Case Summary
| Case ID |
20F-H2019012-REL |
| Agency |
Arizona Department of Real Estate |
| Tribunal |
— |
| Decision Date |
2020-01-02 |
| Administrative Law Judge |
— |
| Outcome |
complete |
| Filing Fees Refunded |
— |
| Civil Penalties |
— |
Parties & Counsel
| Petitioner |
Larry Kline |
Counsel |
Pro se |
| Respondent |
The Foothills Community Association |
Counsel |
Austin Baillio, Esq. |
Alleged Violations
No violations listed
Decision Documents
20F-H2019012-REL Decision – 761847.pdf
Uploaded 2026-04-24T11:23:16 (150.9 KB)
20F-H2019012-REL Decision – 761847.pdf
Uploaded 2026-01-27T21:17:44 (150.9 KB)
Administrative Law Judge Decision: Kline vs. The Foothills Community Association
# Administrative Law Judge Decision: Kline vs. The Foothills Community Association
## Executive Summary
On January 2, 2020, Administrative Law Judge Jenna Clark issued a decision in the matter of **Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL)**. The dispute centered on whether the Foothills Community Association (the "Association") was contractually obligated to repair a failing retaining wall located at the rear of Petitioner Larry Kline’s property.
The Petitioner alleged that the Association violated Article IV, Section 4.2(p) of the Association Bylaws by failing to maintain the wall, which separates his lot from the Foothills Golf Course. The Association denied liability, arguing the wall is not located within a "Common Area" and that no recorded instrument transfers maintenance responsibility to the Association. Following an evidentiary hearing on December 19, 2019, the Judge ruled in favor of the Association, concluding that the Petitioner failed to meet the burden of proof required to establish the Association's responsibility for the wall.
## Analysis of Key Themes
### 1. Definition and Scope of Common Areas
A central theme of the dispute was the legal definition of "Common Area" as prescribed by the Association’s governing documents. Under Bylaws Article I, Section N, Common Areas are defined as Association-owned land, land intended for future conveyance to the Association, or specific easements granted for maintenance.
The evidence established that:
* The retaining wall is located on the boundary of Petitioner's Lot 22 and the Foothills Golf Course.
* The Association does not own the land underneath the retaining wall.
* The Golf Course land is explicitly excluded from the Common Area per Bylaws Article IV, Section 4.5.
* Tract A, a known Common Area, is located thirteen lots away from the Petitioner’s residence and has no physical or legal relationship to the wall in question.
### 2. Maintenance Liability for Party Walls and Fences
The Petitioner relied on Bylaws Article IV, Section 4.2(p) to argue for Association liability. This section dictates the rights and duties regarding "Party Walls" or "Party Fences." While the Association is responsible for maintenance in cases where fences are located between Common Areas and Lots or constructed by the Declarant on Common Areas, this responsibility does not extend to private walls between individual lots and non-Association land (such as the golf course).
### 3. Successorship and Easement Validity
The Petitioner presented a "Reservation of Easement" (1988) and a "Special Warranty Deed" (1995) to support his claim. However, the legal analysis found two critical gaps:
* **Successorship:** The Petitioner could not establish that the Association was the successor or assign of the "Declarant" or "Dell E. Webb," the entities originally involved in the easement agreements.
* **Recorded Instruments:** The 1995 Deed conveyed Tract A to the Association but did not convey an easement for the maintenance of the wall on Lot 22.
### 4. Technical Failure and Causation
The retaining wall's failure was attributed to water damage and a design flaw, with repairs estimated between $30,000 and $40,000. While the Petitioner cited failing anchors and a leaning structure, the Association raised the possibility that a leak from the Petitioner's in-ground pool may have compromised the wall's integrity. The engineering report provided by the Petitioner was noted to have omitted an underground inspection of the area between the pool and the wall.
## Important Quotes with Context
### On Common Area Definitions
> "‘Common Area and Common Areas’ shall mean (a) all Association Land; (b) all land within The Foothills which the Declarant... makes available for use by Members... and (e) areas on a Lot or Parcel within easements granted to the Association... for the location, construction, maintenance, repair and replacement of a wall or fence."
