Category Archives: HOA Cases

Gregory L Smith v. Mountain Bridge Community Association

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Case Summary

Case ID 21F-H2121037-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-06-11
Administrative Law Judge Adam D. Stone
Outcome The Petitioner prevailed on the claim of violating CC&R Article 11.3.2 (failure to negotiate in good faith) but was denied relief on the claim of violating A.R.S. § 33-1811 (conflict of interest). Petitioner was ordered reimbursed $500.00 for the filing fee.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Gregory L. Smith Counsel —
Respondent Mountain Bridge Community Association Counsel Nicole Payne, Esq.

Alleged Violations

A.R.S. § 33-1811
CC&R Article 11.3.2

Outcome Summary

The Petitioner prevailed on the claim of violating CC&R Article 11.3.2 (failure to negotiate in good faith) but was denied relief on the claim of violating A.R.S. § 33-1811 (conflict of interest). Petitioner was ordered reimbursed $500.00 for the filing fee.

Why this result: Petitioner failed to prove the A.R.S. § 33-1811 violation because the statute was interpreted by the Tribunal to require the action to involve compensation.

Key Issues & Findings

Conflict of Interest Disclosure

Petitioner alleged the Respondent violated A.R.S. § 33-1811 because the HOA President failed to disclose a conflict of interest during the approval of his own flagpole. The Tribunal found the statute requires the decision to involve compensation, and Petitioner failed to meet the burden of proof.

Orders: Petition denied as to a violation of A.R.S. 33-1811. Tribunal declined to award a civil penalty.

Filing fee: $1,000.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1811

Failure to Negotiate Claim Resolution in Good Faith

Petitioner claimed Mountain Bridge failed to negotiate a resolution in good faith after he filed a claim notice. Mountain Bridge failed to communicate until approximately 35 days after the claim was noticed. The Tribunal found Respondent failed to negotiate in good faith.

Orders: Petitioner is deemed the prevailing party as to his claim of an Article 11 violation. Respondent must reimburse the $500.00 filing fee within 30 days. Tribunal declined to award a civil penalty.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 11.3.2

Analytics Highlights

Topics: HOA, Conflict of Interest, Failure to Negotiate, Flagpole, Filing Fee
Additional Citations:

  • A.R.S. § 33-1811
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

21F-H2121037-REL Decision – 887461.pdf

Uploaded 2026-04-24T11:33:55 (121.4 KB)

This is a summary of the Administrative Law Judge Decision in the case of *Gregory L. Smith v. Mountain Bridge Community Association*.

Key Facts and Proceedings

Petitioner Gregory L. Smith, a homeowner and member of the Mountain Bridge Community Association (HOA/Respondent), filed a petition alleging the HOA violated its Covenants, Conditions, and Restrictions (CC&R’s) and Arizona statute. The core dispute centered on the HOA’s failure to take enforcement action against Smith’s backyard neighbor—who was also the HOA President (Mr. Riggs)—for installing a flagpole that impacted Smith’s property view. Smith believed the HOA’s Architectural Review Committee (ARC) had an obligation to consider the view from his property when approving the flagpole. The hearings occurred on April 22, 2021, and June 2, 2021.

Main Issues and Arguments

The Tribunal focused on two primary issues after addressing a moot point regarding attorney’s fees:

  1. Violation of A.R.S. § 33-1811 (Conflict of Interest): Smith argued that the HOA violated the statute because the Board President failed to make proper disclosures regarding the flagpole approval, as it was a board decision.
  2. Violation of CC&R Article 11.3.2 (Good Faith Negotiation): Smith argued that the HOA violated the requirement to negotiate in good faith after he filed a formal claim notice on September 8, 2020. The credible evidence showed the HOA or its attorneys failed to communicate with Smith until October 13, 2020, approximately 35 days after the claim notice.

Legal Conclusions and Outcome

The Administrative Law Judge rendered a decision based on whether Smith met his burden of proof by a preponderance of the evidence.

  1. A.R.S. § 33-1811 Claim Denied: The Tribunal found that A.R.S. § 33-1811, concerning board conflicts of interest, applies only when the "contract, decision or other action" involves compensation. Since the decision regarding the flagpole was not found to involve compensation, the Tribunal held that Smith had not sustained his burden of proof regarding the statutory violation.
  2. CC&R Article 11.3.2 Claim Upheld: The Tribunal found that Mountain Bridge failed to negotiate in good faith and violated Article 11.3.2 of the CC&R’s. Although the dispute occurred during the COVID-19 pandemic, the lack of any communication until 35 days post-notice, thereby exceeding the negotiation period, constituted a violation.

Final Decision

The Petitioner’s request regarding the violation of A.R.S. § 33-1811 was denied. Petitioner was deemed the prevailing party solely on the claim that Mountain Bridge violated CC&R Article 11 (failure to negotiate in good faith). As the prevailing party, the Petitioner is entitled to the reimbursement of his $500.00 filing fee from the Respondent within 30 days. The Tribunal declined to award a civil penalty.

Questions

Question

Does a board member violate conflict of interest laws by voting on their own architectural request if no money is exchanged?

Short Answer

Likely not. The ALJ ruled that the conflict of interest statute (A.R.S. § 33-1811) applies specifically to decisions involving compensation.

Detailed Answer

The ALJ interpreted A.R.S. § 33-1811 narrowly. While acknowledging that abstaining from voting on one's own request is 'best practice,' the Judge determined that the phrase 'contract, decision or other action for compensation' implies that the decision must involve compensation to trigger the statutory violation. Since the architectural approval was not for compensation, the statute was not violated.

Alj Quote

However, the word “other” would indicate that the contract or decision would involve compensation. … Therefore, the Tribunal finds that Mr. Smith has not sustained his burden in demonstrating that Mountain Bridge violated A.R.S. § 33-1811.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • Conflict of Interest
  • Board Conduct
  • Architectural Review

Question

If the CC&Rs require the HOA to negotiate a dispute within a certain time, can they simply ignore it?

Short Answer

No. Ignoring a request for negotiation beyond the mandated timeframe can be considered a violation of the duty to negotiate in good faith.

Detailed Answer

In this case, the CC&Rs required the parties to make a reasonable effort to meet and confer. The HOA failed to communicate with the homeowner until 35 days after the claim was noticed (past the 30-day negotiation period). The ALJ found this lack of communication to be a violation of the specific CC&R article requiring good faith negotiation.

Alj Quote

The credible evidence presented demonstrated that Mountain Bridge, or its attorneys, did not communicate with Mr. Smith until October 13, 2020, approximately 35 days after the claim was noticed. … Therefore, the Tribunal finds that Mountain Bridge failed to negotiate in good faith and violated Article 11.3.2 of the CC&R’s.

Legal Basis

CC&R Article 11.3.2

Topic Tags

  • Dispute Resolution
  • Good Faith
  • HOA Obligations

Question

Can the HOA use the COVID-19 pandemic as a valid excuse for failing to communicate with me?

Short Answer

Not if they fail to send any updates. The HOA must at least inform the homeowner of potential delays.

Detailed Answer

The ALJ rejected the HOA's implicit defense that the pandemic justified the delay in communication. The ruling stated that even if the pandemic caused issues, the HOA had an obligation to at least inform the homeowner that delays were occurring. Total silence was not justified.

Alj Quote

While this dispute occurred during the COVID-19 pandemic, certainly communications could have been sent to Mr. Smith informing him there may be some delays in communication. However, there were none, and thus no valid justification for the Board not entering into negotiations with the Smiths.

Legal Basis

Administrative Discretion / Good Faith

Topic Tags

  • Communication
  • Delays
  • Good Faith

Question

Who is responsible for proving that the HOA violated the rules during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove their case by a 'preponderance of the evidence,' meaning they must show it is more likely than not that the violation occurred. The HOA does not have to disprove the claim initially; the burden starts with the homeowner.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 3.1 by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Procedure
  • Burden of Proof
  • Evidence

Question

Can I claim the HOA violated a definition in the CC&Rs, such as 'Visible from Neighboring Property'?

Short Answer

No. You cannot violate a definition; you can only violate the rules that use the definition.

Detailed Answer

The homeowner argued the HOA violated the definition of 'Visible from Neighboring Property.' The ALJ ruled that a definition is descriptive and cannot be violated in and of itself. Violations must be tied to specific covenants or restrictions.

Alj Quote

Further, because “Visible from Neighboring Property” as mentioned in Article 1 is a definition, it is impossible for Mountain Bridge to violate the same.

Legal Basis

Contract Interpretation

Topic Tags

  • CC&R Interpretation
  • Definitions
  • Legal Standards

Question

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

Short Answer

Yes, if you prevail on a claim, the ALJ can order the HOA to reimburse your filing fee.

Detailed Answer

The ALJ deemed the homeowner the prevailing party regarding the 'failure to negotiate' claim (even though other claims were denied) and ordered the HOA to reimburse the $500.00 filing fee within 30 days.

Alj Quote

Thus, Petitioner is entitled to his filing fee of $500.00 and Respondent must reimburse the same with 30 days.

Legal Basis

Administrative Remedy

Topic Tags

  • Remedies
  • Fees
  • Reimbursement

Case

Docket No
21F-H2121037-REL
Case Title
Gregory L. Smith vs. Mountain Bridge Community Association
Decision Date
2021-06-11
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Does a board member violate conflict of interest laws by voting on their own architectural request if no money is exchanged?

Short Answer

Likely not. The ALJ ruled that the conflict of interest statute (A.R.S. § 33-1811) applies specifically to decisions involving compensation.

Detailed Answer

The ALJ interpreted A.R.S. § 33-1811 narrowly. While acknowledging that abstaining from voting on one's own request is 'best practice,' the Judge determined that the phrase 'contract, decision or other action for compensation' implies that the decision must involve compensation to trigger the statutory violation. Since the architectural approval was not for compensation, the statute was not violated.

Alj Quote

However, the word “other” would indicate that the contract or decision would involve compensation. … Therefore, the Tribunal finds that Mr. Smith has not sustained his burden in demonstrating that Mountain Bridge violated A.R.S. § 33-1811.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • Conflict of Interest
  • Board Conduct
  • Architectural Review

Question

If the CC&Rs require the HOA to negotiate a dispute within a certain time, can they simply ignore it?

Short Answer

No. Ignoring a request for negotiation beyond the mandated timeframe can be considered a violation of the duty to negotiate in good faith.

Detailed Answer

In this case, the CC&Rs required the parties to make a reasonable effort to meet and confer. The HOA failed to communicate with the homeowner until 35 days after the claim was noticed (past the 30-day negotiation period). The ALJ found this lack of communication to be a violation of the specific CC&R article requiring good faith negotiation.

Alj Quote

The credible evidence presented demonstrated that Mountain Bridge, or its attorneys, did not communicate with Mr. Smith until October 13, 2020, approximately 35 days after the claim was noticed. … Therefore, the Tribunal finds that Mountain Bridge failed to negotiate in good faith and violated Article 11.3.2 of the CC&R’s.

Legal Basis

CC&R Article 11.3.2

Topic Tags

  • Dispute Resolution
  • Good Faith
  • HOA Obligations

Question

Can the HOA use the COVID-19 pandemic as a valid excuse for failing to communicate with me?

Short Answer

Not if they fail to send any updates. The HOA must at least inform the homeowner of potential delays.

Detailed Answer

The ALJ rejected the HOA's implicit defense that the pandemic justified the delay in communication. The ruling stated that even if the pandemic caused issues, the HOA had an obligation to at least inform the homeowner that delays were occurring. Total silence was not justified.

Alj Quote

While this dispute occurred during the COVID-19 pandemic, certainly communications could have been sent to Mr. Smith informing him there may be some delays in communication. However, there were none, and thus no valid justification for the Board not entering into negotiations with the Smiths.

Legal Basis

Administrative Discretion / Good Faith

Topic Tags

  • Communication
  • Delays
  • Good Faith

Question

Who is responsible for proving that the HOA violated the rules during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove their case by a 'preponderance of the evidence,' meaning they must show it is more likely than not that the violation occurred. The HOA does not have to disprove the claim initially; the burden starts with the homeowner.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 3.1 by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Procedure
  • Burden of Proof
  • Evidence

Question

Can I claim the HOA violated a definition in the CC&Rs, such as 'Visible from Neighboring Property'?

Short Answer

No. You cannot violate a definition; you can only violate the rules that use the definition.

Detailed Answer

The homeowner argued the HOA violated the definition of 'Visible from Neighboring Property.' The ALJ ruled that a definition is descriptive and cannot be violated in and of itself. Violations must be tied to specific covenants or restrictions.

Alj Quote

Further, because “Visible from Neighboring Property” as mentioned in Article 1 is a definition, it is impossible for Mountain Bridge to violate the same.

Legal Basis

Contract Interpretation

Topic Tags

  • CC&R Interpretation
  • Definitions
  • Legal Standards

Question

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

Short Answer

Yes, if you prevail on a claim, the ALJ can order the HOA to reimburse your filing fee.

Detailed Answer

The ALJ deemed the homeowner the prevailing party regarding the 'failure to negotiate' claim (even though other claims were denied) and ordered the HOA to reimburse the $500.00 filing fee within 30 days.

Alj Quote

Thus, Petitioner is entitled to his filing fee of $500.00 and Respondent must reimburse the same with 30 days.

Legal Basis

Administrative Remedy

Topic Tags

  • Remedies
  • Fees
  • Reimbursement

Case

Docket No
21F-H2121037-REL
Case Title
Gregory L. Smith vs. Mountain Bridge Community Association
Decision Date
2021-06-11
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Gregory L. Smith (petitioner)
    Appeared on his own behalf
  • Christa Smith (witness)
    Called by Petitioner

Respondent Side

  • Nicole Payne (HOA attorney)
    Carpenter Hazlewood
    Appeared on behalf of Respondent
  • Amber Martin (community manager)
    Mountain Bridge Community Association
    Also testified as a witness
  • Jim Rayment (ARC Chair)
    Mountain Bridge Community Association
    Approved the flagpole; also testified as a witness
  • Mr. Riggs (HOA President)
    Mountain Bridge Community Association
    Petitioner's backyard neighbor

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of decision transmission

Sandra Swanson & Robert Barnes v. Circle G Ranches 4 Homeowners

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Case Summary

Case ID 21F-H2120020-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-02-02
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sandra Swanson & Robert Barnes Counsel Kristin Roebuck Bethell, Esq.
Respondent Circle G Ranches 4 Homeowners Association Counsel Samantha Cote, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge denied the Petitioners' petition, concluding they failed to prove by a preponderance of the evidence that the Homeowners Association violated ARIZ. REV. STAT. § 33-1805 regarding the availability of voting records.

Why this result: Petitioners failed to demonstrate that the HOA violated the statute through its NDA request or its method of providing the records (redacted ballots and separate unredacted envelopes) and failed to prove the records were not made reasonably available within the required statutory time frame.

Key Issues & Findings

Failure to comply with voting records request (regarding assessment and cumulative voting records)

Petitioners alleged the Association violated ARIZ. REV. STAT. § 33-1805 by requiring an NDA and providing redacted ballots and separate unredacted envelopes, which prevented Petitioners from cross-referencing votes with voters. Respondent argued it timely provided the totality of the requested information and that the manner of delivery did not violate the statute.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: Records Request, HOA Governance, Statute Violation, Voting Records, Non-Disclosure Agreement (NDA)
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805

Video Overview

Audio Overview

Decision Documents

21F-H2120020-REL Decision – 944169.pdf

Uploaded 2026-04-24T11:31:09 (184.1 KB)

21F-H2120020-REL Decision – 944171.pdf

Uploaded 2026-04-24T11:31:17 (184.1 KB)

21F-H2120020-REL Decision – 881665.pdf

Uploaded 2026-04-24T11:31:20 (167.3 KB)

Administrative Law Judge Decision: Swanson & Barnes v. Circle G Ranches 4 HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 21F-H2120020-REL-RHG, a dispute between homeowners Sandra Swanson & Robert Barnes (“Petitioners”) and the Circle G Ranches 4 Homeowners Association (“Respondent”). The core issue was whether the Association violated Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1805 by its handling of the Petitioners’ request for voting records.

The final order, issued on February 2, 2022, denied the petition. The ALJ concluded that the Petitioners failed to sustain their burden of proof that a statutory violation occurred. The decision found that the Association’s method of providing the requested documents—redacted ballots in one stack and unredacted envelopes in another—was a “reasonable” approach that balanced the Petitioners’ right to examination with the Association’s duty to protect member privacy. While acknowledging this methodology was “not ideal,” the ALJ determined it made the totality of the requested information “reasonably available” as required by law and was not a violation. The ruling also established that the Association’s initial request for the Petitioners to sign a non-disclosure agreement did not constitute a statutory violation.

Case Overview

Entity

Details

Case Number

21F-H2120020-REL-RHG

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Administrative Law Judge

Jenna Clark

Petitioners

Sandra Swanson & Robert Barnes

Respondent

Circle G Ranches 4 Homeowners Association

Central Allegation

Respondent failed to comply with a January 16, 2020, voting records request, violating ARIZ. REV. STAT. § 33-1805.

Final Order Date

February 2, 2022

Outcome

Petition Denied.

Chronology of Key Events

• October 4, 2017: The Association’s Board of Directors adopts the “Rule Requiring Secret Ballots” for votes on special assessments.

• October 28, 2019 (approx.): A vote occurs regarding an increase in association dues.

• December 2019: A vote occurs regarding a proposed CC&R amendment to prohibit cumulative voting.

• January 6, 2020: Petitioners submit a written request to view the votes for the cumulative voting amendment.

• January 13, 2020: The Association’s Board votes 8:1 to require Petitioners to sign a nondisclosure agreement (NDA) before viewing the ballots, citing member privacy concerns. Petitioners decline to sign the NDA.

• January 16, 2020: Counsel for Petitioners submits a formal written request for all ballots and related documents for both the dues increase vote and the cumulative voting amendment.

• January 30, 2020: The Association’s counsel responds, stating the Association must “balance your clients’ requests against the privacy and safety of all Owners” and that the records will be made available for inspection.

• February 7, 2020: Petitioners inspect documents at the office of the Association’s counsel. They are provided with two stacks of documents: redacted ballots and unredacted envelopes. They review the cumulative voting records for approximately 3.5 hours but cannot match specific ballots to specific voter envelopes.

• August 5, 2020: Petitioners issue a new demand for “unredacted ballots” and all related documents. No additional documentation is provided.

• September 22, 2020: Petitioners file a petition with the Arizona Department of Real Estate, initiating the formal dispute process.

• May 17, 2021: An initial ALJ Decision is issued.

• June 22, 2021: Petitioners file a request for a rehearing on the grounds that the decision was “arbitrary, capricious, or an abuse of discretion.”

• July 15, 2021: The rehearing request is granted.

• January 13, 2022: The evidentiary rehearing is held before the OAH.

• February 2, 2022: The final ALJ Decision is issued, again denying the Petitioners’ petition.

Central Legal Arguments

The rehearing focused on oral arguments from both parties regarding the interpretation of ARIZ. REV. STAT. § 33-1805, which mandates that association records be made “reasonably available” for member examination.

Petitioners’ Position

• Unredacted Records Required: The statute requires the production of unredacted copies of requested documents, and the Association’s failure to provide original, unaltered documents was a violation.

• Methodology Impeded Access: By providing redacted ballots and separate unredacted envelopes, the Respondent prevented the Petitioners from cross-referencing votes with voters. This action meant the documents were not made “reasonably available.”

• NDA Was an Unlawful Barrier: The Association’s demand for an NDA was not supported by any enumerated exception in the statute and constituted an unlawful barrier to accessing records.

• No Expectation of Privacy: Petitioners argued that the ballots were not truly “secret ballots” because some had names or signatures on them, meaning voters “could not have reasonably held an expectation of privacy.”

Respondent’s Position

• Statute is Silent on Method: The statute does not specify how records must be made available, only that they must be. Respondent argued it had complied by providing the “totality of records” requested in a timely fashion.

• Balancing of Duties: The Association devised a method to satisfy its dual obligations: complying with the records request and protecting its members’ privacy and safety. This concern was heightened by complaints from other homeowners about “harassing” behaviors by the Petitioners.

• Information Was Provided: The two sets of documents (redacted ballots, unredacted envelopes) amounted to one complete set of unredacted records, allowing Petitioners to “cross reference and discern the information they sought.”

• NDA Was Reasonable: The NDA was proposed to protect member privacy regarding their secret ballot votes. Respondent argued it was ultimately irrelevant to the case, as the records were provided even after Petitioners declined to sign it.

Administrative Law Judge’s Analysis and Final Order

The ALJ’s decision rested on a direct interpretation of ARIZ. REV. STAT. § 33-1805 and a finding that the Petitioners did not meet their evidentiary burden.

Key Rulings and Conclusions of Law

1. Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Association violated the statute. The ALJ concluded they failed to do so.

2. On the NDA: The Judge explicitly held that “Respondent’s request that Petitioners sign an NDA does not constitute a violation of ARIZ. REV. STAT. § 33-1805.”

