ALJDEC decisions subject to certification as final

19F-H1919056-REL · Department of Real Estate - H/C · 2019-07-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 10, 2019 APPEARANCES: Bonnie Senftner on her own behalf; Shlomit Gruber, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT 1. On May 16, 2019, the Arizona Department of Real Estate issued a Notice of Hearing setting the above-captioned matter for hearing on July 10, 2019 at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing shows that Petitioner Bonnie Senftner alleges that Respondent Desert Wind Condominium Association has violated Association CC&Rs Article XIV, section 14.2. 3. Article XIV is entitled “Party Walls.” Section 14.2 provides: Damage by One of the Adjoining Owners. If any party wall is damaged or destroyed through the act or acts of one adjoining Owner, or any of his guests, tenants, licensees, agents, servants or members of his family (whether such act is willful, negligent or accidental), such adjoining Owner shall forthwith proceed to rebuild or repair the same to as good a condition as formerly, without cost to the other adjoining Owner.

4. CC& R Section 1.12 defines a party wall as “a wall located upon or at the division line between adjoining Units and used by both Owners of such Units in the construction of Improvements of their respective Units.” 5. Ms. Senftner appeared and testified and presented the testimony of her husband Michael Senftner. Respondent presented the testimony of Harman Cadis of Focus HOA Management. 6. The Senftners own an LLC that owns unit 116. Water from unit 216 caused damage to a wall in the Senftners’ unit.[1] 7. Mr. Cadis testified that Respondent had a plumber check for leaks. The plumber found that there were no leaks and that the source of the water was a washing machine in unit 216 that was improperly installed in that it was draining into a sink. The water entering the wall was the result of the drain pipe being over-topped because it was unable to accommodate the washer’s discharge. 8. Respondent subsequently had a second plumber go to the site and he determined that the drain line from unit 216 that ties into the drain line in unit 116 needed repairs. According to Mr. Cadis, these repairs were required because the discharge from the washer in unit 216 had damaged the pipe. 9. Respondent subsequently paid to have the pipe repaired, to have mold remediation work completed, and to have drywall repairs made. 10. Petitioner asserts that because Respondent made these repairs, it accepted that it was responsible for the damage. Petitioner had testing for mold conducted and argues that Respondent should be required to reimburse her for that testing. 11. Petitioner also argues that the CC&Rs show that Respondent is responsible to act when there is a disagreement between unit owners regarding the cost of repairs. Petitioner could cite no provision in the CC&Rs to support her position. 12. CC&R Section 10.5 does have a provision calling for Respondent to submit certain disputes for arbitration, but that section deals with disputes between the Association and unit owners regarding repairs made to common areas, and not disputes between two owners regarding party walls. CONCLUSIONS OF LAW 1. The Department of Real Estate has authority over this matter. Ariz. Rev. Stat. Title 32, Ch. 20, Art. 11. 2. Petitioner bears the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. Black’s Law Dictionary 1373 (10th ed. 2014). 4. The CC&Rs are a contract between the parties and the parties are required to comply with its terms. See Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003). 5. Petitioner has not shown that Respondent violated CC&R Section 14.2. The preponderance of the evidence shows that the water damage for which Petitioner seeks redress was caused by the Owner of unit 218, and Section 14.2 imposes no duty on the Respondent to repair such damage. Although Respondent did repair the damage, Petitioner presented no credible evidence or legal authority showing that by making those repairs, Respondent became obligated to reimburse Petitioner for any expenses she incurred. 6. Consequently, Petitioner’s petition should be dismissed. ORDER IT IS ORDERED that Petitioner Bonnie Senftner’s petition is dismissed. . NOTICE Pursuant to Ariz. Rev. Stat. section 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to Ariz. Rev. Stat. section 32-2199.04. Pursuant to Ariz. Rev. Stat. section 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Done this day, July 22, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Copy mailed/e-mailed/faxed to:

Judy Lowe, Commissioner Arizona Department of Real Estate 100 N. 15th Avenue, Suite 201 Phoenix, Arizona 85007

Shlomit Gruber, Esq. Resnick & Louis, P.C. 8111 E. Indian School Bend Rd. Scottsdale, AZ 85250

Bonnie Senftner 3100 S Rural Rd., Suite #2 Tempe, AZ 85282

By Felicia Del Sol ----------------------- [1] There is information in the record related to unit 218 owned by Petitioner, but she acknowledged that unit 218 is not at issue in this petition.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826