Case Summary
| Case ID |
21F-H2120009-REL |
| Agency |
ADRE |
| Tribunal |
OAH |
| Decision Date |
2020-12-17 |
| Administrative Law Judge |
Kay A. Abramsohn |
| Outcome |
loss |
| Filing Fees Refunded |
$500.00 |
| Civil Penalties |
$0.00 |
Parties & Counsel
| Petitioner |
John D Klemmer |
Counsel |
— |
| Respondent |
Caribbean Gardens Association |
Counsel |
Nicole D. Payne, Esq., Lydia A. Pierce Linsmeier, Esq. |
Alleged Violations
CC&Rs Article 1, Sections 1.5 and 1.8; Article 3, Section 3.4; Article 4, Section 4.1; Article 8, Section 8.1; and, Article 12, Section 12.4
Outcome Summary
The Petition was dismissed because the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent Association violated the cited CC&R provisions by refusing to manage the disputed area, which the ALJ determined was a limited common element.
Why this result: The Petitioner lost because the area in dispute was determined to be a 'limited common element' (a balcony serving Unit 207) under Arizona statute (A.R.S. § 33-1212(A)), not a 'common area' the Association was required to manage under the referenced CC&Rs.
Key Issues & Findings
Refusal to manage, operate, maintain and administer common area
Petitioner alleged the HOA violated multiple CC&Rs by refusing to maintain an area between Unit 206 and Unit 207, which he claimed was a common area. The HOA argued the area was a limited common element. The ALJ concluded, relying on A.R.S. § 33-1212(A), that the disputed area was a limited common element (a balcony) allocated exclusively to Unit 207, thus Petitioner failed to establish a CC&R violation.
Orders: Petitioner's Petition is dismissed. Petitioner bears his $500.00 filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
- A.R.S. § 33-1212(A)
- CC&Rs Article 1, Section 1.5
- CC&Rs Article 1, Section 1.6
- CC&Rs Article 3, Section 3.4
- CC&Rs Article 4, Section 4.1
- CC&Rs Article 8, Section 8.1
- CC&Rs Article 12, Section 12.4
Analytics Highlights
Topics: condominium, common elements, limited common elements, balcony dispute, CC&R violation, A.R.S. 33-1212
Additional Citations:
- A.R.S. § 33-1212
- A.R.S. § 33-1218
- A.R.S. Title 33, Chapter 16
- A.A.C. R2-19-119
- CC&Rs Article 1, Sections 1.5, 1.8
- CC&Rs Article 3, Section 3.4
- CC&Rs Article 4, Section 4.1
- CC&Rs Article 8, Section 8.1
- CC&Rs Article 12, Section 12.4
Decision Documents
21F-H2120009-REL Decision – 843358.pdf
Uploaded 2026-01-23T17:35:00 (129.8 KB)
Briefing Doc – 21F-H2120009-REL
Briefing Document: Klemmer v. Caribbean Gardens Association
Executive Summary
This document synthesizes the findings and decision in the administrative case of John D. Klemmer v. Caribbean Gardens Association (No. 21F-H2120009-REL). The core of the dispute was the legal classification of an outdoor space located between two condominium units. The Petitioner, a unit owner, argued the space was a “common area” that the Association was legally obligated to manage under its governing documents (CC&Rs). The Respondent Association countered that the space was a “balcony” or “limited common element” for the exclusive use of the adjacent unit owner.
The Administrative Law Judge (ALJ) ultimately dismissed the petition. While the Association’s 1973 CC&Rs and the official Plat document were ambiguous regarding the space, the decision hinged on the application of a later state statute, Arizona Revised Statutes (A.R.S.) § 33-1212. This statute defines balconies designed to serve a single unit as “limited common elements” allocated exclusively to that unit. Because the disputed area was only accessible from a single unit (Unit 207), the ALJ concluded it met this statutory definition. Consequently, the Petitioner failed to prove by a preponderance of the evidence that the Association had violated its CC&Rs by not treating the space as a general common area.
