Case Details

– Petitioner: Emery A. Herbert
– Respondent: Lakebrook Villas II Homeowners Association Inc.
– Case Number: Docket No. 22F-2222047-REL
– Date and Time of Hearing: July 11, 2022
– Judge’s Name: Kay A. Abramsohn
– Was the Petitioner Successful? No

Case Description

This administrative hearing involved Petitioner Emery A. Herbert and Respondent Lakebrook Villas II Homeowners Association Inc., focusing on two petitions filed by the Petitioner concerning alleged violations of Arizona Revised Statutes and the Association’s governing declaration regarding maintenance responsibilities and financial assessments.

On April 20, 2022, Petitioner filed her first petition (Petition1) with the Arizona Department of Real Estate, asserting that the Association failed to comply with A.R.S. § 33-1247 when it did not promptly address roof leaks in her unit after she reported the issue on March 29, 2022. The Petitioner argued that the Association’s delayed action constituted a violation of its obligations concerning the maintenance of common areas, specifically the roofs designated as communal property. The Association had communicated that a full roofing project was planned but would not occur for several months, which left homeowners, including the Petitioner, in distress as the roof issues persisted.

Petitioner requested that the Tribunal intervene and mandate the Association to either carry out the necessary repairs or account for its failure to do so. Furthermore, she filed a second petition (Petition2) asserting that the Association had improperly raised monthly HOA fees without obtaining the required 75% homeowner vote for a special assessment as stipulated in Section 9 of the Association’s Declaration. The Association’s excuse for raising dues to cover the costs of the roof replacements was contested by the Petitioner, who insisted that the project should be classified as a “capital improvement.”

At the hearing, while the Petitioner contended the Association’s actions violated both the state statute and the governing declaration, the Respondent maintained that it was fulfilling its duties by addressing the roofing issues community-wide and that the timing of repairs fell within its discretion. The Association presented evidence, indicating it had taken actions dating back to December 2021 concerning roof maintenance and that the inspections and evaluations justified their approach to the financial assessments for the repairs, which they deemed necessary.

The Administrative Law Judge, Kay A. Abramsohn, ultimately determined that the Petitioner did not meet her burden of proof regarding the alleged violations, noting the Association acted with reasonable deliberation concerning the community’s overall roof repair needs. Consequently, both of the Petitioner’s petitions were dismissed, and she was ordered to bear the filing fees associated with the case. The decision underscored the legal authority of the homeowners’ association to manage common area maintenance and impose necessary financial assessments for such repairs within the bounds of its governing documents.

Analysis Of The Petitioner’S Case

The Petitioner, Emery Herbert, Presented Two Petitions Against The Lakebrook Villas Ii Homeowners Association (The “Association”) Concerning Alleged Violations Of Arizona Law And The Association’S Own Declaration Governing Community Affairs. The Primary Focus Of The Case Centered Around Two Statutes

1. A.R.S. § 33-1247(A) – concerning the Association’s duty to provide prompt maintenance and repair of common elements (in this instance, the roof leaks affecting Herbert’s unit).
2. Section 9 of the Declaration – which outlines the requirements for imposing special assessments for capital improvements.

Key Findings

1. **Failure To Prove Prompt Repair (Petition1)**

– The Administrative Law Judge found that the Association acted with reasonable deliberation regarding the roof maintenance issue affecting Herbert’s unit. The judge noted that the Association had already begun addressing roof issues in the community before Herbert filed her petition, as evidenced by the contracts and bids for repairs initiated well before the leak was reported by Herbert.
– Under A.R.S. § 33-1247(A), the term “prompt” was found to be misapplied by Herbert. The statute primarily applies to actions necessitating immediate remediation post-access for maintenance rather than preemptively addressing reported leaks when the Association was already planning repairs.

2. **Special Assessment Compliance (Petition2)**

– The judge concluded Herbert failed to establish that the increase in monthly dues constituted a “special assessment” requiring a 75% vote, as outlined in the Declaration. The Association’s actions were deemed to fall within their authoritative discretion regarding necessary expenses for common area management under Section 13 of the Declaration.
– The Administrative Law Judge sided with the Association, supporting their rationale of treating necessary roof replacement as common expenses, thus allowing them to alter assessments with proper governance.

Outcome

The Petitioner lost on both counts, with both petitions dismissed, and was responsible for the filing fees.

Recommendations For The Petitioner

1. Gather Comprehensive Evidence: The Petitioner could have strengthened her case with more detailed evidence, such as documentation showing the extent of the delays and any associated damages incurred as a result of the roof leaks.

2. Clarify Legal Arguments: It would be beneficial for the Petitioner to have consulted a lawyer to clarify the legal implications of the statutes and declarations invoked. The legal interpretation around “prompt repairs” and the definition of “special assessment” are nuanced and required more robust legal backing.

3. Timeline Awareness: The Petitioner should have a clear awareness of the Association’s ongoing maintenance efforts and timelines. Engaging in continuous dialogue and perhaps requesting updates through official channels would substantiate claims of negligence by illustrating ongoing management efforts.

4. Consider Alternative Dispute Resolution: Before filing formal petitions, considering mediation or other forms of dispute resolution might have resolved issues amicably with the Association, especially if it involved timing and urgency.

Advice For Similar Cases

– Document Everything: Homeowners facing similar issues with their HOA should meticulously document communications, repairs, and any commitments made by the Association. Noting the timeline and the response to reported issues is critical.
– Consult Legal Expertise Early On: Especially in community living situations with strict declarations and statutes guiding operations, engaging an expert earlier may help avoid missteps and misinterpretations of statutory requirements.
– Understand Your Rights Within the Community: Homeowners should familiarize themselves with their Association’s governance documents, including the CC&Rs and bylaws. Understanding operational procedures and their rights can empower homeowners in dispute situations.

Homeowners must balance their understanding of statutory requirements with the operational characteristics of their HOAs, as both elements are crucial when pursuing or defending against claims.