Petitioner's petition alleging violations of ARIZ. REV. STAT. § 33-1803 regarding assessment increase and fine imposition was denied in its entirety. The Administrative Law Judge found Petitioner failed to meet the burden of proof, concluding the HOA did not violate the statute.
Why this result: Petitioner did not meet the burden of proving by a preponderance of the evidence that the Association violated ARIZ. REV. STAT. § 33-1803, as the assessment error was corrected and the notice requirements for the fine were met.
Key Issues & Findings
Assessment Increase
Petitioner alleged the yearly assessment increased from $525.00 to $1,010.00, violating ARS § 33-1803(A). The HOA claimed this was a clerical error that was promptly corrected to $525.00.
Orders: Petitioner failed to meet the burden of proof, as the evidence showed the assessment error was immediately corrected, resulting in no statutory violation.
Filing fee: $1,000.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1803(A)
ARIZ. REV. STAT. § 33-1803
Imposition of fine without proper notice
Petitioner challenged a $500 fine for commencing construction of a courtyard wall without prior approval. Petitioner claimed insufficient notice, while the HOA asserted notice was provided via email, satisfying statutory requirements.
Orders: Petitioner failed to meet the burden of proof. The email notice complied with statutory requirements. The Association was ordered not to reimburse the filing fee.
Filing fee: $1,000.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1803(B)
ARIZ. REV. STAT. § 33-1803(C)
ARIZ. REV. STAT. § 33-1803(D)
ARIZ. REV. STAT. § 33-1803(E)
ARIZ. REV. STAT. § 33-1803
Video Overview
Audio Overview
Decision Documents
24F-H021-REL Decision – 1114406.pdf
Uploaded 2026-01-23T18:03:08 (48.9 KB)
24F-H021-REL Decision – 1114407.pdf
Uploaded 2026-01-23T18:03:11 (6.6 KB)
24F-H021-REL Decision – 1135788.pdf
Uploaded 2026-01-23T18:03:15 (57.8 KB)
24F-H021-REL Decision – 1143255.pdf
Uploaded 2026-01-23T18:03:18 (124.1 KB)
Questions
Question
Is an HOA required to send a Notice of Violation via certified mail?
Short Answer
No, Arizona statute does not require the initial Notice of Violation to be sent via certified mail.
Detailed Answer
The ALJ determined that while homeowners often expect certified mail, the relevant statute (A.R.S. § 33-1803) does not mandate it for the initial notice. As long as the homeowner actually receives the notice (even via email) and it contains the required statutory information, it is considered valid.
Alj Quote
As to the fine, nothing in the statute requires the Association to send the notice via certified mail.
Legal Basis
A.R.S. § 33-1803
Topic Tags
violations
notices
procedural requirements
Question
Does a clerical error on a ledger count as an illegal assessment increase?
Short Answer
No, if the error is corrected and the homeowner is not actually forced to pay the incorrect amount, it is not a violation.
Detailed Answer
In this case, the HOA's management company sent a ledger showing an incorrect assessment amount that appeared to double the fees. However, because the HOA acknowledged the mistake, corrected the ledger to the proper amount, and communicated the correction to the homeowner, the ALJ ruled that the HOA did not violate the statute regarding assessment increases.
Alj Quote
The testimony provided, demonstrated that there was an error in the ledger Petitioner received initially, but that was corrected as evidenced by the July 7, 2023 ledger… Petitioner has not met its burden to prove that the Association violated the statute.
Legal Basis
A.R.S. § 33-1803(A)
Topic Tags
assessments
billing errors
fees
Question
Whose responsibility is it to ensure the HOA has the correct mailing address?
Short Answer
It is the homeowner's responsibility to update their address with the HOA.
Detailed Answer
The ALJ ruled that a homeowner cannot claim they didn't receive notice if they failed to provide the HOA with their current address. Even if the homeowner informs a board member verbally or via email of a change in ownership entity, they must explicitly provide the correct mailing address to the Association.
Alj Quote
While Petitioner informed Mr. Needham that Jolly Acres was now the owner and to mail all community documents to them, he did not provide an address nor update a corrected address with the Association. Thus, this was not the Association’s fault that he did not receive notice of the fine.
Legal Basis
N/A
Topic Tags
homeowner obligations
notices
mailing address
Question
Can an HOA send a Notice of Violation via email?
Short Answer
Yes, if the homeowner receives it.
Detailed Answer
The decision validated a Notice of Violation sent via email because the homeowner acknowledged receiving it. Since the homeowner received actual notice and the content of the email met statutory requirements, the notice was deemed valid despite not being mailed initially.
Alj Quote
Therefore, although Petitioner never received the Notice of Violation via mail, he did receive the same on October 24, 2022. From the evidence provided, the Notice complied with all of the statutory requirements
Legal Basis
A.R.S. § 33-1803
Topic Tags
violations
email
notices
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner filing the petition must prove that the HOA violated the law by a 'preponderance of the evidence,' which means showing that their claims are more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.
Legal Basis
A.R.S. § 41-1092
Topic Tags
hearings
legal standards
burden of proof
Question
Can a homeowner respond to a violation notice to contest it?
Short Answer
Yes, a homeowner has 21 days to respond via certified mail.
Detailed Answer
Statute allows a member to provide a written response to a violation notice. This response must be sent by certified mail within 21 calendar days of the notice date.
Alj Quote
A member who receives a written notice that the condition of the property owned by the member is in violation of the community documents… may provide the association with a written response by sending the response by certified mail within twenty-one calendar days after the date of the notice.
Legal Basis
A.R.S. § 33-1803(C)
Topic Tags
violations
due process
homeowner rights
Question
If a homeowner makes a partial payment on a debt, how must the HOA apply the money?
Short Answer
Payments must be applied to the principal debt first, then to accrued interest.
Detailed Answer
Arizona law mandates that any monies paid by a member for an unpaid penalty or assessment must be applied first to the principal amount unpaid and then to the interest accrued.
Alj Quote
Any monies paid by a member for an unpaid penalty shall be applied first to the principal amount unpaid and then to the interest accrued.
Legal Basis
A.R.S. § 33-1803(B)
Topic Tags
payments
accounting
penalties
Question
Will the filing fee for the hearing be refunded if the homeowner loses?
Short Answer
No, the filing fee is not reimbursed if the petition is denied.
Detailed Answer
The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.02(A)
Topic Tags
hearings
fees
costs
Case
Docket No
24F-H021-REL
Case Title
George Holub v 3 Canyons Ranch Master Homeowners’ Association
Decision Date
2024-02-12
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Is an HOA required to send a Notice of Violation via certified mail?
Short Answer
No, Arizona statute does not require the initial Notice of Violation to be sent via certified mail.
Detailed Answer
The ALJ determined that while homeowners often expect certified mail, the relevant statute (A.R.S. § 33-1803) does not mandate it for the initial notice. As long as the homeowner actually receives the notice (even via email) and it contains the required statutory information, it is considered valid.
Alj Quote
As to the fine, nothing in the statute requires the Association to send the notice via certified mail.
Legal Basis
A.R.S. § 33-1803
Topic Tags
violations
notices
procedural requirements
Question
Does a clerical error on a ledger count as an illegal assessment increase?
Short Answer
No, if the error is corrected and the homeowner is not actually forced to pay the incorrect amount, it is not a violation.
Detailed Answer
In this case, the HOA's management company sent a ledger showing an incorrect assessment amount that appeared to double the fees. However, because the HOA acknowledged the mistake, corrected the ledger to the proper amount, and communicated the correction to the homeowner, the ALJ ruled that the HOA did not violate the statute regarding assessment increases.
Alj Quote
The testimony provided, demonstrated that there was an error in the ledger Petitioner received initially, but that was corrected as evidenced by the July 7, 2023 ledger… Petitioner has not met its burden to prove that the Association violated the statute.
