Case Summary
| Case ID | 23F-H021-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-02-22 |
| Administrative Law Judge | Jenna Clark |
| Outcome | The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Victoria J Whitaker | Counsel | — |
|---|---|---|---|
| Respondent | Villas at Sunland Condominium Association | Counsel | Austin Baillio |
Alleged Violations
ARIZ. REV. STAT. § 33-1242
Outcome Summary
The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242. Petitioner did not follow the statutory requirement of sending a response via certified mail (ARIZ. REV. STAT. § 33-1242(B)).
Key Issues & Findings
Alleged failure to follow due process concerning violation enforcement
Petitioner alleged the Association failed to follow due process when enforcing community documents regarding damage to a semi-common element (carport) before her purchase, leading to a violation notice and subsequent enforcement.
Orders: Petition denied. Respondent shall not reimburse Petitioner's filing fee as required by ARIZ. REV. STAT. § 32-2199.02(A).
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 33-1242
- ARIZ. REV. STAT. § 33-1242(B)
- ARIZ. REV. STAT. § 33-1242(C)
- ARIZ. REV. STAT. § 33-1242(D)
- ARIZ. REV. STAT. § 33-1803
- ARIZ. REV. STAT. § 32-2199.02(A)
Analytics Highlights
- ARIZ. REV. STAT. § 33-1242
- ARIZ. REV. STAT. § 33-1242(B)
- ARIZ. REV. STAT. § 33-1242(C)
- ARIZ. REV. STAT. § 33-1242(D)
- ARIZ. REV. STAT. § 33-1803
- ARIZ. REV. STAT. § 32-2199.01
- ARIZ. REV. STAT. § 32-2199.02(A)
- ARIZ. REV. STAT. § 33-1260(A)(3)(e)
- ARIZ. REV. STAT. § 33-1243
- Declaration Article 5.3
- Declaration Article 5.1
- Declaration Article 5.2
Video Overview
Audio Overview
Decision Documents
23F-H021-REL Decision – 1036088.pdf
23F-H021-REL Decision – 1036088.pdf
This summary details the hearing proceedings, key arguments, and final decision in the matter of Victoria Whitaker (Petitioner) versus Villas at Sunland Condominium Association (Respondent). The hearing took place on February 3, 2023, before Administrative Law Judge (ALJ) Jenna Clark.
Key Facts and Procedural History
The case centered on a dispute over damage to a semi-common element: a carport shared by Petitioner's unit (Unit 16) and an adjacent unit. The damage was observed prior to the Petitioner's purchase of the unit on June 13, 2022. Although the Petitioner received a $20,000 reduction in the purchase price due to the outstanding issue, she denied accepting responsibility for the repair.
On July 18, 2022, after the sale, the Association issued a Notice of Violation to the Petitioner, requiring her to repair the carport ceiling.
A key procedural point addressed at the start of the hearing was the deficient Notice of Hearing, which incorrectly cited the Planned Communities Act (ARS § 33-1803) instead of the correct statute for condominiums. All parties stipulated to amend the governing statute for the dispute to ARS § 33-1242(D), which regulates due process in condominium enforcement actions.
Main Issues and Arguments
Petitioner's Argument:
The Petitioner alleged that the Association failed to follow due process under ARS § 33-1242. She argued that the violation should not have been enforced against her, as the damage occurred before her purchase and the violation was not properly investigated by management. The Association's claim that the damage was caused by the prior owner's tenant relied solely on "hearsay" (a neighbor's phone call), and no further investigation or expert assessment was conducted. She also claimed that the subsequent hearing held by the Board on October 5, 2022, was unfair because the Board had already made its decision.
Respondent's Argument:
The Association contended that they fully complied with ARS § 33-1242, providing notice and affording the Petitioner a hearing before the Board prior to taking any enforcement action (such as imposing fines). The core legal argument focused on the Petitioner’s failure to adhere to statutory requirements: ARS § 33-1242(B) requires a unit owner to provide a written response to a violation notice by certified mail within 21 days to "trigger" the subsequent due process provisions. The Petitioner admitted sending her contestation via email, not certified mail. The Association argued that because the Petitioner did not follow the statutory procedure, they cannot be found in violation of the statute's subsequent timing requirements.
Final Decision and Outcome
The ALJ concluded that the Tribunal’s jurisdiction was narrowly limited to determining whether the Association violated ARS § 33-1242, not to decide who was responsible for the damage or whether the Board's determination was correct.
The ALJ found that Petitioner bore the burden of proving the statutory violation by a preponderance of the evidence. The record established that Petitioner did not follow the statutory requirements of ARS § 33-1242 (certified mail) necessary to "trigger" any protected due process rights. Despite this procedural failure, the Association still apprised her of her rights and afforded her a hearing.
