HOA - ALJDEC decisions

23F-H017-REL · Department of Real Estate - H/C · 2023-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Carolyn Wefsenmoe

Petitioner

Summit View Homeowner's Association

Respondent

No. 23F-H017-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 21, 2023

APPEARANCES: Petitioner Carolyn Wefsenmoe appeared via Google Meet on her own behalf. Respondent Summit View Homeowner’s Association was represented by Chad Gallacher, Esq.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

FINDINGS OF FACT

On or about October 19, 2022, Petitioner Carolyn Wefsenmoe filed a Homeowners Association (HOA) Dispute Process Petition (Petition) with the Arizona Department of Real Estate (Department) alleging a violation of community documents by Respondent Summit View Homeowner’s Association (SVHA). Petitioner indicated a single issue would be presented, paid the appropriate $500.00 filing fee, and asserted a violation of SVHA CC&R’s Article XI, Sections 1, 2, and 3, as well as the Summit View Community Plat Notes.

On or about December 5, 2022, the Department issued a Notice of Hearing in which it set forth the issue for hearing as follows:

The Petitioner states that the ‘[Respondent] beginning June 24, 2021, has been in violation of the community plat and and declaration Article. Section 1,2,3 (pages 16-17) by not maintaining the subdivisions perimeter walls and charging the homeowners for repairs.’

(All errors contained in the original).

After a continuance the hearing was held on February 21, 2023.

At hearing, Petitioner testified on her own behalf and Respondent presented the testimony of Bick Smith. Based on the evidence presented at hearing, the following occurred:

On or about June 14, 1996, the final plat for the Summit View neighborhood was filed with the Maricopa County Recorder’s Office. The “Notes” section read as follows:

A HOMEOWNERS ASSOCIATION, INCLUDING ALL PROPERTY OWNERS IN THE DEVELOPMENT WILL BE FORMED AND HAVE RESPONSIBILITY FOR MAINTAINING ALL COMMON AREAS, TO BE NOTED AS TRACTS, EASEMENTS LANDSCAPED AREARS, SUBDIVISION PERIMETER WALLS, AND DRAINAGE FACILITIES IN ACCORDANCE WITH APPROVED PLANS.

MAINTENANCE OF THE WALL MAINTENANCE EASEMENT (W.M.E.) SHALL BE THE RESPONSIBILITY OF THE HOMEOWNERS ASSOCIATION.

On or about May 11, 2004, Amended and Restated Declaration of Covenants, Conditions and Restrictions for Summit View were recorded with the Maricopa County Recorder’s Office.

Petitioner testified that she believed that based upon the “Notes” section on the plat map, this created an obligation on the SVHA to pay for any repairs to the walls surrounding the property. Petitioner also testified that Article XI Section 1 and 2, of the CC&R’s, placed the responsibility for repairing the walls on the SVHA, as they were considered common areas.

Further, Petitioner argued that on her walls surrounding her lots, there was erosion and other damages which was not caused by her; and because where the damage occurred was abutting the Natural Area Open Space (NAOS) and this was designated a Common Area according to the plat; it was SVHA’s responsibility to make the necessary repairs. Petitioner testified however, that she received charges for painting made done on her walls, and wanted credit back as she believes all expenses incurred for wall maintenance was SVHA’s responsibility.

On cross-examination, Petitioner testified that no survey had been completed to determine whether the walls were in the common area or the resident’s individual lots.

Bick Smith testified on behalf of Respondent. Mr. Smith testified that he was an owner of a lot for approximately 10 years, and had been on the Board for 3 years.

Mr. Smith testified that he believed that the walls in question were on each separate lot, as evidenced that they were not all uniformly encroaching on the NAOS. Further, Mr. Smith argued that if there was a wall surrounding the entire subdivision, then this would be a SVHA responsibility to repair and maintain the same.

Mr. Smith also testified that the Board had been requesting that all homeowners repair their walls, as he believed that most lots suffered from drainage issues, and while each homeowner may not have intentionally caused the damage, they had nonetheless been damaged and needed repairs.

CONCLUSIONS OF LAW

Arizona statute permits an owner of 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. 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. See Ariz. Rev. Stat. section 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. See A.A.C. R2-19-119(B)(2).

