Legal Arizona Workers Act

E K M A R K & E K M A R K, L.L.C.
ATTORNEYS AT LAW

The Governor recently signed into law the Legal Arizona Workers Act, one of the toughest laws of its kind in the country. The new law, which becomes effective on January 1, 2008, prohibits any employer from intentionally or knowingly employing an “unauthorized alien.” It applies to both planned communities and condominium associations as potential employers.

The law covers any individual or organization that transacts business in this state, has a license issued by an agency in this state, and employs one or more individuals who perform services. “Employee” is defined broadly as any person who performs employment services for an employer pursuant to an employment relationship.

A first violation will result in a probation period of 3 years (for knowing violations) or 5 years (for intentional violations); mandatory quarterly reports on all new employees throughout the probationary period; and either (a) possible suspension of business licenses for up to 10 days (for knowing violations) or (b) mandatory suspension of business licenses for a minimum of 10 days (for intentional violations). A second violation during the probation period will result in the permanent revocation of all “licenses,” including the employer’s articles of incorporation.

Beginning January 1, 2008, every employer must verify the employment eligibility of new employees through the federal government’s Basic Pilot Program (also known as the Employment Eligibility Verification Program). Information about registering for the program can be found online at the web site of the U.S. Citizenship and Immigration Service (www.uscis.gov). Fortunately, if an employer has verified the legal status of the employee under investigation, there is a rebuttable presumption that the employer did not intentionally or knowingly employ the unauthorized alien.

Finally, on or before October 1, 2007, the Arizona Department of Revenue will send notices to all employers required to withhold taxes, explaining the new law and how to register in the Basic Pilot Program.

The information contained in this Homeowners Association Tip of the Week© is for informational purposes only and is not specific legal advice or a substitute for specific legal counsel. Readers should not act upon this information without seeking professional counsel.

6720 North Scottsdale Road, Suite 261 * Scottsdale, Arizona 85253
Telephone 480/922-9292 * Fax 480/922-9422
e-mail curtis@ekmarklaw.com
http://www.ekmarklaw.com/

This article is posted with permission from Ekmark & Ekmark, L.L.C., Attorneys at Law.

Planned Community Act or Condominium Act

E K M A R K & E K M A R K, L.L.C.
ATTORNEYS AT LAW

Not all communities in Arizona that have deed restrictions recorded against their properties are subject to the Planned Community Act or Condominium Act. However, these restrictions may control how the property is supposed to look or be maintained or what actions can take place on the property, just like properties within a condominium association or planned community.

For the Planned Community Act to apply, the association must own, and be responsible for maintaining, common property. Owners must also be required to pay mandatory assessments for that maintenance. In order for the Condominium Act to apply, all owners in a community must own an undivided interest in a portion of the property.

Even if the Planned Community Act or the Condominium Act does not apply, deed restrictions may form a contract between all of the neighbors who live in a community. Any owner, therefore, may have the right to enforce restrictions against another owner in his or her community for violating a deed restriction. If there is no condominium association or planned community, the only method of enforcing the deed restrictions is by formal legal action. Thus, the owner who seeks to enforce the deed restriction must file a lawsuit against the owner who is violating the deed restriction.

If you have any questions about whether your community is subject to either the Planned Community Act or the Condominium Act, you should consult an attorney who specializes in community association law.

The information contained in this Homeowners Association Tip of the Week© is for informational purposes only and is not specific legal advice or a substitute for specific legal counsel. Readers should not act upon this information without seeking professional counsel.

6720 North Scottsdale Road, Suite 261 * Scottsdale, Arizona 85253
Telephone 480/922-9292 * Fax 480/922-9422
e-mail curtis@ekmarklaw.com
http://www.ekmarklaw.com/

This article is posted with permission from Ekmark & Ekmark, L.L.C., Attorneys at Law.

