Case Summary
| Case ID | 19F-H1918040-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2019-07-08 |
| Administrative Law Judge | Kay Abramsohn |
| Outcome | false |
| Filing Fees Refunded | $2,000.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Gregory L. Czekaj | Counsel | Gary Wolf |
|---|---|---|---|
| Respondent | Colonia Del Rey HOA, Inc. | Counsel | Carolyn Goldschmidt |
Alleged Violations
A.R.S. § 33-1805
A.R.S. § 33-1812(A)
A.R.S. § 33-1804(B)
Bylaws Sections 6.1, 7.1, 9.2
Outcome Summary
Petitioner failed to prove HOA violated records, voting, or notice statutes. HOA failed to prove Petitioner violated Bylaws by misrepresenting himself as an officer.
Why this result: Petitioner's interpretations of statutes regarding notice and voting were incorrect, and HOA complied with records requests. HOA lacked evidence for its claim against Petitioner.
Key Issues & Findings
Failure to provide records
Petitioner alleged HOA failed to provide requested organizational, business, corporate, and financial records.
Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Invalid fee increase due to proxy vote
Petitioner alleged a $5 fee increase was invalid because a proxy vote was used in violation of statutes and rules.
Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Failure to provide ten-day meeting notice
Petitioner alleged HOA failed to give ten-day notice for a meeting to vote on Bylaws amendments.
Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Petitioner exceeded rights as member
HOA alleged Petitioner misrepresented himself as an officer to obtain insurance and tax information.
Orders: The HOA did not prevail. HOA bears its filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_win
Decision Documents
19F-H1919054-REL Decision – 720897.pdf
**Case Summary: Czekaj v. Colonia Del Rey HOA, Inc.**
**Case Nos:** 19F-H1918040-REL & 19F-H1919054-REL
**Forum:** Arizona Office of Administrative Hearings
**Date:** July 8, 2019
**Overview**
This administrative hearing addressed four consolidated complaints involving a nine-unit homeowners association (HOA) in Tucson, Arizona. Three complaints were filed by homeowner Gregory L. Czekaj (Petitioner) regarding records access, fee increases, and meeting notices. One cross-complaint was filed by the HOA alleging the Petitioner exceeded his authority as a member.
**Complaint One: Access to Records**
* **Issue:** Petitioner alleged the HOA failed to provide requested financial and organizational records in violation of A.R.S. § 33-1805.
* **Key Facts:** Petitioner submitted multiple requests in 2018. The HOA requested he narrow "burdensome" requests, provided electronic documents, and hosted a physical records review session in November 2018. Petitioner argued the HOA "withheld" documents.
* **Decision:** The Administrative Law Judge (ALJ) ruled in favor of the **HOA**. The evidence showed the HOA timely provided records or opportunities for review. The ALJ noted that once the Petitioner acknowledged receipt of documents, the HOA correctly deemed the request satisfied until new requests were made.
**Complaint Two: Validity of Fee Increase**
* **Issue:** Petitioner argued a May 2017 $5.00 assessment increase was invalid because it relied on a proxy vote, which he claimed violated A.R.S. § 33-1812(A).
* **Key Facts:** The initial meeting minutes contained errors regarding vote counts and requirements. However, amended minutes and testimony clarified that the final tally was 5 "YES" and 1 "NO," excluding the disputed proxy.
* **Legal Analysis:** The HOA’s CC&Rs require approval by two-thirds of the *votes cast*, provided a quorum is present. With six members present (constituting a quorum), the 5-1 vote satisfied the two-thirds requirement without utilizing the proxy.
* **Decision:** The ALJ ruled in favor of the **HOA**. The fee increase was validly approved based on the votes of members present.
**Complaint Three: Meeting Notice Timeliness**
* **Issue:** Petitioner claimed the HOA violated A.R.S. § 33-1804(B) regarding a November 2018 meeting to amend Bylaws. He argued the Bylaws were invalid because he *received* the notice less than ten days before the meeting.
* **Legal Analysis:** The statute requires the HOA to "cause notice to be hand-delivered or sent prepaid by mail" not fewer than ten days in advance. The statute expressly states that failure of a member to receive actual notice does not invalidate the meeting.
* **Decision:** The ALJ ruled in favor of the **HOA**. Evidence proved the HOA mailed notices on November 5, thirteen days prior to the November 18 meeting, satisfying the statutory requirement [
Case Participants
Petitioner Side
- Gregory L. Czekaj (petitioner)
Homeowner
Appeared on his own behalf; also Respondent in consolidated counter-claim - Gary Wolf (petitioner's attorney)
Contacted HOA attorney regarding records request
Respondent Side
- Marybeth Andree (HOA President)
Colonia Del Rey HOA, Inc.
Represented the HOA; testified at hearing - Carolyn Goldschmidt (HOA attorney)
Responded to Petitioner's attorney regarding records - Sarah Hitch (proxy holder)
Colonia Del Rey HOA, Inc.
Member who cast a proxy vote for Ed Freeman - Phil Oliver (board member)
Colonia Del Rey HOA, Inc.
Provided email clarification regarding the vote; wrote letter regarding irregularities - Susan Sotelo (HOA secretary)
Colonia Del Rey HOA, Inc.
Mailed the ballots for the meeting
Neutral Parties
- Kay Abramsohn (ALJ)
Office of Administrative Hearings
Administrative Law Judge presiding over the hearing - Mr. Tick (witness)
State Farm (implied)
HOA insurance agent; testified regarding Petitioner's request for policy - Ed Freeman (tenant)
Tenant living in Oregon; subject of proxy vote dispute - Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of the transmitted order
