Case Summary
| Case ID | 12F-H1213002-BFS |
|---|---|
| Agency | Department of Fire, Building and Life Safety |
| Tribunal | OAH |
| Decision Date | 2012-12-21 |
| Administrative Law Judge | M. Douglas |
| Outcome | The Administrative Law Judge ruled in favor of the Respondent (HOA). The ALJ determined that the Board's resolution allowing pavers did not violate statutes or CC&Rs because the areas in question (ingress/egress) were limited common elements allocated to the units, not general common elements requiring an 80% vote to convey. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Katherine A. Windis | Counsel | — |
|---|---|---|---|
| Respondent | Fairway Court West Condominium Association | Counsel | R. Corey Hill |
Alleged Violations
A.R.S. § 33-1217, A.R.S. § 33-1252, A.R.S. § 33-1218
Outcome Summary
The Administrative Law Judge ruled in favor of the Respondent (HOA). The ALJ determined that the Board's resolution allowing pavers did not violate statutes or CC&Rs because the areas in question (ingress/egress) were limited common elements allocated to the units, not general common elements requiring an 80% vote to convey.
Why this result: The ALJ determined the disputed areas were limited common elements allocated exclusively to the units for ingress/egress, rather than general common elements, meaning no conveyance occurred requiring an association-wide vote.
Key Issues & Findings
Unauthorized conveyance of common elements
Petitioner alleged the Board resolution allowing first-floor owners to install pavers on common areas constituted a conveyance of common property requiring 80% owner approval and violated allocation rules.
Orders: The petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1217
- A.R.S. § 33-1252
- A.R.S. § 33-1218
- A.R.S. § 33-1212
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Video Overview
Audio Overview
Decision Documents
12F-H1213002-BFS Decision – 318678.pdf
12F-H1213002-BFS Decision – 323827.pdf
12F-H1213002-BFS Decision – 318678.pdf
12F-H1213002-BFS Decision – 323827.pdf
Legal Briefing: Windis v. Fairway Court West Condominium Association (No. 12F-H1213002-BFS)
Executive Summary
This briefing document analyzes the administrative law proceedings and final decision in the matter of Katherine A. Windis versus Fairway Court West Condominium Association. The dispute originated from a board resolution passed on April 23, 2012, which permitted owners of first-floor units to install pavers on areas adjacent to their units. The Petitioner, Katherine A. Windis, alleged that this action constituted an illegal encroachment and a transfer of common property to private use without the required 80% membership vote.
The Office of Administrative Hearings (OAH) determined that the Petitioner failed to meet the burden of proof. The presiding Administrative Law Judge (ALJ) found that the areas in question—entryways and patios serving individual units—were "Limited Common Elements" under Arizona law, rather than general common areas subject to partition or conveyance restrictions. The decision, initially issued on December 21, 2012, was certified as a final agency action on February 5, 2013, after the Department of Fire, Building and Life Safety declined to modify or reject the ruling.
Analysis of Key Themes
1. Classification of Property: Common vs. Limited Common Elements
The central conflict of the case rested on the legal definition of the land where pavers were installed.
- Petitioner’s Argument: Windis argued that the land was "common area" in which all owners held an undivided interest. She contended that allowing specific owners to place pavers converted this common property into private-use property.
- Respondent’s Argument: Fairway Court West argued that pursuant to A.R.S. § 33-1212(4), exterior entryways and patios serving a single unit are "Limited Common Elements." These are legally allocated exclusively to that unit, even if they are outside the unit's technical boundaries.
- ALJ Finding: The court upheld the Association’s classification. Because the pavers were placed on ingress/egress areas designed to serve single units, they were deemed limited common elements already allocated to those specific owners.
2. Board Authority and Landscape Conversion
The Board’s resolution was framed not as a land conveyance, but as a management decision linked to a community-wide transition to desert landscaping.
- Administrative Control: The Board VP, Dave Harris, testified that the resolution was intended to provide guidance and rules for future installations, ensuring consistency in color and size (between 7 x 15 feet and 8 x 16 feet).
- Maintenance and Ownership: The resolution explicitly stated that while owners would pay for installation and maintenance, the Association maintained control and reserved the right to remove non-compliant pavers. This supported the Association’s claim that no ownership had been "conveyed."
