Bill Text: AZ SB1495 | 2018 | Fifty-third Legislature 2nd Regular | Introduced
Bill Title: Condominiums; planned communities; meetings
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2018-02-14 - Senate GOV Committee action: Discussed and Held, voting: (0-0-0-0) [SB1495 Detail]
Download: Arizona-2018-SB1495-Introduced.html
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REFERENCE TITLE: condominiums; planned communities; meetings |
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State of Arizona Senate Fifty-third Legislature Second Regular Session 2018
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SB 1495 |
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Introduced by Senator Griffin
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AN ACT
amending sections 33-1202, 33-1227, 33-1243, 33-1248, 33‑1250, 33-1802, 33-1804, 33-1812, 33-1813 and 33-1817, 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. "Committee" means any smaller group of the board of directors that is charged with ARCHITECTURAL or landscape approval, long-term asset management planning or oversight, financial or budget planning and recommendations or common element or facility management or OVERSIGHT, in any combination and however denominated.
7. 8. "Common elements" means all portions of a condominium other than the units.
8. 9. "Common expense liability" means the liability for common expenses allocated to each unit pursuant to section 33‑1217.
9. 10. "Common expenses" means expenditures made by or financial liabilities of the association, together with any allocations to reserves.
10. 11. "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. 12. "Condominium documents" means the declaration, bylaws, articles of incorporation, if any, and rules, if any.
12. 13. "Declarant" means any person or group of persons who reserves, is granted or succeeds to any special declarant right.
13. 14. "Declaration" means any instruments, however denominated, that create a condominium and any amendments to those instruments.
14. 15. "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, 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, 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. 16. "Identifying number" means a symbol or address that identifies one unit in a condominium.
16. 17. "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. 18. "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.
19. "Meeting" means the assembly in person or through electronic or other technological MEANS or devices of a quorum of the members or the board of directors, as applicable, at which possible actions are proposed, discussed, deliberated or taken.
18. 20. "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or other legal or commercial entity. 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. 21. "Real estate" 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 includes parcels with or without upper or lower boundaries and spaces that may be filled with air or water.
20. 22. "Rules" means the provisions, if any, adopted pursuant to the declaration or bylaws governing maintenance and use of the units and common elements.
21. 23. "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. 24. "Unit" means a portion of the condominium designated for separate ownership or occupancy.
23. 25. "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 33-1227, Arizona Revised Statutes, is amended to read:
33-1227. Amendment of declaration
A. Except in cases of amendments that may be executed by a declarant under section 33‑1220, by the association under section 33‑1206 or section 33‑1216, subsection D, or by certain unit owners under section 33‑1218, subsection B, section 33‑1222, section 33‑1223 or section 33‑1228, subsection B, and except to the extent permitted or required by other provisions of this chapter, the declaration, including the plat, may be amended only by a vote of the unit owners to which at least sixty‑seven per cent percent of the votes in the association are allocated, or any larger majority the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use. The declaration may also provide that the consent of the declarant is required to an amendment during any period of declarant control pursuant to section 33‑1243. Within thirty days after the adoption of any amendment pursuant to this subsection, the association shall prepare, execute and record a written instrument setting forth the amendment.
B. Notwithstanding subsection a of this section and any provision in the condominium documents, during the period of declarant control, the declaration may not be amended to change the duration of or CONDITIONS for declarant CONTROL UNLESS the amendment is APPROVED by an affirmative vote of or written consent of at least sixty-six percent of the non-declarant owners.
B. C. An action to challenge the validity of an amendment adopted by the association pursuant to this section shall not be brought more than one year after the amendment is recorded.
C. D. An amendment to the declaration shall be recorded in each county in which any portion of the condominium is located and is effective only on recordation in the same manner as required for the declaration under section 33‑1211.
D. E. Except to the extent expressly permitted or required by other provisions of this chapter, an amendment shall not create or increase special declarant rights, increase the number of units or change the boundaries of any unit, the allocated interests of a unit or the uses to which any unit is restricted, in the absence of unanimous consent of the unit owners.
E. F. An amendment shall not terminate or decrease any unexpired development right, special declarant right or period of declarant control unless the declarant approves.
