Case Summary
| Case ID | 23F-H010-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2022-12-16 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | The Administrative Law Judge denied the petition, concluding that the responsibility for maintaining the leaking pipe and the resulting damage fell under the owner of the unit served by the pipe (Unit 263) as defined by Article III, Section 3.07 of the CC&Rs, not the HOA. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Richard Busack | Counsel | — |
|---|---|---|---|
| Respondent | The Cliffs Condominium Association | Counsel | Melissa Doolan |
Alleged Violations
Article III, Section 3.07 of the Declaration of Establishment of Condominium and of Declaration of Covenants, Conditions, and Restrictions for The Cliffs Condominium
Outcome Summary
The Administrative Law Judge denied the petition, concluding that the responsibility for maintaining the leaking pipe and the resulting damage fell under the owner of the unit served by the pipe (Unit 263) as defined by Article III, Section 3.07 of the CC&Rs, not the HOA.
Why this result: The ALJ’s interpretation of Article III, Section 3.07 found that the owner of Unit 263 was responsible for the maintenance and repair of the specific section of pipe that leaked, and therefore, the HOA was not liable for the resulting damage or requested reimbursement.
Key Issues & Findings
HOA responsibility for reimbursement for kitchen cabinet and countertop replacement and mold remediation/restoration after a leaking pipe.
Petitioner sought reimbursement of $8541.00 from the HOA for damages caused by Cat 3 water coming from a leaking toilet pipe located between the ceiling of unit 163 and the subfloor of unit 263. Petitioner alleged the pipe was the HOA's responsibility as it was in the inner walls and not 'open and unobstructed' as defined by Petitioner. The ALJ determined the pipe maintenance was the responsibility of the owner of Unit 263, not the HOA, based on the plain reading of Article III, Section 3.07.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 32-2199 et seq.
- A.A.C. R2-19-119
- Article III, Section 3.07 (CC&Rs)
Analytics Highlights
- A.R.S. § 32-2199 et seq.
- Article III, Section 3.07 (CC&Rs)
Video Overview
Audio Overview
Decision Documents
23F-H010-REL Decision – 1020439.pdf
This summary details the hearing proceedings, key arguments, and final decision in the matter of *Richard Busack v. The Cliffs Condominium Association* (docket number 23FH010REL), heard on December 7, 2022, before Administrative Law Judge Tammy L. Eigenheer.
Key Facts and Issues
Petitioner Richard Busack filed a petition against The Cliffs Condominium Association (HOA), alleging the HOA violated Article III, Section 3.07 of the Declaration of Covenants, Conditions, and Restrictions (CC&Rs). The dispute stemmed from a severe water leak that occurred on or about June 1, 2022, damaging Petitioner's unit (Unit 163).
The leak originated from a broken pipe within the inner walls, specifically the toilet line coming from Unit 263. The water was identified as CAT 3 water (toilet water/scat water), leading to extensive water damage and mold in Petitioner’s kitchen, requiring cabinet replacement and mold remediation.
The HOA subsequently repaired the broken pipe and replaced the drywall. However, the HOA denied Petitioner’s claim for reimbursement for mold remediation and kitchen restoration, which totaled $8,541.00.
Key Arguments and Legal Points
The central legal issue was the interpretation and application of Article III, Section 3.07 of the CC&Rs, which governs "Maintenance By Owners".
- Petitioner’s Position: Petitioner argued that because the pipe broke in the "inner walls" and was not "unobstructed," it was outside his responsibility and, therefore, the HOA’s. He argued that he was only responsible if the leak originated inside his unit. Petitioner also noted that the HOA delayed response for 40 days and canceled agreed-upon cabinet repairs.
- Respondent’s Position (HOA): The HOA argued that based on Section 3.07, the maintenance responsibility lay with the unit owner (specifically Unit 263's owner) because the pipe was located between the point it entered Unit 263 and where it joined lines serving other units. The HOA asserted that Petitioner provided no evidence (official reports) proving mold damage or that the HOA acted negligently. They repaired the drywall only because bearing walls are considered Common Elements under a separate section (3.05).
Outcome and Final Decision
The Administrative Law Judge (ALJ) issued an Administrative Law Judge Decision on December 16, 2022.
- Interpretation of CC&Rs: The ALJ found Petitioner’s reading of Article III, Section 3.07 to be erroneous. The section clearly states that the owner is responsible for the maintenance, repair, and replacement of all utility lines "serving an Owner’s respective Condominium Unit between the points at which the same enter the respective Condominium Unit and the points where the same joins the utility lines serving other Condominium Units".
- Pipe Responsibility: The ALJ concluded that the maintenance of the leaking pipe, which Petitioner acknowledged was between the point it entered Unit 263 and where it joined the utility lines serving other units, was the responsibility of the owner of Unit 263.
- "Open and Unobstructed Condition": The ALJ clarified that the phrase "open and unobstructed condition" refers to the pipe itself not being *clogged*, not whether the pipe is accessible (i.e., not inside a wall).
