Case Details

– Petitioner: Susan L. Jarzabek
– Respondent: Hillcrest Improvement Association #2
– Case Number: [Not provided in the text]
– Date and Time of Hearing: November 5, 2021
– Judge’s Name: Thomas Shedden
– Petitioner Successful: No

Case Description

The case involved a dispute between Susan L. Jarzabek and the Hillcrest Improvement Association #2 (the Respondent) regarding the enforcement of community rules and regulations, specifically concerning an assessment of attorney’s fees that Ms. Jarzabek claimed were unjustly charged to her. The genesis of the dispute lies in a complaint from a neighbor about a tree on Ms. Jarzabek’s property that allegedly caused damage by overhanging onto their property.

On September 15, 2021, the Arizona Department of Real Estate issued a Notice of Hearing, and the case proceeded to a hearing on November 5, 2021, presided over by Administrative Law Judge Thomas Shedden. During the hearing, Ms. Jarzabek represented herself, while the Respondent was represented by attorney Haidyn DiLorenzo. The Association’s Board President, Robert Cody, testified on behalf of the Respondent.

Ms. Jarzabek alleged that the Hillcrest Improvement Association had violated its own enforcement policies by improperly charging her attorney fees without following the requisite notice procedures. She contended that according to the community’s CC&Rs (Covenants, Conditions & Restrictions) Article 1, Section 10 and the Enforcement, Fines and Appeals Policy, she was entitled to have received two warning notices and a certified letter before any legal action involving attorney fees was taken against her.

The evidence presented indicated that the Association sent out a certified letter on January 15, 2019, but it was addressed to John Jarzabek, Susan’s husband, and was never claimed by either party, resulting in its return. Ms. Jarzabek asserted she had not received proper notice of any alleged violations until the involvement of the law firm, which commenced action via letters in 2019.

The Enforcement Policy of the Association stated the protocol for notices of violation, including the responsibility of the owner of record for any legal fees incurred. Ms. Jarzabek maintained that she was denied due process due to the lack of adequate notice of the alleged violations.

Ultimately, Judge Shedden found that Ms. Jarzabek did not meet her burden of proof to demonstrate that the Association had violated its policy, specifically noting that the policy did not require two notices prior to attorney involvement. Thus, the Administrative Law Judge dismissed her petition, highlighting that the decision was binding unless appealed through a request for rehearing within the specified timeframe.

Analysis Of The Case’S Outcome

In this case, the petitioner, Susan L. Jarzabek, lost her petition against the Hillcrest Improvement Association #2, primarily based on a finding that she did not meet her burden of proof in demonstrating that the Association violated its Enforcement, Fines, and Appeals Policy (the “Policy”).

1. Contractual Terms: The Administrative Law Judge (ALJ) highlighted that the Policy is part of the contractual agreement between the parties. As such, each party must comply with its terms. Importantly, the Policy did not stipulate that the Association was required to provide two warning notices before escalating a matter to attorney involvement. Instead, it allowed escalation without those multiple notifications, given that the initial notice procedures could be ignored upon an escalation to legal actions (ARS Section 32-2199.02).

2. Burden of Proof: The burden of proof for petitioners in such cases is governed by the standard of a “preponderance of the evidence.” While Ms. Jarzabek claimed she was not properly notified about the alleged violations, the evidence submitted did not convincingly support her assertion, particularly since the letter addressed to John Jarzabek did not meet the notification requirements due to the improper naming conventions.

3. Filing of Additional Notices: The ALJ pointed out that there was a lack of documented evidence that the Association had sent sufficient notices of violation to Ms. Jarzabek prior to involving legal counsel. However, the absence of evidence could be detrimental to her case because the burden was on her to show that violations occurred as claimed.

4. Policy Interpretation: The ALJ concluded that Ms. Jarzabek’s understanding of the Policy’s required procedures was incorrect, and without clear evidence of a violation of rights, her petition was dismissed.

Recommendations For The Petitioner

1. Document Collection: Ms. Jarzabek could have enhanced her position by ensuring she had thorough documentation of all communications received or sent related to the enforcement matters prior to seeking redress. She should have requested and retained all copies of notices sent by the Association.

2. Preliminary Demands: Engaging in discussions with the Association’s Board members could have allowed her to clarify any misunderstandings and possibly resolve disputes before escalating to formal proceedings.

3. Legal Representation: Whether it is in a consultation capacity or actively representing her interests, engaging an attorney from the outset may have also strengthened her case by ensuring proper procedural arguments were made and adequate documentation was collected.

4. Clear Communication: Establishing clear lines of communication, particularly if there are co-owners, would help ensure all parties understand the notices sent concerning CC&R violations.

5. Request for Compliance Documentation: The petitioner should formally request the HOA to provide all materials that lead to fines, including correspondence that may have been misplaced.

Conclusion And Advice For Similar Cases

For similar cases, it is crucial to thoroughly understand the procedural and substantive rights provided within the CC&Rs and the Policy governing HOA matters. Petitioners should be meticulous in gathering all evidence and documentation and should ensure that all correspondence is accurate and clear in its recipient details. Additionally, seeking advice or representation from an HOA attorney early in the process can help individuals present their case effectively, establishing a stronger foundation to challenge HOA enforcement actions.