Case Summary
| Case ID | 20F-H2020057-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2020-08-17 |
| Administrative Law Judge | Adam D. Stone |
| Outcome | loss |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Susan E Abbass | Counsel | — |
|---|---|---|---|
| Respondent | 10000 North Central Homeowners Association | Counsel | Blake Johnson, Esq. |
Alleged Violations
CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4
Outcome Summary
The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.
Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.
Key Issues & Findings
Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.
Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.
Orders: Petitioner's petition in this matter was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- ARIZ. REV. STAT. § 32-2102
- ARIZ. REV. STAT. § 32-2199 et al.
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. § 32-2199(2)
- ARIZ. REV. STAT. § 32-2199.01(D)
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. REV. STAT. § 41-1092
- CC&R Article XII Section 6
- CC&R Article XIII Section 1(d)
- CC&R Article XIII Section 4
Analytics Highlights
- ARIZ. REV. STAT. § 32-2102
- ARIZ. REV. STAT. § 32-2199 et al.
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. § 32-2199(2)
- ARIZ. REV. STAT. § 32-2199.01(D)
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. REV. STAT. § 41-1092
- ARIZ. REV. STAT. § 41-1092.09
- ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
- CC&R Article XII Section 6
- CC&R Article XIII Section 1(d)
- CC&R Article XIII Section 4
Video Overview
Audio Overview
Decision Documents
20F-H2020057-REL Decision – 839845.pdf
20F-H2020057-REL Decision – ../20F-H2020057-REL/815490.pdf
Briefing Document: Abbass vs. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.
The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.
Case Overview
Case Name
Susan E Abbass vs. 10000 North Central Homeowners Association
Case Number
20F-H2020057-REL-RHG
Jurisdiction
In the Office of Administrative Hearings (Arizona)
Administrative Law Judge
Adam D. Stone
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)
Hearing Date
November 24, 2020 (Rehearing)
Decision Date
December 1, 2020
Core Dispute and Allegations
Petitioner’s Central Claim
The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.
• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.
Petitioner’s Position and Evidence
• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”
• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.
• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.
• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
Respondent’s Defense and Actions
Respondent’s Position
The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.
• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.
• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”
Actions Taken by the HOA
Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:
• It reached out to the neighboring property owner to request access.
• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.
• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.
• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.
Procedural History and Rehearing
1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.
2. Initial Hearing (July 28, 2020): The first hearing was conducted.
3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.
4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”
5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.
6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.
Administrative Law Judge’s Findings and Conclusions
Burden of Proof
The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”
Key Judicial Determinations
• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.
• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”
• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Order and Implications
• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”
• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.
• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 20F-H2020057-REL-RHG, involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It includes a short-answer quiz with an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case document.
1. Who were the primary parties in this case, and what was the central dispute?
2. What specific articles of the community documents did the Petitioner allege the Respondent had violated?
3. What was the outcome of the initial administrative hearing held on July 28, 2020?
4. On what legal grounds did the Petitioner successfully request a rehearing of the case?
5. What was the Respondent’s main argument for not forcing an inspection of the neighboring property?
6. What key point regarding the Respondent’s authority did the Petitioner concede during the rehearing?
7. According to the decision, who bears the burden of proof, and what is the evidentiary standard required to meet it?
8. What evidence did the Respondent introduce during the rehearing on November 24, 2020?
9. What was the final ruling of the Administrative Law Judge, and what did the order state?
10. What specific limitation on the Administrative Law Judge’s power is cited in the Conclusions of Law?
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Answer Key
1. The primary parties were the Petitioner, Susan E. Abbass, and the Respondent, 10000 North Central Homeowners Association. The central dispute was the Petitioner’s claim that the Respondent failed to fulfill its duty by not allowing an inspection on a neighboring property to find the source of a water leak affecting the Petitioner’s home.
2. The Petitioner alleged that the Respondent had violated Article XII, Section 6 and Article XIII, Sections 1(d) and 4 of the Covenants, Conditions, and Restrictions (CCR’s).
3. Following the July 28, 2020 hearing, the Administrative Law Judge issued a decision on August 17, 2020, concluding that the Petitioner had failed to meet her burden of proof. The judge found that the Respondent only had the right to enter the neighboring property, not an obligation to do so.
4. The Petitioner’s request for rehearing was granted based on her claims that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
5. The Respondent argued that the Petitioner had not provided sufficient proof of the neighbor’s fault to justify forcing access. The Respondent was also concerned that overstepping its authority could expose the association to other legal actions.
