ALJDEC decisions subject to certification as final

18F-H1817002-REL · Department of Real Estate - H/C · 2017-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Paul Herbert,

Petitioner,

vs.

Blackstone at Vistancia Community Association,

Respondent

No. 18F-H1817002-REL

ORDER RECOMMENDING DISMISSAL FOR LACK OF JURISDICTION

Respondent filed a motion to dismiss Petitioner’s Petition on the ground that Petitioner is not the owner of the property that is part of Respondent and is the subject of the Petition. Petitioner concedes that his brother Brian Herbert is the trustee of the trust that owns the property at issue in the Petition and that Petitioner is simply the beneficiary of that trust who occupies the property. Petitioner argues that the Arizona Department of Real Estate (Department) has already decided to exercise jurisdiction over the Petition and thus has deemed him an owner for purposes of the planned community statutes. Petitioner also maintains that Respondent’s community documents define the term owner to include the beneficiary of a trust and that Respondent’s architectural committee has treated him as an owner. None of Petitioner’s arguments support deviating from the plain language of A.R.S. § 32-2199.01(A).

The Department only has jurisdiction to hear disputes between an owner and a planned community association. A.R.S. § 32-2199.01(A). The plain language of the statute contemplates that a petition must be brought by an owner. Black’s Law Dictionary online defines the term “owner” as “[t]he person in whom is vested the ownership, dominion, or title of property,” i.e., Brian Herbert. By the same token, A.R.S. § 33-1802(1) defines “Association” as “a nonprofit corporation or unincorporated association of owners that is created pursuant to a declaration to own and operate portions of a planned community and that has the power under the declaration to assess association members to pay the costs and expenses incurred in the performance of the association's obligations under the declaration.” (Emphasis added). Petitioner has conceded he does not meet this definition of owner.

The Department’s forwarding the Petition to the Office of Administrative Hearings was not an acceptance of jurisdiction by the Administrative Law Judge. The Notice of Hearing expressly informed the parties that they should refile any motion with the Administrative Law Judge. As such, the Department did not decide any legal motions in this matter.

Respondent’s community documents do not change the analysis as they may employ a different definition of owner than is found in the planned community statutes.

RECOMMENDED ORDER

Because Petitioner is not an “owner” as required by the plain language of the applicable statutes, the Administrative Law Judge hereby recommends dismissal of the Petition. Nothing in this order should be construed as preventing Petitioner from seeking relief in another forum.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall be forty (40) days from the date of certification.

Done this day, August 29, 2017

Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate