Tag Archives: A.R.S. § 33-1212

John D Klemmer v. Caribbean Gardens Association

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Case Summary

Case ID 21F-H2120009-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-12-17
Administrative Law Judge Kay A. Abramsohn
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John D Klemmer Counsel —
Respondent Caribbean Gardens Association Counsel Nicole D. Payne, Esq., Lydia A. Pierce Linsmeier, Esq.

Alleged Violations

CC&Rs Article 1, Sections 1.5 and 1.8; Article 3, Section 3.4; Article 4, Section 4.1; Article 8, Section 8.1; and, Article 12, Section 12.4

Outcome Summary

The Petition was dismissed because the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent Association violated the cited CC&R provisions by refusing to manage the disputed area, which the ALJ determined was a limited common element.

Why this result: The Petitioner lost because the area in dispute was determined to be a 'limited common element' (a balcony serving Unit 207) under Arizona statute (A.R.S. § 33-1212(A)), not a 'common area' the Association was required to manage under the referenced CC&Rs.

Key Issues & Findings

Refusal to manage, operate, maintain and administer common area

Petitioner alleged the HOA violated multiple CC&Rs by refusing to maintain an area between Unit 206 and Unit 207, which he claimed was a common area. The HOA argued the area was a limited common element. The ALJ concluded, relying on A.R.S. § 33-1212(A), that the disputed area was a limited common element (a balcony) allocated exclusively to Unit 207, thus Petitioner failed to establish a CC&R violation.

Orders: Petitioner's Petition is dismissed. Petitioner bears his $500.00 filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1212(A)
  • CC&Rs Article 1, Section 1.5
  • CC&Rs Article 1, Section 1.6
  • CC&Rs Article 3, Section 3.4
  • CC&Rs Article 4, Section 4.1
  • CC&Rs Article 8, Section 8.1
  • CC&Rs Article 12, Section 12.4

Analytics Highlights

Topics: condominium, common elements, limited common elements, balcony dispute, CC&R violation, A.R.S. 33-1212
Additional Citations:

  • A.R.S. § 33-1212
  • A.R.S. § 33-1218
  • A.R.S. Title 33, Chapter 16
  • A.A.C. R2-19-119
  • CC&Rs Article 1, Sections 1.5, 1.8
  • CC&Rs Article 3, Section 3.4
  • CC&Rs Article 4, Section 4.1
  • CC&Rs Article 8, Section 8.1
  • CC&Rs Article 12, Section 12.4

Video Overview

Audio Overview

Decision Documents

21F-H2120009-REL Decision – 876384.pdf

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21F-H2120009-REL Decision – 843358.pdf

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21F-H2120009-REL Decision – 843358.pdf

Uploaded 2026-01-23T17:35:00 (129.8 KB)

Briefing Document: Klemmer v. Caribbean Gardens Association

Executive Summary

This document synthesizes the findings and decision in the administrative case of John D. Klemmer v. Caribbean Gardens Association (No. 21F-H2120009-REL). The core of the dispute was the legal classification of an outdoor space located between two condominium units. The Petitioner, a unit owner, argued the space was a “common area” that the Association was legally obligated to manage under its governing documents (CC&Rs). The Respondent Association countered that the space was a “balcony” or “limited common element” for the exclusive use of the adjacent unit owner.

The Administrative Law Judge (ALJ) ultimately dismissed the petition. While the Association’s 1973 CC&Rs and the official Plat document were ambiguous regarding the space, the decision hinged on the application of a later state statute, Arizona Revised Statutes (A.R.S.) § 33-1212. This statute defines balconies designed to serve a single unit as “limited common elements” allocated exclusively to that unit. Because the disputed area was only accessible from a single unit (Unit 207), the ALJ concluded it met this statutory definition. Consequently, the Petitioner failed to prove by a preponderance of the evidence that the Association had violated its CC&Rs by not treating the space as a general common area.