Legal Basis
A.R.S. § 33-1803(A)
Topic Tags
assessments
billing errors
fees
Question
Whose responsibility is it to ensure the HOA has the correct mailing address?
Short Answer
It is the homeowner's responsibility to update their address with the HOA.
Detailed Answer
The ALJ ruled that a homeowner cannot claim they didn't receive notice if they failed to provide the HOA with their current address. Even if the homeowner informs a board member verbally or via email of a change in ownership entity, they must explicitly provide the correct mailing address to the Association.
Alj Quote
While Petitioner informed Mr. Needham that Jolly Acres was now the owner and to mail all community documents to them, he did not provide an address nor update a corrected address with the Association. Thus, this was not the Association’s fault that he did not receive notice of the fine.
Legal Basis
N/A
Topic Tags
homeowner obligations
notices
mailing address
Question
Can an HOA send a Notice of Violation via email?
Short Answer
Yes, if the homeowner receives it.
Detailed Answer
The decision validated a Notice of Violation sent via email because the homeowner acknowledged receiving it. Since the homeowner received actual notice and the content of the email met statutory requirements, the notice was deemed valid despite not being mailed initially.
Alj Quote
Therefore, although Petitioner never received the Notice of Violation via mail, he did receive the same on October 24, 2022. From the evidence provided, the Notice complied with all of the statutory requirements
Legal Basis
A.R.S. § 33-1803
Topic Tags
violations
email
notices
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner filing the petition must prove that the HOA violated the law by a 'preponderance of the evidence,' which means showing that their claims are more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.
Legal Basis
A.R.S. § 41-1092
Topic Tags
hearings
legal standards
burden of proof
Question
Can a homeowner respond to a violation notice to contest it?
Short Answer
Yes, a homeowner has 21 days to respond via certified mail.
Detailed Answer
Statute allows a member to provide a written response to a violation notice. This response must be sent by certified mail within 21 calendar days of the notice date.
Alj Quote
A member who receives a written notice that the condition of the property owned by the member is in violation of the community documents… may provide the association with a written response by sending the response by certified mail within twenty-one calendar days after the date of the notice.
Legal Basis
A.R.S. § 33-1803(C)
Topic Tags
violations
due process
homeowner rights
Question
If a homeowner makes a partial payment on a debt, how must the HOA apply the money?
Short Answer
Payments must be applied to the principal debt first, then to accrued interest.
Detailed Answer
Arizona law mandates that any monies paid by a member for an unpaid penalty or assessment must be applied first to the principal amount unpaid and then to the interest accrued.
Alj Quote
Any monies paid by a member for an unpaid penalty shall be applied first to the principal amount unpaid and then to the interest accrued.
Legal Basis
A.R.S. § 33-1803(B)
Topic Tags
payments
accounting
penalties
Question
Will the filing fee for the hearing be refunded if the homeowner loses?
Short Answer
No, the filing fee is not reimbursed if the petition is denied.
Detailed Answer
The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.02(A)
Topic Tags
hearings
fees
costs
Case
Docket No
24F-H021-REL
Case Title
George Holub v 3 Canyons Ranch Master Homeowners’ Association
Decision Date
2024-02-12
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
George Holub(petitioner) Jolly Acres LLC (Owner Entity) Appeared on his own behalf
Emily Holub(Petitioner's Wife) Involved in communications with the HOA regarding assessment
Respondent Side
Marcus Martinez(HOA attorney) 3 Canyons Ranch Master Homeowners’ Association Represented Respondent
Mike Needham(Board President) 3 Canyons Ranch Master Homeowners’ Association President of the Board of Directors, testified as a witness
Nicholas Nogami(Attorney) Carpenter Hazlewood Listed in service transmission
Sarah Malovich(HOA Agent)
David Roberts(HOA Agent) Provided statement
Mrs. Turka(HOA contact) Gate person contact
Mr. Plat(MDC Chairman) 3 Canyons Ranch Master Homeowners’ Association Chairman of the Master Design Committee
The Administrative Law Judge denied the Petitioner’s petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1808(L) because the newsletter did not constitute an assembly using common areas as required by the statute.
Why this result: Petitioner failed to meet the burden of proof, specifically because the tribunal found the newsletter did not constitute “peacefully assemble and use common areas” as required by ARIZ. REV. STAT. § 33-1808(L).
Key Issues & Findings
Alleged violation of ARS § 33-1808(L) regarding the right to peacefully assemble and use common areas due to the issuance of a cease and desist letter concerning a newsletter.
Petitioner alleged the HOA violated ARS § 33-1808(L) by sending a cease and desist letter regarding statements in her community newsletter. Petitioner argued the newsletter constituted a 'meeting' or 'assembly' protected by the statute, while Respondent argued the statute requires physical assembly and use of common areas. The tribunal ultimately found that the newsletter did not satisfy the statutory requirement for assembly in common areas.
Orders: Petitioner’s petition was denied. Respondent shall not reimburse Petitioner’s filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1808(L)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.05
McCoy versus Johnson 1 CAD 2167
Analytics Highlights
Topics: HOA, Homeowner Dispute, Free Speech, Assembly Rights, Cease and Desist Letter, ARS 33-1808(L), Newsletter
Additional Citations:
ARIZ. REV. STAT. § 33-1808(L)
ARIZ. REV. STAT. § 32-2199.02(A)
McCoy versus Johnson 1 CAD 2167
Video Overview
Audio Overview
Decision Documents
24F-H018-REL Decision – 1117204.pdf
Uploaded 2026-01-23T18:02:30 (47.3 KB)
24F-H018-REL Decision – 1117206.pdf
Uploaded 2026-01-23T18:02:33 (5.6 KB)
24F-H018-REL Decision – 1130156.pdf
Uploaded 2026-01-23T18:02:37 (50.9 KB)
24F-H018-REL Decision – 1142847.pdf
Uploaded 2026-01-23T18:02:40 (114.9 KB)
Questions
Question
Does publishing a community newsletter count as 'peaceful assembly' protected by Arizona HOA laws?
Short Answer
No. The Administrative Law Judge ruled that a written newsletter does not satisfy the statutory definition of assembling in common areas.
Detailed Answer
The ALJ determined that A.R.S. § 33-1808(L), which protects the right to assemble in common areas, does not extend to written publications like newsletters. The judge noted that if the legislature intended to protect such mediums, they would have explicitly included them in the statute.
Alj Quote
Further, the tribunal disagrees that the newsletter can be read as satisfying the 'peacefully assemble and use common areas' of the community. If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
newsletters
freedom of assembly
legislative intent
Question
Can my HOA send me a 'cease and desist' letter regarding the content of my newsletter without violating my rights?
Short Answer
Yes, if the letter is a warning regarding specific content (like defamation) rather than a total prohibition on publishing.
Detailed Answer
The ALJ found no violation where an HOA sent a letter warning a homeowner about potential defamation claims regarding specific comments. Because the homeowner was not actually stopped from publishing future newsletters, the HOA did not 'prohibit or unreasonably restrict' the member's rights.
Alj Quote
Respondent sent the cease and desist letter as a warning to Petitioner that a claim may be made for defamation should those specific comments continue. There was no evidence presented that a court case was filed or that Petitioner had been fined as a result of her newsletter.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
cease and desist
defamation
HOA correspondence
Question
Does A.R.S. § 33-1808(L) protect social media posts or online communications?
Short Answer
No. The ruling explicitly states that this statute was not intended to cover social media posts.
Detailed Answer
The decision interprets the 'peaceful assembly' statute strictly. The judge reasoned that the legislature had multiple opportunities to include digital communications or social media in the text of the law but chose not to do so.
Alj Quote
If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
social media
electronic communication
statutory interpretation
Question
What standard of proof must a homeowner meet to win a hearing against their HOA?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) bears the burden of proof. They must demonstrate that their claims are 'more probably true than not'—a standard known as the preponderance of the evidence.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1808(L). … 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 33-1808(L); A.A.C. R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
If I lose my hearing against the HOA, will I get my $500 filing fee back?
