Bill Text: AZ HB2126 | 2024 | Fifty-sixth Legislature 2nd Regular | Introduced
Bill Title: Homeowners' associations; financial approvals; members
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2024-01-16 - House read second time [HB2126 Detail]
Download: Arizona-2024-HB2126-Introduced.html
PREFILED JAN 04 2024
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REFERENCE TITLE: homeowners' associations; financial approvals; members |
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State of Arizona House of Representatives Fifty-sixth Legislature Second Regular Session 2024
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HB 2126 |
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Introduced by Representative Parker B
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An Act
amending sections 33-1202, 33-1215, 33-1243, 33-1245 and 33-1803, Arizona Revised Statutes; relating to condominiums and planned communities.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 33-1202, Arizona Revised Statutes, is amended to read:
33-1202. Definitions
In the condominium documents, unless specifically provided otherwise or the context otherwise requires, and in this chapter:
1. "Affiliate of a declarant" means any person who controls, is controlled by or is under common control with a declarant.
2. "Allocated interests" means the undivided interests in the common elements, the common expense liability and votes in the association allocated to each unit.
3. "Articles of incorporation" means the instrument by which an incorporated association or unit owners' association is formed and organized under this state's corporate statutes.
4. "Association" or "unit owners' association" means the unit owners' association organized under section 33-1241.
5. "Board of directors" means the body, regardless of its name, designated in the declaration and given general management powers to act on behalf of the association.
6. "Bylaws" means the bylaws required by section 33-1246.
7. "Common elements" means all portions of a condominium other than the units.
8. "Common expense liability" means the liability for common expenses allocated to each unit pursuant to section 33-1217.
9. "Common expenses" means expenditures made by or financial liabilities of the association, together with any allocations to reserves.
10. "Condominium" means real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of the separate portions. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.
11. "Condominium documents" means the declaration, bylaws, articles of incorporation, if any, and rules, if any.
12. "Declarant" means any person or group of persons who reserves, is granted or succeeds to any special declarant right.
13. "Declaration" means any instruments, however denominated, that create a condominium and any amendments to those instruments.
14. "Development rights" means any right or combination of rights reserved by or granted to a declarant in the declaration to do any of the following:
(a) Add real estate to a condominium.
(b) Create easements, units, common elements or limited common elements within a condominium.
(c) Subdivide units, convert units into common elements or convert common elements into units.
(d) Withdraw real estate from a condominium.
(e) Make the condominium part of a larger condominium or planned community.
(f) Amend the declaration during any period of declarant control, pursuant to section 33-1243, subsection E F, to comply with applicable law or to correct any error or inconsistency in the declaration, if the amendment does not adversely affect the rights of any unit owner.
(g) Amend the declaration during any period of declarant control, pursuant to section 33-1243, subsection E F, to comply with the rules or guidelines, in effect from time to time, of any governmental or quasi-governmental entity or federal corporation guaranteeing or insuring mortgage loans or governing transactions involving mortgage instruments.
15. "Identifying number" means a symbol or address that identifies one unit in a condominium.
16. "Leasehold condominium" means a condominium in which all or a portion of the real estate is subject to a lease the expiration or termination of which will terminate the condominium or reduce its size.
17. "Limited common element" means a portion of the common elements specifically designated as a limited common element in the declaration and allocated by the declaration or by operation of section 33-1212, paragraph 2 or 4 for the exclusive use of one or more but fewer than all of the units.
18. "Person" means:
(a) A natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity.
(b) In the case of a subdivision trust, as defined in section 6-801, person means the beneficiary of the trust who holds the right to subdivide, develop or sell the real estate rather than the trust or trustee.
19. "Real estate":
(a) Means any legal, equitable, leasehold or other estate or interest in, over or under land, including structures, fixtures and other improvements and interests which by custom, usage or law pass with a conveyance of land though not described in the contract of sale or instrument of conveyance. Real estate
(b) Includes parcels with or without upper or lower boundaries and spaces that may be filled with air or water.
20. "Rules" means the provisions, if any, adopted pursuant to the declaration or bylaws governing maintenance and use of the units and common elements.
21. "Special declarant rights" means any right or combination of rights reserved by or granted to a declarant in the declaration to do any of the following:
(a) Construct improvements provided for in the declaration.
(b) Exercise any development right.
(c) Maintain sales offices, management offices, signs advertising the condominium, and models.
(d) Use easements through the common elements for the purpose of making improvements within the condominium or within real estate which that may be added to the condominium.
(e) Appoint or remove any officer of the association or any board member during any period of declarant control.
22. "Unit" means a portion of the condominium designated for separate ownership or occupancy.
