Case Summary
| Case ID | 20F-H2020050-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2020-06-25 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | none |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Ronna Biesecker | Counsel | — |
|---|---|---|---|
| Respondent | 6100 Fifth Condominium Homeowners Association | Counsel | — |
Alleged Violations
A.R.S. § 33-1247 and CC&Rs § 10(c)
Outcome Summary
The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.
Why this result: Petitioner failed to meet the burden of proof, as evidence suggested the water leak was caused by the sliding glass door of the unit above, not a flaw in the common elements.
Key Issues & Findings
Failure to maintain all Common Elements (Water Leak Dispute)
Petitioner alleged the Respondent HOA failed to maintain Common Elements, leading to water leaks in her unit. Respondent denied the violation, asserting the leak originated from the upstairs unit’s sliding doors or track assemblies, which are the responsibility of that unit owner.
Orders: Petitioner’s petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1247
- CC&Rs § 10(c)
- Article II.E, Section 1 of the Bylaws
- Article C of the CC&Rs
Analytics Highlights
- A.R.S. § 33-1247
- CC&Rs § 10(c)
- A.R.S. § 32-2199.01
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- A.A.C. R2-19-119(B)(2)
- Powell v. Washburn
- Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
- Vazanno v. Superior Court
Video Overview
Audio Overview
Decision Documents
20F-H2020050-REL Decision – 802352.pdf
Administrative Hearing Brief: Biesecker v. 6100 Fifth Condominium HOA
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 20F-H2020050-REL, wherein Petitioner Ronna Biesecker alleged that the 6100 Fifth Condominium Homeowners Association (HOA) failed to fulfill its maintenance responsibilities. The Administrative Law Judge (ALJ) ultimately dismissed the petition, ruling that the Petitioner did not meet the burden of proof required to substantiate her claim.
The central conflict involved recurring water leaks in Ms. Biesecker’s condominium unit (A113). The Petitioner contended that the leaks originated from cracks in the building’s exterior stucco, which are defined as “Common Elements” and are therefore the HOA’s responsibility to repair under its governing documents and Arizona state law. In contrast, the HOA argued that the source of the water was the sliding door assembly of the upstairs unit, making its maintenance the responsibility of that unit’s owner.
The final decision rested on the weight of evidence presented. Multiple expert inspections, conducted by Olander’s and another inspector retained by the HOA, concluded that the leaks were attributable to the upstairs unit’s sliding doors. This evidence was deemed more convincing than the Petitioner’s own assessment regarding the stucco. The ALJ concluded that Ms. Biesecker failed to prove by a “preponderance of the evidence” that the damage was caused by a flaw in the common elements, leading to the dismissal of her case.
Case Overview
Case Name
Ronna Biesecker, Petitioner, vs. 6100 Fifth Condominium Homeowners Association, Respondent.
Case Number
20F-H2020050-REL
Office of Administrative Hearings (Arizona)
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
June 5, 2020
Decision Date
June 25, 2020
Petitioner
Ronna Biesecker, owner of unit A113
Respondent
6100 Fifth Condominium Homeowners Association, represented by Robert Eric Struse, Statutory Agent
Core Allegations and Defenses
Petitioner’s Claim (Ronna Biesecker)
• Core Allegation: The Petitioner filed a petition on March 10, 2020, alleging that the Respondent (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) § 10(c) and Arizona Revised Statutes (A.R.S.) § 33-1247 by failing to maintain the common elements of the condominium community.
• Specifics of Claim: Ms. Biesecker asserted that persistent water leaks into her unit were caused by cracks in the exterior stucco surrounding the sliding doors.
• Basis of Responsibility: She argued that because the exterior stucco is a “common element,” the HOA was legally responsible for its repair and any subsequent damage to her unit.
• Requested Action: The Petitioner had previously requested that the HOA repair the exterior leaks and had attempted to have the HOA mediate the issue with the owner of the upstairs unit.
Respondent’s Position (6100 Fifth Condominium HOA)
• Core Defense: The HOA denied any violation of its CC&Rs or state statutes.
• Specifics of Defense: The HOA maintained that the source of the water leaks was not a common element. Instead, it attributed the leaks to the sliding doors or track assemblies of the condominium unit located directly above the Petitioner’s.
• Basis of Responsibility: According to the HOA’s governing documents and state law, the maintenance of elements belonging to an individual unit (such as a sliding door) is the responsibility of that unit’s owner, not the association.
• Actions Taken: The HOA declined to “arbitrate, mediate, or serve as a third party” in the dispute between the Petitioner and the owner of the upstairs unit. It also conducted an inspection which supported its position.