Short Answer
No. If the petition is denied, the HOA is not required to reimburse the filing fee.
Detailed Answer
The ALJ ordered that because the Petitioner's petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.02(A)
Topic Tags
filing fees
costs
penalties
Case
Docket No
24F-H018-REL
Case Title
Lewis v. Florence Gardens Mobile Home Association
Decision Date
2024-02-09
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Does publishing a community newsletter count as 'peaceful assembly' protected by Arizona HOA laws?
Short Answer
No. The Administrative Law Judge ruled that a written newsletter does not satisfy the statutory definition of assembling in common areas.
Detailed Answer
The ALJ determined that A.R.S. § 33-1808(L), which protects the right to assemble in common areas, does not extend to written publications like newsletters. The judge noted that if the legislature intended to protect such mediums, they would have explicitly included them in the statute.
Alj Quote
Further, the tribunal disagrees that the newsletter can be read as satisfying the 'peacefully assemble and use common areas' of the community. If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
newsletters
freedom of assembly
legislative intent
Question
Can my HOA send me a 'cease and desist' letter regarding the content of my newsletter without violating my rights?
Short Answer
Yes, if the letter is a warning regarding specific content (like defamation) rather than a total prohibition on publishing.
Detailed Answer
The ALJ found no violation where an HOA sent a letter warning a homeowner about potential defamation claims regarding specific comments. Because the homeowner was not actually stopped from publishing future newsletters, the HOA did not 'prohibit or unreasonably restrict' the member's rights.
Alj Quote
Respondent sent the cease and desist letter as a warning to Petitioner that a claim may be made for defamation should those specific comments continue. There was no evidence presented that a court case was filed or that Petitioner had been fined as a result of her newsletter.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
cease and desist
defamation
HOA correspondence
Question
Does A.R.S. § 33-1808(L) protect social media posts or online communications?
Short Answer
No. The ruling explicitly states that this statute was not intended to cover social media posts.
Detailed Answer
The decision interprets the 'peaceful assembly' statute strictly. The judge reasoned that the legislature had multiple opportunities to include digital communications or social media in the text of the law but chose not to do so.
Alj Quote
If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
social media
electronic communication
statutory interpretation
Question
What standard of proof must a homeowner meet to win a hearing against their HOA?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) bears the burden of proof. They must demonstrate that their claims are 'more probably true than not'—a standard known as the preponderance of the evidence.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1808(L). … 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 33-1808(L); A.A.C. R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
If I lose my hearing against the HOA, will I get my $500 filing fee back?
Short Answer
No. If the petition is denied, the HOA is not required to reimburse the filing fee.
Detailed Answer
The ALJ ordered that because the Petitioner's petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.02(A)
Topic Tags
filing fees
costs
penalties
Case
Docket No
24F-H018-REL
Case Title
Lewis v. Florence Gardens Mobile Home Association
Decision Date
2024-02-09
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Margaret Lewis(petitioner) Appeared on her own behalf
Dennis Legere(witness) Testified regarding legislative intent; stated he is a lobbyist and volunteer
Respondent Side
Marcus Martinez(HOA attorney) Florence Gardens Mobile Home Association
Yasmin Rodriguez(community manager) Florence Gardens Mobile Home Association Testified as a witness for Respondent
Nicholas Nagami(HOA attorney) Florence Gardens Mobile Home Association Appeared on behalf of Respondent
The Residences at 2211 Camelback Condominium Association, INC
Counsel
Allison Preston
Alleged Violations
A.R.S. § 33-1258 CC&Rs Section 8.1.1
Outcome Summary
Petitioner's petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner's $1,000.00 filing fee and comply with the statute and CC&Rs going forward.
Key Issues & Findings
Records Request
Petitioner alleged Respondent failed to provide financial records and vendor contracts (Epic Valet, FirstService Residential, landscaping) within the statutory timeframe. The ALJ found Respondent failed to provide the documents within 10 business days of the July 10, 2023 request and subsequent July 24, 2023 request.
Orders: Respondent shall comply with A.R.S. § 33-1258 going forward.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258
Insurance Coverage
Petitioner alleged Respondent failed to maintain required insurance coverage. The ALJ found Respondent's property insurance coverage ($59M) was below the appraised replacement cost ($73M) and the general liability limits did not strictly comply with CC&Rs requirements despite an umbrella policy.
Orders: Respondent shall comply with Section 8.1.1 of the CC&Rs going forward.
{
“case”: {
“docket_no”: “24F-H008-REL”,
“case_title”: “In the Matter of Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”,
“decision_date”: “2024-01-11”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Keith W. Cunningham”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: null
},
{
“name”: “Allison Preston”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Carpenter Hazlewood Delgado & Bolen LLP”,
“notes”: “Represented The Residences at 2211 Camelback Condominium Association, INC”
},
{
“name”: “Kyle von Johnson”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: null,
“notes”: “Represented The Residences at 2211 Camelback Condominium Association, INC”
},
{
“name”: “Mark Teman”,
“role”: “board member”,
“side”: “respondent”,
“affiliation”: null,
“notes”: “Association President, witness”
},
{
“name”: “Allison Renow”,
“role”: “property manager”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: “General Manager (GM) on site”
},
{
“name”: “Frank Durso”,
“role”: “regional manager”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: null
},
{
“name”: “Jamie George”,
“role”: “VP of Insurance”,
“side”: “respondent”,
“affiliation”: “First Service Financial”,
“notes”: “Assists with association insurance policies”
},
{
“name”: “Holly McNelte”,
“role”: “management staff”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: “FSR team member who managed documents/files”
},
{
“name”: “Jonathan Henley”,
“role”: “insurance broker”,
“side”: “neutral”,
“affiliation”: “Gallagher”,
“notes”: null
},
{
“name”: “Brian Del Vecchio”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “OAH”,
“notes”: “Administrative Law Judge who conducted the hearing (12/8/23)”
},
{
“name”: “Tammy L. Eigenheer”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “OAH”,
“notes”: “Administrative Law Judge who wrote the decision”
},
{
“name”: “Susan Nicolson”,
“role”: “Commissioner”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: null
},
{
“name”: “AHansen”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “vnunez”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “djones”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “labril”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “mneat”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “akowaleski”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “gosborn”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
}
]
}
