Case Summary
| Case ID | 22F-H2222047-REL / 22F-H2222052-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2022-08-18 |
| Administrative Law Judge | Kay A. Abramsohn |
| Outcome | loss |
| Filing Fees Refunded | $1,000.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Emery Herbert | Counsel | — |
|---|---|---|---|
| Respondent | Lakebrook Villas II Homeowners Association Inc. | Counsel | Maria G. McKee |
Alleged Violations
A.R.S. § 33-1247(A)
Section 9
Outcome Summary
The Administrative Law Judge dismissed both petitions, concluding the Association did not violate the statute or the CC&Rs. The HOA was already taking reasonable steps to replace the aging community roofs, and the cost was properly categorized as a regular maintenance assessment rather than a special assessment.
Why this result: The petitioner failed to prove by a preponderance of the evidence that the HOA violated the statute or the declaration. The HOA's actions were within its authority to manage and maintain the common areas.
Key Issues & Findings
Failure to provide prompt repair
Petitioner alleged the Association failed to promptly repair a roof leak affecting her unit, violating the statutory requirement to maintain and promptly repair common elements.
Orders: Petition 1 dismissed. Petitioner bears the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: loss
- A.R.S. § 33-1247(A)
Failure to obtain vote for special assessment
Petitioner alleged the Association violated Section 9 of the Declaration by increasing monthly dues to fund a roof replacement project instead of holding a membership vote for a special assessment.
Orders: Petition 2 dismissed. Petitioner bears the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: loss
- Declaration Section 9
- Declaration Section 13
Decision Documents
22F-H2222047-REL Decision – 979855.pdf
22F-H2222047-REL Decision – 981946.pdf
22F-H2222047-REL Decision – 993566.pdf
**Case Summary: Emery Herbert v. Lakebrook Villas II Homeowners Association Inc.**
**Docket Nos.:** 22F-H2222047-REL (Consolidated with 22F-H2222052-REL)
**Judge:** Administrative Law Judge Kay A. Abramsohn
**Overview & Key Facts**
Petitioner Emery Herbert filed two petitions with the Arizona Department of Real Estate against the Lakebrook Villas II Homeowners Association (HOA), which were consolidated into a single administrative hearing held on July 11, 2022. The dispute centered around a failing, 40-year-old roof system, the timeline for repairing a leak over the Petitioner's unit, and the financial mechanism the HOA used to fund a community-wide roof replacement project.
**Issue 1: Failure to Promptly Repair (Petition 1 – 22F-H2222047-REL)**
* **Petitioner's Argument:** Herbert alleged the HOA violated A.R.S. § 33-1247(A) by failing to "promptly" repair her leaking roof and drain pipes after she reported the issue in March 2022, which allowed ongoing water intrusion and mold growth in her unit.
* **Respondent's Argument:** The HOA argued that the statute's "prompt repair" requirement applies exclusively to damage inflicted by the association while accessing a unit, not to general deterioration of common elements. The HOA maintained it was fulfilling its statutory duty to maintain and replace common elements by systematically rolling out a contracted, community-wide replacement of the irreparable 40-year-old roofs.
**Issue 2: Improper Assessment/Capital Improvement (Petition 2 – 22F-H2222052-REL)**
* **Petitioner's Argument:** Herbert alleged the HOA violated Section 9 of the community's Declaration (CC&Rs) by drastically increasing regular monthly dues (from $303 to $885) to pay for a $362,586 roof replacement project. She argued that completely replacing the roofs constituted a "capital improvement" rather than routine maintenance, which legally required the HOA to obtain a 75% membership vote for a "special assessment".
* **Respondent's Argument:** The HOA argued that replacing 40-year-old, failing roofs is a matter of necessary maintenance and restoration, not a capital improvement. Furthermore, under Section 13 of the Declaration, the Board holds broad discretionary authority to adjust regular monthly cash requirements to cover necessary common area maintenance, operations, and renovations without needing a community vote.
**Final Decision &
Case Participants
Petitioner Side
- Emery Herbert (petitioner)
Represented herself - Colton Hoover (witness)
Walker and Armstrong CPAs
Audit associate, testified for petitioner - Karen Hoover (attendee)
Signed in with Colton Hoover - Hildelu Sandoval (witness)
Homeowner in Lakebrook Villas - Luv Brito (witness)
Homeowner in Lakebrook Villas
Respondent Side
- Maria G. McKee (HOA attorney)
Carpenter Hazelwood Delgado & Bolen LLP - Josh Bolen (HOA attorney)
Carpenter Hazelwood Delgado & Bolen LLP - Lindsay Sherwin (property manager)
Peterson Company
Community manager, testified as witness for HOA - Edwin Escobar Diaz (witness)
Desert Canyon Roofing
Co-owner of roofing company, testified for HOA - Daniel Noalk (property manager)
Peterson Company
Original representative mentioned in emails - Terry Troy (property manager)
Peterson Company
Regional director and acting community manager - Brenda (board member)
Lakebrook Villas II HOA - Victoria (board member)
Lakebrook Villas II HOA - Cynthia (board member)
Lakebrook Villas II HOA - Suzanne Hilborn (attorney staff)
Carpenter Hazelwood Delgado & Bolen LLP
Copied on minute entries/decisions - Eadie Rudder (attorney staff)
Carpenter Hazelwood Delgado & Bolen LLP
Copied on final decision
Neutral Parties
- Kay A. Abramsohn (ALJ)
OAH - Louis Dettorre (commissioner)
ADRE - Bonnie Hard (roofer)
Hardacher Roofing
Provided a quote via email - Paul Davis (inspector)
Inspected water damage - c. serrano (administrative staff)
OAH
Clerk who mailed copies
Other Participants
- Cassie (homeowner)
Spoke during HOA meeting
