Homeowner Justice: HOA vs. OAH (Off. Adm. Hearings)


The following uses Arizona laws, but most states have an Admin Proc. Act and an Office of Admin. Hearings (OAH).

The APA provides for rulemaking and adjudication procedures for state agencies. State agencies get their authority from the enabling statute and cannot exceed its authority, although agencies are granted broad powers (to be dealt with as a separate issue). Sound familiar to a private government HOA?

OAH is an independent “tribunal” that hears complaints filed with certain agencies. A simple, relaxed adjudication procedure, not requiring an attorney, is applied so the average person can get heard in an independent manner.

In regard to justice:
Essentially the “common” CC&Rs has a provision for a notice to the homeowner and an opportunity to be heard. No specifics are given as to the process, leaving the impression it would be, at least, like a muni or JP court proceeding. The homeowner may or may not get a citation as to the rule being broken, but usually no evidence is provided.

Here’s Arizona state law, ARS 33-1803B: “After notice and an opportunity to be heard . . . .” That’s it. There is no provision as to the mechanism for the judicial procedure. No statement that such HOA proceedings must follow the OAH Code (AAC §§ R2-19-101 to 122), for example.

Summary of OAH trial procedures AAC §R2-19-116, Conduct of Hearing

A. Public access
B. Judge to state nature of violation, parties involved and witnesses.
D. Opening statements.
E. Presenting of evidence.
F. Examination of witnesses and disclosure of all relevant testimony and information.
G. Closing arguments.

Why do the state legislatures feel that this adjudication process to which it holds various state agencies is not applicable to private HOA governments, denying a just and fair procedure to homeowners?

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Published in: on May 19, 2005 at 3:59 pm  Comments (1)  

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One CommentLeave a comment

  1. I BLAME THE HOMEOWNERS FOR NOT TAKING CHARGE OF THIER HOA.
    I LIVE IN A CONDO AND MOST OF THE PEOPLE WHO LIVE THERE ACT LIKE APARTMENT TENANTS RATHER THAN HOMEOWNERS.
    A LOT OF WHAT IS HAPPENING WITH HOA’S IS BECAUSE THE HOMEOWNERS DO NOT BAND TOGETHER AND STAND UP FOR THIER RIGHTS.


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