Phoenix Neighborhood
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Mary Jean Lindgren said she never had a problem with her neighborhood homeowners association when she lived in Ahwatukee for 10 years.

But when her neighbor across the backyard became president of HOA’s board, her decades-old eucalyptus tree suddenly became a big problem. About a year ago, she received an order to trim the tree.

She complied but kept receiving orders to trim it again, plus clean up fallen leaves. Fines ensued.

Since Lindgren lives and works in Sacramento now and rents out the house, she called Gilbert attorney Kevin Harper for help. He’s one of the few independent attorneys in the Valley who specialize in representing homeowners against the few big law firms that represent HOAs.

Lindgren said board members won’t explain how much trimming would satisfy them. “They won’t give me a standard,” she said. “It’s very frustrating. I’m in limbo. It’s just a vicious circle.”

Harper has seen it all before.

“This is something I see over and over again,” he said. “A very small fine can spiral out of control into tens of thousands of dollars in legal fees and foreclosure.”

In a perfect world, planned communities conceived by builders and governed by HOAs tick like a fine timepiece.

Everyone gets along.

Everyone wants what’s best.

Homeowners pay their dues. The management company manicures the common grounds.

HOA neighborhoods with gates and their own security guards offer comfort for residents and benefit the greater community by allowing city police officers to focus their efforts elsewhere.

Everyone’s property-value boat is lifted on a rising tide.

But, human nature being what it is, conflicts frequently erupt over seemingly simple things.

An in-town resident, or a snowbird, might miss a dues payment. A violation notice might be issued for street parking or RV parking. Same thing for a landscaping infraction, or an exterior paint job. Fines, interest payments and legal fees can snowball.

An HOA board can stymie the bump-out needed for a couple’s dream master bath or a chicken coop. HOAs have the power of a city government and can foreclose on a home like a bank. They can garnish your wages, disconnect your water.

It can be a rude awakening, even for a long-time Valley resident. Especially so for recent area transfers, who are accustomed to talking these things out with neighbors on the front lawn while their dogs romp around and get to know each other.

Fowl Play

When Kathy Fry moved to the Valley from the East Coast to guide her family’s small business in 2011, she and her husband fell in love with a small agricultural community in Tempe.

Built in 1979, the affluent 160-home neighborhood with one-acre-plus lots has evolved over the years into an eclectic neighborhood of enthusiastic equestrians, plucky urban farmers and content suburbanites.

The Frys were good citizens and brushed up on Tempe building codes. They studied the covenants and took walks around the neighborhood to get a feel for what was acceptable and in-character before undertaking their first curb-appeal projects.

For any project they undertook, they always submitted their requests to the HOA. It wasn’t exactly smooth sailing. But so far, so good.

The Frys broke ground on their dream project last year, a remodeled backyard with a new and elegant chicken coop.

Everything went south.

She just wanted to do what many of her many neighbors were doing – put her large lot to good use, growing vegetables, raising a few chickens, giving excess eggs to the homeless.

Fry said permission wasn’t needed from the HOA as long as the structure was no taller than the back wall, and that this was confirmed by the property manager.

As the project moved along, Kathy changed plans. She wanted to increase the height of the coop to allow her to clean it more easily and minimize smells. She would also raise the back wall to shelter the coop from the view of those using the alley/horse path. She submitted her plans to the HOA.

Swift denial.

Kathy found that odd, considering that her previous front-yard requests took an agonizing 30 days or more to get approved by the board. As the conflict wore on, she received swift fines, swift cease-and-desist letters and swift orders to tear it down.

Fry said she sent the HOA excerpts from the city code and pictures of other backyard structures in the neighborhood. She also made repeated requests to meet with the HOA and discuss the situation.

“Every time I went to the mailbox, I was in tears,” Fry said. “I felt terrorized.”

Frustrated with the HOA, and after months of delays and many attempts to meet with the board or a committee, Fry decided to complete the coop. She had idle contractors. She had chickens on the way. Monsoons were coming.

“I was really mad at this point,” she said. “I thought this isn’t right.”

Fry’s general practice attorney referred her to Jonathan Dessaules, who also advocates for homeowners.

Fry and Dessaules say they tried everything short of filing suit, but after seven months they were left with no choice. The Frys’ title had also become clouded because of the HOA’s assessments and notices.

After their suit was filed, a representative of the HOA finally visited Fry’s backyard, took some measurements and determined the coop was in compliance.

Fry and Dessaules have filed an additional complaint against the HOA to admit it was wrong, to acknowledge there was no violation of the CC&Rs. They also want to recoup the considerable attorneys’ fees.

“It’s about more than getting my money back” Fry said. “I don’t want this to happen to anyone else in the neighborhood.”

Kathy Fry’s finished, 96-square-foot coop is a stylish stucco-and-tile affair that seamlessly blends with her home’s architecture. She spent many thousands of dollars on the project and commissioned custom iron doors and fencing. It conforms with all Tempe zoning and setback regulations.

The ABCs of CC&Rs

Dessaules said it’s incumbent on HOAs to enforce Covenants, Conditions & Restrictions – the contractual rules of the neighborhood – consistently, fairly and reasonably.

After taking a walk around the Frys’ neighborhood, Dessaules said he found at least 34 structures within the same backyard setback that the HOA said Fry was violating. These were sheds, garages, guest houses and other chicken coops.

Many of the projects were above the fence line and larger than Fry’s outbuilding, and of poorer quality, according to Dessaules.

He said that when Fry visited the management company to review the records on those lots, there was no documentation on at least 28 projects to indicate that an architectural change request had ever been submitted to the HOA.

Dessaules said he had another client recently, a woman paying nearly $1,000 per month in dues to an HOA in the Arcadia area of Phoenix, whose personality clashed with the board. In a fit of pique, board members banned her from using the common areas indefinitely.

A judge ruled in the resident’s favor.

“You can’t be denied the right to go swimming in your own pool,” said Dessaules. “You can’t impose that type of suspension simply because you don’t like someone.”

The other side of the fence

Beth Mulcahy, whose firm represents about 1,500 HOAs around the state, said she has seen difficult homeowners harass board members at meetings and through angry e-mails and phone calls. Sometimes, she has to file injunctions to stop the bad behavior.

“If everyone communicated a little better,” she said, “it wouldn’t get so complicated.”

Mulcahy also teaches at the city of Chandler’s twice-yearly HOA Academy, which has graduated more than 600 better-informed board members since 2007. She holds similar seminars in other cities.

In addition to educating board members about the law and their responsibilities, Mulcahy counsels boards to be transparent in their dealings.

“Some board members think that what homeowners don’t know is better for them,” she said. “I think that’s wrong. You’re sending a message you’re hiding something.”

Mulcahy said she has been a disgruntled homeowner in an HOA herself. “That’s how I got on the board.”

On that, Harper can agree. If homeowners are concerned, he said, they can become more involved in meetings and run for a seat if they think they can do a better job. He recommends that prospective buyers read CC&Rs and talk to neighbors to see if there has been a history of troubles.

“Know what you’re signing up for,” he said. “The rules are what they are. I live in an HOA and a lot of times I’m glad about that.”

– Mike Butler, Ahwatukee Foothills News / Edited for Phoenix.org

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