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House Engrossed |
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State of Arizona House of Representatives Fiftieth Legislature First Regular Session 2011
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HOUSE BILL 2441 |
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AN ACT
amending section 33-1227, Arizona Revised Statutes; amending title 33, chapter 16, article 1, Arizona Revised Statutes, by adding section 33-1817; relating to condominiums and planned communities.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 33-1227, Arizona Revised Statutes, is amended to read:
33-1227. Amendment of declaration
A. Except in cases of amendments that may be executed by a declarant under section 33‑1220, by the association under section 33‑1206 or section 33‑1216, subsection D, or by certain unit owners under section 33‑1218, subsection B, section 33‑1222, section 33‑1223 or section 33‑1228, subsection B, and except to the extent permitted or required by other provisions of this chapter, the declaration, including the plat, may be amended only by a vote of the unit owners to which at least sixty‑seven per cent of the votes in the association are allocated, or any larger majority the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use. The declaration may also provide that the consent of the declarant is required to an amendment during any period of declarant control pursuant to section 33‑1243. Within thirty days after the adoption of any amendment pursuant to this subsection, the association shall prepare, execute and record a written instrument setting forth the amendment pursuant to any procedure in the declaration.
B. In addition to any amendment rights in the declaration, and after the period of declarant control or with the declarant's written consent if during the period of declarant control and notwithstanding any provision in the declaration to the contrary, the declaration, including the plat, may be amended by the unit owners at any time by a vote of at least two-thirds of the votes cast on the amendment, except that if the declaration provides for a smaller percentage that is at least fifty per cent of the votes cast, the smaller percentage applies.
C. For any meeting of the association at which the unit owners are voting on a proposed amendment to the declaration pursuant to subsection B of this section, the following apply:
1. At least thirty but not more than sixty days before the meeting, the association shall deliver to the unit owners written notice of any meeting called for the purpose of amending the declaration and the text of any proposed amendment.
2. Documents relating to any adopted amendment shall be kept with the other books and records of the association for at least one year after recording of the amendment.
3. A quorum is present for purposes of voting on amendments to the declaration if unit owners holding at least fifty per cent of the votes in the association are present in person or as otherwise permitted by law.
B. D. An action to challenge the validity of an amendment adopted by the association pursuant to this section shall not be brought more than one year after the amendment is recorded.
C. E. An amendment to the declaration shall be recorded in each county in which any portion of the condominium is located and is effective only on recordation in the same manner as required for the declaration under section 33‑1211.
D. F. Except to the extent expressly permitted or required by other provisions of this chapter, an amendment shall not create or increase special declarant rights, increase the number of units or change the boundaries of any unit, or the allocated interests of a unit or the uses to which any unit is restricted, in the absence of unanimous consent of the unit owners.
G. Subsection B of This section does not apply to a modification of the condominium documents that does any of the following:
1. Requires or amends any provision requiring the exclusive use of one or more builders, developers or contractors for the condominium as identified in the condominium documents.
2. Regulates or amends any provision regulating the transition from declarant control of the condominium to nondeclarant owner control, including any transition related documents or requirements.
3. Changes the use of or access to the common elements of the condominium or other areas over which the association controls use or access for the guests or invitees of the declarant or its affiliates, successors or assigns or of the unit owners as provided in the condominium documents, including use or access for business or marketing purposes, use of or access to easements or common elements by the declarant or its affiliates, successors or assigns or use of or access to any areas over which the association controls use or access.
4. Changes the use of or access to or ability to grant easements or any maintenance obligations of the association for those easements.
5. Changes the use, operation, maintenance or disposition of common elements in the condominium.
6. Changes the amount or level of assessments on units owned by the declarant.
7. Requires or amends any provision requiring a minimum age for ownership or occupancy of the condominium in compliance with federal and state law.
8. Changes any procedures or practices that are reasonably required for compliance with federal, state or local laws or regulatory requirements.
9. Requires membership in a master association in addition to requiring membership in the condominium association.
10. Applies nonuniformly to similar units.
11. Changes the basis for allocating voting rights or assessments among unit owners.
12. Changes the declaration or any right to amend the declaration by execution of documents by any of the following:
(a) The declarant under section 33-1216.
(b) The association under section 33-1206, subsection B, section 33‑1222, section 33-1223 or section 33-1228, subsection B.
(c) Certain unit owners under section 33-1218, subsection B, section 33-1222, section 33-1223 or section 33-1228, subsection B.
13. Amends provisions of the declaration that provide for waivers of liability or indemnification in the event of personal injuries occurring on the common elements of the condominium.
H. Subsection G of this section does not prevent or limit the board of directors or the association from amending the condominium documents as prescribed in the condominium documents.