{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “24F-H008-REL”, “case_title”: “In the Matter of Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Keith W. Cunningham”, “party_type”: “homeowner”, “email”: “[email protected]”, “phone”: null, “attorney_name”: null, “attorney_firm”: null, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “The Residences at 2211 Camelback Condominium Association, INC”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Allison Preston”, “attorney_firm”: “Carpenter Hazlewood Delgado & Bolen LLP”, “attorney_email”: “[email protected]”, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute”, “citation”: “A.R.S. § 33-1258”, “caption”: “Records Request”, “violation(s)”: “Failure to provide requested financial records and contracts within 10 business days”, “summary”: “Petitioner alleged Respondent failed to provide financial records and vendor contracts (Epic Valet, FirstService Residential, landscaping) within the statutory timeframe. The ALJ found Respondent failed to provide the documents within 10 business days of the July 10, 2023 request and subsequent July 24, 2023 request.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 1000.0, “filing_fee_refunded”: true, “civil_penalty_amount”: 0.0, “orders_summary”: “Respondent shall comply with A.R.S. § 33-1258 going forward.”, “why_the_loss”: null, “cited”: [“A.R.S. § 33-1258”] }, { “issue_id”: “ISS-002”, “type”: “governing_documents”, “citation”: “CC&Rs Section 8.1.1”, “caption”: “Insurance Coverage”, “violation(s)”: “Failure to maintain property insurance equal to 100% of replacement cost and general liability insurance limits as required”, “summary”: “Petitioner alleged Respondent failed to maintain required insurance coverage. The ALJ found Respondent’s property insurance coverage (59M)wasbelowtheappraisedreplacementcost(73M) and the general liability limits did not strictly comply with CC&Rs requirements despite an umbrella policy.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 0.0, “filing_fee_refunded”: false, “civil_penalty_amount”: 0.0, “orders_summary”: “Respondent shall comply with Section 8.1.1 of the CC&Rs going forward.”, “why_the_loss”: null, “cited”: [“CC&Rs Section 8.1.1”] } ], “money_summary”: { “issues_count”: 2, “total_filing_fees_paid”: 1000.0, “total_filing_fees_refunded”: 1000.0, “total_civil_penalties”: 0.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “yes”, “summarize_judgement”: “Petitioner’s petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner’s $1,000.00 filing fee and comply with the statute and CC&Rs going forward.”, “why_the_loss”: null }, “analytics”: { “cited”: [“A.R.S. § 33-1258”, “CC&Rs Section 8.1.1”], “tags”: [“Records Request”, “Insurance Coverage”, “Condominium”, “Contracts”, “Vendor Contracts”, “Replacement Cost”] } }
Study Guide – 24F-H008-REL
{ “case”: { “docket_no”: “24F-H008-REL”, “case_title”: “Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How many days does my HOA have to provide records after I request them?”, “short_answer”: “The HOA has 10 business days to fulfill a request for examination of records.”, “detailed_answer”: “According to Arizona law cited in the decision, an association must make financial and other records reasonably available for examination within ten business days of a member’s request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “A.R.S. § 33-1258” ] }, { “question”: “Can my HOA claim they don’t have to provide specific contracts if they are not uploaded to the web portal?”, “short_answer”: “No. If the records exist and aren’t privileged, the HOA must make them available for examination, regardless of whether they are on a portal.”, “detailed_answer”: “In this case, the HOA failed to provide signed vendor contracts that existed, claiming they provided what was on the portal. The ALJ found that failing to provide these specific requested documents constituted a violation.”, “alj_quote”: “Respondent did not assert or establish that any of the requested documents were subject to any of the exceptions provided for in statute. Accordingly, Petitioner was entitled to examine those documents.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “contracts”, “online portal” ] }, { “question”: “If my CC&Rs require specific insurance liability limits, does an umbrella policy count towards meeting them?”, “short_answer”: “Not necessarily. The ALJ ruled that a base policy lower than the CC&R requirement was non-compliant, even with a large umbrella policy.”, “detailed_answer”: “The CC&Rs required $3,000,000 per occurrence. The HOA had $1,000,000 coverage plus a $50,000,000 umbrella. The ALJ ruled the general liability insurance was not in compliance because the specific base limit was not met.”, “alj_quote”: “While Respondent had an umbrella policy in addition to the general liability insurance, Respondent’s general liability insurance was not in compliance with the applicable CC&Rs.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “compliance”, “CC&Rs” ] }, { “question”: “Must the HOA insure the building for its full replacement cost?”, “short_answer”: “Yes, if the CC&Rs state the insurance must equal 100% of the current replacement cost.”, “detailed_answer”: “The HOA obtained an appraisal showing a replacement cost of $73 million but maintained coverage of only $59 million. The ALJ found this violated the CC&Rs requirement for 100% replacement cost coverage.”, “alj_quote”: “Accordingly, Respondent’s property insurance was not in compliance with the applicable CC&Rs at the time the petition was filed.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “property value”, “CC&Rs” ] }, { “question”: “Will I get my filing fee back if I win the hearing?”, “short_answer”: “The ALJ has the authority to order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “After granting the petition and finding the HOA in violation, the judge specifically ordered the respondent to pay back the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $1,000.00 filing fee.”, “legal_basis”: “Order”, “topic_tags”: [ “remedies”, “filing fees”, “costs” ] }, { “question”: “What happens if I accidentally cite the wrong statute number in my complaint?”, “short_answer”: “It may not be dismissed if the context of your complaint makes it clear what you are disputing.”, “detailed_answer”: “The HOA tried to dismiss the case because the homeowner cited the Planned Community statute instead of the Condominium statute. The judge denied this because the checkboxes and narrative provided sufficient notice of the claim.”, “alj_quote”: “While it may be true Petitioner hand wrote A.R.S. §33-1805… the context surrounding Petitioner’s hand written statute provides adequate notice.”, “legal_basis”: “Due Process / Notice”, “topic_tags”: [ “procedure”, “complaint forms”, “legal error” ] }, { “question”: “What is the standard of proof I need to meet to win against my HOA?”, “short_answer”: “You must prove your case by a “preponderance of the evidence.””, “detailed_answer”: “The homeowner bears the burden of proof. This standard means showing that the fact sought to be proved is more probable than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258 and the Association’s governing documents.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “evidence” ] }, { “question”: “Will the HOA be fined a civil penalty if I prove they violated the law?”, “short_answer”: “Not automatically. The ALJ decides if a penalty is appropriate based on the facts.”, “detailed_answer”: “Even though the HOA was found to have violated record laws and insurance requirements, the judge decided not to assess a civil penalty in this specific instance.”, “alj_quote”: “Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.”, “legal_basis”: “Judicial Discretion”, “topic_tags”: [ “penalties”, “fines”, “enforcement” ] } ] }
Blog Post – 24F-H008-REL
{ “case”: { “docket_no”: “24F-H008-REL”, “case_title”: “Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How many days does my HOA have to provide records after I request them?”, “short_answer”: “The HOA has 10 business days to fulfill a request for examination of records.”, “detailed_answer”: “According to Arizona law cited in the decision, an association must make financial and other records reasonably available for examination within ten business days of a member’s request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “A.R.S. § 33-1258” ] }, { “question”: “Can my HOA claim they don’t have to provide specific contracts if they are not uploaded to the web portal?”, “short_answer”: “No. If the records exist and aren’t privileged, the HOA must make them available for examination, regardless of whether they are on a portal.”, “detailed_answer”: “In this case, the HOA failed to provide signed vendor contracts that existed, claiming they provided what was on the portal. The ALJ found that failing to provide these specific requested documents constituted a violation.”, “alj_quote”: “Respondent did not assert or establish that any of the requested documents were subject to any of the exceptions provided for in statute. Accordingly, Petitioner was entitled to examine those documents.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “contracts”, “online portal” ] }, { “question”: “If my CC&Rs require specific insurance liability limits, does an umbrella policy count towards meeting them?”, “short_answer”: “Not necessarily. The ALJ ruled that a base policy lower than the CC&R requirement was non-compliant, even with a large umbrella policy.”, “detailed_answer”: “The CC&Rs required $3,000,000 per occurrence. The HOA had $1,000,000 coverage plus a $50,000,000 umbrella. The ALJ ruled the general liability insurance was not in compliance because the specific base limit was not met.”, “alj_quote”: “While Respondent had an umbrella policy in addition to the general liability insurance, Respondent’s general liability insurance was not in compliance with the applicable CC&Rs.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “compliance”, “CC&Rs” ] }, { “question”: “Must the HOA insure the building for its full replacement cost?”, “short_answer”: “Yes, if the CC&Rs state the insurance must equal 100% of the current replacement cost.”, “detailed_answer”: “The HOA obtained an appraisal showing a replacement cost of $73 million but maintained coverage of only $59 million. The ALJ found this violated the CC&Rs requirement for 100% replacement cost coverage.”, “alj_quote”: “Accordingly, Respondent’s property insurance was not in compliance with the applicable CC&Rs at the time the petition was filed.