**Case Summary: Hopper v. Las Cumbres Townhouses Association**
**Case No:** 20F-H2019013-REL
**Forum:** Arizona Department of Real Estate, Office of Administrative Hearings
**Date of Decision:** December 29, 2019

**Overview**
Petitioner David W. Hopper filed a petition against the Respondent, Las Cumbres Townhouses Association, alleging that the Association violated community governing documents by approving the construction of a wall on a neighbor's property. The hearing addressed whether the Association's approval of the structure violated the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs) or the By-Laws.

**Key Facts**
* **Background:** The Petitioner purchased a townhome in September 2018 and utilized a pathway behind a neighbor’s unit to access his own backyard and transport large items during renovations.
* **The Dispute:** In April 2019, the neighbor began constructing a wall to mitigate erosion. This project had been unanimously approved by the Association’s Board in March 2019.
* **The Obstruction:** The new wall blocked the pathway the Petitioner had been using. The Petitioner claimed he was unaware of the construction until it began.
* **Location:** The wall was constructed entirely on the neighbor's private property, not on common area designated for community use.

**Main Issues and Arguments**
The Petitioner argued that the Association violated CC&Rs Article VII, Section 3; Article VIII, Section 4; and By-Laws Article II, Section 1(b) and (c).

* **Petitioner's Position:**
* **Maintenance:** The wall prevented him from maintaining his home, specifically citing the inability to move large windows into the property through the back entrance.
* **Health and Safety:** The wall eliminated a flat exit route necessary for his wife, who suffers from a medical condition affecting her balance, thereby threatening their health and safety.
* **Property Value:** The lack of access and inability to maintain the home decreased the property's value, violating the By-Laws' purpose to protect such value.
* **Notice:** The Petitioner argued he received no notice of the construction.

* **Respondent's Position:**
* **Private Property:** The wall was located on the neighbor's private property. The "pathway" was simply the neighbor's yard, and the Petitioner had no legal right to use it.
* **Compliance:** The wall conformed to the community's common scheme and design. Other units with similar layouts successfully managed window replacements without such access.

**Legal Findings and Analysis**
Administrative Law Judge Antara Nath Rivera dismissed the petition, ruling that the Petitioner failed to prove by a preponderance of the evidence that the Association violated any governing documents.

* **No Legal Right of Access:** The Judge determined that the path was on private property. Although the Petitioner had previously used the path (presumably with the neighbor's consent), he held no legal easement or right to continued, uninterrupted use of his neighbor's private land.
* **No Violation of Duties:** The Association did not violate the cited maintenance or safety provisions. The Judge noted that while the wall inconvenienced the Petitioner, the Association was not obligated by the cited rules to prevent the neighbor from building on their own property.
* **Burden of Proof:** The Petitioner failed to cite specific provisions regarding the lack of notice or prove that the Association's approval of the plans was improper.

**Final Outcome**
The Administrative Law Judge ordered that the Petition be **dismissed**.