3. On Timeliness: The Association’s response on January 30, 2020, to the January 16, 2020, request was within the 10-business-day statutory deadline (which ended January 31, 2020). The Petitioners did not establish that the documents were unavailable for review prior to the February 7 inspection date.

4. On the Method of Disclosure: This was the central finding. The decision states that the manner in which the documents were provided did not violate the statute. The ALJ found that the record reflected that “Petitioners timely received the totality of the documents from their records request(s).” Because there was no evidence that the documents were not made “reasonably available,” a violation could not be concluded.

5. Reasonableness of Association’s Actions: The ALJ offered a final assessment of the Association’s methodology: “While Respondent’s methodology of document delivery to Petitioners may have not been ideal, under the totality of underlying circumstances the decision reasonable and within the requirements of the applicable statute(s).”

Final Order

Based on the finding that the Petitioners did not sustain their burden of proof, the final order was unambiguous: “IT IS ORDERED that Petitioners’ petition is denied.”

The order is binding on the parties, who were notified of their right to seek judicial review by filing an appeal with the Superior Court within 35 days from the date of service.

Study Guide: Swanson & Barnes v. Circle G Ranches 4 HOA

This guide provides a comprehensive review of the Administrative Law Judge Decision in case number 21F-H2120020-REL-RHG. It is designed to test and reinforce understanding of the key parties, events, arguments, and legal principles outlined in the case.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, drawing exclusively from the information provided in the case documents.

1. Who are the primary parties involved in this legal dispute, and what are their respective roles?

2. What specific statute did the Petitioners allege the Respondent violated, and what is the core requirement of that statute?

3. What two specific sets of voting records did the Petitioners request from the Association in their January 16, 2020 letter?

4. What action did the Association’s Board of Directors take on January 13, 2020, in response to the Petitioners’ initial request, and what was their stated reason for doing so?

5. Describe the method the Association used to provide the requested voting records to the Petitioners on February 7, 2020.

6. What was the Petitioners’ main argument for why the Association’s method of providing the documents failed to comply with the law?

7. What was the Association’s primary defense for the way it provided the records and for its overall actions?

8. According to the “Conclusions of Law,” who bears the burden of proof in this proceeding, and what is the standard required to meet that burden?

9. What was the Administrative Law Judge’s final conclusion regarding the Association’s request that the Petitioners sign a nondisclosure agreement (NDA)?

10. What was the ultimate outcome of the case as determined by the Administrative Law Judge in the final order issued on February 2, 2022?

——————————————————————————–

Answer Key

1. The primary parties are Sandra Swanson & Robert Barnes, who are the “Petitioners,” and the Circle G Ranches 4 Homeowners Association, which is the “Respondent.” The Petitioners are property owners and members of the Association who filed a complaint against it. The Association is the governing body for the residential development, managed by Vision Community Management, LLC.

2. The Petitioners alleged a violation of Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805. The core requirement of this statute is that all financial and other records of a homeowners’ association must be made “reasonably available” for examination by any member within ten business days of a request.

3. The January 16, 2020 letter requested all ballots and related documents from the vote regarding the increase in dues that occurred around October 28, 2019. It also requested all written consent forms and ballots for the Proposed Declaration Amendment regarding cumulative voting, which occurred in December 2019.

4. On January 13, 2020, the Board of Directors voted 8 to 1 to require the Petitioners to sign a nondisclosure agreement (NDA) before viewing the ballots. Their stated reason was a concern for members’ expectation of privacy regarding non-public information and a fear that members could be harassed based on their votes.

5. The Association provided the Petitioners with two separate stacks of documents. One stack contained redacted ballots, and the other stack contained unredacted envelopes that the ballots had been mailed in. This method separated the vote from the identity of the voter.

6. The Petitioners argued that by providing redacted copies and separate envelopes, the Respondent had not made the documents “reasonably available” as required by statute. They contended this method created an unlawful barrier because they were unable to cross-reference the ballots with the purported voters to verify the vote.

7. The Association defended its actions by arguing that the statute does not specify the how records should be produced, only that they be made available. It contended that it provided the totality of the information requested in a timely manner while also fulfilling its duty to protect the privacy and safety of its members from potential harassment.

8. The Petitioners bear the burden of proving by a “preponderance of the evidence” that the Respondent violated the statute. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

9. The Administrative Law Judge concluded that the Respondent’s request for the Petitioners to sign an NDA did not constitute a violation of ARIZ. REV. STAT. § 33-1805. The judge also noted the NDA was ultimately irrelevant to the outcome because the Association provided the documents even though the Petitioners declined to sign it.

10. The Administrative Law Judge denied the Petitioners’ petition. The judge concluded that the Petitioners did not sustain their burden of proof to show that the Association had committed a violation of ARIZ. REV. STAT. § 33-1805, finding the Association’s actions to be reasonable under the circumstances.

——————————————————————————–

Essay Questions

The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response for each prompt, citing specific facts and arguments from the case documents.

1. Analyze the central legal conflict over the interpretation of the phrase “reasonably available” in ARIZ. REV. STAT. § 33-1805. Contrast the arguments made by the Petitioners and the Respondent, and explain how the Administrative Law Judge ultimately resolved this conflict in the decision.

2. Discuss the competing interests the Circle G Ranches 4 Homeowners Association attempted to balance in its response to the records request. Evaluate the measures it took, including the proposed NDA and the method of document delivery, in light of its duties to both the Petitioners and its general membership.

3. Trace the procedural history of the case from the initial petition filing on September 22, 2020, to the final order on February 2, 2022. What does this timeline reveal about the administrative hearing and appeals process for HOA disputes in Arizona?

4. The Petitioners argued that the ballots in question were not truly “secret ballots” and that voters could not have had a reasonable expectation of privacy. Based on the evidence presented, construct an argument supporting this position and a counter-argument defending the Association’s stance on member privacy.

5. Examine the legal reasoning employed by the Administrative Law Judge in the “Conclusions of Law.” How did principles of statutory construction and the “preponderance of the evidence” standard directly influence the final order denying the Petitioners’ petition?

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Glossary of Key Terms

Definition in the Context of the Document

Administrative Law Judge (ALJ)

The official, in this case Jenna Clark, who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision based on findings of fact and conclusions of law.

ARIZ. REV. STAT. § 33-1805

The specific Arizona statute at the heart of the dispute, which mandates that a homeowners’ association’s records be made “reasonably available” for member examination within ten business days of a request.

Association / Respondent

The Circle G Ranches 4 Homeowners Association, the governing body for the residential development and the party against whom the petition was filed.

Board of Directors (the Board)

The group that oversees the Association and is responsible for its governance. The Board voted to require an NDA before releasing voting records.

Burden of Proof

The obligation of a party in a trial (in this case, the Petitioners) to produce the evidence that will prove the claims they have made against the other party.

Covenants, Conditions, and Restrictions. These are the governing documents for the Circle G Ranches 4 Homeowners Association.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings involving homeowners’ associations.

Nondisclosure Agreement (NDA)

A legal contract proposed by the Association’s Board that would have required the Petitioners to keep the voting information confidential. The Petitioners declined to sign it.

Office of Administrative Hearings (OAH)

An independent state agency to which the Department refers HOA dispute cases for an evidentiary hearing before an Administrative Law Judge.

Petitioners

Sandra Swanson and Robert Barnes, members of the Association who filed the petition alleging a violation of state law by the Association.

Preponderance of the Evidence

The evidentiary standard required for the Petitioners to win their case. It is defined as proof that convinces the judge that a contention is more probably true than not.

Redacted

Edited to remove or black out confidential or private information. The Association provided redacted ballots to the Petitioners to protect member privacy.

Vision Community Management, LLC (Vision)

The management company hired by and acting on behalf of the Association.

Your HOA Can Legally Keep Secrets From You. Here’s How.

Introduction: The Fight for Transparency

As a homeowner in an association, you assume a right to see the records. Transparency, after all, is the bedrock of accountability. But a recent legal dispute in Arizona offers a masterclass in how the gap between a right to information and the reality of obtaining it can be vast. The case demonstrates how a determined HOA, armed with a nuanced legal strategy and a literal interpretation of the law, can fulfill its obligation to provide records while ensuring they reveal almost nothing. It’s a story of escalation that began not with redacted documents, but with a demand for a nondisclosure agreement, setting the stage for a battle over what it truly means for records to be “available.”

1. The Two-Pile Shuffle: How “Access” Doesn’t Always Mean “Answers”

The conflict began with a standard request from a group of homeowners (the Petitioners) to examine their HOA’s voting records. The Board’s response, however, was anything but standard. Citing privacy concerns, the Board voted 8-to-1 on a crucial first move: it would require the homeowners to sign a nondisclosure agreement (NDA) before they could view the ballots. The homeowners refused, creating a standoff.

Forced to provide access but unwilling to yield on its privacy stance, the HOA (the Respondent) devised a clever workaround. When the homeowners arrived to inspect the approximately 122 pages of records, they weren’t handed a coherent set of documents. Instead, after spending roughly three and a half hours sifting through the materials, they discovered they had been given two separate stacks: one containing redacted ballots with the votes visible but the names blacked out, and another containing the unredacted envelopes they arrived in.

This “two-pile shuffle” made it impossible to match a ballot to a voter, effectively neutralizing the homeowners’ ability to verify the vote. They argued that this method failed to make the documents “reasonably available” as required by Arizona statute. The HOA’s strategy proved legally astute, leading to a court case that hinged on the very definition of access.

2. The Privacy Shield: A Proactive Defense

The HOA’s justification for its actions was a proactive and layered defense rooted in protecting its members. The Board’s initial demand for an NDA was not a retroactive excuse, but its opening move, signaling a deep-seated concern that releasing the voting information could lead to conflict within the community.

This concern was not merely abstract. Faced with multiple homeowner complaints labeling the Petitioners’ behavior as “harassing,” the Board first attempted to manage the information release by requiring the nondisclosure agreement. When that failed, it developed the two-pile system. The HOA’s legal position was that it had a duty to balance the homeowners’ request against the “privacy and safety of all Owners.” In a letter, the association’s counsel articulated this position clearly:

The Association’s position is that it has to balance your clients’ requests against the privacy and safety of all Owners within the Association. The Board is concerned with the personal information contained on the written consent forms or other documents and fears that individual members will be retaliated against or harassed based on a member’s decision to support, or not support, the matters up for a decision.

This defense, framed as a duty to protect the community from internal strife, became the cornerstone of the HOA’s successful legal argument.

3. The “Reasonably Available” Loophole

The entire legal battle was ultimately decided by the interpretation of a single phrase in Arizona Revised Statute § 33-1805, which requires an association to make its records “reasonably available.” The case exposed a critical ambiguity in the law.

• The Homeowners’ View: They argued that “reasonably available” implies usability. To be meaningful, the records had to be provided in a way that allowed them to cross-reference votes with voters. A deliberately disorganized release, they contended, was not reasonable.

• The HOA’s View: The association countered with a brilliant legal distinction: the statute dictates what records must be produced, not how they must be presented. By providing all the components—the ballots and the envelopes—they had fulfilled their duty, even if they were separated.

In a decision that highlights the judiciary’s deference to the literal text of a statute, the Administrative Law Judge sided with the HOA. The judge’s ruling found no violation because, in the end, the homeowners had received everything they asked for. The legal linchpin of the decision was the finding that “the record reflects that Petitioners timely received the totality of the documents from their records request(s).” This interpretation effectively created a loophole, allowing the HOA to comply with the letter of the law while completely withholding the context the homeowners sought.

Conclusion: When “Legal” Isn’t the Whole Story

This case is a stark reminder that a legally defensible action can still feel like an affront to the spirit of community governance. The HOA’s victory demonstrates that in a dispute over transparency, the side with the more precise reading of the law, rather than the more open approach, may prevail. It reveals the profound tension between a homeowner’s right to know, an association’s duty to protect its members from potential harassment, and the powerful ambiguities hidden in legal statutes. An HOA can, with careful legal maneuvering, use privacy as a shield to deliver information in a way that obscures more than it reveals—and do so without breaking the law.

In a community governed by rules, what’s more important: absolute transparency, or the protection of every member’s privacy?

Case Participants

Petitioner Side

  • Sandra Swanson (petitioner)
  • Robert Barnes (petitioner)
  • Kristin Roebuck Bethell (petitioner attorney)
    Horne Siaton, PLLC
    Also listed as Kristin Roebuck, Esq.,

Respondent Side

  • Jeremy Johnson (respondent attorney)
    Joes, Skelton & Hochuli, PLC
  • Samantha Cote (respondent attorney)
    Joes, Skelton & Hochuli, PLC
    Also listed as Sam Cote, Esq.,
  • Patricia Ahler (witness)
    Circle G Ranches 4 Homeowners Association
  • Amanda Stewart (witness)
    Circle G Ranches 4 Homeowners Association
  • Jennifer Amundson (witness)
    Circle G Ranches 4 Homeowners Association
  • Regis Salazar (witness)
    Circle G Ranches 4 Homeowners Association
  • Clint Goodman (HOA attorney)
    Vision Community Management, LLC
    Attorney for Vision, the HOA's property manager,

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner during initial decision phase
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Commissioner during final/rehearing decision phase,
  • Dan Gardner (ADRE Staff)
    Arizona Department of Real Estate
    ADRE contact c/o Commissioner,,

Charles P Mandela vs. Blue Ridge Estates Homeowners’ Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 20F-H2020042-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-04-27
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge, following a rehearing, affirmed the original decision, concluding that the Petitioner failed to sustain the burden of proof that the Respondent HOA violated CC&R Article X regarding the denial of an architectural modification request for a patio shade. The Respondent was found to have acted in compliance with the community documents, and the appeal was dismissed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Charles P Mandela Counsel —
Respondent Blue Ridge Estates Homeowners' Association Counsel Nicholas Nogami, Esq.

Alleged Violations

CC&R Article X; CC&R Section 10.3

Outcome Summary

The Administrative Law Judge, following a rehearing, affirmed the original decision, concluding that the Petitioner failed to sustain the burden of proof that the Respondent HOA violated CC&R Article X regarding the denial of an architectural modification request for a patio shade. The Respondent was found to have acted in compliance with the community documents, and the appeal was dismissed.

Why this result: Petitioner failed to meet the burden of proof to establish a violation of the CC&R's and failed to follow the procedural requirements necessary to appeal a deemed disapproval under CC&R Section 10.3.

Key Issues & Findings

Denial of request for patio shade structure and alleged violation of response timeline

Petitioner challenged the HOA's denial of his application for a patio shade, arguing the denial was improper because the shade would be attached (not a separate structure) and that the HOA missed the 30-day response deadline. The ALJ determined that the HOA's denial based on the 'only one structure other than the residence' rule (since a shed already existed) complied with the non-exhaustive Architectural Committee Standards (Article X, 10.2). Regarding the delayed response, the ALJ noted that Section 10.3 mandated that a late response results in the request being 'deemed disapproved,' and the Petitioner failed to subsequently request the required appeal meeting.

Orders: The Administrative Law Judge concluded that Petitioner failed to sustain the burden of proof that the Respondent violated Article X of the CC&R’s. The Respondent was declared the prevailing party, and the Petitioner's appeal (rehearing) was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(A)
  • CC&R Article X
  • CC&R Section 10.3

Analytics Highlights

Topics: HOA, CC&R, Architectural Review, Denial, Rehearing, Burden of Proof, Deemed Disapproved
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(A)

Video Overview

Audio Overview

Decision Documents

20F-H2020042-REL-RHG Decision – 876009.pdf

Uploaded 2026-01-23T17:31:30 (118.9 KB)

20F-H2020042-REL-RHG Decision – ../20F-H2020042-REL/850032.pdf

Uploaded 2026-01-23T17:31:33 (113.4 KB)

Briefing on Mandela v. Blue Ridge Estates Homeowners’ Association

Executive Summary

This document synthesizes the findings from two administrative law judge decisions concerning a dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association (“Blue Ridge”). The core issue was Blue Ridge’s denial of Mr. Mandela’s request to build a patio shade structure.

In the initial hearing on January 13, 2021, Mr. Mandela argued the denial was erroneous because the shade would be attached to his house, not a separate structure, and that similar structures existed in the community. Blue Ridge defended its decision based on Article X of its Covenants, Conditions, and Restrictions (CC&Rs), which limits properties to one structure besides the main residence. The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, finding that Blue Ridge acted within the authority granted by its CC&Rs, as its architectural standards were not exhaustive and it provided a reasonably detailed written reason for the denial.

Following this decision, Mr. Mandela was granted a rehearing, which took place on April 16, 2021. During this second hearing, he introduced a new argument that Blue Ridge had violated Article 10.3 of the CC&Rs by failing to respond to his request within the stipulated 30-day timeframe. However, the ALJ found that the same article specifies that a failure to respond results in the request being “deemed disapproved.” The ALJ concluded that Mr. Mandela had failed to follow the subsequent appeal procedures outlined in the CC&Rs and again failed to meet his burden of proof. Consequently, the appeal was dismissed, and Blue Ridge was declared the prevailing party. Notably, during the rehearing, Mr. Mandela testified that his request for the patio shade had since been approved by the Blue Ridge board.

Initial Hearing and Decision (Case No. 20F-H2020042-REL)

The first evidentiary hearing was held on January 13, 2021, before Administrative Law Judge Adam D. Stone to address Mr. Mandela’s petition alleging Blue Ridge violated its CC&Rs.

The Core Dispute

• Petitioner’s Request: On August 28, 2019, Charles P. Mandela submitted a request to build a “patio shade less than 200 sq. feet,” described as a four-post structure he intended to attach to the east wall of his residence.

• Respondent’s Denial: On October 25, 2019, Blue Ridge denied the request, stating: “Only one structure other than the residence may be placed on the property. The site plan that was given for review shows the residence and also a shed on property already existing, this would be the allowable limit per the Architectural Standards.”

Arguments Presented

• Petitioner (Charles P. Mandela):

◦ Argued passionately that the denial was erroneous because the patio shade was to be attached to the house, not a separate, stand-alone structure.

◦ Presented photographs of other properties within Blue Ridge Estates that had multiple structures and stand-alone patio shades similar to his proposal.

• Respondent (Blue Ridge Estates HOA):

◦ Contended it properly followed Article X of the CC&Rs in its denial.

◦ At the hearing, Blue Ridge pointed to Article III of the CC&Rs as justification, classifying the proposed shade as an additional structure on the property.

Judge’s Findings and Conclusions

The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, concluding he had not established by a preponderance of the evidence that Blue Ridge violated Article X of the CC&Rs.

• Interpretation of CC&R Section 10.2: The judge found that the architectural standards listed in this section were explicitly not exhaustive. The text states standards “may include, without limitation, provisions regarding” aspects like size, design, and placement. This allowed the architectural committee to deny the request based on the “one additional structure” rule, even if not explicitly listed.

• Compliance with CC&R Section 10.3: This section requires the committee to provide “reasonably detailed written reasons for such disapproval.” The judge found that the denial email of October 25, 2019, fulfilled this requirement. The email did not need to cite a specific CC&R section, only to provide an explanation.

• On Precedent and Fairness: The ALJ acknowledged Mr. Mandela’s evidence of similar structures on other properties. However, the decision noted: “While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.”

• Final Ruling: The petition was denied in a decision dated January 29, 2021.

Rehearing and Final Decision (Case No. 20F-H2020042-REL-RHG)

Mr. Mandela filed for a rehearing on February 5, 2021, on the grounds that the decision was arbitrary, capricious, or not supported by evidence. The Arizona Department of Real Estate Commissioner granted the request, and a new hearing was held on April 16, 2021.

New Testimony and Arguments

• Petitioner (Charles P. Mandela):

◦ Subsequent Approval: Testified that since the January 29, 2021 decision, his request for the patio shade had been approved by the Blue Ridge board.

◦ Procedural Violation: Argued that Blue Ridge violated CC&R Section 10.3 by failing to respond to his August 28, 2019, request within the required 30-day period, as the denial was not issued until October 25, 2019.

◦ History of Denials: Stated he had made several previous requests in 2018 and 2019 that were either denied or ignored.

◦ Discrimination: Claimed he had been discriminated against due to the previous denials.

• Respondent (Blue Ridge Estates HOA):

◦ Interpretation of Section 10.3: Argued that while the section may be “confusingly drafted,” it stipulates that if the committee fails to respond within 30 days, the request is “deemed disapproved.” Therefore, the board acted within its authority.

◦ Failure to Appeal: Contended that Mr. Mandela failed to follow the proper appeal procedure outlined in the CC&Rs, as he never specifically requested a meeting to discuss the denial.

Judge’s Final Findings and Conclusions

The ALJ affirmed the original decision, finding for the Respondent as the prevailing party and dismissing Mr. Mandela’s appeal.

• Scope of Rehearing: The judge determined that the rehearing was limited to the August 28, 2019, request and its subsequent denial, as that was the sole focus of the original petition. Mr. Mandela’s arguments about prior denials were not considered new evidence relevant to the specific violation alleged.

