There are occasions in which homeowners associations will work with the court system to deliver court orders to homeowners to fix up HOA violations. But what happens when homeowners fail to comply with these court orders? What recourse to HOAs have to ensure homeowner compliance?
This is an issue that judges frequently see in HOA court cases. Here are thoughts from a couple Arizona-based judges about HOA noncompliance and HOA violations in Arizona.
Judge Chris Skelly
Judge Skelly is known as one of the foremost mediators and arbitrators in the state of Arizona. Before working in mediation and arbitration, he served on the bench as a Superior Court judge, and was the associate presiding judge and presiding judge of the civil department for some time.
Judge Skelly says he rarely needed to handle contempt proceedings involving homeowners ignoring court orders from HOAs, and in fact, most judges rarely do these days. While it can be an effective remedy, it’s not necessarily the right solution.
“The judge is not going to just throw somebody in jail right away,” said Judge Skelly. “You know, they’re going to give this person every opportunity to do it the right way. But yeah, I mean, I suppose at some point you run out of options and that’s what’s left.”
Judge Skelly says he never put someone in jail as a result of contempt. The tools he did use, however, were frequent monetary sanctions that often were effective at encouraging homeowners to fix their behavior. The better option, in Judge Skelly’s point of view, is to look at what can be done short of sentencing someone to jail.
Judge Thomas Kleinschmidt
Judge Kleinschmidt also served as a Superior Court judge, and was on the Arizona Court of Appeals for some time. He has a significant amount of experience in HOA matters, and while he is now retired, he still enjoys keeping up with current events in the legal system.
Here’s what Judge Kleinschmidt says his process would be for dealing with a homeowner who refuses to abide by a court order.
“You have to have a show cause hearing to enforce the order, and the judge… has to know why they have not complied, and hear from both sides on that point,” he says. “But let’s assume that there is no good reason for the non-compliance, and if there isn’t then the judge has a number of options. One is to simply increase or pay or impose a fine as a penalty for a failure to comply, and you can make that a progressive fine that for every day, week or month that there is no compliance, the fine is increased. The real problem is what happens when the person is non-compliant with the court orders but has no money.”
Judge Kleinschmidt says in this situation, you shouldn’t simply put someone in jail because they don’t have money, but the court still needs to enforce its order somehow. Judges do have the option to incarcerate someone for failing to obey the order, but it’s usually a last-ditch move. Foreclosure may be an option in such a scenario.
For more information about how judges deal with HOA violations in Arizona, contact the Goodman Holmgren Smith today.