Case Summary
| Case ID | 20F-H2019002-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2020-02-26 |
| Administrative Law Judge | Antara Nath Rivera |
| Outcome | none |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Jennie Bennett | Counsel | Maxwell Riddiough |
|---|---|---|---|
| Respondent | Catalina Del Rey Homeowners Association | Counsel | Nathan Tennyson |
Alleged Violations
CC&Rs Sections 12(c) and 12(h)(1)
Outcome Summary
The Petition was dismissed because the Petitioner failed to meet the burden of proof, as the backflow flap responsible for the sewage overflow was determined to be on the Petitioner’s private property (covered under CC&R Section 15) and not a common element area that the HOA was responsible for maintaining under CC&R Sections 12(c) or 12(h)(1).
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.
Key Issues & Findings
The Petitioner alleges that Catalina Del Rey Homeowners Association violated community documents CC&Rs Sections 12(c) and 12(h)(1) in a single-issue petition.
Petitioner claimed the HOA (Respondent) violated CC&Rs 12(c) and 12(h)(1) by refusing to compensate her for repairs to a malfunctioning backflow flap after experiencing a sewage overflow. Respondent argued the backflow flap was located on Petitioner's private property and was her responsibility under CC&R Section 15, especially since the prior Sewer Maintenance Policy was rescinded before the incident.
Orders: Petitioner Jennie Bennett’s Petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
- CC&Rs Section 12(c)
- CC&Rs Section 12(h)(1)
- CC&Rs Section 15
Analytics Highlights
- A.R.S. § 32-2199 et seq.
- ARIZ. REV. STAT. Section 41-1092.07(G)(2)
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- A.A.C. R2-19-119(B)(2)
- A.R.S. § 32-2199.02(B)
- A.R.S. § 41-1092.08(H)
- A.R.S. § 12-904(A)
Audio Overview
Decision Documents
20F-H2019002-REL-RHG Decision – 771959.pdf
Briefing Document: Bennett v. Catalina Del Rey Homeowners Association
Executive Summary
This document outlines the findings and decision in the case of Jennie Bennett v. Catalina Del Rey Homeowners Association, heard by the Arizona Office of Administrative Hearings. The central dispute concerned liability for the repair of a malfunctioning backflow valve that caused a sewage overflow in the petitioner’s residence. The petitioner, Jennie Bennett, alleged the Homeowners Association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by refusing to cover the repair costs.
The Administrative Law Judge dismissed the petition, ruling in favor of the HOA. The decision hinged on the physical location of the backflow valve. Evidence, including a plat map and photographs, established that the valve was situated on Ms. Bennett’s private property, not in a common area. Consequently, under Section 15 of the CC&Rs, maintenance and repair were deemed the homeowner’s responsibility.
A key factor in the dispute was the HOA’s rescission of a “Sewer Maintenance Policy” just 18 days before the incident. This policy had previously obligated the HOA to share repair costs. However, the Judge found that once the policy was rescinded, the HOA was no longer bound by its terms. The petitioner failed to meet the burden of proof to demonstrate that the backflow valve was a common element covered by the CC&Rs, leading to the dismissal of her case.
Case Background
• Case Number: 20F-H2019002-REL-RHG
• Hearing Date: February 7, 2020
• Decision Date: February 26, 2020
• Presiding Judge: Administrative Law Judge Antara Nath Rivera
Parties Involved
Name / Organization
Representation
Petitioner
Jennie Bennett
Maxwell Riddiough, attorney
Respondent
Catalina Del Rey Homeowners Association
Nathan Tennyson, attorney (Brown|Olcott, PLLC)
Management
Cadden Community Management
(Managed Respondent)
Witness
Vanessa Lubinsky
Community Manager for Respondent
Allegation
On July 10, 2019, Jennie Bennett filed a petition alleging that the Catalina Del Rey Homeowners Association violated Sections 12(c) and 12(h)(1) of the community’s CC&Rs. These sections pertain to the HOA’s responsibility to maintain common elements, including sewer lines.
Timeline of Key Events
March 2017
The HOA adopts a “Sewer Maintenance Policy” outlining the process for sewage maintenance issues.
February 13, 2019
The HOA Board rescinds the Sewer Maintenance Policy after receiving legal guidance.