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 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.” Black’s Law Dictionary at page 1220 (8th ed. 1999).

The CC&R’s provide, in pertinent part, as follows:

ARTICLE XI: MAINTENANCE

SECTION 1. Maintenance of Common Area by the Association. The Association shall be responsible for the maintenance, repair and replacement of the Common Area and may, without any approval of the Owners being required, do any of the following:

(a) Reconstruct, repair, replace or refinish any Improvement or portion thereof upon any such are (to the extent that such work is not done by a governmental entity, if any, responsible for the maintenance and upkeep of such area);

(b) Construct, reconstruct, repair, replace or refinish any portion of the Common Area used as a road, street, walk, driveway and parking area (to the extent that such work is not done by a governmental entity, if any, responsible for the maintenance and upkeep of such area);

(c) Replace injured and diseased trees or other vegetation in any such area, and plant trees, shrubs and ground cover to the extent that the Board deems necessary for the conservation of water and soil and for aesthetic purposes;

(d) Place and maintain upon any such area such signs as the Board may deem appropriate for the property identification, use and regulation thereof;

(e) Do all such other and further acts which the Board deems necessary to preserve and protect the Common Area and the appearance thereof, in accordance with the general purposes specified in this Declaration.

SECTION 2. Exterior Maintenance By Association. In addition to the maintenance, repair and replacement of the Common Area, and the Improvements located thereon, the Association shall maintain, repair and replace the front yards landscaping on the Lots except for such landscaping as is located within a front yard that is enclosed by a fence or wall. In addition, the Association shall maintain, repair the pool, pool area and if present the cabana located thereon. In addition, the Association shall maintain the paint on the exterior walls of the buildings contained in the Project. In the event the need for maintenance, repair or replacement of any portion of the Lots which are to be maintained by the Association pursuant to this Section is caused by the wilful or negligent act of an Owner, his/her family, guests, invitees or animals for whom he is legally responsible under Arizona law, the Association shall cause the maintenance or repair to be performed, and the cost of such maintenance or repair shall be paid by the Owner upon demand, such amount shall be a lien upon any Lots owned by the Owner, and the Association may enforce collection of such amounts in the same manner and to the same extent as provided elsewhere in this Declaration for the collection and enforcement of assessments.

SECTION 3. Maintenance by Owners. Each Owner shall be solely responsible for the maintenance, repair and replacement of the following portions of his Lot:

(a) The interior of his/her Townhouse including, the interior of any yard, patio, garage or other area enclosed by fence or wall and the contents thereof, and any air conditioning unit, heating unit, hot water heater and other fixtures and equipment which service his individual Townhouse . This obligation shall include, but not be limited to, the maintenance, repair, and replacement of windows, doors and all interior surfaces of Townhouse, including, without limitation, floors, ceilings, interior wall surfaces, sheet rock (plasterboard), or wall covering;

(b) The roof of his Townhouse;

(c) Any fixtures or pipes within his Townhouse and any utility lines or pipe s from the Owner's Lot line to his Townhouse; and

(d) Such landscaping as is located in the front yard which is enclosed by a fence or wall and any landscaping contained on any side yard or backyard.

No Owner of a Lot shall do any work which will impair the structural integrity of the building in which his/her Townhouse is located or which will adversely affect any other Townhouse or the Common Area. No Owner shall perform any maintenance or repair work which would alter the exterior appearance of his Townhouse without the prior written approval of the Architectural Committee.

Based upon review of the testimony presented as well as the exhibits presented, Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area. There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area. Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot. However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result. Unfortunately, however for Petitioner, she has not proven by a preponderance of the evidence that the walls were built in the common areas, and has such, she has failed to carry her burden of proof that SVHA would be responsible for the maintenance of the same.

Accordingly, Petitioner has not established Respondent acted in violation of the community documents.

ORDER

IT IS ORDERED that Petitioner’s petitioner is 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, March 8, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile March 8, 2023 to:

Susan Nicolson

Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

Chad M. Gallacher, Esq.

Maxwell & Morgan, P.C.

4854 E Baseline Rd, Ste 104

Mesa AZ 85206

[email redacted]

Carolyn Wefsenmoe

11652 N 135th Way

Scottsdale AZ 85259

[email redacted]

By: OAH Staff