Chapter 16.60
FORECLOSURE/VACANT PROPERTY REGISTRY
Sections:
16.60.040 Authority to implement.
16.60.050 Registration requirements.
16.60.070 Evidence of vacancy.
16.60.080 Fire damaged property.
16.60.090 Inspection requirements.
16.60.100 Monitoring of property.
16.60.110 Maintenance requirements.
16.60.120 Security requirements.
16.60.130 Abatement and demolition.
16.60.140 Violations and enforcement.
16.60.170 Joint and several liability.
16.60.180 Waived inspection and maintenance.
16.60.010 Purpose and intent.
It is the purpose and intent of this chapter to establish a registration program to identify and regulate foreclosures and vacant properties within the town. Furthermore, the intent of the registration program is to provide a mechanism to protect and preserve neighborhoods and the commercial district within the town from becoming unsightly and blighted due to the lack of adequate maintenance of foreclosures and vacant properties. (Ord. 19-16 § 2, 2019)
16.60.020 Definitions.
For the purpose of this chapter, the following definitions shall apply:
“Foreclosure(s)” means any property that is vacant and meets one or more of the following criteria:
1. Is under a current notice of default with any foreclosing entity and/or notice of trustee’s sale;
2. Is subject to a current foreclosure action;
3. A finding of foreclosure has been issued relative to the property;
4. Has been the subject of a foreclosure where the title was retained by the beneficiary of a deed of trust involved in the foreclosure;
5. Is owned by a foreclosing entity; or
6. Has been transferred via a deed in lieu of foreclosure.
“Foreclosing entity” means an entity holding a note secured by a mortgage, an entity holding a lien recorded with Cochise County recorder’s office, a nongovernmental entity that holds an interest in delinquent property taxes, an entity that takes property via a deed in lieu of foreclosure, an entity that has purchased a property from a sheriff’s sale, or a government entity that accepts property as a result of a government insured mortgage or loan.
“Owner” means any person, agent, operator, firm or corporation having a legal or equitable interest in the property; or recorded in the official records of the state, county or municipality as holding title to the property; or otherwise having control of the property, including the guardian of the estate of any such person, and the executor or administrator of the estate of such person if ordered to take possession of real property by a court.
“Property” means any unimproved or improved real property, or portion thereof, situated in the town, including any house, manufactured home, mobile home, building or other structure that may be located on the property, regardless of condition.
“Vacant” means any property, building, manufactured home, mobile home or structure, or any part thereof, that is not presently occupied by persons lawfully entitled thereto. It does not include any property, building, manufactured home, mobile home or structure that is unoccupied by reason of the temporary absence of lawful occupants who intend to return and resume occupancy, provided such absence does not exceed four months within a year. (Ord. 19-16 § 2, 2019)
16.60.030 Applicability.
The provisions of this chapter shall apply to all property within the town, to include all residential and commercial property. The requirements and penalties in this chapter are in addition to and shall not be considered in conflict with any and all other requirements of this title and the Huachuca City Municipal Code. Nothing within this chapter shall be construed to limit the foreclosing entity or the owner of vacant property to comply with and adhere to any and all building, housing, health, code enforcement and zoning ordinances or any other local, state and federal laws. (Ord. 19-16 § 2, 2019)
16.60.040 Authority to implement.
By means of contract, the town may assign and delegate to another person or entity the authority and responsibility to effect, collect and maintain registrations and registration fees authorized under this chapter. (Ord. 19-16 § 2, 2019)
16.60.050 Registration requirements.
A. Foreclosure Property. Any foreclosing entity that files a foreclosure action, accepts a deed in lieu of foreclosure, buys real property at a sheriff’s sale, or accepts property as a result of a government insured mortgage or loan shall, within 15 days after property becoming vacant, register the foreclosure property on forms to be provided by the town. In connection with that registration, the foreclosing entity shall also designate a property manager to inspect, maintain and secure the property. The designated property manager must be located within Arizona, and must be:
1. A duly licensed property management company or property preservation company;
2. A department or section of a foreclosing entity that is devoted to property management or preservation; or
3. A service provider specifically employed by a mortgagee to provide property management or preservation within the town.
B. Vacant Property. Any owner of vacant property, whether residential or commercial, shall, within 15 days after property becomes vacant, register the vacant property on forms to be provided by the town. In connection with that registration, if the owner does not reside within Arizona, the owner shall also designate a local property manager or agent who would be responsible to inspect, maintain and secure the property.
C. Each Property Registered Separately. Each property having a separate parcel identification number, as designated in the official records of the Cochise County assessor’s office, shall be registered separately on forms provided by the town.