3. Alleged Discrimination Between Unit Types
A recurring theme in the Petitioner’s testimony was the perceived inequality between first-floor and second-floor owners.
- Vertical Disparity: Windis alleged the resolution favored first-floor owners.
- Structural Reality: The Association counter-argued that second-floor units do not have rear entrances or the same structural relationship to the ground-level common elements. However, second-floor units have exclusive use of common property such as specific stairways and elevators, which balances the allocation of limited common elements.
Statutory and Governing Document Framework
The following table outlines the primary legal and community documents cited during the hearing:
| Reference | Summary of Provision | Application to Case |
|---|---|---|
| A.R.S. § 33-1212(4) | Defines stoops, porches, balconies, and entryways as limited common elements. | Used to justify the exclusive use of entryway areas by unit owners. |
| A.R.S. § 33-1252 | Requires 80% vote to convey common elements. | Petitioner argued this was violated; ALJ ruled no conveyance occurred. |
| A.R.S. § 33-1218 | Governs the allocation of limited common elements. | Petitioner alleged improper allocation without declaration amendment. |
| CC&R 2.03 | Defines "Common Area" as everything beyond exterior walls. | Petitioner used this to argue that any area outside a unit is jointly owned. |
| CC&R 2.21 | Grans equal rights to 1st and 2nd-floor owners regarding lawns/plantings. | Petitioner argued the paver resolution created an unequal privilege. |
Important Quotes with Context
On the Nature of the Paver Installation
"Such installations will be considered to be 'Limited Common Areas' and as such will be under the control of the Association." — Fairway Court West Board Resolution (April 23, 2012)
Context: This excerpt from the Board minutes shows the Association's intent to maintain legal control over the property, countering the argument that the land was being given away to individuals.
On the Definition of Limited Common Elements
"Any… stoops, porches, balconies, entryways or patios… serving a single unit, but located outside the unit’s boundaries, are limited common elements allocated exclusively to that unit." — A.R.S. § 33-1212(4) as cited in Respondent’s Answer
Context: This statutory definition was the cornerstone of the Association's defense and the ultimate basis for the ALJ's decision to dismiss the petition.
On the Petitioner’s Burden of Proof
"Petitioner failed to meet her burden of proof to establish that the April 23, 2012 Resolution… is in violation of applicable statute or the cited CC&Rs… Credible testimony and evidence established that the pavers are installed on areas… designed to serve as ingress and egress areas." — Administrative Law Judge Decision, Conclusion of Law #4
Context: This summarizes the court's final stance—that the Petitioner did not provide enough evidence to outweigh the Association's statutory right to manage entryways as limited common elements.
Actionable Insights
- Statutory Primacy over CC&Rs: Even when CC&Rs (like CC&R 2.03) generally define all exterior areas as "Common Area," state statutes (A.R.S. § 33-1212) can provide specific classifications for "Limited Common Elements" that grant Boards authority to allow exclusive use of certain areas (like patios or entryways).
- The Difference Between "Use" and "Conveyance": Associations can permit homeowners to make improvements to common land (pavers) for their exclusive use without triggering the need for a membership vote (80% threshold), provided the Association retains ultimate control and maintenance rights over the land.
- Standard of Proof in HOA Disputes: In administrative hearings of this nature, the "preponderance of the evidence" standard applies. A Petitioner must prove it is "more likely true than not" that a violation occurred. In this case, the Petitioner's inability to prove that a literal "transfer of ownership" occurred led to the dismissal.
- Finality of ALJ Decisions: Once an ALJ decision is transmitted, the relevant state department (Fire, Building and Life Safety) has a limited window to act. If they do not reject or modify it by the deadline, the decision automatically becomes the final administrative action.
Case Study: Windis v. Fairway Court West Condominium Association
This study guide examines the administrative hearing between Katherine A. Windis (Petitioner) and the Fairway Court West Condominium Association (Respondent/Fairway). The case focuses on the distinction between common elements and limited common elements within a condominium association and the legal authority of a Board of Directors to regulate these areas under Arizona law.