NEW LEGISLATION PERTAINING TO HOMEOWNERS ASSOCIATIONS

E K M A R K & E K M A R K, L.L.C.
ATTORNEYS AT LAW

NEW LEGISLATION PERTAINING TO HOMEOWNERS ASSOCIATIONS
2007

After one of the longest sessions in its history, the Arizona Legislature adjourned on June 20, 2007. During this session, the Legislature passed five laws pertaining to homeowners associations. They will become effective on Wednesday, September 19, 2007. Here is a summary of the new legislation, which trumps any contrary provisions in an association’s documents.

Children at Play/Cautionary Signs

HB 2503 amends Arizona Revised Statutes (A.R.S.) § 33-1808 of the Planned Community Act. This law applies only to planned communities.

Under this new law, an association may not prohibit children who reside in the community from engaging in recreational activity on residential roadways under the jurisdiction of the association and on which the posted speed limit is 25 miles per hour or less. The law does not define “children,” “reside” or “recreational activity.” There is also no exception for age-restricted communities.

The new law also requires an association to allow the use of cautionary signs regarding children. The sign must meet five requirements, however. First, the sign must be displayed in a residential area. Second, the sign must be removed within one hour after the children have stopped playing. Third, the sign must be displayed only when children are actually present and within 50 feet of the sign. Fourth, the sign must not be taller than three feet. And fifth, the sign must be professionally manufactured or produced.

Parking - Telecommunication Vehicles

HB 2254 amends A.R.S. § 33-1809 of the Planned Community Act and applies only to planned communities.

The current law allows some vehicles to be parked in streets or driveways regardless of association parking restrictions. Specifically, the law protects certain vehicles driven by an employee of a public service corporation or a municipal utility that is required to work on natural gas, electrical, or water infrastructure. The law also covers some vehicles driven by public safety employees.

The new law expands the types of vehicles that are protected by statute to include those driven by telecommunications employees under the following limited circumstances. First, the vehicle is required to be available at designated periods at the person’s residence as a condition of the person’s employment. Second, the resident is employed by a public service corporation that is regulated by the corporation commission (such as Qwest) or a municipal utility. Third, the public service corporation or municipal utility is required to prepare for emergency deployments of personnel and equipment for repair or maintenance of telecommunications infrastructure. Fourth, the vehicle has

a gross vehicle weight rating of 20,000 pounds or less, is owned or operated by the public service corporation or municipal utility, and bears an official emblem or other visible designation of that entity.

The law defines “telecommunications” as the transmission of information of the user’s choosing between or among points specified by the user without change in the form or content of the information as sent and received. The definition specifically excludes commercial mobile radio services.

For Sale Signs

SB 1062 amends A.R.S. § 33-1261 (condominiums) and A.R.S. § 33-1808 (planned communities). This law thus applies to both condominium associations and planned communities, including those that are access-restricted.

Under this new law, an association may not prohibit the indoor or outdoor display of a for sale sign and a sign rider by a unit owner on that owner’s property. This new law protects not only professional realtor signs but signs that indicate that the property is for sale by owner. The new law also states that the size of the sign and sign rider shall be in conformance with industry standards. The law defines industry standards as a sign that does not exceed 18 x 24 inches. Likewise, the sign rider shall not exceed 6 x 24 inches.

Commercial Signs

SB 1254 adds section A.R.S. § 33-1815 to the Planned Community Act. This law applies only to planned communities with properties zoned for commercial use..

Under this law, after an association has approved a commercial sign (including its registered trademark) located on properties zoned for commercial use in the community, the association, including any subsequently elected board of directors, may not revoke or modify its approval if the sign’s owner or operator has received proper local or county governmental approval for the sign.

Solar Energy Devices

SB 1254 also adds section A.R.S. § 33-1816 to the Planned Community Act. This law applies only to planned communities.

This new law provides that an association cannot prohibit the installation or use of a solar energy device. An association may adopt reasonable rules regarding the placement of a solar energy device so long as those rules do not (1) prevent the installation of the device; (2) impair the functioning of the device; (3) restrict its use; or (4) adversely affect the cost or efficiency of the device.

The new law also states that the court must award reasonable attorneys’ fees and costs to any party who substantially prevails in an action against the association’s board of directors for violating the law. The law does not define “substantially prevails.”