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Case Overview
Case Name
John D Klemmer v. Caribbean Gardens Association
Case Number
21F-H2120009-REL
Jurisdiction
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge Kay A. Abramsohn
Hearing Date
November 6, 2020
Decision Date
December 17, 2020
Petitioner
John D. Klemmer (Unit 101 Owner), representing himself
Respondent
Caribbean Gardens Association, represented by Nicole D. Payne, Esq.
Fundamental Dispute: The case centered on whether the Caribbean Gardens Association violated its Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by refusing to manage, operate, and maintain an outdoor area located on the second level between Units 206 and 207, which the Petitioner claimed was a common area belonging to all 40 unit owners.
Petitioner’s Position (John D. Klemmer)
The Petitioner’s case rested on the argument that the disputed area was a “common area” or “common element” as defined by the Association’s governing documents.
• Core Allegation: On April 15, 2020, the Caribbean Board violated multiple sections of its CC&Rs by refusing to administer a common area.
• Basis of Claim: The Petitioner argued that all space not explicitly delineated on the official Plat document as an “Apartment,” “patio,” or “balcony” must be considered a common area. The area in question is blank on the Plat.
• Ownership Argument: Each of the 40 unit owners possesses an “undivided ownership interest in the common areas and [common] elements.” He contended that if the Board did not acknowledge ownership, this common area would be lost to its rightful owners.
• Evidence of Misuse: The Petitioner presented photographic evidence showing that the owners of Unit 207 were exclusively occupying the space as if it were another room, adding furniture, walls, and making improvements to the exterior walls of Unit 206.
• Cited CC&R Violations: The petition alleged violations of the following articles:
◦ Article 1, Sections 1.5 and 1.8: Definitions of “Apartment” and “Plat.”
◦ Article 3, Section 3.4: Requirement for the Association to manage Common Elements.
◦ Article 4, Section 4.1: Vests title of Common Elements in the owners.
◦ Article 8, Section 8.1: Pertains to encroachments.
◦ Article 12, Section 12.4: Binds all owners to the Declaration.
Respondent’s Position (Caribbean Gardens Association)
The Association denied the allegations, arguing that the space was not a common area under its purview.
• Core Defense: The disputed area is not a common area but is instead a “balcony” attached to Unit 207, or alternatively, a “limited common element” for the exclusive use of the Unit 207 owners.
• Testimony: Board Member Alex Gomez testified that the Board’s position is that the area is a balcony. He further stated that the Association has never maintained any balconies within the community, including the one in question.
• Procedural Motions: The Association initially filed a Motion to Dismiss and a Motion for Summary Judgment, arguing that the tribunal lacked jurisdiction, the Petitioner was seeking relief that couldn’t be granted (declaratory and injunctive), and that other procedural and constitutional issues existed. These motions were denied by the tribunal.
Findings of Fact and Evidence
The ALJ established the following key facts based on the hearing record:
• Description of Disputed Area: The space is a concrete slab on the second level, located between the exterior walls of Unit 206 and Unit 207. It includes outside iron railings that fence it off.
• Exclusive Access: The area is not a staircase landing and can only be accessed through a door from a room within Unit 207. This access is an original feature of the building’s construction.
• Status on the Plat: The official Plat document, which defines the boundaries of apartments and their associated balconies and patios, is blank in the location of the disputed area. It is not specifically delineated in any way.
• Current Use: Photographic evidence confirmed the space contains furniture and other decorative items, indicating exclusive use by the occupants of Unit 207.
Legal Analysis and Conclusion of the Administrative Law Judge
The ALJ’s decision was based on an interpretation of both the community’s CC&Rs and overriding state law.
• Burden of Proof: The Petitioner, Mr. Klemmer, bore the burden of proving by a preponderance of the evidence that the Association had violated the specified CC&R provisions.
• Ambiguity in Governing Documents: The judge acknowledged a conflict in the 1973 CC&Rs.
◦ Article 1.5 defines an “Apartment” by its depiction on the Plat, which does not include the disputed area.
◦ Article 1.6 defines “Common Elements” as “all other portions of the Property except the Apartments.” This definition would logically include the undelineated disputed area.