I. Case Overview and Key Concepts
The Dispute
On April 23, 2012, the Fairway Board of Directors passed a resolution regarding the association's ongoing conversion to desert landscaping. This resolution allowed first-floor unit owners to install pavers outside their lower lanai areas, provided they adhered to specific size and maintenance requirements. The resolution designated these paved areas as "Limited Common Areas" under the Association's control.
The Petitioner, Katherine A. Windis, challenged this resolution, alleging that:
- It allowed first-floor units to encroach on common areas.
- It constituted an unauthorized conveyance of common property to private owners without the required 80% vote of all property owners.
- It violated several of the Association's Covenants, Conditions, and Restrictions (CC&Rs) regarding equal rights for all units and the prohibition of items on common walkways.
Legal Framework
The case centered on the interpretation of the Arizona Revised Statutes (A.R.S.) and the Association's CC&Rs:
- A.R.S. § 33-1212(4): Defines entryways, patios, and porches serving a single unit but located outside its boundaries as "limited common elements" allocated exclusively to that unit.
- A.R.S. § 33-1252: Requires a vote of at least 80% of unit owners to convey or mortgage portions of the common elements.
- CC&R 2.05: States that walkways are common areas for use by all and prohibits placing chairs, stools, or other items on common property.
The Decision
The Administrative Law Judge (ALJ) determined that the Petitioner failed to meet her burden of proof. The court found that the areas where pavers were installed served as ingress and egress for single units and were correctly classified as limited common elements under A.R.S. § 33-1212. Consequently, the Board's resolution did not constitute an illegal conveyance of property, and the petition was dismissed.
II. Short-Answer Practice Questions
1. What were the specific dimensions and requirements for pavers mandated by the Board’s April 23, 2012, resolution? Answer: The paved area had to be between 7 x 15 feet and 8 x 16 feet. The pavers were required to be at least 2 inches thick and a color consistent with existing installations.
2. According to A.R.S. § 33-1252, what is the minimum percentage of owner votes required to convey common elements to a third party? Answer: At least 80% of the votes in the association (unless the declaration specifies a larger percentage).
3. What was the Respondent’s primary argument for why a vote of the unit owners was unnecessary for the resolution? Answer: The Respondent argued that the areas in question were already "limited common elements" serving single units under A.R.S. § 33-1212(4), and therefore the resolution was in conformity with the law and did not require a filing or a vote.
4. How does A.R.S. § 33-1212(4) define fixtures like porches or entryways located outside a unit's boundaries? Answer: They are defined as "limited common elements allocated exclusively to that unit."
5. What is the "burden of proof" in this administrative hearing, and which party held it? Answer: The burden of proof is the "preponderance of the evidence," and it fell to the Petitioner (Katherine A. Windis) as the party asserting the claim.
6. Why did the Board vice-chairperson, Dave Harris, testify that the resolution was necessary? Answer: To provide a set of rules to govern installations and provide guidance for future installations as part of the conversion to desert landscaping, specifically because six units had already installed pavers.
7. Which CC&R did the Petitioner cite to argue that all owners have equal rights to the lawns and common areas? Answer: CC&R 2.21 (Use of Common Area).
III. Essay Prompts for Deeper Exploration
- Limited Common Elements vs. Common Elements: Analyze the distinction between a "Common Element" and a "Limited Common Element" based on the provided statutes. How does the classification of an area change the Board’s authority to regulate it, and why was this distinction the deciding factor in Windis v. Fairway Court West?
- Statutory Interpretation vs. CC&Rs: The Petitioner argued that CC&R 2.05 (prohibiting items on common property) should prevent the installation of pavers. However, the ALJ relied heavily on A.R.S. § 33-1212. Discuss the hierarchy of authority between state statutes and an association's private CC&Rs when a conflict arises regarding the definition of property boundaries.
- The Concept of Conveyance: The Petitioner alleged the Board "conveyed" common property to private owners. Using the testimony of Dave Harris and the requirements of A.R.S. § 33-1252, evaluate whether the Board's resolution to allow pavers constitutes a transfer of ownership or merely a regulation of use.
