HOA - ALJDEC decisions

22F-H2222060-REL · Department of Real Estate - H/C · 2022-09-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

M&T Properties LLC

Petitioner

Kivas Uno Homeowners’ Association

Respondent

No. 22F-H2222060-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 17, 2022

APPEARANCES: Lucas Thomas, Owner, appeared on behalf of M&T Properties LLC. David Rivandi, Director, appeared on behalf of Respondent Kivas Uno Homeowners’ Association.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Kivas Uno Homeowners’ Association (Respondent) is an association of condominium owners located in Phoenix, Arizona.

On or about June 6, 2022, M&T Properties LLC (Petitioner) filed a petition with the Arizona Department of Real Estate (Department), alleging that Respondent had violated Section 6.7 of the First Amendment to the Amended and Restated Declaration of Condominium and of Covenants, Conditions and Restrictions for Kivas Uno Condominium (CC&Rs). Petitioner indicated they were 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 states that the Respondent is in violation of the Amended and Restated Declaration of Condominium and of Covenants, Conditions and Restrictions for Kivas Uno Condominium (CC&Rs) Section 6.7. Per Petitioner “...The HOA is required to have a Professional Management Company to maintain the HOA Common Areas..” Petitioner alleges “...Colby Management Company just maintains the books.”

At the outset of the hearing, the parties all agreed that, as of the date the Petition was filed, Respondent did not have a contract with a professional management company for the management of the Association.

Mr. Rivandi asserted the Board did not know they were required to have a professional management company hired pursuant to the CC&Rs. Mr. Rivandi indicated that since the Petition had been filed, Respondent had contracted with a professional management company.

The parties attempted to raise and discuss numerous issues unrelated to the single issue raised in the Petition.

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. § 33-1248 and A.R.S. § 33-1258. 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).

On or about June 24, 2004, the First Amendment to the Amended and Restated Declaration of Condominium and of Covenants, Conditions and Restrictions for Kivas Uno Condominium was recorded with the Maricopa County Recorders Office.

Section 6.7 of the CC&Rs provides, in pertinent part, as follows:

6.7 Professional Management. Subject to the further limitations contained in this Declaration and the Condominium Act regarding the terms of a professional management contract, the Board shall at all times retain and maintain a “Managing Agent,” who is duly licensed by the State of Arizona as a property manager.

Respondent acknowledged that it did not retain and maintain a Managing Agent at the time the Petition was filed.

The failure to retain and maintain a Managing Agent was a violation of Section 6.7 of the CC&Rs.

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

ORDER

IT IS ORDERED that Petitioner’s petition is affirmed.

IT IS FURTHER ORDERED that Respondent reimburse Petitioner its $500.00 filing fee for the issue on which they prevailed.

IT IS FURTHER ORDERED Respondent is directed to comply with the requirements of Section 6.7 of the CC&Rs going forward.

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, September 6, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile September 6, 2022 to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

M&T Properties LLC

PO Box 82642

Phoenix AZ 85071

[email redacted]

Kiva Uno Homeowners Association, Inc

17220 N Bosewell Blvd., Ste 140

Sun City 85373

[email redacted]

By: Miranda Alvarez

Legal Secretary