Monday, May 21, 2012

Common Areas, Common Problems

Common area access revocation is a tool used by the HOA for CC&R enforcement. For instance, if a homeowner is not paying assessments, the HOA can revoke the homeowner's right to access common areas, which are maintained by assessment payments. This makes sense. If you don't pay for the pool maintenance, you shouldn't have the right to swim. But, what about other "violations"?  Should your property rights be stripped away from you because you have a weed in your yard?  Because you left the trash out too long?  Because your paint is chipping?  Or, because you disagree with the HOA Board's position?

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.