Case Summary
| Case ID | 16F-H1616001-BFS |
|---|---|
| Agency | DFBLS |
| Tribunal | OAH |
| Decision Date | 2016-04-01 |
| Administrative Law Judge | Diane Mihalsky |
| Outcome | no |
| Filing Fees Refunded | $2,000.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Robert A. White | Counsel | — |
|---|---|---|---|
| Respondent | Aspen Shadows Condominium Association | Counsel | Maria R. Kupillas |
Alleged Violations
A.R.S. § 33-1253
A.R.S. § 33-1247
CC&Rs 4.23
A.R.S. § 33-1260
Outcome Summary
The ALJ dismissed all claims. The HOA was found to be in compliance with insurance and records statutes. The maintenance issue involved a Limited Common Element for which the owner was responsible. The noise issue was barred by CC&R waivers and timing.
Why this result: Petitioner failed to meet the burden of proof on all counts. The HOA demonstrated compliance with statutes (electronic records, reasonably available insurance) and the CC&Rs (Limited Common Element responsibility, noise waivers).
Key Issues & Findings
Failure to Maintain All-Risk Insurance
Petitioner alleged the HOA failed to maintain required insurance coverage because the insurer denied a claim for a slow leak/construction defect.
Orders: Dismissed. Respondent maintained a policy; exclusions for slow leaks/defects are common and reasonably available.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- 4
- 14
- 16
- 54
- 55
Failure to Maintain Common Elements (Grinder Pump)
Petitioner alleged the HOA failed to repair a grinder pump damaged by storm runoff and improper installation.
Orders: Dismissed. Petitioner failed to prove the pump was defective. As a Limited Common Element, costs were assessable to Petitioner anyway.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- 5
- 28
- 31
- 56
- 57
Failure to Enforce Floor Covering Restrictions
Petitioner alleged the HOA failed to enforce prohibitions against hard floor coverings in the unit above him, causing noise.
Orders: Dismissed. The flooring was installed years prior to Petitioner's purchase. Petitioner assumed risk of noise under CC&Rs.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- 6
- 41
- 44
- 58
- 59
Failure to Provide Records (Resale Disclosure)
Petitioner alleged the HOA failed to provide paper copies of governing documents upon purchase, offering electronic versions instead.
Orders: Dismissed. The statute permits electronic delivery.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- 7
- 47
- 59
- 60
Decision Documents
16F-H1616001-BFS Decision – 488610.pdf
16F-H1616001-BFS Decision – 495160.pdf
Here is a concise summary of the hearing proceedings for Case No. 16F-H1616001-BFS.
**Case Overview**
**Petitioner:** Robert A. White (Owner of Unit 41)
**Respondent:** Aspen Shadows Condominium Association
**Hearing Date:** March 24, 2016
**Decision Date:** April 1, 2016 (Certified Final May 9, 2016)
The Petitioner filed a complaint alleging the Respondent violated Arizona Revised Statutes (A.R.S.) and the Association’s Covenants, Conditions, and Restrictions (CC&Rs) regarding insurance coverage, common element maintenance, noise enforcement, and document delivery,.
**Key Issues and Arguments**
**1. Insurance Coverage (Water Damage)**
* **Issue:** The Petitioner alleged the Association violated A.R.S. § 33-1253 and CC&R Article 8.1 by denying coverage for water damage caused by a leak from the unit above (Unit 42).
* **Arguments:** The Petitioner claimed the Association withdrew the claim, denying him protection. The Respondent argued it submitted the claim to Farmers Insurance, but the carrier denied it because the damage resulted from a "long-term" slow leak, a policy exclusion,.
* **Finding:** The Administrative Law Judge (ALJ) found the Association maintained the required insurance. The insurer's denial based on standard exclusions for maintenance issues (like slow leaks) did not constitute a violation by the Association,.
**2. Grinder Pump Liability**
* **Issue:** The Petitioner sought reimbursement for a grinder pump ($1,697.50) serving his unit, alleging it was damaged by storm runoff due to an improper diversion wall (a common element).
* **Arguments:** The Respondent contended the pump is a "Limited Common Element" serving only Unit 41. Evidence suggested the pump was previously functional and damage resulted from a dislodged lid allowing debris inside.
* **Finding:** The pump is a Limited Common Element. Under the CC&Rs, the Association may assess repair costs for such elements to the specific unit owner benefiting from them. The Petitioner failed to prove the pump was defective or that the Association was liable for the replacement.
**3. Hard Floor Noise Violation**
* **Issue:** The Petitioner alleged the unit above (Unit 42) had prohibited hard flooring, violating CC&R Article 4.23, and the Association failed to enforce the rule.
* **Arguments:** The Respondent noted the flooring was installed in 2008 (six years prior to the Petitioner's purchase) and argued the Petitioner assumed the risk of noise,.
* **Finding:** The CC&Rs contain a specific provision (Section 13.20) where owners assume the risk of noise and vibrations from adjacent units,. The Petitioner failed to establish the Association was liable for the potential violation or the resulting noise.
**4. Document Delivery**
* **Issue:** The Petitioner claimed the Association violated A.R.S. § 33-1260 by failing to provide paper copies of the CC&Rs and Bylaws before escrow closed.
* **Arguments:** The Respondent argued compliance by providing documents in electronic format, which the Petitioner refused to accept.
* **Finding:** A.R.S. § 33-1260 permits delivery in "either paper or electronic format". The Respondent’s use of electronic delivery was legal, and the Petitioner’s refusal to accept that format did not make the Association's actions a violation.
**Final Decision**
The ALJ determined the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated any statutes or CC&Rs,. The petition was **dismissed**, and no action was required of the Respondent. The decision became the final administrative decision of the Department of Fire, Building and Life Safety on May 9, 2016.
Case Participants
Petitioner Side
- Robert A. White (Petitioner)
Owner of Unit 41
Respondent Side
- Maria R. Kupillas (attorney)
Choate & Seletos
Represented Respondent - Melanie Lashlee (community manager)
Testified for Respondent - Ty Hart (engineer)
Flagstaff Ranch
Facilities Engineer - Faith Johnson (escrow officer)
Respondent's escrow officer, initials 'f.j.'
Neutral Parties
- Diane Mihalsky (ALJ)
Office of Administrative Hearings
Administrative Law Judge - Kenji Cassady (witness)
Royal Plumbing, Inc.
Plumber who repaired leak in Unit 42 - Nicolas Boley (claims representative)
Farmers Insurance
Senior Field Claims Representative - Tyler (contractor)
DC Restoration
Mitigation contractor - Jacqueline Martinez (contractor)
Damage Control AZ
Sent email confirming leak duration - Dave Taylor (unit owner)
Owner of Unit 42 - Debra Blake (Interim Director)
Department of Fire Building and Life Safety
Agency head - Greg Hanchett (Interim Director)
Office of Administrative Hearings
Signed Certification of Decision - Joni Cage (staff)
Department of Fire Building and Life Safety
Recipient of decision copy - Rosella J. Rodriguez (clerk)
Office of Administrative Hearings
Mailed/transmitted decision