— **Bylaws Article I, Section N**
*Context: This definition serves as the baseline for determining whether the Association has any jurisdictional responsibility over a physical structure within the community.*
### On Maintenance Responsibility
> "In the case of Party Fences (1) between Common Areas and Lots or Parcels, or (2) constructed by the Declarant or the Association on Common Areas within a Lot or Parcel, the Association shall be responsible for all maintenance thereof..."
— **Bylaws Article IV, Section 4.2(p)(vi)**
*Context: The Petitioner argued this clause mandated the Association to fix his wall, but the court found the wall did not meet the "Common Area" criteria required to trigger this obligation.*
### On the Burden of Proof
> "Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document... A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not."
— **Conclusions of Law ¶ 3-4**
*Context: This establishes the legal standard used by the Administrative Law Judge to determine that the Petitioner's evidence was insufficient to hold the Association liable.*
## Summary of Findings and Ruling
The Administrative Law Judge made the following determinations:
| Factor | Finding |
| :--- | :--- |
| **Wall Location** | Private property/Golf course boundary; not a Common Area. |
| **Easement Connectivity** | No legal or physical relationship between the Association's Tract A and Lot 22. |
| **Successorship** | No evidence that the Association is the successor to the original Declarant's easement duties. |
| **Liability** | No recorded instrument imparts a maintenance requirement on the Association for this wall. |
**Final Order:** The Petitioner’s request for the Association to cover repair costs was **denied**.
## Actionable Insights
* **Documentation of Successorship:** When claiming rights under old easement agreements, homeowners must provide recorded instruments that explicitly link the current homeowners' association to the original Declarant's specific obligations and powers.
* **Verification of Common Area Boundaries:** Property owners should consult Plat Maps and Tract Declarations to confirm whether a structure (like a retaining wall) is legally classified as a Common Area before initiating a petition for Association maintenance.
* **Evidence of Causation:** In disputes involving structural failure, comprehensive engineering reports—including underground inspections where applicable (e.g., near pools)—are vital to rule out owner negligence or "willful or negligent acts" that would shift costs back to the member under Bylaw Article X, Section 10.3.
* **Burden of Proof Requirements:** A petitioner must prove it is "more probably true than not" that a violation occurred. Mere interpretation of ambiguous language without supporting recorded deeds or specific bylaws is generally insufficient in administrative hearings.
Study Guide: Kline v. The Foothills Community Association
# Study Guide: Kline v. The Foothills Community Association
This study guide provides a comprehensive overview of the administrative law case *Larry Kline vs. The Foothills Community Association* (No. 20F-H2019012-REL). It examines the legal dispute regarding the maintenance responsibilities of a homeowners' association versus an individual property owner.
## Key Concepts and Case Summary
### 1. Case Overview
The case involves a dispute between Petitioner Larry Kline and Respondent Foothills Community Association. Petitioner alleged that the Association violated its governing documents—specifically Bylaws Article IV, Section 4.2(p)—by failing to repair a failing retaining wall located at the back of his property.
### 2. Governing Documents and Definitions
The relationship between the parties is governed by several legal instruments that form an enforceable contract:
* **Declaration of Covenants, Conditions and Restrictions (CC&Rs):** Recorded on April 10, 1987, these empower the Association to control property use.
* **Common Areas:** Defined in Bylaws Article I, Section N as Association Land or areas within easements granted to the Association for maintenance and repair.
* **Declarant:** Refers to the Foothills Joint Venture or its successors/assigns who have been granted rights via recorded instruments.
* **Party Walls/Fences:** Shared structures between lots or between a lot and a common area.
### 3. The Central Dispute
The Petitioner’s property (Lot 22) features a retaining wall separating his land from the Foothills Golf Course. The wall is leaning due to a design flaw and water damage, with repair costs estimated between $30,000 and $40,000.
* **Petitioner’s Argument:** The Association is liable for maintenance based on an Easement Agreement (1988) and a Special Warranty Deed (1995).
