Category Archives: HOA Cases

Brenda Norman v. Rancho Del Lago Community Association

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Case Summary

Case ID 23F-H046-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-11
Administrative Law Judge Jenna Clark
Outcome The petition was dismissed with prejudice because Petitioner failed to meet her burden of proof that the HOA violated the community documents. The ALJ found that forcing enforcement of a discretionary restriction after decades of inaction would be unreasonable and that the matter was essentially a neighbor-to-neighbor dispute.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brenda Norman Counsel —
Respondent Rancho Del Lago Community Association Counsel Michael S. McLeran, Esq.

Alleged Violations

Appendix B, Section 5

Outcome Summary

The petition was dismissed with prejudice because Petitioner failed to meet her burden of proof that the HOA violated the community documents. The ALJ found that forcing enforcement of a discretionary restriction after decades of inaction would be unreasonable and that the matter was essentially a neighbor-to-neighbor dispute.

Why this result: Petitioner failed to establish a community document violation by a preponderance of the evidence; enforcement would be an unreasonable exercise of discretion due to long-standing inaction; and there was no legal avenue for the HOA to compel removal of the private property (trees).

Key Issues & Findings

Failure to enforce Prohibited Plant List (Oleanders and Palm Trees exceeding 10 feet)

Petitioner alleged the HOA violated Appendix B, Section 5 of the CC&Rs by failing to enforce the Prohibited Plant List and require her rear neighbors to remove oleander and palm trees that exceeded height guidelines and caused nuisance and damage.

Orders: Petitioner’s petition is dismissed with prejudice.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01(A)(1)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: homeowner dispute, prohibited plants, HOA discretion, failure to enforce, neighbor dispute, CC&Rs, oleander, palm trees
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.01(A)(1)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H046-REL Decision – 1049756.pdf

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23F-H046-REL Decision – 1049882.pdf

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23F-H046-REL Decision – 1055238.pdf

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23F-H046-REL Decision – 1057283.pdf

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23F-H046-REL Decision – 1058121.pdf

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23F-H046-REL Decision – 1059849.pdf

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23F-H046-REL Decision – 1072130.pdf

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23F-H046-REL Decision – 1082955.pdf

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This summary outlines the proceedings, arguments, and final decision in the administrative hearing *Brenda Norman vs. Rancho Del Lago Community Association* (No. 23F-H046-REL).

Key Facts and Procedural Background

The Petitioner, Brenda Norman, a member of the Rancho Del Lago Community Association (HOA), filed a petition alleging the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to enforce Appendix B, Section 5 (Prohibited Plant List), against her rear neighbors. The dispute centered on the Neighbors’ oleander and palm trees, which Petitioner claimed caused nuisance—specifically debris clogging her pool equipment and triggering her allergies/asthma.

The initial hearing scheduled for May 9, 2023, was dismissed by default when the Petitioner failed to appear. Upon Petitioner’s subsequent Motion for Reconsideration, which was granted over Respondent's objection, the matter was reset for a rehearing on July 31, 2023. The Administrative Law Judge (ALJ) denied the HOA's subsequent Motion to Dismiss, determining the sole issue for hearing was the alleged CC&R violation and the appropriateness of a civil penalty.

Main Issues and Arguments

The sole issue for the hearing was whether the Rancho Del Lago Community Association violated Appendix B, paragraph 5, of its CC&Rs by failing to enforce the restriction on certain plants whose mature growth height is reasonably expected to exceed ten feet for aesthetic reasons.

  1. Petitioner's Argument: Petitioner argued that the Neighbors’ oleanders and palm trees violated the Prohibited Plant List because of their expected height and the resulting nuisance. She asserted the HOA had a contractual duty to enforce the CC&Rs and should be compelled to require the Neighbors to remove the plants.
  1. Respondent's Argument: The HOA, represented by Counsel Michael McLeran and witness Spencer Broad (Community Manager), argued that the dispute was primarily a non-justiciable neighbor dispute, lacking jurisdiction before the Department. The HOA noted it did not own or maintain the trees, which are on private property. Crucially, the HOA argued that enforcing the height restriction (which had never been enforced since 2009) only against the Neighbors would be an unreasonable and discriminatory exercise of discretionary power. Furthermore, enforcing the restriction against this one member would unjustly impact hundreds of other members with trees over ten feet. The HOA also pointed out that the Neighbors had voluntarily trimmed the plants.

Key Legal Points and Outcome

The ALJ found that Petitioner failed to meet her burden of proving a community document violation by a preponderance of the evidence.

The decision focused on several key legal conclusions:

  • Discretionary Enforcement: The Design Guidelines at issue were determined to be discretionary. The HOA was not required to enforce a height restriction in this instance.
  • Unreasonable Authority/Due Process: Enforcement in the face of "decades of intentional inaction" would constitute an unreasonable exercise of authority and likely result in a deprivation of the Neighbors' due process rights.
  • Jurisdiction and Remedy: The ALJ noted that the Department does not have jurisdiction over disputes solely between owners. Regardless, there was no legal avenue by which the HOA could legally remove private property oleanders and palm trees or compel their removal.
  • Mootness: Petitioner’s acknowledgment that the Neighbors' voluntary trimming had, at least temporarily, alleviated the debris issues rendered the underlying petition moot.

Final Decision

Based on the findings and conclusions, the ALJ issued an Order on August 11, 2023, dismissing Petitioner's petition with prejudice.

Questions

Question

Can I force my HOA to remove a neighbor's plants that violate the community's design guidelines?

Short Answer

Generally, no. The HOA often lacks the legal authority to enter private property to remove landscaping, even if it violates guidelines.

Detailed Answer

The ALJ found that there was no legal way for the HOA to remove trees or shrubs from a neighbor's private backyard, nor compel them to be removed, particularly when the HOA does not own or maintain that specific property.

Alj Quote

Regardless, there is no legal avenue by which Respondent could legally remove Neighbors’ backyard Oleanders and/or Palm Trees, or have them removed.

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • enforcement
  • landscaping
  • private property

Question

Does the HOA have to enforce a rule if they haven't enforced it for many years?

Short Answer

No. Sudden enforcement after long periods of inaction may be considered unreasonable.

Detailed Answer

If an HOA has ignored a specific restriction (like a height limit on plants) for decades, enforcing it suddenly against a single homeowner can be seen as an unreasonable exercise of authority and a violation of due process.

Alj Quote

Enforcement, in the face of decades of intentional inaction, would be an unreasonable exercise of authority and a likely deprivation of Neighbors’ due process rights.

Legal Basis

Due Process / Laches / Waiver

Topic Tags

  • selective enforcement
  • waiver
  • due process

Question

Will the Arizona Department of Real Estate resolve a dispute between me and my neighbor?

Short Answer

No. The Department does not have jurisdiction over disputes solely between homeowners.

Detailed Answer

The administrative hearing process is for disputes between a homeowner and the association. It does not cover disputes between two owners where the association is not a party.

Alj Quote

The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01(A)(1)

Topic Tags

  • jurisdiction
  • neighbor disputes
  • ADRE

Question

Is the HOA required to mediate disputes between neighbors?

Short Answer

Typically, no. Governing documents usually do not require the HOA to pick sides or resolve neighbor conflicts.

Detailed Answer

Unless the CC&Rs or guidelines specifically state otherwise, the HOA is not obligated to resolve disputes between neighbors or take one side.

Alj Quote

Moreover, neither the CC&Rs nor the Design Guidelines require Respondent to mediate or resolve a dispute between neighbors by taking one side or the other.

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

  • mediation
  • neighbor disputes
  • HOA obligations

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) must show that it is more likely than not that the HOA violated the governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated one or more provisions of the Association’s Design Guidelines.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

If my neighbor's trees are causing a nuisance (like debris in my pool), does the HOA have to act?

Short Answer

Not necessarily. Subjective hardship does not automatically mandate HOA enforcement if the rules are discretionary.

Detailed Answer

Even if a neighbor's landscaping causes inconvenience or subjective hardship to another homeowner, the HOA is not required to enforce discretionary guidelines, especially if they have historically not done so.

Alj Quote

It is clear that plant debris from Neighbors’ backyard is causing Petitioner subjective hardship(s) and inconveniences, which amount to a perceived nuisance… [however] Respondent is not required to enforce a flora/height restriction in this instance.

Legal Basis

Discretionary Enforcement

Topic Tags

  • nuisance
  • maintenance
  • discretion

Case

Docket No
23F-H046-REL
Case Title
Brenda Norman vs. Rancho Del Lago Community Association
Decision Date
2023-08-11
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I force my HOA to remove a neighbor's plants that violate the community's design guidelines?

Short Answer

Generally, no. The HOA often lacks the legal authority to enter private property to remove landscaping, even if it violates guidelines.

Detailed Answer

The ALJ found that there was no legal way for the HOA to remove trees or shrubs from a neighbor's private backyard, nor compel them to be removed, particularly when the HOA does not own or maintain that specific property.

Alj Quote

Regardless, there is no legal avenue by which Respondent could legally remove Neighbors’ backyard Oleanders and/or Palm Trees, or have them removed.

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • enforcement
  • landscaping
  • private property

Question

Does the HOA have to enforce a rule if they haven't enforced it for many years?

Short Answer

No. Sudden enforcement after long periods of inaction may be considered unreasonable.

Detailed Answer

If an HOA has ignored a specific restriction (like a height limit on plants) for decades, enforcing it suddenly against a single homeowner can be seen as an unreasonable exercise of authority and a violation of due process.

Alj Quote

Enforcement, in the face of decades of intentional inaction, would be an unreasonable exercise of authority and a likely deprivation of Neighbors’ due process rights.

Legal Basis

Due Process / Laches / Waiver

Topic Tags

  • selective enforcement
  • waiver
  • due process

Question

Will the Arizona Department of Real Estate resolve a dispute between me and my neighbor?

Short Answer

No. The Department does not have jurisdiction over disputes solely between homeowners.

Detailed Answer

The administrative hearing process is for disputes between a homeowner and the association. It does not cover disputes between two owners where the association is not a party.

Alj Quote

The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01(A)(1)

Topic Tags

  • jurisdiction
  • neighbor disputes
  • ADRE

Question

Is the HOA required to mediate disputes between neighbors?

Short Answer

Typically, no. Governing documents usually do not require the HOA to pick sides or resolve neighbor conflicts.

Detailed Answer

Unless the CC&Rs or guidelines specifically state otherwise, the HOA is not obligated to resolve disputes between neighbors or take one side.

Alj Quote

Moreover, neither the CC&Rs nor the Design Guidelines require Respondent to mediate or resolve a dispute between neighbors by taking one side or the other.

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

  • mediation
  • neighbor disputes
  • HOA obligations

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) must show that it is more likely than not that the HOA violated the governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated one or more provisions of the Association’s Design Guidelines.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

If my neighbor's trees are causing a nuisance (like debris in my pool), does the HOA have to act?

Short Answer

Not necessarily. Subjective hardship does not automatically mandate HOA enforcement if the rules are discretionary.

Detailed Answer

Even if a neighbor's landscaping causes inconvenience or subjective hardship to another homeowner, the HOA is not required to enforce discretionary guidelines, especially if they have historically not done so.

Alj Quote

It is clear that plant debris from Neighbors’ backyard is causing Petitioner subjective hardship(s) and inconveniences, which amount to a perceived nuisance… [however] Respondent is not required to enforce a flora/height restriction in this instance.

Legal Basis

Discretionary Enforcement

Topic Tags

  • nuisance
  • maintenance
  • discretion

Case

Docket No
23F-H046-REL
Case Title
Brenda Norman vs. Rancho Del Lago Community Association
Decision Date
2023-08-11
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brenda Norman (petitioner)
    Appeared on her own behalf
  • Zvena Norman (potential witness)
    On standby as a potential witness for Petitioner
  • David Norman (associated party)
    Petitioner's husband; co-petitioner in prior litigation referenced during the hearing

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon 7 Hudson, PLC
    Counsel for Rancho Del Lago Community Association
  • Spencer Broad (witness, property manager)
    HA managed solutions
    Community Manager for Rancho Del Lago Community Association; also spelled Brod
  • Phil Brown (HOA attorney)
    Attorney referenced by Petitioner regarding a 2018 letter
  • Eric (compliance manager)
    HOA management solutions
    Compliance Manager since 2009; full last name withheld from the record

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge presiding over the matter
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Judge Mahalski (ALJ (prior case))
    Office of Administrative Hearings
    Administrative Law Judge in 2019 litigation referenced during the hearing

Other Participants

  • Cindy White (neighbor)
    Owner of the plants subject to the dispute
  • Ray White (neighbor)
    Owner of the plants subject to the dispute
  • Nathan Tennyson (former HOA attorney)
    Former in-house counsel referenced by Petitioner

Jennifer J Sullivan v. The Village at Elk Run Homeowners Association,

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Case Summary

Case ID 23F-H043-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-08
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the Petitioner's petition, finding that the HOA's CC&Rs (Section 4.1) prohibited nonresidential use, including short-term renting (deemed a business by the tribunal), unless the lot was rented or leased for month-to-month or longer terms. Therefore, rentals shorter than a month were prohibited.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jennifer J Sullivan Counsel —
Respondent The Village at Elk Run Homeowners Association, Inc. Counsel Michael S. McLeran

Alleged Violations

Article 4, Section 4.1 of the Community’s CC&Rs; ARIZ. REV. STAT. § 33-1804(D)

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA's CC&Rs (Section 4.1) prohibited nonresidential use, including short-term renting (deemed a business by the tribunal), unless the lot was rented or leased for month-to-month or longer terms. Therefore, rentals shorter than a month were prohibited.