F. G. Amendments to the declaration required by this chapter to be executed by the association shall be executed on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.
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 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, 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 for a meeting of the unit owners to consider ratification of the budget not fewer than at least fourteen nor but not 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, whether or not a quorum is present. If the proposed budget is rejected, the periodic budget last ratified by the unit owners shall be continued continues until such time as the unit owners ratify a subsequent budget proposed by the board of directors.
E. 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 no 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. 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 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. 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. 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 as prescribed in section 33-1250, subsection E.
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) 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 prescribed in the condominium documents for a QUORUM of the members 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 permitted by law.
(e) 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.
(f) 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 permit members to inspect those documents and records pursuant to section 33‑1258.
(g) 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. 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. 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. 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 33-1248, Arizona Revised Statutes, is amended to read:
33-1248. Open meetings; damages; exceptions
A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the unit owners' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or a member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may audiotape or videotape those portions of the meetings of the board of directors and meetings of the members that are open. The board of directors of the association shall not require advance notice of the audiotaping or videotaping and may adopt reasonable rules governing the audiotaping or videotaping of open portions of the meetings of the board and the membership, but such the rules shall not preclude such audiotaping or videotaping by those attending, unless the board audiotapes or videotapes the meeting and makes the unedited audiotapes or videotapes available to members on request without restrictions on its their use as evidence in any dispute resolution process. Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following:
1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.
2. Pending or contemplated litigation.
3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.
4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.
5. Discussion of a unit owner's appeal of any violation cited or penalty imposed by the association except on request of the affected unit owner that the meeting be held in an open session.
B. Notwithstanding any provision in the condominium documents, all meetings of the unit owners' association and the board shall be held in this state. A meeting of the unit owners' association shall be held at least once each year. At a minimum, the annual meeting of the unit owners' association shall include the election of board members and any other business of the unit owners' association and shall provide the unit owners an opportunity to address the board of directors under individual time LIMITS as determined only by the unit owners present at the meeting. The board of directors shall also provide to the unit owners at the annual unit owner's meeting a financial summary REPORT to the association's previous ANNUAL expenses and income and a projection of operating and capital EXPENSES for the coming year. Special meetings of the unit owners' association may be called by the president, by a majority of the board of directors or by unit owners having at least twenty‑five percent of the votes in the association for an association with one thousand or fewer unit owners, or for an association with more than one thousand unit owners, ten percent of the votes in the association, or any lower percentage specified in the bylaws, of the votes in the association. Not fewer than at least ten nor but not more than fifty days in advance of any meeting of the unit owners, the secretary shall cause notice to be hand delivered or sent prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner. The notice of any meeting of the unit owners shall state the date, time and place of the meeting. The notice of any annual, regular or special meeting of the unit owners shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws, any changes in assessments that require approval of the unit owners and any proposal to remove a director or officer. The failure of any unit owner to receive actual notice of a meeting of the unit owners does not affect the validity of any action taken at that meeting.
C. Before entering into any closed portion of a meeting of the board of directors, or on notice of a meeting under subsection D of this section that will be closed, the board shall identify the paragraph under subsection A of this section that authorizes the board to close the meeting.
D. Notwithstanding any provision in the declaration, bylaws or other condominium documents, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to unit owners of meetings of the board of directors and an agenda for that meeting shall be given at least forty‑eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors. An affidavit of notice by an officer of the association is prima facie evidence that notice was given as prescribed by this section. Notice to unit owners of meetings of the board of directors is not required if emergency circumstances require action by the board before notice can be given. Any notice of a board meeting shall state the date, time and place of the meeting. The failure of any unit owner to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.
E. Notwithstanding any provision in the declaration, bylaws or other condominium documents, for meetings of the board of directors that are held after the termination of declarant control of the association, all of the following apply:
1. The agenda shall be available to all unit owners attending along with background or other information related to each item on the agenda. The board of directors also shall make available Draft minutes of previous meetings and financial reports to any unit owner who requests them before the meeting is held. In the alternative, the association may make the information available to unit owners by posting it on the association website at least twenty-four hours before the meeting is held.
