Case Summary
| Case ID | 20F-H2019002-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2020-02-26 |
| Administrative Law Judge | Antara Nath Rivera |
| Outcome | loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Jennie Bennett | Counsel | Maxwell Riddiough |
|---|---|---|---|
| Respondent | Catalina Del Rey Homeowners Association | Counsel | Nathan Tennyson |
Alleged Violations
CC&Rs Sections 12(c) and 12(h)(1)
Outcome Summary
The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.
Why this result: Petitioner failed to meet the burden of proof that the backflow flap was a common element maintenance responsibility under CC&Rs Sections 12(c) or 12(h)(1).
Key Issues & Findings
Violation of community documents regarding maintenance responsibility for sewage backflow flap.
Petitioner alleged the HOA violated CC&Rs by refusing to pay for repairs related to a malfunctioning backflow flap that caused a sewage overflow, arguing the item was a common element maintenance responsibility.
Orders: Petitioner Jennie Bennett’s Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- CC&Rs Section 12(c)
- CC&Rs Section 12(h)(1)
- CC&Rs Section 15
Analytics Highlights
- A.R.S. § 32-2199 et seq.
- A.R.S. § 41-1092.07(G)(2)
- A.A.C. R2-19-119(A) and (B)(1)
Video Overview
Audio Overview
Decision Documents
20F-H2019002-REL-RHG Decision – 771959.pdf
Briefing Document: Jennie Bennett vs. Catalina Del Rey Homeowners Association
Executive Summary
This document synthesizes the findings, arguments, and conclusions from the Administrative Law Judge (ALJ) Decision in case number 20F-H2019002-REL-RHG, concerning a dispute between homeowner Jennie Bennett (Petitioner) and the Catalina Del Rey Homeowners Association (Respondent).
The core of the dispute was the financial responsibility for repairing a malfunctioning sewage backflow valve that caused an overflow at the petitioner’s residence. The petitioner argued that the HOA violated its Covenants, Conditions, Restrictions and Easements (CC&Rs), specifically Sections 12(c) and 12(h)(1), by refusing to cover the repair costs. The petitioner’s claim was complicated by the fact that the HOA had, just two weeks prior to the incident, rescinded a “Sewer Maintenance Policy” that had previously addressed such issues. The petitioner stated she was not notified of this rescission.
The respondent contended that the backflow valve was located on the petitioner’s private property, not in a common area, making its maintenance the petitioner’s responsibility under Section 15 of the CC&Rs. The HOA asserted that the 2017 policy was rescinded precisely because legal guidance confirmed this distinction. The HOA also maintained that notice of the rescission was sent to all homeowners.
The ALJ ultimately ruled in favor of the respondent, dismissing the petitioner’s petition. The decision concluded that the petitioner failed to meet the burden of proof—a preponderance of the evidence—to establish that the backflow valve was a common element covered by the cited CC&R sections. The evidence, including a plat map and photos, demonstrated the valve was on the petitioner’s private property. While the timing of the policy rescission was deemed “extremely unfortunate,” the ALJ found that once rescinded, the HOA was no longer obligated to share repair costs.
I. Case Overview
• Case Name: Jennie Bennett, Petitioner, vs. Catalina Del Rey Homeowners Association, Respondent.
• Case Number: 20F-H2019002-REL-RHG
• Forum: Arizona Office of Administrative Hearings
• Administrative Law Judge: Antara Nath Rivera
• Hearing Date: February 7, 2020
• Decision Date: February 26, 2020
• Core Allegation: The petitioner alleged that the HOA violated community documents, specifically Sections 12(c) and 12(h)(1) of the CC&Rs.
II. Central Dispute and Timeline of Events
The central issue was whether the HOA was responsible for the cost of repairing a malfunctioning sewage backflow flap on the petitioner’s property.
• March 2017: The HOA adopts a “Sewer Maintenance Policy” to outline processes for sewage maintenance.
