ALJDEC decisions subject to certification as final

20F-H2019013-REL · Department of Real Estate - H/C · 2019-12-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David W Hopper,

Petitioner

vs.

Las Cumbres Townhouses Association,

Respondent

No. 20F-H2019013-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 9, 2019

APPEARANCES: David Hopper, Petitioner, appeared on his own behalf. Blake Johnson, attorney, appeared on behalf of Las Cumbres Townhouse Association, Respondent.

ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera

_____________________________________________________________________

FINDINGS OF FACT

On or about September 23, 2019, Petitioner filed a Homeowners Association (HOA) Dispute Process Petition (Petition) with the Arizona Department of Real Estate (Department). Petitioner asserted a violation of Article 7, section 3 and Article 8, section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs) and Article 2, Section 1(b) and Section 1 (c) of the Las Cumbres Townhouses By-Laws (By-Laws).

On or about October 31, 2019, the Department issued a Notice of Hearing in which it set forth the issue for hearing as follows:

The Petitioner alleges that the Las Cumbres Townhouses Association is in violation of community document Bylaws Article II section 1(b) & (c) and CC&R’s Article VIII section 4 in single-issue petition.

At hearing, Petitioner testified on his own behalf and presented the testimony of his wife, Myra Hopper. Petitioner presented 12 photographs that illustrated the wall at issue and the surrounding area. Respondent presented the testimony of Robert Sorock, President of the Board, and Kathleen Boyle, Secretary of the Board.

HEARING EVIDENCE

Petitioner testified that he purchased the townhome in September 2018. Soon thereafter, he renovated the townhome. During the renovation, he used the pathway behind his neighbor’s property to haul large items and let the workers through. Neither Respondent nor his neighbor complained about Petitioner’s use of the path.

In April 2019, construction of a wall began on Petitioner’s neighbor’s yard. The wall blocked Petitioner’s pathway to the guest parking lot and front yard. Petitioner was unaware of any such construction until it began. When Petitioner notified Mr. Sorock, he informed Petitioner that there was nothing Respondent could do. Petitioner filed this Petition as a result of the wall blocking his path.

Petitioner argued that the wall prevented him from maintaining his home. Specifically, that the window company could not bring in the large windows through the back anymore and the windows would not fit through the front door and hallway.

Additionally, Petitioner argued that the wall affected his and Mrs. Hopper’s health, safety, and welfare due to a lack of an exit. The wall prevented Mrs. Hopper from exiting through the backyard away from the house in the event of a fire. Mrs. Hopper had a medical condition similar to Vertigo that prevented her from walking on rough and steep terrain that was directly behind their home and the only place they could walk to safely. Prior to the wall being built, Petitioner and Mrs. Hopper used the flat pathway, through their neighbor’s patio, to gain access to the front. No one complained of Petitioner’s use of his neighbor’s patio as a pathway.

Petitioner opined that the wall also affected the value of the property because it prohibited him from maintaining his property by not being able to install his windows or maintain basic landscape. Petitioner’s real estate agent informed Petitioner that his property lost value when the wall was built because Petitioner would have to disclose the fact that there was no access to the west side of the home. Petitioner argued that the By-Laws were implemented to protect homeowners from actions that decreased the property value.

Even though Petitioner argued lack of notice of the construction of the wall, at the hearing, Petitioner did not cite to any CC&Rs or By-Laws violated by Respondent.

At hearing, Mr. Sorock testified that Respondent was a townhome community that was established in 1972 and contained 14 townhomes. Respondent hardly had meetings until Petitioner’s Petition because everyone got along.

On or about March 26, 2019, Respondent conducted a board meeting whereby plans to mitigate erosion on Petitioner’s neighbor’s property were discussed. The project included the construction of an adobe wall that would close off the patio. The project was solely on Petitioner’s neighbor’s property. The plans were unanimously approved and were in conformity with Respondent’s common scheme and design.

The townhomes in Respondent’s community were similarly situated. Everyone had similar backyards and walkways. Nobody complained about exits and entries to their home except Petitioner because Petitioner used their neighbor’s yard as a walkway. That area was not a common area.