• Interpretation of the 30-Day Rule: The ALJ sided with the HOA’s interpretation of Section 10.3. While acknowledging that Blue Ridge took more than thirty days to issue a written denial, the judge ruled that the CC&R’s provision for a “deemed disapproved” status meant the request was properly denied under the rules.

• Petitioner’s Failure to Follow Procedure: The judge noted that Mr. Mandela admitted he did not formally request a meeting with the Architectural Committee after the denial, which was the required next step in the appeal process under Section 10.3.

• Final Ruling: The final decision, dated April 27, 2021, concluded that Mr. Mandela failed to sustain his burden of proof. The HOA was found to have acted in compliance with the CC&Rs, and the appeal was dismissed. This order was declared binding on the parties.

Timeline of Key Events

August 28, 2019

Charles Mandela submits his request to build a patio shade.

October 25, 2019

Blue Ridge HOA denies the request via email, citing the one-additional-structure limit.

January 13, 2020

Mandela files a petition with the Arizona Department of Real Estate.

January 13, 2021

The first evidentiary hearing is held before the Office of Administrative Hearings.

January 29, 2021

The Administrative Law Judge (ALJ) issues a decision denying Mandela’s petition.

February 5, 2021

Mandela files a request for a rehearing.

March 15, 2021

The Commissioner of the Department of Real Estate grants the rehearing request.

April 16, 2021

The rehearing is conducted.

April 27, 2021

The ALJ issues a final decision, finding for the HOA and dismissing Mandela’s appeal.

Central CC&R Provision: Article X, Section 10.3

The most heavily debated provision was Section 10.3 of the Blue Ridge Estates CC&Rs, which outlines the procedure for architectural requests. Its language was central to the outcome of the rehearing.

Key text from Section 10.3:

“The Architectural Committee shall have thirty (30) days after receipt of such plans, specifications, and elevations to approve or disapprove of the proposed construction… In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved and the Owner can then request a meeting with the Architectural Committee to discuss the reasons for such disapproval…”

This clause was interpreted by the ALJ to mean that the HOA’s failure to provide a written response within 30 days automatically constituted a denial, shifting the burden to the homeowner to request a follow-up meeting, a step Mr. Mandela did not take.

Study Guide: Mandela v. Blue Ridge Estates Homeowners’ Association

This study guide provides a comprehensive review of the administrative legal dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association, as detailed in the Administrative Law Judge Decisions from January 29, 2021, and April 27, 2021. The case centers on the denial of an architectural request and the interpretation of the association’s governing documents (CC&Rs).

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Quiz: Key Facts and Arguments

Answer the following questions in 2-3 sentences each, based on the provided legal decisions.

1. Who were the primary parties in this case, and what were their roles?

2. What specific structure did Charles P. Mandela request approval to build on August 28, 2019?

3. What was the initial reason given by the Blue Ridge Estates HOA for denying Mr. Mandela’s request on October 25, 2019?

4. What was Mr. Mandela’s central argument during the first hearing on January 13, 2021?

5. According to the decision from the first hearing, why did the Administrative Law Judge rule that the HOA’s denial was in compliance with Section 10.2 of the CC&Rs?

6. On what grounds did Mr. Mandela file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 5, 2021?

7. During the rehearing, what new argument did Mr. Mandela raise concerning the timeline of the HOA’s denial of his August 28, 2019 request?

8. How did the HOA’s legal counsel counter Mr. Mandela’s argument regarding the 30-day response time outlined in Section 10.3?

9. What procedural step, outlined in Section 10.3, did Mr. Mandela admit he failed to take after his request was deemed denied?

10. What was the final outcome of the rehearing on April 16, 2021, and what was the judge’s conclusion regarding the HOA’s actions?

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Answer Key

1. The primary parties were Petitioner Charles P. Mandela, a homeowner, and Respondent Blue Ridge Estates Homeowners’ Association of Coconino County. Mr. Mandela filed the petition against the HOA after it denied his request to build a patio shade.

2. On August 28, 2019, Mr. Mandela requested approval to build a “patio shade less than 200 sq. feet.” The structure was a four-post shade that he intended to attach to the east side wall of his residence.

3. The HOA denied the request based on Architectural Committee Standards Article X. The denial stated that only one structure other than the residence may be placed on the property, and Mr. Mandela already had a residence and a shed.

4. Mr. Mandela’s central argument was that the denial was erroneous because the patio shade was not a separate stand-alone structure. He planned to attach it to his house, and he presented photographs of other properties with similar structures.

5. The judge ruled the denial complied with Section 10.2 because the list of standards the Architectural Committee could enforce was “not an exhaustive one.” This meant the committee could properly deny the request based on the one-structure limit, even if it wasn’t explicitly enumerated.

6. Mr. Mandela requested a rehearing on the grounds that the findings of fact were arbitrary, capricious, or an abuse of discretion. He also claimed the decision was not supported by the evidence or was contrary to law.

7. During the rehearing, Mr. Mandela argued that the Board violated Section 10.3 of the CC&Rs. He contended that since he made his request on August 28, 2019, and the Board did not respond until October 25, 2019, it had failed to provide a written response within the required 30-day period.

8. The HOA’s counsel argued that while Section 10.3 may be “confusingly drafted,” it specifies that if the committee fails to approve or disapprove within the 30-day period, the request is “deemed disapproved.” Therefore, the Board was within its authority.

9. Mr. Mandela admitted that he did not formally request a meeting with the Architectural Committee to discuss the reasons for the disapproval. This is the procedural step required by Section 10.3 after a request is deemed denied.

10. The final outcome was that the petition was dismissed, and the Respondent (HOA) was declared the prevailing party. The judge concluded that the HOA had not violated the CC&Rs and had acted in compliance with its governing documents.

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Essay Questions for Further Study

The following questions are designed to promote a deeper analysis of the case. Formulate a comprehensive response to each, citing specific details from the legal decisions.

1. Analyze the interpretation of CC&R Section 10.3, specifically the “deemed disapproved” clause. Discuss how this clause functioned as a key legal defense for the HOA and ultimately shaped the outcome of the rehearing.

2. The legal standard in this case was “a preponderance of the evidence.” Define this standard as described in the legal text and evaluate the evidence Mr. Mandela presented in both hearings. Why did the Administrative Law Judge conclude that Mr. Mandela failed to meet his burden of proof?

3. Compare and contrast the arguments presented by the Petitioner and Respondent in the initial hearing (January 13, 2021) versus the rehearing (April 16, 2021). How did the focus of the legal arguments shift between the two proceedings?

4. Examine the authority and jurisdiction of the Architectural Committee as outlined in CC&R Section 10.2. Discuss the significance of the phrase “Such standards and procedures may include, without limitation, provisions regarding…” in the judge’s initial decision.

5. Trace the procedural history of this case, from Mr. Mandela’s initial request in August 2019 to the final order in April 2021. Identify at least four key procedural milestones and explain their significance to the case’s progression and ultimate resolution.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge, in this case Adam D. Stone, who presides over hearings at the Office of Administrative Hearings and makes decisions on petitions concerning disputes regulated by state agencies.

Architectural Committee

A body within the Blue Ridge Estates HOA established by Article X of the CC&Rs, with jurisdiction over all original construction and any modifications, additions, or alterations to the exterior of homes or properties.

Arizona Department of Real Estate

The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations and the associations themselves in Arizona.

Burden of Proof

The obligation of a party in a legal proceeding to produce evidence that proves the facts it claims are true. In this case, the Petitioner (Mr. Mandela) bore the burden of proof.

An abbreviation for Covenants, Conditions, and Restrictions, which are the governing legal documents for a planned community like Blue Ridge Estates. This case centered on the interpretation of Article X of the Blue Ridge CC&Rs.

Homeowners’ Association (HOA)

The governing organization for a planned community. In this case, the Respondent was the Blue Ridge Estates Homeowners Association of Coconino County.

Motion to Dismiss

A formal request filed by a party asking for a lawsuit or petition to be dismissed. The Blue Ridge HOA filed a Motion to Dismiss, which was denied on October 7, 2020, allowing the case to proceed.

Office of Administrative Hearings

An independent state agency in Arizona where petitions related to disputes with HOAs are sent for an evidentiary hearing before an Administrative Law Judge.

Petitioner

The party who files a petition initiating a legal action. In this case, Charles P. Mandela was the Petitioner.

Preponderance of the Evidence

The standard of proof required in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” representing the greater weight of evidence.

Rehearing

A second hearing granted to review a legal decision. Mr. Mandela was granted a rehearing after the initial decision, based on his claim that the findings were arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this case, the Blue Ridge Estates Homeowners’ Association was the Respondent.

Tribunal

A term used in the documents to refer to the judicial body hearing the case, specifically the Office of Administrative Hearings and the presiding Administrative Law Judge.

He Fought the HOA Over a Patio and Lost. Here Are 5 Shocking Lessons Every Homeowner Needs to Learn.

Introduction: The Perils of a Simple Home Improvement Project

For any homeowner, the excitement of a new project—a deck, a fence, or a simple patio shade—can quickly turn to frustration when it collides with the dense rulebook of a Homeowners’ Association (HOA). What seems like a straightforward improvement can become a complex battle of bylaws and procedures.

This was the reality for Charles P. Mandela, a homeowner in the Blue Ridge Estates community. His plan to build a simple patio shade was denied by his HOA, sparking a legal challenge that went before an Administrative Law Judge. While Mr. Mandela ultimately lost his case on its legal merits, the details of his fight offer a masterclass in the surprising and often counter-intuitive world of HOA governance. This article distills the most shocking lessons from his case, providing critical insights for any homeowner living under an HOA.

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1. The “Deemed Disapproved” Clause: How an HOA’s Silence Becomes a Legal “No”

Mr. Mandela submitted his request to build a patio shade on August 28, 2019. He argued that the HOA, Blue Ridge Estates, violated its own rules, which required a response within 30 days. The HOA didn’t send its formal denial until October 25, 2019, well past the deadline. On the surface, it seemed like a clear procedural violation by the HOA.

However, a bizarre and “unartfully drafted” clause hidden in the HOA’s governing documents (CC&Rs) turned this logic on its head. The rule stated:

In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved…

Contrary to common sense, the rule meant that the HOA’s failure to respond on time resulted in an automatic denial, not a pending approval. The Administrative Law Judge was bound by this text, concluding that because the 30-day period had passed without a formal approval, the request was “properly deemed denied.”

2. The “My Neighbor Has One” Argument Is Weaker Than You Think

To support his case, Mr. Mandela presented photographs showing that “similar shades exist on other properties with additional structures.” He argued that the HOA was engaging in selective enforcement by denying his project while having approved others like it. This is one of the most frequent arguments homeowners make when they feel singled out by their HOA board.

The judge’s conclusion was a stunning reality check. The legal decision stated:

While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.

The legal reasoning here is crucial for homeowners to understand. Architectural committees are not static; members change, and so can their interpretation of aesthetic standards. Each application is legally considered a distinct request, evaluated under the rules in place at that moment. A previous committee’s approval—which may have even been a mistake or a variance granted under different circumstances—does not create a binding legal precedent that forces the current committee to repeat it.

3. Procedure is Everything: A Missed Step Can Cost You the Case

The HOA’s rules contained a specific process for appealing a denial. After a project is “deemed disapproved” because the 30-day clock ran out, the homeowner must then formally request a meeting with the committee to discuss the denial.

The judge found that Mr. Mandela had failed to take this critical next step. This procedural misstep, however small it might seem, became a key factor in the case against him. The decision hinged on this procedural failure, stating:

Further, Petitioner admitted that in his several email responses that he did not formally request a meeting with the Architectural Committee, thus he failed to follow the procedures in Section 10.3.

This highlights a crucial lesson: meticulously follow every single procedural step outlined in your HOA’s documents. Failure to do so, such as not using the correct language to request a meeting, can be used to dismiss your claim, regardless of its other merits.

4. “Unartfully Drafted” Rules Can Still Be Legally Binding

Even the Administrative Law Judge acknowledged the poor quality of the HOA’s rulebook. In the decision, the judge offered a candid assessment of the rule regarding the 30-day response time, stating, “Admittedly this section is unartfully drafted…”

Despite this observation, the rule was enforced exactly as written. The judge was bound by the text, however confusing, and concluded that “from the evidence presented, the request was properly deemed denied.”

This is perhaps the most sobering lesson. Homeowners often assume that a rule that is confusing or seems illogical won’t hold up under scrutiny. This case proves that the literal text of the governing documents possesses immense power. What a rule literally says is far more important than what one might assume it should mean.

5. The Final Twist: He Lost the Case But Got His Patio Anyway

After the initial decision was made against him, Mr. Mandela requested a rehearing. During this second hearing, a surprising fact emerged. Mr. Mandela testified that “since the decision on January 29, 2021, his request for the patio shade had been approved by the Board.”

This outcome highlights a crucial dynamic: while Mr. Mandela lost the legal argument based on procedural history, his persistent engagement in the process—including filing a formal appeal—likely created enough administrative and community pressure to compel the Board to find a practical, non-legal solution. It’s a powerful reminder that a legal loss on a technicality does not always foreclose a real-world victory.

——————————————————————————–

Conclusion: Do You Really Know Your HOA’s Rules?

The case of Charles Mandela serves as a powerful cautionary tale. It reveals that HOA disputes are rarely won on appeals to fairness or common sense. Instead, they are won or lost in the fine print of the governing documents—documents that can contain counter-intuitive clauses, procedural traps, and “unartfully drafted” rules that are nonetheless legally binding.

A homeowner’s best defense is not passion or conviction, but a deep and thorough understanding of the specific rules and procedures they agreed to live by. This case forces every homeowner to ask: Are you prepared to navigate the literal text of your community’s rules, where silence can mean “no” and a neighbor’s precedent is no precedent at all?

Case Participants

Petitioner Side

  • Charles P Mandela (petitioner)

Respondent Side

  • Nicholas Nogami (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Robert H GelinasRobert H Gelinas v. The Meadows at Eagle Ridge

Posted on by

Case Summary

Case ID 21F-H2121034-REL
Agency Office of Administrative Hearings
Tribunal —
Decision Date 2021-04-23
Administrative Law Judge —
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Robert H. Gelinas Counsel —
Respondent The Meadows at Eagle Ridge Property Owners Association, Inc. Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

21F-H2121034-REL Decision – 874987.pdf

Uploaded 2026-04-24T11:33:46 (65.7 KB)

Decision Analysis: Gelinas vs. The Meadows at Eagle Ridge Property Owners Association, Inc.

Executive Summary

On April 23, 2021, Administrative Law Judge Velva Moses-Thompson issued a decision in the matter of Robert H. Gelinas vs. The Meadows at Eagle Ridge Property Owners Association, Inc. (Case No. 21F-H2121034-REL). The Petitioner, Robert H. Gelinas, alleged that the Association failed to hold a required members meeting during the calendar year of 2019, thereby violating both Arizona Revised Statutes (A.R.S.) and the Association’s own Bylaws.

Following an evidentiary hearing on April 8, 2021, the Administrative Law Judge (ALJ) found that the Association undisputed the fact that no meeting was held in 2019. The Respondent’s justifications—regarding financial cycles and holiday scheduling—were deemed legally insufficient to override statutory and governing document requirements. The ALJ ordered the Association to comply with all relevant laws and bylaws moving forward and to reimburse the Petitioner $500.00 for his filing fee.

Detailed Analysis of Key Themes

1. Statutory and Governing Document Compliance

The core of the dispute centered on the intersection of state law and internal association governance. The Petitioner cited two specific authorities that the Association allegedly violated:

  • A.R.S. § 33-1804(B): This Arizona statute mandates that a meeting of the association’s members must be held at least once each year.
  • Association Bylaws (Article IV, Section 1): These internal rules require that an annual meeting of the members be held "at least once every twelve (12) months" at a time and place determined by the Board.

The ruling emphasizes that these requirements are not discretionary. The Association’s failure to hold a meeting within the 2019 calendar year constituted a direct breach of both the state’s legislative mandate and the Association’s contractual obligations to its members.

2. Legal Standard: Preponderance of the Evidence

The ALJ clarified the burden of proof required in such administrative hearings. As the Petitioner, Mr. Gelinas bore the burden of proving the violation by a "preponderance of the evidence." The court defined this as:

  • Evidence of greater weight or more convincing than the opposing evidence.
  • Evidence that shows the facts sought to be proved are "more probable than not."

Because the Association admitted to not holding the meeting in 2019, the Petitioner easily met this evidentiary threshold.

3. Managerial vs. Legal Requirements

The Respondent’s defense rested on administrative and logistical preferences rather than legal justifications. Testimonies from DHB Management and Association representatives highlighted two primary reasons for the delay:

  • Financial Cycles: The Association President testified to a belief that meetings should occur in January following the closure of financial books in December.
  • Quorum Concerns: The Association argued that holding a meeting in late 2019 was avoided to ensure sufficient member attendance, which they believed would be hindered by the holiday season.

The ALJ's decision suggests that these practical considerations do not grant an association the authority to bypass the "at least once each year" requirement stipulated by law.

Important Quotes with Context

On Meeting Frequency

"An annual meeting of the Members shall be held at least once every twelve (12) months thereafter at such time and place as is determined by the Board."

  • Context: This quote is from Article IV, Section 1 of the Association’s Bylaws, which established the specific internal timeline the Board was required to follow.
On State Mandates

"A meeting of the Association’s members must be held at least once each year. See A.R.S. § 33-1804(B)."

  • Context: This Conclusion of Law reaffirms that regardless of an association's internal preferences, state law imposes a minimum requirement for annual member engagement.
On the Burden of Proof

"Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not."

  • Context: Extracted from Black’s Law Dictionary, this definition was used by the ALJ to establish the standard by which Mr. Gelinas’s claims were evaluated.
On the Final Order

"IT IS FURTHER ORDERED that not later than 30 days from the date of this Order, The Meadows shall pay $500.00 to Mr. Gelinas for his filing fee."

  • Context: This highlights the financial consequence of the Association’s non-compliance, shifting the cost of the legal challenge back to the Respondent.

Actionable Insights

For Homeowners’ Association Boards
  • Strict Adherence to Timelines: Boards must ensure that annual meetings are scheduled within the calendar year and within the 12-month window specified by bylaws. Administrative convenience (such as waiting for financial audits) does not supersede statutory requirements.
  • Quorum Proactivity: Concerns regarding low attendance during holiday seasons should be addressed through better scheduling earlier in the year or enhanced member outreach, rather than postponing the meeting into the following year.
  • Financial Liability: Failure to follow bylaws and state statutes can result in formal petitions to the Department of Real Estate, leading to mandatory legal compliance orders and the reimbursement of petitioner filing fees.
For Association Members
  • Regulatory Recourse: Members have a clear legal pathway through the Department of Real Estate and the Office of Administrative Hearings if an association fails to uphold its governance obligations.
  • Precedent for Filing Fees: The recovery of filing fees is a possible outcome when a member successfully proves a violation of Title 33 or the Association Bylaws.
Operational Summary Table
Legal Authority Requirement Association Action Court Ruling
A.R.S. § 33-1804(B) Meeting at least once each year No meeting in 2019 Violation
Bylaws Art. IV, Sec. 1 Meeting every 12 months Meeting held Jan 2020 (post-2019) Violation
A.A.C. R2-19-119 Preponderance of evidence Admitted no meeting held Burden Met

Case Study: Gelinas v. The Meadows at Eagle Ridge Property Owners Association, Inc.

This study guide examines the administrative hearing and subsequent decision regarding a dispute between a property owner and a homeowners' association. The case focuses on the statutory and contractual obligations of associations to hold regular member meetings and the legal standards used to adjudicate such disputes in the state of Arizona.

Core Case Information

  • Case Number: 21F-H2121034-REL
  • Petitioner: Robert H. Gelinas
  • Respondent: The Meadows at Eagle Ridge Property Owners Association, Inc.
  • Administrative Law Judge: Velva Moses-Thompson
  • Hearing Date: April 8, 2021

Key Legal Concepts and Statutory Framework

Statutory Requirements

The primary legal foundation for this case is Arizona Revised Statutes (A.R.S.) § 33-1804(B). This statute mandates that a meeting of a homeowners' association's members must be held at least once each year.

Governing Documents

In addition to state law, the Association is governed by its own Bylaws. Specifically, Article IV, Section 1 dictates the timing of member meetings:

  • Initial Meeting: Must be held within 90 days after all voting rights have vested in the members.
  • Subsequent Meetings: Must be held at least once every 12 months thereafter.
Burden of Proof

In these proceedings, the Petitioner bears the burden of proof. They must establish the violation by a preponderance of the evidence. As defined in Black's Law Dictionary and applied in this case, this means the evidence must show that the fact sought to be proved is "more probable than not."

Summary of Findings and Decision

The Dispute

Robert H. Gelinas alleged that the Association violated both state law and its own bylaws by failing to hold a members meeting during the calendar year 2019. While a meeting was held on January 11, 2020, it was argued that this did not satisfy the requirement for a meeting in 2019.