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Case Overview

Case Name

John D Klemmer v. Caribbean Gardens Association

Case Number

21F-H2120009-REL

Jurisdiction

Arizona Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Kay A. Abramsohn

Hearing Date

November 6, 2020

Decision Date

December 17, 2020

Petitioner

John D. Klemmer (Unit 101 Owner), representing himself

Respondent

Caribbean Gardens Association, represented by Nicole D. Payne, Esq.

Fundamental Dispute: The case centered on whether the Caribbean Gardens Association violated its Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by refusing to manage, operate, and maintain an outdoor area located on the second level between Units 206 and 207, which the Petitioner claimed was a common area belonging to all 40 unit owners.

Petitioner’s Position (John D. Klemmer)

The Petitioner’s case rested on the argument that the disputed area was a “common area” or “common element” as defined by the Association’s governing documents.

• Core Allegation: On April 15, 2020, the Caribbean Board violated multiple sections of its CC&Rs by refusing to administer a common area.

• Basis of Claim: The Petitioner argued that all space not explicitly delineated on the official Plat document as an “Apartment,” “patio,” or “balcony” must be considered a common area. The area in question is blank on the Plat.

• Ownership Argument: Each of the 40 unit owners possesses an “undivided ownership interest in the common areas and [common] elements.” He contended that if the Board did not acknowledge ownership, this common area would be lost to its rightful owners.

• Evidence of Misuse: The Petitioner presented photographic evidence showing that the owners of Unit 207 were exclusively occupying the space as if it were another room, adding furniture, walls, and making improvements to the exterior walls of Unit 206.

• Cited CC&R Violations: The petition alleged violations of the following articles:

◦ Article 1, Sections 1.5 and 1.8: Definitions of “Apartment” and “Plat.”

◦ Article 3, Section 3.4: Requirement for the Association to manage Common Elements.

◦ Article 4, Section 4.1: Vests title of Common Elements in the owners.

◦ Article 8, Section 8.1: Pertains to encroachments.

◦ Article 12, Section 12.4: Binds all owners to the Declaration.

Respondent’s Position (Caribbean Gardens Association)

The Association denied the allegations, arguing that the space was not a common area under its purview.

• Core Defense: The disputed area is not a common area but is instead a “balcony” attached to Unit 207, or alternatively, a “limited common element” for the exclusive use of the Unit 207 owners.

• Testimony: Board Member Alex Gomez testified that the Board’s position is that the area is a balcony. He further stated that the Association has never maintained any balconies within the community, including the one in question.

• Procedural Motions: The Association initially filed a Motion to Dismiss and a Motion for Summary Judgment, arguing that the tribunal lacked jurisdiction, the Petitioner was seeking relief that couldn’t be granted (declaratory and injunctive), and that other procedural and constitutional issues existed. These motions were denied by the tribunal.

Findings of Fact and Evidence

The ALJ established the following key facts based on the hearing record:

• Description of Disputed Area: The space is a concrete slab on the second level, located between the exterior walls of Unit 206 and Unit 207. It includes outside iron railings that fence it off.

• Exclusive Access: The area is not a staircase landing and can only be accessed through a door from a room within Unit 207. This access is an original feature of the building’s construction.

• Status on the Plat: The official Plat document, which defines the boundaries of apartments and their associated balconies and patios, is blank in the location of the disputed area. It is not specifically delineated in any way.

• Current Use: Photographic evidence confirmed the space contains furniture and other decorative items, indicating exclusive use by the occupants of Unit 207.

Legal Analysis and Conclusion of the Administrative Law Judge

The ALJ’s decision was based on an interpretation of both the community’s CC&Rs and overriding state law.

• Burden of Proof: The Petitioner, Mr. Klemmer, bore the burden of proving by a preponderance of the evidence that the Association had violated the specified CC&R provisions.

• Ambiguity in Governing Documents: The judge acknowledged a conflict in the 1973 CC&Rs.

◦ Article 1.5 defines an “Apartment” by its depiction on the Plat, which does not include the disputed area.

◦ Article 1.6 defines “Common Elements” as “all other portions of the Property except the Apartments.” This definition would logically include the undelineated disputed area.

