Case No. 07F-H067014-BFS

Complaint:                   

Failure of HOA to enforce governing documents.

Source of Law:            

Declaration. 

Discussion:                  

The weight of the evidence of record did not establish that the Board had sufficient information to conclude that the business activity of the Downings on their lot constitutes a nuisance.  Section 3.11 of the CC&Rs provides the Board with sole discretion as to what constitutes a nuisance.  There is credible evidence that the Board did not consider the Downings’ business activity to be a nuisance.  Consequently, no violation of CC& R Article 3, Section 3.3 is found. The weight of the evidence of record established that the Board had information showing that the Downings violated the provisions of the Architectural Guidelines, Rear Yard and Side Yard Landscaping Sections found on page 3 by having a mist system that watered plants near the side of the boundary wall at issue and there was no credible evidence that the Downings’ corrected that situation although they represented to the Association that they would.  The Board neglected to perform any follow-up visit to confirm compliance with the request made by Mr. Kellogg.   

Holding:                       

Based on the above, the Association is ordered to comply with and enforce its CC&Rs and Architectural Guidelines in accordance with the Findings of Fact and Conclusions of Law set forth above and within forty-five days of this Order the Association shall reimburse Mr. Martin his $550.00 filing fee.  

Comments:                

Neighbor’s over-watering of lawn caused drainage problems for petitioner. Neighbor operated a plant services business in his backyard.  HOA claims it’s a dispute between neighbors, not involving HOA, and charges the petitioner with trying to involve the HOA in personal dispute. Agent for the association (manager?) found no nuisance on petitioner’s property.

 

ALJ cautioned parties not to bring in repeated witnesses to consume hearing time needlessly.  He also took time to explain OAH procedures and answer questions before opening arguments – “preliminary matters.” 

There was considerable delay due to the submission and exchange of numerous exhibits (over 25 each, many emails), and objections by opposing party.  The ALJ advised the parties to proceed a little slowly during the hearing since he will not have copies of the exhibits.

 

Motion to dismiss nuisance items by HOA was denied since it was not timely filed (missed deadline of 15 days from hearing date, without any reason for delay – see AAC, R2-19-106(C)).  HOA also filed a motion to quash (dismiss); several complaints exceeded limited jurisdiction of OAH.  Cannot bring in HOA when complaint is against a third party. 5 items out of 9 were dismissed.

 

HOA attorney was not permitted to object to witness subpoenas since he did not represent the witnesses.

 

Pat Haruff, who attended the Hearing, advises, “DO NOT and I repeat DO NOT count on the opposition following through on their witness list (they don’t have to).  MAKE SURE YOU SUBPEONA EVERYONE YOU WANT TO QUESTION!!!!” The neighbor who operated the business was on the HOA witness list, but did not appear at the hearing.

 

 The fact that a homeowner brings numerous complaints against the HOA reflects the seriousness of HOA problems, which further demands that steps be taken to insure that homeowners are not barred from due process of law, either as a result of the unequal power of the HOA or because of unreasonably high filing fees.

 This was a 5-hour hearing in which opening arguments began some 65 minutes after the start of the hearing, with additional 10 and 5-minute recesses for clarifying exhibits. 

Case No. 07F-H067015-BFS

Complaint:

Source of Law:

Discussion:

The Office of Administrative Hearings is in receipt of Petitioner’s Motion for Reconsideration of his Motion to Strike Response (Answer) and Application for Entry of Default previously filed with the Department of Fire, Building and Life Safety. . . . By virtue of this Minute Entry, the Motion for Reconsideration, a copy of which is attached, is being referred to the Director of Fire, Building and Life Safety for disposition. (2/15/07 ME).

Holding:

The Office of Administrative Hearings has received the February 26, 2007 Order issued by the Director of Fire, Building and Life Safety wherein a default decision in this matter was entered. Therefore, this matter is vacated from the docket of the Office of Administrative Hearings. (2/27/07 ME).

Comments:

This case was an apparent default decision against the HOA. Petitioner filed a motion to reconsider (implying a decision against the petitioner was made) to strike HOA’s response (invalidate the response), and sought an order of default. If the HOA doesn’t respond, a default entry is permitted. Entry of default is filed with the Dept. of Fire, Building and Life Safety, not with OAH. Further details not available at this time. Scott Carpenter was the HOA attorney.