Testimonies and Evidence
  • Respondent’s Defense: Deborah Bolzano (President of DHB Management) testified that she believed meetings should occur in January after the year-end financial closing. Bill Godwin testified that the 2019 meeting was delayed because the Association was concerned about obtaining a quorum during the holiday season.
  • Admission: The Association admitted that no members meeting was held in 2019.
The Order

The Administrative Law Judge ruled in favor of the Petitioner. The final order included:

  1. A mandate for the Association to fully comply with A.R.S. § 33-1804(B) and its Bylaws in the future.
  2. A requirement for the Association to reimburse the Petitioner’s $500.00 filing fee within 30 days of the order.

Short-Answer Practice Questions

  1. Who managed the Association during the period relevant to the dispute?
  2. According to the Association’s Bylaws, how often must an annual meeting be held after the initial meeting?
  3. On what date did the Association eventually hold the meeting intended for 2019?
  4. What was the specific amount the Association was ordered to pay the Petitioner, and what did this payment represent?
  5. Which state agency is authorized to receive and decide petitions from homeowners' association members in this jurisdiction?
  6. What reason did Bill Godwin provide for the Association’s failure to hold a meeting in 2019?
  7. What is the definition of "preponderance of the evidence" used by the Administrative Law Judge?

Essay Questions for Deeper Exploration

  1. Statutory vs. Internal Governance: Analyze the intersection of state law (A.R.S. § 33-1804(B)) and the Association’s internal Bylaws. How did the two documents reinforce one another in this case, and why was the Association’s internal scheduling preference (waiting for financial books to close) insufficient to override these requirements?
  2. The Role of the Administrative Law Judge: Discuss the function of the Office of Administrative Hearings in resolving HOA disputes. Why is the "preponderance of the evidence" standard appropriate for this type of civil/administrative matter?
  3. Organizational Accountability: Evaluate the justifications provided by the Association for the lack of a 2019 meeting. To what extent should logistical challenges, such as the holiday season or financial reporting cycles, excuse an organization from its legal and contractual obligations to its members?

Glossary of Important Terms

Term Definition
A.R.S. § 33-1804(B) The Arizona Revised Statute requiring homeowners' associations to hold a member meeting at least once per year.
Administrative Law Judge (ALJ) A judge who triages and decides cases for administrative agencies; in this case, Velva Moses-Thompson.
Bylaws The internal rules and regulations adopted by an association (in this case, in 1996) to govern its operations and member meetings.
Department of Real Estate The state department authorized to receive and decide petitions regarding homeowners' association disputes.
DHB Management The entity responsible for managing the Meadows at Eagle Ridge Property Owners Association, Inc.
Petitioner The party who initiates a petition or lawsuit (Robert H. Gelinas).
Preponderance of the Evidence The legal standard of proof where the evidence must show that a claim is more likely to be true than not.
Respondent The party against whom a petition is filed (The Association).
Vesting The point at which rights (such as voting rights) become legally held by the members.

When "Once a Year" Isn't Optional: Lessons from a Recent Arizona HOA Ruling

The Importance of HOA Accountability

Homeowners who invest in managed communities do so with the expectation of transparency, predictable governance, and strict adherence to the law. Because Property Owners Associations (POAs) hold significant authority over community finances and resident rights, legal compliance is never a mere suggestion—it is a mandatory requirement.

A recent case brought before the Arizona Department of Real Estate, Robert H. Gelinas vs. The Meadows at Eagle Ridge Property Owners Association, Inc. (No. 21F-H2121034-REL), highlights the friction that often exists between board convenience and statutory duty. The central question of the case was simple but significant: Can an association skip a calendar year for its annual meeting simply because it is more convenient for their accounting or scheduling?

The Case Background: A Missing Meeting in 2019

The dispute involved Petitioner Robert H. Gelinas, a homeowner at 131 East Rosser Street, and Respondent The Meadows at Eagle Ridge Property Owners Association, Inc., a development located in Prescott, Arizona. At the time of the dispute, the Association was managed by DHB Management.

Mr. Gelinas filed a petition alleging that the Association failed to meet its legal and governing obligations. Specifically, he asserted that the Association violated A.R.S. § 33-1804(B) and its own governing documents by failing to hold a members meeting during the 2019 calendar year.

The facts were clear: while the Association eventually held a meeting on January 11, 2020, no annual meeting was conducted at any point during the 2019 calendar year. This created a gap that exceeded both state statutory limits and the Association's own internal rules.

The Defense: Convenience vs. Compliance

During the evidentiary hearing on April 8, 2021, Association representatives Deborah Bolzano (President of DHB Management) and Bill Godwin testified regarding the delay. The Association's defense was rooted in administrative practicality rather than legal impossibility. Their justifications included:

  • Fiscal Year Alignment: A belief that meetings should be held in January to ensure the financial books from the preceding December were closed and ready for presentation.
  • Logistical Challenges: Concerns that holding a meeting during the holiday season would make it difficult to secure a voting quorum and ensure high member attendance.

As a specialist in HOA compliance, I find the contrast between these defenses and the Association’s Bylaws particularly telling. While the Association focused on the ease of reporting, Article IV, Section 1 of their 1996 Bylaws explicitly mandates that an annual meeting "shall be held at least once every twelve (12) months thereafter." By waiting until January 11, 2020, the Board failed to meet this rolling 12-month deadline, regardless of their intent.

The Legal Ruling: Understanding A.R.S. § 33-1804(B)

Administrative Law Judge Velva Moses-Thompson evaluated the case based on the "preponderance of the evidence" standard required by A.A.C. R2-19-119. In legal terms, this means the Petitioner must prove it is more likely than not that a violation occurred.

The Judge cited the standard definition of this burden:

"Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." — Black’s Law Dictionary

The ruling was definitive. Under A.R.S. § 33-1804(B), a meeting of the association's members must be held at least once each year. Because the Association admitted no meeting occurred in 2019, the Judge found they had violated both the state statute and their own Bylaws. The ruling made it clear that administrative convenience—such as waiting for financial statements—does not mitigate the Association's duty to comply with the law.

The Consequences: The Order and Financial Impact

On April 23, 2021, the Judge issued a formal Order in favor of Mr. Gelinas. The directives were as follows:

  1. The Association must strictly comply with A.R.S. § 33-1804(B) and Article IV, Section 1 of its Bylaws in all future operations.
  2. The Association was ordered to pay $500.00 to Mr. Gelinas. This payment was required within 30 days of the Order to reimburse the Petitioner for his filing fee.
  3. The ruling stands as a formal record of non-compliance, which can be cited in future disputes involving the Association’s governance.

Key Takeaways for Homeowners and Board Members

This case serves as a vital case study in the hierarchy of HOA governance. For those living in or managing communities in Prescott, Arizona, and beyond, the lessons are clear:

  • Statutory Supremacy: A Board’s preference for "best practices" (like waiting for closed books) is legally irrelevant when it conflicts with A.R.S. § 33-1804(B). Administrative convenience is not a valid legal defense for a statutory violation.
  • The "Double Threshold" for Timing: Associations must watch two clocks. State law requires a meeting once per calendar year, while many Bylaws (like those in this case) require a meeting every 12 months. Failing either threshold constitutes a violation.
  • Financial Deterrents: While a $500.00 filing fee reimbursement might seem minor to a large Association, it serves as a financial deterrent. It ensures that homeowners can seek justice without being financially penalized for an Association’s failure to follow basic procedural rules.

Conclusion: Promoting Transparency in Communities

The ruling in Gelinas vs. The Meadows at Eagle Ridge reinforces the fundamental right of homeowners to participate in community governance on a predictable schedule. Transparency and member participation are not optional "extras" that a Board can reschedule for the sake of a cleaner financial report.

Unless a rehearing is granted under ARIZ. REV. STAT. section 32-2199.04, this Order is binding on all parties pursuant to ARIZ. REV. STAT. section 32-2199.02(B). For every HOA Board in Arizona, the message is loud and clear: the calendar is not a suggestion, and the "annual" in annual meeting is a non-negotiable legal mandate.

Case Participants

Petitioner Side

  • Robert H. Gelinas (Petitioner)
    Appeared on behalf of himself; owner of property at 131 East Rosser Street

Respondent Side

  • Deborah Bolzano (Representative/Witness)
    DHB Management
    President of DHB Management; appeared and testified on behalf of the Association
  • Bill Godwin (Witness)
    The Meadows at Eagle Ridge Property Owners Association, Inc.
    Testified on behalf of the Association

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge who authored the decision
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Decision was transmitted electronically to her

Thomas A & Jade Bossert v. Silverbell West Association, Inc.

Posted on by

Case Summary

Case ID 21F-H2120011-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-04-16
Administrative Law Judge Adam D. Stone
Outcome Petitioner was deemed the prevailing party after Respondent was found in violation of A.R.S. § 33-1258(A) for failing to provide specific financial records (bank statements, check copies) and A.R.S. § 33-1243(J) for failing to complete the 2019 financial compilation. The ALJ declined to impose a civil penalty but ordered Respondent to reimburse the Petitioner's filing fees of $1,000.00.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas A & Jade Bossert Counsel Anthony Tsontakis
Respondent Silverbell West Association, Inc. Counsel Nicholas C Nogami & Timothy D Butterfield

Alleged Violations

ARIZ. REV. STAT. § 33-1258(A) & ARIZ. REV. STAT. § 33-1243(J)

Outcome Summary

Petitioner was deemed the prevailing party after Respondent was found in violation of A.R.S. § 33-1258(A) for failing to provide specific financial records (bank statements, check copies) and A.R.S. § 33-1243(J) for failing to complete the 2019 financial compilation. The ALJ declined to impose a civil penalty but ordered Respondent to reimburse the Petitioner's filing fees of $1,000.00.

Key Issues & Findings

Failure to disclose records and complete annual financial compilation

Respondent violated A.R.S. § 33-1258(A) by failing to provide bank account statements and check copies, and violated A.R.S. § 33-1243(J) by failing to complete the 2019 financial compilation. Petitioner did not meet the burden regarding the 2018 financial report.

Orders: Respondent was ordered to reimburse Petitioner's filing fees of $1,000.00 within 30 days.

Filing fee: $1,000.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1258(A)
  • ARIZ. REV. STAT. § 33-1243(J)

Analytics Highlights

Topics: Homeowners Association, Records Access, Financial Compilation, Statutory Violation, Condominium Association
Additional Citations:

  • ARIZ. REV. STAT. § 33-1258(A)
  • ARIZ. REV. STAT. § 33-1243(J)
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.05
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2120011-REL Decision – 865401.pdf

Uploaded 2026-04-27T09:41:32 (42.0 KB)

21F-H2120011-REL Decision – 872606.pdf

Uploaded 2026-04-27T09:41:35 (153.6 KB)

This summary details the administrative hearing proceedings in the matter of *Thomas A & Jade Bossert vs. Silverbell West Association, Inc.*

Case Summary: Bossert v. Silverbell West Association, Inc.

Key Facts and Parties

The Petitioner, Thomas A. and Jade Bossert, are owners of a condominium unit and members of the Silverbell West Association, Inc. (Respondent). The dispute was heard by Administrative Law Judge Adam D. Stone in the Office of Administrative Hearings (OAH). The evidentiary hearing took place on March 18, 2021.

Main Issues

The Petitioner filed a two-issue petition alleging the Association committed statutory violations:

  1. Failure to Disclose Records: Violating ARIZ. REV. STAT. § 33-1258(A) by failing to make financial and other records reasonably available for examination.
  2. Failure to Complete Financials: Violating ARIZ. REV. STAT. § 33-1243(J) by failing to complete an annual financial audit, review, or compilation within 180 days after the end of the 2018 and 2019 fiscal years.

Hearing Proceedings and Key Arguments

Petitioner testified that initial documents received following a June 2020 request were disorganized and incomplete. A subsequent request in July 2020 for specific missing items, including bank statements and cash journals, was never fulfilled. A bookkeeping expert testified that the records presented were disorganized, likely missing documents, and insufficient for making accurate 2018 and 2019 reports.

The Board President testified that they believed the initial request was met based on records held by the former Treasurer, Mr. Molley, but admitted the follow-up request was likely ignored. The tribunal found that Mr. Molley was "largely the one to blame" for unacceptable record-keeping, but also criticized the current Board President for failing to take a more active role in obtaining easily available bank statements.

Legal Conclusions and Outcome

The Administrative Law Judge found that the Petitioner had sustained the burden of proving that the Association committed two specific violations:

  1. Violation of ARIZ. REV. STAT. § 33-1258(A) (Records Disclosure): The Respondent violated the statute insofar as they failed to produce bank account statements and check copies. The fact that these records had still not been turned over was deemed "inexcusable".
  2. Violation of ARIZ. REV. STAT. § 33-1243(J) (Financial Compilation): The Respondent violated the statute by failing to complete the 2019 financial compilation.
  • *Note:* The tribunal found Petitioner did *not* meet the burden of proof regarding the 2018 financial report, as Petitioner (who was Board President at the time) could have taken more aggressive measures to secure the necessary documentation.

Final Decision

The Administrative Law Judge declined to impose a civil penalty, noting that the Board had subsequently taken steps to ensure better future record keeping.

The Petitioner was deemed the prevailing party and the Association (Respondent) was ordered to reimburse the Petitioner's filing fees of $1,000.00 within 30 days.

Questions

Question

Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?

Short Answer

No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.

Detailed Answer

The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.

Alj Quote

Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • records request
  • board duties
  • bank statements

Question

What is the deadline for the HOA to complete its annual financial compilation?

Short Answer

The compilation must be completed within 180 days after the fiscal year ends.

Detailed Answer

Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

ARIZ. REV. STAT. § 33-1243(J)

Topic Tags

  • financials
  • deadlines
  • compilation

Question

Will the judge always fine the HOA if they violate record-keeping laws?

Short Answer

Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.

Detailed Answer

Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.

Alj Quote

That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

What happens if I request specific accounting records (like ledgers) that the HOA simply never created?

Short Answer

The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.

Detailed Answer

If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.

Alj Quote

With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • missing records
  • record keeping

Question

If I win my case against the HOA regarding records, can I get my filing fees back?

Short Answer

Yes, the prevailing party is typically entitled to reimbursement of filing fees.

Detailed Answer

If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.

Legal Basis

Order based on prevailing party status

Topic Tags

  • reimbursement
  • fees
  • prevailing party

Question

Does a former Board President have a claim regarding missing financials from their own term?

Short Answer

It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.

Detailed Answer

If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.

Alj Quote

Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.

Legal Basis

Burden of proof standard

Topic Tags

  • board member rights
  • fiduciary duty

Case

Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?

Short Answer

No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.

Detailed Answer

The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.

Alj Quote

Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • records request
  • board duties
  • bank statements

Question

What is the deadline for the HOA to complete its annual financial compilation?

Short Answer

The compilation must be completed within 180 days after the fiscal year ends.

Detailed Answer

Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

ARIZ. REV. STAT. § 33-1243(J)

Topic Tags

  • financials
  • deadlines
  • compilation

Question

Will the judge always fine the HOA if they violate record-keeping laws?

Short Answer

Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.

Detailed Answer

Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.

Alj Quote

That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

What happens if I request specific accounting records (like ledgers) that the HOA simply never created?

Short Answer

The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.

Detailed Answer

If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.

Alj Quote

With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • missing records
  • record keeping

Question

If I win my case against the HOA regarding records, can I get my filing fees back?

Short Answer

Yes, the prevailing party is typically entitled to reimbursement of filing fees.

Detailed Answer

If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.

Legal Basis

Order based on prevailing party status

Topic Tags

  • reimbursement
  • fees
  • prevailing party

Question

Does a former Board President have a claim regarding missing financials from their own term?

Short Answer

It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.

Detailed Answer

If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.

Alj Quote

Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.

Legal Basis

Burden of proof standard

Topic Tags

  • board member rights
  • fiduciary duty

Case

Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Thomas A Bossert (petitioner)
    Former Board President; testified on own behalf
  • Jade Bossert (petitioner)
  • Anthony Tsontakis (petitioner attorney)
    Tsontakis Law
  • Barbara Schoneck (witness)
    Digit & Docs LLC
    Called by Petitioner

Respondent Side

  • Nicholas C Nogami (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Timothy D Butterfield (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Rex Warnix, III (board member; witness)
    Silverbell West Association, Inc.
    Current Board President; testified for Respondent/Association
  • Linda Garner (property manager; witness)
    Adam LLC
    Property manager for the Association
  • Donald Molley (board member; treasurer)
    Silverbell West Association, Inc.
    Board Treasurer responsible for financial records

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Lynda Meadows (accountant)
    Prepared 2018 financial compilation
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Email recipient

Other Participants

  • c. serrano (ADRE staff)
    Individual listed on transmission details

Kristina K Merkle v. Desert Palms Village Condominium Association

Posted on by

Case Summary

Case ID 21F-H2120030-REL
Agency —
Tribunal —
Decision Date April 14, 2021 [3]
Administrative Law Judge —
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Kristina K. Merkle [1] Counsel Appeared on behalf of herself [1]
Respondent Desert Palms Village Condominium Association [1] Counsel Quinten Cupps, Esq. [1]

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

21F-H2120030-REL Decision – 872292.pdf

Uploaded 2026-04-24T11:32:50 (80.6 KB)

Administrative Law Judge Decision: Merkle v. Desert Palms Village Condominium Association

Executive Summary

On March 25, 2021, an evidentiary hearing was conducted by the Arizona Office of Administrative Hearings to resolve a dispute between Kristina K. Merkle (Petitioner) and the Desert Palms Village Condominium Association (Respondent). The Petitioner alleged two primary violations: the Association’s failure to conduct a triennial reserve study as mandated by its Covenants, Conditions, and Restrictions (CC&Rs), and a failure to provide requested documents within the statutory 10-day timeframe under A.R.S. § 33-1258.

The Administrative Law Judge (ALJ), Velva Moses-Thompson, found that the Respondent was in clear violation of CC&R § 7.13, as it was undisputed that no reserve study had been performed since 2016. However, the ALJ ruled against the Petitioner regarding the document request violation, finding insufficient evidence that the Respondent withheld records in its possession. As a result, the Respondent was ordered to comply with reserve study requirements in the future and to reimburse the Petitioner for $500.00, representing half of the initial filing fee.

Analysis of Key Themes

1. Mandatory Compliance with Reserve Study Requirements

The central conflict in this matter involved CC&R § 7.13, which requires the Association’s Board of Directors to obtain a reserve study at least once every three years. The purpose of this study is to identify major common elements requiring repair or replacement, estimate their remaining useful life, and determine the necessary annual contributions to fund these future costs.

Despite testimony from the Community Manager suggesting that a new study was not "cost effective" and that various repairs had been made without one, the ALJ determined that such justifications do not override the specific mandates of the CC&Rs. The ruling reinforces that governing documents create a binding obligation on the Association that cannot be waived based on discretionary assessments of cost-effectiveness or informal maintenance schedules.

2. Statutory Document Access (A.R.S. § 33-1258)

The Petitioner alleged a violation of Arizona Revised Statutes regarding the timely provision of association records. Under A.R.S. § 33-1258, associations are generally required to provide requested documents within 10 business days.

The analysis of this theme centered on the availability of records. The Respondent testified that all documents in its possession at the time of the request were provided. Because the Petitioner offered no testimony or evidence to contradict this or to prove that specific documents were withheld, the ALJ concluded the Petitioner failed to meet the burden of proof on this specific count.

3. Burden of Proof in Administrative Hearings

The case highlights the legal standard of "preponderance of the evidence" used in such administrative disputes. Under this standard:

  • Petitioner’s Responsibility: The unit owner must prove that the association more likely than not violated the CC&Rs or state law.
  • Respondent’s Responsibility: The association must prove any affirmative defenses by the same standard.

In this instance, the Petitioner met the burden regarding the reserve study through the Respondent's own admission of inactivity but failed to meet it regarding the document request due to a lack of corroborating evidence.

Important Quotes with Context

On Reserve Study Obligations

"After the termination of the Period of Declarant Control, the Board of Directors shall obtain a reserve study at least once every three years… The Board of Directors shall modify the budget in accordance with the findings of the reserve study."

— CC&R § 7.13 (Source Context, Page 3)

Context: This quote defines the specific contractual duty the Association failed to uphold. It establishes that the reserve study is not merely a recommendation but a foundational requirement for budgetary adjustments.

On the Definition of Legal Standards

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not… evidence that has the most convincing force; superior evidentiary weight."

— Conclusions of Law, Paragraph 3 (Source Context, Page 3-4)

Context: The ALJ uses this definition to explain the threshold used to weigh the conflicting testimony regarding document production and the admitted failure to conduct the reserve study.

On the Final Ruling

"IT IS ORDERED that Petitioner be deemed the prevailing party in this matter regarding the violation of CC&R 7.13 charged in her petition. IT IS FURTHER ORDERED that Respondent shall fully comply with CC&R 7.13 in the future."

— Order (Source Context, Page 4)

Context: This represents the decisive action taken by the court, mandating future adherence to the association's governing documents and validating the unit owner's claim.