2. An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty‑eight hours required for notice. At any emergency meeting called by the board of directors, the board of directors may act only on emergency matters. The minutes of the emergency meeting shall state the reason necessitating the emergency meeting. The minutes of the emergency meeting shall be read and approved at the next regularly scheduled meeting of the board of directors.
3. A quorum of the board of directors may meet by means of a telephone conference if a speakerphone is available in the meeting room that allows board members and unit owners to hear all parties who are speaking during the meeting.
4. Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.
F. It is the policy of this state as reflected in this section that all meetings of a condominium, whether meetings of the unit owners' association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the unit owners of the matters to be discussed or decided and to ensure that unit owners have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board or of directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.
G. An association that violates this section is liable in a civil action for damages of FIVE HUNDRED dollars for each VIOLATION.
G. H. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.
Sec. 5. Section 33-1250, Arizona Revised Statutes, is amended to read:
33-1250. Voting; proxies; absentee ballots; damages; applicability; definition
A. If only one of the multiple owners of a unit is present at a meeting of the association, the owner is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners unless the declaration expressly provides otherwise. There is majority agreement if any one of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.
B. During the period of declarant control, votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. The proxy is revoked on presentation of a later dated proxy executed by the same unit owner. A proxy terminates one year after its date, unless it specifies a shorter term or unless it states that it is coupled with an interest and is irrevocable.
C. Notwithstanding any provision in the condominium documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The unit owners may initiate or take action only while at an annual, REGULAR or special meeting of the unit owner's ASSOCIATION. Written consent as prescribed in section 10‑3704 may be used for actions of the unit owners only if a petition for written consent is PRESENTED and approved by the vote of the unit owners at an annual, regular or special meeting of the association. If the petition for written consent fails at the meeting, the petition may be circulated for signature to the unit owners who did not appear and vote at the meeting, along with draft minutes of the meeting at which the petition for written consent was considered and that contain a description of the arguments for and against the proposal. If the sum of the number of votes cast in person at the meeting in favor of the petition for written CONSENT, the number of votes cast by absentee ballot to approve the petition for written consent and the number of petition SIGNATURES is sufficient for approval to take action by written consent, the action by written consent may proceed.
D. The association shall provide for votes to be cast in person and by absentee ballot and, in addition place of absentee ballots, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery. Notwithstanding section 10‑3708 or the any provisions of the condominium documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:
1. The ballot shall set forth each proposed action.
2. The ballot shall provide an opportunity to vote for or against each proposed action.
3. The ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.
4. The ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted ballot to the member.
5. The ballot does not authorize another person to cast votes on behalf of the member.
6. The completed ballot shall contain the name, the address and either the actual or electronic signature of the person voting, except that if the condominium documents permit secret ballots, only the envelope shall contain the name, the address and either the actual or electronic signature of the voter.
7. Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for unit owner inspection for at least one year after completion of the election.
D. E. Votes cast by absentee ballot or other form of delivery, including the use of e-mail and fax delivery, are valid for the purpose of establishing a quorum.
E. F. Notwithstanding subsection C of this section, an association for a timeshare plan as defined in section 32‑2197 may permit votes by a proxy that is duly executed by a unit owner.
F. G. If the declaration requires that votes on specified matters affecting the condominium be cast by lessees rather than unit owners of leased units all of the following apply:
1. The provisions of subsections A and B of this section apply to lessees as if they were unit owners.
2. Unit owners who have leased their units to other persons shall not cast votes on those specified matters.
3. Lessees are entitled to notice of meetings, access to records and other rights respecting those matters as if they were unit owners. Unit owners shall also be given notice, in the manner prescribed in section 33‑1248, of all meetings at which lessees may be entitled to vote.
G. H. Unless the declaration provides otherwise, votes allocated to a unit owned by the association shall not be cast.
I. An association that violates this section is liable in a civil action for damages of FIVE HUNDRED dollars for each VIOLATION.
H. J. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.
I. K. For the purposes of this section, "period of declarant control" means the time during which the declarant or persons designated by the declarant may elect or appoint the members of the board of directors pursuant to the condominium documents or by virtue of superior voting power.
