Maria G. McKee and Josh Bolen (Carpenter Hazelwood Delgado & Bolen LLP) Archives - Arizona HOA Transparency ProjectArizona HOA Transparency Project

Case Summary

Case ID	22F-H2222047-REL
Agency	—
Tribunal	—
Decision Date	2022-08-18
Administrative Law Judge	—
Outcome	complete
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Emery Herbert	Counsel	Pro Se
Respondent	Lakebrook Villas II Homeowners Association Inc.	Counsel	Maria G. McKee and Josh Bolen (Carpenter Hazelwood Delgado & Bolen LLP)

Alleged Violations

No violations listed

Audio Overview

Decision Documents

22F-H2222047-REL Decision – 979855.pdf

Uploaded 2026-04-24T11:52:17 (46.3 KB)

22F-H2222047-REL Decision – 981946.pdf

Uploaded 2026-04-24T11:52:23 (49.0 KB)

22F-H2222047-REL Decision – 993566.pdf

Uploaded 2026-04-24T11:52:27 (207.3 KB)

Briefing Document: Herbert v. Lakebrook Villas II Homeowners Association

# Briefing Document: Herbert v. Lakebrook Villas II Homeowners Association

## Executive Summary

This briefing document analyzes the consolidated administrative cases (**No. 22F-H2222047-REL** and **No. 22F-H2222052-REL**) heard on July 11, 2022, before the Arizona Office of Administrative Hearings. The dispute involved Emery Herbert (Petitioner) and the Lakebrook Villas II Homeowners Association Inc. (Respondent/Association) regarding two primary issues: the Association’s alleged failure to promptly repair a roof leak and the legality of a significant monthly dues increase to fund a community-wide roof replacement project.

Following a deep analysis of testimonies and evidence, the Administrative Law Judge (ALJ) issued a decision on August 18, 2022, dismissing both petitions. The ALJ concluded that the Association acted within its discretionary authority to manage common areas and that the Petitioner’s interpretation of "prompt repair" under Arizona law was contextually incorrect.

---

## Case Overview and Participants

---

## Analysis of Key Themes

### 1. Maintenance vs. Capital Improvement
A central conflict was whether the total "rip and replacement" of the community’s 44-year-old roofs constituted "maintenance" or a "capital improvement."

* **Petitioner’s Position:** Based on IRS definitions and the scale of the $362,586 project, the Petitioner argued the work was a capital improvement. Under Section 9 of the Declaration, any capital expenditure exceeding $2,500 requires a 75% vote of the owners.
* **Respondent’s Position:** The Association argued the roofs had reached the end of their shelf life and that "patching" was no longer a viable professional recommendation. They framed the project as necessary maintenance to restore the common elements to their original functional state.
* **Legal Outcome:** The ALJ ruled that the Association exercised its authority under Section 13 of the Declaration. This section provides broad discretionary power to the Board to determine "cash requirements" necessary to manage and operate the condominium, including repairs and renovations to common areas.

### 2. Statutory Interpretation of "Prompt Repair"
The Petitioner alleged a violation of **A.R.S. § 33-1247(A)**, claiming the Association failed to provide a "prompt repair" for a leak reported in March 2022.

* **The "Access" Proviso:** The Association argued—and the ALJ agreed—that the "prompt repair" requirement in A.R.S. § 33-1247(A) applies specifically to damage caused *by the Association* when they are granted access to a unit to perform work.
* **General Upkeep:** For general maintenance of common elements, the statute requires the Association to be responsible for upkeep, but the ALJ found that the timing and deliberation of a community-wide replacement project (begun in late 2021) constituted reasonable action by the Board.

### 3. Drainage vs. Foam Roofing Failure
There was significant technical disagreement regarding the cause of the leaks in Building M.

* **The Drain Theory:** Petitioner provided evidence (including a 2019 report and a plumber's statement) suggesting that clogged internal cast-iron drains were the true cause of the leaks, meaning a roof surface replacement would not solve the problem.
* **The Foam Theory:** The Association’s roofing contractor testified that the polyurethane foam was deteriorated and separating from the pipes, allowing water intrusion. He stated that while drains might be clogged, the roof surface failure was the primary issue. He committed to water-testing drains once the roof was "opened up" and involving a plumber if damage was found.