D. Required Information. It is the responsibility of the foreclosing entity or the owner of vacant property making the initial application for registration, and any subsequent applications for registration, to provide the following required information:
1. The direct name, mailing address, and telephone number of the foreclosing entity or owner of the vacant property;
2. The name, address, telephone number and email address of an authorized agent for the foreclosing entity of the vacant property to receive notices of code violations, to receive process in any court and to receive notice of enforcement proceedings in connection with the enforcement of this title;
3. The name, address, email address and a 24-hour contact telephone number of the local property manager or designated agent responsible for the security and maintenance of the property;
4. The period of time the vacant building is expected to remain vacant and a plan and timetable for returning the building to appropriate occupancy or use and/or for demolition of the building.
E. Registration Renewal. The registration of the property shall remain valid for 12 months. Upon the expiration of the registration period, the foreclosing entity or the owner of vacant property shall complete another application to renew the registration of the property and pay an additional registration fee. The property registration requirement shall remain until the property is legally occupied; the foreclosure action has been dismissed; the property is purchased, and the deed transferred into the new owner’s name.
F. Change in Registration Information. Any person, firm, partnership, copartnership, association, fiduciary, beneficiary, lender, corporation or any legal entity that has registered under this chapter must report any change in registration information required by this chapter within 10 days of the change.
G. Orders Requiring Registration. If a foreclosure or vacant property is identified and found not to be registered with the town as required by this chapter, orders will be issued requiring the property to be registered.
H. Posting Contact Information. Property shall be posted with the name and contact phone number of the foreclosing entity, owner or designated property manager. The posting shall be no less than eight and one-half inches by 11 inches and shall contain, along with the name and contact number, the words: THIS PROPERTY IS MANAGED BY” and “TO REPORT PROBLEMS OR CONCERNS CALL” or substantially similar wording. The posting shall be placed in a window adjacent to the entry door or attached to the exterior of the entry door. Exterior postings must be made of weather-resistant materials.
I. Existing Vacant Buildings. Buildings or structures that are vacant property at the time of the adoption of these provisions must register within 30 days of the date these provisions take effect. (Ord. 19-16 § 2, 2019)
16.60.060 Fees.
Registration fees shall be set by the town council by resolution from time to time.
A. All registration fees shall be paid as specified by the established fee schedule for each property subject to the provisions of this chapter. Fees are nonrefundable and shall not be prorated.
B. In the case where the foreclosing entity or owner of vacant property has failed to register, there shall be assessed any added cost incurred by the town in having to determine ownership, which may include, but is not limited to, a title search.
C. The town shall have the authority to collect any additional fees owed to the town at the time the property is registered. Payment in full of all the following fines, fees and debts relating to the vacant property being registered that are owed to the town and are currently due or past due must be paid prior to obtaining registration:
1. Outstanding water, sewer, trash or landfill bills;
2. All charges for mowing, cleanup, weed or debris removal;
3. All charges for securing of the property, including locks and boarding; and
4. Any fines, penalties or debts of any sort arising from provisions of this title, including blight violations.
D. All fees hereunder that remain unpaid after 14 days’ written notice to the foreclosing entity, owner or property manager shall be assessed against the property as a lien and included on the tax roll.
E. All delinquent fees shall be paid by the foreclosing entity or owner of vacant property prior to any transfer of an ownership interest in the property. (Ord. 19-16 § 2, 2019)
16.60.070 Evidence of vacancy.
A structure or property will be presumed vacant when any condition that, on its own or combined with other conditions present, would lead a reasonable person to believe that the property is vacant. Such conditions include, but are not limited to: overgrown or dead vegetation; accumulation of newspapers, circulars, flyers or mail; past due utility notices or disconnection of utilities; accumulation of trash, junk or debris; the absence of window coverings such as curtains, blinds or shutters; the absence of furnishings or personal items; statements based on observations by neighbors, passersby, delivery agents or government employees that the property is vacant. (Ord. 19-16 § 2, 2019)
16.60.080 Fire damaged property.
If a building or structure regulated hereunder is damaged by fire, the owner has 90 days from the date of the fire to apply for a permit to start reconstruction or demolition. Failure to do so will result in the property being deemed vacant property and also subject to the requirements of this title. (Ord. 19-16 § 2, 2019)
16.60.090 Inspection requirements.
Upon registration, an exterior property maintenance inspection shall be scheduled with the code official. A notice of violation or orders to correct may be issued for any violations of this title or the Huachuca City Municipal Code identified during an inspection. Additionally, express authorization shall be provided for the town employees, and contractors designated by the town, to enter upon the property for the purpose of ensuring compliance with this chapter. Regular inspections of the property must be performed by the foreclosing entity or their property manager and an owner of vacant property or the owner’s designated agent, to ensure compliance with this chapter, title and all other applicable laws. (Ord. 19-16 § 2, 2019)
16.60.100 Monitoring of property.
A. The code official shall inspect and monitor the condition of any property required to be registered under this chapter, including building, water, fire, police/public safety, and any other inspections deemed necessary by the code official.