Petitioner complained that he was unable to bring in large windows to be replaced. Other townhomes have replaced large windows despite having similar layouts.

Respondent’s witnesses testified that there was a walkway behind Petitioner’s townhome that was considered a common area. Even though that common area was a bit steep, it was used for walking by the residents.

CONCLUSIONS OF LAW

Arizona statute permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities. A.R.S. § 32-2199 et seq. That statute provides that such petitions will be heard before the Office of Administrative Hearings.

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Article VII, Section 3 of the CC&Rs, entitled “Exterior Maintenance” provides that:

All maintenance and repair of the individual townhouse units shall be the sole obligation and expense of the individual unit Owners.

Article VIII, Section 4 of the CC&Rs, entitled “Interior And Other Maintenance” provides that:

An owner shall do no act nor any work that will impair the structural soundness or integrity of the Single-Family Dwelling nor that will impair any easement or inherited Properties, nor do any act, nor allow any condition to exist which will adversely affect the other townhouse units or their Owners.

Article II, Section 1(b) and 1(C) of the By-Laws, entitled “Purpose And Powers Of The Association” provides that:

Section 1. Purpose: This Association does not contemplate monetary gain or profit to the Owner(s), and the specific purposes for which it is formed are:

.......

b) to promote the health, safety, and welfare of the residents within the above described Properties;

c) to protected the property value for each Single-Family Dwelling and the Association.

It is undisputed that Petitioner’s neighbor constructed a wall that obstructed Petitioner’s use of his normal path. The evidence established that the path was on Petitioner’s neighbor’s private property and was not a common area. Petitioner failed to establish that Respondent violated Article VII, Section 3 of the CC&Rs; Article VIII, Section 4 of the CC&Rs; and Article II, Section 1(b) and 1(c) of the By-Laws when it approved construction of the wall. Work done on Petitioner’s neighbor’s property was done solely at the neighbor’s expense and on their private property.

In this case, Petitioner was unhappy that his use of his neighbor’s patio ended. While Petitioner enjoyed that use, and it was presumably done with the neighbor’s consent for some time. Petitioner was not entitled to continued uninterrupted use of his neighbor’s private property.

Petitioner argued that the CC&R’s and By-Laws specifically address his property rights and prevented Respondent from adversely affecting his property value or adversely affecting his right to maintain his property. Petitioner maintained Respondent violated his rights when it approved plans to build the wall.

According to Respondent, all of the townhomes were similarly situated, the wall was in conformity with other walls, and the wall was entirely on Petitioner’s neighbor’s private property.

At hearing, Petitioner argued lack of notice of the construction of the wall. However, Petitioner did not cite to any CC&Rs or By-Laws violated by Respondent with respect to lack of notice.

Furthermore, Petitioner failed to present evidence that he had a legal right of access to his neighbor’s patio as a pathway. While Respondent may have affected Petitioner’s convenience when it approved plans to build the wall, it did not violate any rules and procedures. Petitioner’s neighbors were nice enough to allow Petitioner access through their patio for some time. Petitioner was well aware of the construction of the townhomes, the closeness of the homes, and placement of the property lines when he purchased it.

While Respondent has the right to enforce homeowner’s duties as set forth in the CC&Rs and the By-Laws, nothing in the citations provided by Petitioner obligate Respondent to do so.

Thus, Petitioner failed to establish by a preponderance of the evidence that Respondent violated Article VII, Section 3 of the CC&Rs; Article VIII, Section 4 of the CC&Rs; and Article II, Section 1(b) and 1(c) of the By-Laws.

ORDER

In view of the foregoing, IT IS ORDERED that the Petition be dismissed.

NOTICE

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04. Pursuant to A.R.S. § 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, December 29, 2019.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

Transmitted through US Mail to:

David W Hopper

6270 N Cerrada Morena

Tucson, AZ 85718

Nathan Tennyson

BROWN/OLCOTT, PLLC

373 S. Main Ave.

Tucson, AZ 85701

Nathan Tennyson

BROWN/OLCOTT, PLLC

5201 N. 7th Ave

Phoenix, AZ 85013-54864001

001

-137160-45720000