Why this result: The tribunal determined the Petitioner failed to meet her burden, as her short-term rental operation constituted a prohibited nonresidential use/business under Section 4.1 of the CC&Rs, which only permits leasing for Month to Month or Longer Terms.

Key Issues & Findings

Challenging HOA Violation Notice for Short-Term Rental Restriction

Petitioner challenged the Courtesy Violation Notice issued by the HOA for operating a short-term rental (Airbnb) with a minimum rental period less than month-to-month, arguing the CC&Rs did not explicitly prohibit such rentals. The HOA maintained that Section 4.1 prohibited nonresidential use, unless leased for month-to-month or longer terms, thereby prohibiting short-term rentals/business use.

Orders: Petitioner’s petition was denied. Respondent shall not reimburse Petitioner’s filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • PAL versus Washburn 211 Arizona 553 2006
  • Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Analytics Highlights

Topics: HOA governance, short-term rental, CC&R interpretation, business use, 30-day minimum
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • PAL versus Washburn 211 Arizona 553 2006
  • Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Video Overview

Audio Overview

Decision Documents

23F-H043-REL Decision – 1050430.pdf

Uploaded 2026-04-24T12:07:40 (47.3 KB)

23F-H043-REL Decision – 1081482.pdf

Uploaded 2026-04-24T12:07:50 (59.0 KB)

23F-H043-REL Decision – 1081483.pdf

Uploaded 2026-04-24T12:08:00 (117.7 KB)

Case Summary: Jennifer J. Sullivan vs. The Village at Elk Run Homeowners Association, Inc.

This matter (No. 23F-H043-REL) was a contested case before the Office of Administrative Hearings (OAH), heard on July 24, 2023, by Administrative Law Judge (ALJ) Adam D. Stone. Petitioner Jennifer J. Sullivan, a homeowner in The Village at Elk Run Homeowners Association, Inc. (Respondent), challenged a violation notice she received for operating a short-term rental (Airbnb).

Key Facts and Background

Petitioner Sullivan had owned her townhome since 2006 and began renting it on a short-term basis (minimum 3 days) through Airbnb in September 2021. She testified that she had registered for a Transaction Privilege Tax number and was pursuing a license under new city rules, acknowledging that the rental was a business. The Association issued a Courtesy Violation Notice on November 22, 2022, citing a violation of Article 4, Section 4.1 of the community's Covenants, Conditions, and Restrictions (CC&Rs) due to the short-term rental operation.

Main Issues and Arguments

The core legal issue centered on the interpretation of CC&R Section 4.1, titled "Residential Use":

> "All Lots shall be used, improved and devoted exclusively to Single family Residential Use. No gainful occupation, profession, trade or other nonresidential use shall be conducted on any Lot. This Section shall not preclude the Residential Leasing or Renting of a Lot for Month to Month or Longer Terms".

  1. Petitioner's Argument: Sullivan contended that the CC&Rs do not contain an explicit minimum rental period, and therefore, rentals shorter than 30 days are permissible. She argued that Arizona law (ARS 33-1806.01) requires HOAs to list a minimum rental period if they intend to restrict short-term leasing, which the Elk Run CC&Rs failed to do. She asserted that renting a home is considered a residential use.
  1. Respondent's Argument: The Association, represented by Michael McLeran, argued that Section 4.1 must be read in its entirety to uphold the community's character. They asserted that operating a short-term rental for profit (as evidenced by Petitioner's tax licensing) constitutes a "gainful occupation, profession, trade or other nonresidential use," which is prohibited. The final sentence of Section 4.1 allowing "Month to Month or Longer Terms" clarifies the *only* exception where renting for profit is permitted, thereby implicitly prohibiting shorter-term rentals. Testimony from the original CC&R signatory, John Vail, supported the intent for a minimum 30-day rental period.

Outcome and Legal Decision

The ALJ issued a Decision on August 8, 2023, denying the Petitioner's petition.

The ALJ found that Petitioner Sullivan failed to meet her burden of proving that the Association violated relevant statutes or documents. The tribunal concluded that Sullivan was "clearly running a business out of the home".

The ALJ adopted the Respondent's interpretation of Section 4.1: nonresidential use (i.e., operating a rental business for gainful occupation) is *only* permitted if the lots are rented or leased for month to month or longer terms. Thus, the ALJ ruled that, as currently written, any renting or leasing shorter than a month was prohibited.

The Petitioner's request for reimbursement of her $500 filing fee was also denied.

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Even if the CC&Rs do not explicitly state 'no short-term rentals', a clause permitting 'month to month or longer' terms generally implies that shorter terms are not permitted under the restrictions against non-residential use.

Alj Quote

Rather the tribunal reads the section to mean that nonresidential use is only permitted if the lots were rented or leased for month to month or longer terms. … Thus, as currently written, any renting or leasing shorted than a month was prohibited.

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

  • short-term rentals
  • CC&R interpretation
  • Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

The ALJ found that applying for a municipal business license and paying transaction taxes (which are typical for rentals) demonstrated that the homeowner was using the property for a gainful occupation or business, rather than simple residential use.

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

  • business use
  • taxes
  • commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

The ALJ rejected the argument that short-term rentals were allowed simply because the CC&Rs didn't explicitly name and ban them. The restrictions on non-residential use and specific permissions for monthly rentals were sufficient to create the ban.

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

  • CC&R interpretation
  • implicit restrictions
  • rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

Conclusion of Law 3

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
23F-H043-REL
Case Title
Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date
2023-08-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Even if the CC&Rs do not explicitly state 'no short-term rentals', a clause permitting 'month to month or longer' terms generally implies that shorter terms are not permitted under the restrictions against non-residential use.

Alj Quote

Rather the tribunal reads the section to mean that nonresidential use is only permitted if the lots were rented or leased for month to month or longer terms. … Thus, as currently written, any renting or leasing shorted than a month was prohibited.

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

  • short-term rentals
  • CC&R interpretation
  • Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

The ALJ found that applying for a municipal business license and paying transaction taxes (which are typical for rentals) demonstrated that the homeowner was using the property for a gainful occupation or business, rather than simple residential use.

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

  • business use
  • taxes
  • commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

The ALJ rejected the argument that short-term rentals were allowed simply because the CC&Rs didn't explicitly name and ban them. The restrictions on non-residential use and specific permissions for monthly rentals were sufficient to create the ban.

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

  • CC&R interpretation
  • implicit restrictions
  • rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

Conclusion of Law 3

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
23F-H043-REL
Case Title
Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date
2023-08-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jennifer J Sullivan (petitioner)
    Appeared on her own behalf
  • David Sheffield (petitioner attorney)
    Provided legal opinion to Petitioner in 2020

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon & Hudson, PLC
    Represented Respondent
  • Teresa Bale (board member)
    The Village at Elk Run Homeowners Association, Inc.
    Board President; Witness for Respondent
  • John R. Bale (developer/witness)
    The Village at Elk Run Homeowners Association, Inc.
    Original developer who drafted/signed CC&Rs; Witness for Respondent
  • Jason Miller (attorney)
    Provided opinion letter regarding CC&Rs to the Board
  • Beth Moly (attorney)
    Issued formal opinion letter regarding Section 4.1
  • Melanie Lashley (property manager)
    Homeco Rent
    Contacted by Petitioner regarding rental rules
  • Betsy Snow (board member)
    The Village at Elk Run Homeowners Association, Inc.
    Won board election against Petitioner

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission

Richard K. Morris v. The Townes at Paradise Valley Landings

Posted on by

Case Summary

Case ID 23F-H056-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-07
Administrative Law Judge Brian Del Vecchio
Outcome The ALJ affirmed the Petitioner's claim that the HOA violated CC&Rs Section 9.2 by forcing the removal of a previously approved security light. The HOA was ordered to comply with the CC&Rs and reimburse the $500 filing fee. However, the Petitioner's request for a civil penalty was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard K. Morris Counsel —
Respondent The Townes at Paradise Valley Landings Counsel —

Alleged Violations

Section 9.2 of the CC&Rs

Outcome Summary

The ALJ affirmed the Petitioner's claim that the HOA violated CC&Rs Section 9.2 by forcing the removal of a previously approved security light. The HOA was ordered to comply with the CC&Rs and reimburse the $500 filing fee. However, the Petitioner's request for a civil penalty was denied.

Key Issues & Findings

Respondent required permanent removal of pre-approved security light in violation of CC&Rs Section 9.2.

Petitioner had Architectural Review Committee (ARC) approval from 2010 to install a security light on the shed fascia (a common area). Respondent HOA later required its removal, arguing their fiduciary duty and a new roofing warranty (2023) voided the prior approval. The ALJ found the HOA failed to perform due diligence regarding the pre-existing ARC approval before contracting the new work and violated CC&Rs Section 9.2, which allows rebuilding in accordance with previously approved plans.

Orders: Respondent is directed to comply with the provisions of Section 9.2 of the CC&Rs and reimburse Petitioner's filing fee of $500.00. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: ARC Approval, CC&R Violation, Fiduciary Duty, Homeowner Victory, Warranty Voidance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H056-REL Decision – 1073539.pdf

Uploaded 2026-04-24T12:10:08 (51.9 KB)

23F-H056-REL Decision – 1080973.pdf

Uploaded 2026-04-24T12:10:16 (110.3 KB)

This is a summary of the Administrative Law Judge (ALJ) decision following a contested case hearing regarding a homeowners' association dispute.

Case Summary: Richard K. Morris v. The Townes at Paradise Valley Landings

Key Facts and Background

The Petitioner, Richard K. Morris, is a townhome owner and member of The Townes at Paradise Valley Landings Association (Respondent). The dispute centers on a security light that Petitioner installed on the shed fascia of his property.

  • Prior Approval: On June 25, 2010, Petitioner received Architectural Review Committee (ARC) approval to install the motion-sensing security light on the shed fascia board. This approval was granted without any stated conditions or restrictions. The light remained installed for approximately 12 years.
  • Removal and Violation: In February 2023, the Respondent contracted a roofer to remove and replace fascia and shed roofs, warranting the work for five years. In April 2023, Respondent notified all homeowners to remove items, including security lights, from the fascia. Petitioner complied and removed the light. The Respondent later attempted to fine the Petitioner for the light, although those fines were eventually reversed.
  • Core Legal Provision: The petition alleged a violation of Section 9.2 of the Association’s CC&Rs (covenants, conditions, and restrictions). Section 9.2 states that "No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee".

Main Issues and Arguments

The core legal issue was whether the Association was required to permanently remove the pre-approved security light, violating Section 9.2 of the CC&Rs.

  • Petitioner's Argument (Estoppel/Prior Approval): Petitioner argued the case rested on the principle of estoppel, asserting that the Association granted approval (an exception or easement) that Petitioner relied upon by incurring the expense of installation. Since the 2010 approval was granted without a sunset provision, the Association could not unilaterally renege on it.
  • Respondent's Argument (Fiduciary Duty/Warranty): Respondent argued the Board had a fiduciary duty to all homeowners to maintain common elements and protect their financial investment. Respondent asserted that circumstances had changed since 2010, and installing the light would compromise the overall integrity of the new lumber and, critically, void the 5-year warranty provided by the roofing contractor.

Legal Conclusion and Outcome

The Administrative Law Judge (ALJ) found that Petitioner met his burden of proving by a preponderance of the evidence that the Respondent violated the CC&Rs.