---

## Significant Quotes with Context

### On Statutory Obligations
> "The association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit... If damage is inflicted on the common elements or any unit through which access is taken, the unit owner... or the association... is liable for the prompt repair of the damage."
* **Context:** **A.R.S. § 33-1247(A)**. This was the foundation of Petitioner's first claim. The ALJ eventually determined the "prompt" requirement was limited to damage occurring during unit access.

### On HOA Funding Strategy
> "This is NOT a special assessment; it is an increase to your regular monthly HOA fees."
* **Context:** **Association Notification Letter (April 20, 2022)**. The HOA raised monthly fees from $303 to $885 for seven months to fund the $362,586 project, intentionally avoiding the "special assessment" label to bypass a membership vote.

### On Board Discretion
> "The Management Committee shall have discretionary powers to prescribe the manner of maintaining and operating the Condominium Project and to determine the cash requirements... Every such reasonable determination... shall, as against the owner, be deemed necessary and properly made."
* **Context:** **Declaration Section 13**. This language was cited by the ALJ as the legal basis for the Board's authority to raise dues for the roof project without a 75% vote.

### On Necessary Maintenance
> "At this time, repairs can't be done... you're still going to get leaks... they're going to spend a lot more money than what they are right now. So that’s why... we highly recommended repairs not to be done."
* **Context:** **Testimony of Edwin Escobardia Diaz (Desert Canyon Roofing)**. He justified the full replacement over patching, which helped the HOA argue that the project was "maintenance" rather than an "improvement."

---

## Actionable Insights

### For Homeowners
* **Context of "Promptness":** Under Arizona condominium law (A.R.S. § 33-1247), an HOA’s duty to perform "prompt" repairs is specifically linked to damage they cause while accessing a unit. General maintenance of common elements is subject to the Board’s reasonable deliberation and timeline.
* **Evidence of Causation:** In disputes involving leaks, having a written expert report (from a plumber or roofer) is critical. The Petitioner’s experts refused to provide written statements, which weakened her argument that the HOA's roof replacement would not fix the underlying drainage issue.

### For HOA Governance
* **Regular vs. Special Assessments:** The distinction between "maintenance" and "capital improvement" is vital. This case confirms that Boards have broad discretion to classify large-scale replacements (like roofs) as maintenance, allowing them to fund the project via regular assessment increases (Section 13) rather than special assessments (Section 10/9) that require community votes.
* **Master vs. Sub-Association Rules:** The Association successfully argued that certain restrictive amendments (limiting fee increases to 5%) belonged to a Master Association (Lake Biltmore Village) and did not apply to the specific sub-association’s internal dues for its own roofs.
* **Deliberation Records:** The HOA’s victory was supported by a paper trail showing they began discussing the roof condition and seeking bids as early as 2019, demonstrating "reasonable deliberation" rather than negligence.

Case Study Guide: Herbert v. Lakebrook Villas II Homeowners Association

# Case Study Guide: Herbert v. Lakebrook Villas II Homeowners Association

This study guide provides a comprehensive analysis of the consolidated legal matters between Petitioner Emery Herbert and Respondent Lakebrook Villas II Homeowners Association Inc. (HOA), as heard before the Arizona Office of Administrative Hearings in July 2022.

## 1. Case Overview

* **Petitioner:** Emery Herbert (Unit owner since February 2022).
* **Respondent:** Lakebrook Villas II Homeowners Association Inc.
* **Administrative Law Judge:** Kay A. Abramsohn.
* **Docket Numbers:**
* **22F-H2222047-REL (Petition1):** Focused on roof leaks, maintenance of common elements, and the interpretation of "prompt repair."
* **22F-H2222052-REL (Petition2):** Focused on the categorization of a $362,586 roof replacement project and the legality of increasing monthly dues without a membership vote.

---

## 2. Key Legal Framework

The proceedings centered on the interpretation of Arizona statutes and the HOA’s governing documents:

---

## 3. The Core Disputes

### Issue A: Roof Leak and Maintenance (Petition1)
Petitioner Emery Herbert discovered a leak in her second bedroom on March 29, 2022, following a rainstorm. She argued the HOA violated **A.R.S. § 33-1247(A)** by failing to provide a "prompt repair."