Key Data and Hearing Evidence

The following table summarizes the status of the Association's assets and repairs as testified by the Community Manager during the hearing:

Category Status / Testimony
Last Reserve Study Completed in 2016 (Expired under the 3-year rule).
Completed Repairs Multiple repairs/replacements made in categories from 2016 study.
Excluded Repairs No plant replacement, no granite replenishment, no full pool equipment replacement.
Deferred Items Fences, walls, gates, and lighting (deemed not yet due).
Association Defense Claimed a new study was not "cost effective" at this time.

Actionable Insights

  • Adherence to Governing Timelines: Condominium associations must strictly adhere to the timelines established in their CC&Rs. Discretionary decisions to delay mandatory studies—even if based on perceived cost savings—are legally indefensible if the CC&Rs specify a fixed interval (e.g., "every three years").
  • Evidentiary Requirements for Document Claims: For unit owners to succeed in claims regarding withheld documents, they must provide specific evidence or testimony showing that the requested records exist and were in the association's possession but were not provided within the 10-day statutory window.
  • Financial Consequences of Non-Compliance: Failure to follow CC&R mandates can result in associations being ordered to reimburse filing fees to petitioners. In this case, the Association was required to pay $500.00 to the Petitioner, effectively shifting half the cost of the legal challenge onto the Association's budget.
  • Budgetary Integration: The reserve study is legally linked to the budget. The decision emphasizes that Boards are required to modify their budgets based on the findings of these studies, making the study a prerequisite for lawful financial management.

Study Guide: Merkle v. Desert Palms Village Condominium Association

This study guide provides a comprehensive overview of the administrative law case Kristina K. Merkle v. Desert Palms Village Condominium Association (No. 21F-H2120030-REL). It examines the legal obligations of condominium associations regarding financial planning, record disclosure, and the standards of evidence used in administrative hearings.

Key Concepts and Legal Framework

1. Jurisdictional Authority

Under A.R.S. § 32-2199(1), the Arizona Department of Real Estate is authorized to receive and decide petitions regarding alleged violations of the Condominium Act (Title 33, Chapter 9). These cases are often referred to the Office of Administrative Hearings (OAH) for evidentiary review.

2. CC&R Section 7.13 (Reserves)

The Covenants, Conditions, and Restrictions (CC&Rs) of an association serve as a binding contract. Section 7.13 of the Desert Palms Village CC&Rs outlines the requirements for a Reserve Study, which must be conducted at least once every three years following the termination of the Period of Declarant Control.

A compliant reserve study must include:

  • Identification: Major components of Common Elements the Association must maintain that have a remaining useful life of less than 30 years.
  • Life Expectancy: The probable remaining useful life of those components.
  • Cost Estimation: Estimated costs for repair, replacement, or restoration.
  • Financial Planning: The total annual contribution required to cover these costs after subtracting current reserve funds.
  • Budget Alignment: The Board of Directors must modify the association budget based on the study’s findings.
3. Statutory Document Disclosure

A.R.S. § 33-1258 mandates that condominium associations provide requested documents to members within 10 business days.

4. Burden of Proof

In these proceedings, the Petitioner carries the burden of proof to establish violations by a preponderance of the evidence. The Respondent carries the same burden for establishing any affirmative defenses.

Short-Answer Practice Questions

1. What was the primary violation established by the Petitioner in this case?

The Respondent failed to complete a reserve study every three years as required by CC&R § 7.13; the last study had been conducted in 2016.

2. Why did the Administrative Law Judge (ALJ) deny the claim regarding A.R.S. § 33-1258?

The Petitioner failed to prove that the Association withheld documents in its possession. Testimony indicated the Association provided all requested documents they actually possessed within the 10-day window.

3. What reason did the Community Manager give for not conducting a new reserve study?

The Community Manager testified that it would not be "cost-effective" to complete a reserve study at that time.

4. How is "preponderance of the evidence" defined in the context of this decision?

It is defined as evidence that convinces the trier of fact that a contention is "more probably true than not," possessing superior evidentiary weight and "convincing force."

5. What financial remedy was ordered by the ALJ?

The Respondent was ordered to pay the Petitioner $500.00, which represented one-half of the Petitioner's $1,000.00 filing fee.

Essay Prompts for Deeper Exploration

1. The Conflict Between Practicality and Contractual Obligation In the hearing, the Association argued that conducting a reserve study was not "cost-effective" and noted that they had been performing ongoing repairs (such as pool equipment and granite replenishment) without a new study. Analyze whether "cost-effectiveness" or active maintenance constitutes a valid legal defense for bypassing a mandatory CC&R requirement. Use the ALJ’s final order to support your argument.

2. Disclosure Obligations and the Limits of Possession The ALJ ruled that the Association did not violate A.R.S. § 33-1258 because they provided the documents "in [their] possession at the time of her requests." Discuss the implications of this ruling for unit owners. Does an association have an obligation to generate documents it does not have, or does the law only apply to existing records?

3. The Role of the Administrative Law Judge in Association Disputes Explain the process by which a dispute between a homeowner and a condominium association moves from a Department of Real Estate petition to an OAH decision. What is the significance of the "Notice" section regarding the finality of the Order and the process for rehearing?

Glossary of Important Terms

Term Definition
A.R.S. § 33-1258 The Arizona Revised Statute governing the inspection of records for condominium associations.
CC&Rs Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and obligations of a common interest development.
Common Elements Portions of the condominium development that the Association is obligated to repair, replace, or maintain (e.g., pools, fences, gates).
Declarant Control A period during which the developer (declarant) maintains control over the association's board and operations.
Preponderance of the Evidence The standard of proof in civil and administrative cases, meaning the evidence is more convincing than the evidence offered in opposition.
Reserve Study A long-term budget planning tool that identifies the current status of a reserve fund and establishes a stable funding plan for future major repairs.
Respondent The party against whom a petition or legal claim is filed; in this case, the Condominium Association.
Unit Owners’ Association An organization of all the unit owners in a condominium, responsible for managing the common areas and enforcing the CC&Rs.

HOA Accountability: Lessons from the Merkle v. Desert Palms Village Ruling

1. Introduction: The Illusion of Board Discretion

In the world of common-interest developments, there is a dangerous and persistent myth: the idea that an HOA Board of Directors possesses the "discretion" to treat governing documents as mere suggestions. Many boards operate under the assumption that if they are maintaining the property to a "good enough" standard, the strict letter of the law can be ignored for the sake of convenience.

The case of Kristina K. Merkle v. Desert Palms Village Condominium Association serves as a definitive reality check for this mindset. When Kristina Merkle took her association to the Arizona Department of Real Estate, she wasn't just complaining about maintenance; she was challenging the Board's failure to follow the mandatory financial protocols defined in the community’s own "constitution." This ruling provides a blueprint for how homeowners can hold their associations accountable for governing document violations and highlights the non-negotiable nature of "reserve studies."

2. The Core Conflict: Two Major Allegations

In December 2020, Petitioner Kristina K. Merkle filed a formal petition targeting two specific failures by the Desert Palms Village Condominium Association. These allegations struck at the heart of transparency and long-term financial health:

  • Violation of CC&R § 7.13: The Petitioner alleged the Association failed in its contractual duty to obtain a mandatory reserve study. While the governing documents required a study at least once every three years, the Association’s last study dated back to 2016.
  • Violation of A.R.S. § 33-1258: The Petitioner alleged the Association failed to produce specific requested records within the 10-business-day window mandated by Arizona law.
3. Deep Dive: The Mandatory Reserve Study

Under Section 7.13 of the Desert Palms Village CC&Rs, a reserve study is not a discretionary "check-up"—it is a mandatory financial roadmap. The language is unambiguous: the Board shall obtain a reserve study at least once every three years.

According to the legal requirements cited in the source context, a compliant study must include four critical components:

  1. Identification of Major Components: A list of common elements the Association is obligated to maintain or replace that have a remaining useful life of less than 30 years.
  2. Remaining Useful Life: A professional identification of the probable remaining life of those components as of the date of the study.
  3. Cost Estimates: An estimate of the costs for repair, replacement, or maintenance during and at the end of the components' useful life.
  4. Annual Contribution Calculations: A calculation of the total annual contribution necessary to cover future costs, after subtracting current reserve funds.

Critically, the CC&Rs dictate that the Board of Directors shall modify the community budget in accordance with the findings of the reserve study. This "shall" removes any board member's ability to opt out of the financial adjustments the study deems necessary.

4. The Association’s Defense: Maintenance vs. Compliance

During the hearing on March 25, 2021, the Association—represented by Community Manager Becky Stowers and legal counsel—admitted that no study had been conducted since 2016. However, they attempted to argue that their "piecemeal" maintenance efforts should excuse the violation.

Ms. Stowers testified that while a formal study was missing, the Association was still making repairs to fences, walls, gates, and lighting. However, her testimony also revealed significant gaps: the Association had neglected plant replacement and granite replenishment, and had failed to fully replace pool equipment. Their primary defense was a classic example of board overreach:

The Association explicitly argued that it would not be "cost-effective" to complete a reserve study at this time, essentially claiming that fiscal convenience overrules contractual obligation.

Administrative Law Judge Velva Moses-Thompson’s eventual ruling sent a clear message: "fiscal convenience" is not a valid legal defense for a breach of the CC&Rs.

5. The Verdict: Successes and Setbacks

The Judge’s decision was a split ruling that offers vital lessons on the "burden of proof" in administrative hearings.

The Records Request Ruling The Petitioner did not prevail on her claim regarding A.R.S. § 33-1258. The Association testified that they had provided all documents currently in their possession. Because the Petitioner could not provide a paper trail proving that additional documents existed and were being intentionally withheld, the claim failed. In legal terms, she failed to meet the "preponderance of the evidence" standard.

The Reserve Study Ruling The Petitioner was the clear prevailing party regarding CC&R 7.13. Because the Association admitted to exceeding the three-year limit, the violation was undeniable.

The Final Order The Judge issued a stern set of requirements:

  • The Association was ordered to fully comply with CC&R 7.13 moving forward.
  • The Association was ordered to reimburse the Petitioner $500 (half of the $1,000 filing fee).
6. Key Takeaways for Homeowners and Boards

The Merkle v. Desert Palms Village ruling serves as a vital case study for anyone involved in HOA governance.

PRO-TIPS FOR THE COMMUNITY

For Homeowners For HOA Boards
Document Everything: In administrative hearings, the "burden of proof" lies with you. To win a records request claim, you must prove the documents exist and were withheld. CC&Rs are Not Suggestions: Your governing documents are legally binding contracts. You cannot ignore a three-year deadline just because you think a study is "too expensive."
The Power of Preponderance: You only need to prove your claim is "more probably true than not." Clear, dated evidence of a violation is often enough to win. No Maintenance Excuses: Making random repairs (like fixing a wall) does not satisfy the legal requirement to "obtain" a comprehensive financial reserve study.
Utilize the ADRE: The Arizona Department of Real Estate offers a formal venue to resolve disputes when a Board refuses to follow the rules. "Shall" Means "Must": When your documents say the Board "shall" modify a budget based on a study, you have zero discretion to do otherwise.
7. Conclusion: The Value of HOA Vigilance

The ruling in Merkle v. Desert Palms Village is a victory for transparency. It reinforces the fact that HOA Boards are not absolute rulers; they are fiduciaries bound by the specific language of their CC&Rs. By holding the Association to the three-year reserve study requirement, Merkle ensured that her community would have a factual, professional roadmap for its financial future rather than relying on a Board's guesswork. For homeowners, this case is a reminder that while the legal process demands a high level of proof, the law provides a powerful tool to ensure boards remain accountable to the members they serve.

Case Participants

Petitioner Side

  • Kristina K. Merkle (Petitioner)
    Appeared on behalf of herself and testified at the hearing

Respondent Side

  • Quinten Cupps (Attorney)
    Desert Palms Village Condominium Association
  • Becky Stowers (Community Manager)
    Desert Palms Village Condominium Association
    Testified as a witness
  • Kelly Oetinger (Attorney)
    Desert Palms Village Condominium Association
    Appeared at hearing and explained respondent's actions

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Decision transmitted to

Carla J Snyder v. Las Hadas Villas Association

Posted on by

Case Summary

Case ID 21F-H2121032-REL
Agency —
Tribunal Office of Administrative Hearings, Arizona Department of Real Estate
Decision Date 2021-04-07
Administrative Law Judge —
Outcome Petition is dismissed.
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Carla J. Snyder Counsel —
Respondent Las Hadas Villas Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

21F-H2121032-REL Decision – 870534.pdf

Uploaded 2026-04-24T11:33:14 (121.6 KB)

Briefing Document: Snyder v. Las Hadas Villas Association (No. 21F-H2121032-REL)

Executive Summary

On April 7, 2021, Administrative Law Judge Sondra J. Vanella issued a decision regarding a dispute between Petitioner Carla J. Snyder and Respondent Las Hadas Villas Association. The case originated from a petition filed by Snyder on February 22, 2021, alleging that the Homeowners Association (HOA) violated Section 14.2 of the Covenants, Conditions, and Restrictions (CC&Rs) by failing to repair a defectively constructed roof.

The Petitioner sought $11,476.00 in damages, claiming that a lack of flashing in the roof’s construction led to water damage, mold, and wood rot in her garage and patio areas. The Respondent argued that the roof had been properly maintained and that the damages occurred in "exclusive use areas" (the patio and pergola), which are the owner's responsibility under Section 14.1.

Following a hearing on April 1, 2021, the Tribunal concluded that the Petitioner failed to establish a violation of the CC&Rs. The evidence showed that the Association had repaired the roof and installed flashing in 2015, and that the specific damage was likely caused by a previous owner’s refusal to address wood rot during a pergola renovation. The petition was dismissed.

Detailed Analysis of Key Themes

1. Interpretation of Maintenance Responsibilities

The central conflict revolved around the distinction between "Common Elements" and "Exclusive Use Areas" as defined in the community documents:

  • Association Responsibility (CC&R 14.2): The HOA is responsible for the maintenance, repair, and replacement of Common Elements, which include the exteriors of units, building walls, roofs, and drain pipes.
  • Owner Responsibility (CC&R 14.1): Owners are responsible for their own units and any "exclusive use area" under their control, specifically mentioning balconies, patios, and fenced yards.
  • Board Authority: Section 14.1 explicitly states that in the event of a dispute over responsibility, "the decision of the Board shall be conclusive."
2. Allegations of Construction and Design Flaws

The Petitioner’s case leaned heavily on the testimony of a general contractor, Ray Odom, and Dr. John Gilderbloom. They argued that the unit suffered from a "design flaw" because flashing—a standard component used to divert water—was allegedly missing from the roofline.

  • Petitioner’s Claim: Water damage was inevitable because the wood was not waterproofed and lacked plastic sheathing behind the stucco.
  • Respondent’s Rebuttal: The Association provided a "Roof Log" from 2015 showing that Westside Roofing had installed "new valley metal and metal flashings as needed." Additionally, a 2019 inspection by Payne Roofing concluded that the roof underlayment was in good condition and no work was required.
3. The Impact of Prior Ownership and Disclosures

A significant theme emerged regarding the actions of the unit’s previous owner. Evidence indicated that the previous owner was aware of the water damage and chose to "cut corners" during repairs:

  • 99 Home Improvements Affidavit: A contractor testified that in 2019, the previous owner directed them to repair stucco over damaged and rotted wood rather than replacing the underlying material.
  • Non-Disclosure: The Residential Seller Disclosure Advisory provided during the sale of the unit to Snyder failed to disclose these material facts regarding wood rot and previous water issues.
4. Jurisdiction and Remedial Limits

The Respondent successfully argued that the Petitioner was seeking a "finding of negligence" to support a future civil lawsuit, which falls outside the purview of the administrative hearing. Under Arizona statute (A.R.S. § 32-2199), the administrative remedy is limited to ordering compliance with community documents or issuing a civil penalty for a violation.

Important Quotes with Context

Quote Source Context
"The impact of having an ill constructed roof has resulted in $11,476.00 in damages for which I had to incur the cost." Carla J. Snyder (Petitioner) The primary justification for the petition and the stated financial burden on the homeowner.
"Each Owner shall also be responsible for… the maintenance and repair of any exclusive use area… including, for example, balconies, patios, or fenced yard areas." CC&R Section 14.1 The legal basis used by the Respondent to argue that the damage to the patio and pergola was not the HOA’s liability.
"The prior owner specifically told us that he did not want to replace the underlying material, but just the pergola and a patch of stucco." Tom Reynolds (Contractor) Evidence showing that the root cause of the rot was a previous owner's decision to hide damage rather than fix it.
"In developments, they cut corners." Dr. John Gilderbloom (Witness) General testimony provided to support the Petitioner's claim that the HOA/developers failed to meet construction standards.
"The decision of the Board shall be conclusive." CC&R Section 14.1 A critical clause giving the HOA Board final say in disputes regarding maintenance responsibility.

Actionable Insights

For Homeowners
  • Thorough Pre-Purchase Inspections: The case highlights the risk of "hidden" damage. Buyers should seek comprehensive inspections that go beyond surface-level aesthetics, particularly in areas like pergolas and stucco where rot can be covered.
  • Review of Seller Disclosures: Homeowners should verify the accuracy of the Residential Seller Disclosure Advisory. If a seller fails to disclose known material facts (like the 2019 stucco patch over rot), the buyer may have grounds for a civil lawsuit against the seller, as suggested by the HOA Board in this case.
  • Understanding "Exclusive Use": Owners must clarify which exterior portions of their property are considered "exclusive use" versus "common elements" to understand their personal financial exposure for repairs.
For Associations
  • Maintenance Logs as Evidence: The Respondent’s ability to produce a detailed "Roof Log" and specific invoices from 2015 was instrumental in proving that they had fulfilled their maintenance obligations regarding flashing.
  • Clear Board Decisions: When the Board makes a determination on responsibility under CC&R 14.1, it should be formally documented. The fact that the Board had already twice denied Snyder's request for reimbursement before the hearing strengthened the Respondent’s position.
  • Professional Inspections: Obtaining a third-party inspection (e.g., Payne Roofing in 2019) immediately after a complaint is lodged provides a contemporary record that can be used to refute claims of ongoing negligence.

Study Guide: Carla J. Snyder v. Las Hadas Villas Association

This study guide provides a comprehensive overview of the administrative hearing between Petitioner Carla J. Snyder and Respondent Las Hadas Villas Association (Case No. 21F-H2121032-REL). It covers the legal frameworks, factual disputes, and ultimate findings regarding homeowner association (HOA) responsibilities.

I. Key Concepts and Case Overview

Core Dispute

The dispute centers on a claim filed by Petitioner Carla J. Snyder against the Las Hadas Villas Association. The Petitioner alleged that a design flaw in her roof—specifically the absence of metal flashing—caused significant water damage and mold in her unit, totaling $11,476.00 in repair costs. She asserted that under Section 14.2 of the Community Documents (CC&Rs), the HOA was responsible for these repairs and the resulting damages.

Governing Documents: The CC&Rs

The case relies on the interpretation of two specific sections of the Covenants, Conditions, and Restrictions (CC&Rs):

  • Section 14.1 (Owner’s Responsibility): Owners are responsible for the maintenance, repair, and replacement of the interior of their units and "exclusive use areas." This includes windows, doors, air conditioning units, balconies, patios, and fenced yards. Crucially, this section states that in the event of a dispute, the decision of the Board regarding responsibility is conclusive.
  • Section 14.2 (Association’s Responsibility): The Association is responsible for the maintenance and repair of "Common Elements." This includes the painting and repair of unit exteriors, building walls, trim, drain pipes, and roofs.
Legal Standards
  • Jurisdiction: The hearing was conducted by the Office of Administrative Hearings under Arizona Revised Statutes (A.R.S. § 32-2199).
  • Burden of Proof: The Petitioner bears the burden of proving a violation by a preponderance of the evidence.
  • Preponderance of the Evidence: A legal standard meaning the claim is "more probably true than not" based on the greater weight and convincing force of the evidence.

II. Short-Answer Practice Questions

1. What specific construction element did the Petitioner claim was missing from her roof?

Answer: Metal flashing, which is used to divert water and prevent wood rot.

2. According to the Respondent’s "Roof Log," what work was performed on the Petitioner's unit in October 2015?

Answer: Westside Roofing removed tiles and underlayment, installed new wood nailer strips, and provided new valley metal and metal flashings as needed.

3. What did the roofing inspection report by Payne Roofing (October 18, 2019) conclude?

Answer: The underlayment was in good condition, the leak appeared to be an old issue, and no work was needed at that time.

4. Why did the Board deny the Petitioner's request for reimbursement for the pergola and balcony repairs?

Answer: Pursuant to Section 14.1, the Board determined these were exclusive use areas and therefore the responsibility of the homeowner.

5. What did the previous owner of the unit fail to disclose during the sale to the Petitioner?

Answer: The previous owner failed to disclose the water damage and wood rot associated with the pergola, having merely installed stucco over the rot at the direction of a contractor (99 Home Improvements).

6. What is the filing fee for a Homeowners Association Dispute Process Petition?

Answer: $500.00.