6. During the rehearing, the Petitioner agreed with the Respondent’s position that the association does not have an obligation to enter the neighboring property, only the right to do so.
7. The Petitioner bears the burden of proof. The evidentiary standard is “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. At the rehearing, the Respondent introduced Exhibits K, L, and M. These were photographs that purportedly showed where a pipe was fixed and how drainage moves away from the Petitioner’s property.
9. The final ruling concluded that the Respondent had not violated the CCR’s and was the prevailing party. The order dismissed the Petitioner’s appeal.
10. The decision cites A.R.S. § 32-2199.02(A), which states that an Administrative Law Judge may only order a party to abide by the statutes, community documents, or contract provisions at issue. The judge cannot force the Respondent or the neighbor to grant access to the property.
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Suggested Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-format response. Answers are not provided.
1. Analyze the legal distinction between a “right” and an “obligation” as it pertains to the Homeowners Association’s authority under the CCR’s in this case. How was this distinction central to the Administrative Law Judge’s final decision?
2. Discuss the concept of “preponderance of the evidence” as defined in the legal decision. Detail the evidence and arguments presented by both the Petitioner and Respondent, and explain why the judge ultimately concluded that the Petitioner failed to meet this standard.
3. Trace the complete procedural history of this case, from the filing of the initial petition to the final order. Identify the key dates, actions taken by each party, and the rulings made at each stage of the administrative process.
4. Evaluate the actions taken by the Respondent (10000 North Central Homeowners Association) in response to the Petitioner’s complaint. Based on the Findings of Fact, did the association act reasonably and in compliance with the CCR’s?
5. Explain the jurisdiction and statutory limitations of the Office of Administrative Hearings in resolving disputes between homeowners and their associations, as outlined in the decision. What remedies were available to the Petitioner through this venue, and why was the specific relief she sought beyond the judge’s power to grant?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, considers evidence, and issues a legal decision. In this case, the ALJ was Adam D. Stone.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Arizona Department of Real Estate
The state agency authorized by statute to receive and decide petitions for hearings involving homeowners’ associations in Arizona.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.
An abbreviation for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or subdivision.
Office of Administrative Hearings
The government office where administrative law judges hear disputes concerning state agencies.
Order Granting Rehearing
A formal order issued by the Commissioner of the Arizona Department of Real Estate that approved the Petitioner’s request for a second hearing.
Petitioner
The party who initiates a legal action or files a petition. In this case, the Petitioner was Susan E. Abbass.
Planned Community
A real estate development that includes common property and is governed by a homeowners’ association.
Preponderance of the Evidence
The standard of proof required in this case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Prevailing Party
The party who wins a legal case or dispute. In the final decision, the Respondent was named the prevailing party.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the 10000 North Central Homeowners Association.
Tribunal
A body established to settle certain types of disputes. In this context, it refers to the Office of Administrative Hearings where the case was heard.
Briefing Document: Abbass vs. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.
The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.
Case Overview
Case Name
Susan E Abbass vs. 10000 North Central Homeowners Association
Case Number
20F-H2020057-REL-RHG
Jurisdiction
In the Office of Administrative Hearings (Arizona)
Administrative Law Judge
Adam D. Stone
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)
Hearing Date
November 24, 2020 (Rehearing)
Decision Date
December 1, 2020
Core Dispute and Allegations
Petitioner’s Central Claim
The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.
• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.
Petitioner’s Position and Evidence
• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”
• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.
• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.
• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
Respondent’s Defense and Actions
Respondent’s Position
The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.
• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.
• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”
Actions Taken by the HOA
Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:
• It reached out to the neighboring property owner to request access.
• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.
• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.
• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.
Procedural History and Rehearing
1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.
2. Initial Hearing (July 28, 2020): The first hearing was conducted.
3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.
4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”
5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.
6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.
Administrative Law Judge’s Findings and Conclusions
Burden of Proof
The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”
Key Judicial Determinations
• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.
• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”
• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Order and Implications
• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”
• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.
• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.
Case Participants
Petitioner Side
- Susan E Abbass (petitioner)
- Ronald Pick (witness)
Witness for Petitioner
Respondent Side
- Blake Johnson (attorney)
Brown Olcott, PLLC
Represented Respondent - Robert Kersten (property manager)
Property manager, appeared as a witness for Respondent - Kelly Oetinger (attorney)
Brown Olcott, PLLC
Neutral Parties
- Adam D. Stone (ALJ)
OAH - Judy Lowe (Commissioner)
ADRE - c. serrano (staff)
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