IV. Glossary of Important Terms
| Term | Definition |
|---|---|
| A.R.S. | Arizona Revised Statutes; the codified laws of the state of Arizona. |
| CC&Rs | Covenants, Conditions, and Restrictions; the governing documents that dictate the rules for a homeowners' or condominium association. |
| Common Elements | Portions of the condominium property that are not part of the units and are generally owned in undivided interests by all unit owners. |
| Conveyance | The legal transfer of property or interest in property from one entity to another. |
| Limited Common Elements | Portions of the common elements allocated for the exclusive use of one or more, but fewer than all, of the units (e.g., balconies, patios). |
| Lanai | A porch or veranda, often enclosed, serving as an outdoor living space. |
| Pavers | Blocks (often stone or concrete) used to create a flat, walkable surface such as a patio or entryway. |
| Preponderance of the Evidence | The standard of proof in civil and administrative cases, meaning that the proposition is "more likely true than not." |
| Resolution | A formal expression of opinion or intention agreed on by a board of directors or legislative body. |
| Undivided Interest | The ownership of a fraction of an entire property, where that interest cannot be physically separated from the whole. |
Pavers, Property, and Protests: Navigating "Limited Common Elements" in Condominium Disputes
1. Introduction: The Battle for the Lanai
The boundary between shared community space and private unit use is one of the most litigious front lines in condominium law. In the matter of Katherine A. Windis v. Fairway Court West Condominium Association, this tension centered on a seemingly simple addition: patio pavers.
The dispute arose after the Association’s Board passed a resolution allowing first-floor owners to install pavers on the ground outside their lanais. To the Petitioner, Katherine Windis, this was an unauthorized "land grab"—a move that allegedly stripped other owners of their undivided interest in common property. To the Association, it was a logical administrative step toward community-wide desert landscaping. This case, eventually decided by an Administrative Law Judge (ALJ) at the Arizona Office of Administrative Hearings, serves as a masterclass in how statutory definitions of "Limited Common Elements" dictate the extent of a Board’s regulatory power.
2. The Resolution: Setting the Rules for Desert Landscaping
On April 23, 2012, the Fairway Court West Board of Directors adopted a resolution to standardize the installation of pavers. The Association was in the midst of a transition from grass to desert landscaping and sought to provide a uniform framework for owners wishing to enhance their entryways.
The resolution established the following rigorous criteria:
- Dimensions: Installations were restricted to a minimum of 7 x 15 feet and a maximum of 8 x 16 feet.
- Material Standards: Pavers were required to be at least two inches thick with color consistency matching existing community installations.
- Economic Responsibility: The individual unit owner assumed all costs for both the initial installation and ongoing maintenance.
- Board Oversight and Removal: Prior written approval was mandatory. Notably, the Board reserved the right to remove non-compliant pavers or maintain them at the owner’s expense.
- Classification: The resolution explicitly categorized these areas as "Limited Common Areas" under the Association’s control.
3. The Petitioner's Challenge: When Common Property Feels Private
Katherine Windis, a former Board member, argued that the resolution was a de facto conveyance of common property to private individuals. Her challenge was built on a sophisticated—though ultimately unsuccessful—interpretation of Arizona’s Condominium Act and the community’s governing documents.
The Statutory Argument: Windis contended that the Board violated A.R.S. § 33-1217, A.R.S. § 33-1218, and A.R.S. § 33-1252. Her primary legal theory was that since all owners hold an "undivided interest" in common areas and pay taxes accordingly, any exclusive use granted to one owner constituted a "conveyance" of that interest. Under A.R.S. § 33-1252, such a transfer of title requires an 80% vote of the entire membership—a "nuclear option" for property rights that the Board bypassed.
The CC&R Challenge: Windis further alleged that the resolution ignored several specific provisions within the community’s Declaration:
- CC&R 2.03: Defines everything beyond exterior walls as "Common Area" owned jointly by all.
- CC&R 2.05: Specifically prohibits placing items like chairs, stools, or benches on common property.
- CC&R 2.21: Explicitly states that deeds for first and second-floor units grant "equal rights and privileges" regarding lawns and plantings, arguing the resolution favored lower-level units.
4. The Legal Turning Point: Defining "Limited Common Elements"
The Association’s defense rested on a nuance of property law: the "Limited Common Element" (LCE). An expert analysis of this case reveals that the Board did not actually create LCEs through their resolution; rather, they regulated areas that the law already defined as such.