23. "Unit owner" means a declarant or other person who owns a unit or, unless otherwise provided in the lease, a lessee of a unit in a leasehold condominium whose lease expires simultaneously with any lease the expiration or termination of which will remove the unit from the condominium but does not include a person having an interest in a unit solely as security for an obligation. In the case of a contract for conveyance, as defined in section 33-741, of real property, unit owner means the purchaser of the unit.
Sec. 2. Section 33-1215, Arizona Revised Statutes, is amended to read:
33-1215. Contents of declaration
A. The declaration shall contain:
1. The name of the condominium, which shall include the word "condominium" or be followed by the words "a condominium", and the name of the association.
2. The name of every county in which any portion of the condominium is located.
3. A legal description of the real estate included in the condominium.
4. A description of the boundaries of each unit created by the declaration, including each unit's identifying number.
5. A description of any limited common elements, other than those specified in section 33-1212, paragraphs 2 and 4, but the declaration shall contain a description of any porches, balconies, patios and entryways, if any, as provided in section 33-1219, subsection B, paragraph 11.
6. A description of any development rights and other special declarant rights, together with a legal description of the real estate to which each of those rights applies, any time limit within which each of those rights must be exercised and any other conditions or limitations under which the rights described in this paragraph may be exercised or will lapse.
7. An allocation to each unit of the allocated interests in the manner described in section 33-1217.
8. Any restrictions on use, occupancy and alienation of the units.
9. All matters required by sections 33-1216, 33-1217, 33-1218, 33-1219 and 33-1226 and section 33-1243, subsection E F.
10. A statement that the assessment obligation of the unit owner under section 33-1255 is secured by a lien on the owner's unit in favor of the association pursuant to section 33-1256.
11. If the condominium is a conversion from multifamily rental to condominiums, a statement containing all of the following:
(a) A statement that the property is a conversion from multifamily rental to condominiums.
(b) The date original construction was completed.
(c) The name and address of the original owner, builder, developer and general contractor as shown on the applicable city, town or county building permit.
(d) The name and address of each subsequent owner as determined by a search of the county recorder's records in the county in which the property is located.
(e) The subdivider's agreement to provide the following information on request:
(i) The name and address of any builder, developer, general contractor, subcontractor, architect and engineer who designed or made improvements to the property immediately before the first condominium was sold.
(ii) A specific description of all improvements made.
B. If a city, town or county is unable to produce a building permit as required in subsection A, paragraph 11, subdivision (c) of this section, the subdivider shall submit a letter from the applicable city, town or county stating that the information required by subsection A, paragraph 11, subdivision (c) of this section is not available.
C. The declaration may contain any other matters the declarant deems appropriate.
Sec. 3. Section 33-1243, Arizona Revised Statutes, is amended to read:
33-1243. Board of directors and officers; conflict; powers; limitations; removal; annual audit; applicability
A. Except as provided in the declaration, the bylaws, subsection B of this section or other provisions of this chapter, the board of directors may act in all instances on behalf of the association.
B. The board of directors shall not act on behalf of the association to amend the declaration, terminate the condominium, elect members of the board of directors or determine the qualifications, powers and duties or terms of office of board of directors members. Except as provided in subsection H I of this section, the board of directors may fill vacancies in its membership for the unexpired portion of any term.
C. If any contract, decision or other action for compensation taken by or on behalf of the board of directors would benefit any member of the board of directors or any person who is a parent, grandparent, spouse, child or sibling of a member of the board of directors or a parent or spouse of any of those persons, that member of the board of directors shall declare a conflict of interest for that issue. The member shall declare the conflict in an open meeting of the board before the board discusses or takes action on that issue and that member may then vote on that issue. Any contract entered into in violation of this subsection is void and unenforceable.
D. Except as provided in the declaration, Notwithstanding any provision of the CONDOMINIUM documents, within thirty days after adoption of any proposed budget for the condominium, the board of directors shall provide a summary of the budget to all the unit owners. Unless the board of directors is expressly authorized in the declaration to adopt and amend budgets from time to time, Any budget or amendment shall be ratified by the unit owners in accordance with the procedures set forth in this subsection. If ratification is required, The board of directors shall set a date and provide notice pursuant to section 33-1248 for a special meeting of the unit owners to consider ratification of the budget not fewer than fourteen or more than thirty days after mailing of the summary. Unless at that meeting a majority of all the unit owners or any larger vote specified in the declaration rejects the budget, the budget is ratified, The proposed budget is ratified if a MAJORITY of all unit owners voting in person or by ABSENTEE ballot vote to approve the budget as presented, whether or not a quorum is present. If the proposed budget is rejected not approved, the periodic budget last ratified by the unit owners shall be continued until such time as the unit owners ratify a subsequent budget proposed by the board of directors. any budget approved by the board of directors before the effective date of this amendment to this section is deemed to be approved by the unit OWNERS.
