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House Engrossed |
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State of Arizona House of Representatives Fifty-first Legislature First Regular Session 2013
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HOUSE BILL 2371 |
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AN ACT
amending TITLE 9, CHAPTER 4, ARTICLE 6, Arizona Revised Statutes, BY ADDING SECTION 9‑461.15; AMENDING TITLE 11, CHAPTER 6, ARTICLE 1, Arizona Revised Statutes, BY ADDING SECTION 11‑810; AMENDING TITLE 33, CHAPTER 9, ARTICLE 3, Arizona Revised Statutes, BY ADDING SECTION 33‑1242.01; AMENDING SECTION 33‑1250, Arizona Revised Statutes; AMENDING TITLE 33, CHAPTER 9, ARTICLE 3, Arizona Revised Statutes, BY ADDING SECTION 33‑1260.01; AMENDING TITLE 33, CHAPTER 16, ARTICLE 1, Arizona Revised Statutes, BY ADDING SECTION 33‑1806.01; AMENDING SECTION 33‑1812, Arizona Revised Statutes; AMENDING TITLE 33, CHAPTER 16, ARTICLE 1, Arizona Revised Statutes, BY ADDING SECTION 33‑1818; AMENDING SECTION 41‑2198.01, Arizona Revised Statutes; 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. Title 9, chapter 4, article 6, Arizona Revised Statutes, is amended by adding section 9-461.15, to read:
9-461.15. Requirement of planned community prohibited
A. The planning agency of a municipality in exercising its authority pursuant to this title shall not require as part of a subdivision regulation or zoning ordinance that a subdivider or developer construct or enact a planned community as defined in section 33-1802. A subdivider or developer shall not be penalized because of a lack of a planned community as part of the preliminary plat or specific plan of the subdivider or developer.
B. A municipality may require a subdivider or developer to construct or enact a planned community to maintain private improvements that are approved and installed as part of a preliminary plat, final plat or specific plan. A planned community that is required by a municipality pursuant to this subsection shall be specifically limited to the maintenance of community owned property.
C. This section shall not be construed to limit the establishment or authority of any planned community established pursuant to title 33, chapter 16.
D. Subsection B of this section applies only to those planned communities that are established in plats recorded after the effective date of this section.
Sec. 2. Title 11, chapter 6, article 1, Arizona Revised Statutes, is amended by adding section 11-810, to read:
11-810. Requirement of planned community prohibited
A. A county planning and zoning commission in exercising its authority pursuant to this title shall not require as part of a subdivision approval or zoning ordinance that a subdivider or developer construct or enact a planned community as defined in section 33-1802. A subdivider or developer shall not be penalized because of a lack of a planned community as part of the preliminary plat or specific plan of the subdivider or developer.
B. A county may require a subdivider or developer to construct or enact a planned community to maintain private improvements that are approved and installed as part of a preliminary plat, final plat or specific plan. A planned community that is required by a county pursuant to this subsection shall be specifically limited to the maintenance of community owned property.
C. This section shall not be construed to limit the establishment or authority of any planned community established pursuant to title 33, chapter 16.
D. Subsection B of this section applies only to those planned communities that are established in plats recorded after the effective date of this section.
Sec. 3. Title 33, chapter 9, article 3, Arizona Revised Statutes, is amended by adding section 33-1242.01, to read:
33-1242.01. Association authority; management company
For an association that is contracted with a corporation, limited liability company, limited liability partnership, sole proprietor or other lawfully formed and operating entity that provides management services to the association, the management company and its officers and employees lawfully may act on behalf of the association and its board of directors by:
1. Recording a notice of lien or notice of claim of lien of the association against a unit owner's property in the condominium if all of the following apply:
(a) The officer or employee of the management company is specifically authorized in writing by the association to record notices of lien or notices of claim of lien on behalf of the association and the officer or employee is a certified legal document preparer as prescribed in the Arizona code of judicial administration.
(b) The recordation of notices of lien or notices of claim of lien is not the primary duty of the officer or employee with respect to the association and is a secondary or incidental duty to the association.
(c) The association is the original party to the lien and the lien right is not the result of an assignment of rights.
(d) The lien right exists by operation of law pursuant to section 33‑1256 and is not the result of obtaining a final judgment in an action to which the association is a party.
