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February 18, 2003
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Case No: CV2003-003205 - Pointe Mountainside Golf v Monte Redd - Duplicate entry
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Arizona
Superior Court
County of Maricopa
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Pointe Mountainside Golf Community Association
Represented by: Gammage and Burnham
v.
Monta L. Redd
Represented by: Hebert Schenk P.C.
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Summary
This dispute centers around a failed real estate transaction where the Association is seeking to avoid the sale of property to defendant even though she expended significant time and cost in compliance with the conditions of sale.
Defendant purchased a home in July of 1999. The property was completely block fenced in and landscaped including drip systems. Defendant believed that the property line went to the block fence running along the back of her property. Defendant was not aware that the last 12' of the fenced area contained a sewer/trail easement and was actually owned by a Homeowners Association.
It was learned later that this development block fenced this property out of their community approximately 11 years ago and have refused to maintain or accept liability for it.
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Causes of Action: Plaintiff's Complaint - Ejectment; Quiet Title; Trespass; Declaratory and Injunctive Relief
Defendants Counterclaim - Breach of Contract; Trespass on Defendants property by Association dumping its water runoff in substantial rains.
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Judge: The Honorable Cathy Holt / although Plantiff has recently requested change of judge
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Lawsuit Text
PLANTIFFS' COMPLAINT/LAWSUIT
Count I - Ejectment
Association has a valid subsisting interest in Tract C and a right to immediate possession thereof. The Association is therefore entitled to recover Lot C from Redd
The Association has been damaged as a result of Redd's occupation of part of Tract C. Redd has damaged Lot C by, destroying and or modifying portions of the Association's block wall located on Tract C, and deprived the Association from the use and enjoyment of Lot C.
Count II - Quiet Title
Redd has claimed that she is entitled to purchase and possess a portion of Tract C and Tract N.
Association is credibly informed and believes that Redd makes some claim adverse to the Association's interests.
Association requested that Redd execute a quit claim deed with respect to Tract N and tendered to her five dollars for execution and delivery.
Count III - Declaratory Relief
Redd claims that she has a right to purchase a protion of Tract C and N.
There is an actual and justiciable controversy relating to Redd's claim that she may purchase a portion of Tract C and N.
Count IV - Trespass
Redd has intentionally entered Tract C and caused her personal property to enter Tract C.
Redd and or her personal property has intentionally remained on Tract C.
Redd has intentionally failed to remove from Tract C her property, which she has a duty to remove.
Redd has been asked to vacate Tract C, but has refused to do so and the Association is suffering damages as a result.
Redd acted deliberately, intentionally, and with reckless disregard, entitling plaintiffs to punitive damages.
DEFENDANTS COUNTERCLAIM
Breach of Contract
Redd entered into an Agreement to purchase real estate from the Pointe.
The Agreement contained certain stipulations, all of which Redd either fulfilled or was in the process of fulfilling when the Pointe refused to sell her the property.
The Pointe has breached the Agreement with Redd to purchase Tracts C and N.
Promissory Estoppel
Pointe promised to sell to Redd a portion of Tracts C and N.
It was reasonably foreseeable to the Pointe that Redd would rely upon these promises.
Redd spent significant time, effort and money in meeting the stipulations.
Redd has incurred a loss and or suffered detriment due to her reliance upon the representations made by the Pointe.
Breach of Implied Covenant of Good Faith and Fair Dealing
Pointe had a duty not to do anything that would prevent Redd from receiving the benefits of their Agreement.
Pointe breached the duty of good faith and fair dealing by, preventing Redd from fulfilling certain stipulations of the Agreement and refusing to premit Redd to purchase the property even though she had fulfilled those stipulations.
Pointe also attempted to obtain additional consideration from Redd by requiring she increase the amount of her offer even though there was already an agreement.
Declaratory Relief
Redd is entitled to purchase a portion of Tract C and N
Pointe has denied her right.
Trespass on Land
Redd is the owner of certain land which is adjacent to property owned by the Pointe.
Pointe has designed the drainage of its surface water so that the water is diverted or cast onto the land owned by Redd.
Pointe has intentionally intruded upon and substantially interfered with the Defendants use and enjoyment of her land.
The Point is subject ot liability to Redd for the trespass upon her property.
Summary of Lawsuit
This dispute centers around a failed real estate transaction where the Association is seeking to avoid the sale of property to defendant even though she expended significant time and cost in compliance with the conditions of sale.
