Private property rights practically nonexistent in this AZ HOA

By Deborah Goonan, Independent American Communities

Golfer

Here at IAC, I strive to get behind the brief news clips you see on TV or the internet. I want readers to understand what’s truly behind all the conflict in Common Interest, Association-Governed Housing.

Today’ featured community is Cottonfields HOA in Laveen, Arizona. Southern Ridge Golf Course, like many golf courses across the U.S., is trying to save money by selling off part of its land. In this case, a former driving range and entry area to the golf course, encroaching on three parcels of Cottonfields, are no longer in use.

According to ABC15 in Arizona, the parcels have been sold to a private homeowner in Cottonfields. Not only that, but Laveen’s council recently voted in favor of changing zoning from golf course to commercial. So now homeowners adjacent to those lots may soon see a church or convenience store instead of open space.

Homeowners argue that there should have been a membership vote before board members made a deal with the golf course owner. They say owners should have been entitled to a two-thirds vote on the matter. Board members have gone on record saying that getting that many owners to vote on the matter, one way or the other, would not be feasible. They say an attorney advised the board to make the decision without a membership vote.

Here’s the report:

Former HOA board member says community vote ‘not feasible’

Courtney Holmes, Joe Ducey
8:10 PM, Jan 9, 2017

LAVEEN, AZ –
The fight over pieces of valuable land in Laveen has had neighbors in the Cottonfields Community at odds with one another for years.

The community shares land and rules with the Southern Ridge Golf Course. In 2011, the HOA board took actions to redefine three parcels of land that surround their subdivision, including what used to be the driving range and the front entrance. It’s a move that would pave the way for the golf course owner to commercially develop the land.

But some homeowners say that the Board had no right to redefine anything without a majority two-thirds vote of the homeowners–per the governing documents.

Battle lines were drawn and neighbors have been fighting one another ever since.

Neighbors contacted Let Joe Know in 2015. At the time, Cottonfields Community Association sued former golf course owner Jaguar Premium Properties LLC. The association asked a judge to decide whether the community needed to follow the governing documents and have a vote about the change. Some homeowners were frightened that the board was ready to settle the lawsuit without getting the question answered.

They were right. In a settlement later that year the board agreed to drop that lawsuit and any future lawsuits to let development move forward. Jaguar has since sold the golf course to a homeowner in the Cottonfields Community.

Read more (VIDEO):

http://www.abc15.com/news/let-joe-know/former-hoa-board-member-says-community-vote-not-feasible

 

Here’s a previous report from 2015. At that time, the HOA board had decided to drop the lawsuit over the fate of golf course, then owned by Jaguar Premium Properties LLP. Some of the owners began a petition for a recall, but board members weren’t too happy about that and began to intimidate owners collecting proxies for a recall. Homeowners even caught the harassment on camera.

Neighbors accuse HOA board of intimidation in Laveen

Courtney Holmes , Joe Ducey
9:54 PM, Jul 9, 2015

Read here (VIDEO):

http://www.abc15.com/news/let-joe-know/neighbors-accuse-hoa-board-of-intimidation-in-laveen

 

I was curious. What do the Covenants, Conditions & Restrictions (CC&Rs) say about the issue? So I went to Cottonfields HOA website to see what I could find out.

Here are some screen shots from CC&Rs, marked as recorded on December 11, 2001.

 

Section 2.1 spells out the Owners’ easement. This is where the homeowners get the idea that a 2/3 vote is required to dedicate or transfer common property.

img_1191

 

But, hold on. Here’s a contrary provision, 7.9, Reciprocal Easement Agreement, which overrides all other contrary provisions.

7.9.1 says that “no consent of approval of Members or any other Person is required.”

The devil is in the details!

img_1192

 

Furthermore, if you read section 12.2, Disclaimers Regarding Golf Course Property, it basically says that the Association, the Declarant (Developer), and the golf course owner make no guarantees about the future condition or use of the property!

As the owner says in the video, it seems they are completely out of luck.

If this is a true and correct copy of the CC&Rs, it’s clear that these provisions were in place before the land dispute began in 2011.

 

img_1193

 

What is the lesson learned?

It’s critical to read all governing documents before you take title to private property subject to CC&Rs or Association membership. There are usually dozens of contrary and potentially harmful provisions such as these peppered throughout the documents.

Many of the provisions of this so-called “contract” with owners or members are deliberately designed to limit your private property rights to the advantage of the Declarant (Developer), the HOA, and any related third party affiliates (in this case, the owner of Southern Ridge Golf Course).

I’ll bet that critically important fact was not disclosed to 99% of buyers prior to close of sale. Just a hunch.

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2 Replies to “Private property rights practically nonexistent in this AZ HOA”

  1. In my Arizona HOA, I recently encountered a similar conflict within the CCR’s. Section 3 of our CCRs is very explicit on restrictions for storage sheds – must be lower than the adjacent wall and any approval of a shed by the architectural committee must adhere to this height requirement. Section 4 of the same CCRs, in one line, states the architectural committee may “ignore” (issue a variance) regarding Section 3 for a shed or any other use of property in Section 3 if they feel it is “overly restrictive.” Thus 3 people may approve uses of property, ignoring the CCRs, effecting a de facto rewrite of the CCRs without notification to homeowners or following the requirements for an official vote to change the CCRs. Yes, homeowners need to be aware of such provisions. I am working on various methods for addressing this in our HOA and will be investigating sate legislative interest in this.

    Like

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