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “property value”, “CC&Rs” ] }, { “question”: “Will I get my filing fee back if I win the hearing?”, “short_answer”: “The ALJ has the authority to order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “After granting the petition and finding the HOA in violation, the judge specifically ordered the respondent to pay back the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $1,000.00 filing fee.”, “legal_basis”: “Order”, “topic_tags”: [ “remedies”, “filing fees”, “costs” ] }, { “question”: “What happens if I accidentally cite the wrong statute number in my complaint?”, “short_answer”: “It may not be dismissed if the context of your complaint makes it clear what you are disputing.”, “detailed_answer”: “The HOA tried to dismiss the case because the homeowner cited the Planned Community statute instead of the Condominium statute. The judge denied this because the checkboxes and narrative provided sufficient notice of the claim.”, “alj_quote”: “While it may be true Petitioner hand wrote A.R.S. §33-1805… the context surrounding Petitioner’s hand written statute provides adequate notice.”, “legal_basis”: “Due Process / Notice”, “topic_tags”: [ “procedure”, “complaint forms”, “legal error” ] }, { “question”: “What is the standard of proof I need to meet to win against my HOA?”, “short_answer”: “You must prove your case by a “preponderance of the evidence.””, “detailed_answer”: “The homeowner bears the burden of proof. This standard means showing that the fact sought to be proved is more probable than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258 and the Association’s governing documents.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “evidence” ] }, { “question”: “Will the HOA be fined a civil penalty if I prove they violated the law?”, “short_answer”: “Not automatically. The ALJ decides if a penalty is appropriate based on the facts.”, “detailed_answer”: “Even though the HOA was found to have violated record laws and insurance requirements, the judge decided not to assess a civil penalty in this specific instance.”, “alj_quote”: “Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.”, “legal_basis”: “Judicial Discretion”, “topic_tags”: [ “penalties”, “fines”, “enforcement” ] } ] }
Case Participants
Petitioner Side
Keith W. Cunningham(petitioner)
Respondent Side
Allison Preston(HOA attorney) Carpenter Hazlewood Delgado & Bolen LLP Represented The Residences at 2211 Camelback Condominium Association, INC
Kyle von Johnson(HOA attorney) Represented The Residences at 2211 Camelback Condominium Association, INC
Mark Teman(board member) Association President, witness
Allison Renow(property manager) First Service Residential General Manager (GM) on site
Frank Durso(regional manager) First Service Residential
Jamie George(VP of Insurance) First Service Financial Assists with association insurance policies
Holly McNelte(management staff) First Service Residential FSR team member who managed documents/files
Neutral Parties
Jonathan Henley(insurance broker) Gallagher
Brian Del Vecchio(ALJ) OAH Administrative Law Judge who conducted the hearing (12/8/23)
Tammy L. Eigenheer(ALJ) OAH Administrative Law Judge who wrote the decision
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Transmission recipient
vnunez(ADRE staff) Arizona Department of Real Estate Transmission recipient
djones(ADRE staff) Arizona Department of Real Estate Transmission recipient
labril(ADRE staff) Arizona Department of Real Estate Transmission recipient
mneat(ADRE staff) Arizona Department of Real Estate Transmission recipient
akowaleski(ADRE staff) Arizona Department of Real Estate Transmission recipient
gosborn(ADRE staff) Arizona Department of Real Estate Transmission recipient
Petitioner met the burden of proof for both alleged violations: violation of the Declaration (not enforcing the 25ft setback) and violation of A.R.S. § 33-1805 (failing to provide documents). The petition was granted, and Respondent was ordered to reimburse the $1,000.00 filing fee.
Key Issues & Findings
Failure to provide documents
Respondent failed to produce documents requested by Petitioner, specifically meeting minutes discussing the investigative report, within the statutory timeframe, violating A.R.S. § 33-1805.
Orders: Respondent was found in violation of A.R.S. § 33-1805 and Declaration Section F. Respondent shall reimburse Petitioner’s filing fee of $1,000.00.
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }
Blog Post – 24F-H015-REL
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }
Case Participants
Petitioner Side
Teri S. Morcomb(petitioner) Lot 8 owner, testified
J. Ted Morcomb(petitioner) Lot 8 owner
Jeffrey T. Brei(petitioner attorney)
Tracy Allen Bogardis(witness) Civil Engineer Testified regarding drainage/hydrology
Respondent Side
Phillip Brown(HOA attorney)
Kelly Oetinger(HOA attorney)
Robert Leuen(board president) Sierra Tortuga HOA Testified
Marcella Bernadette Aguilar(witness) Sierra Tortuga HOA Lot 9 owner, testified
Abel Sodto(lot owner) Sierra Tortuga HOA Lot 9 owner, former Board/ARC member, subject of violation
Clint Stoddard(board member) Sierra Tortuga HOA Investigator
Benny Medina(board member) Sierra Tortuga HOA Investigator, former president
Joseph D. Martino(ARC member) Sierra Tortuga HOA Former Architectural Committee Head
Chris Stler(board member) Sierra Tortuga HOA Vice President of HOA
Yvon Posche(board member) Sierra Tortuga HOA Secretary of HOA
Steve Brockam(board member) Sierra Tortuga HOA Board Director
Perry Terren(ARC chair) Sierra Tortuga HOA ARC Chairman and Board Director
Jeremy Thompson(law clerk) HOA Attorney's office
Mike Shupe(former HOA attorney)
Neutral Parties
Adam D. Stone(ALJ) OAH
Tim Ross(board member) Sierra Tortuga HOA Former board/investigator, criticized current board actions
Petitioners prevailed on both filed issues: the Respondent's conditional approval of the flagpole violated CC&Rs and statute, and the Violation Notice regarding the building envelope was improper as Petitioners were found to be in compliance (17,451 sq ft vs. 22,000 sq ft maximum). Respondent was ordered to reimburse the $1,000 filing fee. Request for civil penalties was denied.
Key Issues & Findings
Conditional approval of portable flagpole
Respondent conditionally approved Petitioners' DMR for a portable flagpole, but the conditions placed (limiting height, restricting mobility, and requiring placement on the side of the house) were outside the authority granted by the CC&Rs and violated ARIZ. REV. STAT. § 33-1808, which protects the display of the American flag in front or back yards. Petitioner sustained burden of proof.
Orders: Respondent must abide by the statute; civil penalty denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1808(B)
CC&Rs Design Guidelines Section II(O)
Violation Notice regarding Building Envelope compliance
Respondent sent a Violation Notice claiming Petitioners' building envelope was 38,000 square feet, exceeding the 22,000 square foot maximum limit defined in DG § III(A). The evidence established Petitioners' actual building envelope was 17,451 square feet, based on a superior 'boots on the ground' survey, proving no violation occurred. Petitioner sustained burden of proof.
Orders: Petitioners' building envelope did not violate the CC&Rs maximum limit; civil penalty denied.
Can my HOA prohibit me from displaying the American flag in my front or back yard?
Short Answer
No. Arizona law prevents HOAs from prohibiting the outdoor display of the American flag in front or back yards, regardless of what community documents say.
Detailed Answer
The decision affirms that notwithstanding community documents, an association cannot prohibit the display of the American flag in the front or backyard. In this case, the HOA's attempt to restrict the flag to the side of the house was found to violate state statute.
Alj Quote
Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor front yard or backyard display of . . . [t]he American flag.
Legal Basis
ARIZ. REV. STAT. § 33-1808(A)
Topic Tags
flags
federal/state rights
homeowner rights
Question
Can the HOA restrict the height or mobility of my flagpole if the CC&Rs don't specifically allow them to?
Short Answer
No. If the CC&Rs do not grant the authority to restrict flagpole height or mobility, the HOA cannot impose those conditions.
Detailed Answer
The ALJ found that the HOA violated the CC&Rs by placing conditions on a flagpole approval—specifically height limits and mobility restrictions—that were not authorized by the governing documents.
Alj Quote
Ms. Rawlette admitted the flag pole height and mobility restrictions were inappropriate because the CC&Rs do not grant Respondent authority to restrict flag poles in this manner.
Legal Basis
CC&Rs Interpretation
Topic Tags
architectural control
CC&Rs
flags
Question
If I win my hearing against the HOA, do I get my filing fee back?
Short Answer
Yes. If the petitioner prevails in the hearing, the judge is required to order the HOA to reimburse the filing fee.