B. The code official or designee shall have the authority to require foreclosure entity, owner or property manager to implement additional maintenance, security, or other measures not specified in this chapter as may be reasonably required to prevent further decline or blight of the vacant property.
C. Vacant property that is left open and/or accessible shall be subject to entry by the code official in order to ensure that the property has not become an attractive nuisance and to ensure that the property is locked and/or secured. The foreclosing entity or owner of the vacant property subject to the provisions of this chapter, which property is found open or unsecured, shall be responsible for a securing fee as set by the town council to offset the costs incurred by the town in securing the property if the owner, property manager or designated agent cannot be contacted or does not secure the property within 24 hours. (Ord. 19-16 § 2, 2019)
16.60.110 Maintenance requirements.
It is declared a public nuisance for any foreclosure entity, owner, property manager or designated agent to cause, permit or maintain any property condition contrary to the provisions of this section. The owner, foreclosure entity or individual responsible for the care and control of the property shall perform regular weekly inspections of the property to assure compliance with the requirements of this section, and shall allow access to the property by the building official or code official for the purpose of inspection and in the case of emergency. Properties subject to this chapter shall be maintained in a safe and sanitary manner, in accordance with this title and Huachuca City Municipal Code, including, but not limited to:
A. Being kept free of overgrown vegetation, including grass and weeds exceeding 12 inches in height;
B. Being kept free of any accumulation of newspapers, circulars, flyers, trash, junk, debris, litter, building materials, discarded personal items, furniture, appliances or any other issue that gives the appearance of vacancy;
C. Being kept free of any infestation of rodents, insects or vermin. The owner, property manager or designated agent shall immediately upon notice undertake an expedient means of extermination of such nuisances. Such extermination shall be certified by an approved exterminator and proof of the same provided to the code official.
D. Being sure the area between the sidewalk space and the roadway (whether the sidewalk is installed or not) is free from vegetation growth, obstructions, tripping hazards, garbage, litter and debris.
E. Being sure that no yard area of an unoccupied or vacant building, or the unoccupied or vacant building itself, is utilized for the storage of any materials unless said materials are being used on site for the renovation, construction, repair or demolition of said building.
F. Being sure property is free of graffiti, tagging or similar markings by removal or painting over with an exterior grade paint that matches the color of the exterior of the building or structure affected.
G. Being sure the appearance of the exterior of the premises and the condition of buildings and accessory structures reflect the level of maintenance in keeping with the standards of the neighborhood such that the appearance of the premises and structures does not constitute a blighting factor for adjoining property owners or an element leading to the progressive deterioration and downgrading of the neighborhood with the accompanying diminution of property value.
H. Being sure every foundation, exterior wall and exterior roof shall be weathertight, watertight and rodent-proof, shall be kept in sound condition and good repair and shall be safe to use and capable of supporting the load which normal use may cause to be placed thereon.
I. Being sure all building appurtenances are securely attached so as not to cause a blighting condition, including, but not limited to, gutters, downspouts, shutters, railings, guards, steps, awnings, canopies, signs, light fixtures and fire escapes.
J. Being sure pools, spas, and other water features are kept in good working order or winterized to ensure that the water remains clear and free of pollutants and debris, or drained and kept dry and free of debris, and comply with the minimum security fencing, barrier and maintenance requirements outlined in this title.
K. Being sure detached signs and lighting systems are structurally sound and maintained so as not to cause a blighting condition or the same shall be removed.
L. Being sure fencing and retaining walls are structurally sound. Any fence or wall with broken or hanging components shall be repaired, straightened or removed.