• February 13, 2019: The HOA Board rescinds the Sewer Maintenance Policy.
• March 3, 2019: Petitioner Jennie Bennett experiences a sewage overflow at her residence due to a malfunctioning backflow valve.
• March – May 2019: The petitioner brings her concerns to the HOA board at multiple meetings but receives no response.
• May 22, 2019: The HOA responds to the petitioner after receiving a letter from her attorney.
• July 10, 2019: The petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.
III. Petitioner’s Position and Arguments (Jennie Bennett)
The petitioner, a resident for 20 years, argued that the HOA was liable for the repair costs based on the following points:
• CC&R Violation: The refusal to pay for the repair constituted a violation of Sections 12(c) and 12(h)(1) of the CC&Rs, which pertain to the HOA’s duty to maintain sewer lines and common elements.
• Lack of Notice: The petitioner testified she was not notified of the policy rescission on February 13, 2019. The sewage overflow occurred just two weeks later, and upon reporting it, she was informed by a neighbor that the HOA had historically covered such issues.
• Procedural Failure: The HOA failed to address her concerns at the March, April, or May board meetings, only engaging after her attorney intervened.
• Community Support: The petitioner collected 97 signatures on a grassroots petition asking the HOA to cover the repair due to the short time frame between the policy rescission and the incident, and the lack of notice. The petition stated: “I am asking to be covered because of the 2 week time frame and no notice. I agree with being covered by the HOA for the flap.”
IV. Respondent’s Position and Arguments (Catalina Del Rey HOA)
The HOA, represented by community manager Vanessa Lubinsky of Cadden Community Management, presented a defense centered on the distinction between private and common property.
• Private Property Responsibility: The HOA’s primary argument was that the backflow flap was located on the petitioner’s private property and was therefore her responsibility to maintain under Section 15 of the CC&Rs, which governs utilities like plumbing within a homeowner’s lot.
• Evidence of Location: The respondent submitted a plat map and photographs as evidence. The photos illustrated that the backflow flap was located “next to Petitioner’s walk up to her front door,” well within her property lines and not on common elements.
• Plumbing vs. Sewer Issue: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue,” because of its location on private property.
• Rationale for Policy Change: The 2017 Sewer Maintenance Policy was rescinded after the HOA received “additional legal guidance” confirming that backflow flaps were within homeowners’ units and thus their responsibility under Section 15.
• Notice and Procedure: Ms. Lubinsky testified that notice of the rescission was issued to homeowners via both email and postal mail (postcards). She clarified that the rescission was a board decision that did not require a homeowner vote, as it was not an amendment to the CC&Rs.
V. Relevant Sections of the CC&Rs
The dispute hinged on the interpretation of the following sections of the Declaration of Covenants, Conditions, Restrictions and Easements.
Section
Quoted Text from the Decision
Section 12(c)
“The Association shall maintain and landscape all front and side years open to the street, and shall maintain sewer lines, sidewalks, walkways, brick trim, streets and common recreation areas. …The words “repair or maintain” shall not be construed that the Association shall repair or maintain any individual lot owner’s roof or similar structure.”
Section 12(h)(1)
“Each such lot will be subject to assessments and the owner thereof shall pay to the Associations assessments as follows: Such lots pro rata share of the actual cost to the Association of all repair, maintenance, safety and control of common elements, including but not limited to maintenance of walkways, sidewalks, streets and sewers, care of lawns and landscaping in common areas and front and side yards of residences… .”
Section 15
(Described, not quoted) This section provides that the homeowner is responsible for the maintenance of utilities such as electricity and plumbing on their private property, similar to a single-family residence.
VI. Administrative Law Judge’s Findings and Ruling
The ALJ’s decision was based on the petitioner’s failure to meet the required burden of proof.
• Burden of Proof: The petitioner was required to establish the HOA’s violation by a “preponderance of the evidence,” meaning proof that convinces the trier of fact the contention is more probably true than not.
