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Legislative Update #12
2/27/2022
This week’s newsletter will focus on two things the need for support for HB-2275 Condo Terminations, that will be heard in the Senate Commerce Committee on Wednesday at 2:00PM, and on the significance and danger to all homeowners if HB-2131 artificial turf ban; prohibition, is allowed to pass.
HB-2275 will required that 100% of all condo owners approve any attempt to terminate and sell the Condominium complex. Current law allows an association to take title to all property (including individual units of owners that did not vote for termination), if only 80% of all unit owners agree to terminate the condo. Without calling this act eminent domain takeover of private property by a corporate entity, which would be unconstitutional, this is in fact exactly what the current law allows. This bill is strongly opposed by CAI and several other organization with strong paid lobbying firms representing them, we need to show our overwhelming support for this bill to hope to survive that gauntlet.
Immediate Action Required
HB-2131 Artificial Turf Ban, was drafted to prevent associations from restricting the use of artificial turf. As originally drafted, I supported that bill. But CAI knowing that if they approached Rep. Kavanagh with a demand for re-write he would insist on my inclusion in that dialog, instead went to another representative on the committee and gave him a proposed strike everything amendment. The sponsor was then forced to accept that amendment or risk failure in his own committee. That amendment will be a disaster to all homeowners far beyond the single issue of artificial turf. This bill will establish, that association have the right to create rules relative to design control and landscape control that are not specifically restricted in the declaration (CC&R’s).
While all of you have experienced this in every possible fashion in your own communities thru your ARC committee standards and approval process, as it is the premise that all HOA attorneys and community managers advise your boards. That is a total lie. Common Law as compiled in the Restatement of Law Property Servitudes clearly states the opposite. Section 6.9 of that document on Design Control powers states the following:
“Except to the extent provided by statute or authorized by the declaration, a common-interest community may not impose restrictions on the structures or land-scaping that may be placed on individually owned property, or on the design, colors, or plants that may be used”
Absent any guidance applied to a situation by state statute, the courts will look to Common law and the “Restatement” for guidance on any issue before them. Before this bill there is no guidance on the power to create rules on design control in statute and because of that The Restatement would apply. With this bill the guidance will apply and be used for every issue that will ever come up before a court relative to an HOA’s abuse of their design control power.
If you believe that CAI cares a minute about artificial turf and drafted this amendment to be reasonable and strictly limited to that subject matter you are absolutely wrong. They care about establishing a foot hold in law that will allow all the HOA attorneys to provide credible arguments in support of their clients abuse of power and unreasonable use of rules and regulations on private property. This bill is a big deal and cannot be allowed to become law in its current state.
Based on my testimony before his committee on this bill. the sponsor offered a floor amendment dealing with some aspect of the bill but did not address the fundamental problem because he does not understand the impact. We have exchanged several emails on the bill, but he still does not get my concern, and he threatened me that if I try and kill this bill in the Senate, he will never talk to me about legislation in the future. I told him that I and we can only support this bill if he offers a small amendment to the bill for the Senate Government committee. The bill as approved by the house is attached here HB-2131 Engrossed The draft of my proposed amendment is here Proposed amendment to HB-2131.
If any of you ever hope to have any say in what you can do with your private property YOU MUST GET INVOLVED to change or defeat this bill, I cannot do this alone.
Immediate Actions Required
- If you have not posted a position in opposition of this bill on the AZLEG.gov website than please do so or if you had previously posted a position in favor of this bill based on the initial draft, please change this position to “oppose” using the RTS system “My bill positions” menu option.
- Write Representative Kavanagh asking that he consider the proposed amendment to HB-2131 offered by the Arizona Homeowners Coalition. The address is jkavanagh@azleg.gov.
- Write Senator Townsend asking that she not include HB-2131 on the agenda for her committee unless an amendment drafted by the Arizona Homeowners Coalition is included for consideration. The address is ktownsend@azleg.gov .
I apologize for the length of this update, but the issues are significant and complex to understand.
Thank You
Dennis
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Our Mission:
To advocate, protect, support and advance the best interests and rights of all Common Interest Community members.
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