March 3, 2019
Petitioner Jennie Bennett experiences a sewage overflow caused by a malfunctioning backflow valve.
March – May 2019
Petitioner presents a repair estimate to the HOA Board, which does not address her concerns at the March, April, or May meetings.
May 22, 2019
The HOA responds to the Petitioner, but only after receiving a letter from her attorney.
July 10, 2019
Petitioner files a formal dispute petition with the Arizona Department of Real Estate.
Undated
Petitioner gathers 97 signatures on a grassroots petition asking the HOA to cover the repair costs due to the lack of notice.
February 7, 2020
The administrative hearing is held.
February 26, 2020
The Administrative Law Judge issues a decision dismissing the petition.
Central Arguments and Evidence
The case centered on whether the backflow valve was a common element maintained by the HOA or a fixture on private property maintained by the homeowner.
Petitioner’s Position (Jennie Bennett)
• Core Claim: The HOA was responsible for the repair cost based on its previous Sewer Maintenance Policy.
• Lack of Notification: The Petitioner testified that she was not notified that the policy had been rescinded on February 13, 2019, just two weeks before her sewage backup.
• HOA Inaction: The HOA failed to address her requests for reimbursement at three consecutive board meetings, only responding after her attorney sent a formal letter.
• Community Support: The Petitioner submitted a grassroots petition signed by 97 residents. The petition stated: “My shower backed up with feces March 3-my plumber said my flap on the back flow was gone-needed to be replace… I was told by Daniel at Cadden that the Board had rescinded the sewer policy Feb 13th-No written notice had gone out. I am asking to be covered because of the 2 week time frame and no notice.”
• Fear of Recurrence: Though no further overflows occurred, the Petitioner stated she “lived in fear of a future overflow.”
Respondent’s Position (Catalina Del Rey HOA)
• Core Claim: The backflow valve is located on the Petitioner’s private property and is therefore her responsibility under Section 15 of the CC&Rs.
• Physical Evidence: The HOA presented a plat map and photographs showing the backflow valve was located within the Petitioner’s property lines, “next to Petitioner’s walk up to her front door,” and not on common elements.
• Legal Justification for Policy Change: The HOA explained that the Sewer Maintenance Policy was rescinded after receiving legal guidance that it conflicted with the CC&Rs. The guidance clarified that backflow flaps are within individual homeowner units, making them a homeowner’s responsibility under Section 15.
• Procedural Correctness: HOA manager Vanessa Lubinsky testified that the rescission was a policy change, not a CC&R amendment, and therefore did not require a homeowner vote. She stated that notice of the rescission was sent to homeowners via both email and postal mail (postcards).
• Issue Classification: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”
Analysis of Governing Documents (CC&Rs)
The judge’s decision rested on the interpretation of three key sections of the Declaration of Covenants, Conditions, Restrictions and Easements.
• Section 12(c): HOA Maintenance of Common Areas
◦ This section establishes the HOA’s duty to maintain common sewer lines.
• Section 12(h)(1): Assessments for Common Elements
◦ This section empowers the HOA to charge homeowners for the maintenance of common elements, including sewers.
• Section 15: Homeowner Utility Maintenance
◦ This section was pivotal, assigning responsibility for fixtures on private property to the homeowner.
Administrative Law Judge’s Decision and Rationale
The Administrative Law Judge ultimately found that the Petitioner failed to prove her case by a “preponderance of the evidence.”
Key Findings
1. Burden of Proof: The Petitioner, Jennie Bennett, bore the burden of proving that the HOA had violated the community documents.
2. Location is Determinative: The evidence presented, particularly the photos and plat map, conclusively showed that the malfunctioning backflow flap was located on the Petitioner’s private property and not in a common area.
3. Policy Rescission was Valid: The Judge acknowledged the timing of the policy change was “extremely unfortunate” for the Petitioner. However, once the Sewer Maintenance Policy was rescinded, the HOA was no longer obligated to share repair costs. The CC&Rs became the sole governing authority on the matter.
4. No Violation of CC&Rs: Because the flap was not a common element, the HOA’s refusal to pay for the repair did not constitute a violation of Sections 12(c) or 12(h)(1). The responsibility fell to the homeowner under Section 15.
Final Order
“IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.”
The decision is binding on the parties. Any appeal must be filed with the superior court within 35 days from the date the order was served.