• Factual Determination: The judge found that the evidence, specifically the photos and plat map, demonstrated conclusively that the backflow flap was on the petitioner’s private property near her front door.
• Conclusion on CC&Rs: Because the flap was determined not to be located within a common area, the petitioner failed to establish that it fell under the purview of Sections 12(c) or 12(h)(1). Therefore, she failed to prove the HOA had a responsibility to repair it under those sections.
• Effect of Policy Rescission: The judge acknowledged, “It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.” However, the ruling stated that once the policy was rescinded, the HOA “was not obligated to share the cost of repairs.”
• Final Order: “IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.” The order is binding on the parties, with any appeal required to be filed with the superior court within thirty-five days of service.
Study Guide: Bennett v. Catalina Del Rey Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case text.
1. Who were the Petitioner and the Respondent in this case, and what was the legal case number?
2. What specific sections of the community documents did Petitioner Jennie Bennett allege the Respondent had violated?
3. Describe the incident that prompted the dispute and the date on which it occurred.
4. What was the “Sewer Maintenance Policy,” when was it adopted, and when was it rescinded?
5. According to the Respondent’s manager, Vanessa Lubinsky, why was the repair Jennie Bennett’s financial responsibility?
6. What evidence did the Respondent present to prove the location of the malfunctioning backflow flap?
7. What steps did Jennie Bennett take to rally support from her neighbors after the Respondent did not address her concerns?
8. What is the legal standard for the burden of proof in this case, and which party does it fall on?
9. According to Section 12(c) of the CC&Rs, what specific areas is the Homeowners Association responsible for maintaining?
10. What was the final ruling, or “Order,” issued by the Administrative Law Judge in this case?
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Answer Key
1. The Petitioner was Jennie Bennett, represented by attorney Maxwell Riddiough. The Respondent was the Catalina Del Rey Homeowners Association, represented by attorney Nathan Tennyson. The case number was 20F-H2019002-REL-RHG.
2. The Petitioner alleged that the Respondent violated Sections 12(c) and 12(h)(1) of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). This was noted as a single-issue petition.
3. On or about March 3, 2019, the Petitioner experienced a sewage overflow into her house. The overflow was caused by malfunctioning backflow valves.
4. The Sewer Maintenance Policy was a policy adopted in March 2017 to outline the process for sewage maintenance issues. It was rescinded by the HOA Board on February 13, 2019, shortly before the Petitioner’s incident.
5. Vanessa Lubinsky testified that the issue was the Petitioner’s responsibility because the malfunctioning backflow flap was located on her private property. Under Section 15 of the CC&Rs, homeowners are responsible for the maintenance of their own plumbing, electricity, and other utilities.
6. The Respondent presented a plat map, which specified all property lines, and photos. This evidence illustrated that the backflow flap was located inside the lines of the Petitioner’s private property, next to the walk-up to her front door, and not on common elements.
7. The Petitioner obtained 97 signatures on a “Grassroots petition.” The petition explained her situation and argued that she should be covered by the HOA for the repair due to the short time between the policy rescission and her incident, and because she had not received written notice.
8. The legal standard is “preponderance of the evidence,” which means the proof must convince the trier of fact that the contention is more probably true than not. The burden of proof fell on the Petitioner, Jennie Bennett, to establish that the Respondent committed the alleged violations.
9. Section 12(c) states the Association is responsible for maintaining and landscaping front and side yards open to the street. It also specifies the Association’s duty to maintain sewer lines, sidewalks, walkways, brick trim, streets, and common recreation areas.
10. The Administrative Law Judge ordered that Petitioner Jennie Bennett’s Petition be dismissed. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent had violated the CC&Rs.
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Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a detailed essay response for each prompt, using specific evidence and arguments from the provided text to support your conclusions.
1. Analyze and contrast the core arguments presented by the Petitioner, Jennie Bennett, and the Respondent, Catalina Del Rey Homeowners Association. How did each party use the CC&Rs and the Sewer Maintenance Policy to support their position?