E. Notwithstanding any provision of the condominium documents, if the board of directors votes to propose a special assessment or to secure financing of more than one year's duration for any reason, that special assessment or financing must first be approved by the affirmative vote of a majority of all of the unit owners or by any larger percentage specified in the declaration or bylaws.
E. F. The declaration may provide for a period of declarant control of the association, during which period a declarant or persons designated by the declarant may appoint and remove the officers and members of the board of directors. Regardless of the period provided in the declaration, a period of declarant control terminates not later than the earlier of:
1. Ninety days after conveyance of seventy-five percent of the units that may be created to unit owners other than a declarant.
2. Four years after all declarants have ceased to offer units for sale in the ordinary course of business.
F. G. A declarant may voluntarily surrender the right to appoint and remove officers and members of the board of directors before termination of the period prescribed in subsection E F of this section, but in that event the declarant may require, for the duration of the period of declarant control, that specified actions of the association or board of directors, as described in a recorded instrument executed by the declarant, be approved by the declarant before they become effective.
G. H. Not later than the termination of any period of declarant control the unit owners shall elect a board of directors of at least three members, at least a majority of whom must be unit owners. The board of directors shall elect the officers. The board members and officers shall take office on election.
H. I. Notwithstanding any provision of the declaration or bylaws to the contrary, all of the following apply to a meeting at which a member of the board of directors, other than a member appointed by the declarant, is proposed to be removed from the board of directors:
1. The unit owners who are eligible to vote at the time of the meeting may remove any member of the board of directors, other than a member appointed by the declarant, by a majority vote of those voting on the matter at a meeting of the unit owners.
2. The meeting of the unit owners shall be called pursuant to this section and action may be taken only if a quorum is present.
3. The unit owners may remove any member of the board of directors with or without cause, other than a member appointed by the declarant.
4. For purposes of calling for removal of a member of the board of directors, other than a member appointed by the declarant, the following apply:
(a) In an association with one thousand or fewer members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least twenty-five percent of the votes in the association or by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least one hundred votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association as prescribed by section 33-1248, subsection B.
(b) Notwithstanding section 33-1248, subsection B, in an association with more than one thousand members, on receipt of a petition that calls for removal of a member of the board of directors and that is signed by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least ten percent of the votes in the association or by the number of persons who are eligible to vote in the association at the time the person signs the petition equal to at least one thousand votes in the association, whichever is less, the board shall call and provide written notice of a special meeting of the association. The board shall provide written notice of a special meeting as prescribed by section 33-1248, subsection B.
(c) The special meeting shall be called, noticed and held within thirty days after receipt of the petition.
(d) If all of the requirements of this subsection for calling a special meeting are met and the board of directors fails to call, notice and hold a special meeting within thirty days after receipt of the petition, the members of the board of directors are deemed removed from office effective at midnight of the thirty-first day.
(e) For purposes of a special meeting called pursuant to this subsection, a quorum is present if the number of owners who are eligible to vote in the association at the time the person attends the meeting equal to at least twenty percent of the votes of the association or the number of persons who are eligible to vote in the association at the time the person attends the meeting equal to at least one thousand votes, whichever is less, is present at the meeting in person or as otherwise allowed by law.
(f) If a civil action is filed regarding the removal of a board member, the prevailing party in the civil action shall be awarded its reasonable attorney fees and costs.
(g) The board of directors shall retain all documents and other records relating to the proposed removal of the member of the board of directors and any election or other action taken for that director's replacement for at least one year after the date of the special meeting and shall allow members to inspect those documents and records pursuant to section 33-1258.
(h) A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.
5. On removal of at least one but fewer than a majority of the members of the board of directors at a special meeting of the membership called pursuant to this subsection, the vacancies shall be filled as provided in the condominium documents.
6. On removal of a majority of the members of the board of directors at a special meeting of the membership called pursuant to this subsection, or if the condominium documents do not provide a method for filling board vacancies, the association shall hold an election for the replacement of the removed directors at a separate meeting of the members of the association that is held not later than thirty days after the meeting at which the members of the board of directors were removed.
7. A member of the board of directors who is removed pursuant to this subsection is not eligible to serve on the board of directors again until after the expiration of the removed board member's term of office, unless the condominium documents specifically provide for a longer period of ineligibility.
I. J. For an association in which board members are elected from separately designated voting districts, a member of the board of directors, other than a member appointed by the declarant, may be removed only by a vote of the members from that voting district, and only the members from that voting district are eligible to vote on the matter or be counted for purposes of determining a quorum.