  • Due Diligence Failure: The ALJ noted that the ARC approval granted Petitioner an exception to the CC&R restriction against alterations of common areas. Crucially, the Respondent admitted that no due diligence was performed regarding the existence of prior ARC approvals which might conflict with the roof work *before* the contract was signed.
  • Fiduciary Duty Limitation: While acknowledging the Respondent's fiduciary duty to protect investments, the ALJ concluded that this duty "does not entitle Respondent to fail to do their due diligence and disavow prior agreements".
  • Final Decision: The ALJ determined that the Respondent's actions constituted a violation of Section 9.2 of the CC&Rs.

Order

The Petitioner’s petition was affirmed.

  1. Respondent is directed to comply with the provisions of Section 9.2 of the CC&Rs.
  2. Petitioner’s request to levy a civil penalty was denied.
  3. Respondent shall reimburse Petitioner’s filing fee of $500.00.

Questions

Question

Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?

Short Answer

No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.

Detailed Answer

The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.

Alj Quote

While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?

Short Answer

No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.

Detailed Answer

In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.

Alj Quote

No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

The petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

Can I be reimbursed for the filing fee if I win my case against the HOA?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Does winning the case automatically mean the HOA will be fined a civil penalty?

Short Answer

No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.

Detailed Answer

Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

Can an HOA claim a new contractor's warranty voids my old approval?

Short Answer

Not if the HOA failed to check for existing approvals before signing the contract.

Detailed Answer

The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.

Alj Quote

Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

Docket No
23F-H056-REL
Case Title
Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date
2023-08-07
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?

Short Answer

No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.

Detailed Answer

The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.

Alj Quote

While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?

Short Answer

No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.

Detailed Answer

In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.

Alj Quote

No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

The petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

Can I be reimbursed for the filing fee if I win my case against the HOA?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Does winning the case automatically mean the HOA will be fined a civil penalty?

Short Answer

No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.

Detailed Answer

Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

Can an HOA claim a new contractor's warranty voids my old approval?

Short Answer

Not if the HOA failed to check for existing approvals before signing the contract.

Detailed Answer

The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.

Alj Quote

Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

Docket No
23F-H056-REL
Case Title
Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date
2023-08-07
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Richard K. Morris (petitioner)
    The Townes at Paradise Valley Landings
    Appeared on his own behalf

Respondent Side

  • Joelle Lever (board member)
    The Townes at Paradise Valley Landings
    Represented the Respondent and provided testimony
  • Chelsea Hearn (board member)
    The Townes at Paradise Valley Landings
    Homeowner who complained about the light
  • alice.riesterer (management staff)
    The Management Trust Arizona

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge who signed the Order and Decision
  • Judge Svio (hearing officer)
    OAH
    Administrative Law Judge who opened the hearing
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Deborah L (ARC member)
    Association
    Association representative who approved Petitioner's request in 2010
  • AHansen (ADRE staff)
    ADRE
    Recipient of transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of transmission
  • djones (ADRE staff)
    ADRE
    Recipient of transmission
  • labril (ADRE staff)
    ADRE
    Recipient of transmission

Ryan McMahon v. Alhambra Terrace Condominium Association

Posted on by

Case Summary

Case ID 23F-H060-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-07
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove by a preponderance of the evidence that the Alhambra Terrace Condominium Association violated ARIZ. REV. STAT. § 33-1221.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ryan McMahon Counsel —
Respondent Alhambra Terrace Condominium Association Counsel Mike Yohler

Alleged Violations

ARIZ. REV. STAT. § 33-1221

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove by a preponderance of the evidence that the Alhambra Terrace Condominium Association violated ARIZ. REV. STAT. § 33-1221.

Why this result: Petitioner failed to fully satisfy sub-requirements 6, 7, and/or 8 of the Preliminary Architectural Approval Letter, as the documentation provided (specifically from the plumbing company and designer) lacked the necessary professional weight or specificity required by the Association to address structural and plumbing concerns.

Key Issues & Findings

Alleged violation of statute regarding denial of interior modification request.

Petitioner alleged the Association violated ARS § 33-1221 by denying his request to combine two units and add two bathrooms, claiming the denial was unsupported by facts or governing documents. The ALJ found Petitioner failed to prove the violation.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1221
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: condominium modification, HOA denial, structural integrity, plumbing concerns, burden of proof, architectural approval
Additional Citations:

  • ARIZ. REV. STAT. § 33-1221
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

23F-H060-REL Decision – 1081134.pdf

Uploaded 2026-01-23T17:59:25 (189.0 KB)

This is a summary of the administrative hearing held on July 19, 2023, regarding Petitioner Ryan McMahon's claim against the Alhamra Terrace Condominium Association (OAD doc number 23 FH060 REL). Administrative Law Judge (ALJ) Jenna Clark presided.

Key Facts

Petitioner Ryan McMahon, who owns Unit B8, and his fiancée, who owns the adjacent Unit B4 below him, sought permission from the Association to combine the two units (B8 and B4) and add two new bathrooms. The Association, governed by its CC&Rs, issued a series of denials based on concerns regarding the structural integrity and the piping system of the condominium.

In June 2022, the Association issued a conditional approval that required Petitioner to provide specific documentation, including an engineer's sign-off on community plumbing concerns, detailing the proper size and condition of the main sewer line, and ensuring the pipes could accommodate up to six bathrooms, four kitchens, and four laundry units. The conditions also required submission of detailed plans for sewer pipe venting and exhaust fans.

Petitioner subsequently submitted documentation, including letters from a licensed structural engineer (Robert A. Young, PE) confirming no structural reason for denial, and correspondence from a plumbing company (Paradise Valley Plumbing Company, Inc.) providing calculations and stating the project would not negatively impact the plumbing or drainage capacity. The City of Scottsdale had reviewed the plans for code conformity but required HOA approval before issuing permits.

The Association, represented by witness Kit Groseth (Board President), denied the request multiple times, asserting the documents submitted were "vague, incomplete, and unreliable". The Association argued that the Petitioner failed to provide information specifically requested by the preliminary approval letter, particularly documentation from a registered plumbing engineer addressing the detailed capacity concerns. The Association admitted it did not hire its own engineer due to the anticipated high cost (estimated $5,000–$10,000).

Main Issues and Legal Points

The core issue was whether the Association violated Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1221 by denying the interior modification request. This statute permits unit owners to make alterations that *do not impair the structural integrity or mechanical systems* of the condominium.

The critical legal point focused on Petitioner's burden of proof. The ALJ was tasked with determining if Petitioner provided a preponderance of the evidence proving the Association acted illegally by denying the request.

The Association argued that while Petitioner provided some engineering support, he did not meet the specific itemized requirements of the conditional approval, particularly regarding specific plumbing engineering reports.

Outcome and Final Decision

The Administrative Law Judge concluded that Petitioner did not sustain his burden of proof.

The ALJ found that Petitioner failed to fully comply with itemized requirements 6, 7, and/or 8 of the Preliminary Architectural Approval Letter. Specifically, the plumbing company providing calculations was not a licensed structural engineering firm, limiting the weight of its attestation. Furthermore, the structural engineer’s reports (Mr. Young) were not offered for consideration regarding the pipes, fans, and vents, as required by the conditional approval.

Based on these findings, the ALJ issued an ORDER that Petitioner's petition be denied. This decision is binding unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate.

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

The homeowner (petitioner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving their case. They must demonstrate that it is more likely than not that the HOA violated the relevant statutes or community documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

To win a hearing, the evidence presented must carry more weight than the opposing side's evidence. It doesn't necessarily mean having more witnesses, but rather having evidence with superior convincing force that inclines an impartial mind to one side.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Arizona law allows a unit owner who acquires an adjoining unit to remove or alter intervening partitions. However, this is strictly conditioned on the requirement that such acts do not weaken the building's structural integrity, mechanical systems, or support.

Alj Quote

After acquiring an adjoining unit… [a unit owner] may remove or alter any intervening partition or create apertures in intervening partitions… if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

If an HOA requests a specific type of expert opinion (such as a structural engineer) to ensure the integrity of the building, providing a report from a different type of professional (such as a plumbing company) may be considered insufficient evidence, justifying a denial.

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Submitting an engineer's letter that does not address the specific technical concerns raised by the HOA (such as the condition of pipes or venting plans) may result in a denial because the homeowner failed to meet the burden of proof regarding safety and structural integrity.

Alj Quote

While Mr. Young is undoubtedly a licensed structural engineer… it is unclear if he made determinations regarding the integrity of the Association’s pipes, fans, and vents as required by sub-requirements 6-8 of the Association’s PRELIMINARY ARCHITECTURAL APPROVAL LETTER.

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

Docket No
23F-H060-REL
Case Title
Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date
2023-08-07
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

The homeowner (petitioner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving their case. They must demonstrate that it is more likely than not that the HOA violated the relevant statutes or community documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

To win a hearing, the evidence presented must carry more weight than the opposing side's evidence. It doesn't necessarily mean having more witnesses, but rather having evidence with superior convincing force that inclines an impartial mind to one side.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Arizona law allows a unit owner who acquires an adjoining unit to remove or alter intervening partitions. However, this is strictly conditioned on the requirement that such acts do not weaken the building's structural integrity, mechanical systems, or support.

Alj Quote

After acquiring an adjoining unit… [a unit owner] may remove or alter any intervening partition or create apertures in intervening partitions… if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

If an HOA requests a specific type of expert opinion (such as a structural engineer) to ensure the integrity of the building, providing a report from a different type of professional (such as a plumbing company) may be considered insufficient evidence, justifying a denial.

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Submitting an engineer's letter that does not address the specific technical concerns raised by the HOA (such as the condition of pipes or venting plans) may result in a denial because the homeowner failed to meet the burden of proof regarding safety and structural integrity.

Alj Quote

While Mr. Young is undoubtedly a licensed structural engineer… it is unclear if he made determinations regarding the integrity of the Association’s pipes, fans, and vents as required by sub-requirements 6-8 of the Association’s PRELIMINARY ARCHITECTURAL APPROVAL LETTER.

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

Docket No
23F-H060-REL
Case Title
Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date
2023-08-07
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Ryan McMahon (petitioner)
    Full name: Ryan Christopher McMahon
  • Christina Samaras (witness)
    Petitioner's fiance and observer. Also referred to as Christina Cincer.
  • Robert A. Young (engineer/consultant)
    Structural Engineer (PE) providing documentation for Petitioner
  • Scott Olsson (plumber/consultant)
    Paradise Valley Plumbing Company, Inc.
    Licensed plumber/Qualifying Party providing statements for Petitioner
  • Gary Devol (designer/consultant)
    Designs by Devol LLC
    Designer who created the modification plans

Respondent Side

  • Mike Yohler (attorney)
    Farmers Insurance
    Counsel of record for Respondent
  • Kent William Groseth (board member)
    Alhamra Terrace Condominium Association
    Board President and witness
  • Emma (property manager representative)
    AMCOR Property Professionals, Inc.
    Exchanged correspondence with Petitioner regarding denial
  • Mia (board member)
    Alhamra Terrace Condominium Association
    HOA president at the time of initial request
  • Jim Nelson (board member)
    Alhamra Terrace Condominium Association
    Co-vice president
  • Robin (property manager representative)
    AMCOR Property Professionals, Inc.
    Vice President involved in email correspondence
  • Miss Morgan (attorney)
    Previous counsel replaced by Mike Yohler

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate

Wanda Swartling v. Val Vista Park Townhome Association of Mesa

Posted on by

Case Summary

Case ID 23F-H057-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-01
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wanda Swartling Counsel —
Respondent Val Vista Park Townhome Association of Mesa Counsel Chad Gallacher

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.

Why this result: Petitioner failed to meet her burden of proof by a preponderance of the evidence that the Respondent's conduct violated ARS § 33-1804.

Key Issues & Findings

Failure to hold open board meeting prior to special assessment meeting

Petitioner alleged the HOA violated open meeting law (ARS § 33-1804) by failing to hold an open board meeting prior to the March 2, 2023, special meeting where members voted on a special assessment, arguing that preliminary discussions and decisions were made unilaterally in supposed closed-door meetings or through email/informal discussions.

Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804

Analytics Highlights

Topics: Open Meeting Law, Special Assessment, Board Meetings, HOA Governance, Committee Meeting
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Audio Overview

Decision Documents

23F-H057-REL Decision – 1071114.pdf

Uploaded 2026-04-24T12:10:30 (5884.7 KB)

23F-H057-REL Decision – 1071115.pdf

Uploaded 2026-04-24T12:10:40 (7935.6 KB)

23F-H057-REL Decision – 1071120.pdf

Uploaded 2026-04-24T12:10:45 (1989.0 KB)

23F-H057-REL Decision – 1071121.pdf

Uploaded 2026-04-24T12:10:51 (4055.1 KB)

23F-H057-REL Decision – 1071122.pdf

Uploaded 2026-04-24T12:10:57 (676.0 KB)

23F-H057-REL Decision – 1071126.pdf

Uploaded 2026-04-24T12:11:06 (3343.5 KB)

23F-H057-REL Decision – 1071127.pdf

Uploaded 2026-04-24T12:11:18 (3328.5 KB)

23F-H057-REL Decision – 1071503.pdf

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23F-H057-REL Decision – 1079574.pdf

Uploaded 2026-04-24T12:11:28 (114.8 KB)

This summary concerns the legal case *Wanda Swartling v. Val Vista Park Townhome Association of Mesa*, Docket No. 23F-H057-REL. The evidentiary hearing took place on July 10, 2023, before Administrative Law Judge (ALJ) Brian Del Vecchio.

Key Facts and Main Issues

The Petitioner, Wanda Swartling (a property owner and Association member), filed a single-issue petition on or about April 10, 2023. The core allegation was that the Val Vista Park Townhome Association of Mesa (Respondent) violated ARIZ. REV. STAT. § 33-1804 (the open meeting law for planned communities).

The Petitioner contended that the Board of Directors:

  1. Sent a February 7, 2023, email to homeowners informing them of the intent to hold a special meeting and proposing funding options without first holding an open board meeting.
  2. Held a March 2, 2023, special meeting to vote on a special assessment without having held an open board meeting prior to determining the items to be voted upon.

Petitioner argued that the board unilaterally determined which special assessments would be voted on through "closed door board meetings," thereby denying members the opportunity to be present for the decision-making processes. The March 2, 2023, special assessment vote ultimately failed to pass.

Hearing Proceedings and Key Arguments

Respondent (represented by Chad Gallacher, with community manager Steve Cheff testifying) denied the claims. Respondent argued that the claims were factually incorrect and legally insufficient.

Respondent's Legal Defense:

  • There is no legal requirement in ARS § 33-1804 stipulating that an open board meeting must be held before an email is sent to the community or prior to calling a special meeting of the members.
  • The authority to call a special meeting rests with the Board President, as per the association's bylaws (Section 2.2).
  • The issues had been previously discussed: Evidence submitted included meeting minutes showing discussions of capital projects, including painting, roofs, and special assessments, dating back to an Architectural Committee meeting on August 18, 2022, and a subsequent Board meeting on October 11, 2022.

Petitioner’s Burden and ALJ Rulings:

The ALJ emphasized that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent violated ARS § 33-1804. The ALJ strictly limited the scope of the hearing to the specific violations alleged in the complaint (the process surrounding the February 7th email and March 2nd meeting). Attempts by the Petitioner to introduce evidence demonstrating a *pattern* of closed meetings or to challenge procedural changes related to a prior annual meeting were repeatedly objected to and sustained as irrelevant or beyond the scope of jurisdiction.

Final Decision and Outcome

The ALJ issued a decision on August 1, 2023. The ALJ concluded that the Petitioner failed to meet her burden of proof.

  • The ALJ found that the special assessment voted on March 2, 2023, resulted from maintenance recommendations developed during the August 18, 2022, architectural committee meeting.
  • Regarding claims of informal discussions or emails constituting a violation, the Petitioner failed to provide sufficient evidence that the number of board members involved constituted a quorum necessary to trigger the notice requirement under ARS § 33-1804.

The ALJ ordered that Petitioner’s petition be dismissed and denied the request to levy a civil penalty against the Respondent.

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Wanda Swartling (petitioner)
    Val Vista Park Townhome Association
    Homeowner, VVP Unit 82

Respondent Side

  • Chad Gallacher (HOA attorney)
    Maxwell & Morgan, P.C.
  • Steve Cheff (property manager / witness)
    Heywood Community Management
    Also community manager
  • Patti Locks (board member)
    Val Vista Park HOA
    Also listed as candidate/incumbent
  • Stephanie Hamrock (board member / witness)
    Val Vista Park HOA
  • Troy Goudeau (board member)
    Val Vista Park HOA
    Elected director
  • Paul Wilcox (board member)
    Val Vista Park HOA
    Elected director
  • Bettie Smiley (board member)
    Val Vista Park HOA
  • Carlee Collins (administrative assistant)
    Heywood Community Management
  • Alli (attorney)
    Maxwell & Morgan, P.C.
    Associate attorney

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    ADRE
  • A. Hansen (ADRE staff)
    ADRE
  • V. Nunez (ADRE staff)
    ADRE
  • D. Jones (ADRE staff)
    ADRE
  • L. Abril (ADRE staff)
    ADRE

Other Participants

  • Shelley Dusek (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Lori Solomon (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Tanya (committee attendee)
    Val Vista Park HOA
    Attended Building Architectural Committee meeting
  • David Clem Sr (homeowner)
    Val Vista Park Townhomes
    Email recipient

Felicia Woodward v. The Pointe South Mountain Residential Association

Posted on by

Case Summary

Case ID 23F-H054-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-28
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the single-issue petition, concluding that the Petitioner failed to prove the Association violated A.R.S. § 33-1804(D). The ALJ found that the gathering was a 'workshop' and not necessarily a formal 'meeting of the board of directors,' and further found that the Petitioner had received sufficient notice regardless.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Felicia Woodward Counsel —
Respondent The Pointe South Mountain Residential Association Counsel Jonathan D. Ebertshauser

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge denied the single-issue petition, concluding that the Petitioner failed to prove the Association violated A.R.S. § 33-1804(D). The ALJ found that the gathering was a 'workshop' and not necessarily a formal 'meeting of the board of directors,' and further found that the Petitioner had received sufficient notice regardless.

Why this result: Petitioner failed to meet the burden of proof required by a preponderance of the evidence for the alleged violation of A.R.S. § 33-1804(D). The tribunal determined the meeting was advertised as a workshop and not a statutory board meeting, and the Petitioner had timely opened the notice email a week prior.

Key Issues & Findings

Petitioner alleges the Respondent has violated A.R.S. § 33-1804 by holding a meeting that 'had not been properly noticed…'

Petitioner alleged that the March 14, 2023 meeting was not properly noticed because customary channels (email, calendar, sandwich boards) were not used, and the notice provided did not include the meeting location. Respondent argued notice was given through email survey and the community calendar, meeting the statutory requirements, and that the event was a workshop.

Orders: Petitioner's petition was denied. Respondent shall not reimburse Petitioner's filing fee pursuant to A.R.S. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Notice Requirements, HOA Board Meeting, Workshop, Filing Fee Reimbursement
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.01

Video Overview

Audio Overview

Decision Documents

23F-H054-REL Decision – 1068018.pdf

Uploaded 2026-04-24T12:09:44 (54.7 KB)

23F-H054-REL Decision – 1078258.pdf

Uploaded 2026-04-24T12:09:47 (113.6 KB)

This summary addresses the legal case hearing held on July 14, 2023, concerning the matter of Felicia Woodward (Petitioner) versus The Pointe South Mountain Residential Association (Respondent). The hearing was conducted before Administrative Law Judge (ALJ) Adam D. Stone at the Office of Administrative Hearings (OAH).

Key Facts and Main Issues

The central issue was whether the Association violated A.R.S. § 33-1804 by failing to properly notice a community event—the Courthome Improvement Workshop—held on March 14, 2023. Arizona Revised Statute § 33-1804(D) mandates that notice for board meetings must be given at least 48 hours in advance by newsletter, conspicuous posting, or other reasonable means, and must state the date, time, and place of the meeting.

Hearing Arguments

Petitioner’s Case:

Petitioner Felicia Woodward argued that the notice was improper because the Association failed to follow customary notice methods (community-wide email, portal calendar, and sandwich boards). Although she received an email survey more than 48 hours prior to the meeting, she alleged that the link provided the date and time, but did not include the location (the Zoom link). She presented evidence suggesting the meeting was not listed on the community calendar 24 hours prior. Woodward also noted that a board member questioned the adequacy of the notice at the meeting.

Respondent’s Case:

The Association, represented by Jonathan D. Ebertshauser and Marcus R. Martinez, argued that the Association complied with A.R.S. § 33-1804, noting that the statute does not require consistent notice methods. The General Manager, Erin Busey, testified that the March 14th event was a workshop, not a regular monthly board meeting, explaining why costly sandwich boards were not used. Busey stated that the meeting information, including the date, time, and location (the Zoom link), was entered into the system and sent via email survey on March 7, 2023, exceeding the 48-hour requirement. Furthermore, evidence showed the Petitioner actually opened the survey email and clicked the link. Counsel emphasized the legal point that the failure of any member to receive *actual* notice does not affect the validity of actions taken, provided notice was issued.

Final Decision and Outcome

The Administrative Law Judge determined that the Petitioner did not meet her burden of proving a violation of A.R.S. § 33-1804(D) by a preponderance of the evidence.

  1. Nature of the Meeting: The tribunal was not convinced the workshop was a formal “meeting of the board of directors” under the statute, as it was intended for discussion and review of survey results, with no expectation of voting or decisions.
  2. Sufficiency of Notice: Even if the event were considered a board meeting, the Petitioner was found to have had sufficient notice, having opened the email containing the survey and link on March 7, 2023, a week before the workshop.

The ALJ issued an Order denying the Petitioner’s petition. Furthermore, the Association was not required to reimburse the Petitioner’s filing fee.

Questions

Question

Does an HOA workshop count as a 'board meeting' that requires formal legal notice?

Short Answer

Not necessarily. If no votes are taken or decisions made, it may not be considered a meeting of the board of directors under the statute.

Detailed Answer

The ALJ determined that an event advertised as a 'workshop,' where comments and survey results were discussed but no items were voted on or decisions made, did not qualify as a 'meeting of the board of directors' requiring statutory notice.

Alj Quote

The tribunal was not convinced that this was a 'meeting of the board of directors' under the statute. … There was no expectation that items would be voted on or decisions made.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • workshops
  • definitions

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proving the violation by a 'preponderance of the evidence.'

Detailed Answer

In an administrative hearing, the homeowner must convince the trier of fact that their contention is 'more probably true than not.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Does a member's failure to see a meeting notice invalidate the actions taken at that meeting?

Short Answer

No. The validity of actions taken at a meeting is not affected if a member fails to receive actual notice.

Detailed Answer

Arizona statute explicitly states that if a member does not receive actual notice, it does not void the meeting's actions, provided the notice was properly issued.

Alj Quote

The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • validity
  • homeowner rights

Question

How far in advance must an HOA provide notice for a board meeting?

Short Answer

Notice must be given at least 48 hours in advance of the meeting.

Detailed Answer

Unless emergency circumstances exist, the board must provide notice to members via newsletter, conspicuous posting, or other reasonable means at least 48 hours prior.

Alj Quote

notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • timelines
  • HOA obligations

Question

Can a Zoom link be considered the 'location' of a meeting for notice purposes?

Short Answer

Yes, providing a Zoom link can satisfy the requirement for a meeting location.

Detailed Answer

The decision accepted testimony that a reminder notice containing a Zoom link was considered the location of the meeting, contributing to sufficient notice.

Alj Quote

Ms. Busey testified that a reminder notice was sent out the day of the workshop with the Zoom link, which was considered the 'location' of the meeting.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • virtual meetings
  • notice
  • technology

Question

If I lose my hearing against the HOA, will I get my filing fee back?

Short Answer

No. If the petition is denied, the filing fee is generally not reimbursed.

Detailed Answer

The order specifically stated that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

A.R.S. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • outcomes

Question

Can opening an email with a survey link constitute receiving notice of a meeting?

Short Answer

Yes. Evidence that a homeowner opened an email/link about the event in advance can establish sufficient notice.

Detailed Answer

The ALJ found that because the Petitioner clicked a survey link related to the workshop a week prior, they had sufficient notice of the event.

Alj Quote

Petitioner opened the email regarding the survey and clicked on the link on March 7, 2023, a week prior to the workshop. Therefore, even if this were considered a 'board meeting' Petitioner would have had sufficient notice.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • notice
  • email
  • digital communication

Case

Docket No
23F-H054-REL
Case Title
Felicia Woodward vs The Pointe South Mountain Residential Association
Decision Date
2023-07-28
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Does an HOA workshop count as a 'board meeting' that requires formal legal notice?

Short Answer

Not necessarily. If no votes are taken or decisions made, it may not be considered a meeting of the board of directors under the statute.

Detailed Answer

The ALJ determined that an event advertised as a 'workshop,' where comments and survey results were discussed but no items were voted on or decisions made, did not qualify as a 'meeting of the board of directors' requiring statutory notice.