2. Appearing on behalf of the association in a small claims court action if all of the following apply:
(a) The officer or employee of the management company is specifically authorized in writing BY the association to appear on behalf of the association.
(b) Appearing in small claims court actions is not the primary duty of the officer or employee with respect to the association and is a secondary or incidental duty to the association.
(c) The association is an original party to the small claims court action.
Sec. 4. Section 33-1250, Arizona Revised Statutes, is amended to read:
33-1250. Voting; proxies; absentee ballots; applicability; definition
A. If only one of the multiple owners of a unit is present at a meeting of the association, the owner is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners unless the declaration expressly provides otherwise. There is majority agreement if any one of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.
B. During the period of declarant control, votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. The proxy is revoked on presentation of a later dated proxy executed by the same unit owner. A proxy terminates one year after its date, unless it specifies a shorter term or unless it states that it is coupled with an interest and is irrevocable.
C. Notwithstanding any provision in the condominium documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and in addition, the association may provide for voting by some other form of delivery, including the use of electronic mail and facsimile delivery. Notwithstanding section 10‑3708 or the provisions of the condominium documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:
1. The absentee ballot shall set forth each proposed action.
2. The absentee ballot shall provide an opportunity to vote for or against each proposed action.
3. The absentee ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.
4. The absentee ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted absentee ballot to the member.
5. The absentee ballot does not authorize another person to cast votes on behalf of the member.
D. Votes cast by absentee ballot or other form of delivery, including the use of electronic mail and facsimile delivery, are valid for the purpose of establishing a quorum.
E. Notwithstanding subsection C of this section, an association for a timeshare plan as defined in section 32‑2197 may permit votes by a proxy that is duly executed by a unit owner.
F. If the declaration requires that votes on specified matters affecting the condominium be cast by lessees rather than unit owners of leased units all of the following apply:
1. The provisions of subsections A and B of this section apply to lessees as if they were unit owners.
2. Unit owners who have leased their units to other persons shall not cast votes on those specified matters.
3. Lessees are entitled to notice of meetings, access to records and other rights respecting those matters as if they were unit owners. Unit owners shall also be given notice, in the manner prescribed in section 33‑1248, of all meetings at which lessees may be entitled to vote.
G. Unless the declaration provides otherwise, votes allocated to a unit owned by the association shall not be cast.
H. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.
I. For the purposes of this section, "period of declarant control" means the time during which the declarant or persons designated by the declarant may elect or appoint the members of the board of directors pursuant to the condominium documents or by virtue of superior voting power.
Sec. 5. Title 33, chapter 9, article 3, Arizona Revised Statutes, is amended by adding section 33-1260.01, to read:
33-1260.01. Rental property; unit owner and agent information; fee; disclosure
A. A unit owner may use the unit owner's unit as a rental property unless prohibited in the declaration and shall use it in accordance with the declaration's rental time period restrictions.
B. A unit owner may make a written designation of a third party to act as the unit owner's agent with respect to all association matters relating to the rental unit. The unit owner shall provide the association a copy of the written designation of the agent that shall be signed by the unit owner of record for the rental unit. On delivery of the written designation, the association is authorized to conduct all association business relating to the unit owner's rental unit through the designated agent. Notice by the association to a unit owner's designated agent on any matter relating to the unit owner's rental unit constitutes notice to the owner.
C. Notwithstanding any provision in the condominium documents, on rental of a unit an association shall not require a unit owner or a unit owner's agent to disclose any information regarding a tenant other than the name and contact information for any adults occupying the unit, the time period of the lease, which includes the beginning and ending dates of the tenancy, and a description and the license plate number of the tenants' vehicles. If the condominium is an age restricted condominium, the unit owner, the unit owner's agent or the tenant shall show a government issued identification that bears a photograph and that confirms that the tenant meets the condominium's age restrictions or requirements.
D. On request of an association or its managing agent for the disclosures prescribed in subsection C of this section, The association or its managing agent may charge a fee that is limited to no more than twenty‑five dollars. The administrative fee may be charged for each new tenancy for that unit but may not be charged for a renewal of a lease. Except for the fee permitted by this subsection, the association or its managing agent shall not assess, levy or charge a fee or fine or otherwise impose a requirement on a unit owner's rental unit any differently than on an owner-occupied unit in the association.
