Archive for March, 2011

Check Your CC&Rs as HOA May Regulate Placement of Solar Panels

March 30, 2011
Question: I purchased a home in Gilbert that was in extremely poor condition at a foreclosure sale about six months ago. We have spent almost $40,000 refurbishing and repairing this home, which included the installation of solar heating panels on the roof. We just received a letter from our homeowner’s association (“HOA”) stating that the solar heating panels in the roof must be removed. If clean energy is the current goal of our society, why do we have to remove the solar heating panels from our roof? Can the HOA make us remove these solar heating panels?

Answer: I assume that your HOA has a provision in the Covenants, Conditions and Restrictions (“CC&Rs”) regulating the placement of solar heating panels in your community. This CC&Rs provision can regulate the placement of solar heating panels, including prohibiting the placement of solar heating panels on a homeowner’s roof, only if this provision in the CC&Rs does not “adversely affect the cost or efficiency” of the solar heating panels. A.R.S. §33-1816(B). Therefore, if the removal of the solar heating panels from your roof to another location on your lot would affect the cost or efficiency of the solar heating panels, you are not required to remove the solar heating panels from your roof.

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Homeowner Responsible for Fees, Insurance and Maintenance Until Foreclosure Sale After Mortgage Default

March 30, 2011
Question: We were unable to make the payments on our Gilbert home. Because of the mortgage default a foreclosure sale was scheduled for May 7. We moved out of the home before the May 7 foreclosure sale, however, we recently learned that the May 7 foreclosure sale had been postponed and no new foreclosure sale date has been set. I contacted the Arizona real estate law firm that was handling the foreclosure sale, and this law firm could not give me a definite date for the foreclosure sale. How can I learn when the foreclosure sale will occur? Do I have to keep paying the homeowner’s association monthly fees even though I no longer live in the home? Real property taxes?

Answer: First, any homeowner subject to foreclosure of their home should attend the foreclosure sale. Although many mortgage lenders have websites with information about foreclosure sale dates, under Arizona real estate law only the people attending the foreclosure sale have the right to learn about the postponement of the foreclosure sale and any new foreclosure date. Second, a lender can postpone a foreclosure sale indefinitely, subject to the six-year statute of limitations for enforcement of the mortgage loan. Third, you are personally liable for the homeowner’s association monthly fees, plus the reasonable maintenance of the home, until the foreclosure sale occurs. Therefore, in addition to paying the homeowner’s association monthly fees, you must keep the homeowner’s insurance policy current, including any endorsement for coverage of the home which is now abandoned. Finally, your real property taxes are a non-recourse obligation, and you have no personal liability for real property taxes. Any foreclosure of a real property tax lien will only occur at least several years after the real property taxes are delinquent.

Arizona Real Estate Law Says Neighbor Can Trim Trees But Also Pay

March 29, 2011
Question: Our backyard backs up to a bridle trail in Tempe. Although our homeowners association owns the bridle trail, our neighboring homeowner is required to maintain this bridle trail. Our neighboring homeowner has contacted us about the branches of several of our twenty-year-old pine trees hanging over our back wall and impeding horseback riding on the bridle trail. One young lady was apparently almost knocked off her horse. Therefore, unless there is damage to our pine trees, we would have no objection to these branches being trimmed. Under Arizona real estate law, however, who has the obligation to pay for the cost of trimming these overhanging branches?

Answer: The general rule is that a neighboring homeowner is entitled to trim the branches of a neighbor’s tree that hang over onto the neighboring homeowner’s property, provided that this trimming will not kill the neighbor’s tree. Therefore, prior to trimming the branches of your pine trees, your neighboring homeowner should get an opinion from an arborist that such trimming will not kill your pine trees. Under Arizona law, unlike California law, the neighbor owning the trees is generally not required to reimburse the neighboring homeowner for the cost of trimming the overhanging branches. 145 Ariz. 115. Therefore, your neighboring homeowner should have to pay for the cost to trim your pine trees.

Five Day Notice Required by Arizona Real Estate Law to Evict

March 29, 2011
Question: Four months ago my husband was transferred to Phoenix by his company. We have been living with my husband’s parents since we arrived in Phoenix and last week we closed on the purchase of a home. The contract said that the seller would move out of the home at the time of closing, but the seller asked to stay for another week. That week is up, and now the seller wants to stay another ten days. What can we do?

Answer: In the contract the seller “promised” to move out at the time of closing. The seller broke this promise. The seller now wants to break another promise that the seller would move out after a week. You should politely but firmly say “no” to the seller’s request for an additional ten days, unless the seller pays compensation to you for this additional ten days. If you cannot reach an agreement with the seller, you are required to deliver a five-day notice to the seller to move out. You should also inform the seller that you will be contacting an Arizona real estate law attorney, and that the seller will be liable for damages, including legal fees and court costs to evict the seller. If the seller does not move out after five days, you should contact an attorney to institute eviction proceedings against the seller.