HOA - ALJDEC decisions
24F-H025-REL · Department of Real Estate - H/C · 2024-04-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of
David Y. Samuels
vs
The Concorde Condominium Home Owners Association
No. 24F-H025-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 3, 2024
APPEARANCES: David Y. Samuels appeared on his own behalf. Ashley Turner, Esq. appeared on behalf of The Concorde Condominium Home Owners Association.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing File and all of its documents contained therein.
_____________________________________________________________________
FINDINGS OF FACT
The Concorde Condominium Home Owners Association (Respondent) is an association of condominium owners located in Mesa, Arizona.
Daso Properties, LLC is the owner of 424 W. Brown Road #102, Mesa, Arizona (Property).
David Y. Samuels (Petitioner) is the managing member of Daso Properties, LLC.
The subject Property is a condominium.
On or about November 1, 2023, Petitioner filed a petition with the Arizona Department of Real Estate (Department), alleging that Respondent had violated the provisions of A.R.S. Title 33, Chapter 16, Section 33-1803. Petitioner specifically alleged, in relevant part, as follows:
The HOA (respondent) has charged late fees, collection fees, and attorney fees for delinquent assessment payments yet has not provided documentation that demonstrates these fees were warranted.
On or about November 15, 2023, the Department issued a notice to Respondent regarding the petition.
On or about December 4, 2023, Respondent filed an answer to the petition denying all allegations.
On or about December 14, 2023, the Department issued a Notice of Hearing to the parties notifying them that a hearing on the petition would be conducted by the Office of Administrative Hearings.
On or about December 14, 2023, Respondent filed a Motion to Dismiss that was denied at that time. In doing so, it was further determined that the issue(s) would be better addressed after testimony had been taken.
On April 3, 2024, a hearing was held on the petition.
CONCLUSIONS OF LAW
The Department has jurisdiction to hear disputes between a property owner and a condominium owners association.
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803 as alleged in his petition.
The Tribunal finds that, after taking testimony, Petitioner, as an individual, did not have standing to bring this action. A.R.S. § 32-2199.01(A) states, “For a dispute between an owner and a condominium association or planned community association . . . the owner or association may petition the department [of real estate] for a hearing concerning . . . violations of the statutes that regulate condominiums.” (Emphasis added). The department does not have jurisdiction to hear a dispute that does not involve an owner or an association. Id. The proper party to bring the action would have been Daso Properties, LLC.
The Tribunal further finds that the Arizona Revised Statute under which this action was brought was improper. Petitioner brought his cause of action under A.R.S. § 33-1803. However, the Property is a condominium; therefore, Respondent is not subject to the Planned Community Act. See A.R.S. § 33-1801(A) (“This chapter applies to all planned communities.”) Chapter 9 governs condominiums.
As such, Petitioner has stated no claim upon which relief can be granted under A.R.S. § 33-1801.
ORDER
IT IS ORDERED that Petitioner’s petition is 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.
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-137160-45720000Done this day, April 18, 2024.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile April 18, 2024 to:
Susan Nicolson
Commissioner
Arizona Department of Real Estate
100 N. 15th Avenue, Suite 201
Phoenix, Arizona 85007
Attn:
[email redacted]
[email redacted]
[email redacted]
[email redacted]
[email redacted]
[email redacted]
[email redacted]
David Y. Samuels
11132 Tuscolana Street
Las Vegas, Nevada 89141
[email redacted]
Ashley N. Turner
Goodman Law Group
3654 N. Power Rd., Ste. 132
Mesa, AZ 85215
[email redacted]
By: OAH Staff