motion to supplement petition...2015/08/01 · candlewood estates at troon north subdivision and it...
TRANSCRIPT
- 1 - Motion to Supplement Petition
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Carol M. Root 10457 E Monument Dr Scottsdale, AZ 85262-4600 (480) 515-9080 Petitioner
Carol M. Root
PRO SE
BEFORE THE ARIZONA
OFFICE OF ADMINISTRATIVE HEARINGS
CAROL M ROOT,
Petitioner,
v.
CANDLEWOOD ESTATES AT TROON NORTH HOMEOWNERS ASSOCIATION,
Respondent.
) ) ) ) ) ) ) ) ) ) ) ) )
Case No. HO 15-15/014 Docket No. 15F-H1515014BFS MOTION TO SUPPLEMENT PETITION
MOTION
Petitioner, Carol M. Root (hereinafter “Carol”) hereby submits
this motion to supplement her original petition to include her
husband Richard E. Root (hereinafter “Richard”) as a Co-Petitioner.
Response 2 of the “Frequently Asked Questions” on the
Department of Fire, Building and Life Safety’s web site states the
following:
- 2 - Motion to Supplement Petition
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“Prior to a matter being referred to the Office of Administrative Hearings (“OAH”) for a hearing, there can only be one Petitioner per petition. In the case of a homeowner, “Petitioner” refers to the owner(s) of an individual unit. Although two parties who co-own an individual unit may file a petition together, the owners of separate units cannot file one petition. Each must file an individual petition. In the case of a homeowner association, the Petitioner is the individual authorized to act on behalf of the condominium association or planned community association”. (Underline added for emphasis) Based on the above statement, Richard is allowed to be on the
petition if he is a co-owner of 10457 E Monument Dr, Scottsdale, AZ
(hereinafter “Root Home”). The Root Home is located in the
Candlewood Estates at Troon North Subdivision and it qualifies
Carol and Richard to be members of the Home Owners Association.
Richard has a “Community Property” interest in Root Home based
on Arizona Community Property laws (ARS–25-211 A. See Below).
“ARS 25-211. Property acquired during marriage as community property; exceptions; effect of service of a petition A. All property acquired by either husband or wife during the marriage is the community property of the husband and wife except for property that is: 1. Acquired by gift, devise or descent. 2. Acquired after service of a petition for dissolution of marriage, legal separation or annulment if the petition results in a decree of dissolution of marriage, legal separation or annulment. B. Notwithstanding subsection A, paragraph 2, service of a petition for dissolution of marriage, legal separation or annulment does not: 1. Alter the status of preexisting community property. 2. Change the status of community property used to acquire new property or the status of that new property as community property. 3. Alter the duties and rights of either spouse with respect to the management of community property except as prescribed pursuant to section 25-315, subsection A, paragraph 1, subdivision (a).
- 3 - Motion to Supplement Petition
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The definition of “Community Property” is as follows based on
the 9th Edition of Black’s Law Dictionary:
The above definition states that “Community Property” is
“assets owned in common by husband and wife…”.
Based on the above definition, Richard is a part owner of the
Root Home and he is eligible to be included as a Petitioner in the
Petition filed against Candlewood Estates at Troon North.
Therefore, Petitioner is requesting that Richard be added as a
co-petitioner for this Case.
REASON FOR REQUEST
When filing the Petition, there was some uncertainty by Carol
and Richard with regards to the differences between Warranty Deed
and Title to the property. Therefore I did not include Richard as a
co-petitioner. After a review of the Arizona Community Property
laws, Petitioner discovered that Richard in the rightful owner and
holds a legal claim and title to 50 percent of all of the community
- 4 - Motion to Supplement Petition
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property (including Root Home)and is therefore an owner of the
property in question under Arizona Law.
Petitioner’s initial plans for this Case had Carol acting as
counsel pro se for the hearings. However, recent health issues
limit Carol’s abilities to serve in this capacity. Therefore,
Petitioner’s decided that it would be best to request that Richard
be added to the Case as a co-petitioner and if approved, Richard
will handle the case as counsel pro se.
BACKGROUND
Carol and Richard are wife and husband. They have been
married for over 49 years. Richard is a Professional Engineer
registered in Arizona and he has an extensive background in legal
matters based on serving as an expert witness in numerous
construction cases.
Carol and Richard purchased the land with no improvements
identified as 10457 E Monument Dr, Scottsdale AZ (Phase 1 – Lot 33
of Candlewood Estates at Troon North) in 1993. This purchase was
made with community funds. A Warranty Deed was issued to Carol
indicating that it was her “sole and separate property” (Attachment
1). The Warranty Deed’s designation of “sole and separate property”
was confirmed by Richard with a filed Disclaimer Deed (Attachment
2). For this transaction, Richard gifted his share of the community
property funds used to purchase the land to Carol.
- 5 - Motion to Supplement Petition
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In early 1995, Carol and Richard decided to build a 4,120 sqft
two story house on the land Carol owned (Root Home). Prior to that
time, Community Property Funds were used to pay all taxes and fees
associated with owning the land. In the planning phase for the
house, it was decided that Richard would do all the design,
engineering, plans and construction supervision for the project.
Carol helped in the design phase and gifted back her “sole separate
ownership” of the lot to Community Property. Carol confirmed this
gift in a document notarized in May of 2015 (Attachment 3). It is
the petitioner’s understanding that couples in Arizona may gift
property back and forth to each other as often as they like (Bender
v. Bender (App.Div.1 1979) 123 Ariz. 90, 597 P.2d 993).
The Root Home was built in 1996 and 1997 and all funds for the
construction came from Community Property Funds. All funds
necessary to operate and maintain the Home from 1997 until today
have been paid for by Community Property Funds. Richard has
conducted 99 percent of all efforts for the Management and Control
of the Home.
From the date of initial planning (1995) until today, there
hasn’t been any “transactions for the acquisition, disposition or
encumbrance of the Root Home or any transactions of guaranty,
indemnity or suretyship of the Root Home. As a result, we have not
had to joinder the title of the property on a deed as required in
ARS 25-214 See Below) when one of the above events occur.
- 6 - Motion to Supplement Petition
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“ARS 25-214. Management and control A. Each spouse has the sole management, control and disposition rights of each spouse's separate property. B. The spouses have equal management, control and disposition rights over their community property and have equal power to bind the community. C. Either spouse separately may acquire, manage, control or dispose of community property or bind the community, except that joinder of both spouses is required in any of the following cases: 1. Any transaction for the acquisition, disposition or encumbrance of an interest in real property other than an unpatented mining claim or a lease of less than one year. 2. Any transaction of guaranty, indemnity or suretyship. 3. To bind the community, irrespective of any person's intent with respect to that binder, after service of a petition for dissolution of marriage, legal separation or annulment if the petition results in a decree of dissolution of marriage, legal separation or annulment.” Therefore the recorded deed for the Root Home on the Maricopa
County Recorder’s web site still shows Carol as the “sole and
separate” owner of the property even though that is not the case.
CONCLUSION
Arizona Community Property laws clearly establish that Richard
has at least a 50 percent legal interest in the house built on the
lot originally purchased by Carol. If the court accepts Carol’s
gift of 100 percent of the land back to Community Property, then
Richard owns 50 percent of both the house and the Lot.
In either case, Richard is an owner of the Root Home and is
therefore eligible to be a petitioner in actions brought before the
Arizona Office of Administrative Hearings through the Arizona
Department of Fire, Building and Life Safety.
