Community – that wonderful word that conjures up images of people who have interests and ideals in common, people who live in a neighborhood where they become friends and family. It takes a while to build a community, to build trust and to get to know each other, to learn to overlook the petty and silly stuff and focus on the good things about the “community”.
But in this fast paced, modern world of ours where “community” is manufactured, an outsider is hired to ensure uniformity and compliance and tolerance, acceptance and individuality are frowned upon, the only things owners have in common appear to be the duty to pay whatever they are ordered to pay and to “obey the orders”. In these artificial “communities”, the descriptive words that more readily come to mind are “war zones”. When the problems are petty and ridiculous, as they often are, a more sensible approach to dealing with them may be some form of adult supervision.
Adam Buck joins us On The Commons this week. Adam is an attorney in Scottsdale, Arizona who has started a new company called Homeowner Legal Services. Adam says he has represented both homeowners and associations in disputes that have gone to court. His new company is a membership based dispute resolution venue. The association signs on and agrees in the event of a conflict, to mandatory, binding arbitration. This membership extends to the members. Everyone agrees to appear before a retired judge and abide by his or her decision. We talk to Adam about the details of how this would work. We also discuss time lines. For some of the pettier and sillier “disputes” where “common sense” might suffice for a reasonable resolution, this may well be one answer.
The views and opinions expressed in this interview are those of the guests and do not necessarily reflect the official policy or position of On The Commons.
Opinion: It is my belief that much of what goes on in associations is petty and stupid. However, there are some very serious problems in associations that need to go beyond “common sense” solutions and set legal precedent for how to protect the rights and property of the owners. In these instances binding arbitration should never be used. Shu.
I listened to this podcast twice, visted the HLS website, and read through the procedural rules.
Personally, I would opposed amending HOA CC&Rs to require this or any other arbitration program. I believe Arbitration or any other form of Alternative Dispute Resolution (ADR) should always be optional.
It seems to me that rules prohibiting written motions (but permitting only oral motions at the hearing) could theoretically be instituted as part of a designation Homeonwers’ Court, set up as part of a state’s judicial system — with the costs supported by taxpayers.
I can only see using ADR for certain minor types of disputes, such as ones that arise over aesthetic issues and architectural standards, based on differing interpretations of the governing documents. Ditto for minor disputes over maintenance standards for either the HOA or the owner, so long as the lack of maintenance does not result in a threat to health and safety. (exmple – a dispute over the height at which your back yard hedge is maintained is aesthetic – but if the hedge is located in the front yard and impedes clear view of an intersection, that rises to the level of a threat to safety)
I believe it is the duty of the state to adjudicate and/or intervene in serious disputes involving claims of discrimination; failure of a property owner to meet local health and safety code requirements (such as accumulating trash or debris in the yard); failure of the HOA to maintain the common areas and elements to a standard that meets local code requirements; failure of the HOA to provide access to records or meetings as required by state law; failure of the HOA to conduct fair elections, recalls, or membership votes (such as amending governing documents); disputes over fines, collections, filing of liens, and foreclosure; disputes involving termination procedures.