HOA - ALJDEC decisions

21F-H2121049-REL · Department of Real Estate - H/C · 2021-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rodney & Patricia Kirby,

Petitioner,

vs.

Dove Cove Estates Homeowners Association,

Respondent.

No. 21F-H2121049-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 22, 2021 at 1:00 PM.

APPEARANCES: Rodney and Patricia Kirby (“Petitioners”) appeared on their own behalf. Lydia Peirce Linsmeier, Esq., and Kaylee Ivy, Esq., appeared on behalf of Dove Cove Estates Homeowners Associations (“Respondent” and “Association”) with Regis Salazar as a witness.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Order to the Commissioner of the Arizona Department of Real Estate (“Department”).

FINDINGS OF FACT

Background and Procedure

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

On or about April 30, 2021, Petitioners filed a single-issue petition with the Department which alleged that the Association violated Covenants, Conditions, and Restrictions (“CC&Rs”), Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two (2) sissoo trees located on community property, just behind Petitioners’ residence. Petitioners did not indicate on their petition what remedy, if any, they sought from the Department.

On May 25, 2021, Respondent returned its Answer to the Department whereby it denied all complaint items in the petition.

Per the Notice of Hearing, the Department referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on July 28, 2021, regarding the following issue:

Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.

The Parties and Governing Documents

Respondent is a homeowners’ association whose members own properties in a residential real estate development located in Buckeye, Arizona. Membership for the Association is compromised of the Dove Cove Estates subdivision.

Petitioners are Dove Cove Estates subdivision property owners and members of the Association.

The Association is governed by its CC&Rs and overseen by a Board of Directors (“the Board”). The CC&Rs empower the Association to control certain aspects of property use within the development. When a party buys a residential unit in the development, the party receives a copy of the CC&Rs and agrees to be bound by their terms. Thus, the CC&Rs form an enforceable contract between the Association and each property owner.

On or about September 10, 2003, the Association’s CC&Rs were recorded with the Maricopa County Recorder’s Office.

Dove Cove Estates CC&Rs Article IV, Maintenance, provides, in pertinent part, as follows:

4.1 Association’s General Responsibilities. The Association shall maintain and keep in good condition and repair the Common Area (and certain other areas, as more expressly provided in this Section 4.1), and the costs of such maintenance shall be Common Expense of the Association (subject to any insurance then in effect.) This maintenance shall include, but not be limited to:

4.1.1 maintenance, repair and replacement of all landscaping, structures and improvements (including, without limitation, any and all recreational facilities and appurtenant improvements) situated upon the Common Area;

4.1.2 maintenance, repair and replacement of all landscaping in or upon public rights-of-way immediately adjacent to the exterior boundaries of the Property (or between such public rights-of-way and perimeter or boundary walls on or surrounding the exterior boundaries of the Property), and of any perimeter or boundary walls on or surrounding the exterior boundaries of the Property;

4.1.3 maintenance, repair and replacement of all landscaping and signs within areas designated on one or more subdivision plats or other instruments Recorded by, or bearing the written approval of, Declarant (or, after termination of the Class B membership, the Association) with respect to all or portions of the Property as ‘landscape easements,” “landscape and wall easements” or “landscape and sign easements” (or similar designations) to be maintained by the Association.

Hearing Evidence

Petitioners testified on their own behalf and submitted Exhibits 4-5 and 7. Respondent presented the testimony of Regis Salazar and submitted Exhibits 1-6. The Department’s electronic file was also admitted into the record. The substantive evidence of record is as follows:

Petitioners have owned residential property in Dove Cove Estates for seventeen years. Petitioners, who are both advanced in age and retired, use their pool almost daily for exercise. Petitioners maintain their pool themselves, as well as their backyard landscaping.

The Association has a landscaping contract with ProQual Landscaping (“ProQual”). ProQual provides landscaping services for all Common Areas within Dove Cove Estates, including the Common Area behind Petitioners’ property.

The Association only removes trees in the subdivision, or pays for tree removal, upon the written recommendation of ProQual.