Case No. 07F-H067006-BFS

Complaint:                   

1. discrimination by landscaping  2. threats of additional assessments 

Source of Law:           

Declaration; by-laws; case law 

Discussion:                  

At the hearing, Petitioner submitted 30 photographs of homes within Respondent’s jurisdiction illustrating the use of wrought iron and landscaping at the front of homes within the Respondent’s community. It is uncontroverted that Respondent does not have the authority to regulate a member homeowner’s landscaping.  Respondent’s contention that Petitioner’s plan to install trelliswork between the columns of his residence creates the appearance of security issues for its community is not justified by the evidence.

 There is an inconsistent logic in denying Petitioner request to install wrought iron trelliswork between the columns of his carport as he proposes, and the presence of existing wrought iron in homes throughout Respondent’s community. 

A.R.S. § 41-2198.02(A) provides that a homeowner association may be assessed a civil penalty not to exceed $500.00. Respondent threatened Petitioner with the imposition of its attorney fees in this matter, which it had no basis for doing so. The Administrative Law Judge concludes that the imposition of a civil penalty is appropriate for such improper conduct by Respondent. 

 

Holding:                  

   The Administrative Law Judge concludes that Respondent made an arbitrary and capricious decision when it did not approved Petitioner’s request for installing trellis work, but instead restricted such installation to a height limited to 3 feet 11 inches rather than 8 feet, the height of the arch above the columns. 

IT IS ORDERED that Petitioner’s request to install the trelliswork for Jasmine between the columns of his carport, including attaching the trelliswork to the structure, be granted.

IT IS FURTHER ORDERED that Respondent repay Petitioner his $550.00 filing paid to the Department within 30 days of the effective date of the entered Order in this matter.

IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00 to the Department within 30 days of the effective date of the entered Order in this matter.

Case No. 07F-H067004-BFS

Complaint:                   

HOA was negligent in maintaining its property, a sewer line that resulted in damage to petitioner’s home.

 Source of Law:       Declaration 

Discussion:                  

After careful consideration of the evidence of record and the arguments of the parties, the Administrative Law Judge concludes that Ms. McBee failed to demonstrate a violation by the Association of Section 6.3, and therefore that she failed to demonstrate grounds for an award of damages.

The Administrative Law Judge observes that even if Ms. McBee had been able to establish liability, she would not be entitled to an award of compensatory damages. Arizona case law limits administrative adjudication of monetary relief claims to awards of remedial restitution.  See Cactus Wren Partners v. Arizona Department of Building and Fire Safety, 177 Ariz. 559, 564, 869 P.2d 1212, 1217 (App. 1993).  Thus, Ms. McBee would only have been entitled to an award for expenses already incurred as a direct consequence of the backflows.  

Holding:                       

Further, the Board met its repair obligations under Section 6.3.  Thus, the Administrative Law Judge concludes that Ms. McBee failed to demonstrate that the Association violated Section 6.3 with respect to its repair obligations. Ms. McBee did not assert any other violations by the Association of the Declaration, and none are found herein.

 

 Comments          Homeowner sought punitive damages and restitution for alleged damages from HOA.   HOA filed a motion to dismiss, which was denied with respect to petitioner seeking restitution, but held that punitive damages were not applicable.  See Cactus Wren Partners v. Arizona Dept. of Building & Fire Safety, 177 Ariz. 559, 869 P.2d 1212 (App. 1993). Homeowner is seeking restitution in the amount of some $7,000 for damages caused by flooding of her home, resulting from defective installation on HOA property.

A construction defect issue or HOA failure in its duty of care? Issue concerns an improper installation by a contractor that resulted in flooding of home.  Installation was on HOA maintained, owned and controlled property. Not disputed by HOA. 

HOA says that it’s a contractor problem; petitioner says that’s right, but homeowner looks to HOA obligations under CC&Rs – let HOA deal with the contractor.  

This is a third-party problem where homeowner is damaged by work done for HOA, and homeowner has no dealings with the contractor, just the HOA. HOA claims a latent construction defect and that there was no negligence on the part of HOA. HOA is not a warrantor or guarantor of contractor, or of builder. HOA tried to fix the sewer line.

Attorney avoided discussion of the damages to the homeowner caused by this faulty installation.  ALJ informed the parties that this was not a strict negligence case, but one that involved HOA obligations under the CC&Rs.