OAH Case No. 11F-H1112002-BFS Date decided: open
Complaint: HOA removed entry way fountain in violation of the CC&Rs.
Source of Law: Sec. 10.2, Hunters Pointe, Mesa, AZ CC&Rs.
Discussion: Motion to Dismiss filed by HOA attorney firm, Maxwell & Morgan, in place of the usual Response/Answer to the Petition. For a motion to dismiss to be upheld, there must not be any areas of contention as to the facts. A difference in interpreting seemingly conflicting provisions of the CC&Rs arose and, on the face of it, would appear that a disagreement as to the interpretation of the CC&Rs is a bona fide question of material facts.
The HOA insists it has authority for the “alteration”, “augmentation,” and “disposal” of the Property. As a result of diminished assessments leading to needed repairs and the Mesa requirement to add a fence around the fountain, the board decided to demolish the fountain. The board voted to replace the fountain with a garden.
The HOA attorney makes the misleading claim that the CC&Rs state that the board’s interpretation of the CC&Rs is binding (which is contrary to Arizona case law that state that it is the court who interprets contracts), and it interpreted the CC&Rs in its favor.
The Petitioner responded to the motion to dismiss pointing out to the ALJ wordings in the same provisions that were partially quoted by the HOA attorney, and that supported his claim for the restoration of the fountain and not its destruction and replacement. Petitioner alleges that the HOA knew that the fountain had to be repaired, and that he, and other homeowners, was not aware of any decision to remove the fountain until work began. Allegations of bad faith conduct by the board were offered regarding the board’s failure to discuss the issue.
Holding: Denied by ALJ, Oct. 13, 2011.
HOA attorney: Maxwell & Morgan
Comments: In my view, the ALJ properly decided to dismiss the motion. It is quite obvious that there were controversies as to the facts in this situation, and a motion to dismiss was not warranted. I presume that there will be an Answer filed by the HOA attorney – another step and more documents.
The Petitioner responded to the motion as required by the rules, with facts and evidence.
Interpreting the CC&Rs is often confusing. I agree that it is contrary to AZ law for the board’s interpretation to be binding. Good decision to dismiss.