Case Summary
| Case ID | 21F-H2121065-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2021-11-01 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | partial |
| Filing Fees Refunded | $1,000.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Brian D. Sopatyk | Counsel | Jacob A. Kubert, Esq. |
|---|---|---|---|
| Respondent | Xanadu Lake Resort Condominium, Inc. | Counsel | Penny L. Koepke, Esq. |
Alleged Violations
CC&R Article 2 § 3(a)(2)
CC&R Article 3 § 3(d)(1)
CC&R Article 6 § 2(a)
Outcome Summary
Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.
Why this result: Petitioner lost Issue 2 because he failed to prove the Respondent's no-pet policy was arbitrarily or unreasonably applied.
Key Issues & Findings
Alleged violation of CC&R Article 2 § 3(a)(2)
The Administrative Law Judge (ALJ) concluded that screen doors are not permitted in Xanadu under CC&R Article 2 § 3(a)(2), and CC&R Article 7 (Architectural Committee authority) does not override this explicit prohibition.
Orders: Respondent is directed to comply with the requirements of CC&R Article 2 § 3(a)(2) going forward.
Filing fee: $0.00, Fee refunded: Yes
Disposition: petitioner_win
- CC&R Article 2 § 3(a)(2)
- CC&R Article 7
Alleged violation of CC&R Article 3 § 3(d)(1)
Petitioner alleged violation concerning the 'no-pet' policy. The ALJ concluded that Respondent is not required to allow pets, but may allow them with Board approval, and the Petitioner did not establish that the policy was arbitrarily or unreasonably applied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- CC&R Article 3 § 3(d)(1)
- A.R.S. § 12-548
Alleged violation of CC&R Article 6 § 2(a)
The ALJ concluded that the marquee is common area, and the Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence the $50 assessment complied with CC&R Article 6 § 5 (special assessment requirements).
Orders: Respondent is directed to comply with the requirements of CC&R Article 6 § 2(a) going forward.
Filing fee: $0.00, Fee refunded: Yes
Disposition: petitioner_win
- CC&R Article 6 § 2(a)
- CC&R Article 6 § 5
- A.R.S. § 12-548
Analytics Highlights
- A.R.S. § 32-2199(1)
- A.R.S. § 12-548
- A.R.S. § 32-2199.02(B)
- A.R.S. § 32-2199.04
- A.R.S. § 41-1092.09
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- A.A.C. R2-19-119(B)(2)
- CC&R Article 2 § 3(a)(2)
- CC&R Article 3 § 3(d)(1)
- CC&R Article 6 § 2(a)
- CC&R Article 6 § 5
- CC&R Article 7
Video Overview
Audio Overview
Decision Documents
21F-H2121065-REL Decision – 913797.pdf
21F-H2121065-REL Decision – 913859.pdf
21F-H2121065-REL Decision – 921820.pdf
21F-H2121065-REL Decision – 921823.pdf
Questions
Question
Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?
Short Answer
No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.
Detailed Answer
Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.
Alj Quote
If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.
Legal Basis
Contract Interpretation
Topic Tags
- Architectural Control
- Board Authority
- CC&R Interpretation
Question
If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?
Short Answer
No. The Board has discretion to deny permission.
Detailed Answer
If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.
Alj Quote
The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).
Legal Basis
Board Discretion
Topic Tags
- Pets
- Rules Enforcement
Question
Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?
Short Answer
Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.
Detailed Answer
The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.
Alj Quote
The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.
Legal Basis
CC&R Article 6 § 2(a)
Topic Tags
- Assessments
- Common Areas
- Financials
Question
Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?
Short Answer
No.
Detailed Answer
The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.
Alj Quote
A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.
Legal Basis
A.R.S. § 12-548 (distinguished)
Topic Tags
- Procedure
- Statute of Limitations
Question
Can the HOA levy a special assessment for repairs without a vote of the members?
Short Answer
No, not if the CC&Rs require a member vote.
Detailed Answer
If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.
Alj Quote
Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.
Legal Basis
CC&R Article 6 § 5
Topic Tags
- Special Assessments
- Voting
Question
If I win my hearing against the HOA, can I get my filing fee back?
Short Answer
Yes.
Detailed Answer
The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Administrative Order
Topic Tags
- Remedies
- Fees
Question
How are conflicts or ambiguities in the CC&Rs interpreted by the judge?
Short Answer
They are construed as a whole to determine the underlying purpose.
Detailed Answer
Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.
Alj Quote
Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.
Legal Basis
Common Law Interpretation
Topic Tags
- Legal Standards
- CC&R Interpretation
Case
- Docket No
- 21F-H2121065-REL
- Case Title
- Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
- Decision Date
- 2021-11-01
- Alj Name
- Velva Moses-Thompson
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?
Short Answer
No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.
Detailed Answer
Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.
Alj Quote
If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.
Legal Basis
Contract Interpretation
Topic Tags
- Architectural Control
- Board Authority
- CC&R Interpretation
Question
If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?
Short Answer
No. The Board has discretion to deny permission.
Detailed Answer
If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.
Alj Quote
The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).
Legal Basis
Board Discretion
Topic Tags
- Pets
- Rules Enforcement
Question
Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?
Short Answer
Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.
Detailed Answer
The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.
Alj Quote
The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.
Legal Basis
CC&R Article 6 § 2(a)
Topic Tags
- Assessments
- Common Areas
- Financials
Question
Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?
Short Answer
No.
Detailed Answer
The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.
Alj Quote
A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.
Legal Basis
A.R.S. § 12-548 (distinguished)
Topic Tags
- Procedure
- Statute of Limitations
Question
Can the HOA levy a special assessment for repairs without a vote of the members?
Short Answer
No, not if the CC&Rs require a member vote.
Detailed Answer
If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.
Alj Quote
Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.
Legal Basis
CC&R Article 6 § 5
Topic Tags
- Special Assessments
- Voting
Question
If I win my hearing against the HOA, can I get my filing fee back?
Short Answer
Yes.
Detailed Answer
The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Administrative Order
Topic Tags
- Remedies
- Fees
Question
How are conflicts or ambiguities in the CC&Rs interpreted by the judge?
Short Answer
They are construed as a whole to determine the underlying purpose.
Detailed Answer
Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.
Alj Quote
Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.
Legal Basis
Common Law Interpretation
Topic Tags
- Legal Standards
- CC&R Interpretation
Case
- Docket No
- 21F-H2121065-REL
- Case Title
- Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
- Decision Date
- 2021-11-01
- Alj Name
- Velva Moses-Thompson
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Brian D. Sopatyk (petitioner)
Unit Owner - Jacob A. Kubert (petitioner attorney)
Dessaules Law Group
Respondent Side
- Penny L. Koepke (respondent attorney)
Maxwell Morgan PC
Neutral Parties
- Velva Moses-Thompson (ALJ)
Office of Administrative Hearings - Judy Lowe (ADRE Commissioner)
Arizona Department of Real Estate - Louis Dettorre (ADRE Commissioner)
Arizona Department of Real Estate - AHansen (ADRE staff)
Arizona Department of Real Estate - djones (ADRE staff)
Arizona Department of Real Estate - DGardner (ADRE staff)
Arizona Department of Real Estate
Other Participants
- c. serrano (clerk/staff)
Transmitting agent mentioned in distribution list