• Application of State Statute: The decisive factor was the application of A.R.S. § 33-1212, a statute enacted in 1985, after the CC&Rs were recorded. The judge focused on subsection 4:

• Final Conclusion: The ALJ concluded that the disputed area fits the statutory description of a balcony “designed to serve a single unit,” as it is only accessible from Unit 207. Therefore, under Arizona law, it is classified as a “limited common element” allocated exclusively to that unit. Because it is not a general common area, the Association had no obligation to manage it as such. The Petitioner thus failed to establish a violation of the CC&Rs.

Final Order

Based on the analysis, the Administrative Law Judge issued the following orders on December 17, 2020:

1. IT IS ORDERED that Petitioner’s Petition is dismissed.

2. IT IS FURTHER ORDERED that Petitioner bears his $500.00 filing fee.

Study Guide: Klemmer v. Caribbean Gardens Association

This guide provides a detailed review of the Administrative Law Judge Decision in the case of John D. Klemmer v. Caribbean Gardens Association, No. 21F-H2120009-REL. It includes a quiz with an answer key to test comprehension, a set of essay questions for deeper analysis, and a comprehensive glossary of key legal and case-specific terms.

Quiz: Short-Answer Questions

Answer each of the following questions in 2-3 sentences based on the information provided in the case document.

1. Who are the primary parties involved in this administrative hearing, and what are their respective roles?

2. What was the central allegation made by the Petitioner, John D. Klemmer, in his petition filed on August 21, 2020?

3. Describe the specific physical location and characteristics of the disputed area at the heart of this case.

4. On what grounds did the Petitioner argue that the disputed area should be considered a “common area”?

5. What was the initial position of the Caribbean Gardens Association Board regarding the status of the disputed area, as testified by Board Member Alex Gomez?

6. Before the hearing, what arguments did the Respondent make in its Motion for Summary Judgment?

7. How do the CC&Rs define an “Apartment” versus “Common Elements”?

8. Which specific Arizona Revised Statute (A.R.S.) did the Administrative Law Judge ultimately rely upon to classify the disputed area?

9. What was the final conclusion of the Administrative Law Judge regarding the nature of the disputed area?

10. What was the final recommended order issued by the Administrative Law Judge in this case?

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Answer Key

1. The primary parties are John D. Klemmer, the Petitioner who brought the complaint, and the Caribbean Gardens Association, the Respondent and condominium community association. Mr. Klemmer represented himself, while the Association was represented by counsel, Nicole D. Payne, Esq.

2. The Petitioner alleged that on April 15, 2020, the Caribbean Board violated its CC&Rs by refusing to manage, operate, maintain, and administer a specific “common area.” He claimed this refusal would lead to the loss of the area to its rightful owners, the 40 unit owners of Caribbean Gardens.

3. The disputed area is located on the second level of the building, between the exterior walls of Unit 206 and Unit 207. It consists of a concrete slab with attached iron railings and can only be accessed through a door from Unit 207.

4. The Petitioner argued the area was a “common area” because it was not specifically delineated on the Plat document as part of an apartment, patio, or balcony. He contended that any space not explicitly designated as part of a unit on the Plat must therefore be a common element belonging to all 40 unit owners.

5. Board Member Alex Gomez testified that the Board’s position was that the disputed area is not a common area but is a “balcony” attached to Unit 207. He stated that the Association has never maintained any balconies, including the one in question.

6. In its Motion for Summary Judgment, the Respondent argued that the Petitioner was seeking relief that the Tribunal could not grant, that he should have filed a derivative action, and that he had not paid sufficient filing fees for multiple issues. The Respondent also challenged the constitutionality of the Enabling Statutes and the jurisdiction of the Department and the Tribunal.

7. Article 1, Section 1.5 of the CC&Rs defines an “Apartment” as the space enclosed by the planes shown on the Plat, including any patio or balcony areas identified on said Plat. In contrast, Article 1, Section 1.6 defines “Common Elements” as all other portions of the Property except the Apartments, including specific items like pools and landscaping.

