In general, you should have an opportunity to address and respond to a fine levied by a Homeowners’ Association (HOA) before the obligation to pay becomes absolute. HOAs are typically required to give you a hearing for any fine, and if you are not afforded a hearing, the fine may be unenforceable.
For unpaid dues and assessments, the HOA has the right to put a lien on your property under A.R.S §§ 33-1256 and 33-1807. You must pay your dues, even if you believe that the HOA has failed to uphold its obligations or is acting improperly. If you want to complain about your HOA’s performance or actions, consult with an attorney, but do not stop paying your dues.
For HOA fines, there is no similar right to put a lien on your property. The HOA will have to give you a hearing, and will have to go to court and get a judgment against you before attempting to collect it from you. If a wrongful lien is filed against your property, Arizona provides for a special action under A.R.S. § 33-420 to have the lien removed, with reasonable attorney fees being recoverable by the prevailing parties.
You may have a number of defenses to a fine assessed by your HOA. If the HOA has selectively enforced one of the requirements in its CC&Rs, you may be able to use that as a defense. Some HOA restrictions also violate other statues, such as the Arizona statute that outlaws restrictions which effectively prohibit the use of solar energy devices found in A.R.S § 33-439.
The CC&Rs may also have unclear language that does not specifically name the action or behavior that caused the violation. Furthermore, A.R.S. § 33-1803 provides that the monetary penalty must be reasonable and that the member must be given information regarding how the penalty with be enforced. If your HOA fails to comply with any of these requirements, you may not have to pay the fine.
If your HOA has assessed a fine against you, consult with a real estate attorney immediately. You may have a limited time to contest the fine or defend yourself in a lawsuit.
Chernoff Law handles business and real estate litigation matters throughout Arizona. Contact us to discuss your case with an experienced real estate attorney.