M. Being sure utilities are properly disconnected or connected and in proper working order.
N. Being sure all perishables are removed from the interior of buildings and structures. (Ord. 19-16 § 2, 2019)
16.60.120 Security requirements.
Properties subject to this chapter shall be maintained in a secure manner, in accordance with this title and Huachuca City Municipal Code, so as not to be accessible to any unauthorized persons. Secure manner includes, but is not limited to:
A. Being sure buildings and structures are secured in such a manner so as not to be accessible to unauthorized persons. Doors, windows, and other openings that make the property accessible must be closed and locked so that a key, keycard, tool or special knowledge is necessary to gain access. Broken windows must be repaired or replaced within 14 days. Boarding up of open or broken windows is prohibited except as a temporary measure for no longer than 14 days; and
B. In the case of damaged or broken fences, gates, pool barriers and other openings, the unsecured opening must be repaired per provisions of this title. (Ord. 19-16 § 2, 2019)
16.60.130 Abatement and demolition.
Whenever a property is deemed abandoned or vacant pursuant to the terms of this title and is not maintained pursuant to the terms of this title and the Huachuca City Municipal Code, the code official may order the abatement of the violation or any other action that may be required including, but not limited to, demolition. Any abatement action shall be conducted in accordance with the provisions of this title and the Huachuca City Municipal Code. The cost of any action taken by the town shall be charged against the real estate upon which the structure or violation is located and shall be a lien upon such real estate. (Ord. 19-16 § 2, 2019)
16.60.140 Violations and enforcement.
A. It is unlawful for a responsible person under this chapter to violate any provision of this title.
B. The provisions of this chapter shall be enforced by the designated code official of the town.
C. The code official who observes a violation of any of the provisions of this chapter shall take one or more of the actions described below in order to resolve the violation:
1. Issue a notice and order to comply to the responsible person.
2. Prepare a request for a long form criminal complaint. The request will be forwarded to the town attorney for approval. The town attorney will file the complaint with the town of Huachuca City municipal court against the foreclosing entity, owner or any other party as deemed appropriate by the town attorney. The town attorney may reduce criminal violations to petty offenses or defer prosecution in the interest of justice.
3. A notice and order to comply is not required if the responsible person is the same and the person has been charged criminally within the previous 24 months for the same or similar code violation.
4. Police officers may cite any violation of this chapter as a criminal offense without notice by using the Arizona traffic ticket complaint form for enforcement.
D. In addition to any enforcement remedy otherwise available, the code official has authority to require a responsible person to implement additional maintenance and/or security measures as may be reasonably required to prevent further decline of the property. (Ord. 19-16 § 2, 2019)
16.60.150 Penalty.
A. Failure to file the required registration form, or failure to maintain the registration form containing current information, shall be a civil infraction and subject to a $100.00 fine. Each day that a registration form is not on file and each day that an owner or foreclosing entity fails to maintain current information in a registration form shall be considered a separate offense.
B. Failure to make required repairs or a second or subsequent offense of any other requirement of this chapter shall be a misdemeanor subject to prosecution. (Ord. 19-16 § 2, 2019)
16.60.160 Appeals.
Any person directly affected by a decision, notice or order under this title shall have the right to appeal to the board of adjustment; provided, that a written application for appeal and fee is submitted within 15 days from the date of the notice or order. An application for appeal shall be based on a claim that the true intent of this title or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of this title do not fully apply, or the requirements of this title are adequately satisfied by other means. Appeals heard by the board of adjustment shall be submitted on forms provided by the town. (Ord. 19-16 § 2, 2019)
16.60.170 Joint and several liability.
Any owner, person in control, foreclosing entity, or subsequent owner of property for which a notice of violation is issued to correct violations shall be jointly and severally liable for the costs incurred by the town for the abatement of violations on the property. Joint and several liability shall be attributed to each entity in the chain of title from the date of issuance of orders forward. (Ord. 19-16 § 2, 2019)
16.60.180 Waived inspection and maintenance.
A foreclosing entity’s obligation under this chapter regarding inspection and maintenance of a vacant property may be waived by the town if the foreclosing entity demonstrates to the satisfaction of the town that the circumstances set forth below exist:
A. The mortgage documents either expressly prohibit the mortgagee and its agents from entering the property for purposes required herein or do not authorize entry in order to protect the mortgagee’s interests in the property; and
B. There is a reasonable possibility, based on articulable evidence, that:
1. The obligor under the mortgage or an authorized occupant of the premises will report the entry as a trespass; or
2. The obligor under the mortgage will assert against the mortgagee, whether in a foreclosure proceeding or otherwise, a claim that the entry is a breach of the mortgage documents or constitutes an illegal or unauthorized entry on the property. (Ord. 19-16 § 2, 2019)
16.60.190 Severability.
If a section, subsection, sentence, clause or phrase of this chapter is, for any reason, held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter. (Ord. 19-16 § 2, 2019)