* **Respondent’s Argument:** The wall is not in a Common Area; the Association is not a successor to the original "Declarant" of the easement; and the wall sits on private property, making maintenance the owner’s responsibility.
### 4. Legal Standards
* **Jurisdiction:** The Arizona Department of Real Estate has the authority to decide disputes between homeowners and associations regarding violations of community documents.
* **Burden of Proof:** The Petitioner bears the burden of proving a violation by a **preponderance of the evidence** (meaning the claim is more probably true than not).
---
## Short-Answer Practice Questions
**1. What specific section of the Bylaws did the Petitioner claim the Association violated?**
> **Answer:** Bylaws Article IV, Section 4.2(p).
**2. According to Bylaws Article IV, Section 4.5, is "Golf Course Land" considered part of the Common Area?**
> **Answer:** No. The Bylaws explicitly state that Golf Course Land is not part of the Common Area.
**3. What was the estimated cost for the remediation of the retaining wall?**
> **Answer:** Between $30,000.00 and $40,000.00.
**4. Why did the Administrative Law Judge (ALJ) conclude that the Association was not responsible for the wall under the Easement Agreement?**
> **Answer:** The Petitioner failed to establish that the Association was a successor or assign of the "Declarant" who signed the original Easement Agreement.
**5. What is the definition of "Preponderance of the Evidence" used in this case?**
> **Answer:** Evidence that has the most convincing force and superior evidentiary weight, making a contention "more probably true than not."
**6. What physical feature of Lot 22 did the Association’s witness suggest might have contributed to the wall's damage?**
> **Answer:** An in-ground pool, which may have leaked and impacted the wall's anchor support system.
**7. Is Tract A related to the Petitioner’s property on Lot 22?**
> **Answer:** No. Tract A is a Common Area throughway located thirteen lots away from Lot 22, with no legal or physical relationship to Lot 22's retaining wall.
---
## Essay Prompts for Deeper Exploration
1. **Contractual Obligations in Planned Communities:** Analyze how CC&Rs and Bylaws function as an enforceable contract between an Association and its members. Discuss the importance of "recorded instruments" in determining which party is responsible for the maintenance of specific structures like party walls.
2. **The Role of the "Declarant" and Successorship:** Explain the legal significance of the term "Declarant" in this case. Why was the Petitioner's inability to prove the Association was a "successor or assign" of the original Declarant fatal to his claim regarding the Easement Agreement?
3. **Evidentiary Burdens in Administrative Hearings:** Discuss the "preponderance of evidence" standard. In the context of this case, what specific types of evidence (e.g., engineering reports, deeds, plat maps) were most influential in the Judge’s final decision, and where did the Petitioner’s evidence fall short?
---
## Glossary of Important Terms
| Term | Definition |
| :--- | :--- |
| **Administrative Law Judge (ALJ)** | A judge who over-sees evidentiary hearings and makes findings of fact and conclusions of law for state agencies. |
| **CC&Rs** | Declaration of Covenants, Conditions and Restrictions; the primary governing documents for a homeowners' association. |
| **Common Area** | Land owned by the Association or specifically designated for Association use and maintenance in recorded documents. |
| **Declarant** | The original developer of a community (Foothills Joint Venture) or a party to whom their rights have been officially assigned. |
| **Easement** | A legal right to use another person's land for a specific purpose (e.g., maintenance of a wall or landscaping). |
| **Party Wall / Fence** | A wall or fence located on or at the division line between contiguous lots or between a lot and a common area. |
| **Preponderance of the Evidence** | The standard of proof in civil cases; evidence that is more convincing than the evidence offered in opposition. |
| **Recorded Instrument** | A legal document (like a deed or declaration) that has been officially filed with the County Recorder's Office to provide public notice. |
| **Shotcrete Wall** | A reinforcement method mentioned in the remediation proposal for the failing retaining wall. |
| **Tract Declaration** | A recorded document that defines specific sections or subdivisions within a larger development. |
Blog Post
thought
Master Writer and Editor.
Legal Consultant specializing in Planned Community Disputes and HOA Governance.