E. Notwithstanding any provision in the condominium documents, the association is prohibited from either of the following:
1. Requiring a unit owner to provide the association with a copy of the tenant's rental application, credit report, lease agreement or rental contract or other personal information regarding the tenant except as prescribed by this section. This paragraph does not prohibit the association from acquiring a credit report on a person in an attempt to collect a debt.
2. Requiring the tenant to sign a waiver or other document limiting the tenant's civil rights of due process as a condition of the tenant's occupancy of the rental unit.
Sec. 6. Title 33, chapter 16, article 1, Arizona Revised Statutes, is amended by adding section 33-1806.01, to read:
33-1806.01. Rental property; member and agent information; fee; disclosure
A. A member may use the member's property as a rental property unless prohibited in the declaration and shall use it in accordance with the declaration's rental time period restrictions.
B. A member may make a written designation of a third party to act as the member's agent with respect to all association matters relating to the rental property. The member shall provide the association a copy of the written designation of the agent that shall be signed by the member of record for the rental property. On delivery of the written designation, the association is authorized to conduct all association business relating to the member's rental property through the designated agent. Notice by the association to a member's designated agent on any matter relating to the member's rental property constitutes notice to the member.
C. Notwithstanding any provision in the community documents, on rental of a member's property an association shall not require a member or a member's agent to disclose any information regarding a tenant other than the name and contact information for any adults occupying the property, the time period of the lease, which includes the beginning and ending dates of the tenancy, and a description and the license plate number of the tenants' vehicles. If the planned community is an age restricted community, the member, the member's agent or the tenant shall show a government issued identification that bears a photograph and that confirms that the tenant meets the community's age restrictions or requirements.
D. On request of an association or its managing agent for the disclosures prescribed in subsection C of this section, The association or its managing agent may charge a fee that is limited to no more than twenty‑five dollars. The fee may be charged for each new tenancy for that property but may not be charged for a renewal of a lease. Except for the fee permitted by this subsection, the association or its managing agent shall not assess, levy or charge a fee or fine or otherwise impose a requirement on a member's rental property any differently than on an owner‑occupied property in the association.
E. Notwithstanding any provision in the community documents, the association is prohibited from either of the following:
1. Requiring a member to provide the association with a copy of the tenant's rental application, credit report, lease agreement or rental contract or other personal information regarding the tenant except as prescribed by this section. This paragraph does not prohibit the association from acquiring a credit report on a person in an attempt to collect a debt.
2. Requiring the tenant to sign a waiver or other document limiting the tenant's civil rights of due process as a condition of the tenant's occupancy of the rental property.
Sec. 7. Section 33-1812, Arizona Revised Statutes, is amended to read:
33-1812. Proxies; absentee ballots; definition
A. Notwithstanding any provision in the community documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and in addition, the association may provide for voting by some other form of delivery, including the use of electronic mail and by facsimile delivery. Notwithstanding section 10‑3708 or the provisions of the community documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:
1. The absentee ballot shall set forth each proposed action.
2. The absentee ballot shall provide an opportunity to vote for or against each proposed action.
3. The absentee ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.
4. The absentee ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted absentee ballot to the member.
5. The absentee ballot does not authorize another person to cast votes on behalf of the member.
B. Votes cast by absentee ballot or other form of delivery, including the use of ELECTRONIC mail and facsimile delivery, are valid for the purpose of establishing a quorum.
C. Notwithstanding subsection A of this section, an association for a timeshare plan as defined in section 32‑2197 may permit votes by a proxy that is duly executed by a unit owner.
D. For the purposes of this section, "period of declarant control" means the time during which the declarant or persons designated by the declarant may elect or appoint the members of the board of directors pursuant to the community documents or by virtue of superior voting power.