2. Discuss the significance of the Sewer Maintenance Policy’s rescission. Evaluate the timing of the rescission relative to the Petitioner’s incident and the arguments made regarding notification to homeowners.
3. Explain the legal concept of “preponderance of the evidence” as defined in the case document. How did Administrative Law Judge Antara Nath Rivera apply this standard to the evidence presented by both parties to reach a final decision?
4. Evaluate the role of physical evidence, specifically the plat map and photographs, in the outcome of this hearing. Why was determining the precise location of the backflow flap the central issue of the case?
5. From an ethical and community governance perspective, discuss the actions of the Catalina Del Rey Homeowners Association. Consider their decision to rescind the policy, the method of notification, and their initial responses (or lack thereof) to Ms. Bennett’s requests at the board meetings.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Antara Nath Rivera, who presides over hearings at the Office of Administrative Hearings and makes legal decisions and orders.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.
Common Elements
Areas within the HOA community that are not part of an individual homeowner’s private property and are maintained by the Association. Examples from the text include walkways, sidewalks, streets, sewers, and recreation areas.
Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs)
The governing legal documents that outline the rules, obligations, and restrictions for a planned community. The Petitioner alleged a violation of Sections 12(c) and 12(h)(1) of these documents.
Homeowners Association (HOA)
The community organization, Catalina Del Rey Homeowners Association, responsible for managing and maintaining the common elements of a planned community as defined by the CC&Rs.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was homeowner Jennie Bennett.
Plat Map
A map, drawn to scale, showing the divisions of a piece of land. In this case, it was used as evidence to specify all property lines, including the Petitioner’s.
Preponderance of the Evidence
The evidentiary standard required to win the case, defined as proof that convinces the trier of fact that a contention is “more probably true than not.” It is described as the “greater weight of the evidence.”
Rescission
The act of canceling or revoking a policy or decision. The HOA Board rescinded its Sewer Maintenance Policy on February 13, 2019.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Catalina Del Rey Homeowners Association.
A Homeowner’s Sewage Nightmare: 5 Surprising Lessons from a Losing Battle with an HOA
Introduction: The Dreaded HOA Letter
For many homeowners, the greatest fear isn’t a storm or a failing appliance; it’s a sudden, catastrophic repair bill. This anxiety is often magnified for those living in a planned community, where another layer of complexity—the Homeowners Association (HOA)—governs every aspect of property maintenance. A dispute with the HOA can turn a straightforward repair into a frustrating and expensive legal battle.
The case of Jennie Bennett, a resident in her home for 20 years, and the Catalina Del Rey Homeowners Association is a stark cautionary tale. After a sewage overflow caused by a malfunctioning backflow valve, Ms. Bennett found herself in a dispute with her HOA over who should pay for the repair, claiming the association had violated Sections 12(c) and 12(h)(1) of its governing documents. The resulting legal decision reveals critical, and often surprising, insights into how HOA rules are interpreted and enforced. This article breaks down the five most impactful lessons from her losing battle.
1. Location is Everything: The Critical Line Between Private and Common Property
The single most important factor in the judge’s decision was the physical location of the broken part. The entire case hinged on a simple question: was the malfunctioning backflow flap on Jennie Bennett’s private property or in an HOA-maintained common area?
The HOA argued that the plat map and photos proved the flap was located “next to Petitioner’s walk up to her front door,” placing it squarely inside her private property line. While the homeowner claimed the HOA was responsible for “sewer lines” under Sections 12(c) and 12(h)(1) of the Covenants, Conditions, and Restrictions (CC&Rs), this argument failed. The HOA’s manager, Vanessa Lubinsky, perfectly synthesized the association’s legal position when she “opined that the backflow flap was a plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”
Because the backflow flap was deemed to be on private property, it fell under Section 15 of the CC&Rs. This clause stipulated that the homeowner was responsible for the maintenance of their own plumbing, electricity, and other utilities—much like the owner of a single-family residence. The specific location of the failure, not the general nature of the system it belonged to, determined financial responsibility.