Approximately five feet away from Petitioners’ backyard’s retaining wall are two sissoo trees, which are growing from a hill that slopes downward into the remainder of the Association’s Common Area. The trees were planted as saplings when Petitioners first purchased their home. The trees did not become a nuisance to Petitioners until about ten years later. The trees are currently stand approximately 35 feet high.

In or around 2017, Petitioners began complaining to Association’s property management company about problems they were experiencing with the sissoo trees. Specifically, Petitioners complained that debris from the trees, including leaves and small dead animals, fell into their pool and clogged the pump which had to be replaced several times. Additionally, Petitioners complained that roots from the trees caused complications with their retaining wall and back patio.

These issues persisted through the date of the hearing.

Because COVID-19 related chlorine supply-chain issues drove up the cost of the pool maintenance product, Petitioners also incurred greater costs cleaning the sissoo related debris from their pool since early 2020 despite the fact that their pool is covered.

In April of 2021, ProQual, accompanied by the Association’s President, inspected the two trees at issue behind Petitioners’ property and determined that there was not a need to cut the trees down. The Association and ProQual left the trees on the landscaping schedule for regular trimming.

On an unknown date, three sissoo trees were removed from the Common Area directly behind one of Petitioners’ neighbor’s residences. It is unknown whether the Association, neighbor, or insurance bore the cost(s) related to the trees removal.

In closing, Respondent argued that its duty to maintain foliage in the Common Areas, including behind Petitioners’ property, had been fulfilled based on ProQual’s maintenance schedule. Respondent further argued that since it reasonably relied on ProQual’s expert advice as an arborist, and ProQual had not advised to remove the sissoo trees behind Petitioners’ property, that Respondent was not in violation of Article IV of the CC&Rs.

In closing, Petitioners argued that their health and welfare were at risk because of the debris falling onto their property from the sissoo trees in Respondent’s Common Area. Petitioners’ opined that Respondent could not have taken that into consideration because no evidence suggested that Respondent ever looked at their backyard or the sissoo trees from that vantage point. Petitioners denied ever being given the opportunity to pay for the removal of the trees, and argued that the only correspondence they had ever received regarding the issue was from Respondent’s counsel threatening them not to touch the trees at all. Petitioners further opined that it was unfair that they were required to pay dues, and did, only to have their request not given the time and consideration it deserved.

Conclusions of Law

This matter lies within the Department’s jurisdiction pursuant to Ariz. Rev. Stat. §§ 32-2102 and 32-2199 et seq., regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in Ariz. Rev. Stat. § 32-2199.05.

Pursuant to Ariz. Rev. Stat. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 32-2199.02, and 41-1092 et seq. OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

“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.”

Based upon a review of the credible and relevant evidence in the record, Petitioners have sustained their burden of proof.

Here, the material facts are clear. The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area. Trees in the Association’s Common Area have caused damage to Petitioners’ property. Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard; causing a financial burden and potentially endangering their health and welfare. While the record certainly does not establish that the sissoo trees need to be removed from the Common Area behind Petitioners’ property, the record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Therefore, the undersigned Administrative Law Judge concludes that, because Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs, their petition must be granted.

ORDER

Based on the foregoing,

IT IS ORDERED that Petitioners’ petition is granted.

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this Order.

NOTICE

This Administrative Law Judge Order, having been issued as a result of a rehearing, is binding on the parties. Ariz. Rev. Stat. § 32-2199.02(B). A party wishing to appeal this order must seek judicial review as prescribed by Ariz. Rev. Stat. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties. Ariz. Rev. Stat. § 12-904(A).

-54864001

001

-137160-45720000Done this day, October 12, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile October 12, 2021 to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

[email redacted]

Rodney & Patricia Kirby, Petitioners

[email redacted]

Carpenter, Hazelwood, Delgado & Bolen LLP, Counsel for Respondent

ATTN: Lydia Peirce Linsmeier, Esq. & Kaylee Ivy, Esq.

[email redacted]