Rewrite an initial draft into a final, publication-ready document.
*Larry Kline vs. The Foothills Community Association* (No. 20F-H2019012-REL).
Outline, Expert Critique, Initial Draft, Source Context.
* *Tone:* Professional, accessible, consultant-level nuance (strategic, not just reporting).
* *Fidelity:* Prioritize Source Context (Arizona Department of Real Estate case).
* *Critique Point 1 (Persona):* Frame Association strategy as a "defensive masterclass." Highlight Petitioner's lack of geotechnical due diligence regarding the pool.
* *Critique Point 2 (Successorship):* Identify Dell E. Webb. Explain the failure to link the Association via a *recorded instrument*.
* *Critique Point 3 (Common Area/Tract A):* Include "Tract A" details (13 lots away, only land in the 1995 Deed).
* *Critique Point 4 (Markdown Table):* Add **Bylaw Article IV, Section 4.5** (Golf Course Land is NOT Common Area).
* *Critique Point 5 (Synthesis):* Add "Consultant's Notes" to the three missing links.
* *Critique Point 6 (Conclusion):* Reference the **Plat Map** (no easement on Lot 22) and distinguish **Special Warranty Deed** vs. **Easement Agreement**.
* *Critique Point 7 (Bolding):* Bold **CC&Rs**, **Bylaws**, **Tract Declaration**, **Special Warranty Deed**, **Preponderance of the Evidence**, **Common Area**.
* *Critique Point 8 (Venue):* Mention the **Arizona Department of Real Estate**.
* *Critique Point 9 (Geography):* Wall is on boundary of Lot 22 and Golf Course; HOA does not own the land.
* **Title:** # The $40,000 Wall: Lessons in HOA Liability and Homeowner Responsibility
* **Section 1: Introduction.**
* Hook: Financial risks of boundary disputes.
* The Case: *Larry Kline vs. The Foothills Community Association* (20F-H2019012-REL).
* Venue: **Arizona Department of Real Estate**.
* Question: Who is responsible for perimeter structures?
* **Section 2: The Conflict.**
* Description of Lot 22 and the wall (leaning toward golf course).
* Bullet points on physical state: Design flaws, failing anchors, leaning, water damage.
* Cost: $30,000-$40,000.
* Legal hook: **Bylaws** Article IV, Section 4.2(p).
* Association refusal: Demanded evidence of liability.
* **Section 3: Decoding the Governing Documents.**
* Define **Common Area** (Bylaws Article I, Section N). Mention Tract A (13 lots away).
* Section 4.2(p) (Party Fences/Walls).
* Section 4.5 (Golf Course Land is NOT **Common Area**).
* Markdown Table: Compare Arguments. Ensure Section 4.5 is the "smoking gun."
* **Section 4: The Hearing.**
* Standard: **Preponderance of the Evidence**.
* Association's "defensive masterclass."
* Patricia Ann Wontor's testimony: Tract A vs. Lot 22.
* Rebuttal/Due Diligence failure: The in-ground pool. Mention Kline's water bill justification as insufficient.
* **Section 5: The Verdict.**
* Judge Jenna Clark's decision.
* The Three Missing Links with Consultant's Notes.
* Link 1: Dell E. Webb / Successorship.
* Link 2: Recorded Instrument / Mandate.
* Link 3: Land Ownership (Private/Golf course vs. HOA).
* **Section 6: Conclusion.**
* Actionable insights.
* **Know Your Boundaries:** Plat Map details (Lot 22 exclusion).
* **Documentation is King:** **Special Warranty Deed** vs. **Easement Agreement**.
* **The Burden of Proof:** Preponderance of the Evidence.
* Final thought: Legal review and property inspection.
* Check bolding: **CC&Rs**, **Bylaws**, **Tract Declaration**, **Special Warranty Deed**, **Common Area**, **Preponderance of the Evidence**.
* Verify facts: Tract A is 13 lots away. Original party was Dell E. Webb. Wall is on private/golf course land.
* Tone check: Ensure it sounds like a consultant advising a client/reader. Avoid passive language.