Sec. 6. Section 33-1802, Arizona Revised Statutes, is amended to read:
33-1802. Definitions
In this chapter and in the community documents, unless the context otherwise requires:
1. "Association" means a nonprofit corporation or unincorporated association of owners that is created pursuant to a declaration to own and operate portions of a planned community and that has the power under the declaration to assess association members to pay the costs and expenses incurred in the performance of the association's obligations under the declaration.
2. "Committee" means any smaller group of the board of directors that is charged with ARCHITECTURAL or landscape approval, long-term asset management planning or oversight, financial or budget planning and recommendations or common element or facility management or OVERSIGHT, in any combination and however denominated.
2. 3. "Community documents" means the declaration, bylaws, articles of incorporation, if any, and rules, if any.
3. 4. "Declaration" means any instruments, however denominated, that establish a planned community and any amendment to those instruments.
5. "Meeting" means the assembly in person or through electronic or other technological MEANS or devices of a quorum of the members or the board of directors, as applicable, at which possible actions are proposed, discussed, deliberated or taken.
4. 6. "Planned community" means a real estate development that includes real estate owned and operated by or real estate on which an easement to maintain roadways or a covenant to maintain roadways is held by a nonprofit corporation or unincorporated association of owners, that is created for the purpose of managing, maintaining or improving the property and in which the owners of separately owned lots, parcels or units are mandatory members and are required to pay assessments to the association for these purposes. Planned community does not include a timeshare plan or a timeshare association that is governed by chapter 20 of this title or a condominium that is governed by chapter 9 of this title.
Sec. 7. Section 33-1804, Arizona Revised Statutes, is amended to read:
33-1804. Open meetings; exceptions; damages
A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may audiotape or videotape those portions of the meetings of the board of directors and meetings of the members that are open. The board of directors of the association shall not require advance notice of the audiotaping or videotaping and may adopt reasonable rules governing the audiotaping and videotaping of open portions of the meetings of the board and the membership, but such the rules shall not preclude such audiotaping or videotaping by those attending, unless the board audiotapes or videotapes the meeting and makes the unedited audiotapes or videotapes available to members on request without restrictions on its their use as evidence in any dispute resolution process. Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following:
1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.
2. Pending or contemplated litigation.
3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.
4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.
5. Discussion of a member's appeal of any violation cited or penalty imposed by the association except on request of the affected member that the meeting be held in an open session.
B. Notwithstanding any provision in the community documents, all meetings of the members' association and the board shall be held in this state. A meeting of the members' association shall be held at least once each year. At a minimum, the annual meeting of the members' association shall include the election of board members and any other business of the members' association and shall provide the members an opportunity to address the board of directors under individual time LIMITS as determined only by the MEMBERS present at the meeting. The board of directors shall also provide to the members at the annual membership meeting a financial summary REPORT to the association's previous ANNUAL expenses and income and a projection of operating and capital EXPENSES for the coming year. Special meetings of the members' association may be called by the president, by a majority of the board of directors or by members having at least twenty‑five percent of the votes in the association for an association with one thousand members or fewer members, or for an association with more than one thousand members, ten percent of the votes in the association, or any lower percentage specified in the bylaws, of the votes in the association.
C. Not fewer than At least ten nor but not more than fifty days in advance of any meeting of the members the secretary shall cause notice to be hand‑delivered hand delivered or sent prepaid by United States mail to the mailing address for each lot, parcel or unit owner or to any other mailing address designated in writing by a member. The notice shall state the date, time and place of the meeting. A notice of any annual, regular or special meeting of the members shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws, changes in assessments that require approval of the members and any proposal to remove a director or an officer. The failure of any member to receive actual notice of a meeting of the members does not affect the validity of any action taken at that meeting.
C. D. Before entering into any closed portion of a meeting of the board of directors, or on notice of a meeting under subsection D of this section that will be closed, the board shall identify the paragraph under subsection A of this section that authorizes the board to close the meeting.
D. E. Notwithstanding any provision in the declaration, bylaws or other community documents, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to members of meetings of the board of directors and an agenda for that meeting shall be given at least forty‑eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors. An affidavit of notice by an officer of the corporation is prima facie evidence that notice was given as prescribed by this section. Notice to members of meetings of the board of directors is not required if emergency circumstances require action by the board before notice can be given. Any notice of a board meeting shall state the date, time and place of the meeting. The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.