• Application of State Statute: The decisive factor was the application of A.R.S. § 33-1212, a statute enacted in 1985, after the CC&Rs were recorded. The judge focused on subsection 4:
• Final Conclusion: The ALJ concluded that the disputed area fits the statutory description of a balcony “designed to serve a single unit,” as it is only accessible from Unit 207. Therefore, under Arizona law, it is classified as a “limited common element” allocated exclusively to that unit. Because it is not a general common area, the Association had no obligation to manage it as such. The Petitioner thus failed to establish a violation of the CC&Rs.
Final Order
Based on the analysis, the Administrative Law Judge issued the following orders on December 17, 2020:
1. IT IS ORDERED that Petitioner’s Petition is dismissed.
2. IT IS FURTHER ORDERED that Petitioner bears his $500.00 filing fee.
Study Guide – 21F-H2120009-REL
Study Guide: Klemmer v. Caribbean Gardens Association
This guide provides a detailed review of the Administrative Law Judge Decision in the case of John D. Klemmer v. Caribbean Gardens Association, No. 21F-H2120009-REL. It includes a quiz with an answer key to test comprehension, a set of essay questions for deeper analysis, and a comprehensive glossary of key legal and case-specific terms.
Quiz: Short-Answer Questions
Answer each of the following questions in 2-3 sentences based on the information provided in the case document.
1. Who are the primary parties involved in this administrative hearing, and what are their respective roles?
2. What was the central allegation made by the Petitioner, John D. Klemmer, in his petition filed on August 21, 2020?
3. Describe the specific physical location and characteristics of the disputed area at the heart of this case.
4. On what grounds did the Petitioner argue that the disputed area should be considered a “common area”?
5. What was the initial position of the Caribbean Gardens Association Board regarding the status of the disputed area, as testified by Board Member Alex Gomez?
6. Before the hearing, what arguments did the Respondent make in its Motion for Summary Judgment?
7. How do the CC&Rs define an “Apartment” versus “Common Elements”?
8. Which specific Arizona Revised Statute (A.R.S.) did the Administrative Law Judge ultimately rely upon to classify the disputed area?
9. What was the final conclusion of the Administrative Law Judge regarding the nature of the disputed area?
10. What was the final recommended order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties are John D. Klemmer, the Petitioner who brought the complaint, and the Caribbean Gardens Association, the Respondent and condominium community association. Mr. Klemmer represented himself, while the Association was represented by counsel, Nicole D. Payne, Esq.
2. The Petitioner alleged that on April 15, 2020, the Caribbean Board violated its CC&Rs by refusing to manage, operate, maintain, and administer a specific “common area.” He claimed this refusal would lead to the loss of the area to its rightful owners, the 40 unit owners of Caribbean Gardens.
3. The disputed area is located on the second level of the building, between the exterior walls of Unit 206 and Unit 207. It consists of a concrete slab with attached iron railings and can only be accessed through a door from Unit 207.
4. The Petitioner argued the area was a “common area” because it was not specifically delineated on the Plat document as part of an apartment, patio, or balcony. He contended that any space not explicitly designated as part of a unit on the Plat must therefore be a common element belonging to all 40 unit owners.
5. Board Member Alex Gomez testified that the Board’s position was that the disputed area is not a common area but is a “balcony” attached to Unit 207. He stated that the Association has never maintained any balconies, including the one in question.
6. In its Motion for Summary Judgment, the Respondent argued that the Petitioner was seeking relief that the Tribunal could not grant, that he should have filed a derivative action, and that he had not paid sufficient filing fees for multiple issues. The Respondent also challenged the constitutionality of the Enabling Statutes and the jurisdiction of the Department and the Tribunal.
7. Article 1, Section 1.5 of the CC&Rs defines an “Apartment” as the space enclosed by the planes shown on the Plat, including any patio or balcony areas identified on said Plat. In contrast, Article 1, Section 1.6 defines “Common Elements” as all other portions of the Property except the Apartments, including specific items like pools and landscaping.