Evidentiary Timeline and Key Findings
The decision was based on a sequence of events and expert assessments presented as evidence.
• January 5, 2019: Petitioner experiences the first water leak in her unit (A113) near the sliding glass door.
• January 18, 2019: An employee from Olander’s, a door installation company contacted by the Petitioner, inspects the unit. The employee’s opinion was that “the leak was coming from the unit above Petitioner and that the sliding door above Petitioner’s unit had large gaps under the threshold which allowed water to get in.”
• February 8, 2019: Nathan’s Handyman Service repairs plaster damage in the Petitioner’s unit and notes in a report that the damage was “the result of an old leak coming from above Petitioner’s unit.” The report also identified rusted wire mesh, indicating previous repairs to the area.
• March/April 2019: The HOA’s Property Manager formally refuses the Petitioner’s request to mediate the dispute with the owner of the upstairs unit.
• May 1, 2019: Petitioner emails the HOA, proposing that new cracks in the stucco pop-out at the roof level could be the source of the leak.
• October 28, 2019: A “Roof Opinion Report” from Roof Savers Locke Roofing states that no roof repairs are needed but notes the presence of “server [sic] cracking at the stucco.” The report recommends contacting a stucco or window contractor.
• November 27, 2019: Another leak occurs in the same area of the Petitioner’s unit.
• December 9, 2019: The HOA’s Property Manager and an inspector assess the water damage in the Petitioner’s unit.
• December 23, 2019: An invoice from the inspector states: “After inspecting the shared roof and building interior/exterior it appears the water damage to the lower unit is coming from the upstairs unit sliding doors or their track assemblies.”
• June 5, 2020 (Hearing Testimony):
◦ The Petitioner stated it was “obvious” the leak originated from the stucco crack.
◦ The HOA’s Statutory Agent, Robert Eric Struse, testified that the December 2019 inspection included the interior of the upstairs unit. He argued that if the stucco crack were the cause, the upstairs unit would also show internal water damage, which it did not.
Governing Documents and Statutes
The case revolved around the interpretation of responsibility as defined by the following legal framework:
• Bylaws (Article II.E, Section 1) & CC&Rs (Article C): These documents obligate the HOA to collect assessments to meet common expenses, including the “maintenance, upkeep, care, repair, [and] reconstruction… for the common elements.”
• A.R.S. § 33-1247: This Arizona statute codifies the division of maintenance responsibility. It states that “the association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit.”
Conclusions of Law and Final Order
The Administrative Law Judge’s decision was based on the application of the legal standard of proof to the evidence presented.
• Burden of Proof: The ALJ established that the Petitioner bore the burden of proof to demonstrate, by a “preponderance of the evidence,” that the HOA violated the applicable statutes or CC&Rs. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”
• Central Legal Finding: The judge determined that if the water damage was caused by a flaw in the common elements, the HOA would be responsible. However, the Petitioner failed to meet her burden of proof in establishing this causal link.
• Reasoning for Decision: The ruling states: “Petitioner failed to establish by a preponderance of the evidence that the water leak and damage was attributable to the condition of the common elements. Rather, the opinions of the companies that inspected the area concluded that the leak was coming from the sliding glass door of the unit above Petitioner’s.” The collective weight of the expert opinions from Olander’s and the HOA’s inspector outweighed the Petitioner’s personal theory about the stucco cracks.
• Final Order: Based on these findings, the judge issued a final order: “IT IS ORDERED that Petitioner’s petition is dismissed.” This order is binding unless a rehearing is granted.
Study Guide: Biesecker v. 6100 Fifth Condominium Homeowners Association
This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 20F-H2020050-REL, concerning a dispute between condominium owner Ronna Biesecker and the 6100 Fifth Condominium Homeowners Association. The case centers on determining responsibility for water leaks affecting the Petitioner’s unit. Use the following sections to test and deepen your understanding of the facts, legal arguments, and final outcome.
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Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, using only information provided in the case document.
1. Who were the Petitioner and Respondent in this case, and what was their relationship?
2. What was the central claim made by the Petitioner against the Respondent?
3. According to the Respondent, what was the source of the water leaks and who was responsible for the repair?
4. What legal standard, or “burden of proof,” did the Petitioner need to meet to win her case?
5. What two key community documents, in addition to Arizona state law, define the Respondent’s responsibility for maintaining “common elements”?
6. Summarize the findings of the two inspection reports mentioned in the evidence (from Olander’s and the December 23, 2019 invoice).
