Hot Potato

Page 2 of 3

"This would open a Pandora's box," says Ron Honberg, director of legal affairs for the National Alliance on Mental Illness in Arlington, Virginia. "This could create a very, very dangerous precedent."

At press time, the case was making its way through Maricopa County Superior Court.

Melton says Thinnes intentionally left the neighborhood nuisance/noise disclosure box unchecked to deceive him. To Melton, the issues are noise, nuisance, and honesty, not mental diagnosis.

In a hearing last month, Thinnes' attorney argued that Melton has nothing more than buyer's remorse and is prejudiced against his neighbor. The judge ruled not to dismiss Melton's case.

Now Thinnes has asked for another round of mediation.

It's not unusual to drive down East Montecito and find Candy Tatum, barefoot in the street, talking to herself. Sometimes she shouts at other people, even when there's no one there. She's lived here for 23 years.

Like many 1950s Phoenix neighborhoods, East Montecito is freckled with high-dollar remodels, neighbored by all-original brick ranch homes. The home Melton bought from Thinnes has been renovated, with a fresh coat of paint and a modern interior. A Mercedes sits in the driveway.

A few feet away, in Tatum's drive, the back of an old Chevy pickup is packed with garbage, an uprooted bush, and Christmas lights. Long, brown grass grows up through a pool-chair in the middle of the front yard.

"Many neighbors are deathly afraid," says one neighbor of 20 years who asked not to be named. "The cops have been called out here so many times they don't even come anymore. She's harmless now, though. She hasn't acted up in ages."

Another neighbor who asked not to identified says Tatum is entertaining and loud but has never bothered him or his wife.

Experts interviewed for this story say this is the first buyer-seller lawsuit they've heard of involving the purported mental state of a neighbor.

The issue at hand is not whether Candy Tatum is mentally ill, says Richard Keyt, who has practiced real estate law in Arizona for 27 years. (He has had nothing to do with the Thinnes/Melton lawsuit.) It's whether or not she's a nuisance.

Disclosure lawsuits in Arizona hinge on the words "material fact." A suing buyer must prove the seller failed to disclose a material fact about the property, and "material" isn't limited to building materials. For example, if someone died in the home or if a neighbor was a convicted child molester, both would be material facts.

Under Arizona legal precedent, such material facts are just as relevant as lead paint or a leaky roof. So, Keyt says, a neighbor who's been a known nuisance for 20-plus years isn't much of a leap.

Keyt emphasizes that in the end, a jury decides whether a given problem is material or not. "We don't really know what material means until the jury says. If there was precedent, I could tell you. There's not."

In the end, he says, it may well come down to personalities. "If your neighbor has bad tendencies or is a major problem neighbor, I think that would be material fact that the seller should disclose," Keyt says. "It could get gray, though. What if the neighbor's only a problem to the seller? If this conduct is consistent, though, that would seem to me to be a material fact."

Six days after Candy Tatum was arrested for throwing potatoes, Glenn Melton closed on Thinnes' home. Kelly moved in, alone. According to Melton, she soon noticed regular occurrences of screaming and cursing from her neighbor. (Kelly could not be reached for comment.)

A year later, Melton learned just how notorious Tatum is in the Phoenix police precinct that serves the neighborhood. He and Thinnes entered mediation.

When Melton later learned that Thinnes himself had Tatum arrested just one week before closing, he was furious. "He maintained that he'd never heard of this, and it turns out he told the arresting officer that she's been threatening him and terrorizing his dog and that this behavior had been going on since he moved in five years ago. He lied," Melton says.

Thinnes says he never lied during the confidential mediation with Melton. He and his lawyer argue that Melton had 10 days of due diligence under Arizona law, when, after purchasing the home, they could have talked to neighbors and researched police reports.

On the advice of his attorneys, Melton decided to sue.

"I'm not looking to make legal history here," he says. "It's not really a convoluted point or philosophical issue. It's just that the guy had been there for five years. He says in his own words that she'd been driving him crazy, and he had the chance to unload the house on an unsuspecting young woman, and he did."

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
John Dickerson
Contact: John Dickerson