Standing next to his self-created hole in the wall, Don Nevins shows how he's able to get to the side of his home. The wall was built next to his home — not 5 feet away at the property line — leaving Nevins without access to the side of his home.

JIM DAVIS / arizona daily star

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Where should you and your homeowners association go to fight — to court, or to a new, lower-cost hearing process?

Phil Ewing's experience with a garage door and a lawsuit shows why people might want to avoid court — the stakes are high and the cost is enormous.

But Don Nevins is one of the few trying the new, cheaper system of administrative hearings — and he's given up on it already.

In September, legislation took effect allowing people to file their HOA grievances with the Office of Administrative Hearings instead of in Superior Court. The intention was to save homeowners and their associations thousands in legal fees while streamlining the resolution of such cases.

For a $550 filing fee — $2,000 for a petition involving multiple allegations — homeowners can plead their own cases without an attorney in front of an administrative law judge. In some instances, respondents are required to reimburse petitioners' filing fees, and in still others, HOAs may be required to reimburse the fees and pay a fine if they are found guilty of wrongdoing.

Since Sept. 21 when the law went into effect, 28 cases statewide have been filed in the Office of Administrative Hearings, seven of them in Pima County.

But the experiences of Tucson-area homeowners Ewing and Nevins illustrate how the emotional intensity of many HOA conflicts can overshadow even common-sense efforts to lower the stakes in these widespread battles. In the end, what a judge says may not undo the hurt feelings that propel such cases forward.

Take the case of Ewing, 59, and his 87-year-old mother, June. Both of them owned homes in the Northridge Villas neighborhood near North First Avenue and East River Road, and early last summer they discovered attempted break-ins in both of their homes while they were out of town. The attempted entry points were windows that looked onto the carports, Ewing said.

Ewing enclosed the carports.

There was nothing in the neighborhood codes, covenants and restrictions that prohibited garage doors, he said. But he had seen some of his neighbors ask for garage doors and get turned down by the HOA board. So he installed them without asking.

The homeowners board sued him in September for not getting its permission first, said treasurer Bob Brooks.

Ewing countersued, claiming the CC&Rs had actually expired in 1998.

That's when the high stakes of suing became clear. Last month, Superior Court Judge Charles V. Harrington agreed with Ewing and threw out the neighborhood's restrictions.

Now only the people who agree to a new set of codes will be bound by it, said Tucson attorney Stephen Weeks, who handled Ewing's case.

People who hold out of such an agreement would still be responsible for assessments to maintain common areas, Weeks said, but they wouldn't have to follow any neighborhood rules for their property.

"We have asked the judge to reconsider his ruling, and we hope that he does, and we're also in the meantime trying to resolve our problems with all the other members of the corporation," Brooks said.

Ewing says he's spent more than $20,000 fighting the case. In a March newsletter, the association announced it had spent $10,000 fighting the battle, Ewing said.

The result — no CC&Rs — is something none of the parties wanted.

Retired accountant Nevins, 68, thought the new hearing process would solve ongoing issues he was having with his HOA.

"I just saw it as the fastest way to install justice on the homeowners association," he said.

Last Monday, an administrative hearing judge heard the case of Nevins and a former neighbor, Charles Starr, 76, against the Maravilla Neighborhood Association, which oversees a cluster of 42 homes just north of the Omni Tucson National Golf Resort.

At issue in the hearing was whether the association maintained accurate financial statements and reserves to take care of common assets, and whether the board had allowed appropriate access to association records.

But as with many HOA disputes, the original problem had nothing to do with why the parties were in front of a judge.

The conflict started about a year ago when the men discovered that the walls dividing their properties from their neighbors' properties were built several feet to one side or the other of the property lines.

Even though Nevins owns a strip of land west of his house and wall, he couldn't access five feet of his neighbor's yard in order to maintain the west wall of his home. Nevins' house itself forms part of his next-door neighbor's backyard wall.

Five feet of Nevins' own swimming pool lies on his other neighbor's property. By his own research, Nevins found most of the pools in the neighborhood appear to be technically on someone else's property, he said.

Starr, who has moved to California but still owns the house in Maravilla, lived on a curve and discovered his dividing wall was set about 28 feet too far onto his property.

Nevins would like to move but can't in good conscience sell his home without disclosing the issues with the property line, he said.

"To clean up the mess on my property, I've got to deal with that pool," he said.

The men asked their HOA if they could pay to move their walls, and they were denied, they say.

So they asked to review the association records and that's where they feel the real trouble started.

On Monday, Nevins presented his and Starr's case. Due to health issues, Starr was present by telephone for part of the hearing.

The rules for the administrative hearing procedure are a little more relaxed than in a courtroom. Even so, when the parties seemed to be stepping beyond what the administrative hearing judge, Grant Wilson, felt was the scope of the hearing, he swiftly reined them in.

At the end, he said he would render a decision in 20 days.

But Nevins says he already plans to take his claims to Superior Court.

He's upset that Wilson threw out three quarters of his complaints — including the issue of where the wall is placed — in a pre-hearing order, and Nevins wants those complaints to be heard.

And he feels the judge unfairly limited what evidence could be introduced by insisting that all situations brought up by either party had to have happened on or after Sept. 21, when the new process came into being.

Kelli Bednar, former secretary of the Maravilla board, declined to comment. Former board president Vic Williams and current board president Jim Hicks referred inquiries to attorney David Curl, who represented the board on Monday. Curl could not be reached for comment.

Nevins already has looked into the potential cost of going to court, and he's prepared to pay $25,000 to $50,000, he said.

That's still a lot less than what he stands to lose, he said, if he has to dig out his swimming pool or disclose to a potential buyer that it's on someone else's property.

"To be perfectly honest, I'd like to (sell)," he said. "I'm a real persona non grata around here. You've heard the Mormon terminology, 'shunning?' That's me."

Usefulness of hearing process

In the end, the administrative hearing process is too new to tell whether it makes a difference, said Les Krambeal, general manager at Stratford Management. Stratford, which manages 50 to 70 HOAs in the Tucson area, took over management of Maravilla earlier this year. The Maravilla case is the first the firm has dealt with, and Stratford came in on it pretty late in the game, he said.

"We're all hoping it will work well but it's just way too early to tell," he said.