Case Summary
| Case ID | 21F-H2120009-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2021-04-28 |
| Administrative Law Judge | Kay A. Abramsohn |
| Outcome | no |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | John D. Klemmer | Counsel | — |
|---|---|---|---|
| Respondent | Caribbean Gardens Association | Counsel | Nicole D. Payne, Esq., Lydia A. Pierce Linsmeier, Esq. |
Alleged Violations
Article 1, Sections 1.5 and 1.8; Article 3, Section 3.4; Article 4, Section 4.1; Article 8, Section 8.1; and Article 12, Section 12.4
Outcome Summary
The ALJ affirmed the initial decision upon rehearing, dismissing the homeowner's petition because the disputed space qualifies as a limited common element for exclusive use by one unit under state statute, rather than a general common area the HOA is required to maintain.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the space was a general common element. Statutory provisions override the ambiguity in the Plat and designate the fixture serving a single unit as a limited common element.
Key Issues & Findings
Refusal to manage, operate, maintain and administer common area
Petitioner claimed a specific area exclusively occupied by Unit 207 was a common element owned by all 40 unit owners and that the HOA had a duty to claim ownership and maintain it. The HOA argued the area was a balcony and a limited common element.
Orders: Petition is dismissed. Petitioner continues to bear his $500.00 filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 33-1212
- A.R.S. § 33-1218
- A.R.S. § 33-551
Decision Documents
21F-H2120009-REL-RHG Decision – 876384.pdf
21F-H2120009-REL-RHG Decision – ../21F-H2120009-REL/843358.pdf
**Case Title:** 21F-H2120009-REL-RHG
**Procedural History & Introduction**
This matter involves a rehearing of an administrative dispute between Petitioner John D. Klemmer and Respondent Caribbean Gardens Association, a condominium HOA. It is important to explicitly distinguish the two proceedings: the original hearing (Case No. 21F-H2120009-REL) resulted in a December 17, 2020 decision dismissing the petition. The Petitioner subsequently filed a dispute rehearing request, which was granted by the Department of Real Estate, leading to the April 28, 2021 rehearing decision (Case No. 21F-H2120009-REL-RHG).
**Key Facts & Main Issues**
The core dispute centers on an unmapped, outdoor space located on the second level between Units 206 and 207. This area consists of a concrete slab fenced off by exterior iron railings and is accessible exclusively through a door from inside Unit 207.
* **Petitioner's Argument:** The Petitioner alleged that the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to manage, maintain, and claim ownership of this specific area. He argued that because the area is left completely blank on the community's Plat document, it must be considered a general "common area" or "common element" owned by all 40 unit owners, and that the HOA improperly allowed Unit 207 to exclusively possess it.
* **Respondent's Argument:** The HOA argued the disputed space is not a general common element, but rather a "limited common element" (functioning as a balcony) that serves only Unit 207, which the HOA has no duty to maintain.
**Original Case Decision (December 2020)**
In the original hearing, the Administrative Law Judge (ALJ) evaluated the CC&Rs and Arizona property law. The ALJ determined that under A.R.S. § 33-1212(4), exterior fixtures such as balconies designed to serve a single unit but located outside the unit's boundaries are "limited common elements" allocated exclusively to that unit. Concluding that the disputed area was a balcony exclusively serving Unit 207, the ALJ found the HOA did not violate the CC&Rs and dismissed the petition.
**Rehearing Arguments and Legal Points (April 2021)**
The Petitioner requested a rehearing, arguing the original decision misapplied A.R.S. § 33-1212[A](4). He contended that the statute begins with the phrase "Except as provided by the Declaration," and because the community's Declaration and Plat do not explicitly draw or define the disputed area as an "Apartment," "patio," or "balcony
Case Participants
Petitioner Side
- John D. Klemmer (petitioner)
Represented himself
Respondent Side
- Nicole D. Payne (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP - Lydia A. Pierce Linsmeier (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP - Alex Gonzalez (board member)
Caribbean Gardens Association
Erroneously referred to as Alex Gomez in the initial decision
Neutral Parties
- Kay A. Abramsohn (ALJ)
Office of Administrative Hearings - Judy Lowe (Commissioner)
Arizona Department of Real Estate
