Case Summary
| Case ID | 23F-H017-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-03-08 |
| Administrative Law Judge | Adam D. Stone |
| Outcome | loss |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Carolyn Wefsenmoe | Counsel | — |
|---|---|---|---|
| Respondent | Summit View Homeowner's Association | Counsel | Chad M. Gallacher, Esq. |
Alleged Violations
CC&R’s Article XI, Sections 1, 2, and 3; Summit View Community Plat Notes
Outcome Summary
The Administrative Law Judge denied the petition, ruling that the Petitioner failed to meet the burden of proof to establish that the walls were built on the common area. Since HOA maintenance responsibility primarily attached to the common area, and the location of the walls relative to the lots remained unproven, the HOA was not found in violation of its maintenance obligations.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the walls were located in a common area. No survey evidence was presented to determine whether the walls were on the individual lots (Owner responsibility) or the common area (HOA responsibility).
Key Issues & Findings
HOA failure to maintain perimeter walls and improper charging of homeowners for repairs.
Petitioner alleged that the HOA (SVHA) violated CC&R Article XI, Sections 1, 2, and 3, and the Community Plat Notes by failing to maintain the subdivision perimeter walls and charging homeowners for repairs, arguing the walls abutted and were part of the Common Area (NAOS), making maintenance the HOA's responsibility.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 32-2199
- A.R.S. § 41-1092.07(G)(2)
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- CC&R Article XI, Section 1
- CC&R Article XI, Section 2
- CC&R Article XI, Section 3
- Summit View Community Plat Notes
Analytics Highlights
- A.R.S. § 32-2199
- A.R.S. § 32-2199.02(B)
- A.R.S. § 32-2199.04
- A.R.S. § 41-1092.07(G)(2)
- A.A.C. R2-19-119
- CC&R Article XI, Section 1
- CC&R Article XI, Section 2
- CC&R Article XI, Section 3
- Summit View Plat Notes
Video Overview
Audio Overview
https://open.spotify.com/episode/71FsAzQZjyvSrdExtF4eXX
Decision Documents
23F-H017-REL Decision – 1018596.pdf
23F-H017-REL Decision – 1018616.pdf
23F-H017-REL Decision – 1031301.pdf
23F-H017-REL Decision – 1032541.pdf
23F-H017-REL Decision – 1032542.pdf
23F-H017-REL Decision – 1032543.pdf
23F-H017-REL Decision – 1032544.pdf
23F-H017-REL Decision – 1032545.pdf
23F-H017-REL Decision – 1032546.pdf
23F-H017-REL Decision – 1032547.pdf
23F-H017-REL Decision – 1035846.pdf
Questions
Question
Who has the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
- legal standards
- burden of proof
- procedural requirements
Question
What level of evidence is required to win a dispute against an HOA?
Short Answer
A 'preponderance of the evidence,' meaning the claim is more likely true than not.
Detailed Answer
The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
- legal standards
- evidence
- hearings
Question
If a wall touches an HOA common area, does the HOA automatically have to maintain it?
Short Answer
No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.
Detailed Answer
Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.
Alj Quote
There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
- maintenance
- common areas
- boundaries
Question
Is a professional survey necessary to prove a boundary or maintenance dispute?
Short Answer
Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.
Detailed Answer
If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.
Alj Quote
However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.
Legal Basis
Conclusions of Law
Topic Tags
- evidence
- surveys
- property lines
Question
Does the alignment of walls affect who is responsible for them?
Short Answer
Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.
Detailed Answer
In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.
Alj Quote
Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.
Legal Basis
Conclusions of Law
Topic Tags
- maintenance
- construction
- HOA obligations
Question
Can I rely solely on Plat Notes to prove HOA maintenance responsibility?
Short Answer
Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.
Detailed Answer
Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.
Alj Quote
Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
- cc&rs
- plat maps
- interpretation
Case
- Docket No
- 23F-H017-REL
- Case Title
- Carolyn Wefsenmoe vs Summit View Homeowner's Association
- Decision Date
- 2023-03-08
- Alj Name
- Adam D. Stone
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Who has the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
- legal standards
- burden of proof
- procedural requirements
Question
What level of evidence is required to win a dispute against an HOA?
Short Answer
A 'preponderance of the evidence,' meaning the claim is more likely true than not.
Detailed Answer
The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
- legal standards
- evidence
- hearings
Question
If a wall touches an HOA common area, does the HOA automatically have to maintain it?
Short Answer
No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.
Detailed Answer
Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.
Alj Quote
There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
- maintenance
- common areas
- boundaries
Question
Is a professional survey necessary to prove a boundary or maintenance dispute?
Short Answer
Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.
Detailed Answer
If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.
Alj Quote
However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.
Legal Basis
Conclusions of Law
Topic Tags
- evidence
- surveys
- property lines
Question
Does the alignment of walls affect who is responsible for them?
Short Answer
Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.
Detailed Answer
In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.
Alj Quote
Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.
Legal Basis
Conclusions of Law
Topic Tags
- maintenance
- construction
- HOA obligations
Question
Can I rely solely on Plat Notes to prove HOA maintenance responsibility?
Short Answer
Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.
Detailed Answer
Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.
Alj Quote
Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
- cc&rs
- plat maps
- interpretation
Case
- Docket No
- 23F-H017-REL
- Case Title
- Carolyn Wefsenmoe vs Summit View Homeowner's Association
- Decision Date
- 2023-03-08
- Alj Name
- Adam D. Stone
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Carolyn Wefsenmoe (petitioner)
Appeared via Google Meet on her own behalf
Respondent Side
- Chad M. Gallacher (HOA attorney)
Maxwell & Morgan, P.C. - Bick Smith (witness/board president)
Summit View Homeowner's Association
Also referred to as Vic Smith; testified for Respondent - Henry (board member)
Summit View Homeowner's Association
Discussed erosion issues; toured walls with Bick Smith - Denise (board member)
Summit View Homeowner's Association
Participated in special board meeting - Larry Burns (property manager/GM)
Summit View Homeowner's Association
General Manager who wrote community painting update; participated in board meeting
Neutral Parties
- Adam D. Stone (ALJ)
OAH - Louis Dettorre (Commissioner)
Arizona Department of Real Estate
Transmitted minute entry to - James Knupp (Acting Commissioner)
Arizona Department of Real Estate
Transmitted order to - Susan Nicolson (Commissioner)
Arizona Department of Real Estate
Transmitted ALJ decision to - AHansen (ADRE Staff)
Arizona Department of Real Estate
Email recipient for transmitted documents - vnunez (ADRE Staff)
Arizona Department of Real Estate
Email recipient for transmitted documents - djones (ADRE Staff)
Arizona Department of Real Estate
Email recipient for transmitted documents - labril (ADRE Staff)
Arizona Department of Real Estate
Email recipient for transmitted documents - c. serrano (OAH Staff)
OAH
Signed minute entries for transmission - Helen Purcell (county recorder)
Maricopa County
Recorded Amended CC&R Declaration in 2004 - Maria Rosana Pira (notary public)
Maricopa County
Notarized Amended CC&R and Bylaws in 2004
Other Participants
- Elelliana (unknown)
Correspondent in objected-to email exhibit - Beth Mulcahy (attorney)
Mulcahy Law Firm, P.C.
Firm filed the Amended CC&R Declaration in 2004 - LizzieG (customer service rep)
Brown Community Management
Customer service contact listed on billing document
