Case Summary
| Case ID | 23F-H056-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-08-07 |
| Administrative Law Judge | Brian Del Vecchio |
| Outcome | partial |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Richard K. Morris | Counsel | — |
|---|---|---|---|
| Respondent | The Townes at Paradise Valley Landings | Counsel | — |
Alleged Violations
Section 9.2 of the CC&Rs
Outcome Summary
The ALJ affirmed the Petitioner's claim that the HOA violated CC&Rs Section 9.2 by forcing the removal of a previously approved security light. The HOA was ordered to comply with the CC&Rs and reimburse the $500 filing fee. However, the Petitioner's request for a civil penalty was denied.
Key Issues & Findings
Respondent required permanent removal of pre-approved security light in violation of CC&Rs Section 9.2.
Petitioner had Architectural Review Committee (ARC) approval from 2010 to install a security light on the shed fascia (a common area). Respondent HOA later required its removal, arguing their fiduciary duty and a new roofing warranty (2023) voided the prior approval. The ALJ found the HOA failed to perform due diligence regarding the pre-existing ARC approval before contracting the new work and violated CC&Rs Section 9.2, which allows rebuilding in accordance with previously approved plans.
Orders: Respondent is directed to comply with the provisions of Section 9.2 of the CC&Rs and reimburse Petitioner's filing fee of $500.00. Petitioner's request to levy a civil penalty against Respondent is denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- ARIZ. REV. STAT. § 32-2199.02(A)
- ARIZ. REV. STAT. §§ 32-2102
- ARIZ. REV. STAT. §§ 32-2199 et seq.
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. §§ 32-2199(2)
- ARIZ. REV. STAT. § 32-2199.01(A)
- ARIZ. REV. STAT. § 32-2199.01(D)
- ARIZ. REV. STAT. § 33-1804
- ARIZ. REV. STAT. § 41-1092 et seq.
- ARIZ. REV. STAT. § 41-1092.09
- Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
- ARIZ. REV. STAT. § 32-2199.02(A)
- ARIZ. REV. STAT. §§ 32-2102
- ARIZ. REV. STAT. §§ 32-2199 et seq.
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. §§ 32-2199(2)
- ARIZ. REV. STAT. § 32-2199.01(A)
- ARIZ. REV. STAT. § 32-2199.01(D)
- ARIZ. REV. STAT. § 33-1804
- ARIZ. REV. STAT. § 41-1092 et seq.
- ARIZ. REV. STAT. § 41-1092.09
- Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
23F-H056-REL Decision – 1073539.pdf
23F-H056-REL Decision – 1080973.pdf
Questions
Question
Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?
Short Answer
No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.
Detailed Answer
The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.
Alj Quote
While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.
Legal Basis
Contract Law Principles / Due Diligence
Topic Tags
- architectural approval
- fiduciary duty
- maintenance
Question
If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?
Short Answer
No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.
Detailed Answer
In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.
Alj Quote
No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.
Legal Basis
CC&Rs Section 9.2
Topic Tags
- architectural approval
- repairs
- CC&Rs interpretation
Question
Who has the burden of proof in an HOA dispute hearing?
Short Answer
The petitioner (the person filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
- burden of proof
- legal procedure
Question
Can I be reimbursed for the filing fee if I win my case against the HOA?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.
Detailed Answer
Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.
Alj Quote
IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- fees
- reimbursement
- penalties
Question
Does winning the case automatically mean the HOA will be fined a civil penalty?
Short Answer
No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.
Detailed Answer
Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Discretion
Topic Tags
- civil penalty
- fines
Question
Can an HOA claim a new contractor's warranty voids my old approval?
Short Answer
Not if the HOA failed to check for existing approvals before signing the contract.
Detailed Answer
The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.
Alj Quote
Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.
Legal Basis
Duty of Care / Contract Awareness
Topic Tags
- warranties
- contractor
- due diligence
Case
- Docket No
- 23F-H056-REL
- Case Title
- Richard K. Morris v The Townes at Paradise Valley Landings
- Decision Date
- 2023-08-07
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?
Short Answer
No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.
Detailed Answer
The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.
Alj Quote
While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.
Legal Basis
Contract Law Principles / Due Diligence
Topic Tags
- architectural approval
- fiduciary duty
- maintenance
Question
If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?
Short Answer
No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.
Detailed Answer
In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.
Alj Quote
No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.
Legal Basis
CC&Rs Section 9.2
Topic Tags
- architectural approval
- repairs
- CC&Rs interpretation
Question
Who has the burden of proof in an HOA dispute hearing?
Short Answer
The petitioner (the person filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
- burden of proof
- legal procedure
Question
Can I be reimbursed for the filing fee if I win my case against the HOA?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.
Detailed Answer
Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.
Alj Quote
IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
- fees
- reimbursement
- penalties
Question
Does winning the case automatically mean the HOA will be fined a civil penalty?
Short Answer
No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.
Detailed Answer
Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Discretion
Topic Tags
- civil penalty
- fines
Question
Can an HOA claim a new contractor's warranty voids my old approval?
Short Answer
Not if the HOA failed to check for existing approvals before signing the contract.
Detailed Answer
The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.
Alj Quote
Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.
Legal Basis
Duty of Care / Contract Awareness
Topic Tags
- warranties
- contractor
- due diligence
Case
- Docket No
- 23F-H056-REL
- Case Title
- Richard K. Morris v The Townes at Paradise Valley Landings
- Decision Date
- 2023-08-07
- Alj Name
- Brian Del Vecchio
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Richard K. Morris (petitioner)
The Townes at Paradise Valley Landings
Appeared on his own behalf
Respondent Side
- Joelle Lever (board member)
The Townes at Paradise Valley Landings
Represented the Respondent and provided testimony - Chelsea Hearn (board member)
The Townes at Paradise Valley Landings
Homeowner who complained about the light - alice.riesterer (management staff)
The Management Trust Arizona
Neutral Parties
- Brian Del Vecchio (ALJ)
OAH
Administrative Law Judge who signed the Order and Decision - Judge Svio (hearing officer)
OAH
Administrative Law Judge who opened the hearing - Susan Nicolson (commissioner)
Arizona Department of Real Estate
Other Participants
- Deborah L (ARC member)
Association
Association representative who approved Petitioner's request in 2010 - AHansen (ADRE staff)
ADRE
Recipient of transmission - vnunez (ADRE staff)
ADRE
Recipient of transmission - djones (ADRE staff)
ADRE
Recipient of transmission - labril (ADRE staff)
ADRE
Recipient of transmission