III. Essay Prompts for Deeper Exploration

1. The Conflict of Responsibility: Common Elements vs. Exclusive Use

Analyze the distinction between Section 14.1 and Section 14.2 of the CC&Rs. In your essay, discuss how the classification of an area (such as a pergola or patio) as an "exclusive use area" versus an "exterior surface" dictates financial liability. How did the Board’s "conclusive" power under Section 14.1 influence the outcome of this case?

2. Evidentiary Weight in Administrative Hearings

Compare and contrast the evidence provided by the Petitioner’s expert witnesses (Ray Odom and Dr. John Gilderbloom) with the documentary evidence provided by the Respondent (the 2015 Roof Log and the 2019 Payne Roofing report). Discuss why the Administrative Law Judge found that the Petitioner failed to meet the "preponderance of the evidence" standard despite the testimony regarding design flaws.

3. The Role of Seller Disclosure in Property Disputes

The Board suggested the Petitioner file a lawsuit against the previous owner rather than the HOA. Using the details from the "Residential Seller Disclosure Advisory" mentioned in the text, explain the legal obligation of a seller in Arizona and how the previous owner's actions (patching stucco over rot) complicated the Petitioner's claim against the Association.

IV. Glossary of Important Terms

Term Definition
CC&Rs Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and responsibilities within a planned community.
Common Elements Areas of the property (like roofs and exterior walls) maintained by the Association and funded through common expenses.
Exclusive Use Area Portions of the property (like balconies or patios) that are for the sole use of a specific owner, typically making that owner responsible for maintenance.
Flashing Thin pieces of impervious material installed to prevent the passage of water into a structure from a joint or as part of a roof-resistant barrier.
Preponderance of the Evidence The standard of proof in civil and administrative cases; evidence that is more convincing than the evidence offered in opposition.
Petitioner The party who initiates a lawsuit or petition (in this case, Carla J. Snyder).
Respondent The party against whom a petition is filed (in this case, Las Hadas Villas Association).
Underlayment A water-resistant or waterproof barrier material that is installed directly onto a roof deck before the tiles or shingles are applied.
Administrative Law Judge (ALJ) An official who presides over an administrative hearing and issues a decision based on facts and law.

Who Pays for the Leak? Lessons from a Recent HOA Maintenance Dispute

1. Introduction: The $11,000 Question

Discovering water damage, mold, and wood rot is a homeowner’s nightmare. The situation quickly escalates from a maintenance headache to a legal conflict when the question of financial responsibility arises: Is the damage caused by a failure of the Association’s common roof, or is it the result of a homeowner’s "exclusive use" area?

This was the central conflict in the case of Snyder v. Las Hadas Villas Association (No. 21F-H2121032-REL). The petitioner, Carla J. Snyder, sought $11,476.00 in damages, alleging that her home suffered significant wood rot and mold due to a "serious flaw" in the roof's construction—specifically, a lack of metal flashing. This case serves as a vital case study in how "exclusive use" clauses in community documents and contemporaneous maintenance logs determine the outcome of high-stakes HOA disputes.

2. The Homeowner’s Claim: A "Serious Flaw"

Petitioner Carla J. Snyder argued that the water damage permeating her garage and patio was the direct result of an ill-constructed roof. Her claim centered on the absence of roof flashing and plastic sheathing, which she alleged allowed water to seep into the wood and stucco, leading to extensive rot and mold.

To support her case, Snyder presented testimony from two expert witnesses:

  • Ray Odom: A general contractor who performed the mold remediation. Odom testified that the lack of flashing was a "design flaw" and asserted that property management companies generally "cut corners."
  • Dr. John Gilderbloom: A professor with housing experience who testified that installing flashing is standard industry practice.

As a legal analyst, it is critical to note two factors that impacted the weight of this testimony. First, Dr. Gilderbloom was identified as the Petitioner’s fiancé, a relationship that inherently introduces the potential for bias. Second, the Petitioner’s primary objective was to obtain a finding of negligence to pave the way for a civil lawsuit. However, Administrative Law Judge Sondra J. Vanella clarified that a finding of negligence was outside the jurisdictional purview of the administrative hearing; the tribunal’s power was strictly limited to ordering compliance with community documents or issuing civil penalties.

3. Decoding the CC&Rs: 14.1 vs. 14.2

The resolution of the dispute rested on the interpretation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). The following table outlines the division of responsibility defined in the Las Hadas Villas Association documents:

Owner’s Responsibility (Section 14.1) Association’s Responsibility (Section 14.2)
Scope: Maintenance, repair, and replacement within the Unit (windows, doors, fixtures, utility lines). Scope: Maintenance and repair of Common Elements (exterior surfaces including building walls, trim, and roofs).
Exclusive Use Areas: Responsible for areas under exclusive control, such as balconies, patios, and fenced yard areas. Exclusions: The Association is not responsible for doors or windows.
Finality: The Board’s decision regarding an owner's responsibility for a particular area is conclusive. Liability: Owners may be held liable for damage to common elements caused by their intentional acts or negligence.

The central legal pivot point was whether the water damage originated from the "roof" (an Association responsibility under 14.2) or the "patio and pergola" (an exclusive use area under 14.1).

4. The Evidence Trail: Repairs, Reports, and Hidden Rot

In legal proceedings, contemporaneous business records often carry more weight than retrospective expert opinions. The Association effectively rebutted the Petitioner’s prima facie case using a documented evidence trail:

  • The 2015 Roof Log: This was the dispositive evidence in the case. The Association produced records from Westside Roofing showing that in October 2015, the roof of the unit had been stripped and repaired. Crucially, the log noted the installation of "new valley metal and metal flashings as needed," directly contradicting the claim that the roof lacked flashing.
  • The 2019 Inspection: Following the Petitioner's complaint, Payne Roofing inspected the unit. Their report stated the underlayment was in good condition and the leak appeared to be an "old issue," suggesting the roof itself was sound.
  • The "Cover-Up": Testimony from 99 Home Improvements revealed a critical pre-existing condition. In April 2019, the previous owner noticed the stucco "pulling away from the pergola." Despite being informed of underlying wood rot, the previous owner directed the contractor not to replace the rotted material, but instead to simply patch the stucco over the decay to hide the damage.
5. The Tribunal’s Ruling: Why the Petition was Dismissed

Judge Vanella dismissed the petition, ruling that the Association had not violated Section 14.2. The decision was based on the "Preponderance of the Evidence" standard, which requires the Petitioner to prove that their claim is "more probably true than not."

The judge concluded that while the Association is responsible for the roof, the 2015 maintenance records proved the Association had fulfilled its duties. The evidence established that the damage was actually located within the patio and pergola. Because these are "exclusive use" areas under Section 14.1 of the CC&Rs, the legal and financial burden for repair fell solely on the homeowner.

6. Key Takeaways for HOA Members
  1. The Importance of Pre-Purchase Diligence: The "Residential Seller Disclosure Advisory" failed to mention the hidden wood rot. However, the HOA is a third party to the real estate transaction and generally cannot be held liable for a seller’s failure to disclose material facts. A buyer’s recourse in such cases is typically a separate lawsuit against the seller.
  2. Understanding "Exclusive Use": Homeowners often confuse "exterior" with "Association responsibility." Exclusive use areas are legal hybrids: they are exterior portions of the common area reserved for one owner. Under most CC&Rs, the maintenance of these hybrids—including patios and pergolas—is the owner's obligation.
  3. The Power of Maintenance Logs: Factual business records (like the 2015 Roof Log) are incredibly difficult to overcome. They provide a "snapshot in time" that can neutralize even the most confident retrospective expert testimony.
7. Conclusion: The Final Verdict

The Snyder case underscores the necessity of a thorough legal review of CC&Rs before starting expensive repairs. Under Section 14.1, the Board is granted the authority to make "conclusive" decisions regarding maintenance boundaries. Once the Board determines an area falls under "exclusive use," the homeowner faces a high evidentiary bar to prove otherwise. Understanding these definitions is the only way to avoid an $11,000 surprise.

Case Participants

Petitioner Side

  • Carla J. Snyder (Petitioner)
    Appeared on her own behalf
  • Ray Odom (Witness)
    General contractor
  • John Gilderbloom (Witness)
    University of Louisville
    Professor and Petitioner's fiancé

Respondent Side

  • David Potts (Attorney)
    Las Hadas Villas Association
    Represented Respondent
  • Tonia Reynolds (Witness)
    Las Hadas Villas Association
    Property Manager

Neutral Parties

  • Sondra J. Vanella (Administrative Law Judge)
    Office of Administrative Hearings
  • Tom Reynolds (Affiant)
    99 Home Improvements
    Lead for 99 Homes Improvements
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Clifford (Norm) S. Burnes v. Saguaro Crest Homeowners Association,

Posted on by

Case Summary

Case ID 21F-H2120002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-08-09
Administrative Law Judge Jenna Clark
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford Burnes and Maria Burnes Counsel Cynthia F. Burnes, Esq.
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John Crotty, Esq.

Alleged Violations

CC&Rs Section 5
Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 33-1804(A), (D), and (E)
ARIZ. REV. STAT. § 33-1805

Outcome Summary

The final decision affirmed the denial of Issues 1, 2, and 3, and the granting of Issue 4. The Association was found to have violated ARIZ. REV. STAT. § 33-1805 for failing to provide complete records in a timely manner, resulting in the reimbursement of 1/4 of the filing fee.

Why this result: Petitioners failed to sustain the burden of proof regarding alleged violations of CC&Rs Section 5, Architectural Design Guidelines Section 4.0, and A.R.S. § 33-1804(A), (D), and (E).

Key Issues & Findings

Alleged violation of CC&Rs Section 5

Petitioners alleged that the HOA violated the Covenants, Conditions and Restrictions (CC&Rs), Section 5, by allowing construction on Lot 7 without prior ARC approval of required documents.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs Section 5

Alleged violation of Community Agricultural Design Guidelines Section 4.0

Petitioners alleged that the HOA violated the Architectural Design Guidelines, Section 4.0, by failing to require the required $5,000.00 Construction Compliance Deposit for Lot 7.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Architectural Design Guidelines Section 4.0
  • ARIZ. REV. STAT. § 10-3821

Alleged violation of A.R.S. § 33-1804(A), (D), and (E)

Petitioners alleged that the Board conducted an unnoticed closed meeting in violation of Arizona open meeting statutes.

Orders: Petition denied.

Filing fee: $125.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 33-1804(E)
  • ARIZ. REV. STAT § 10-3821

Alleged violation of A.R.S. § 33-1805

Petitioners alleged that the HOA failed to timely and completely fulfill a records request submitted on June 04, 2020, specifically by failing to provide missing email attachments.

Orders: Respondent must reimburse 1/4 of Petitioners' filing fee ($125.00). Respondent must henceforth comply with A.R.S. § 33-1805 and provide the missing email attachments within 10-business days.

Filing fee: $125.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805

Analytics Highlights

Topics: HOA Statute Violation, Records Request, Filing Fee Refund, Architectural Review, Open Meetings
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 33-1804(E)
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 10-3821
  • CC&Rs Section 5
  • Architectural Design Guidelines Section 4.0

Video Overview

Audio Overview

Decision Documents

21F-H2120002-REL Decision – 902726.pdf

Uploaded 2026-04-24T11:28:59 (239.9 KB)

21F-H2120002-REL Decision – 866263.pdf

Uploaded 2026-04-24T11:29:03 (268.5 KB)

Briefing Document: Burnes v. Saguaro Crest Homeowners Association, Final Decision

Executive Summary

This document synthesizes the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes (“Petitioners”) versus the Saguaro Crest Homeowners Association (“Respondent”), case number 21F-H2120002-REL-RHG. The dispute centered on a four-issue petition alleging violations by the Association related to new construction on a neighboring property (Lot 7), an unnoticed Board meeting, and the fulfillment of a records request.

Following an initial hearing and a subsequent rehearing, the Administrative Law Judge (ALJ) largely affirmed the original decision. The Petitioners failed to meet their burden of proof on three of the four issues, with the judge finding no violations by the Association regarding architectural controls, the waiver of a construction deposit, or the conduct of a Board meeting.

However, the Petitioners successfully proved that the Association violated Arizona Revised Statute § 33-1805 by failing to timely and completely fulfill a comprehensive records request. The final order requires the Association to reimburse the Petitioners for a portion of their filing fee ($500), comply with the records statute moving forward, and provide the specific missing documents (email attachments) from the original request. The rehearing was granted on the basis of “newly discovered evidence,” but the Petitioners conceded during the proceeding that they possessed no new evidence, leading the ALJ to rely solely on the record from the first hearing.

I. Background and Procedural History

The case involves a dispute between property owners Clifford and Maria Burnes and their homeowners’ association, Saguaro Crest, located in Tucson, Arizona. The Association is governed by Covenants, Conditions, and Restrictions (CC&Rs) recorded in 2006 and Architectural Design Guidelines adopted in 2018.

Procedural Timeline

July 17, 2020

Petitioners file a 4-issue petition with the Arizona Department of Real Estate.

August 11, 2020

Respondent (HOA) denies all claims in its answer.

Dec 11, 2020 & Mar 1-2, 2021

An evidentiary hearing is held before the Office of Administrative Hearings (OAH).

March 22, 2021

The Administrative Law Judge (ALJ) issues the initial decision.

April 28, 2021

Petitioners file a dispute rehearing request, alleging newly discovered evidence.

May 21, 2021

The Commissioner of the Department of Real Estate grants the rehearing request.

July 20, 2021

The rehearing is held. Petitioners concede they have no “new” evidence.

August 09, 2021

The Final Administrative Law Judge Decision is issued, affirming the initial ruling.

Key Parties

Name / Entity

Clifford & Maria Burnes

Petitioners; owners of Lot 6.

Cynthia F. Burnes, Esq.

Counsel for Petitioners.

Saguaro Crest HOA, Inc.

Respondent.

John Crotty, Esq.

Counsel for Respondent.

Norm Burnes

Petitioner; appointed to the Architectural Review Committee (ARC) in 2017.

Raul & Ramona Martinez

Owners of Lot 7, the property under construction.

Jenna Clark

Administrative Law Judge (ALJ).

II. Analysis of Allegations and Findings

The petition presented four distinct issues for adjudication. The Petitioners bore the burden of proving each violation by a preponderance of the evidence.

Issue 1: Alleged Violation of CC&Rs Section 5 (Architectural Control)

• Petitioners’ Allegation: The Association improperly allowed construction on Lot 7 to proceed without required documents being submitted to the Architectural Review Committee (ARC) for approval.

• Factual Record:

◦ The ARC, which included Petitioner Norm Burnes, unanimously approved construction plans for Lot 7 on January 3, 2018.

◦ Construction began sometime in 2018. Pima County approved the plans on May 4, 2018.

◦ On April 14, 2020, Petitioner Burnes sent a formal letter of concern to the Board, stating the placement of the home on Lot 7 was not per the approved plan and had destroyed their view and privacy. The letter included the following statement:

• Conclusion of Law: No violation found. The ALJ determined that while the construction on Lot 7 was not per the plans the ARC approved on January 3, 2018, no subsequent or modified plans were ever submitted to the ARC for review. The decision states, “The ARC cannot approve or deny proposed plans unless they are submitted for review.” Furthermore, the record shows the construction complies with the local government’s building authority.

Issue 2: Alleged Violation of Design Guidelines Section 4.0 (Construction Deposit)

• Petitioners’ Allegation: The Association allowed construction on Lot 7 without collecting the required $5,000.00 Construction Compliance Deposit.

• Factual Record:

◦ On May 3, 2020, the Board of Directors decided to honor a Construction Compliance Deposit waiver that had been previously granted to the Martinez family.

◦ This discretionary waiver was reportedly granted during an economic downturn to incentivize property purchases.

◦ Critically, the Association “does not possess a corporate record that any such Construction Compliance Deposit Waiver was previously granted to the Martinez family.”

• Conclusion of Law: No violation found. The ALJ concluded it was “clear that Lot 7 was granted a construction compliance deposit waiver.” The lack of a documented record was noted, but the inquiry was deemed moot as it was not a noticed issue in the petition.

Issue 3: Alleged Violation of A.R.S. § 33-1804 (Unnoticed Meeting)

• Petitioners’ Allegation: The Board of Directors conducted an unnoticed meeting on or about May 20, 2020, to consider matters relevant to Petitioner Norm Burnes.

• Factual Record:

◦ On April 18, 2020, Petitioner requested an urgent meeting with the Board, which was held the next day.

◦ On May 20, 2020, the Board acted with unanimous consent (obtained via individual signatures) to restrict Petitioner Burnes’s participation as an ARC member “regarding all issued related to the construction of Lot 7.”

◦ The Board’s notes state: “[T]he Board of Directors hereby unanimously agree that [Petitioner] be removed as an ARC Member for all ARC related matters concerning Lot 7.”

• Conclusion of Law: No violation found. The judge ruled that the Board’s failure to notice the April 19 meeting was excused as an exception because the Petitioner himself had requested it on an urgent basis. Regarding the May 20 action, the record shows Mr. Burnes was not removed from the ARC entirely, but only recused from matters concerning the Lot 7 dispute in which he had a direct conflict of interest.

Issue 4: Alleged Violation of A.R.S. § 33-1805 (Records Request)

• Petitioners’ Allegation: The Association failed to properly fulfill a records request.

• Factual Record:

◦ On June 4, 2020, Petitioners submitted a comprehensive, 17-point records request and demanded fulfillment within the statutory 10-day period.

◦ On June 16, 2020, the Association made 342 pages of documents available for in-person review but prohibited Petitioners from using their own scanning equipment.

◦ The statutory deadline for compliance was June 18, 2020.

◦ On June 24, 2020, after Petitioners paid a $51.30 fee, the Association provided copies of the documents.

◦ Later that day, Petitioners notified the Association that the document package was incomplete, as “attachments for some emails are not included.”

• Conclusion of Law: Violation established. The ALJ found that the Association failed to comply with the statute. The documents were made available for review within the 10-day window, but the copies were not provided until June 24, after the deadline. More importantly, the copies provided were incomplete. The judge rejected the Association’s argument that a clarification from the Petitioner reset the statutory clock.

III. Final Order and Directives

The Final Administrative Law Judge Decision, issued after the rehearing, affirmed the conclusions of the initial March 22, 2021 decision.

• Petition Status: The petition was granted in part (on Issue 4) and denied in part (on Issues 1, 2, and 3).

• Financial Reimbursement: The Respondent (Saguaro Crest HOA) is ordered to reimburse the Petitioners for one-quarter of their filing fee, amounting to $500.00.

• Statutory Compliance: The Respondent is ordered to henceforth comply with the requirements of A.R.S. § 33-1805 regarding records requests.

• Document Production: The Respondent is ordered to provide the Petitioners with the missing email attachments related to the June 4, 2020 records request within 10 business days of the final order’s effective date.

Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.

This study guide provides a detailed review of the Final Administrative Law Judge Decision in the case of Clifford and Maria Burnes versus the Saguaro Crest Homeowners Association, Inc. (No. 21F-H2120002-REL-RHG). The guide includes a short-answer quiz with an answer key, a set of essay questions for deeper analysis, and a comprehensive glossary of key terms used in the legal proceedings.

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case document.

1. Who are the Petitioners and the Respondent in this case, and what is their fundamental relationship?

2. List the four distinct issues the Petitioners alleged against the Respondent in their initial petition.

3. On what grounds did the Petitioners request and receive a rehearing after the initial decision was issued on March 22, 2021?

4. What was the outcome of the Petitioners’ attempt to present new witnesses and exhibits during the rehearing on July 20, 2021?

5. Why did the Administrative Law Judge conclude that the Respondent had not violated Section 5 of the CC&Rs regarding the construction on Lot 7?

6. Explain the controversy surrounding the $5,000 Construction Compliance Deposit and the court’s ultimate finding on the matter.

7. What action did the Board of Directors take against Petitioner Norm Burnes on May 20, 2020, and why was this action not considered a violation of A.R.S. § 33-1804?

8. Which of the four allegations was ultimately successful for the Petitioners, and what specific failures by the Respondent led to this finding?

9. What were the four key orders issued by the Administrative Law Judge in the Final Order?

10. What was Petitioner Norm Burnes’s official role within the Saguaro Crest community, and how did this position create a conflict of interest in the dispute?

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Quiz Answer Key

1. The Petitioners are Clifford and Maria Burnes, who are property owners in the Saguaro Crest subdivision and members of the homeowners’ association. The Respondent is the Saguaro Crest Homeowners Association, Inc. (HOA), which is the governing body for the subdivision.

2. The four issues were: (1) The HOA allowed construction on Lot 7 without required ARC document submission in violation of CC&Rs Section 5; (2) The HOA allowed construction without a required Construction Compliance Deposit; (3) The Board conducted an unnoticed meeting in violation of A.R.S. § 33-1804; (4) The HOA failed to fulfill a records request in violation of A.R.S. § 33-1805.

3. The Petitioners requested a rehearing on the grounds of having “Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” They also alleged that the original decision was “arbitrary, capricious, or an abuse of discretion.”