2. An HOA ‘Policy’ Can Vanish Overnight
For nearly two years, from March 2017 to February 2019, the Catalina Del Rey HOA had a “Sewer Maintenance Policy” in place. This policy, which had been in effect for nearly two years, outlined a process for handling sewage maintenance; however, once rescinded, the HOA was no longer obligated to share in repair costs. The Board of Directors rescinded this policy on February 13, 2019. The petitioner’s sewage overflow occurred on March 3, 2019—less than three weeks later.
Crucially, the HOA’s action was not arbitrary. According to case testimony, the board rescinded the policy because, “After Respondent received additional legal guidance, it was determined that the backflow flaps were located within the homeowners’ units and on private property.” This reveals a critical insight: the HOA made a calculated, legally-informed decision to shift liability back to homeowners to align with the CC&Rs.
This also highlights the significant difference between a formal, recorded CC&R and a simple board policy. As the HOA manager clarified, rescinding the policy did not require a homeowner vote because it was not an amendment to the core CC&Rs. A board can unilaterally change a policy, altering the financial obligations of every resident without a community-wide vote.
3. The High Cost of “Extremely Unfortunate” Timing
The timing of the sewage backup, occurring just after the policy change, was a devastating coincidence for the homeowner. The administrative law judge acknowledged this directly in the final decision, stating:
It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.
Compounding the issue was a dispute over communication. The petitioner claimed she “was not notified of the rescission.” In her efforts to be covered, she even gathered 97 signatures on a “Grassroots petition” from her neighbors. The petitioner claimed she received no substantive response from the board regarding her repair claim until her attorney sent a formal letter on May 22, 2019. The HOA countered this, stating that notice of the policy change had been sent to homeowners via both email and postcards.
This takeaway is impactful because it demonstrates how quickly a homeowner’s rights and financial obligations can change. A simple board decision, potentially missed in a stack of mail or an overlooked email, can result in thousands of dollars in unexpected costs.
4. The Burden of Proof Is on the Homeowner, Not the HOA
In any legal dispute, one side has the “burden of proof”—the responsibility to convince the judge that their claim is true. In this HOA case, that burden fell entirely on the petitioner, Jennie Bennett.
The legal standard required her to prove her case by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient to persuade a judge that a claim is more likely true than not. The legal decision provides a clear definition:
“[t]he greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ultimately, the judge concluded that the homeowner did not meet this standard. The final order states, “Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.” This underscores a critical point: when a homeowner challenges an HOA, it is their responsibility to build the winning case with convincing evidence.
Conclusion: Know Your Documents, Know Your Property Lines
The overarching lesson from Jennie Bennett’s experience is that in an HOA, the fine print matters immensely. The precise wording of the governing documents and, as this case proves, the exact location of property lines are paramount. A board policy you rely on today could be gone tomorrow, and a repair you assume is a community responsibility could be deemed yours based on a measurement of inches.
This case serves as a powerful reminder for all homeowners to be proactive. Read your CC&Rs, pay attention to all communications from your board, and understand the difference between binding covenants and changeable policies. It all comes down to one final, critical question: Do you know exactly where your maintenance responsibilities end and your HOA’s begin?
Case Participants
Petitioner Side
- Jennie Bennett (petitioner)
Testified at hearing - Maxwell Riddiough (petitioner attorney)
Respondent Side
- Nathan Tennyson (respondent attorney)
Brown|Olcott, PLLC - Vanessa Lubinsky (property manager)
Cadden Community Management
Testified on behalf of Respondent - Daniel (staff)
Cadden
Informed Petitioner about policy rescission
Neutral Parties
- Antara Nath Rivera (ALJ)
- Judy Lowe (Commissioner)
Arizona Department of Real Estate
Other Participants
- JC Niles (witness)
Mentioned in Petitioner's Grassroots petition
