If you’ve ever received a letter from your HOA’s attorney and wondered, “did the Board actually decide to do this, or did someone just call the lawyer?” — you’re asking a real and important question. Many homeowners assume that anything coming from “the Association” reflects a considered decision by their elected Board. That’s not always true, and Arizona law and most HOA governing documents set out fairly specific rules for when a Board must act as a body, and when it doesn’t have to.
The basic rule: a Board only “acts” in two ways
Most Arizona HOA bylaws — and Arizona’s Nonprofit Corporation Act, A.R.S. § 10-3821, which fills gaps where the bylaws are silent — recognize exactly two ways a Board of Directors can take a valid, binding action on the Association’s behalf.
1. A vote at a duly held meeting
This is the default, most common method. A typical bylaws provision reads something like:
“The presence in person of a majority of the Directors at the beginning of any meeting of the Board shall constitute a quorum throughout the meeting. Every act or decision done or made by a majority of the Directors at a duly held meeting at which a quorum is present shall be regarded as an act of the Board.”
Two things have to be true for this to count:
- A quorum (usually a majority of sitting Directors) is present.
- The vote happens at a properly noticed meeting. Under Arizona’s open-meeting law, A.R.S. § 33-1804, that generally means members received at least 48 hours’ advance written notice and an agenda — unless the topic falls into one of a handful of narrow categories that may be discussed in a closed executive session (legal advice from the Association’s attorney, pending litigation, certain personnel or individual-member matters).
2. Unanimous written consent (without a meeting)
Boards can also act without holding a meeting at all — but only if every single Director agrees in writing. This is governed by A.R.S. § 10-3821 and usually mirrored in the bylaws:
“…any action to be taken by the Directors… may be taken without a meeting if all Directors consent thereto in writing. Such consent shall have the same effect as a unanimous vote.”
Critically, this requires unanimous consent — not a majority. If even one Director doesn’t sign, this mechanism doesn’t apply. A.R.S. § 10-3821 also specifies that the written consent must describe the specific action being taken and be filed with the Association’s records.
So who can hire a lawyer or give legal direction without a Board vote?
This is where things get murky in practice, and where homeowners are often told something different than what the governing documents actually say.
A management company’s authority is limited to what’s delegated — in writing
Most bylaws allow the Board to delegate certain powers to a management company, but only (1) powers the bylaws specifically list the Board as having in the first place, and (2) pursuant to a written contract actually delegating that specific power. A typical provision:
“[The Board may] delegate to committees, Officers or employees of the Association or to a management company pursuant to written contract the powers described above…”
The key phrase is “the powers described above.” If retaining outside legal counsel to issue a legal opinion, or to respond to a homeowner’s statutory records request, isn’t one of the specific powers listed elsewhere in that section — collecting assessments, managing common areas, hiring vendors for routine maintenance, and similar operational items are the typical list — then a management company doesn’t automatically have authority to do it just because it runs the community day-to-day.
“Routine” legal consultation vs. a new legal position
Some management companies take the position that “routine” contact with the Association’s general counsel — a quick question, a form letter, standard collections correspondence — doesn’t require a formal Board vote, because counsel is already retained and this is business-as-usual. There’s some real-world logic to that for genuinely routine, previously-authorized matters (like ordinary collections letters under an already-approved collections policy).
But that reasoning gets shakier the further you get from “routine.” If a matter involves a new legal position taken for the first time (for example, interpreting a statute in a way that affects members’ rights), a response to a member’s formal legal request or demand, or any expenditure of Association funds for that legal work, it becomes harder to characterize as “routine business” a management company can handle on its own — precisely because it affects the Association’s legal position and its members, not just day-to-day operations.
What homeowners can actually ask for
If you receive a letter from “the Association” — especially one from outside counsel taking a position on your rights — and you’re unsure whether the Board authorized it, you generally have the right to ask, in writing, under A.R.S. § 33-1805(A) (which requires HOA records to be made reasonably available), for:
- Meeting minutes or an agenda showing a Board vote on the specific matter, including the date and the Directors present; or
- A Unanimous Consent to Action document — the written, all-Directors-signed alternative — if the Board acted outside a meeting; and
- If neither exists, written confirmation of who authorized the action, and under what specific authority.
If a management company responds that “the board president and management” handled it, or that it was “routine,” that response — by itself — doesn’t establish that a valid act of the Board occurred under either mechanism above. It may simply mean it didn’t.
Why this matters
A Board of Directors is made up of your neighbors — volunteers elected to represent the community, with fiduciary duties to act in the Association’s best interest. When a management company or an individual officer takes significant legal action in the Association’s name without the Board actually voting on it, two things can happen: the Board may be financially and legally bound to decisions it never made, and homeowners may be told a position is “the Board’s decision” when, technically, it may not be.
Knowing the difference — and knowing what to ask for — doesn’t require an attorney. It just requires knowing that “act of the Board” has an actual, specific legal meaning, and that meaning is written into your own governing documents.