Detailed Answer
The decision explicitly states that if a petitioner prevails, the administrative law judge shall order the respondent (HOA) to pay the petitioner the filing fee required by statute.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
reimbursement
prevailing party
Question
Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the rules?
Short Answer
No. Civil penalties may be denied if the violation was due to miscommunication or lack of malicious intent rather than ongoing harassment.
Detailed Answer
Even though the HOA violated the statute regarding flags, the judge denied civil penalties because the violation resulted from a miscommunication by the management company rather than a malicious harassment campaign.
Alj Quote
Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties. The flag pole issue was not an ongoing repetitive harassment campaign, rather, it was miscommunication between the Management Company and Respondent.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
civil penalties
fines
harassment
Question
In a dispute over land measurements (like a building envelope), is an aerial survey or an in-person survey better?
Short Answer
An in-person ('boots on the ground') survey is considered superior to an aerial-only survey.
Detailed Answer
When determining if a homeowner exceeded a building envelope, the ALJ found that an in-person survey was more reliable than an analysis based solely on aerial imagery.
Alj Quote
Mr. McLain and Mr. Teague agreed Mr. McLain’s “boots on the ground” survey is superior to an aerial only survey.
Legal Basis
Evidentiary Standards
Topic Tags
evidence
property disputes
surveys
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) has the burden to prove the HOA violated the statute or documents by a preponderance of the evidence.
Detailed Answer
The decision clarifies that the party bringing the case bears the burden of proof. This means the homeowner must show that their claims are more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal procedure
Question
What types of disputes can the Arizona Department of Real Estate hear?
Short Answer
Disputes between owners and associations concerning violations of community documents or statutes regulating planned communities.
Detailed Answer
The Department has jurisdiction to hear petitions from owners or associations regarding violations of CC&Rs or state statutes, provided the proper filing procedures are followed.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
ARIZ. REV. STAT. § 32-2199
Topic Tags
jurisdiction
ADRE authority
Case
Docket No
24F-H019-REL
Case Title
Schafer, Kevin W. & Lawton, Patricia A. v Sycamore Springs Homeowners Association, INC.
Decision Date
2024-01-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA prohibit me from displaying the American flag in my front or back yard?
Short Answer
No. Arizona law prevents HOAs from prohibiting the outdoor display of the American flag in front or back yards, regardless of what community documents say.
Detailed Answer
The decision affirms that notwithstanding community documents, an association cannot prohibit the display of the American flag in the front or backyard. In this case, the HOA's attempt to restrict the flag to the side of the house was found to violate state statute.
Alj Quote
Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor front yard or backyard display of . . . [t]he American flag.
Legal Basis
ARIZ. REV. STAT. § 33-1808(A)
Topic Tags
flags
federal/state rights
homeowner rights
Question
Can the HOA restrict the height or mobility of my flagpole if the CC&Rs don't specifically allow them to?
Short Answer
No. If the CC&Rs do not grant the authority to restrict flagpole height or mobility, the HOA cannot impose those conditions.
Detailed Answer
The ALJ found that the HOA violated the CC&Rs by placing conditions on a flagpole approval—specifically height limits and mobility restrictions—that were not authorized by the governing documents.
Alj Quote
Ms. Rawlette admitted the flag pole height and mobility restrictions were inappropriate because the CC&Rs do not grant Respondent authority to restrict flag poles in this manner.
Legal Basis
CC&Rs Interpretation
Topic Tags
architectural control
CC&Rs
flags
Question
If I win my hearing against the HOA, do I get my filing fee back?
Short Answer
Yes. If the petitioner prevails in the hearing, the judge is required to order the HOA to reimburse the filing fee.
Detailed Answer
The decision explicitly states that if a petitioner prevails, the administrative law judge shall order the respondent (HOA) to pay the petitioner the filing fee required by statute.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
reimbursement
prevailing party
Question
Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the rules?
Short Answer
No. Civil penalties may be denied if the violation was due to miscommunication or lack of malicious intent rather than ongoing harassment.
Detailed Answer
Even though the HOA violated the statute regarding flags, the judge denied civil penalties because the violation resulted from a miscommunication by the management company rather than a malicious harassment campaign.
Alj Quote
Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties. The flag pole issue was not an ongoing repetitive harassment campaign, rather, it was miscommunication between the Management Company and Respondent.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
civil penalties
fines
harassment
Question
In a dispute over land measurements (like a building envelope), is an aerial survey or an in-person survey better?
Short Answer
An in-person ('boots on the ground') survey is considered superior to an aerial-only survey.
Detailed Answer
When determining if a homeowner exceeded a building envelope, the ALJ found that an in-person survey was more reliable than an analysis based solely on aerial imagery.
Alj Quote
Mr. McLain and Mr. Teague agreed Mr. McLain’s “boots on the ground” survey is superior to an aerial only survey.
Legal Basis
Evidentiary Standards
Topic Tags
evidence
property disputes
surveys
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) has the burden to prove the HOA violated the statute or documents by a preponderance of the evidence.
Detailed Answer
The decision clarifies that the party bringing the case bears the burden of proof. This means the homeowner must show that their claims are more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal procedure
Question
What types of disputes can the Arizona Department of Real Estate hear?
Short Answer
Disputes between owners and associations concerning violations of community documents or statutes regulating planned communities.
Detailed Answer
The Department has jurisdiction to hear petitions from owners or associations regarding violations of CC&Rs or state statutes, provided the proper filing procedures are followed.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
ARIZ. REV. STAT. § 32-2199
Topic Tags
jurisdiction
ADRE authority
Case
Docket No
24F-H019-REL
Case Title
Schafer, Kevin W. & Lawton, Patricia A. v Sycamore Springs Homeowners Association, INC.
Decision Date
2024-01-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Schafer, Kevin W.(petitioner)
Lawton, Patricia A.(petitioner/witness)
Cline, Craig L.(petitioner attorney) Udall Law
Mlan, Steven Wallace(witness/surveyor) Tucson Surveying and Mapping Expert witness for Petitioners
John R Krahn Living Trust & Janet Krahn Living Trust
Counsel
—
Respondent
Tonto Forest Estates Homeowners Association
Counsel
—
Alleged Violations
ARIZ. REV. STAT. § 33-1805
Outcome Summary
The Administrative Law Judge affirmed the Petitioner's petition, finding the Respondent violated ARIZ. REV. STAT. § 33-1805 by failing to provide requested financial records (check registers) within the mandated ten business days. The request for civil penalties was denied, but the Respondent was ordered to reimburse the $500.00 filing fee.
Why this result: Petitioner failed to provide sufficient evidence that Respondent's actions warranted the issuance of civil penalties.
Key Issues & Findings
Failure to provide association financial records (check registers) within 10 business days
Respondent failed to provide the requested check registers within the ten business day statutory requirement for requests made on December 1, 2022, and July 26, 2023. The first request was fulfilled on April 6, 2023, and the second on November 21, 2023.
Orders: The Administrative Law Judge affirmed the petition, concluded Respondent violated ARS § 33-1805, and ordered Respondent to reimburse Petitioner the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.02(A)
Analytics Highlights
Topics: HOA Records Request, Financial Records, Check Register, Timeliness Violation, Civil Penalties Denied
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 41-1092 et seq.
