool. The Restatement also warns against abuse, however, stating
that revocation must be reasonable under the circumstances. That is what we, as
attorneys, are left to deal with. What is "reasonable"? There is no
clear answer to that question and it necessarily means that every case must be
evaluated on its own facts.
We believe the law should be expanded in this
area. Reasonableness, yes, but what about some guidelines? Common area access
is crucial in many communities. In the hot Arizona summer, being banned from
utilizing the community pool is indeed a big deal. In a community where assessments are over
$1,000 per month, it matters if you can use the clubhouse or golf course. This is an extremely harsh penalty and should
only be utilized when appropriate and necessary.
We believe there are only two categories of
violations that could possibly provide grounds for common area access
revocation. First and most obviously, failure
to pay assessments. We believe it is
reasonable for the HOA to revoke access if the member is not paying. These two things tie together – you pay
assessments to enable the HOA to maintain and improve the common areas. On the other hand, there is no connection with
someone having a disagreeable house color, for instance, and the right to
access common areas.
Second, and perhaps a bit more difficult to
evaluate is the situation of unruly and disruptive common area access. If a member is constantly breaking glass in
the pool, or is intoxicated in the clubhouse and starting fights, we can
certainly understand the desire of the HOA to revoke access. This would definitely need to be a
case-by-case analysis, and should not occur unless the behavior is truly
egregious. The revocation should be
limited in duration, designed to bring the member into compliance such that
peace can be restored in the community upon the member’s return to the common
areas.
As the law stands now, there are no such
guidelines. Most CC&Rs allow
revocation for any “violation,” and some HOAs simply abuse that power. We are seeing this happen more frequently,
and are very concerned. We intend to
raise this issue with the Legislature, and encourage everyone to do the
same. A simple framework limiting this
power to certain situations, such as those described above, would at least be a
step in the right direction.
