ALJDEC decisions subject to certification as final

22F-H2222046-REL · Department of Real Estate - H/C · 2022-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Katherine Belinsky

Petitioner

Del Cerro Condos

No. 22F-H2222046-REL

ADMINISTRATIVE LAW JUDGE DECISION

Respondent

HEARING: July 1, 2022

APPEARANCES: Petitioner Katherine Belinsky appeared on her own behalf. Alessandra Wisniewski appeared via Google Meet on behalf of Respondent Del Cerro Condos.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Del Cerro Condos (Respondent) is an association of 14 condominium unit owners located in Lake Havasu, Arizona.

On or about April 18, 2022, Katherine Belinsky (Petitioner) filed a petition with the Arizona Department of Real Estate (Department), alleging that Respondent had violated the provisions of A.R.S. 33-1805. Petitioner indicated it was claiming one issue in the Petition and paid the required $500.00 filing fee.

The Notice of Hearing in this matter set forth the issues to be determined as follows:

Petitioner, in her Homeowners Association (HOA) Dispute Process Petitioner (Petition) against the Respondent is alleging failure to provide books, records and accounts in violation of A.R.S. § 33-1805(A). Petitioner is requesting ‘[Respondent] to abide by Arizona statute specified...’

At hearing before the Office of Administrative Hearings, an independent State agency, Petitioner testified on her own behalf.

Petitioner testified that over the past three to four years, there had been no responses to her records requests by Respondent. Specifically, Petitioner testified that her last records request was in March 2022, but has been frustrated as the property manager changes frequently, and there are many different addresses as to where to send the monthly dues.

On the monthly dues issue, Petitioner testified that she does not know which bank Respondent uses, and was unsure as to how the money was spent.

Finally, Petitioner testified that none of the items she asked for she was given, and if there was a disclosure, it had been doctored.

Respondent offered the testimony of Alessandra Wisniewski and Amanda Butcher. In addition, twenty-four exhibits were entered into evidence.

Ms. Wisniewski was the current Vice President of the Board. She testified when she first purchased her unit in March 2021, she was approached to become a member of the Board. She quickly discovered that there were numerous issues with the units as they had been built in 1969, and had not had much upkeep. In addition, there was only $1,000.00 in the reserve bank account.

Next, Ms. Wisniewski testified that the Londonderry management company, notified the Board in August of 2021 that they no longer wished to be the property manager, so she removed them from the bank account. Thus, for the next two months she and Amanda Butcher ran the HOA, until a new property manager, (PMI), took over towards the end of September 2021.

Ms. Wisniewski then testified that due to the condition of the property, the Board had decided to issue a special assessment of $5,000.00 to the unit owners. After the unit owners were notified by mail, Petitioner then contacted PMI in February 1, 2022, stating that she would not be paying the special assessment.

Ms. Wisniewski testified further that on March 9, 2022, Petitioner e-mailed correspondence to PMI indicating that she had never been sent bank statements. Later that day, PMI responded that this was the first time she requested the documents, and attached financial statements dating back to September 2021. Further, Petitioner was informed that if she wanted any earlier statements, she would have to set up an appointment to pick up the documents because PMI did not have the same on hand. Ms. Wisniewski testified that Petitioner never followed through with this request.

Ms. Wisniewski testified that also on March 9, 2022, Petitioner sent her an e-mail requesting the same documentation. Ms. Wisniewski testified that she replied that same day and reminded Petitioner that some documents had already been produced to her at the Board meeting, and they were working on compiling the rest of the documents.

Ms. Wisniewski testified that on March 23, 2022 she sent an e-mail to Petitioner reminding her to set up an appointment with PMI to review the records she requested. Ms. Wisniewski continued that on March 25, 2022, Petitioner again e-mailed PMI requesting the information as well as the community governing documents. Ms. Wisniewski testified that PMI responded to Petitioner on March 28, 2022, and attached the documents it had in its possession, and reminded Petitioner that she received some information already and that other information would be made available at the office for her review if she made an appointment.

Ms. Wisniewski testified that PMI resigned from its role as property manager in April 20, 2022, and a new property manager was hired, namely Community Financials. Ms. Wisniewski testified that on May 17, 2022, Petitioner informed Community Financials of her previous records request, and gave them 10 days to comply with the same.

Next, Respondent presented the testimony of Amanda Butcher. Ms. Butcher currently served as the President of the Board. She testified that the Board and the management companies very promptly responded to Petitioner’s requests and she personally sent the bank statements to Petitioner on March 4, 2022. Ms. Butcher testified further that the association still uses Glacier/Foothills Bank and that she provided the most recent statements to Petitioner the day before the hearing.

CONCLUSIONS OF LAW

The Department has jurisdiction to hear disputes between a property owner and a condominium unit owners’ association. A.R.S. § 32-2199 et seq.

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805. A.A.C. R2-19-119.

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

A.R.S. § 33-1805 provides, in relevant part, as follows:

Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative. The association shall not charge a member or any person designated by the member in writing for making material available for review. The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.

When construing a statute, the primary goal is to ascertain the legislature’s intent. State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007). This is accomplished by first looking to the text of the statute. Id. If the language is clear, its plain meaning is ascribed, unless it would lead to absurd results. Id.; Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991). If ambiguity exists, secondary principles of statutory construction are used to determine the intent. Contes, 216 Ariz. at 527.

A.R.S. § 33-1805 requires that association documents, with certain identified exceptions, “shall be made reasonably available for examination by any member...in writing”. Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

In this case, Petitioner clearly made her requests in writing, however, Petitioner failed to establish that she was denied access to the financial records. Multiple exhibits demonstrated the Board and property manager responding to her requests timely and with some documents attached. Further, the preponderance of the evidence demonstrates that Petitioner was always granted an opportunity to make an appointment to review the other records and she failed to do so. Further there was no evidence presents that her requests for appointments were denied.

ORDER

IT IS ORDERED that Petitioner’s petition denied.

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.

-54864001

001

-137160-45720000Done this day, July 14, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre

Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

Katherine Belinsky

571 Burkemo Ln., Ste #8

Lake Havasu AZ 86406

[email redacted]

Del Cerro Condo

1930 Mesquite Ave., Ste 1

Lake Havasu City, AZ 86403

[email redacted]

By:-54864001

001

-137160-45720000 Miranda Alvarez

Legal Secretary