Video Overview
Audio Overview
Decision Documents
24F-H013-REL Decision – 1115590.pdf
Uploaded 2026-01-23T18:02:05 (57.6 KB)
24F-H013-REL Decision – 1125702.pdf
Uploaded 2026-01-23T18:02:10 (127.1 KB)
Study Guide – 24F-H013-REL
{ “case”: { “docket_no”: “24F-H013-REL”, “case_title”: “John R Krahn Living Trust & Janet Krahn Living Trust v Tonto Forest Estates Homeowners Association”, “decision_date”: “2023-12-19”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a check register considered an official financial record that an HOA must provide upon request?”, “short_answer”: “Yes. The decision confirms that check registers are undisputed financial records under Arizona law.”, “detailed_answer”: “The Administrative Law Judge ruled that a check register qualifies as a financial record. Consequently, homeowners are entitled to review these documents when requested under A.R.S. § 33-1805.”, “alj_quote”: “It was undisputed that a check register is a financial record within the meaning of ARIZ. REV. STAT. § 33-1805. Thus, Mr. Krahn was entitled to the requested financial record.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “financial records”, “check register” ] }, { “question”: “How many days does the HOA have to fulfill my request to inspect records?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination.”, “detailed_answer”: “Arizona statute mandates a specific timeframe for HOAs to comply with record requests. Failure to provide access within ten business days constitutes a violation of the statute.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “records request”, “compliance” ] }, { “question”: “Can the HOA charge me a fee just to review the records?”, “short_answer”: “No. The HOA cannot charge a member for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies (up to fifteen cents per page), they are explicitly prohibited from charging a fee for the act of making materials available for a member’s review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review… An association may charge a fee for making copies of not more than fifteen cents per page.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “fees”, “records request”, “homeowner rights” ] }, { “question”: “If the HOA eventually provides the records months later, is it still a violation?”, “short_answer”: “Yes. Providing records after the ten-business-day deadline is considered a violation of the statute.”, “detailed_answer”: “Even if the HOA fulfills the request eventually, missing the ten-day statutory window establishes a violation. In this case, delays of several months were deemed violations despite the records ultimately being provided.”, “alj_quote”: “Both requests were fulfilled beyond the ten business day statutory requirement. Therefore, the Administrative Law Judge concludes that Respondent’s conduct… was in violation of the charged provision of ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “compliance”, “deadlines”, “violations” ] }, { “question”: “If I win my case against the HOA, will I get my filing fee back?”, “short_answer”: “Yes. If the petitioner prevails, the judge must order the HOA to reimburse the filing fee.”, “detailed_answer”: “Reimbursement of the filing fee is mandatory under A.R.S. § 32-2199.02(A) when the homeowner prevails in the hearing.”, “alj_quote”: “If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “legal costs” ] }, { “question”: “Will the judge automatically fine the HOA (civil penalties) if they are found in violation?”, “short_answer”: “No. Civil penalties are not automatic; the homeowner must provide sufficient evidence that the HOA’s actions warrant them.”, “detailed_answer”: “While the judge has the authority to levy civil penalties for each violation, they may deny them if the petitioner fails to provide sufficient evidence justifying such penalties, even if a statutory violation is proven.”, “alj_quote”: “Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties… Thus, civil penalties ought to be denied.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “civil penalties”, “fines”, “enforcement” ] }, { “question”: “Who has the burden of proof in an HOA dispute hearing?”, “short_answer”: “The homeowner (petitioner) bears the burden of proving the violation.”, “detailed_answer”: “The party bringing the complaint must prove their case by a ‘preponderance of the evidence,’ meaning they must show it is more likely than not that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “Ariz. Admin. Code R2-19-119”, “topic_tags”: [ “burden of proof”, “procedure”, “evidence” ] }, { “question”: “Can the HOA simply tell me the records are on an online portal if they aren’t actually there?”, “short_answer”: “No. Incorrectly stating records are on a portal does not satisfy the requirement if the records are not actually available.”, “detailed_answer”: “In this case, the HOA claimed records were available online, but the homeowner proved they were not. The ALJ found the HOA in violation for failing to provide the records within the statutory time, regardless of the portal claims.”, “alj_quote”: “Respondent… stated he must submit a written request by certified mail and reiterated the financial documents were available through the online portal. At the time, the check registers were not available through the online portal… the Administrative Law Judge concludes that Respondent’s conduct… was in violation”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “online portal”, “access to records”, “bad faith” ] } ] }
Blog Post – 24F-H013-REL
{ “case”: { “docket_no”: “24F-H013-REL”, “case_title”: “John R Krahn Living Trust & Janet Krahn Living Trust v Tonto Forest Estates Homeowners Association”, “decision_date”: “2023-12-19”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a check register considered an official financial record that an HOA must provide upon request?”, “short_answer”: “Yes. The decision confirms that check registers are undisputed financial records under Arizona law.”, “detailed_answer”: “The Administrative Law Judge ruled that a check register qualifies as a financial record. Consequently, homeowners are entitled to review these documents when requested under A.R.S. § 33-1805.”, “alj_quote”: “It was undisputed that a check register is a financial record within the meaning of ARIZ. REV. STAT. § 33-1805. Thus, Mr. Krahn was entitled to the requested financial record.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “financial records”, “check register” ] }, { “question”: “How many days does the HOA have to fulfill my request to inspect records?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination.”, “detailed_answer”: “Arizona statute mandates a specific timeframe for HOAs to comply with record requests. Failure to provide access within ten business days constitutes a violation of the statute.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “records request”, “compliance” ] }, { “question”: “Can the HOA charge me a fee just to review the records?”, “short_answer”: “No. The HOA cannot charge a member for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies (up to fifteen cents per page), they are explicitly prohibited from charging a fee for the act of making materials available for a member’s review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review… An association may charge a fee for making copies of not more than fifteen cents per page.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “fees”, “records request”, “homeowner rights” ] }, { “question”: “If the HOA eventually provides the records months later, is it still a violation?”, “short_answer”: “Yes. Providing records after the ten-business-day deadline is considered a violation of the statute.”, “detailed_answer”: “Even if the HOA fulfills the request eventually, missing the ten-day statutory window establishes a violation. In this case, delays of several months were deemed violations despite the records ultimately being provided.”, “alj_quote”: “Both requests were fulfilled beyond the ten business day statutory requirement. Therefore, the Administrative Law Judge concludes that Respondent’s conduct… was in violation of the charged provision of ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “compliance”, “deadlines”, “violations” ] }, { “question”: “If I win my case against the HOA, will I get my filing fee back?”, “short_answer”: “Yes. If the petitioner prevails, the judge must order the HOA to reimburse the filing fee.”, “detailed_answer”: “Reimbursement of the filing fee is mandatory under A.R.S. § 32-2199.02(A) when the homeowner prevails in the hearing.”, “alj_quote”: “If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “legal costs” ] }, { “question”: “Will the judge automatically fine the HOA (civil penalties) if they are found in violation?”, “short_answer”: “No. Civil penalties are not automatic; the homeowner must provide sufficient evidence that the HOA’s actions warrant them.”, “detailed_answer”: “While the judge has the authority to levy civil penalties for each violation, they may deny them if the petitioner fails to provide sufficient evidence justifying such penalties, even if a statutory violation is proven.”, “alj_quote”: “Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties… Thus, civil penalties ought to be denied.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “civil penalties”, “fines”, “enforcement” ] }, { “question”: “Who has the burden of proof in an HOA dispute hearing?”, “short_answer”: “The homeowner (petitioner) bears the burden of proving the violation.”, “detailed_answer”: “The party bringing the complaint must prove their case by a ‘preponderance of the evidence,’ meaning they must show it is more likely than not that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “Ariz. Admin. Code R2-19-119”, “topic_tags”: [ “burden of proof”, “procedure”, “evidence” ] }, { “question”: “Can the HOA simply tell me the records are on an online portal if they aren’t actually there?”, “short_answer”: “No. Incorrectly stating records are on a portal does not satisfy the requirement if the records are not actually available.”, “detailed_answer”: “In this case, the HOA claimed records were available online, but the homeowner proved they were not. The ALJ found the HOA in violation for failing to provide the records within the statutory time, regardless of the portal claims.”, “alj_quote”: “Respondent… stated he must submit a written request by certified mail and reiterated the financial documents were available through the online portal. At the time, the check registers were not available through the online portal… the Administrative Law Judge concludes that Respondent’s conduct… was in violation”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “online portal”, “access to records”, “bad faith” ] } ] }
Case Participants
Petitioner Side
John R Krahn(petitioner) John R Krahn Living Trust & Janet Krahn Living Trust Trustee and Hearing Representative for Petitioner
Janet Krahn(petitioner) John R Krahn Living Trust & Janet Krahn Living Trust
Respondent Side
Steve Gower(HOA president) Tonto Forest Estates Homeowners Association Respondent representative at hearing
Kurt Meister(board member) Tonto Forest Estates Homeowners Association Former Board President who filed initial response
Melissa Jordan(property manager) Ogden Community Management Former Community Manager who handled early communication (also referred to as 'Melissa')
Dan Francom(HOA attorney) Attorney for HOA (Tonto Forest Estates)
Barbara(property manager) Ogden Community Management Current Community Manager (referred to by first name only)
Ken(board member) Tonto Forest Estates Homeowners Association Board member (referred to by first name only)
Todd(board member) Tonto Forest Estates Homeowners Association Board member (referred to by first name only)
Jean(former board member) Tonto Forest Estates Homeowners Association Former board member (referred to by first name only)
Neutral Parties
Brian Del Vecchio(ALJ) OAH Administrative Law Judge for the hearing and decision
Velva Moses-Thompson(ALJ) OAH Administrative Law Judge who signed the initial Order
Susan Nicolson(Commissioner) ADRE
AHansen(ADRE staff) ADRE Recipient of official correspondence
vnunez(ADRE staff) ADRE Recipient of official correspondence
djones(ADRE staff) ADRE Recipient of official correspondence
labril(ADRE staff) ADRE Recipient of official correspondence
Diane Mahowski(ALJ) OAH Referenced in prior ALJ ruling cited as precedent
Lang(ALJ) OAH Referenced in prior ALJ ruling cited as precedent (last name only)
Other Participants
Michael Holland(party) Referenced as a party in a prior ADR dispute regarding records
Dennis Lair(HOA law advocate) Arizona Homeowners Coalition Referenced expert/advocate
The Administrative Law Judge dismissed the Petition, finding that the Petitioner failed to sustain the burden of proof to show the Respondent violated the open meeting statute (A.R.S. § 33-1804(A)). The Board provided open meetings where the management contract discussions and votes occurred, including allowing the Petitioner and other homeowners to comment.