* Formatting: H1 title, H2/H3 headers, Markdown table, no conversational filler.
* *Critique:* Frame pool leak as failure of due diligence. (Included).
* *Critique:* Mention Tract A is 13 lots away. (Included).
* *Critique:* Mention Section 4.5 in the table. (Included).
* *Critique:* Mention Dell E. Webb and the "recorded instrument" link. (Included).
* *Critique:* "Consultant's Note" for missing links. (Included).
* *Critique:* Bold specific terms. (Done).
(Self-Correction during drafting): Make sure the table shows the "smoking gun" of Section 4.5 clearly.
(Source Check): The source says "Petitioner has not established that the Association is a successor or assign of the Declarant who signed the Easement Agreement." The original party to the 1988 agreement was Dell E. Webb (mentioned in the Findings of Fact #22).
(Source Check): The 1995 **Special Warranty Deed** conveyed Tract A to the Association. Tract A is 13 lots away.
(Final Formatting Check): Only Markdown H1 at start. No preamble.# The $40,000 Wall: Lessons in HOA Liability and Homeowner Responsibility
## 1. Introduction: The High Stakes of Property Maintenance
In the world of planned communities, the boundary between a private lot and a common area is more than a line on a map—it is a high-stakes financial divide. When a perimeter structure begins to fail, homeowners often assume the homeowners’ association (HOA) is naturally responsible for the repair. However, as one Phoenix homeowner discovered, making that assumption without a rock-solid legal foundation can lead to a costly defeat.
The case of *Larry Kline vs. The Foothills Community Association* (No. 20F-H2019012-REL), heard by the **Arizona Department of Real Estate**, serves as a masterclass in the complexities of community governance. At the heart of the dispute was a failing retaining wall and a potential $40,000 repair bill. The central question of the hearing: Who is truly responsible for structures sitting on the edge of private property and common areas?
## 2. The Conflict: A Leaning Wall and a Denied Request
The dispute centered on a massive retaining wall located along the back perimeter of Larry Kline’s property (Lot 22), which separates his residence from the Foothills Golf Course. The physical state of the wall was dire:
* **Design Flaws:** A latent defect in the original wall design.
* **Structural Failure:** Failing internal anchors causing the wall to lose its integrity.
* **Physical Displacement:** The structure was visibly leaning toward the golf course.
* **Water Damage:** Significant damage caused by prolonged water accumulation and soil pressure.
After consulting with engineering firms, Kline estimated the cost for reinforcement and remediation to be between **$30,000 and $40,000**. Relying on his interpretation of the community’s governing documents—specifically **Bylaws** Article IV, Section 4.2(p)—Kline demanded that the Association cover the repairs. The Association refused, maintaining that they held no liability for structures located on the perimeter of a private lot, and challenged Kline to provide a recorded mandate for such maintenance.
## 3. Decoding the Governing Documents: CC&Rs vs. Reality
To resolve the dispute, the Administrative Law Judge had to dissect the **CC&Rs** and **Bylaws**, specifically regarding the definitions of "Common Area" and "Party Walls."
Under the **Bylaws**, **Common Area** is strictly defined as land owned by the Association or land the "Declarant" intended to convey via a **Recorded instrument**. A critical piece of evidence was the **Special Warranty Deed** from 1995, which conveyed "Tract A" to the Association. However, "Tract A" was a drainage throughway located thirteen lots away from Kline’s property, with no physical or legal connection to Lot 22.
The following table highlights the strategic clash between the Petitioner's assumptions and the Association’s textual defense:
| Petitioner’s Argument | Association’s Defense |
| :--- | :--- |
| **Legal Basis:** Relied on a 1988 Reservation of Easement and a 1995 **Special Warranty Deed**. | **Legal Basis:** Relied on the **Plat Map**, **Tract Declaration**, and **Bylaws** Section 4.5. |
| **Liability:** Argued the Association was a successor to the original developer and held maintenance duties in perpetuity. | **The "Smoking Gun":** **Bylaws** Article IV, Section 4.5 explicitly states that "Golf Course Land shall **not** be part of the **Common Area**." |
| **Interpretation:** Interpreted Section 4.2(p) as mandating HOA repair for any boundary "Party Fence" or wall. | **Ownership:** Proved the wall sat entirely on land owned by the Petitioner and the golf course, neither of which is **Common Area**. |
## 4. The Hearing: A Defensive Masterclass
The December 2019 hearing hinged on the **Preponderance of the Evidence**. This standard required Mr. Kline to prove it was "more probably true than not" that the Association violated a community document.