- Order: The Petitioner failed to prove by a preponderance of the evidence that the HOA violated Article III, Section 3.07. Therefore, the Petitioner’s petition was denied.
Questions
Question
Is the HOA automatically responsible for a pipe leak just because the pipe is located inside the walls between units?
Short Answer
No. Governing documents may assign responsibility to the specific unit owner served by that pipe, even if the pipe runs outside the unit's boundaries.
Detailed Answer
Even if a pipe is physically located outside a specific unit (e.g., between the unit and the main line), the CC&Rs may dictate that the owner is responsible for the utility lines serving their unit up to the point where they join the common utility lines. Location inside a wall does not automatically make it an HOA common element.
Alj Quote
Rather, unit owners are responsible for the maintenance of all sewer and drainage pipes 'between the points at which the [pipes] enter [the unit] and the points where the [pipe] joins the utility lines serving other Condominium Units.'
Legal Basis
CC&Rs Interpretation
Topic Tags
- maintenance responsibility
- plumbing
- common elements
Question
What does 'open and unobstructed condition' mean regarding pipe maintenance in CC&Rs?
Short Answer
It generally means the pipe must be kept free of clogs, not that the pipe must be physically visible or outside of a wall.
Detailed Answer
Homeowners often misinterpret this phrase to mean that if a pipe is enclosed in a wall, it is not 'open' and therefore not their responsibility. However, the ALJ ruled that this language refers to the flow within the pipe—specifically, that the owner must ensure the pipe does not remain clogged.
Alj Quote
Rather than referencing that access to the pipe had to be open and unobstructed, i.e., not inside a wall, a plain reading of 'open and unobstructed condition' means that the pipe itself must not be allowed to remain clogged.
Legal Basis
Contract Interpretation
Topic Tags
- definitions
- maintenance responsibility
Question
If the HOA repairs the drywall after a leak, does that mean they admit responsibility for the plumbing repair and other damages?
Short Answer
No. The HOA may repair structural elements they are responsible for (like bearing walls) without accepting liability for the leak source or personal property damage.
Detailed Answer
The HOA can perform repairs on components defined as Common Elements (such as bearing walls) without conceding that they are liable for the pipe that caused the damage or for other resulting damages like cabinetry or mold.
Alj Quote
Respondent’s counsel indicated that the HOA repaired the drywall because Article III, Section 3.05 defines bearing walls as Common Elements.
Legal Basis
CC&Rs / Negligence
Topic Tags
- repairs
- liability
- common elements
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The homeowner (Petitioner) has the burden to prove the HOA violated the governing documents.
Detailed Answer
The homeowner must provide evidence that outweighs the evidence offered by the HOA. Simply alleging a violation is not enough; the petitioner must prove it by a 'preponderance of the evidence.'
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs. A.A.C. R2-19-119.
Legal Basis
A.A.C. R2-19-119
Topic Tags
- procedural requirements
- burden of proof
Question
What evidence is required to win a dispute regarding water damage repairs?
Short Answer
The homeowner must prove the HOA violated a specific provision of the CC&Rs or acted negligently.
Detailed Answer
Even if a homeowner suffers significant damage, they cannot recover costs from the HOA unless they can establish that the HOA had a legal duty to prevent or repair the specific cause of the damage under the CC&Rs.
Alj Quote
Petitioner failed to establish that Respondent violated Article III, Section 3.07 of the CC&Rs. … IT IS ORDERED that Petitioner’s petition is denied.
Legal Basis
CC&Rs Violation
Topic Tags
- evidence
- damages
Question
Can I hold the HOA responsible for a leak originating from a neighbor's unit?
Short Answer
Generally, no, unless the HOA is responsible for that specific pipe section under the CC&Rs.
Detailed Answer
If the leak comes from a pipe serving a specific unit (even if located outside that unit), maintenance responsibility often falls on that unit owner, not the HOA. The ALJ found that maintenance of such a pipe was the responsibility of the unit owner it served.
Alj Quote
Therefore, maintenance of the leaking pipe… was the responsibility of the owner of Unit 263.
Legal Basis
CC&Rs / Liability
Topic Tags
- neighbor disputes
- liability
- plumbing
Case
- Docket No
- 23F-H010-REL
- Case Title
- Richard Busack v. The Cliffs Condominium Association
- Decision Date
- 2022-12-16
- Alj Name
- Tammy L. Eigenheer
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Is the HOA automatically responsible for a pipe leak just because the pipe is located inside the walls between units?
Short Answer
No. Governing documents may assign responsibility to the specific unit owner served by that pipe, even if the pipe runs outside the unit's boundaries.
Detailed Answer
Even if a pipe is physically located outside a specific unit (e.g., between the unit and the main line), the CC&Rs may dictate that the owner is responsible for the utility lines serving their unit up to the point where they join the common utility lines. Location inside a wall does not automatically make it an HOA common element.