E. F. Notwithstanding any provision in the declaration, bylaws or other community documents, for meetings of the board of directors that are held after the termination of declarant control of the association, all of the following apply:
1. The agenda shall be available to all members attending along with background or other information related to each item on the agenda. The board of directors also shall make available Draft minutes of previous meetings and financial reports to any member who requests them before the meeting is held. In the alternative, the association may make the information available to members by posting it on the association website at least twenty-four hours before the meeting is held.
2. An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty‑eight hours required for notice. At any emergency meeting called by the board of directors, the board of directors may act only on emergency matters. The minutes of the emergency meeting shall state the reason necessitating the emergency meeting. The minutes of the emergency meeting shall be read and approved at the next regularly scheduled meeting of the board of directors.
3. A quorum of the board of directors may meet by means of a telephone conference if a speakerphone is available in the meeting room that allows board members and association members to hear all parties who are speaking during the meeting.
4. Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.
F. G. It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members' association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board of directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.
H. An association that violates this section is liable in a civil action for damages of FIVE HUNDRED dollars for each VIOLATION.
Sec. 8. Section 33-1812, Arizona Revised Statutes, is amended to read:
33-1812. Proxies; absentee ballots; damages; definition
A. Notwithstanding any provision in the community documents, after termination of the period of declarant control, votes allocated to a unit member may not be cast pursuant to a proxy. The members of the association may initiate or take action only while at an annual, REGULAR or special meeting of the members of the ASSOCIATION. Written consent as prescribed in section 10-3704 may be used for actions of the members of the association only if a petition for written consent is PRESENTED and approved by the vote of the members at an annual, regular or special meeting of the membership. If the petition for written consent fails at the meeting, the petition may be circulated for signature to the members of the association who did not appear and vote at the meeting, along with draft minutes of the meeting at which the petition for written consent was considered and that contain a description of the arguments for and against the proposal. If the sum of the number of votes cast in person at the meeting in favor of the petition for written CONSENT, the number of votes cast by absentee ballot to approve the petition for written consent and the number of petition SIGNATURES is sufficient for approval to take action by written consent, the action by written consent may proceed.
b. The association shall provide for votes to be cast in person and by absentee ballot and, in addition place of absentee ballots, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery. Notwithstanding section 10‑3708 or the any provisions of the community documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:
1. The ballot shall set forth each proposed action.
2. The ballot shall provide an opportunity to vote for or against each proposed action.
3. The ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.
4. The ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted ballot to the member.
5. The ballot does not authorize another person to cast votes on behalf of the member.
6. The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
7. Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
B. C. Votes cast by absentee ballot or other form of delivery, including the use of e‑mail and fax delivery, are valid for the purpose of establishing a quorum.
C. D. Notwithstanding subsection A of this section, an association for a timeshare plan as defined in section 32‑2197 may permit votes by a proxy that is duly executed by a unit owner.
E. An association that violates this section is liable in a civil action for damages of FIVE HUNDRED dollars for each VIOLATION.
D. F. For the purposes of this section, "period of declarant control" means the time during which the declarant or persons designated by the declarant may elect or appoint the members of the board of directors pursuant to the community documents or by virtue of superior voting power.
Sec. 9. Section 33-1813, Arizona Revised Statutes, is amended to read:
33-1813. Removal of board member; special meeting
A. 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 members of the association 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 members.
2. The meeting of the members shall be called pursuant to this section and action may be taken only if a quorum is present as prescribed by section 33-1812, subsection C.
3. The members of the association 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 33‑1804, subsection subsections B and C.
(b) Notwithstanding section 33‑1804, 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 33‑1804, subsection B C.
(c) The special meeting shall be called, noticed and held within thirty days after receipt of the petition.
(d) 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 prescribed in the community documents for a quorum of the members 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 permitted by law.
(e) 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.
(f) 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 permit members to inspect those documents and records pursuant to section 33‑1805.
(g) 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 community 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 community 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 community documents specifically provide for a longer period of ineligibility.