8. The Judge relied on A.R.S. § 33-1212, which states that balconies and other fixtures designed to serve a single unit but located outside its boundaries are “limited common elements allocated exclusively to that unit.”
9. The Administrative Law Judge concluded that the disputed area must be a balcony “designed to serve a single unit, but located outside the unit’s boundaries.” Therefore, it is considered a limited common element, and the Petitioner did not establish that the Caribbean Gardens Association had violated any CC&R provisions.
10. The recommended order was that the Petitioner’s Petition be dismissed. It was further ordered that the Petitioner bear his own $500.00 filing fee.
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Essay Questions
The following questions are designed for longer, more analytical responses. No answers are provided.
1. Analyze the conflicting interpretations of the disputed area presented by the Petitioner and the Respondent. How did their respective readings of the CC&Rs and the Plat document lead to their opposing conclusions?
2. Discuss the critical role of the Plat document in this dispute. Explain how the blank space on the Plat between Units 206 and 207 created an ambiguity that was central to the arguments of both parties.
3. Trace the legal reasoning employed by Administrative Law Judge Kay A. Abramsohn. Detail her process of weighing the definitions in the 1973 CC&Rs against the provisions of the 1985 Arizona Revised Statutes to reach a final decision.
4. Evaluate the arguments raised by the Caribbean Gardens Association in its Motion for Summary Judgment. Although the motion was not granted, what significant legal and jurisdictional challenges did it present against the Petitioner’s case and the hearing body’s authority?
5. This case highlights a tension between a condominium’s original governing documents (the 1973 Declaration) and subsequent state law (the 1985 Condominium statutes). Discuss how this dynamic influenced the outcome and what it reveals about the hierarchy of legal authority in condominium governance.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over an administrative hearing and issues a written decision. In this case, the ALJ was Kay A. Abramsohn.
Apartment
As defined by Article 1, Section 1.5 of the CC&Rs, it is a part of the Property intended for independent use as a dwelling unit, consisting of the space enclosed by the planes shown on the Plat, including any patio and balcony areas identified on that Plat.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions, the governing legal documents for the Caribbean Gardens community. These were originally recorded in 1973.
Common Elements
As defined by Article 1, Section 1.6 of the CC&Rs, this term includes “general common elements” as defined in the former A.R.S. § 33-551, along with specific areas like parking, yards, the swimming pool, and “all other portions of the Property except the Apartments.”
Horizontal Property Regime
The legal framework governing the property, established under A.R.S. § 33-551 through § 33-561 at the time of the 1973 Declaration. These statutes were later repealed and replaced by the current Condominium laws.
Limited Common Elements
A legal classification defined in A.R.S. § 33-1212. It refers to fixtures like porches, balconies, patios, and entryways that are designed to serve a single unit but are located outside that unit’s boundaries, and are therefore allocated exclusively to that unit.
Petition
The formal, single-issue legal document filed by John D. Klemmer with the Department to initiate the dispute, alleging that the Caribbean Board violated its CC&Rs.
Petitioner
The party initiating a legal action by filing a petition. In this case, John D. Klemmer, a resident of Unit 101.
The official two-page survey map of the Property and all Apartments, attached to the Declaration as Exhibit “B.” It delineates the boundaries of individual units and other areas within the community.
Preponderance of the Evidence
The standard of proof the Petitioner was required to meet. It means the evidence presented must be more convincing than the opposing evidence, showing the fact in question is more probable than not.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, the Caribbean Gardens Association.
Tribunal
A term used in the decision to refer to the Arizona Office of Administrative Hearings (OAH), the state agency authorized to hear and decide the contested matter.
Blog Post – 21F-H2120009-REL
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Case Participants
Petitioner Side
- John D. Klemmer (petitioner)
represented himself
Respondent Side
- Nicole D. Payne (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
- Alex Gomez (board member)
Caribbean Board
testified at hearing
- Lydia A. Pierce Linsmeier (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Neutral Parties
- Kay A. Abramsohn (ALJ)
- Judy Lowe (Commissioner)
Arizona Department of Real Estate