Based on the evidence, the ALJ concluded that no violation of ARS § 33-1242 was established.
Outcome: Petitioner’s petition was denied. The Association was not required to reimburse the Petitioner’s filing fee.
Questions
Question
Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?
Short Answer
No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.
Detailed Answer
The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).
Alj Quote
The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
- jurisdiction
- scope of hearing
- violation responsibility
Question
Is it required to send my violation dispute response by certified mail?
Short Answer
Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.
Detailed Answer
The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.
Alj Quote
The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.
Legal Basis
ARIZ. REV. STAT. § 33-1242(B)
Topic Tags
- certified mail
- procedural requirements
- contesting violations
Question
What constitutes 'due process' for an HOA violation?
Short Answer
Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.
Detailed Answer
Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.
Alj Quote
Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
- due process
- notice
- board hearing
Question
Who is responsible for repairing 'Limited Common Elements' like a designated carport?
Short Answer
Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.
Detailed Answer
In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.
Alj Quote
[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.
Legal Basis
Declaration Article 5.2
Topic Tags
- maintenance
- limited common elements
- carport
Question
Am I financially liable for damage caused by my tenants?
Short Answer
Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.
Detailed Answer
The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.
Alj Quote
Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.
Legal Basis
Declaration Article 5.3
Topic Tags
- tenant liability
- rental property
- damages
Question
Who has the burden of proof in an administrative hearing against the HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- burden of proof
- evidence
- legal standard
Question
Can I get my filing fee reimbursed if my petition is denied?
Short Answer
No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.
Detailed Answer
The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- filing fees
- costs
- reimbursement
Case
- Docket No
- 23F-H021-REL
- Case Title
- Victoria J Whitaker vs. Villas at Sunland Condominium Association
- Decision Date
- 2023-02-22
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?
Short Answer
No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.
Detailed Answer
The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).
Alj Quote
The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
- jurisdiction
- scope of hearing
- violation responsibility
Question
Is it required to send my violation dispute response by certified mail?
Short Answer
Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.
Detailed Answer
The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.
Alj Quote
The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.
Legal Basis
ARIZ. REV. STAT. § 33-1242(B)
Topic Tags
- certified mail
- procedural requirements
- contesting violations
Question
What constitutes 'due process' for an HOA violation?
Short Answer
Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.
Detailed Answer
Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.
Alj Quote
Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.
Legal Basis
ARIZ. REV. STAT. § 33-1242
Topic Tags
- due process
- notice
- board hearing
Question
Who is responsible for repairing 'Limited Common Elements' like a designated carport?
Short Answer
Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.
Detailed Answer
In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.
Alj Quote
[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.
Legal Basis
Declaration Article 5.2
Topic Tags
- maintenance
- limited common elements
- carport
Question
Am I financially liable for damage caused by my tenants?
Short Answer
Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.
Detailed Answer
The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.
Alj Quote
Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.
Legal Basis
Declaration Article 5.3
Topic Tags
- tenant liability
- rental property
- damages
Question
Who has the burden of proof in an administrative hearing against the HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- burden of proof
- evidence
- legal standard
Question
Can I get my filing fee reimbursed if my petition is denied?
Short Answer
No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.
Detailed Answer
The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- filing fees
- costs
- reimbursement
Case
- Docket No
- 23F-H021-REL
- Case Title
- Victoria J Whitaker vs. Villas at Sunland Condominium Association
- Decision Date
- 2023-02-22
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Victoria Whitaker (petitioner)
Appeared on her own behalf without counsel - Kimball Whitaker (observer)
Observed hearing; potential witness for petitioner - Realtor (realtor)
Petitioner's realtor (name not provided)
Respondent Side
- Austin Baillio (HOA attorney)
Maxwell & Morgan, P.C. - Joseph Milin (board member)
Villas at Sunland Condominium Association
Board President; Witness - Steven Cheff (property manager)
Haywood Community Management (HMC)
Community Manager and Compliance Inspector; Witness - Carly Collins (property management admin)
Haywood Community Management (HMC)
Admin responsible for correspondence - Harvey Colin (property management admin)
Haywood Community Management (HMC)
Signed resale disclosure statement - Neighbor (Unit 15) (witness)
Unit 15 resident
Provided alleged eyewitness testimony regarding the damage
Neutral Parties
- Jenna Clark (ALJ)
OAH
Presiding Administrative Law Judge - Susan Nicolson (Commissioner)
Arizona Department of Real Estate (ADRE)
Other Participants
- Chad and Ida Carpenter (prior owners/sellers)
Unit 16 (prior owners)
The sellers of the property at issue - Kevin Finley (contractor)
Signature
Provided repair estimate