B. 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.
Sec. 10. Section 33-1817, Arizona Revised Statutes, is amended to read:
33-1817. Declaration amendment; design, architectural committees; review
A. Except during the period of declarant control, or if during the period of declarant control with the written consent of the declarant in each instance, the following apply to an amendment to a declaration:
1. The declaration may be amended by the association, if any, or, if there is no association or board, the owners of the property that is subject to the declaration, by an affirmative vote or written consent of the number of owners or eligible voters specified in the declaration, including the assent of any individuals or entities that are specified in the declaration.
2. An amendment to a declaration may apply to fewer than all of the lots or less than all of the property that is bound by the declaration and an amendment is deemed to conform to the general design and plan of the community, if both of the following apply:
(a) The amendment receives the affirmative vote or written consent of the number of owners or eligible voters specified in the declaration, including the assent of any individuals or entities that are specified in the declaration.
(b) The amendment receives the affirmative vote or written consent of all of the owners of the lots or property to which the amendment applies.
3. Within thirty days after the adoption of any amendment pursuant to this section, the association or, if there is no association or board, an owner that is authorized by the affirmative vote on or the written consent to the amendment shall prepare, execute and record a written instrument setting forth the amendment.
4. Notwithstanding any provision in the declaration that provides for periodic renewal of the declaration, an amendment to the declaration is effective immediately on recordation of the instrument in the county in which the property is located.
B. Notwithstanding subsection a of this section and any provision in the community documents, during the period of declarant control, the declaration may not be amended to change the duration of or CONDITIONS for declarant CONTROL UNLESS the amendment is APPROVED by an affirmative vote of or written consent of at least sixty-six percent of the non-declarant owners.
B. C. Notwithstanding any provision in the community documents:
1. Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.
2. For new construction of the main residential structure on a lot or for rebuilds of the main residential structure on a lot and only in a planned community that has enacted design guidelines, architectural guidelines or other similar rules, however denominated, and if the association documents permit the association to charge the member a security deposit and the association requires the member to pay a security deposit to secure completion of the member's construction project or compliance with approved plans, all of the following apply:
(a) The deposit shall be placed in a trust account with the following instructions:
(i) The cost of the trust account shall be shared equally between the association and the member.
(ii) If the construction project is abandoned, the board of directors may determine the appropriate use of any deposit monies.
(iii) Any interest earned on the refundable security deposit shall become part of the security deposit.
(b) The association or the design review committee must hold a final design approval meeting for the purpose of issuing approval of the plans, and the member or member's agent must have the opportunity to attend the meeting. If the plans are approved, the association's design review representative shall provide written acknowledgement that the approved plans, including any approved amendments, are in compliance with all rules and guidelines in effect at the time of the approval and that the refund of the deposit requires that construction be completed in accordance with those approved plans.
(c) The association must provide for at least two on-site formal reviews during construction for the purpose of determining compliance with the approved plans. The member or member's agent shall be provided the opportunity to attend both formal reviews. Within five business days after the formal reviews, the association shall cause a written report to be provided to the member or member's agent specifying any deficiencies, violations or unapproved variations from the approved plans, as amended, that have come to the attention of the association.
(d) Within thirty business days after the second formal review, the association shall provide to the member a copy of the written report specifying any deficiencies, violations or unapproved variations from the approved plans, as amended, that have come to the attention of the association. If the written report does not specify any deficiencies, violations or unapproved variations from the approved plans, as amended, that have come to the attention of the association, the association shall promptly release the deposit monies to the member. If the report identifies any deficiencies, violations or unapproved variations from the approved plans, as amended, the association may hold the deposit for one hundred eighty days or until receipt of a subsequent report of construction compliance, whichever is less. If a report of construction compliance is received before the one hundred eightieth day, the association shall promptly release the deposit monies to the member. If a compliance report is not received within one hundred eighty days, the association shall release the deposit monies promptly from the trust account to the association.
(e) Neither the approval of the plans nor the approval of the actual construction by the association or the design review committee shall constitute a representation or warranty that the plans or construction comply with applicable governmental requirements or applicable engineering, design or safety standards. The association in its discretion may release all or any part of the deposit to the member before receiving a compliance report. Release of the deposit to the member does not constitute a representation or warranty from the association that the construction complies with the approved plans.
3. Approval of a construction project's architectural designs, plans and amendments shall not unreasonably be withheld.