8. The Judge relied on A.R.S. § 33-1212, which states that balconies and other fixtures designed to serve a single unit but located outside its boundaries are “limited common elements allocated exclusively to that unit.”

9. The Administrative Law Judge concluded that the disputed area must be a balcony “designed to serve a single unit, but located outside the unit’s boundaries.” Therefore, it is considered a limited common element, and the Petitioner did not establish that the Caribbean Gardens Association had violated any CC&R provisions.

10. The recommended order was that the Petitioner’s Petition be dismissed. It was further ordered that the Petitioner bear his own $500.00 filing fee.

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Essay Questions

The following questions are designed for longer, more analytical responses. No answers are provided.

1. Analyze the conflicting interpretations of the disputed area presented by the Petitioner and the Respondent. How did their respective readings of the CC&Rs and the Plat document lead to their opposing conclusions?

2. Discuss the critical role of the Plat document in this dispute. Explain how the blank space on the Plat between Units 206 and 207 created an ambiguity that was central to the arguments of both parties.

3. Trace the legal reasoning employed by Administrative Law Judge Kay A. Abramsohn. Detail her process of weighing the definitions in the 1973 CC&Rs against the provisions of the 1985 Arizona Revised Statutes to reach a final decision.

4. Evaluate the arguments raised by the Caribbean Gardens Association in its Motion for Summary Judgment. Although the motion was not granted, what significant legal and jurisdictional challenges did it present against the Petitioner’s case and the hearing body’s authority?

5. This case highlights a tension between a condominium’s original governing documents (the 1973 Declaration) and subsequent state law (the 1985 Condominium statutes). Discuss how this dynamic influenced the outcome and what it reveals about the hierarchy of legal authority in condominium governance.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over an administrative hearing and issues a written decision. In this case, the ALJ was Kay A. Abramsohn.

Apartment

As defined by Article 1, Section 1.5 of the CC&Rs, it is a part of the Property intended for independent use as a dwelling unit, consisting of the space enclosed by the planes shown on the Plat, including any patio and balcony areas identified on that Plat.

An abbreviation for the Declaration of Covenants, Conditions and Restrictions, the governing legal documents for the Caribbean Gardens community. These were originally recorded in 1973.

Common Elements

As defined by Article 1, Section 1.6 of the CC&Rs, this term includes “general common elements” as defined in the former A.R.S. § 33-551, along with specific areas like parking, yards, the swimming pool, and “all other portions of the Property except the Apartments.”

Horizontal Property Regime

The legal framework governing the property, established under A.R.S. § 33-551 through § 33-561 at the time of the 1973 Declaration. These statutes were later repealed and replaced by the current Condominium laws.

Limited Common Elements

A legal classification defined in A.R.S. § 33-1212. It refers to fixtures like porches, balconies, patios, and entryways that are designed to serve a single unit but are located outside that unit’s boundaries, and are therefore allocated exclusively to that unit.

Petition

The formal, single-issue legal document filed by John D. Klemmer with the Department to initiate the dispute, alleging that the Caribbean Board violated its CC&Rs.

Petitioner

The party initiating a legal action by filing a petition. In this case, John D. Klemmer, a resident of Unit 101.

The official two-page survey map of the Property and all Apartments, attached to the Declaration as Exhibit “B.” It delineates the boundaries of individual units and other areas within the community.

Preponderance of the Evidence

The standard of proof the Petitioner was required to meet. It means the evidence presented must be more convincing than the opposing evidence, showing the fact in question is more probable than not.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Caribbean Gardens Association.

Tribunal

A term used in the decision to refer to the Arizona Office of Administrative Hearings (OAH), the state agency authorized to hear and decide the contested matter.

Questions

Question

If a balcony or patio serves only my unit but isn't explicitly drawn on the community Plat map, is it considered general common area?

Short Answer

Likely not. Under Arizona law, fixtures designed to serve a single unit located outside its boundaries are considered 'limited common elements' allocated exclusively to that unit, even if the Plat is ambiguous.

Detailed Answer

In this decision, the ALJ determined that an area not drawn on the Plat was a limited common element because it was physically accessible only from one unit. The judge cited A.R.S. § 33-1212(4), which defines features like balconies and patios designed to serve a single unit as limited common elements.

Alj Quote

Accordingly, the Administrative Law Judge concludes that the disputed area must be a balcony 'designed to serve a single unit, but located outside the unit’s boundaries.'

Legal Basis

A.R.S. § 33-1212(4)

Topic Tags

  • Common Elements
  • Plat Maps
  • Property Boundaries

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

The homeowner (Petitioner) must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner must demonstrate that their claims are more probable than not. It is not the HOA's job to disprove the allegations; the homeowner must provide evidence of greater weight.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that, as alleged, Caribbean has violated CC&Rs…

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Procedure
  • Burden of Proof
  • Evidence

Question

Does the Department of Real Estate have jurisdiction to hear disputes about CC&R violations and maintenance issues?

Short Answer

Yes, the Department has jurisdiction to receive petitions and hear disputes regarding property owners and condominium associations.

Detailed Answer

The decision affirms that the Tribunal has the authority to hear contested matters between owners and associations regarding alleged violations of the CC&Rs and statutes.

Alj Quote

The Department has jurisdiction to receive petitions, hear disputes between a property owner and a condominium community association, and take other actions pursuant to Arizona Revised Statutes (A.R.S.), Title 33, Chapter 16.

Legal Basis

A.R.S. Title 33, Chapter 16

Topic Tags

  • Jurisdiction
  • ADRE Authority
  • Dispute Resolution

Question

Who is responsible for paying the filing fee if the homeowner loses the hearing?

Short Answer

The homeowner (Petitioner) typically bears the cost of the filing fee if the petition is dismissed.

Detailed Answer

In this case, after dismissing the homeowner's petition, the judge ordered the homeowner to bear the cost of the $500 filing fee.

Alj Quote

IT IS FURTHER ORDERED that Petitioner bears his $500.00 filing fee.

Legal Basis

Administrative Order

Topic Tags

  • Fees
  • Penalties
  • Hearing Costs

Question

What specifically counts as a 'limited common element' under Arizona law?

Short Answer

Fixtures like shutters, awnings, balconies, and patios that are outside a unit's boundaries but designed to serve that single unit.

Detailed Answer

State statute specifically lists items such as doorsteps, stoops, porches, balconies, and exterior doors as limited common elements if they are designed for the exclusive use of one unit.

Alj Quote

Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, entryways or patios, and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit's boundaries, are limited common elements allocated exclusively to that unit.

Legal Basis

A.R.S. § 33-1212

Topic Tags

  • Definitions
  • Limited Common Elements
  • Statutes

Question

Can the HOA Board make rules regarding the use of common elements without a vote of the owners?

Short Answer

Yes, if the CC&Rs grant the Board the exclusive right to manage and regulate common elements.

Detailed Answer

The CC&Rs in this case provided the Board with the exclusive power to establish rules governing the use and maintenance of common elements.

Alj Quote

The Board shall have the exclusive right and power to establish and impose rules and regulations governing the use, maintenance and development of all and any part of the Common Elements…

Legal Basis

CC&Rs Article 3, Section 3.4

Topic Tags

  • Board Authority
  • Rules and Regulations
  • Common Elements

Case

Docket No
21F-H2120009-REL
Case Title
John D Klemmer v. Caribbean Gardens Association
Decision Date
2020-12-17
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • John D. Klemmer (petitioner)
    represented himself

Respondent Side

  • Nicole D. Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Alex Gomez (board member)
    Caribbean Board
    testified at hearing
  • Lydia A. Pierce Linsmeier (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP

Neutral Parties

  • Kay A. Abramsohn (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Windis, Katherine A. vs. Fairway Court West Condominium Association

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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

Cited:

  • 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

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12F-H1213002-BFS Decision – 323827.pdf

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12F-H1213002-BFS Decision – 318678.pdf

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12F-H1213002-BFS Decision – 323827.pdf

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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

  1. 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?
  1. 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.
  1. 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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