Alj Quote

The tribunal was not convinced that this was a 'meeting of the board of directors' under the statute. … There was no expectation that items would be voted on or decisions made.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • meetings
  • workshops
  • definitions

Question

What is the burden of proof for a homeowner filing a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proving the violation by a 'preponderance of the evidence.'

Detailed Answer

In an administrative hearing, the homeowner must convince the trier of fact that their contention is 'more probably true than not.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Does a member's failure to see a meeting notice invalidate the actions taken at that meeting?

Short Answer

No. The validity of actions taken at a meeting is not affected if a member fails to receive actual notice.

Detailed Answer

Arizona statute explicitly states that if a member does not receive actual notice, it does not void the meeting's actions, provided the notice was properly issued.

Alj Quote

The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • validity
  • homeowner rights

Question

How far in advance must an HOA provide notice for a board meeting?

Short Answer

Notice must be given at least 48 hours in advance of the meeting.

Detailed Answer

Unless emergency circumstances exist, the board must provide notice to members via newsletter, conspicuous posting, or other reasonable means at least 48 hours prior.

Alj Quote

notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting

Legal Basis

A.R.S. § 33-1804(D)

Topic Tags

  • notice
  • timelines
  • HOA obligations

Question

Can a Zoom link be considered the 'location' of a meeting for notice purposes?

Short Answer

Yes, providing a Zoom link can satisfy the requirement for a meeting location.

Detailed Answer

The decision accepted testimony that a reminder notice containing a Zoom link was considered the location of the meeting, contributing to sufficient notice.

Alj Quote

Ms. Busey testified that a reminder notice was sent out the day of the workshop with the Zoom link, which was considered the 'location' of the meeting.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • virtual meetings
  • notice
  • technology

Question

If I lose my hearing against the HOA, will I get my filing fee back?

Short Answer

No. If the petition is denied, the filing fee is generally not reimbursed.

Detailed Answer

The order specifically stated that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee

Legal Basis

A.R.S. § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • outcomes

Question

Can opening an email with a survey link constitute receiving notice of a meeting?

Short Answer

Yes. Evidence that a homeowner opened an email/link about the event in advance can establish sufficient notice.

Detailed Answer

The ALJ found that because the Petitioner clicked a survey link related to the workshop a week prior, they had sufficient notice of the event.

Alj Quote

Petitioner opened the email regarding the survey and clicked on the link on March 7, 2023, a week prior to the workshop. Therefore, even if this were considered a 'board meeting' Petitioner would have had sufficient notice.

Legal Basis

A.R.S. § 33-1804

Topic Tags

  • notice
  • email
  • digital communication

Case

Docket No
23F-H054-REL
Case Title
Felicia Woodward vs The Pointe South Mountain Residential Association
Decision Date
2023-07-28
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Felicia Woodward (petitioner)
    Property owner/Association member
    Full name is Felicia Anne Woodward; Appeared via Google Meet.

Respondent Side

  • Jonathan D. Ebertshauser (attorney)
    Carpenter, Hazlewood, Delgado, & Bolen
    Represented Respondent.
  • Marcus R. Martinez (attorney)
    Carpenter, Hazlewood, Delgado, & Bolen
    Represented Respondent.
  • Erin Busey (witness/general manager)
    First Service Residential (The Pointe South Mountain Residential Association)
    Called as a witness by Respondent; Identified herself as Aaron Ducy during testimony.

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmission.

Other Participants

  • Debbie Robinson (witness)
    Referenced by Petitioner as the person who took a screenshot exhibit; Presence/testimony not confirmed in hearing record.

R.L. Whitmer v. Hilton Casitas Council of Homeowners

Posted on by

Case Summary

Case ID 23F-H036-REL
Agency —
Tribunal —
Decision Date 2023-07-10
Administrative Law Judge —
Outcome —
Filing Fees Refunded —
Civil Penalties $0.00

Parties & Counsel

Petitioner R.L. Whitmer Counsel —
Respondent Hilton Casitas Council of Homeowners Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

23F-H036-REL Decision – 1040709.pdf

Uploaded 2026-04-24T12:03:54 (46.5 KB)

23F-H036-REL Decision – 1044686.pdf

Uploaded 2026-04-24T12:03:58 (45.2 KB)

23F-H036-REL Decision – 1072349.pdf

Uploaded 2026-04-24T12:04:03 (125.2 KB)

Case Briefing: R.L. Whitmer vs. Hilton Casitas Council of Homeowners (No. 23F-H036-REL)

Executive Summary

The legal dispute between R.L. Whitmer (Petitioner) and the Hilton Casitas Council of Homeowners (Respondent) centered on the procedural requirements for approving management contracts within a condominium association. The Petitioner alleged that the Respondent violated Section 17.1 of the Declaration of Horizontal Property Regime by entering into a management contract with Arizona Community Management Services, LLC (AZCMS) without obtaining the mandated prior approval from a majority of the homeowners.

The Administrative Law Judge (ALJ), Tammy L. Eigenheer, determined that the plain language of the association’s governing documents required homeowner approval before a contract becomes effective. The Respondent’s attempt to retroactively ratify the contract more than two years after its execution was found insufficient to cure the initial breach. Consequently, the Petitioner was granted summary judgment, the Respondent was ordered to reimburse the Petitioner’s filing fee, and the association was directed to strictly adhere to the Declaration’s approval requirements for all future management contracts.

Analysis of Key Themes

1. Interpretation of Governing Documents as Contracts

The case reinforces the legal principle that an association’s governing documents—Declarations, Bylaws, and Articles of Incorporation—constitute a binding contract between the association and its members. The ALJ emphasized that when the language of such a contract is "clear and unambiguous," it must be enforced according to its plain meaning without further interpretation.

2. The Scope of "Prior Approval"

A central theme was the temporal requirement of "prior approval." The Respondent argued that the issue was moot because the owners eventually ratified the management contract in January 2023. However, the court ruled that ratification does not satisfy a "prior approval" requirement. The decision established that "prior" explicitly means before the effective date of the contract, and a vote taken two years into the contract's term cannot retroactively fulfill that condition.

3. Administrative Jurisdiction and Petition Scope

The proceedings highlighted the procedural limitations of the Office of Administrative Hearings (OAH). While the Petitioner attempted to raise concerns regarding the eligibility of board members (arguing they were not record owners and thus not members), the ALJ refused to address these allegations. The judge clarified that the scope of the decision is strictly limited to the specific violations alleged in the original petition. To address board qualifications, a separate petition would have been required.

4. Financial and Civil Penalties in HOA Disputes

The ruling distinguished between compensatory measures and punitive penalties. While the Respondent was ordered to reimburse the Petitioner’s $500 filing fee (a standard result when a violation is found), the ALJ denied the request for additional civil penalties. The transcript suggests that civil penalties require a higher threshold of evidence regarding their appropriateness, which was not met in this summary judgment phase.

Important Quotes and Context

On Governing Document Requirements

"The Council may employ a responsible individual, corporation, partnership or other entity as Manager… subject to prior approval of any such management contract by a majority of the Owners." — Section 17.1 of the Declaration

Context: This is the specific provision at the heart of the dispute. It limits the Board's power by requiring homeowner consent for management hires.

On the Respondent's Defense of Ratification

"I would just reiterate from the association's perspective that you know this issue is moot at this point. given the overwhelming approval and it's just wasting everyone's money um to continue furthering the issue in light of that approval." — Edith Rudder, Counsel for Respondent (March 29, 2023 Transcript)

Context: The Respondent argued that since the owners eventually voted to approve the contract in January 2023, the previous lack of approval no longer mattered.

On the Nature of Breach and Retroactivity

"The reality is is they're in breach of the contract and to try to retroactively uh approve it doesn't cure the breach." — R.L. Whitmer, Petitioner (March 29, 2023 Transcript)

Context: The Petitioner’s counter-argument, which the judge ultimately upheld, asserting that a past violation of the Declaration remains a violation regardless of subsequent actions.

On the Limitation of the Legal Issue

"What I have is the management contract and whether or not that was properly executed and approved by the owners. So, um I will not be addressing the qualifications of the board members… That's not before me in this matter." — Judge Tammy L. Eigenheer (March 29, 2023 Transcript)

Context: The Judge clarifies that she will only rule on the specific management contract approval issue, ignoring secondary arguments about board member eligibility.

Actionable Insights

For Homeowners Associations (HOAs)
  • Strict Compliance with "Prior" Mandates: Associations must identify any provisions in their Declarations that require homeowner approval before taking action. "Ratification" after the fact is not a legal substitute for "prior approval" and leaves the association vulnerable to litigation.
  • Audit of Existing Contracts: Boards should review current vendor and management contracts to ensure they were executed in accordance with the specific voting requirements of their governing documents.
  • Cost of Non-Compliance: Even if an association believes its members support a decision, failing to follow the correct procedure can lead to the mandatory reimbursement of legal filing fees and potential orders for corrective action.
For Petitioners/Homeowners
  • Petition Specificity: When filing a petition with the Department of Real Estate or OAH, it is critical to include all alleged violations. The court will not rule on issues (like board member eligibility) if they are not explicitly raised in the initial filing, even if they seem relevant to the broader context of the dispute.
  • Focus on Plain Language: Success in these matters often depends on pointing to clear, unambiguous language in the Declaration. Arguments based on the "plain meaning" of words (like "prior") are highly effective in summary judgment motions.

Procedural Timeline

Date Event
October 9, 2020 Respondent’s board votes unanimously to enter into the AZCMS contract.
December 1, 2020 Effective start date of the AZCMS management contract.
December 27, 2022 Petitioner (R.L. Whitmer) files the petition alleging a violation of Section 17.1.
January 26, 2023 Owners ratify the AZCMS contract via absentee ballots.
March 10, 2023 ALJ issues order setting a deadline for responses to pending motions.
March 29, 2023 Prehearing conference conducted via Google Meet.
July 10, 2023 Final Decision issued: Summary Judgment granted to Petitioner.

Case Study: R.L. Whitmer v. Hilton Casitas Council of Homeowners (No. 23F-H036-REL)

This study guide examines the legal dispute between Petitioner R.L. Whitmer and the Respondent, Hilton Casitas Council of Homeowners. The case centers on the interpretation of Homeowners Association (HOA) governing documents, specifically regarding the authorization requirements for management contracts.

1. Case Overview and Parties

The matter was adjudicated in the Arizona Office of Administrative Hearings (OAH) before Administrative Law Judge (ALJ) Tammy L. Eigenheer.

  • Petitioner: R.L. Whitmer, a member of the association.
  • Respondent: Hilton Casitas Council of Homeowners, a non-profit corporation governing 29 condominium units in Scottsdale, Arizona.
  • Central Dispute: Whether the Respondent violated its own Declaration of Horizontal Property Regime by entering into a management contract without the prior approval of a majority of the owners.

2. Key Governing Documents

The relationship between the parties and the legal requirements for association actions are governed by a hierarchy of documents:

Document Description and Relevance
Declaration (1972) The primary governing document. Section 17.1 specifically mandates that management contracts are subject to "prior approval" by a majority of the Owners.
Bylaws Outlines administrative procedures, including quorum requirements (majority of members) and voting procedures. Article XI specifies that the Declaration controls in any conflict.
Condominium Act State legislation under which the Respondent is governed.
Nonprofit Corporation Act State legislation governing the corporate structure of the Respondent.

3. Timeline of Events

Date Event
October 9, 2020 The Board of Directors votes unanimously to enter a contract with Arizona Community Management Services, LLC (AZCMS).
December 1, 2020 The management contract with AZCMS becomes effective.
December 27, 2022 Petitioner R.L. Whitmer files a petition alleging a violation of the Declaration.
January 26, 2023 The Owners attempt to ratify the AZCMS contract via absentee ballots during an open meeting.
March 29, 2023 A prehearing conference is held to determine if factual disputes require an evidentiary hearing.
July 10, 2023 ALJ Eigenheer issues the final Administrative Law Judge Decision.

4. Legal Reasoning and Conclusion

The ALJ’s decision rested on the plain language of the contract between the association and its members (the Declaration).

  • The "Prior Approval" Standard: Section 17.1 of the Declaration requires approval prior to the establishment of a management contract.
  • Ineffectiveness of Ratification: The ALJ ruled that the vote taken in January 2023 did not satisfy the "prior approval" requirement for a contract that had already been in effect for over two years.
  • Summary Judgment: Because the facts regarding the timing of the contract and the lack of initial owner approval were undisputed, the case was decided as a matter of law without the need for a full evidentiary hearing on the violation itself.
Final Order Summary
  1. Motion for Summary Judgment: Granted to the Petitioner.
  2. Motion to Dismiss: Denied.
  3. Restitution: Respondent ordered to reimburse Petitioner's $500.00 filing fee.
  4. Civil Penalty: Denied.
  5. Injunctive Relief: Respondent directed to comply with Section 17.1 for all future management contracts.