Sec. 8. Title 33, chapter 16, article 1, Arizona Revised Statutes, is amended by adding section 33-1818, to read:
33-1818. Association authority; management company
For an association that is contracted with a corporation, limited liability company, limited liability partnership, sole proprietor or other lawfully formed and operating entity that provides management services to the association, the management company and its officers and employees lawfully may act on behalf of the association and its board of directors by:
1. Recording a notice of lien or notice of claim of lien of the association against a member's property in the planned community if all of the following apply:
(a) The officer or employee of the management company is specifically authorized in writing BY the association to record notices of lien or notices of claim of lien on behalf of the association and the officer or employee is a certified legal document preparer as prescribed in the Arizona code of judicial administration.
(b) The recordation of notices of lien or notices of claim of lien is not the primary duty of the officer or employee with respect to the association and is a secondary or incidental duty to the association.
(c) The association is the original party to the lien and the lien right is not the result of an assignment of rights.
(d) The lien right exists by operation of law pursuant to section 33‑1807 and is not the result of obtaining a final judgment in an action to which the association is a party.
2. Appearing on behalf of the association in a small claims court action if all of the following apply:
(a) The officer or employee of the management company is specifically authorized in writing BY the association to appear on behalf of the association.
(b) Appearing in small claims court actions is not the primary duty of the officer or employee with respect to the ASSOCIATION and is a secondary or incidental duty to the association.
(c) The association is an original party to the small claims court action.
Sec. 9. Section 41-2198.01, Arizona Revised Statutes, is amended to read:
41-2198.01. Hearing; rights and procedures
A. A person who is subject to title 33, chapter 11 or a party to a rental agreement entered into pursuant to title 33, chapter 11 may petition the department for a hearing concerning violations of the Arizona mobile home parks residential landlord and tenant act by filing a petition with the department and paying a nonrefundable filing fee in an amount to be established by the director. All monies collected shall be deposited in the state general fund and are not refundable.
B. For a dispute between an owner and a condominium association or planned community association that is regulated pursuant to title 33, chapter 9 or 16, the owner or association may petition the department for a hearing concerning violations of condominium documents or planned community documents or violations of the statutes that regulate condominiums or planned communities. The petitioner shall file a petition with the department and pay a nonrefundable filing fee in an amount to be established by the director. The filing fee shall be deposited in the condominium and planned community hearing office fund established by section 41-2198.05. On dismissal of a petition at the request of the petitioner before a hearing is scheduled or by stipulation of the parties before a hearing is scheduled, the filing fee shall be refunded to the petitioner. The department does not have jurisdiction to hear:
1. Any dispute among or between owners to which the association is not a party.
2. Any dispute between an owner and any person, firm, partnership, corporation, association or other organization that is engaged in the business of designing, constructing or selling a condominium as defined in section 33-1202 or any property or improvements within a planned community as defined in section 33-1802, including any person, firm, partnership, corporation, association or other organization licensed pursuant to title 32, chapter 20, arising out of or related to the design, construction, condition or sale of the condominium or any property or improvements within a planned community.
C. The petition shall be in writing on a form approved by the department, shall list the complaints and shall be signed by or on behalf of the persons filing and include their addresses, stating that a hearing is desired, and shall be filed with the department.
D. On receipt of the petition and the filing fee the department shall mail by certified mail a copy of the petition along with notice to the named respondent that a response is required within twenty days of mailing of the petition showing cause, if any, why the petition should be dismissed.
E. After receiving the response, the director or the director's designee shall promptly review the petition for hearing and, if justified, refer the petition to the office of administrative hearings. The director may dismiss a petition for hearing if it appears to the director's satisfaction that the disputed issue or issues have been resolved by the parties.
F. Failure of the respondent to answer is deemed an admission of the allegations made in the petition, and the director shall issue a default decision.
G. Informal disposition may be made of any contested case.
H. Either party or the party's authorized agent may inspect any file of the department that pertains to the hearing, if such the authorization is filed in writing with the department.
I. At a hearing conducted pursuant to this section, a corporation may be represented by a corporate officer, employee or contractor of the corporation who is not a member of the state bar if:
1. The corporation has specifically authorized the officer, employee or contractor of the corporation to represent it.
2. The representation is not the officer's, employee's or contractor of the corporation's primary duty to the corporation but is secondary or incidental to the officer's, or employee's or contractor of the corporation's, limited liability company's, limited liability partnership's, sole proprietor's or other lawfully formed and operating entity's duties relating to the management or operation of the corporation.