Case Summary
| Case ID | 21F-H2121049-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2021-10-12 |
| Administrative Law Judge | Jenna Clark |
| Outcome | total |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Rodney & Patricia Kirby | Counsel | — |
|---|---|---|---|
| Respondent | Dove Cove Estates Homeowners Association | Counsel | Lydia Peirce Linsmeier and Kaylee Ivy |
Alleged Violations
CC&Rs Article IV, Section 4.1.1
Outcome Summary
The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.
Key Issues & Findings
Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.
Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.
Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- 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. § 32-2199.02
- ARIZ. REV. STAT. § 41-1092 et seq.
- ARIZ. ADMIN. CODE R2-19-119
- Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
- ARIZ. REV. STAT. § 32-2102
- ARIZ. REV. STAT. § 32-2199 et seq.
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. § 32-2199.02(B)
- ARIZ. REV. STAT. § 41-1092.08(H)
- ARIZ. REV. STAT. § 12-904(A)
- ARIZ. REV. STAT. § 32-2199(2)
- ARIZ. REV. STAT. § 32-2199.01(A)
- ARIZ. REV. STAT. § 32-2199.01(D)
- ARIZ. REV. STAT. § 41-1092 et seq.
- ARIZ. ADMIN. CODE R2-19-119
- Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
21F-H2121049-REL Decision – 916848.pdf
21F-H2121049-REL Decision – 917026.pdf
Questions
Question
Does the HOA's duty to maintain common areas end strictly at the property line?
Short Answer
No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.
Detailed Answer
The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.
Alj Quote
The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.
Legal Basis
CC&Rs Article IV
Topic Tags
- maintenance
- common_area
- liability
Question
Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?
Short Answer
Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.
Detailed Answer
The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.
Alj Quote
Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs
Legal Basis
Contract Law / CC&Rs
Topic Tags
- vendor_reliance
- negligence
- defenses
Question
What is the 'burden of proof' for a homeowner in an administrative hearing?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- burden_of_proof
- evidence
- procedure
Question
Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?
Short Answer
Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.
Detailed Answer
The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.
Alj Quote
Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'
Legal Basis
Statutory Authority
Topic Tags
- remedies
- injunctive_relief
- alj_powers
Question
If I win my hearing against the HOA, can I get my filing fee back?
Short Answer
Yes, the ALJ can order the HOA to reimburse the filing fee.
Detailed Answer
In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.
Legal Basis
Administrative Order
Topic Tags
- fees
- reimbursement
- costs
Question
What kind of damage is required to prove the HOA failed to maintain the common area?
Short Answer
The homeowner must show actual damage, harm, or financial burden caused by the condition.
Detailed Answer
The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.
Alj Quote
The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.
Legal Basis
Evidence of Damages
Topic Tags
- damages
- nuisance
- evidence
Question
Who has the authority to hear disputes between a homeowner and an HOA?
Short Answer
The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).
Detailed Answer
Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.
Alj Quote
The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102
Topic Tags
- jurisdiction
- adre
- oah
Case
- Docket No
- 21F-H2121049-REL
- Case Title
- Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
- Decision Date
- 2021-10-12
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Does the HOA's duty to maintain common areas end strictly at the property line?
Short Answer
No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.
Detailed Answer
The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.
Alj Quote
The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.
Legal Basis
CC&Rs Article IV
Topic Tags
- maintenance
- common_area
- liability
Question
Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?
Short Answer
Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.
Detailed Answer
The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.
Alj Quote
Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs
Legal Basis
Contract Law / CC&Rs
Topic Tags
- vendor_reliance
- negligence
- defenses
Question
What is the 'burden of proof' for a homeowner in an administrative hearing?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- burden_of_proof
- evidence
- procedure
Question
Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?
Short Answer
Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.
Detailed Answer
The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.
Alj Quote
Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'
Legal Basis
Statutory Authority
Topic Tags
- remedies
- injunctive_relief
- alj_powers
Question
If I win my hearing against the HOA, can I get my filing fee back?
Short Answer
Yes, the ALJ can order the HOA to reimburse the filing fee.
Detailed Answer
In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.
Legal Basis
Administrative Order
Topic Tags
- fees
- reimbursement
- costs
Question
What kind of damage is required to prove the HOA failed to maintain the common area?
Short Answer
The homeowner must show actual damage, harm, or financial burden caused by the condition.
Detailed Answer
The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.
Alj Quote
The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.
Legal Basis
Evidence of Damages
Topic Tags
- damages
- nuisance
- evidence
Question
Who has the authority to hear disputes between a homeowner and an HOA?
Short Answer
The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).
Detailed Answer
Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.
Alj Quote
The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102
Topic Tags
- jurisdiction
- adre
- oah
Case
- Docket No
- 21F-H2121049-REL
- Case Title
- Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
- Decision Date
- 2021-10-12
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Rodney Kirby (petitioner)
- Patricia Kirby (petitioner)
Respondent Side
- Lydia Peirce Linsmeier (HOA attorney)
Carpenter, Hazelwood, Delgado & Bolen LLP - Kaylee Ivy (HOA attorney)
Carpenter, Hazelwood, Delgado & Bolen LLP - Regis Salazar (witness)
Neutral Parties
- Jenna Clark (ALJ)
Office of Administrative Hearings - Judy Lowe (Commissioner)
Arizona Department of Real Estate