5. Short-Answer Practice Questions

Q1: According to Section 1.4 and 1.8 of the Declaration, who constitutes the "Council" and how is an "Owner" defined? Answer: The Council consists of all Owners of the Casitas. An Owner is defined as the record owner of a Casita.

Q2: What was the Respondent’s primary argument for why the legal challenge was moot? Answer: The Respondent argued that the issue was moot because the Owners ratified the contract in January 2023 with "overwhelming approval," showing the community was content with the management.

Q3: Why did the ALJ refuse to address Petitioner Whitmer’s allegations regarding the eligibility of certain board members? Answer: The ALJ stated that the qualifications of board members were not raised in the original petition, which was strictly limited to the approval process of the management contract.

Q4: In the event of a conflict between the Bylaws and the Declaration, which document takes precedence? Answer: According to Article XI, Section 1 of the Bylaws, the provisions of the Declaration shall control.

Q5: What was the specific start date of the AZCMS contract, and when did the Petitioner file the petition? Answer: The contract started on December 1, 2020; the petition was filed on December 27, 2022.

6. Essay Prompts for Deeper Exploration

Prompt 1: Contractual Interpretation in HOA Governance Analyze the ALJ’s decision to apply the "plain language" rule to Section 17.1 of the Declaration. Discuss why the court rejected the concept of retroactive ratification as a substitute for "prior approval." How does this interpretation protect the rights of individual homeowners within an association?

Prompt 2: Procedural Hierarchy and the Scope of Administrative Hearings During the prehearing conference, the Petitioner attempted to raise issues regarding board member eligibility, which the ALJ excluded. Discuss the importance of the "original petition" in defining the scope of a legal matter. Why is it procedurally necessary for a judge to limit the case to the issues initially filed?

7. Glossary of Important Terms

  • Administrative Law Judge (ALJ): A judge who trie cases relating to the functions of administrative agencies (in this case, the Office of Administrative Hearings).
  • Casita: The term used in the governing documents to refer to the individual condominium units within the Hilton Casitas.
  • Declaration for Horizontal Property Regime: A legal document that creates the condominium and sets forth the primary rules and restrictions for the association.
  • Motion for Summary Judgment: A request for the court to rule in favor of one party without a trial because there are no disputed facts and the law is clearly on their side.
  • Motion to Dismiss: A formal request for a court to throw out a case, often on the grounds that the claim is moot or lacks legal merit.
  • Prior Approval: A requirement that consent be obtained before an action is taken or a contract is finalized.
  • Quorum: The minimum number of members of an assembly or group that must be present at any of its meetings to make the proceedings of that meeting valid.
  • Ratification: The action of signing or giving formal consent to a treaty, contract, or agreement, making it officially valid after the fact.
  • Respondent: The party against whom a petition is filed (the Association in this case).

The Power of "Prior Approval": Lessons from the Whitmer vs. Hilton Casitas HOA Ruling

1. Introduction: When Governing Documents Mean Exactly What They Say

In the complex landscape of community association law, an HOA’s Declaration and Bylaws are not merely helpful suggestions or flexible guidelines—they are binding contracts. When a board of directors bypasses the procedural requirements clearly outlined in these governing documents, they undermine the legal foundation of the community.

The case of R.L. Whitmer vs. Hilton Casitas Council of Homeowners (No. 23F-H036-REL) stands as a pivotal warning for associations that attempt to take procedural shortcuts. As this administrative ruling demonstrates, even if a decision is eventually favored by a majority of owners, it does not excuse an initial breach of the governing documents. In the eyes of the law, "fixing it later" is rarely a valid substitute for doing it right the first time.

2. The Core Dispute: A Management Contract Without Consent

The conflict originated from an October 9, 2020, board meeting where the Hilton Casitas board voted unanimously to hire Arizona Community Management Services, LLC (AZCMS). The contract was set to begin on December 1, 2020. While the board followed their internal meeting procedures, they neglected a mandatory contractual prerequisite found in their Declaration of Horizontal Property Regime.

The Petitioner, R.L. Whitmer, asserted that the board failed to comply with Section 17.1 of the Declaration, which places a specific limitation on the Council’s authority to employ management.

Section 17.1 of the Declaration states: “Employment: The Council may employ a responsible individual, corporation, partnership or other entity as Manager to manage and control the General Common Elements… subject to prior approval of any such management contract by a majority of the Owners.”

By committing the association to a management entity without first securing the affirmative vote of the majority of the 29 owners, the board bypassed the clear requirement for owner participation in the decision-making process.

3. The "Mootness" Defense: Why Retroactive Ratification Failed

During the pre-hearing conference held on March 29, 2023, the Respondent (the HOA) moved to dismiss the case, arguing that the issue was "moot." They pointed to a vote taken in January 2023—more than two years after the contract began—where the community ratified the management contract. The association’s counsel argued that because the community was "content" with the service, continuing the legal dispute was a waste of members' money and legal fees.

The Petitioner countered that a retroactive vote cannot "cure" a breach of contract that has persisted for years. He argued that the board's ongoing disregard for the governing documents and state statutes necessitated a formal ruling to ensure future compliance.

The Administrative Law Judge (ALJ) rejected the association's defense. In the Conclusions of Law, the ALJ noted that when the intent of the parties is "clear and unambiguous from its plain language," that language must be enforced. The ALJ specifically determined that the term "prior approval" cannot be satisfied by a vote taken after the contract is already in effect. The board’s later attempt to ratify the contract did not change the fact that they had already breached the Declaration.

4. The Administrative Ruling: Findings and Penalties

On July 10, 2023, the ALJ issued a decision granting Summary Judgment in favor of the Petitioner. Because the association admitted to the timeline of the contract and the date of the owners' vote, the facts were "uncontested." This allowed the judge to rule immediately on the law without the need for a full evidentiary hearing on the violation itself.

The final order established the following:

  1. Granting of Summary Judgment: The judge affirmed that the association failed to comply with Section 17.1 of the Declaration.
  2. Denial of Motion to Dismiss: The "mootness" argument based on the retroactive vote was rejected.
  3. Reimbursement of Filing Fee: The HOA was ordered to pay the Petitioner $500.00 for his filing costs.
  4. Directive for Compliance: The ALJ denied the request for civil penalties, opting instead to issue a directive for the HOA to strictly comply with Section 17.1 in all future management contract dealings.
  5. Strict Adherence to the Petition: In a critical lesson for homeowners, the ALJ refused to hear arguments regarding the eligibility of certain board members (corporate vs. trust ownership). The ALJ clarified that because these issues were not raised in the initial petition, they were outside the scope of the matter—reminding all parties that you only get to argue the issues you formally file.
5. Critical Takeaways for HOA Boards and Homeowners

The Whitmer vs. Hilton Casitas ruling offers several essential lessons for maintaining the integrity of community governance:

  • Words Matter: The ALJ's logic was uncompromising: "The plain language of the Declaration is unambiguous" (Conclusion of Law #2). Specifically, an approval given "after the contract… does not constitute prior approval" (Conclusion of Law #8). Terms like "prior" are interpreted strictly; they cannot be redefined for convenience.
  • Procedural Integrity Over Convenience: The association’s defense that the community was "content" or that the board was trying to "save money" by avoiding a hearing was not a legal defense for skipping a mandatory vote. The board must prioritize the process defined in the contract over perceived administrative efficiency.
  • The Scope of the Petition: Homeowners must be meticulous when filing a petition. The ALJ will not opine on issues—such as board eligibility or trust status—unless they are explicitly included in the original filing. You must lay your entire legal groundwork from day one.
  • The Hidden Costs of Non-Compliance: While the association was only ordered to reimburse a $500 filing fee, the real financial impact was the "legal fees for this defense" mentioned by the association’s counsel during the conference. These costs are ultimately borne by the 29 owners, proving that violating the governing documents is far more expensive than following them.
6. Conclusion: Strengthening Community Governance

This ruling is a significant victory for transparency and the adherence to established rules. It reinforces the principle that homeowners have a contractual right to participate in the governance of their community as specified in their Declaration. When a board ignores "prior approval" requirements, they are not just skipping a step; they are breaching a contract with every owner they represent.

For board members, the mandate is clear: Conduct a thorough review of your Declaration and Bylaws before entering into any major contract. For homeowners, this case is a testament to the importance of staying engaged and holding leadership accountable to the community's own rules. Governing documents are the law of the association, and compliance is a non-negotiable obligation.

Case Participants

Petitioner Side

  • R.L. Whitmer (Petitioner)

Respondent Side

  • Edith Rudder (Counsel)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Also referred to as Eadie Rudder
  • Maria McKe (Representative)
    Appeared on behalf of respondent at the pre-hearing conference

Neutral Parties

  • Tammy L. Eigenheer (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners

Posted on by

Case Summary

Case ID 23F-H053-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-10
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah L. Masear Counsel —
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello

Alleged Violations

Article II Section 3 of Respondent’s bylaws

Outcome Summary

The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.

Key Issues & Findings

Failure to hold an annual meeting as required by bylaws

The HOA failed to hold the mandatory annual meeting on March 13, 2023, as explicitly required by the amended bylaws (Article II Section 3). The meeting was subsequently scheduled for May 8, 2023, 56 days late, constituting a violation, even though the later meeting failed to meet quorum.

Orders: Petitioner’s petition is affirmed. Respondent shall reimburse Petitioner’s filing fee of $500.00. Petitioner’s request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.

Analytics Highlights

Topics: HOA, Condominium, Annual Meeting, Bylaw Violation, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Audio Overview

Decision Documents

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-04-24T12:09:36 (115.3 KB)

This summary addresses the legal case hearing concerning Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association (HOA), docket number 23F-H053-REL, which was heard by Administrative Law Judge (ALJ) Brian Del Vecchio on June 19, 2023. The case was referred by the Arizona Department of Real Estate.

Key Facts and Main Issue

The main issue was whether the HOA violated Article II Section 3 of its governing bylaws by failing to hold its 2023 annual meeting as required. The HOA’s bylaws, as amended in 1996, explicitly mandate that the Annual Meeting of Members "shall be held" on the second Monday in March each year. For 2023, the required date was March 13. The Petitioner, Deborah Masear, filed her complaint around April 10, 2023, after the mandated March date had passed without a meeting being scheduled.

Key Arguments and Proceedings

The Petitioner argued that the HOA had been out of compliance regarding the annual meeting schedule for both 2022 and 2023, and that the 2023 meeting was only scheduled *after* she filed her complaint.

The Respondent (HOA) admitted that the meeting was not held on the required March date. However, the HOA argued that the petition should be dismissed because they eventually noticed and held a meeting on May 8, 2023. The HOA further argued that while an election was attempted, no business or election could take place because the members failed to meet the required quorum of 25% (35 members needed), as only 29 members participated. The HOA asserted that the failure to conduct business was due to member non-participation, not a failure of the association itself.

Most Important Legal Points

The ALJ’s determination centered on the interpretation of the HOA’s bylaws. The ALJ emphasized that the phrase "shall be held" within the bylaws is not permissive. Therefore, the HOA was obligated to hold the meeting on the designated March date. The ALJ noted that the May 8, 2023, meeting was 56 days late.

Outcome and Final Decision

The ALJ concluded that the Petitioner sustained her burden of proof. The ALJ found that the Respondent’s conduct violated Article II Section 3 of its bylaws.

The ALJ affirmed the Petitioner’s petition. As relief, the HOA was ordered to reimburse the Petitioner’s filing fee of $500.00. The Petitioner's request to levy a civil penalty against the Respondent was denied. The ALJ's recommendation was set to become the final administrative order unless modified or rejected by the Department of Real Estate within 30 days.

{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }

{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }

Case Participants

Petitioner Side

  • Deborah Masear (petitioner)
    Paradise Park Condominiums Phase II HOA Member
    Also referred to as Deborah Maer

Respondent Side

  • Ashley Moscarello (HOA attorney)
    Goodman Law Group
    Appeared on behalf of Respondent
  • Carl Westlund (witness)
    Management Trust
    Community Manager for the HOA

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Also referred to as Judge Delio
  • Susan Nicolson (Commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Recipient of decision
  • vnunez (ADRE staff)
    ADRE
    Recipient of decision
  • djones (ADRE staff)
    ADRE
    Recipient of decision
  • labril (ADRE staff)
    ADRE
    Recipient of decision

Lisa Kittredge v. SunBird Golf Resort Homeowners Association

Posted on by

Case Summary

Case ID 23F-H040-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-06-13
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge granted the petition, finding that the SunBird Golf Resort Homeowners Association violated its governing documents by allocating funds from the HOA Contingency funding stream (general assessments) for drainage issues benefitting the SunBird Golf Club, as the 2015 CC&Rs, as amended in 2021, restricted such expenditures exclusively to funds collected under Section 6.7(C).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lisa Kittredge Counsel —
Respondent SunBird Golf Resort Homeowners Association Counsel Lori N Brown

Alleged Violations

ARIZ. REV. STAT. § 32-2199 et seq.

