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Can my HOA force me to remove structures in violation of the CC&R's?

Phoenix, AZ |

I received a letter that my BBQ is in violation of the HOA CCR&Rs which state any structure must be 3ft away from the fence, the BBQ is built against it. I have pleaded with them over the last 2 years, sending in variance requests and proving that im not violating any city law. The city said it was ok to have it against the fence. I am wondering what options I have besides tearing it down. The HOA stated they will fine me 25/day until its removed, how many days are they legally allowed to fine me? Any chance of fighting this is court? I know of other structures similar to mine and mentioned it to the HOA, the just ignored my comments. I know of at least one other built in a similar fashion, that is why we built ours and believed it was allowed.

I would like to add that we built the structures in 2008 and received our first violation letter in 2010. Since then there has been a property management change and also some new board members. For a while the HOA ignored my emails and phone calls and I just let the issue sit while they transitioned to the new management company. Just recently they began sending me letters about the violation once again and asked me to send in a variance request. I did just that however they still denied my varience request. My neighbor across the street has the exact same setup however they have not received a fine since their backyard is more closed off. We have a partial view fence that backs up into a wash. Thank you

Attorney Answers 1

  1. There are lots of interesting issues in your fact pattern. In Arizona, fines are really an empty threat. An HOA can only collect fines if they sue you. There isn't any legal limit on how much they can fine, but the statutes state that a homeowner must be given notice and an opportunity to be heard before an HOA can assess the fines.

    Also, there is also a strong chance that homeowners who have a violation and that violation exists for a long time or is committed by other owners without an enforcement action, the HOA may have waived its right to enforce.

    It would be best to get some legal advice and have someone respond to the HOA on your behalf.

    Good luck.

    This answer is to give information and general understanding of HOA laws. This answer is not legal advice. Don't rely on this answer in place of legal advice from a licensed attorney in your state. Roger is licensed in Arizona only. Laws change and some of this information may become outdated. When you read this answer, there is no attorney-client relationship between you and our office. The author of this answer does not necessarily support the views expressed in all articles, answers or comments here.