* **Petitioner’s Position:** The HOA neglected the drains for years (citing a 2019 report). The delay in repair caused the spread of black mold (*Stachybotrys*) behind the drywall and in the roof insulation.
* **HOA’s Position:** The 40-year-old foam roofs had reached the end of their life and could no longer be patched effectively. The HOA was already implementing a comprehensive community-wide replacement plan.
* **Legal Finding:** The Judge ruled that the "prompt repair" clause in A.R.S. § 33-1247(A) specifically applies to damage the HOA causes to a unit while *accessing* it to perform repairs. Because the HOA was acting on a broad plan for 40-year-old roofs, it did not violate the statute.

### Issue B: Assessment Increase vs. Special Assessment (Petition2)
In April 2022, the HOA increased monthly dues from **$303 to $885** for the remainder of the year to fund a $362,586 roof project ($4,074 per unit).

* **Petitioner’s Position:** Ripping off and replacing a roof is a "capital improvement" under IRS and accounting standards. Per Section 9, any capital expenditure over $2,500 requires a 75% vote. The HOA called it "maintenance" simply to bypass the vote and gain the power to place liens for non-payment.
* **HOA’s Position:** Replacing a roof to its original state to prevent water intrusion is "maintenance," not an improvement or upgrade. Section 13 grants the Board authority to increase regular assessments to cover necessary repairs and renovations.
* **Legal Finding:** The Judge concluded the HOA properly exercised its authority under Section 13 to determine cash requirements for repairs and renovations. Petitioner failed to prove the project was a capital improvement requiring a vote under Section 9.

---

## 4. Short-Answer Practice Questions

1. **On what date did the Petitioner first report the roof leak, and how much time elapsed before the hearing?**
* The leak was reported on March 29, 2022. The hearing took place on July 11, 2022, approximately 104 days later.
2. **According to the HOA's roofer, Edwin Escobardia Diaz, why were patch repairs no longer recommended for the community?**
* He testified that the foam was deteriorated to the point where patches would still result in leaks, and a full tear-off was necessary to inspect for underlying rotten wood.
3. **What was the specific amount of the monthly HOA fee increase, and how many months was it scheduled to last?**
* The fee increased by $582 (from $303 to $885) for seven months.
4. **How did the Judge interpret the term "prompt repair" in A.R.S. § 33-1247(A)?**
* The Judge interpreted it as applying to damage caused by the association or a unit owner during the process of taking access through a unit to perform repairs.
5. **Which building was used as a comparison because its roof was already replaced by February 2022?**
* Building "C."
6. **What did witness Colton Hoover testify regarding the classification of the roof project?**
* As an audit associate and accountant, he testified that a total rip-and-replace project should be classified as a capital improvement rather than maintenance.

---

## 5. Essay Prompts for Deeper Exploration

1. **Maintenance vs. Capital Improvement:** Evaluate the arguments presented by both the Petitioner and the Respondent regarding the classification of the roof replacement. Discuss how the IRS and Cornell Law definitions provided in the source context conflict with the HOA’s interpretation of "maintenance" under Section 13.
2. **Statutory Interpretation:** Analyze the Judge’s decision to dismiss Petition1. Do you agree with the narrow interpretation of "prompt repair" in A.R.S. § 33-1247(A)? Consider the implications for homeowners if an HOA delays repairs for common elements that cause ongoing damage to private units.
3. **Fiduciary Discretion vs. Member Rights:** Discuss the balance of power between an HOA Board and its members as evidenced in the Petition2 dispute. Examine the Board’s use of Section 13 (regular assessment) to fund a large-scale project versus the membership’s right to a vote under Section 9 (special assessment).