J. K. Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association. The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available on request to the unit owners within thirty days after its completion.
K. L. This section does not apply to timeshare plans or associations, or the period of declarant control under timeshare instruments, that are subject to chapter 20 of this title.
Sec. 4. Section 33-1245, Arizona Revised Statutes, is amended to read:
33-1245. Termination of contracts and leases of declarant; applicability
A. A contract for any of the following, if entered into before the board of directors elected by the unit owners pursuant to section 33-1243, subsection G H takes office, shall contain a provision in the contract that the contract may be terminated without penalty by the association at any time after the board of directors elected by the unit owners takes office:
1. Any management contract or employment contract.
2. Any other contract or lease between the association and a declarant or an affiliate of a declarant.
3. Any contract or lease that is not bona fide or was unconscionable to the unit owners at the time entered into under the circumstances then prevailing.
B. The board of directors shall notify the appropriate contractual party of the termination at least thirty days before termination.
C. This section does not apply to any lease if the termination of the lease would terminate the condominium or reduce its size.
D. If a contract covered by this section fails to contain the provisions required by subsection A of this section, the contract is voidable at the option of the association.
E. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.
Sec. 5. Section 33-1803, Arizona Revised Statutes, is amended to read:
33-1803. Assessment limitation; penalties; notice to member of violation
A. Unless limitations in the community documents would result in a lower limit for the common expense assessment, the association shall not impose a regular an annual and supplemental common expense assessment that is more than twenty percent greater than the aggregate of the two immediately preceding fiscal year's assessment years' assessments without the approval of the majority of the members of the association voting at an annual or special MEETING of the members called for that purpose. If the members approve an annual common expense assessment increase, that approved assessment becomes the BASELINE amount for purposes of the limitation prescribed by this subsection for future ASSESSMENTS, without consideration of the PREVIOUS year's assessment. Unless reserved to the members of the association, the board of directors may impose reasonable charges for the late payment of assessments. A payment by a member is deemed late if it is unpaid fifteen or more days after its due date, unless the community documents provide for a longer period. Charges for the late payment of assessments are limited to the greater of fifteen dollars $15 or ten percent of the amount of the unpaid assessment and may be imposed only after the association has provided notice that the assessment is overdue or provided notice that the assessment is considered overdue after a certain date. Any monies paid by the member for an unpaid assessment shall be applied first to the principal amount unpaid and then to the interest accrued.
B. Notwithstanding any provision of the community documents, if the board of directors votes to propose a special assessment or to secure financing of more than one year's duration for any reason, that special assessment or financing must first be approved by the affirmative vote of a majority of all of the members or by any larger percentage specified in the declaration or bylaws.
B. C. After notice and an opportunity to be heard, the board of directors may impose reasonable monetary penalties on members for violations of the declaration, bylaws and rules of the association. Notwithstanding any provision in the community documents, the board of directors shall not impose a charge for a late payment of a penalty that exceeds the greater of fifteen dollars or ten percent of the amount of the unpaid penalty. A payment is deemed late if it is unpaid fifteen or more days after its due date, unless the declaration, bylaws or rules of the association provide for a longer period. Any monies paid by a member for an unpaid penalty shall be applied first to the principal amount unpaid and then to the interest accrued. Notice pursuant to this subsection shall include information pertaining to the manner in which the penalty shall be enforced.
C. D. A member who receives a written notice that the condition of the property owned by the member is in violation of the community documents without regard to whether a monetary penalty is imposed by the notice may provide the association with a written response by sending the response by certified mail within twenty-one calendar days after the date of the notice. The response shall be sent to the address identified in the notice.
D. E. Within ten business days after receipt of the certified mail containing the response from the member, the association shall respond to the member with a written explanation regarding the notice that shall provide at least the following information unless previously provided in the notice of violation:
1. The provision of the community documents that has allegedly been violated.
2. The date of the violation or the date the violation was observed.
3. The first and last name of the person or persons who observed the violation.
4. The process the member must follow to contest the notice.
E. F. Unless the information required in subsection D E, paragraph 4 of this section is provided in the notice of violation, the association shall not proceed with any action to enforce the community documents, including the collection of attorney fees, before or during the time prescribed by subsection D E of this section regarding the exchange of information between the association and the member and shall give the member written notice of the member's option to petition for an administrative hearing on the matter in the state real estate department pursuant to section 32-2199.01. At any time before or after completion of the exchange of information pursuant to this section, the member may petition for a hearing pursuant to section 32-2199.01 if the dispute is within the jurisdiction of the state real estate department as prescribed in section 32-2199.01.