Outcome Summary

The Administrative Law Judge granted the petition, finding that the SunBird Golf Resort Homeowners Association violated its governing documents by allocating funds from the HOA Contingency funding stream (general assessments) for drainage issues benefitting the SunBird Golf Club, as the 2015 CC&Rs, as amended in 2021, restricted such expenditures exclusively to funds collected under Section 6.7(C).

Key Issues & Findings

Expenditure of HOA Contingency Funds for Golf Course Drainage Maintenance

Petitioner alleged the HOA improperly used annual assessments (Contingency Fund) to pay $15,968 (capped at $20,000) for cleaning drainage wells on the privately owned SunBird Golf Club property. The ALJ concluded that under the 2015 CC&Rs, as amended in 2021, the HOA was only permitted to expend funds collected specifically pursuant to Section 6.7(C) (Capital Improvement Assessment for Golf Course) for golf course drainage issues, and therefore, using the Contingency fund violated the governing documents.

Orders: Respondent must reimburse Petitioner's filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • SunBird Golf Resort Homeowners Association Covenants, Conditions, and Restrictions Section 6.3(A) (2015)
  • 2021 Amendment to 2015 CC&Rs
  • Section 6.7(C) of the 2021 Amendment
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA Governance, CC&R Interpretation, Unauthorized Expenditure, Contingency Fund, Drainage Maintenance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199 et seq.
  • SunBird Golf Resort Homeowners Association Covenants, Conditions, and Restrictions Section 6.3(A) (2015)
  • 2021 Amendment to 2015 CC&Rs
  • Section 6.7(C) of the 2021 Amendment

Video Overview

Audio Overview

Decision Documents

23F-H040-REL Decision – 1039237.pdf

Uploaded 2026-04-24T12:06:37 (47.3 KB)

23F-H040-REL Decision – 1053619.pdf

Uploaded 2026-04-24T12:06:41 (43.9 KB)

23F-H040-REL Decision – 1064270.pdf

Uploaded 2026-04-24T12:06:47 (155.3 KB)

This summary outlines the hearing proceedings, key arguments, and final decision in the matter of *Lisa Kittredge vs. SunBird Golf Resort Homeowners Association* (No. 23F-H040-REL) before the Office of Administrative Hearings (OAH).

Key Facts and Issues

Petitioner Lisa Kittredge filed a petition alleging that the SunBird Golf Resort Homeowners Association (HOA) violated governing documents by accepting financial responsibility to maintain drainage features on the privately owned, for-profit SunBird Golf Club.

The immediate action challenged was the HOA Board's December 2022 decision to allocate up to $20,000 from the HOA Contingency funding stream to open, inspect, and clean out specific drainage wells on the golf course, in response to standing water, odors, and mosquito problems affecting the community.

The main legal issue was whether the current governing documents authorized the HOA to use general homeowner assessment funds for maintenance activities on the Golf Course property.

Arguments and Proceedings

The evidentiary hearing was conducted over two days, May 1 and May 15, 2023.

Petitioner's Argument: The Petitioner argued that the expenditure was improper because the governing documents prohibit the use of general assessments for the golf course. She contended that the 1999 CC&Rs/Transition Documents, which generally exempted the HOA from maintaining the Golf Course land, were still relevant or controlling. Crucially, she argued that the 2021 Amendment to the CC&Rs explicitly restricted funding for golf course activities only to monies collected pursuant to Section 6.7(C) (the newly created $300 Capital Improvement Assessment fund for the Golf Course and Community). The Petitioner conceded that had the HOA used funds from the restricted 6.7(C) account, she would not have filed the petition.

Respondent's Argument (HOA): The HOA countered that the 1999 documents were superseded by subsequent documents, including the 2015 CC&Rs and 2021 Amendment, which were approved by residents. The HOA asserted that Section 6.3(A) of the 2015 CC&Rs authorized using assessments for "drainage areas within SunBird," arguing that fixing the drainage was necessary for the "common good" of SunBird residents, whose property values and quality of life were negatively impacted by flooding caused in part by community runoff. The HOA classified the allocation as an unbudgeted emergency expense appropriate for the Contingency Fund.

Legal Focus: The Administrative Law Judge (ALJ) focused strictly on the HOA's governing documents (CC&Rs, Bylaws, Articles of Incorporation, and Rules), excluding the 1999 leases and transition agreements as enforceable governing documents in this venue. The ALJ also found that the Petitioner did not establish that the 1999 CC&Rs were still in effect by a preponderance of the evidence, citing the clear intent of the 2008 and 2015 restatements to be the sole current CC&Rs.

Outcome and Final Decision

The ALJ determined that the Petitioner sustained her burden of proof that the Respondent violated the Association’s governing documents.

Key Legal Finding: The ALJ concluded that the 2021 Amendment was controlling regarding the funding mechanism for the Golf Course. While the 2015 CC&Rs allowed assessments for "drainage areas within SunBird," the 2021 Amendment clearly restricted the use of assessments for the golf course (including recreational facilities) to "only from funds collected pursuant to Section 6.7(C)". Since the HOA decision specified the use of the general HOA Contingency funding stream for the $20,000 project, the expenditure violated the governing documents.

Order: The Petitioner's petition was granted. The Respondent was ordered to reimburse the Petitioner’s filing fee of $500.00 and was further ordered to henceforth comply with the provisions of the governing documents. (3,803 characters)

Questions

Question

If my HOA adopts new CC&Rs, are the old ones still valid if they weren't explicitly listed as replaced?

Short Answer

Likely not. The ALJ determined that a community is not expected to have multiple operative sets of CC&Rs at the same time, implying the new ones supersede the old ones.

Detailed Answer

Even if an older set of CC&Rs is not explicitly listed as being replaced by a newer set, the Tribunal may find that the older set is no longer in effect. The ALJ reasoned that the clear intention of adopting amended and restated CC&Rs is to serve as the current governing documents, and it is unreasonable to expect a community to operate under multiple conflicting sets.

Alj Quote

One would not expect a community to have more than one operative set of CC&Rs at any given time.

Legal Basis

Contract Interpretation / Superseding Documents

Topic Tags

  • CC&Rs
  • Governing Documents
  • Amendments

Question

Can my HOA spend general assessment funds on property it doesn't own, like a private golf course?

Short Answer

No, unless the governing documents explicitly define that property as being 'served by the Association' or allow such spending.

Detailed Answer

The ALJ ruled that the HOA could not spend general funds on the golf course because there was no evidence the golf course was 'served by the Association' as defined in the CC&Rs. Furthermore, because a specific amendment created a dedicated fund for golf course costs, the HOA was restricted to using only that specific fund.

Alj Quote

No evidence was submitted to establish that the SunBird Golf Course was 'served by the Association.'… Accordingly, the Association was not permitted to expend funds collected as assessments to any drainage issues for the SunBird Golf Course other than those assessments collected pursuant to Section 6.7(C) of the 2021 Amendment.

Legal Basis

CC&R Restrictions on Expenditures

Topic Tags

  • Financials
  • Common Expenses
  • Private Property

Question

If the HOA creates a specific fund for a specific project, can they use general contingency funds for it instead?

Short Answer

No. If an amendment restricts spending for a specific purpose to a specific fund, the HOA cannot use general funds.

Detailed Answer

In this case, the HOA passed an amendment allowing expenses for the golf course 'but only from funds collected' via a specific capital improvement assessment. The ALJ ruled that using general contingency funds violated this restriction.

Alj Quote

The 2021 Amendment allowed the Association to use assessments for the golf course, 'but only from funds collected' under the newly created Capital Improvement Assessment for Golf Course.

Legal Basis

Adherence to Specific Amendments

Topic Tags

  • Financials
  • Assessments
  • Contingency Funds

Question

Who has to prove that the HOA violated the rules in an administrative hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence,' meaning it is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • Procedure
  • Legal Standards

Question

If I win my case against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

Upon finding that the HOA violated the governing documents, the ALJ ordered the HOA to reimburse the homeowner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Remedies
  • Filing Fees

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The ALJ defines this standard as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't wholly free the mind from doubt.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Standard of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Case

Docket No
23F-H040-REL
Case Title
Lisa Kittredge vs SunBird Golf Resort Homeowners Association
Decision Date
2023-06-13
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA adopts new CC&Rs, are the old ones still valid if they weren't explicitly listed as replaced?

Short Answer

Likely not. The ALJ determined that a community is not expected to have multiple operative sets of CC&Rs at the same time, implying the new ones supersede the old ones.

Detailed Answer

Even if an older set of CC&Rs is not explicitly listed as being replaced by a newer set, the Tribunal may find that the older set is no longer in effect. The ALJ reasoned that the clear intention of adopting amended and restated CC&Rs is to serve as the current governing documents, and it is unreasonable to expect a community to operate under multiple conflicting sets.

Alj Quote

One would not expect a community to have more than one operative set of CC&Rs at any given time.

Legal Basis

Contract Interpretation / Superseding Documents

Topic Tags

  • CC&Rs
  • Governing Documents
  • Amendments

Question

Can my HOA spend general assessment funds on property it doesn't own, like a private golf course?

Short Answer

No, unless the governing documents explicitly define that property as being 'served by the Association' or allow such spending.

Detailed Answer

The ALJ ruled that the HOA could not spend general funds on the golf course because there was no evidence the golf course was 'served by the Association' as defined in the CC&Rs. Furthermore, because a specific amendment created a dedicated fund for golf course costs, the HOA was restricted to using only that specific fund.

Alj Quote

No evidence was submitted to establish that the SunBird Golf Course was 'served by the Association.'… Accordingly, the Association was not permitted to expend funds collected as assessments to any drainage issues for the SunBird Golf Course other than those assessments collected pursuant to Section 6.7(C) of the 2021 Amendment.

Legal Basis

CC&R Restrictions on Expenditures

Topic Tags

  • Financials
  • Common Expenses
  • Private Property

Question

If the HOA creates a specific fund for a specific project, can they use general contingency funds for it instead?

Short Answer

No. If an amendment restricts spending for a specific purpose to a specific fund, the HOA cannot use general funds.

Detailed Answer

In this case, the HOA passed an amendment allowing expenses for the golf course 'but only from funds collected' via a specific capital improvement assessment. The ALJ ruled that using general contingency funds violated this restriction.

Alj Quote

The 2021 Amendment allowed the Association to use assessments for the golf course, 'but only from funds collected' under the newly created Capital Improvement Assessment for Golf Course.

Legal Basis

Adherence to Specific Amendments

Topic Tags

  • Financials
  • Assessments
  • Contingency Funds

Question

Who has to prove that the HOA violated the rules in an administrative hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence,' meaning it is more likely true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • Procedure
  • Legal Standards

Question

If I win my case against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

Upon finding that the HOA violated the governing documents, the ALJ ordered the HOA to reimburse the homeowner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Remedies
  • Filing Fees

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The ALJ defines this standard as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't wholly free the mind from doubt.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Standard of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Case

Docket No
23F-H040-REL
Case Title
Lisa Kittredge vs SunBird Golf Resort Homeowners Association
Decision Date
2023-06-13
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Lisa Kittredge (petitioner)
    Property owner, appeared on her own behalf.
  • Beth Lockwood (witness)
    Testified for Petitioner.

Respondent Side

  • Lori N. Brown (HOA attorney)
    Gordon Rees Scully Mansukhani LLP
  • Ben Bednarek (HOA attorney)
    Also referred to as Benjamin Dinard and Mr. Venorf/Benark.
  • Layne Barney (General Manager)
    SunBird Golf Resort Homeowners Association
    Also referred to as Layne Varney.
  • Charles Brian Heitbrink (board member)
    SunBird Golf Resort Homeowners Association
    Secretary of the Board of Directors. Also referred to as Charles Height.
  • Dirk (board member)
    SunBird Golf Resort Homeowners Association
    Moved motion regarding drainage in Dec 2022 meeting.
  • Jim (board member)
    SunBird Golf Resort Homeowners Association
    Seconded motion regarding drainage in Dec 2022 meeting.
  • Nancy (board member)
    SunBird Golf Resort Homeowners Association
    Made motion regarding golf purchases in Dec 2022 meeting.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Also referred to as Tammy Igener.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.