Under A.R.S. § 33-1212(4), a space's legal classification is determined by its functional use. If a portion of the common area is designed to serve only a single unit—specifically for ingress and egress—it is statutorily an LCE.
| Feature | Common Elements | Limited Common Elements (LCE) | Fairway Court Case Application |
|---|---|---|---|
| Definition | Areas owned by all unit owners in an undivided interest. | Portions of common elements allocated for exclusive use by one or more units. | The "Common Area" remained common, but the specific entryways were LCEs. |
| Functional Test | Used by the community at large (e.g., driveways, elevators). | Designed to serve a single unit (e.g., stoops, patios, entryways). | The pavers were placed on entryways used only by the specific unit owner. |
| Statutory Basis | A.R.S. § 33-1212 | A.R.S. § 33-1212(4) | The ALJ found the areas were already LCEs because they served as entry/exit points. |
5. The Verdict: Why the Association Prevailed
The ALJ ruled in favor of the Association, dismissing the petition. The decision turned on the "burden of proof." In administrative hearings, the Petitioner must prove their case by a preponderance of the evidence—meaning the claim is "more likely true than not." Windis failed to meet this burden.
The court’s reasoning solved the "Undivided Interest Paradox." While it is true that every owner holds an undivided interest in the common areas, that ownership does not equate to a right of use in every square inch. The ALJ determined that because the areas in question were entryways and stoops serving single units, they were statutorily Limited Common Elements from the outset.
Consequently, the Board was not "conveying" or "selling" property title (which would require the 80% vote under A.R.S. § 33-1252); they were simply exercising their administrative power to regulate the aesthetic and maintenance standards of an existing LCE. The Department of Fire, Building and Life Safety certified this decision as final.
6. Key Takeaways for Condo Owners and Boards
As a legal analyst, I recommend the following lessons for any community association facing similar disputes:
- Functional Use Dictates Legal Status: A Board doesn't need to "label" a space an LCE if it already functions as one. If a stoop or entryway serves only one unit, it is likely an LCE under A.R.S. § 33-1212(4) regardless of what the CC&Rs call it.
- Regulation is Not Conveyance: There is a critical legal distinction between regulating how an owner uses an LCE and transferring title of common property. Boards can pass resolutions for the former, but the "nuclear option" of an 80% vote is reserved for the latter.
- The "Exclusive Use" Trade-off: Boards should clearly state that the privilege of exclusive use (like a paver patio) is contingent upon the owner assuming all maintenance and liability. This protects the Association's budget while granting owners personal utility.
- Consistency in CC&R Interpretation: While CC&R 2.21 grants equal rights in deeds, those rights are subject to the functional realities of the building’s design. Second-floor units, which lack rear entryways, are not "discriminated against" simply because they cannot install pavers where no entryway exists.
7. Conclusion: Seeking Harmony in Shared Spaces
The Windis case demonstrates that even when CC&Rs state that "everything beyond the walls is common area," state statutes provide the nuanced definitions necessary for effective management. By understanding that certain common areas are legally "limited" to specific units for ingress and egress, Boards can confidently regulate landscaping and improvements without fear of overstepping their authority.
For Associations, the path forward is clear: draft resolutions that reference statutory definitions and specify maintenance shifts. For owners, the takeaway is a reminder to look past the general "undivided interest" clause and examine the functional purpose of the land in question. Clear, legally-grounded resolutions are the best defense against the cost and conflict of administrative litigation.
Case Participants
Petitioner Side
- Katherine A. Windis (petitioner)
Fairway Court West Condominium Association (Member)
Appeared on her own behalf
Respondent Side
- R. Corey Hill (respondent attorney)
Hill & Hill, PLC
Attorney for Fairway Court West Condominium Association - Dave Harris (witness)
Fairway Court West Condominium Association Board
Vice-chairperson for the Board
Neutral Parties
- M. Douglas (ALJ)
Office of Administrative Hearings
Administrative Law Judge - Gene Palma (Agency Director)
Department of Fire, Building and Life Safety - Cliff J. Vanell (OAH Director)
Office of Administrative Hearings
Signed Certification of Decision - Joni Cage (agency staff)
Department of Fire, Building and Life Safety
Recipient of mailed copy