---

## 6. Glossary of Important Terms

| Term | Definition Based on Source Context |
| :--- | :--- |
| **A.R.S. § 33-1247** | The Arizona statute governing the upkeep of condominiums and the responsibilities of the association versus unit owners. |
| **Capital Improvement** | Defined by the Petitioner (via Cornell/IRS) as an alteration or repair that increases a structure's useful life or value by at least $10,000. |
| **Common Elements** | Parts of the condominium property (like roofs, exterior walls, and pipes) that are not part of individual units and are maintained by the HOA. |
| **Declaration (CC&Rs)** | The legal document that establishes the rules, responsibilities, and assessment powers of the Homeowners Association. |
| **Maintenance** | Defined by the HOA as actions taken to preserve property or restore it to its original condition to prevent failure, such as the roof replacement. |
| **Petitioner** | The party who files a petition or complaint; in this case, Emery Herbert. |
| **Respondent** | The party against whom a petition is filed; in this case, Lakebrook Villas II HOA. |
| **Special Assessment** | A one-time or specific charge for a major project (like a capital improvement) which, under this HOA’s Section 9, may require a 75% membership vote. |
| **Stachybotrys** | A genus of molds, referred to in the documents as "black mold," found in the Petitioner’s unit/roof cavity following the leak. |

The $350,000 Roof Dispute: Key Lessons from a Recent HOA Legal Battle

# The $350,000 Roof Dispute: Key Lessons from a Recent HOA Legal Battle

### 1. Introduction: When Maintenance Meets the Law
In a high-stakes consolidated hearing before the Arizona Office of Administrative Hearings (Case Nos. 22F-H2222047-REL and 22F-H2222052-REL), a fundamental conflict erupted between homeowner Emery Herbert (Petitioner) and the Lakebrook Villas II Homeowners Association (Respondent). The dispute serves as a landmark case study in the tension between a homeowner's right to "prompt" repairs and an HOA board’s authority to manage aging infrastructure through community-wide capital projects.

The judicial inquiry hinged on the distinction between routine maintenance and capital improvements, the technical realities of 40-year-old infrastructure, and the expansive discretionary powers granted to boards under their governing documents. At the heart of the battle was a $362,586 roof replacement project that saw monthly assessments skyrocket from $303 to $885.

### 2. The "Prompt Repair" Paradox: Interpreting A.R.S. § 33-1247
The Petitioner’s first challenge (Petition1) alleged that the Association failed to provide a "prompt repair" for a leak discovered on March 29, 2022. The Petitioner argued that the leak—which caused significant interior damage and mold—was a maintenance failure related to clogged drainage systems. To support this, the Petitioner cited a 2019 roof inspection report that ranked her specific building (Building M) as being in the "Best Condition" in the community, with no blistering.

However, the Administrative Law Judge (ALJ) clarified that the statutory requirement for "promptness" is far more narrow than many homeowners realize.

> **Legal Nuance: A.R.S. § 33-1247(A)**
> The term **"prompt"** in this statute specifically applies to damage **inflicted on a unit or common element during the act of the Association accessing a unit** to perform repairs. It is an access-based liability trigger. Because the Association did not damage the Petitioner’s unit while attempting to reach a common element, the "prompt repair" clock under this specific statute never legally started ticking.

While the Petitioner viewed the delay as negligence, the Association demonstrated that they had been deliberating on a community-wide solution since December 2021. The ALJ ruled that the timing of repairs and replacements remains within the Association’s discretionary authority.

### 3. Maintenance or Capital Improvement? The $2,500 Trigger
The second petition (Petition2) challenged the funding of the $362,586 project. The Petitioner argued that a total roof replacement constituted a "capital improvement" under Section 9 of the Declaration. This section contains a critical "trigger": **no single improvement in the nature of a capital expenditure exceeding $2,500 shall be made without a 75% vote of the owners.**

Additionally, the Petitioner argued that an amendment to the Lake Biltmore Village master declarations capped fee increases at 5% without a vote.

The ALJ found that the project was not a "new" improvement but a necessary restoration of the common elements to their original functional state. Crucially, the judge determined that the Board's authority under Section 13 superseded the Petitioner’s arguments regarding the $2,500 threshold and the 5% cap.

### 4. The Power of the Board: Understanding Section 13 Discretion
The Association’s victory rested on the broad language of Section 13 of the Lakebrook Villas II Declaration. This section acts as a "wild card" for Board authority, granting the Management Committee the power to:

* **Determine Cash Requirements:** Decide the aggregate sum necessary to manage and operate the project.
* **Adjust Assessments:** Increase or diminish assessment amounts throughout the year as needed to meet estimated expenses.
* **Prescribe Maintenance Standards:** Determine the manner in which the buildings and common areas are maintained.

