Is my HOA allowed to discriminate against me?

Let’s assume you live in a homeowner’s association.  You are concerned about increased criminal activity in your community.  You request that the association install additional lighting in the area near your home on your side of the association complex to deter criminal activity.  You later learn that the board for the association discussed your request but decided to ignore it to save association money.  Instead, the association installed additional lighting on the opposite end of the complex because that is the area where the board members reside.  The association further caused a special assessment to occur to pay for the lighting.  A few weeks after the additional lighting was installed near the board members’ homes, a burglary occurs at your home.  You are very upset by this incident and feel strongly that the additional lighting would have prevented the incident.  Do you have any legal recourse against your association for breach of duty of care or for selective enforcement of the governing documents?

It is a fair question.  Many people in Arizona live in a homeowner’s association.  The benefits of living in an association are widely extolled:  (1) a community well-maintained with lush landscape, (2) houses that visually complement one another with aesthetics fully preserved, (3) amenities such as a gym, playground, volleyball court, pool – all available to the members at their convenience, (4) community affairs well-run by a qualified and elected board of directors and (5) overall community standards – that are enshrined in the community’s governing documents – upheld and enforced by the board on a continual basis.  A well-run and managed HOA leads to the perseveration and enhancement of home values – the theory goes.

Of course, just like anything else involving human beings, associations are not immune from legal disputes.  In fact, legal disputes involving association or association members are quite common in Arizona.  One source of conflict stems from the inevitable politics that arise in HOAs:  the board of directors often has broad powers to manage the affairs of the association – i.e., determining levels of maintenance, improvement, reserves and assessments, and covenant enforcement.  The board of an association often has considerable discretionary powers in enforcing the governing documents.  The question is, are there any limits the law affords to these broad powers granted to an association?  And, if there are, what are they?

Under Arizona law, an association has duties to use ordinary care and prudence in managing the affairs of the community.  Further the association has an obligation to treat community members fairly, to act reasonably in the exercise of discretionary powers, and to provide members with reasonable access to information about association affairs.  A member who challenges an action of the association bears the burden of proving a breach of duty by the association.

In light of the above fact pattern, the association may be liable for breaching its duty to use ordinary care and prudence in managing the affairs of your community.  Further, the association may liable for treating members unfairly by ignoring your request to install additional lighting but then installing lighting on the opposite end of your association complex.

If you have questions, you can contact Ben Gottlieb at ben@mandglawgroup.com; or call 602-533-2840.