Alj Quote
Rather, unit owners are responsible for the maintenance of all sewer and drainage pipes 'between the points at which the [pipes] enter [the unit] and the points where the [pipe] joins the utility lines serving other Condominium Units.'
Legal Basis
CC&Rs Interpretation
Topic Tags
- maintenance responsibility
- plumbing
- common elements
Question
What does 'open and unobstructed condition' mean regarding pipe maintenance in CC&Rs?
Short Answer
It generally means the pipe must be kept free of clogs, not that the pipe must be physically visible or outside of a wall.
Detailed Answer
Homeowners often misinterpret this phrase to mean that if a pipe is enclosed in a wall, it is not 'open' and therefore not their responsibility. However, the ALJ ruled that this language refers to the flow within the pipe—specifically, that the owner must ensure the pipe does not remain clogged.
Alj Quote
Rather than referencing that access to the pipe had to be open and unobstructed, i.e., not inside a wall, a plain reading of 'open and unobstructed condition' means that the pipe itself must not be allowed to remain clogged.
Legal Basis
Contract Interpretation
Topic Tags
- definitions
- maintenance responsibility
Question
If the HOA repairs the drywall after a leak, does that mean they admit responsibility for the plumbing repair and other damages?
Short Answer
No. The HOA may repair structural elements they are responsible for (like bearing walls) without accepting liability for the leak source or personal property damage.
Detailed Answer
The HOA can perform repairs on components defined as Common Elements (such as bearing walls) without conceding that they are liable for the pipe that caused the damage or for other resulting damages like cabinetry or mold.
Alj Quote
Respondent’s counsel indicated that the HOA repaired the drywall because Article III, Section 3.05 defines bearing walls as Common Elements.
Legal Basis
CC&Rs / Negligence
Topic Tags
- repairs
- liability
- common elements
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The homeowner (Petitioner) has the burden to prove the HOA violated the governing documents.
Detailed Answer
The homeowner must provide evidence that outweighs the evidence offered by the HOA. Simply alleging a violation is not enough; the petitioner must prove it by a 'preponderance of the evidence.'
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs. A.A.C. R2-19-119.
Legal Basis
A.A.C. R2-19-119
Topic Tags
- procedural requirements
- burden of proof
Question
What evidence is required to win a dispute regarding water damage repairs?
Short Answer
The homeowner must prove the HOA violated a specific provision of the CC&Rs or acted negligently.
Detailed Answer
Even if a homeowner suffers significant damage, they cannot recover costs from the HOA unless they can establish that the HOA had a legal duty to prevent or repair the specific cause of the damage under the CC&Rs.
Alj Quote
Petitioner failed to establish that Respondent violated Article III, Section 3.07 of the CC&Rs. … IT IS ORDERED that Petitioner’s petition is denied.
Legal Basis
CC&Rs Violation
Topic Tags
- evidence
- damages
Question
Can I hold the HOA responsible for a leak originating from a neighbor's unit?
Short Answer
Generally, no, unless the HOA is responsible for that specific pipe section under the CC&Rs.
Detailed Answer
If the leak comes from a pipe serving a specific unit (even if located outside that unit), maintenance responsibility often falls on that unit owner, not the HOA. The ALJ found that maintenance of such a pipe was the responsibility of the unit owner it served.
Alj Quote
Therefore, maintenance of the leaking pipe… was the responsibility of the owner of Unit 263.
Legal Basis
CC&Rs / Liability
Topic Tags
- neighbor disputes
- liability
- plumbing
Case
- Docket No
- 23F-H010-REL
- Case Title
- Richard Busack v. The Cliffs Condominium Association
- Decision Date
- 2022-12-16
- Alj Name
- Tammy L. Eigenheer
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Richard Busack (petitioner)
- Theresa Jensen (witness)
Witness for Petitioner
Respondent Side
- Melissa Doolan (respondent attorney)
The Travis Law Firm, PLC
Appeared for Respondent The Cliffs Condominium Association - Mr. Petri (HOA/management representative)
Mentioned by Petitioner regarding dispute over damage repair - Mr. Honen (HOA/management representative)
Involved in cabinet repair communication and cancellation (also referred to as Mr. Horn) - Miss Cohen (HOA/management representative)
Handled initial communications and forwarded information to the Board (also referred to as Miss Cohan)
Neutral Parties
- Tammy L. Eigenheer (ALJ)
OAH
Also referred to as Tammy Igner - Louis Dettorre (ADRE Commissioner)
Arizona Department of Real Estate - Miranda Alvarez (legal secretary)
Transmitted decision - A. Hansen (ADRE staff)
Arizona Department of Real Estate - V. Nunez (ADRE staff)
Arizona Department of Real Estate - D. Jones (ADRE staff)
Arizona Department of Real Estate - L. Abril (ADRE staff)
Arizona Department of Real Estate
Other Participants
- Jill Bird (observer)
- John (observer)
- Michael (observer)
- Anthony Zeller (contractor associate)
Overseeing the repair plumber