The ruling highlighted a powerful blockquote from the Declaration:
> "Every such reasonable determination by the Management Committee within the bounds of the Act and this Declaration shall, as against the owner, be deemed necessary and properly made."

This "reasonableness" standard allows boards to bypass membership votes for massive expenditures if the work is deemed essential for the continued operation and maintenance of the community.

### 5. Reality Check: 40-Year-Old Roofs and Technical Necessity
Expert testimony from Edwin Escobardia of Desert Canyon Roofing provided the technical justification for the Board’s "maintenance" classification. Escobardia testified that the 40-year-old foam roofs had reached the end of their functional life, making professional patching impossible.

Key technical findings included:
* **The Patching Failure:** On aged, deteriorated foam, new patch material will not bond. Attempting patches would be a waste of Association funds as they would not stop the leaks.
* **Sub-Surface Inspection:** Full removal is necessary to inspect the underlying wood structure for rot and damage—a critical step that surface-level patches cannot accomplish.
* **Mitigation Limits:** The Association’s "inaction" regarding tarps was explained as a technical limitation; in the Petitioner's case, the leak was near a plumbing pipe where the foam was too deteriorated to support a tarp or a "band-aid" fix.

### 6. Conclusion: Takeaways for Homeowners and Boards
In the Final Administrative Law Judge Decision ordered on **August 18, 2022**, the ALJ dismissed both petitions. The ruling confirmed that the Association did not violate the law or its governing documents by implementing the $362,586 project via a massive assessment increase without a vote.

**Lessons Learned:**

* **Statutory Limits:** A.R.S. § 33-1247(A) is not a general "speed of repair" law. It is specifically tied to damage caused by the Association during unit access.
* **Governing Docs Override Definitions:** While the IRS or a dictionary might define "replacement" as a capital improvement, the specific wording of a Declaration (like Section 13) can legally reclassify it as "necessary maintenance."
* **The Discretionary Power Clause:** Homeowners must look for "Discretionary Power" clauses in their CC&Rs. These clauses often nullify voting requirements (like the $2,500 Section 9 cap) if the Board can show the expense is for the "operation and management" of the community.
* **Technical Evidence Matters:** Expert testimony regarding the "functional life" of infrastructure can override even a recent inspection report (like the 2019 "Best Condition" ranking for Building M) if the expert proves a community-wide emergency exists.

Homeowners are strongly advised to review the specific "Discretionary Power" and "Common Expense" sections of their CC&Rs before initiating legal action against a board's financial decisions.

Case Participants

Petitioner Side

Emery Herbert (Petitioner)
Represented herself
Colton Hoover (Witness)
Walker and Armstrong CPAs
Homeowner and Audit Associate
Hildelu Sandoval (Witness)
Homeowner at Lakebrook Villas II
Luv Brito (Witness)
Homeowner at Lakebrook Villas II

Respondent Side

Maria G. McKee (Attorney)
Carpenter Hazelwood Delgado & Bolen LLP
Represented Respondent Lakebrook Villas II Homeowners Association Inc.
Josh Bolen (Attorney)
Carpenter Hazelwood Delgado & Bolen LLP
Represented Respondent Lakebrook Villas II Homeowners Association Inc.
Lindsay Sherwin (Witness)
Peterson Company
Community manager for Lakebrook Villas II
Edwin Escobar Diaz (Witness)
Desert Canyon Roofing
Half owner of Desert Canyon Roofing

Neutral Parties

Kay A. Abramsohn (Administrative Law Judge)
Office of Administrative Hearings
Louis Dettorre (Commissioner)
Arizona Department of Real Estate

Arizona HOA Transparency Project

Holding HOA Boards, Attorneys, and Management Companies Accountable

Tag Archives: Maria G. McKee and Josh Bolen (Carpenter Hazelwood Delgado & Bolen LLP)

Emery Herbert v. Lakebrook Villas II Homeowners Association INC