James and Shawna Larson, Petitioners, v. Tempe Gardens Townhouse Corporation, Respondent. - 17F-H171

Описание: This is a summary of the administrative hearing proceedings and final decision in the case 17F-H1717038-REL-RHG, a rehearing involving Petitioners James and Shawna Larson and Respondent Tempe Gardens Townhouse Corporation.

Procedural History

The matter began when the Larsons filed a petition alleging a violation of the Respondent's CC&Rs. Initially, the Petitioners' counsel admitted that no specific CC&R provision had been violated by the Respondent; rather, the Petition concerned a future, speculative threat by the Respondent to remove the Petitioners' patio cover and charge them for the cost.

Original Decision (17F-H1717038-REL): The Administrative Law Judge (ALJ) recommended dismissal on August 25, 2017, for lack of a justiciable controversy, finding that the Petitioners had failed to cite any provision the Respondent had currently violated. The ALJ determined that the Office of Administrative Hearings (OAH) lacked jurisdiction over speculative claims and suggested a declaratory judgment action in superior court for future disputes.

Rejection and Remand: The Commissioner of the Department of Real Estate rejected the ALJ's Recommendation of Dismissal on August 31, 2017. The Commissioner found the matter "ripe for adjudication" because the Respondent, in a prior letter, had alleged that the presence of the awning itself was a violation of the governing documents.

Rehearing Proceedings (17F-H1717038-REL-RHG)

Key Facts: The dispute centered on the Respondent's plan to repair and paint the buildings, which required homeowners with patio covers (including Petitioners) to remove them at their own expense to facilitate the work. The Petitioners' wood patio cover was categorized as a limited common element. The Respondent based its authority to demand removal on CC&R sections 9 and 9(b), which concern the maintenance and upkeep of building exteriors. The Petitioners argued the required removal was unreasonable, given the high cost estimates they received.

Key Arguments and Evidence:
The Respondent presented credible testimony that the painting project, which included necessary repairs, could not be completed properly and safely without removing the patio covers due to safety laws regarding the use of scaffolding. All five painting contractors required the covers to be removed. Furthermore, the Respondent was responsible for maintaining the building exteriors.

Legal Issues: The central legal issue was whether the Respondent had the authority to mandate the removal of the limited common element to complete necessary common area maintenance, and, if so, who was responsible for the cost. The ALJ noted that while the Respondent must act reasonably under the CC&Rs, the Tribunal should accord deference to HOA decisions regarding the maintenance and repair of common areas.

Final Decision and Outcome:
The ALJ concluded that the Respondent’s proposed plan for repairing and painting the buildings was reasonable. CC&R sections 9 and 9(b) provided sufficient authority for the Respondent to require the removal of the patio cover to complete the maintenance work.

Crucially, because the patio cover is defined as a limited common element, A.R.S. § 33-1255(C) mandates that common expenses associated with the maintenance or repair of a limited common element shall be assessed against the units benefited. Therefore, the Petitioners (James and Shawna Larson) were required to bear the cost of removing the patio cover and the cost of reinstallation, should they choose to reinstall it. The Petitioners' petition was dismissed, and the Respondent was deemed the prevailing party.

Case Details:
Case ID: 17F-H1717038-REL-RHG
Docket: 17F-H1717038-REL-RHG

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