By statute, “solar energy device” is defined as a system or series of mechanisms designed primarily to provide heating, to provide cooling, to produce electrical power, to produce mechanical power, to provide solar daylighting or to provide any combination of the foregoing by means of collecting and transferring solar generated energy into such uses either by active or passive means. Such systems may also have the capability of storing such energy for future utilization. Finally, the law specifies that passive systems must clearly be designed as a solar energy device such as a trombe wall and not merely a part of a normal structure such as a window.


The information contained in this Homeowners Association Tip of the Week© is for informational purposes only and is not specific legal advice or a substitute for specific legal counsel. Readers should not act upon this information without seeking professional counsel.

6720 North Scottsdale Road, Suite 261 * Scottsdale, Arizona 85253
Telephone 480/922-9292 * Fax 480/922-9422
e-mail curtis@ekmarklaw.com
http://www.ekmarklaw.com/

This article is posted with permission from Ekmark & Ekmark, L.L.C., Attorneys at Law.

Board Member Education Program

On May 21st, I conducted a board member education program, which was hosted by Attorney Curtis Ekmark. I was delighted that so many of our board members attended!

This program provided discussions of many basic topics and also allowed an opportunity for everyone to ask questions, while Attorney Ekmark provided his expertise in areas such as: Fiduciary, Sources of Law, Board Meetings, Annual Meetings, CC&R Enforcement, Insurance and Collections.

I encourage each of you to take advantage of future seminars; further information about the next event will be provided to you by your manager.

Below are some highlights of the program:

Fiduciary Duty - The Board has a fiduciary duty to the homeowners. This duty has two components: A duty of loyalty and a duty of ordinary care.

1. Duty of Loyalty - This means board members can’t take unfair advantage of their position.
   
2. Duty of Ordinary Care - This requires a board member to act as a reasonable person in conducting the affairs of the association.
   

Sources of Law – What law may supersede your governing documents? Federal law? State law? Perhaps the Condominium Act, or the Non-Profit Corporation Act? If your documents are silent, do one of these sources prevail, or is the opposite true? It is oftentimes very confusing as to what the law or procedure may be for any one particular issue. There are so many sources of law, as indicated above. Our staff receives constant training to keep abreast of the ever-growing changes, the ongoing challenges, and as such, education has become particularly important. Our education is passed along to you so that we can guide you to make the right decisions.

Board Meetings – Are they run effectively? Are the meetings run legally? Are the minutes properly recorded? Our managers and library of resources can help answer all of these questions for you.

Annual Meetings – What are the requirements for your association? Are you following the governing documents and applicable statue statutes? I personally consult with each manager to ensure that the administration of your annual meetings are held legally and follow proper procedure.

CC&R Enforcement – How do you determine what a particular provision of your documents is telling you? It’s not always clear and concise. Through our experience, we can oftentimes make that determination for you, but there are times when seeking legal counsel is simply the right thing to do!! Enforcement of the documents is critical…and required. Do you know the difference between “shall” and “may” when used in your governing documents? Shall = MUST, and the alternative: amend the documents.

Insurance – Do you have proper coverage? The best coverage for the cost? Seeking advice on this matter from your manager, insurance agent, and/or counsel is beneficial, as it’s not always easy to understand the differences in coverages. More often than not, board members get confused as to the maintenance responsibilities, versus the insurance responsibilities of a community – they are NOT always the same, and usually are not!

Collections – Our collections staff performs an outstanding job on the consistency and follow through for the delinquencies of your community. Following through in a timely manner is the most effective tool for any collections process. Our staff is aware of the laws, and works closely with your collections attorney, if necessary, to ensure the best results!

“Thank you” to all that attended! Please ask me, or your manager, for more information on any of these topics, at any time. I know that our lives get busy and we don’t always have the opportunity to attend everything we would like….so don’t feel like you’ve missed out – just ask for the information and we’ll be happy to provide it to you!

Sincerely,
Elaine Anghel, CAAM, PCAM, AMS, CMCA
Vice President
Management Services