7. What was the Petitioner’s theory about the source of the leak, as stated during the hearing?
8. How did Robert Eric Struse, the Respondent’s Statutory Agent, counter the Petitioner’s theory about the stucco crack?
9. What was the final ruling, or “Order,” issued by the Administrative Law Judge?
10. Why did the Administrative Law Judge conclude that the Petitioner failed to meet her burden of proof?
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Answer Key
1. The Petitioner was Ronna Biesecker, who owned condominium unit A113. The Respondent was the 6100 Fifth Condominium Homeowners Association, of which the Petitioner was a member.
2. The Petitioner filed a petition alleging the Respondent violated its CC&Rs (§ 10(c)) and Arizona statute A.R.S. § 33-1247 by failing to maintain the common elements, which she believed were the source of water leaks in her unit.
3. The Respondent argued that the source of the water leaks was the upstairs unit’s sliding doors or track assemblies. Therefore, the responsibility for maintenance and repair belonged to the owner of that specific unit, not the Homeowners Association.
4. The Petitioner had the burden of proof to establish her claim by a “preponderance of the evidence.” This legal standard requires providing proof that convinces the trier of fact that the contention is more probably true than not.
5. The Respondent’s responsibility is defined in Article II.E, Section 1 of the community Bylaws and Section C of the CC&Rs. Both documents state the association is responsible for the maintenance and repair of common elements using assessments paid by owners.
6. An employee from Olander’s opined that the leak was coming from the unit above Petitioner’s, specifically from large gaps under the sliding door’s threshold. Similarly, the inspector’s invoice from December 23, 2019, concluded that the water damage appeared to be coming from the upstairs unit’s sliding doors or their track assemblies.
7. During the hearing, the Petitioner stated that it was “obvious” the leak was coming from a crack in the stucco in the pop-out surrounding the sliding doors at the roof level. She posited this was a common element and therefore the Respondent’s responsibility to repair.
8. Mr. Struse testified that if water were leaking through the crack in the stucco, the upstairs unit would have also sustained internal damage. He confirmed that an inspection of the inside of the upstairs unit showed this was not happening, undermining the Petitioner’s theory.
9. The Administrative Law Judge ordered that the Petitioner’s petition be dismissed.
10. The judge concluded the Petitioner failed to meet her burden of proof because the credible evidence, particularly the opinions of the companies that inspected the area, concluded the leak was coming from the sliding glass door of the unit above. The Petitioner did not establish by a preponderance of the evidence that the leak was attributable to the condition of the common elements.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and legal principles from the case document to support your arguments.
1. Analyze the distinction between “common elements” and an individual “unit” as defined by A.R.S. § 33-1247 and the community’s governing documents. How was this distinction central to the judge’s final decision in this case?
2. Discuss the role and weight of evidence presented during the hearing. Compare the Petitioner’s testimony and personal observations with the professional opinions from Olander’s and the inspector. Why did the judge find the professional opinions more convincing in determining the outcome?
3. Explain the legal standard of “preponderance of the evidence” as defined in the case document’s Conclusions of Law. Using specific examples from the hearing evidence, detail why Ronna Biesecker failed to meet this standard.
4. Based on the referenced community documents, what are the primary maintenance responsibilities of the 6100 Fifth Condominium Homeowners Association? How did the Respondent’s stated refusal to “arbitrate, mediate, or serve as a third party” in the dispute between unit owners align with or diverge from these responsibilities?
5. Imagine you are advising the Petitioner before the hearing. What additional evidence or types of expert testimony could she have presented to potentially change the outcome of the case and successfully prove the leak was the Respondent’s responsibility?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official (Tammy L. Eigenheer) from the Office of Administrative Hearings who presides over the evidentiary hearing and issues a legally binding decision and order.
A.R.S. (Arizona Revised Statutes)
The codified laws of the state of Arizona. The statutes referenced (e.g., § 33-1247) govern the responsibilities of condominium associations and the legal procedures for disputes.
Bylaws
A set of rules governing the internal operations of an organization. In this case, Article II.E, Section 1 of the Bylaws obligates the Association to maintain the common elements using assessments paid by owners.
CC&Rs (Covenants, Conditions, and Restrictions)
A legal document that outlines the rights and obligations of property owners and the homeowners association. Section C of the CC&Rs required the Association to maintain, repair, and care for the common elements.
Common Elements
Areas of the condominium property for which the homeowners association is responsible for maintenance, upkeep, care, and repair, as distinguished from an individual owner’s unit.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Ronna Biesecker, the condominium owner who alleged the homeowners association violated its duties.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is established by evidence with the most convincing force.
Respondent
The party against whom a petition is filed. In this case, the 6100 Fifth Condominium Homeowners Association.
Statutory Agent
An individual designated to receive legal notices and appear on behalf of a business entity. In this case, Robert Eric Struse appeared and testified on behalf of the Respondent association.