Defendant purchased a home in July of 1999. The property was completely block fenced in and landscaped including drip systems. Defendant believed that the property line went to the block fence running along the back of her property. Defendant was not aware that the last 12' of the fenced area contained a sewer/trail easement and was actually owned by a Homeowners Association. It was learned later that this development block fenced this property out of their community approximately 11 years ago and have refused to maintain or accept liability for it. Homeowners on the same street of the defendant, north and south, have all been occupying and maintaining this easement for a substantial number of years. The HOA Board of Directors and their management company are fully aware of this and knew even before the defendant bought her property that the previous owners had been occuping this area. If in fact, the Board had been maintaining this area, and had required the previous owners before the defendant, to vacate, the defendant would have known this was a sewer/trail easement and that it did not belong to the property she wanted to buy, and she would not have bought it.
After purchasing her property the defendant hired a pool contractor who designed a pool, obtained permits and located the pool at the far end of the property. The City of Phoenix said there was a sewer easement there, however, they said they would not place a sewer in that location and they issued an encroachment permit to build the pool. The City of Phoenix Parks and Recreation physically walked this property before the defendants purchase and maintained there was no trail in this location. During the course of construction, a non recorded sewer line (12''PVC pipe) was hit and cracked. It was at this time that the defendant learned that this section of the property was not owned by her. Parks and Recreation, two months later, sent her a short letter stating there was a trail easement there and they were going to develope it now. The sewer line was immediately repaired at the defendants expense and the pool construction was discontinued.
The defendant contacted the President of the HOA regarding the possible purchase of this property. An offer was presented at a montly association meeting and an agreement was arrived at in which the Association included costly and time consuming stipulations. The process started taking much longer and costing much more than originally expected. After approximately 7 months the defendant proposed at another monthly meeting (April 2000), an amendment to the original purchase agreement to include the additon of Tract N with the stipulation that the price would remain the same. Tract N is triangular piece of common area located east of the sewer easement and behind the defandants property. It is a drainage/retension area owned by the Association and is also not maintained. It was agreed by all the Board of Directors to amend the original agreement and they encouraged and supported the defendant in her efforts for 1 1/2 years.
At the end of September 2000, the trail was successfully abandoned by the defendant, an appraisal was obtained and paid for by the defendant, at the request of the Board. The stipulations to this point cost thousands of dollars and approximately 1 1/2 years. The next stipulation was to acquired 2/3 acceptance vote from the homeowners. The defendant was told to wait till January 2001 for the annual meeting.
In January 2001 the Associations' management company, Cuellar Realty Services, called the defendant and advised her that they had a better offer and suggested that she make a counter offer for the property. The Board of Directors and their management company refused to honor their agreement. After a few days the management company informed the defendant that they were not going to sell this property to anyone.
The defendant filled in the partially constructed pool, and moved it off the easement at a cost of approximately $5000. The defendant at this point did not seek reimbursement from any of the losses she had incurred. She walked away.
Thereafter, however, approximately a year later, the Board of Directors, behind the defendants' back, entered into an agreement to sell all of the property to a third person who just happens to be a lawyer for the City of Phoenix.
The Board of Directors refused to reimburse the defendant for the time and costs she spent on their behalf, and stated that since she was not a member of the community, they did not have to honor any agreements with her.
The defendant wrote letters to all the homeowners (409) explaining the situation and asking them not to vote to sell the property to the third person. The Homowners (not the Board of directors) invited the defendant to attend the next monthly meeting, September 2002. The Homeowners asked qustions of the Board of Directors, their attorney Jeffrey Miller of Gammage and Burnham, and the defendant. The Homeowners heard both sides of the story; they did not want a lawsuit and came up with the suggestion of a compromise that would split this property between the defendant and the third party. It was a good compromise and a separate meeting was arranged by the Board for October 2002. The defendant, two board members, and the third party would attend. Homeowners would not be allowed to attend. The lawyer for the Association told everyone at the meeting that he would not attend, however, he arrived at the meeting along with all the Board members and the managment company. Jeffrey Miller conducted the meeting and refused any discussions regarding the splitting of this property. They also dishonored the agreement reached at the monthly September 2002 meeting, to dismiss the current lawsuit.
Agreeing to this compromise would have meant that the Association would sell the property to two people instead of one, the Association would get their money for the land, the Association and the Homeowners would be relieved of the expense and liability of this property, and there would be no more lawyers fees and no lawsuit. The Board and their lawyers said it was not in the best interest of the Association. They Filed a second lawsuit againt the defendant in February 2003.
The Homeowners in this community, to date December 24, 2003, have not been informed of this lawsuit or the attorney fees that are accruing in the tens of thousands.
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