4. At the rehearing, the Petitioners conceded they possessed no “newly discovered” evidence, but rather evidence they had strategically chosen not to present previously. Because they did not provide a satisfactory offer of proof for new evidence, they were precluded from recalling witnesses or offering additional exhibits.

5. The Judge found that while the construction on Lot 7 was not per the plans approved by the ARC on January 3, 2018, no additional plans had been submitted for the ARC’s consideration. The Judge reasoned that the ARC cannot approve or deny plans that are not submitted, and the build complied with the local government’s building authority.

6. The Architectural Design Guidelines required a $5,000 deposit, but the owners of Lot 7 had been granted a waiver. Although the HOA did not possess a corporate record of the waiver, the Board voted to honor it. The court found no violation because the waiver had been granted, and the lack of documentation was not the specific issue being litigated.

7. On May 20, 2020, the Board held an unnoticed meeting and, via unanimous consent, restricted Petitioner Burnes’s participation as an ARC member for all matters related to Lot 7. This was not a violation because the failure to notice was excused as an exception, and the Board only removed him from matters concerning Lot 7, not from the ARC entirely.

8. Issue #4, the records request violation, was successful for the Petitioners. The Respondent failed to provide copies of the requested documents within the statutory 10-day deadline, providing them on June 24, 2020, when the deadline was June 18, 2020. Furthermore, the documents provided were incomplete, as they were missing email attachments.

9. The Final Order affirmed the previous decision, ordered the Respondent to reimburse the Petitioners for 1/4 of their filing fee ($500.00), ordered the Respondent to comply with A.R.S. § 33-1805 going forward, and ordered the Respondent to provide the missing email attachments within 10 business days.

10. Petitioner Norm Burnes was a member of the Association’s Architectural Review Committee (ARC). This created a conflict of interest because he was part of the committee that initially approved the Lot 7 construction plans, but he later raised formal complaints against that same construction project due to its impact on his own property (Lot 6).

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. No answers are provided.

1. Analyze the concept of “burden of proof” by a “preponderance of the evidence” as it applies to this case. How did the Petitioners succeed in meeting this burden for Issue #4 but fail for the other three issues?

2. Discuss the powers and limitations of a Homeowners’ Association Board and its Architectural Review Committee as illustrated in this case, specifically concerning construction approval, enforcement authority, and the management of member conflicts of interest.

3. The Petitioners’ request for a rehearing was based on “newly discovered material evidence.” Explain why this request ultimately failed to change the outcome and discuss the strategic decisions made by the Petitioners regarding the presentation of evidence.

4. Examine the conflict between a homeowner’s desire for privacy and unobstructed views (as expressed by the Petitioners) and the rights of a neighboring property owner to develop their land. How did the community’s governing documents and the final legal decision address this conflict?

5. Trace the timeline of the records request dispute (Issue #4). What were the specific actions and inactions by the Respondent that led to a finding of a statutory violation, and what does this illustrate about an HOA’s administrative and statutory responsibilities to its members?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Jenna Clark.

Architectural Review Committee (ARC)

A committee charged by an HOA’s CC&Rs with implementing architectural guidelines to maintain aesthetic standards and preserve property values. Petitioner Norm Burnes was a member of this committee.

Arizona Department of Real Estate (Department)

The state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.

Arizona Revised Statute (ARIZ. REV. STAT. or A.R.S.)

The codified laws of the State of Arizona. Specific statutes cited include § 33-1804 (regarding open meetings) and § 33-1805 (regarding association records).

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioners bore the burden of proving their claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community. They form an enforceable contract between the HOA and each property owner.

Homeowners’ Association (HOA)

The organization that makes and enforces rules for a subdivision or planned community. In this case, the Saguaro Crest Homeowners Association, Inc. is the Respondent.

Offer of Proof

A presentation of evidence made to a judge to demonstrate the substance and relevance of evidence that a party seeks to introduce. The Petitioners’ offer of proof regarding new evidence was found to be unsatisfactory.

Office of Administrative Hearings (OAH)

An independent state agency that conducts evidentiary hearings for other state agencies. This matter was referred to the OAH by the Department of Real Estate.

Petitioners

The party that initiates a legal action or petition. In this case, Clifford and Maria Burnes are the Petitioners.

Preponderance of the Evidence

The standard of proof in most civil cases. It means that the evidence presented is sufficient to convince the trier of fact that a contention is more probably true than not.

Respondent

The party against whom a petition is filed. In this case, the Saguaro Crest Homeowners Association, Inc. is the Respondent.

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21F-H2120002-REL-RHG

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The provided text is a Final Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, detailing a dispute between petitioners Clifford and Maria Burnes and the Saguaro Crest Homeowners Association, Inc. The case involved four specific allegations of violations by the Association, including allowing unapproved construction on Lot 7, failing to collect a required construction deposit, conducting an unnoticed meeting, and failing to fulfill a records request. This document affirms an earlier decision, concluding that the Petitioners failed to sustain the burden of proof for the first three issues but succeeded on the fourth issue regarding the violation of Arizona law concerning records requests. Consequently, the Association was ordered to comply with the relevant statute, provide missing email attachments, and reimburse a portion of the Petitioners’ filing fee.

Case Participants

Petitioner Side

  • Clifford (Norm) S. Burnes (petitioner)
    Saguaro Crest subdivision property owner; ARC Member
  • Maria Burnes (petitioner)
    Saguaro Crest subdivision property owner
  • Jacob A. Kubert (attorney)
  • Cynthia F. Burnes (attorney)
  • Debora Brown (witness)

Respondent Side

  • John Crotty (attorney)
    Law Offices of Farley, Choate & Wood
  • Kelsea Dressen (attorney)
    Law Offices of Farley, Choate & Wood
  • Esmerelda Martinez (board president; witness)
    Saguaro Crest HOA Board of Directors
    President of the Board
  • Dave Madill (board member)
    Saguaro Crest HOA Board of Directors
    Vice President of the Board
  • Julie Stevens (board member)
    Saguaro Crest HOA Board of Directors
    Treasurer of the Board
  • Raul Martinez (property owner)
    Owner of Lot 7 and 13
    Construction on his property (Lot 7) is subject of the dispute
  • Ramona Martinez (property owner)
    Owner of Lot 7

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Sadot Negreté (observer)
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • Dan Gardener (ADRE contact)
    Arizona Department of Real Estate
    Also listed as DGardner
  • c. serrano (administrative staff)
    Office of Administrative Hearings

Other Participants

  • Jamie Argueta (ARC member; property seller)
    Saguaro Crest HOA Architectural Review Committee
    Sold Lots 7 and 13 to Martinez family
  • Joseph Martinez (ARC member)
    Saguaro Crest HOA Architectural Review Committee
  • Jesus Carranza (substitute ARC member)
    Saguaro Crest HOA Architectural Review Committee
    Substitute for Petitioner during Lot 7 discussion

Carlos J Sanchez & Marinda K Minch, vs. Tempe Villages Homeowners

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Case Summary

Case ID 21F-H2121033-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-03-09
Administrative Law Judge Sondra J. Vanella
Outcome The Petition was dismissed because Petitioners failed to prove the Respondent HOA violated the Bylaws regarding the filling of a vacant Board seat. The ALJ determined the Bylaws did not impose a timeframe for filling the vacancy and the Board acted according to Article IV, Section 3.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Carlos J. Sanchez & Marinda K. Minch Counsel —
Respondent Tempe Villages Homeowners Association, Inc. Counsel Ashley Moscarello

Alleged Violations

Bylaws Article 4 Section 1

Outcome Summary

The Petition was dismissed because Petitioners failed to prove the Respondent HOA violated the Bylaws regarding the filling of a vacant Board seat. The ALJ determined the Bylaws did not impose a timeframe for filling the vacancy and the Board acted according to Article IV, Section 3.

Why this result: Petitioners failed to meet the burden of proof to establish the violation by a preponderance of the evidence. The Bylaws do not contain a provision providing a timeframe in which a vacancy on the Board must be filled.

Key Issues & Findings

Violation of Bylaws regarding Board of Directors composition and appointment

Petitioners alleged the HOA violated Bylaws Article 4 Section 1 by leaving a Board seat open following a resignation (August 2020) and not filling it until November 2020. The ALJ found the Bylaws (Sections 1, 2, and 3) did not mandate a timeframe for filling a vacancy, and the HOA followed procedures for appointment.

Orders: Petitioners’ Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: HOA Governance, Board of Directors, Bylaws, Board Vacancy
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

21F-H2121033-REL Decision – 862059.pdf

Uploaded 2026-04-24T11:33:33 (132.3 KB)

This summary addresses the legal case hearing concerning the dispute between Carlos J. Sanchez & Marinda K. Minch (Petitioners) and Tempe Villages Homeowners Association, Inc. (Respondent). The hearing was held before an Administrative Law Judge (ALJ) on March 2, 2021.

Key Facts and Main Issues

Petitioners filed a Homeowners Association (HOA) Dispute Process Petition on or about January 11, 2021, alleging the Respondent violated community Bylaws, specifically Article 4 Section 1.

The central issue was whether the HOA improperly maintained an unfilled seat on its Board of Directors. Petitioners asserted that the HOA violated the Bylaws by leaving a Board seat vacant for a period of time and attempted to prevent Petitioner Marinda Minch from joining the Board.

Respondent's defense focused on the interpretation of Article IV of the Bylaws. The Board's number is set at seven directors. A director resigned in August 2020, leaving six members. The subsequent annual meeting in October 2020 filled two regularly expiring seats via election, in which Petitioners were candidates but were not elected.

The August 2020 vacancy was subject to Article IV, Section 3 of the Bylaws, which states that in the event of resignation, the successor "shall be selected by the remaining members of the Board" to serve the unexpired term.

Hearing Proceedings and Arguments

Petitioners' Argument: Petitioner Marinda Minch testified that the Board delayed filling the vacancy (until November 2020) because of personal dislike for her, and she had petitioned the Board three times for appointment.

Respondent's Argument: Respondent’s President, Bradley Hudson, testified that the Board decided the newly elected Board should fill the vacancy. At the November 11, 2020, virtual meeting, a motion to appoint Ms. Minch failed (2-4 vote), and the Board subsequently appointed another individual (4-2 vote), thereby filling all seven seats. Crucially, the Respondent argued, and the ALJ noted, that the Bylaws do not contain a timeframe within which a vacancy due to resignation must be filled.

Legal Points and Outcome

Petitioners bore the burden of proof to establish the alleged violation by a preponderance of the evidence.

The ALJ determined that Article IV Sections 1, 2, and 3 must be read collectively. The process used by the Board to fill the August vacancy—selection by the remaining Board members—complied with Article IV, Section 3. Because the Bylaws did not mandate an immediate appointment timeframe, the Respondent was found to have acted within the scope of the community documents.

Final Decision: The Petitioners failed to sustain their burden to establish a violation of the Bylaws. IT IS ORDERED that Petitioners’ Petition is dismissed.

Questions

Question

If a Board member resigns, does the HOA have to hold an election to fill the seat?

Short Answer

Not necessarily. Bylaws may allow the remaining Board members to appoint a successor for the unexpired term.

Detailed Answer

In this case, the Bylaws explicitly stated that in the event of a resignation, the remaining Board members select the successor. The ALJ found that the Board was not required to put this seat up for a general election, distinguishing it from seats with expiring terms.

Alj Quote

In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.

Legal Basis

Bylaws Article IV, Section 3

Topic Tags

  • Board Vacancies
  • Elections
  • Bylaws

Question

Is there a specific deadline for the Board to fill a vacant seat after a resignation?

Short Answer

Only if the governing documents specify one. If the Bylaws are silent, there is no strict timeframe.

Detailed Answer

The ALJ ruled that because the community's Bylaws did not specify a deadline, the HOA did not violate the rules by waiting several months (from August to November) to fill the vacancy.

Alj Quote

The Bylaws do not contain a timeframe in which the Board must appoint a successor director after the resignation of a director.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Vacancies
  • Timelines
  • Bylaws

Question

Can the Community Manager appoint or remove Board members?

Short Answer

No. The authority to appoint or remove directors typically lies with the Board or the membership, not the manager.

Detailed Answer

The Community Manager testified that they lacked the authority to make such appointments, confirming that this power resides with the Board itself.

Alj Quote

Mr. Nurse further testified that he does not have the authority to appoint or remove members of the Board.

Legal Basis

Testimony / Findings of Fact

Topic Tags

  • Community Manager
  • Authority
  • Board Composition

Question

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

Short Answer

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

Detailed Answer

This legal standard requires the homeowner to show that their claims are 'more probably true than not.' It is not enough to simply make an allegation; superior evidentiary weight is required.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can I force the Board to hold a vote for a vacant seat if the term hasn't expired yet?

Short Answer

Generally, no. If the term is unexpired, it may not be eligible for a member vote if the Bylaws provide for appointment.

Detailed Answer

The ALJ accepted the explanation that a seat vacated by resignation was not eligible for the general member vote because the original term had not yet expired (it ran until 2022), whereas other seats were up for election because their terms had ended.

Alj Quote

Mr. Nurse explained that the term for the Board member who resigned does not expire until 2022, and as such was not eligible for a member vote.

Legal Basis

Findings of Fact / Bylaws

Topic Tags

  • Elections
  • Board Terms
  • Voting

Question

Does personal dislike or bias by the Board constitute a violation of the Bylaws?

Short Answer

Not on its own. The homeowner must prove a specific violation of the governing documents.

Detailed Answer

Although the homeowner claimed the Board disliked her and was trying to keep her out, the ALJ dismissed the petition because the HOA followed the technical requirements of the Bylaws regarding elections and appointments.

Alj Quote

Petitioners failed to prove by a preponderance of the evidence that Respondent violated the Bylaws as alleged in the Petition.

Legal Basis

Conclusions of Law

Topic Tags

  • Discrimination/Bias
  • Enforcement
  • Board Conduct

Case

Docket No
21F-H2121033-REL
Case Title
Carlos J. Sanchez & Marinda K. Minch v. Tempe Villages Homeowners Association, Inc.
Decision Date
2021-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

If a Board member resigns, does the HOA have to hold an election to fill the seat?

Short Answer

Not necessarily. Bylaws may allow the remaining Board members to appoint a successor for the unexpired term.

Detailed Answer

In this case, the Bylaws explicitly stated that in the event of a resignation, the remaining Board members select the successor. The ALJ found that the Board was not required to put this seat up for a general election, distinguishing it from seats with expiring terms.

Alj Quote

In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.

Legal Basis

Bylaws Article IV, Section 3

Topic Tags

  • Board Vacancies
  • Elections
  • Bylaws

Question

Is there a specific deadline for the Board to fill a vacant seat after a resignation?

Short Answer

Only if the governing documents specify one. If the Bylaws are silent, there is no strict timeframe.

Detailed Answer

The ALJ ruled that because the community's Bylaws did not specify a deadline, the HOA did not violate the rules by waiting several months (from August to November) to fill the vacancy.

Alj Quote

The Bylaws do not contain a timeframe in which the Board must appoint a successor director after the resignation of a director.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Vacancies
  • Timelines
  • Bylaws

Question

Can the Community Manager appoint or remove Board members?

Short Answer

No. The authority to appoint or remove directors typically lies with the Board or the membership, not the manager.

Detailed Answer

The Community Manager testified that they lacked the authority to make such appointments, confirming that this power resides with the Board itself.

Alj Quote

Mr. Nurse further testified that he does not have the authority to appoint or remove members of the Board.

Legal Basis

Testimony / Findings of Fact

Topic Tags

  • Community Manager
  • Authority
  • Board Composition

Question

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

Short Answer

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

Detailed Answer

This legal standard requires the homeowner to show that their claims are 'more probably true than not.' It is not enough to simply make an allegation; superior evidentiary weight is required.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can I force the Board to hold a vote for a vacant seat if the term hasn't expired yet?

Short Answer

Generally, no. If the term is unexpired, it may not be eligible for a member vote if the Bylaws provide for appointment.

Detailed Answer

The ALJ accepted the explanation that a seat vacated by resignation was not eligible for the general member vote because the original term had not yet expired (it ran until 2022), whereas other seats were up for election because their terms had ended.

Alj Quote

Mr. Nurse explained that the term for the Board member who resigned does not expire until 2022, and as such was not eligible for a member vote.

Legal Basis

Findings of Fact / Bylaws

Topic Tags

  • Elections
  • Board Terms
  • Voting

Question

Does personal dislike or bias by the Board constitute a violation of the Bylaws?

Short Answer

Not on its own. The homeowner must prove a specific violation of the governing documents.

Detailed Answer

Although the homeowner claimed the Board disliked her and was trying to keep her out, the ALJ dismissed the petition because the HOA followed the technical requirements of the Bylaws regarding elections and appointments.

Alj Quote

Petitioners failed to prove by a preponderance of the evidence that Respondent violated the Bylaws as alleged in the Petition.

Legal Basis

Conclusions of Law

Topic Tags

  • Discrimination/Bias
  • Enforcement
  • Board Conduct

Case

Docket No
21F-H2121033-REL
Case Title
Carlos J. Sanchez & Marinda K. Minch v. Tempe Villages Homeowners Association, Inc.
Decision Date
2021-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Carlos J. Sanchez (petitioner)
    Candidate for Board election
  • Marinda K. Minch (petitioner)
    Candidate for Board election; considered for vacancy appointment; testified

Respondent Side

  • Ashley Moscarello (HOA attorney)
    Goodman Lawgroup
  • Bradley Hudson (board member)
    Tempe Villages Homeowners Association, Inc. Board
    President of the Board; testified as witness
  • Shawn Nurse (community manager)
    Tempe Villages Homeowners Association, Inc.
    Testified as witness; received ballots for election
  • William Skanadore (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Incumbent candidate; elected
  • Will Terrick (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Incumbent candidate; elected
  • Wendelyn Neal (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Made motion to appoint Marinda Minch
  • Joel Krick (board member)
    Tempe Villages Homeowners Association, Inc. Board
  • Kathy Hudson (board member)
    Tempe Villages Homeowners Association, Inc. Board
  • Christiane Pieraggi (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Appointed to fill vacancy

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Judy Lowe (commissioner)
    ADRE

Other Participants

  • John Neelsen (unknown)
    Candidate for Board election
  • Tania Almonte (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Former Board member whose resignation created a vacancy
  • Ruby (witness assistant)
    Aided in counting votes

Lee & Kim Edwards v. Scottsdale Embassy Condominium Association

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Case Summary

Case ID 21F-H2120028-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-07-28
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lee & Kim Edwards Counsel Terry Foster, Esq.
Respondent Scottsdale Embassy Condominium Association Counsel —

Alleged Violations

A.R.S. § 33-1255

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or A.R.S. § 33-1255, ruling that the statute was inapplicable due to the specific provisions in the Declaration regarding the 1/26 assessment calculation.

Why this result: Petitioner failed to meet the burden of proof, and the ALJ determined A.R.S. § 33-1255 was superseded by the Declaration, which mandated assessments based on the undivided 1/26 interest in the common elements.

Key Issues & Findings

Assessment calculation based on undivided interest in common areas

Petitioner challenged the Association's decision to change assessments from a historical square footage basis to a 1/26 interest calculation, arguing that this method violates A.R.S. § 33-1255 by charging for limited common elements (patios/parking).

Orders: The petition of Lee & Kim Edwards is dismissed; Respondent is deemed the prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1255
  • Declaration Article I, Section 5
  • Declaration Article II, Section 5
  • Declaration Article II, Section 7
  • Declaration Article IV, Section 4
  • Declaration Article VI, Section 9

Analytics Highlights

Topics: condominium, assessment, cc&r, statutory interpretation, common elements, limited common elements
Additional Citations:

  • A.R.S. § 32-2199(1)
  • A.R.S. § 33-1255
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369
  • Powell v. Washburn, 211 Ariz. 553
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70

Video Overview

Audio Overview

Decision Documents

21F-H2120028-REL Decision – 899379.pdf

Uploaded 2026-04-24T11:32:11 (123.6 KB)

21F-H2120028-REL Decision – 856603.pdf

Uploaded 2026-04-24T11:32:19 (98.1 KB)

Assessment Methodology Dispute: Edwards v. Scottsdale Embassy Condominium Association

Executive Summary

This document provides a comprehensive analysis of the legal dispute between homeowners Lee & Kim Edwards (Petitioners) and the Scottsdale Embassy Condominium Association (Respondent) concerning a change in the methodology for calculating homeowner assessments. The core of the conflict was the Association’s decision to shift from a historical practice of assessments based on unit square footage to a uniform rate where each of the 26 units pays an equal 1/26 share of the common expenses.

The dispute was adjudicated by an Administrative Law Judge (ALJ) in two separate hearings. In both instances, the ALJ ruled in favor of the Association, dismissing the petitions filed by the Edwards.

Key Takeaways:

• Change in Methodology: The Association’s Board, acting on legal advice received in January 2020, concluded that its 40-year practice of using a square-footage-based assessment violated the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Board subsequently implemented a 1/26 equal-share assessment method after a majority of homeowners selected this option.