Your HOA Isn’t Your Landlord: 3 Surprising Lessons from a Condo Water Leak Lawsuit
Introduction: The Dreaded Drip
It’s a scenario that strikes fear into the heart of any condo owner: the tell-tale stain on the ceiling, the damp spot on the wall, the dreaded drip of a mysterious water leak. The immediate anxiety is followed by a pressing question: “Who is responsible for fixing this, and who pays for the damage?” Many assume the answer is straightforward, but as a recent lawsuit involving the 6100 Fifth Condominium Homeowners Association demonstrates, the lines of responsibility in a condominium community are often more complicated than they appear.
This article explores a real-life court case between a condo owner and her HOA to uncover three surprising truths about condo ownership, liability, and the true role of your HOA.
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1. It’s Not Where the Damage Is, It’s Where the Leak Starts
In the case, condo owner Ronna Biesecker experienced persistent water leaks in her unit (A113) around her sliding glass door. On May 1, 2019, after observing new cracks in the exterior stucco, she “posited that the cracks could be a source of the leak.” This became the foundation of her claim: if the water was coming from the stucco—a “Common Element”—then the HOA was responsible for the repairs.
However, a year-long trail of evidence pointed in a different direction. As early as January 18, 2019, an employee from the door installation company opined that the leak was “coming from the unit above.” On February 8, 2019, a handyman repairing plaster damage stated the issue was from “an old leak coming from above.” Even a roofing report from October 28, 2019, which noted the stucco cracking, stopped short of blaming it, instead recommending the owner contact a “stucco contractor or Window Company.”
This evidence culminated in a formal inspector’s report on December 23, 2019, which concluded the water was “coming from the upstairs unit sliding doors or their track assemblies.” Because the source of the leak originated from a part of the neighbor’s private unit, the legal responsibility shifted. Based on Arizona statute A.R.S. § 33-1247, the HOA was not liable. The key lesson here is unambiguous: legal responsibility follows the source of the problem, not the location of the resulting damage.
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2. “More Probably True Than Not”: The Burden of Proof Is on You
In any lawsuit, the person bringing the complaint—in this case, the homeowner—carries the “burden of proof.” This means she had to provide enough evidence to meet a specific legal standard, which the court defined as “preponderance of the evidence.” The legal decision offers a clear definition of this standard:
“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
In simple terms, Ms. Biesecker had to convince the judge that her theory—that the leak came from the common element stucco—was more likely to be true than the HOA’s theory that it came from the neighbor’s door.
Her claim was undone by simple logic. The HOA’s Statutory Agent, Mr. Struse, provided devastating testimony, arguing that “if water was leaking through the crack in the stucco, the upstairs unit would have also had internal damage, which was not happening.” This single point made the petitioner’s theory far less probable. The judge ultimately ruled that the petitioner “failed to establish by a preponderance of the evidence that Respondent violated the provisions of the CC&Rs or Arizona statutes,” proving that an owner’s belief isn’t enough without convincing evidence.
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3. Your HOA Won’t (and Often Can’t) Settle Neighbor-to-Neighbor Fights
Before filing the lawsuit, the petitioner attempted to resolve the issue directly. On or about February 11, 2019, she contacted the owner of the unit above hers to request repairs but “did not receive a response.” Frustrated, she turned to the HOA for help. In March or April 2019, she asked the Property Manager to “help mediate the issue” between her and her neighbor.
The HOA’s response was direct and legally sound: the Property Manager “responded that it would not arbitrate, mediate, or serve as a third party to the dispute.” This is a crucial and often misunderstood takeaway for condo owners. While an HOA’s role is to manage common elements and enforce community-wide rules, it is not legally obligated—and often not permitted—to intervene in private disputes between two homeowners over damage originating from private property. Your HOA is not a landlord or a mediator for personal conflicts; it’s an administrative body with a specific and legally defined scope of authority.
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Conclusion: Know Your Lines
The lessons from this case are clear: condo living involves a complex web of overlapping responsibilities. The line between what constitutes a common element, your private property, and your neighbor’s property is legally significant and determines who is ultimately responsible when things go wrong. Understanding these distinctions isn’t just helpful—it’s essential for protecting your investment and resolving issues effectively.
Before the next problem arises, have you read your community documents to know exactly where your responsibility ends and your neighbor’s begins?
Case Participants
Petitioner Side
- Ronna Biesecker (petitioner)
Appeared and testified on her own behalf.
Respondent Side
- Robert Eric Struse (statutory agent)
6100 Fifth Condominium Homeowners Association
Appeared and presented testimony on behalf of Respondent.
Neutral Parties
- Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings - Judy Lowe (commissioner)
Arizona Department of Real Estate