The Association executed a defensive masterclass by highlighting the Petitioner’s failure to conduct proper **due diligence**. While Kline argued that the wall failed due to design defects, the Association suggested a more localized cause: Kline’s in-ground pool. They argued that an underground leak from the pool could have compromised the wall's anchor system.
In a pivotal moment, Kline conceded he had not commissioned a geotechnical soil evaluation or checked for pool leaks because he "did not notice any abnormal increases to his monthly water bill." From a consultant’s perspective, relying on a water bill instead of a professional inspection in a $40,000 dispute left the Petitioner’s case fatally vulnerable to **rebuttal**.
## 5. The Verdict: Why the Petition was Denied
Administrative Law Judge Jenna Clark concluded that the Petitioner failed to sustain his burden of proof. The denial rested on three "missing links":
1. **Failure to Establish Successor Status:** The Petitioner could not prove the Association was the legal successor or assign of **Dell E. Webb** (the original party to the 1988 Easement Agreement).
* *Consultant’s Note:* Without a **recorded instrument** expressly linking the Association to the original developer’s specific obligations, the "chain of authority" is broken.
2. **Lack of a Recorded Mandate:** No **Deed** or **Tract Declaration** was presented that explicitly required the Association to maintain that specific wall on Lot 22.
* *Consultant’s Note:* In HOA law, verbal "understandings" or historical assumptions are legally irrelevant compared to what is written in the recorded title.
3. **Private Property Location:** It was undisputed that the wall sat on private land and golf course property.
* *Consultant’s Note:* Because the wall was not on a **Common Area**, the maintenance protections of **Bylaws** Section 4.2(p) simply did not apply.
## 6. Conclusion: Key Takeaways for Every Homeowner
This case provides a sobering reminder that "common sense" in a neighborhood is rarely the same as "legal fact" in a courtroom.
* **Know Your Boundaries:** Never assume a boundary wall is an HOA responsibility. Consult your subdivision's **Plat Map** specifically. In this case, the **Plat Map** showed "no easement listed for Lot 22," which was a decisive factor in the ruling.
* **Documentation is King:** Understand the difference between a **Special Warranty Deed** and an Easement Agreement. A **Deed** conveying one specific area (like Tract A) does not automatically transfer maintenance duties to every other perimeter structure in the community.
* **The Burden of Proof:** In administrative hearings, the responsibility lies entirely with the petitioner to provide a **Preponderance of the Evidence**. If the governing documents—the **CC&Rs**, **Bylaws**, and **Tract Declaration**—do not explicitly grant you a right, the tribunal cannot create one for you.
Before escalating a dispute involving high-cost repairs, homeowners should invest in professional property inspections and a rigorous legal review of their **CC&Rs** to ensure their claims are built on recorded evidence, not expensive assumptions.
Case Participants
Petitioner Side
- Larry Kline (Petitioner)
The Foothills Community Association
Property owner of Lot 22, Club House Estates; appeared on his own behalf.
Respondent Side
- Austin Baillio (Attorney)
Maxwell & Morgan, P.C.
Appeared on behalf of The Foothills Community Association. Also spelled B. Austin Baillo.
- Patricia Ann Wontor (Witness)
The Foothills Community Association
Onsite Community Manager for the Association.
Neutral Parties
- Joe Robinson (Observer)
Observed the hearing.
- Sandra Salvo (Observer)
Observed the hearing.
- Jenna Clark (Administrative Law Judge)
Office of Administrative Hearings
Presiding judge.
- Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of the order and decision.
