ALJDEC decisions subject to certification as final

17F-H1716023-REL · Department of Real Estate - H/C · 2017-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Barry Saxion

Petitioner,

vs.

Silverton II Homeowners Association, Inc.

Respondent

No. 17F-H1716023-REL

ADMINISTRATIVE LAW JUDGE DECISION

Pending before the Office of Administrative Hearings is Respondent Silverton II Homeowners Association, Inc.’s Motion for Summary Judgement (Motion).

Initially, Respondent argued that Barry Saxion did not own property within the Association, and therefore, did not possess standing to pursue this action. Barry Saxion did not dispute that he does not own property within the Association. A review of the Homeowners Association (HOA) Dispute Process Petition shows that Barry Saxion and Sandra Saxion both signed the Petition on the signature line as the petitioner and that both their names were typed on the Print Name line as the petitioner. When the Arizona Department of Real Estate (Department) referred the matter to the Office of Administrative Hearings, it created the caption in this case as Barry Saxion v. Silverton II Homeowners Association, Inc. However, it is clear that Sandra Saxion, who does own property within the Association, signed the Petition and has standing to pursue this action. Therefore, to the extent the Motion is premised on Barry Saxion being the Petitioner,

IT IS RECOMMENDED that the Motion be denied.

Additionally, Respondent argued that the Motion must be dismissed because Section 12.1 of the Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II (Declaration) require that all covered claims “must be resolved using the dispute resolution procedures set forth . . . in [the] Declaration and the Bylaws in lieu of filing a lawsuit or initiating administrative proceedings.” Covered claims are defined as “all claims, grievances, controversies, disagreements, or disputes that arise in whole or part out of . . . the interpretation, application, or enforcement of the Declaration or the other Project Documents.”

The plain language of the Declaration prevents this dispute, as it relates to the interpretation, application, or enforcement of the governing documents, to be brought in the Office of Administrative Hearings and mandates that the dispute must be handled through the dispute resolution process set forth in the Declaration and Bylaws. In view of the foregoing,

IT IS RECOMMENDED that the Petition in this matter be dismissed as the applicable governing documents require that the claim must be handled through the dispute resolution process prior to administrative proceedings being brought.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification.

Done this day, May 16, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate