HOA - ALJDEC decisions

26F-H012-REL · Department of Real Estate - H/C · 2026-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tatiana Hernandez,

Petitioner,

Barcelona Manor Association, Inc.,

Respondent.

No. 26F-H012-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 17, 2026

APPEARANCES: Petitioner Tatiana Hernandez appeared on her own behalf. Dr. Bryson Struse appeared on behalf of Respondent Barcelona Manor Association, Inc., with witness Erik Myers.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice taken of Agency Record; Petitioner Tatiana Hernandez’s Exhibit’s 1 through 8

FINDINGS OF FACT

Barcelona Manor Association, Inc. (“Respondent”) is a condominium association located in Tucson, Arizona.

On or about January 9, 2026, Tatiana Hernandez (“Petitioner”) filed a petition with the Arizona Department of Real Estate (“Department”) alleging that Respondent had violated A.R.S. § 33-1247 and the CC&Rs, including Sections 9.1(iii), 9.4, and 13.2. Petitioner paid the required $500.00 filing fee to address the one issue claimed in the petition.

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

On December 18, 2025, at or about 5:00 pm, the Association violated A.R.S. § 33-1247 and the Declaration, including Sections 9.1(iii), 9.4, and 13.2, by determining that I am responsible for repair and damage caused by a plumbing component that services my unit but is not located within my unit, is fully concealed within the ceiling of another unit, and is inaccessible to me, despite Section 9.1(iii) assigning the Association responsibility for plumbing located outside unit boundaries and Sections 9.4 and 13.2 applying only to damage caused by an owner’s act or neglect, which is not present here.

Petitioner is the owner of Unit 624. Petitioner testified that a plumbing component located in the ceiling below her unit, which cannot be accessed or maintained by her, experienced a leak. The leak was caused by a faulty P-trap that had been installed by the previous owner of her unit. Petitioner testified that she had no knowledge of it, and Petitioner asserted that therefore, there was no negligence on her part. Petitioner testified that her downstairs neighbor informed her that the leak was “a problem before her” and blamed the previous owners.

Petitioner testified that Respondent requested that she not use her shower for six months and she complied with the request, instead showering at her gym.

Petitioner acknowledged that the owner of the unit below hers has not denied access to the area. Petitioner further acknowledged that prior to purchasing her unit, her realtor recommended a home inspection of the unit be conducted to ensure that it was free of defects and Petitioner paid for the inspection. Petitioner asserted that the previous owner did not disclose the issue.

However, the Residential Seller’s Property Disclosure Statement (“Disclosure”) that was provided to Petitioner prior to the purchase of her unit by the previous owner, indicates on line number 172, that Silverado Rooter & Plumbing ROC 201381, tightened the bathtub drain. The Disclosure also indicates for line number 285, that the seller was “aware of any water damage or water leaks of any kind on the property” and the attachment to the Disclosure indicates in pertinent part:

Line 172. – Minor plumbing repair performed by Silverado Rooter & Plumbing

Line 175. – Plumbing work was tightening a drain nut which is complete

Line 285. – . . . Tub had leak from drain nut which was tightened.

Therefore, Petitioner was aware that a plumbing issue had existed prior to her purchasing the unit.

Dr. Bryson Struse, the HOA Board President, testified that the non-code compliant work performed by the previous owner of the unit has caused a leak and damage to the unit below Petitioner’s unit and Respondent was not provided notice regarding the work performed.

The parties agreed that the previous owner was negligent.

The disagreement lies in who is responsible for the previous owner’s negligence. Petitioner asserted that Respondent is responsible and should have done its due diligence in discovering the issue prior to her taking possession of the unit. Respondent asserted that while Petitioner did not cause the issue, Petitioner is responsible for having “inherited” the issue from the previous owner, as she purchased the unit with an existing defect. Respondent further asserted that the previous owner of the unit and the home inspector should held liable.

CONCLUSIONS OF LAW

The Department has jurisdiction to hear disputes between a property owner and a condominium association.

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1247 and the CC&Rs, including Sections 9.1(iii), 9.4, and 13.2 as alleged in her petition.

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.”

A.R.S. § 33-1247(A) provides as follows:

Except to the extent provided by the declaration, subsection C of this section or section 33-1253, subsection B, the association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit. On reasonable notice, each unit owner shall afford to the association and the other unit owners, and to their agents or employees, access through the unit reasonably necessary for those purposes. If damage is inflicted on the common elements or any unit through which access is taken, the unit owner responsible for the damage, or the association if it is responsible, is liable for the prompt repair of the damage.

CC&R Section 9.1(iii) states:

All conduits, ducts, plumbing wiring and other facilities for the furnishing of utility services which are contained in the portions of a Unit maintained by the Association, and all facilities contained within a Unit which service part or parts of the Condominium Property other than the Unit within which such facilities are contained.

CC&R Section 9.4 states in pertinent part:

If, due to the act or neglect of an Owner or a member of his family or household pet or guest or other authorized Occupant, or visitor or invitee of such Owner, damage shall be caused to the Common Elements or to a Unit owned by others, or maintenance, repairs or replacements shall be required which would otherwise be at the Common Expense, then such Owner shall pay for such damage and for such maintenance, repairs and replacements as may be determined by the Board, to the extent not covered by the Association’s insurance.

CC&R Section 13.2 states:

Amount of Assessment. Each Condominium Unit and the Owner thereof, subject to the terms hereof, shall be assessed an amount of the Common Expense equal to that Condominium Unit’s ownership interest in the Common Elements, and in addition thereto, and by means of a special assessment:

If a Condominium Unit Owner fails to perform maintenance, repairs, and replacements which are his obligation, then, after written notice from the Board to perform such maintenance, repairs, or replacements within a reasonable time limit as may be set by the Board, the Board may perform such needed maintenance, repairs, and replacements, and shall levy an assessment against such Condominium Unit Owner thereof equal to the amount so expended.

All costs incurred in the enforcement of the provisions of this Declaration against and Condominium Unit Owner, including but not limited to attorney’s fees and court costs shall be assessed to the Unit and the Owner against whom enforcement is sought.

The Administrative Law Judge finds that CC&R Section 13.2 is inapplicable to the instant matter.

In this case, Petitioner has alleged that the leak was caused by a faulty plumbing repair in the common element. However, the area in which the issue has arisen is in area only between her unit and the unit beneath her unit and was not caused by Respondent nor was Respondent aware of the faulty repair that had been performed by the previous owner of the unit. Petitioner was on notice that this repair had been made as disclosed by the previous owner in the Disclosure. Moreover, Petitioner did not establish that the area containing the P-trap is in an area of a Unit maintained by the Association or contained within a Unit which services part or parts of the Condominium Property other than the Unit within which it is located. The faulty P-trap, which is the mechanism causing the leak, is specific to Petitioner’s unit.

Therefore, the Administrative Law Judge concludes, based upon the evidence presented at hearing, that Respondent has not violated the referenced statutory provision or the referenced CC&Rs.

Petitioner failed to prove by a preponderance of the evidence that Respondent violated the cited statute and referenced CC&Rs as alleged in the petition.

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.

-54864001

001

-137160-45720000Done this day, April 29, 2026.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile April 29, 2026, to:

Susan Nicolson, Commissioner

Arizona Department of Real Estate

Barcelona Manor Association, Inc.

[email redacted]

Tatiana Hernandez

[email redacted]

By: OAH Staff