I. Subsection G of this section shall not be construed to affect a court's ability to determine that a specific provision of the condominium documents is invalid, unenforceable or in violation of the law.
J. If an amendment was adopted in accordance with this section or the association's declaration, it is presumed valid. This subsection does not limit the right of a unit owner to challenge the validity and enforceability of an amendment or whether the amendment received the required number of votes.
E. K. An amendment shall not terminate or decrease any unexpired development right, special declarant right or period of declarant control unless the declarant approves in writing.
L. Notwithstanding any other provision in this section, if a declaration provides that the declaration or any provision in the declaration cannot be amended without the consent of one or more identified persons or entities, an amendment may not be adopted pursuant to this section and shall not be effective without the required consent.
F. M. Amendments to the declaration required by this chapter to be executed by the association shall be executed on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.
Sec. 2. Title 33, chapter 16, article 1, Arizona Revised Statutes, is amended by adding section 33-1817, to read:
33-1817. Amendment of declaration
A. The declaration may be amended pursuant to any procedure in the declaration.
B. In addition to any amendment rights in the declaration, and after a majority of the board is composed of members who are not appointed or elected by the declarant, or with the declarant's written consent if during the period of declarant control, and notwithstanding any provision in the declaration to the contrary, the declaration may be amended at any time by the members by a vote of at least two-thirds of the votes cast on the amendment, except that if the declaration provides for a smaller percentage that is at least fifty per cent of the votes cast, the smaller percentage applies.
C. For any meeting of the association at which the members are voting on a proposed amendment to the declaration pursuant to subsection B of this section, the following apply:
1. At least thirty but not more than sixty days before the meeting, the association shall provide to the members written notice of any meeting called for the purpose of amending the declaration and the text of any proposed amendment.
2. Documents relating to any adopted amendment shall be kept with the other books and records of the association for at least one year after recording of the amendment.
3. A quorum is present for purposes of voting on amendments to the declaration if members holding at least fifty per cent of the votes in the association are present in person or as otherwise permitted by law.
D. An action to challenge the validity of an amendment adopted by the association shall not be brought more than one year after the amendment is recorded.
E. An amendment to the declaration shall be recorded in each county in which any portion of the planned community is located and is effective only on recordation.
F. Subsection B does not apply to a modification of the community documents that does any of the following:
1. Requires or amends any provision requiring the exclusive use of one or more builders, developers or contractors for the planned community as identified in the community documents.
2. Regulates or amends any provision regulating the transition from declarant control of the planned community to nondeclarant owner control, including any transition related documents or requirements.
3. Changes the use of or access to the common areas of the planned community or other areas over which the association controls use or access for the guests or invitees of the declarant or its affiliates, successors or assigns or of the members as provided in the community documents, including use or access for business or marketing purposes, use of or access to easements or common elements by the declarant or its affiliates, successors or assigns or use of or access to any areas over which the association controls use or access.
4. Changes the use of or access to or ability to grant easements or any maintenance obligations of the association for those easements.
5. Changes the use, operation, maintenance or disposition of common areas in the planned community.
6. Changes the amount or level of assessments on units owned by the declarant.
7. Requires or amends a provision requiring a minimum age for ownership or occupancy of the planned community in compliance with federal and state law.
8. Changes any procedures or practices that are reasonably required for compliance with federal, state or local laws or regulatory requirements.
9. Requires membership in a master association in addition to requiring membership in the planned community association.
10. Applies nonuniformly to similar units.
11. Changes the basis for allocating voting rights or assessments among members.
12. Changes any contract, other than the community documents, that extends beyond the period of declarant control unless the contract was not bona fide or was unconscionable to the members at the time entered into under the circumstances then prevailing.
13. Amends provisions of the declaration that provide for waivers of liability or indemnification in the event of personal injuries occurring on the common areas of the planned community.
G. Subsection F does not prevent or limit the board of directors or the association from amending the community documents as prescribed in the community documents.
H. Subsection F shall not be construed to affect a court's ability to determine that a specific provision of the community documents is invalid, unenforceable or in violation of the law.
I. If an amendment was adopted in accordance with this section or the association's declaration, it is presumed valid. this subsection does not limit the right of a member to challenge the validity and ENFORCEABILITY of an AMENDMENT or whether the amendment received the required number of votes.
J. An amendment shall not terminate or decrease any unexpired development right, special declarant right or other right or benefit reserved to the declarant or the period of declarant control unless the declarant approves in writing.
K. Notwithstanding any other provision in this section, if a declaration provides that the declaration or any provision in the declaration cannot be amended without the consent of one or more identified persons or entities, an amendment may not be adopted pursuant to this section and shall not be effective without the required consent.
L. Amendments to the declaration required by this chapter to be executed by the association shall be executed on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.