• Initial Ruling on “Uniform Rate”: In the first hearing in February 2021, the Petitioners argued that the historical square footage method was a “uniform rate” and that the Association had waived its right to change the long-standing practice. The ALJ rejected this, finding that the new 1/26 rate complied with the CC&Rs’ requirement for a “uniform rate” (Article VI, Section 9) and aligned with each unit’s specified 1/26 undivided interest in the common elements (Article VI, Section 4(d)).

• Rehearing Ruling on State Statute: The Petitioners were granted a rehearing in July 2021, where they argued that the 1/26 method violated Arizona statute A.R.S. § 33-1255 by improperly charging all owners for “limited common elements” like patios and parking spaces. The ALJ again ruled against the Petitioners, concluding that the state statute did not apply. The ruling was based on a key provision in the statute: “Unless otherwise provided for in the declaration.” The judge found that the Association’s Declaration did provide otherwise by defining patios and parking as general common elements and explicitly mandating that costs be shared based on each unit’s 1/26 interest.

• Final Outcome: The petition was definitively dismissed after the rehearing, making the ALJ’s order binding. The Association’s adoption of the 1/26 assessment rate was upheld as compliant with its governing documents.

——————————————————————————–

Background of the Dispute

The legal conflict originated from a single-issue petition filed on November 20, 2020, by Lee and Kim Edwards, owners of unit 6937 in the Scottsdale Embassy Condominium development. The petition, filed with the Arizona Department of Real Estate, alleged that the Scottsdale Embassy Condominium Association had violated its CC&Rs, specifically Article VI, Section 9, and Article IV, Section 1.

The central issue was the Association Board’s decision to change the long-standing method of calculating homeowner assessments. For over 40 years, assessments had been based on the square footage of each unit. In 2020, the Board implemented a new system where the Association’s annual budget was divided equally among the 26 units, with each owner paying a 1/26 share. The Petitioners sought to enforce the historical calculation method unless and until the CC&Rs were properly amended.

Chronology of the Assessment Change

• Historical Practice: For more than four decades, the Association calculated and charged member assessments based on the square footage of each condominium unit.

• Legal Consultation (January 2020): Two members of the Association’s Board consulted with an attorney regarding the legality of the historical assessment method.

• Attorney Recommendation (January 24, 2020): The attorney advised the Association that, to ensure compliance with the CC&Rs, it should calculate assessments based on each homeowner’s 1/26 interest in the common areas. The attorney’s letter stated:

• Homeowner Consultation: Following the legal advice, the Board informed homeowners that the prior square-footage method violated the CC&Rs. The Board sought input on three potential assessment methods: the 1/26 rate, a variable blended rate, or continuing with the square footage rate. A majority of homeowners selected the 1/26 rate. The Board noted that any method other than the 1/26 rate would require a formal amendment to the CC&Rs.

• Implementation (September 26, 2020): The Board officially notified homeowners that it would begin charging assessments based on the 1/26 rate and that an amendment to the CC&Rs was not necessary to implement this change.

Initial Hearing and Decision (February 2021)

An evidentiary hearing was held on February 9, 2021, before Administrative Law Judge Velva Moses-Thompson.

Arguments Presented

Petitioners (Edwards)

1. The historical square footage rate qualified as a “uniform rate” and was compliant with the CC&Rs.
2. By using the square footage rate for over 40 years, the Association had waived its right to enforce a different method like the 1/26 rate.

Respondent (Association)

1. The plain language of the CC&Rs requires that each homeowner pay an assessment based on the 1/26 rate.
2. It is not legally possible to waive a mandatory CC&R requirement through past practice.

On February 19, 2021, the ALJ issued a decision dismissing the petition. The judge’s conclusions of law were based on a direct interpretation of the CC&Rs:

• Uniform Rate Compliance: The ALJ determined that the “preponderance of the evidence” showed that the Association’s 1/26 rate was a uniform rate that complied with Article VI, Section 9 of the CC&Rs.

• Burden of Proof: The Petitioners failed to meet their burden to prove that the Association had violated its governing documents.

• Outcome: The Association was deemed the prevailing party, and the petition was dismissed.

Rehearing and Final Decision (July 2021)

The Petitioners filed a request for a rehearing on March 30, 2021, which was granted. The rehearing was held on July 8, 2021. The Respondent did not appear at this hearing, as its counsel had withdrawn from representation without formally notifying the tribunal.

In the rehearing, the Petitioners introduced a new argument, alleging that the 1/26 assessment method violated Arizona state law, specifically A.R.S. § 33-1255.

• The core of this argument was that the 1/26 rate improperly included charges for “limited common elements,” such as patios and assigned parking spaces.

• The Petitioners contended that this forced all homeowners to pay for the maintenance of elements that were assigned to and benefited fewer than all units, in direct violation of the statute.

On July 28, 2021, the ALJ issued a final decision, once again dismissing the petition. The ruling hinged on the precise wording of both the state statute and the Association’s Declaration.

• Applicability of A.R.S. § 33-1255: The judge found that the statute did not apply to this matter. The relevant section of the law, A.R.S. § 33-1255(C), begins with the critical phrase: “Unless otherwise provided for in the declaration…”

• Supremacy of the Declaration: The ALJ concluded that the Association’s Declaration did provide otherwise. The CC&Rs explicitly:

◦ Define “Common Elements” broadly to include patios and parking areas (Article I, Section 3).

◦ Establish that each unit has an “undivided interest in the general common areas” of 1/26 (Article I, Section 5).

◦ Mandate that each unit’s share of costs for repair and maintenance of common areas is the “same as its undivided interest in the common elements” (Article IV, Section 4(d)).

• Final Outcome: Because the Declaration’s specific provisions overrode the general terms of the state statute, the Association was found to be in compliance. The petition was dismissed, and the order was deemed binding on the parties.

Key Legal Principles and Definitions

Concept

Definition / Application in Case

Burden of Proof

The Petitioners were required to establish their claim by a “preponderance of the evidence.”

Preponderance of the Evidence

Defined as “proof as convinces the trier of fact that the contention is more probably true than not.” The ALJ found the Petitioners failed to meet this standard in both hearings.

Restrictive Covenants

Arizona law requires that unambiguous restrictive covenants be enforced to give effect to the parties’ intent and be interpreted as a whole. The ALJ’s decisions were based on a direct interpretation of the CC&Rs’ language.

Common Elements (per CC&Rs)

A broad definition including multifamily structures, land, roofs, ceilings, foundations, storage spaces, patios, parking areas, recreational facilities, lawns, pipes, and conduits.

Unit (per CC&Rs)

A freehold estate consisting of the interior space of an apartment. The definition explicitly states that common elements are not part of the unit.

Undivided Interest (per CC&Rs)

Article I, Section 5 clearly establishes that “The undivided interest in the general common areas… which shall be conveyed with each respective units shall be 1/26.” This provision was central to the final ruling.

Study Guide: Edwards v. Scottsdale Embassy Condominium Association

This study guide provides a comprehensive review of the administrative case between Lee & Kim Edwards and the Scottsdale Embassy Condominium Association, based on the provided legal decisions. It includes a short-answer quiz, an answer key, suggested essay questions, and a detailed glossary of key terms.

Short-Answer Quiz

Answer the following questions in two to three sentences each, based on the information provided in the case documents.

1. What was the central conflict between the Petitioners (Lee & Kim Edwards) and the Respondent (Scottsdale Embassy Condominium Association)?

2. For over 40 years, how did the Association historically calculate assessments for homeowners?

3. What specific event in January 2020 prompted the Association’s Board to change the assessment method?

4. In the first hearing on February 9, 2021, what were the two main arguments presented by Mr. Edwards?

5. What was the Administrative Law Judge’s conclusion regarding the “uniform rate” requirement from CC&Rs Article VI, Section 9 in the initial decision?

6. Upon what new legal grounds did the Petitioners base their March 30, 2021, request for a re-hearing?

7. According to the CC&Rs, what is the defined undivided interest in the general common areas for each unit?

8. Why did the Administrative Law Judge ultimately conclude that Arizona Revised Statutes (A.R.S.) § 33-1255 did not apply in this case?

9. What legal standard of proof did the Petitioners need to meet to successfully prove their case?

10. What was the final, binding outcome of the re-hearing held on July 8, 2021?

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Answer Key

1. The central conflict concerned the method for calculating homeowner assessments. The Petitioners argued for the historical method based on unit square footage, while the Respondent implemented a new method where each of the 26 units paid an equal share (1/26 rate) of the Association’s costs.

2. For over 40 years, the Association historically calculated assessments based on the square footage of each condominium unit. This practice was changed by the Board in 2020.

3. In January 2020, two Board members met with an attorney who advised that to comply with the CC&Rs, the Association should charge assessments based on each homeowner’s 1/26 interest in the common areas, not on square footage.

4. Mr. Edwards argued that the historical square footage rate was a “uniform rate” that complied with the CC&Rs. He also contended that by using this method for 40 years, the Association had waived its right to enforce a different assessment method like the 1/26 rate.

5. The Judge concluded that the Respondent’s assessment method, based on a uniform rate of 1/26 of the Association’s costs for each unit, did comply with Article VI, Section 9. Therefore, the Petitioners failed to prove the Association had violated the CC&Rs.

6. The Petitioners based their request for a re-hearing on the new allegation that the Respondent had violated Arizona Revised Statutes (A.R.S.) § 33-1255. They argued the 1/26 rate improperly required members to pay for limited common elements, such as patios and parking spaces, not assigned to them.

7. According to Article I, Section 5 of the Declaration (CC&Rs), the undivided interest in the general common areas established and conveyed with each respective unit is 1/26.

8. The Judge concluded that A.R.S. § 33-1255 did not apply because the statute itself contains an exception: “Unless otherwise provided for in the declaration.” In this case, the Association’s Declaration explicitly required that each member be charged an assessment equivalent to their 1/26 interest in the total costs, which included patios and parking areas.

9. The Petitioners bore the burden of proof to establish their claims by a “preponderance of the evidence.” This standard requires proof that convinces the trier of fact that a contention is more probably true than not.

10. Following the re-hearing, the Administrative Law Judge again ordered that the petition of Lee & Kim Edwards be dismissed. The Respondent was deemed the prevailing party, and the order was declared binding on the parties.

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Essay Questions

The following questions are designed for longer, essay-style responses. Answers are not provided.

1. Trace the evolution of the Petitioners’ legal strategy from the initial petition filed on November 20, 2020, to the arguments made during the re-hearing on July 8, 2021. How did their core arguments change, and what new evidence or legal statutes were introduced?

2. Analyze the concept of a “uniform rate” as required by Article VI, Section 9 of the CC&Rs. Discuss how both the Petitioners and the Respondent interpreted this phrase to support their respective assessment methods (square footage vs. 1/26 rate).

3. Explain in detail the role of A.R.S. § 33-1255 in the re-hearing. Why did the Petitioners believe it supported their case, and what specific language in both the statute and the Association’s Declaration led the Administrative Law Judge to rule that it did not apply?

4. Evaluate the actions taken by the Association’s Board of Directors in 2020. Consider their consultation with an attorney, their communication with homeowners, and their final decision to implement the 1/26 rate. Discuss whether these actions were consistent with the powers and obligations outlined in the CC&Rs.

5. Discuss the legal argument of “waiver” raised by Mr. Edwards in the first hearing. Explain what he meant by this and why the Association’s 40-year history of using a square-footage-based assessment was central to this claim. Why did this argument ultimately fail?

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Glossary of Key Terms

Definition

1/26 Rate

The assessment method where the Association’s annual budget is divided 26 ways, with each unit responsible for paying an equal portion. This is based on each unit’s 1/26 undivided interest in the common areas as specified in the CC&Rs.

Administrative Law Judge (ALJ)

The independent judicial officer who presides over administrative hearings, hears evidence, and issues a decision. In this case, the ALJ was Velva Moses-Thompson.

A.R.S. § 32-2199(1)

The Arizona Revised Statute that permits a condominium unit owner to file a petition with the Department of Real Estate for a hearing regarding alleged violations of the Condominium Act.

A.R.S. § 33-1255

The Arizona Revised Statute concerning common expenses. It states that unless the declaration provides otherwise, expenses for a limited common element shall be assessed against the units to which it is assigned, and expenses benefitting fewer than all units shall be assessed exclusively against the units benefitted.

Arizona Department of Real Estate

The state agency authorized by statute to receive and decide Petitions for Hearings from members of condominium associations in Arizona.

Burden of Proof

The obligation on a party in a legal proceeding to establish its claims by a required standard of evidence. In this case, the Petitioners bore the burden of proof.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set up the guidelines for a planned community or condominium. Also referred to as the “Declaration” in the provided documents.

Common Area / Common Elements

As defined in Article I, Section 3 of the CC&Rs, this includes the multifamily structure (except for the units), land, air space, bearing walls, roofs, storage spaces, patios, recreational facilities, lawns, pipes, and other premises designed for common use.

Declaration

Another term for the Covenants, Conditions, and Restrictions (CC&Rs).

Lee & Kim Edwards

The Petitioners in the case and owners of unit 6937 in the Scottsdale Embassy Condominium development.

Office of Administrative Hearings

An independent state agency to which the Department of Real Estate refers petitions for evidentiary hearings.

Petitioners

The party that initiates a legal action or petition. In this case, Lee & Kim Edwards.

Preponderance of the Evidence

The evidentiary standard required to be met by the Petitioners. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the Scottsdale Embassy Condominium Association.

Restricted Common Area

As defined in Article I, Section 3(b) of the CC&Rs, this refers to a separately designed and exclusive parking area for each unit as assigned by the Board of Directors.

Scottsdale Embassy Condominium Association

The Respondent in the case; the condominium unit owners’ association for the development.

Square Footage Rate

The historical method of calculating assessments for over 40 years, where each unit’s assessment was based on its square footage.

Uniform Rate

A requirement from Article VI, Section 9 of the CC&Rs that states both regular and special assessments must be fixed at a uniform rate for all units. The interpretation of this term was central to the dispute.

As defined in Article I, Section 4 of the CC&Rs, a separately designated freehold estate consisting of the space bounded by the interior surfaces of the perimeter walls, floors, ceilings, windows, and floors of each apartment. It does not include common elements.

Waiver

A legal argument made by the Petitioners that because the Association had charged assessments based on square footage for 40 years, it had relinquished or “waived” its right to enforce a different method.

4 Shocking Lessons from an HOA Lawsuit That Could Upend How You See Your Fees

Introduction: The 40-Year Mistake

If you live in a condominium or a community governed by a Homeowners Association (HOA), you likely operate under a simple assumption: the way things have always been done is the correct and legal way. Monthly fees, maintenance schedules, and community rules that have been in place for decades feel permanent and unassailable. But what if they aren’t?

This was the central question in the case of Lee & Kim Edwards versus the Scottsdale Embassy Condominium Association. For over 40 years, the Association calculated homeowner fees based on the square footage of each unit—a practice that seemed fair and logical, and one that was never questioned by residents.

Then came the twist. In January 2020, after consulting with an attorney, the HOA board announced a shocking revelation: their 40-year-old assessment method was a direct violation of the community’s own governing documents. The board presented the legal findings to the community and sought their input on how to proceed. After being given the choice between the old method, a blended rate, or a new flat-rate fee that complied with the rules, most homeowners voted for the compliant flat-rate system for every single unit, regardless of its size.

Homeowners sued to keep the old method, sparking a legal battle that went all the way to an administrative court. The resulting decisions offer surprising and crucial lessons for every homeowner paying HOA dues. Here are the four most impactful takeaways from the case that could change how you view your own community’s rules.

1. “Past Practice” Means Nothing if It Violates the Rules

The primary argument made by the petitioners, Mr. and Mrs. Edwards, was that the Association had “waived its right” to change the assessment method. After all, by using the square-footage calculation for four decades, hadn’t they established an unbreakable precedent? It seemed like a common-sense argument rooted in history and consistency.

The court, however, completely rejected this line of reasoning. The Administrative Law Judge’s decision was not based on historical practice but on the clear, written rules found in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Association argued that it’s “not possible to waive the CC&R requirement,” and the court agreed.

The Lesson: This case powerfully demonstrates that tradition or “how things have always been done” cannot override the explicit language of an HOA’s governing documents. The CC&Rs are a contract. The lesson is clear: if your HOA’s practice contradicts its documents, the practice is invalid. The board has a fiduciary duty to follow the written rules, not a 40-year-old mistake.

2. Your CC&Rs Are a Binding Contract—Read Them

Throughout the legal proceedings, the Administrative Law Judge consistently referred back to the specific text of the CC&Rs to make a final decision. The entire case ultimately hinged on the interpretation of a few key sentences written decades ago.

The most critical passage, which decided the outcome, was from Article VI, Section 4(d) of the community’s governing documents:

“Each unit’s share shall be the same as its undivided interest in the common elements of the total amount determined under the subparagraphs (a), (b), (c), and (d) above.” —Scottsdale Embassy Condominium Association CC&Rs, Article VI, Section 4(d)

This single sentence was the linchpin. It explicitly linked each unit’s assessment share to its “undivided interest in the common elements.” Another section of the document, Article I, Section 5, had already established that interest as an equal 1/26 for all 26 units.

The Lesson: This is a classic example of legal cross-referencing in a contract. Section 4(d) provided the instruction (base fees on “undivided interest”), while Article I, Section 5 provided the specific value (1/26). With both parts present and unambiguous, the court had no choice but to enforce them exactly as written, leaving no room for interpretations based on fairness or history. The contract was the contract.

3. A “Uniform Rate” Might Not Mean What You Think

One of the central points of contention was the term “uniform rate.” Article VI, Section 9 of the CC&Rs required that all assessments “must be fixed at a uniform rate for all units.”

The homeowners argued that the square footage rate was, in fact, a “uniform rate”—a consistent price per square foot applied to every unit. It’s an interpretation many of us might find reasonable.

However, the HOA Board and the court had a different interpretation. The judge found that the flat 1/26 rate was the correct interpretation of a “uniform rate” because it was uniformly applied to every unit’s established 1/26 interest in the common areas. In the court’s view, the “rate” being applied uniformly was the 1/26 fraction of the total budget. The fact that this resulted in different dollar amounts for square-footage fees was irrelevant; the legal share was what had to be uniform.

The Lesson: Common-sense terms like “uniform” can have very specific legal meanings within the context of your governing documents. The true definition is found not in a dictionary, but in how the term is defined and applied by the rest of the document’s provisions.

4. Your HOA’s Rules Can Sometimes Override State Law

In a final attempt to overturn the decision, the petitioners filed for a re-hearing. This time, they cited a specific Arizona state law, A.R.S. 33-1255. This statute says that expenses for “limited common elements”—things like assigned patios or parking spaces that only benefit specific units—should be assessed only against those units that benefit from them. The homeowners argued that the new 1/26 flat fee unfairly forced them to pay for their neighbors’ patios and parking spots, a direct violation of state law.

Surprisingly, this argument also failed. The reason is found in the crucial introductory clause of the state law itself: “Unless otherwise provided for in the declaration…”

Because the Scottsdale Embassy’s Declaration did provide otherwise—by explicitly rolling all general and restricted common area costs into the total budget before calculating each unit’s 1/26 share—the community’s own rules legally superseded the default state statute. The judge concluded that the state law “does not apply to this matter because the Declaration requires” a different method.

The Lesson: This is perhaps the most counter-intuitive lesson of all. This demonstrates a key principle of contract law and planned community governance: state statutes often provide a “default” rule for situations a community’s documents don’t address. However, they also grant communities the power to create their own specific rules, which, if legally permissible, will take precedence. Homeowners cannot assume that a state law automatically protects them if their community’s own governing documents have a more specific rule in place.

Conclusion: Are You Sure You Know What You Agreed To?

The central message from the Scottsdale Embassy case is undeniable: in an HOA, the written word is law. The CC&Rs and other governing documents are a binding contract that dictates the rules, regardless of 40 years of history, common-sense assumptions, or even some default state laws. What you believe is fair or standard practice is irrelevant if the document you agreed to upon purchase says otherwise.

This case was decided by a few sentences written decades ago. When was the last time you read your community’s governing documents from cover to cover?

Case Participants

Petitioner Side

  • Lee Edwards (petitioner, witness)
  • Kim Edwards (petitioner)
  • Teresa H. Foster (petitioner attorney)
    Ellis & Baker, P.C.
    Also referred to as Terri Foster and Terry Foster

Respondent Side

  • Lauren Vie (respondent attorney)
    Appeared for initial hearing; later noted as withdrawn
  • Caleb Koch (board president, witness)
    Scottsdale Embassy Condominium Association
  • Mary Edinburgh (board member, witness)
    Scottsdale Embassy Condominium Association
  • Beth Mulcahy (respondent attorney)
    Mulcahy Law Firm, PC
    Recipient of transmission; noted as withdrawn counsel prior to rehearing

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient

Other Participants

  • Miranda Alvarez (unknown)
    Associated with transmission for petitioner's attorney