Other Participants

  • Lewis Ne (Expert (City Engineer))
    City of Chandler
    Consulted regarding storm water drainage.
  • Thomas (Former HOA President)
    Signed 1999 declaration.

Deanna Smith v. Moondance Townhomes Homeowners Association

Posted on by

Case Summary

Case ID 23F-H049-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-06-06
Administrative Law Judge Brian Del Vecchio
Outcome The ALJ affirmed the petition, finding the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide complete financial statements (including balance sheets and statements of cash flows) to the Petitioner upon request. The HOA was ordered to provide the missing financial statements and reimburse the $500 filing fee. A civil penalty was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deanna Smith Counsel —
Respondent Moondance Townhomes Homeowners Association Counsel Christina Morgan

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The ALJ affirmed the petition, finding the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide complete financial statements (including balance sheets and statements of cash flows) to the Petitioner upon request. The HOA was ordered to provide the missing financial statements and reimburse the $500 filing fee. A civil penalty was denied.

Key Issues & Findings

Failure to provide association financial records upon member request.

The Petitioner alleged that the Association failed to comply with her request for financial records dated December 15, 2022, pursuant to ARS § 33-1805. The Association provided only Profit & Loss statements on January 12, 2023, but failed to provide other requisite financial documents, such as balance sheets, statements of cash flows, or statements of income, as defined by ARS § 32-701. The failure to fulfill the request for financial statements constituted a violation.

Orders: The petition was affirmed. Respondent was ordered to reimburse the Petitioner's filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A). Respondent was ordered to provide financial statements, as defined by ARIZ. REV. STAT. § 32-701, for the months of August 2022 through December 2022 pursuant to ARIZ. REV. STAT. § 33-1805. Petitioner's request for a civil penalty was denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-701
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Financial Records, Statutory Compliance, Record Request Delay, Filing Fee Reimbursement, HOA Board Member
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-701
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.

Video Overview

Audio Overview

Decision Documents

23F-H049-REL Decision – 1062328.pdf

Uploaded 2026-04-29T11:20:11 (149.9 KB)

This summary details the administrative hearing held on May 17, 2023, regarding *Deanna Smith v Moondance Town Home Association* (Docket No. 23F-H049-RE).

Key Facts and Parties

The Petitioner, Deanna Smith, is a property owner, member, and board member of the Moondance Townhomes Homeowners Association (HOA), the Respondent. The HOA was represented by Christina Morgan, Esq., with George Minter (President) appearing as a witness. The case was heard by Administrative Law Judge (ALJ) Brian Del Vecchio at the Office of Administrative Hearings (OAH).

Main Issues and Legal Points

The central issue was whether the Respondent violated Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805, which requires associations to make financial and other records reasonably available to members, typically within ten business days of a request.

Petitioner Smith filed a petition on March 6, 2023, alleging the HOA failed to comply with her December 15, 2022, request for the Association's financial statements for September, October, and November 2022. Smith, who has an accounting background, argued that the financial statements she requested encompassed a balance sheet, statement of cash flows, and statement of income, in addition to the Profit & Loss (P&L) statement. This definition aligns with ARIZ. REV. STAT. § 32-701, which defines "Financial Statement" broadly to include these comprehensive reports.

The Respondent’s defense focused on miscommunication and substantial compliance. The Respondent acknowledged internal "dysfunction" and delays caused by the transition from their prior accounting firm to self-management using QuickBooks. While the Respondent emailed P&L statements on January 12, 2023, they failed to provide other requisite documents. Furthermore, the Association’s President Minter initially directed Smith to search a Google Drive, claiming the records were available there, but the Treasurer later admitted the financial reports were never available on the drive. The ALJ noted that even after receiving the P&L statements, Smith’s subsequent request on January 18, 2023, went unfulfilled.

Outcome and Final Decision

The ALJ found that Petitioner Smith sustained her burden of proving the violation by a preponderance of the evidence.

The ALJ issued a decision on June 6, 2023, concluding that the Respondent’s failure to supply the requisite documents—such as balance sheets and statements of cash flows—constituted a violation of ARIZ. REV. STAT. § 33-1805.

The ALJ issued the following order:

  1. The Petitioner’s petition is affirmed.
  2. The request to levy a civil penalty against the Respondent is denied.
  3. The Respondent shall reimburse the Petitioner’s $500.00 filing fee.
  4. The Respondent shall provide financial statements (as defined by ARIZ. REV. STAT. § 32-701) for the months of August 2022 through December 2022.

Questions

Question

If I request 'financial statements' from my HOA, is it enough for them to just send a Profit and Loss statement?

Short Answer

No. A request for 'financial statements' implies more than just a Profit and Loss statement, and the HOA must provide the full range of documents defined by law.

Detailed Answer

The ALJ determined that providing only a Profit and Loss statement is insufficient when a homeowner requests 'financial statements.' The term encompasses a broader set of documents, including balance sheets and statements of cash flows, which must be provided to fully satisfy the request.

Alj Quote

Because Petitioner requested financial statements for the same period after receiving the Profit and Loss statements, implicit in her request was the understanding merely providing the Profit and Loss statement was insufficient to satisfy her request for financial statements.

Legal Basis

ARIZ. REV. STAT. § 32-701; ARIZ. REV. STAT. § 33-1805

Topic Tags

  • financial records
  • definitions
  • HOA obligations

Question

What specific documents does the law include in the definition of 'financial statements'?

Short Answer

The definition includes balance sheets, statements of income, retained earnings, cash flows, changes in equity, and other standard summaries.

Detailed Answer

Arizona law defines 'Financial Statement' broadly. It is not limited to a single report but includes statements and footnotes showing financial position in conformity with accounting principles.

Alj Quote

In Arizona, “Financial Statement… (b) Includes balance sheets, statements of income, statements of retained earnings, statements of cash flows, statements of changes in equity and other commonly used or recognized summaries of financial information.”

Legal Basis

ARIZ. REV. STAT. § 32-701

Topic Tags

  • financial records
  • definitions
  • accounting

Question

How quickly must my HOA respond to my request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute explicitly sets a ten-business-day deadline for the association to fulfill a request for examination or to provide copies of requested records.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • deadlines
  • procedural requirements
  • homeowner rights

Question

Can the HOA tell me to find the records on a Google Drive or website instead of sending them to me?

Short Answer

Only if the records are actually there and accessible. Directing a homeowner to an empty or incomplete digital folder does not count as providing access.

Detailed Answer

In this case, the HOA President directed the homeowner to a Google Drive, but the Treasurer later admitted the specific documents requested were never uploaded. The ALJ ruled that because the documents were not on the drive, the homeowner was not supplied with access.

Alj Quote

Furthermore, although President directed Petitioner to search the Google Drive for the documents, Treasurer admitted on January 23, 2023, that the documents Petitioner was seeking were never on the drive. Thus, Petitioner was neither supplied nor had access to obtain the requisite financial statements.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • digital access
  • compliance
  • records request

Question

Can the HOA charge me a fee for looking at the records?

Short Answer

No. The HOA cannot charge for making material available for review, though they can charge for copies.

Detailed Answer

The law prohibits charging a member for the act of making material available for review. However, if the member requests copies, the association may charge a fee for those copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review. … An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • fees
  • homeowner rights
  • costs

Question

If I win my hearing against the HOA, will I get my filing fee back?

Short Answer

Yes. If the petitioner prevails, the judge is required to order the respondent to reimburse the filing fee.

Detailed Answer

The statute mandates that if the homeowner (petitioner) prevails in the hearing, the administrative law judge must order the HOA (respondent) to pay the filing fee back to the homeowner.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • reimbursement
  • outcomes
  • filing fees

Question

Will the judge automatically fine the HOA if they violated the records law?

Short Answer

No. While the judge has the authority to levy a civil penalty, it is not mandatory, and they may choose to deny a request for a penalty.

Detailed Answer

The ALJ has the discretion to levy a civil penalty but is not required to do so. In this case, although a violation was found, the judge explicitly denied the request to levy a civil penalty against the HOA.

Alj Quote

The administrative law judge… may levy a civil penalty on the basis of each violation… IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • penalties
  • civil penalty
  • judgement

Case

Docket No
23F-H049-REL
Case Title
Deanna Smith v Moondance Townhomes Homeowners Association
Decision Date
2023-06-06
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

If I request 'financial statements' from my HOA, is it enough for them to just send a Profit and Loss statement?

Short Answer

No. A request for 'financial statements' implies more than just a Profit and Loss statement, and the HOA must provide the full range of documents defined by law.

Detailed Answer

The ALJ determined that providing only a Profit and Loss statement is insufficient when a homeowner requests 'financial statements.' The term encompasses a broader set of documents, including balance sheets and statements of cash flows, which must be provided to fully satisfy the request.

Alj Quote

Because Petitioner requested financial statements for the same period after receiving the Profit and Loss statements, implicit in her request was the understanding merely providing the Profit and Loss statement was insufficient to satisfy her request for financial statements.

Legal Basis

ARIZ. REV. STAT. § 32-701; ARIZ. REV. STAT. § 33-1805

Topic Tags

  • financial records
  • definitions
  • HOA obligations

Question

What specific documents does the law include in the definition of 'financial statements'?

Short Answer

The definition includes balance sheets, statements of income, retained earnings, cash flows, changes in equity, and other standard summaries.

Detailed Answer

Arizona law defines 'Financial Statement' broadly. It is not limited to a single report but includes statements and footnotes showing financial position in conformity with accounting principles.

Alj Quote

In Arizona, “Financial Statement… (b) Includes balance sheets, statements of income, statements of retained earnings, statements of cash flows, statements of changes in equity and other commonly used or recognized summaries of financial information.”

Legal Basis

ARIZ. REV. STAT. § 32-701

Topic Tags

  • financial records
  • definitions
  • accounting

Question

How quickly must my HOA respond to my request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute explicitly sets a ten-business-day deadline for the association to fulfill a request for examination or to provide copies of requested records.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • deadlines
  • procedural requirements
  • homeowner rights

Question

Can the HOA tell me to find the records on a Google Drive or website instead of sending them to me?

Short Answer

Only if the records are actually there and accessible. Directing a homeowner to an empty or incomplete digital folder does not count as providing access.

Detailed Answer

In this case, the HOA President directed the homeowner to a Google Drive, but the Treasurer later admitted the specific documents requested were never uploaded. The ALJ ruled that because the documents were not on the drive, the homeowner was not supplied with access.

Alj Quote

Furthermore, although President directed Petitioner to search the Google Drive for the documents, Treasurer admitted on January 23, 2023, that the documents Petitioner was seeking were never on the drive. Thus, Petitioner was neither supplied nor had access to obtain the requisite financial statements.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • digital access
  • compliance
  • records request

Question

Can the HOA charge me a fee for looking at the records?

Short Answer

No. The HOA cannot charge for making material available for review, though they can charge for copies.

Detailed Answer

The law prohibits charging a member for the act of making material available for review. However, if the member requests copies, the association may charge a fee for those copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review. … An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • fees
  • homeowner rights
  • costs

Question

If I win my hearing against the HOA, will I get my filing fee back?

Short Answer

Yes. If the petitioner prevails, the judge is required to order the respondent to reimburse the filing fee.

Detailed Answer

The statute mandates that if the homeowner (petitioner) prevails in the hearing, the administrative law judge must order the HOA (respondent) to pay the filing fee back to the homeowner.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • reimbursement
  • outcomes
  • filing fees

Question

Will the judge automatically fine the HOA if they violated the records law?

Short Answer

No. While the judge has the authority to levy a civil penalty, it is not mandatory, and they may choose to deny a request for a penalty.

Detailed Answer

The ALJ has the discretion to levy a civil penalty but is not required to do so. In this case, although a violation was found, the judge explicitly denied the request to levy a civil penalty against the HOA.

Alj Quote

The administrative law judge… may levy a civil penalty on the basis of each violation… IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • penalties
  • civil penalty
  • judgement

Case

Docket No
23F-H049-REL
Case Title
Deanna Smith v Moondance Townhomes Homeowners Association
Decision Date
2023-06-06
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Deanna Smith (petitioner, board member)
    Moondance Townhomes Homeowners Association

Respondent Side

  • Christina Morgan (HOA attorney)
    Vingham
  • George Minter (President, board member, witness)
    Moondance Townhomes Homeowners Association
  • Linda Dieball (Treasurer, board member)
    Moondance Townhomes Homeowners Association

Neutral Parties

  • Brian Del Vecchio (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • labril (ADRE staff)
    Arizona Department of Real Estate