Why this result: Petitioner failed to sustain the burden of proof to establish a violation of A.R.S. § 33-1804(A) by a preponderance of the evidence.
Key Issues & Findings
Violation of the open meeting statute regarding entering into a contract with a new Community Association Management Company.
Petitioner alleged Respondent violated A.R.S. § 33-1804(A) by canceling the existing community management contract and entering a contract with a new company (Haywood Realty & Investment, Inc.) without allowing open discussion, member comment, motion, and a vote regarding the change and the acquisition of Requests for Proposals (RFPs).
Orders: Petitioner’s Petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804(A)
Analytics Highlights
Topics: HOA Open Meetings, Management Contract, Request for Proposals, Burden of Proof
Additional Citations:
ARS 33-1804(A)
Video Overview
Audio Overview
Decision Documents
24F-H011-REL Decision – 1116173.pdf
Uploaded 2026-01-23T18:01:52 (111.6 KB)
Study Guide – 24F-H011-REL
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1112606.aac
1116173.pdf
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24F-H011-REL
2 sources
These sources document an administrative hearing regarding a dispute between Samuel T. Paparazzo and the Coronado Ranch Community Association over alleged open meeting violations. The petitioner contended that the board hired a new management company without proper public discussion, member input, or a formal vote as required by Arizona law. In response, the board treasurer testified that the transition was discussed across multiple open sessions and that the final decision was made during a meeting where the petitioner himself provided verbal testimony. Evidence showed that while the official meeting minutes were occasionally incomplete, the board had made significant efforts to inform homeowners through Facebook and email. Ultimately, the Administrative Law Judge dismissed the petition, ruling that the association provided sufficient opportunity for member participation before executing the new contract.
What was the final outcome of the HOA dispute hearing?
How did the treasurer defend the board’s decision-making process?
Explain the member’s specific complaints about the new contract.
Thursday, February 12
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Blog Post – 24F-H011-REL
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1112606.aac
1116173.pdf
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24F-H011-REL
2 sources
These sources document an administrative hearing regarding a dispute between Samuel T. Paparazzo and the Coronado Ranch Community Association over alleged open meeting violations. The petitioner contended that the board hired a new management company without proper public discussion, member input, or a formal vote as required by Arizona law. In response, the board treasurer testified that the transition was discussed across multiple open sessions and that the final decision was made during a meeting where the petitioner himself provided verbal testimony. Evidence showed that while the official meeting minutes were occasionally incomplete, the board had made significant efforts to inform homeowners through Facebook and email. Ultimately, the Administrative Law Judge dismissed the petition, ruling that the association provided sufficient opportunity for member participation before executing the new contract.
What was the final outcome of the HOA dispute hearing?
How did the treasurer defend the board’s decision-making process?
Explain the member’s specific complaints about the new contract.
Thursday, February 12
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Today • 3:35 PM
Video Overview
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Data Table
Case Participants
Petitioner Side
Samuel T. Paparazzo(petitioner) Also appeared as Samuel Gene Everzo; testified on his own behalf.
Respondent Side
Ashley Turner(HOA attorney) Goodman Law Group Counsel for Coronado Ranch Community Association.
Kimberly Jackson(board member/treasurer) Coronado Ranch Community Association Board Appeared as a witness; sometimes referred to as Jim Jackson.
Sheree(board member) Coronado Ranch Community Association Board Director who obtained RFPs.
Michelle(board member) Coronado Ranch Community Association Board Director who obtained RFPs.
Cathy / Cassie(board member/secretary) Coronado Ranch Community Association Board Board member who read documents aloud; secretary who inadvertently left information off minutes.
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings Also identified as Sandra Vanella.
Susan Nicolson(Commissioner) Arizona Department of Real Estate
A. Hansen(ADRE staff) Arizona Department of Real Estate Recipient of decision transmission.
V. Nunez(ADRE staff) Arizona Department of Real Estate Recipient of decision transmission.
D. Jones(ADRE staff) Arizona Department of Real Estate Recipient of decision transmission.
L. Abril(ADRE staff) Arizona Department of Real Estate Recipient of decision transmission.
Other Participants
Erica Martinson(attorney) prison law
Tony Rosetti(lawist) Spelled R O SS KTI.
Miss Lee(potential witness) Did not testify.
Rob Bishop(community manager) Renaissance Community Partners Son of owner of previous management company; facilitated virtual mic for Petitioner.
Tamara Lens(community assistant) Renaissance Community Partners Sent official meeting notice email.
Linda Palmer(homeowner) Coronado Ranch Community Association member Commented at the meeting.
The ALJ denied the petition, concluding that the Association's voting system constituted permissible delegate voting, which is not prohibited by the Planned Community Act. The prohibition in ARS § 33-1812 against proxy voting applies only when votes are “allocated to a unit,” which is not the case for Director elections where votes are allocated to the Neighborhood Voting Members as delegates.
Why this result: Petitioner did not sustain the burden of proving a violation of ARIZ. REV. STAT. § 33-1812.
Key Issues & Findings
Whether Respondent is in violation of ARIZ. REV. STAT. § 33-1812
Petitioner alleged that the Association's use of a voting delegate system, where Voting Members cast votes for unit owners who did not respond to neighborhood polls, constitutes proxy voting prohibited under ARS § 33-1812.
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 10-3708
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Analytics Highlights
Topics: HOA, Planned Community Act, Delegate Voting, Proxy Voting, Board Election, ARS 33-1812, Nonprofit Corporation Act
Additional Citations:
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 10-3708
ARIZ. REV. STAT. § 1-211(B)
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Video Overview
Audio Overview
Decision Documents
24F-H012-REL Decision – 1115010.pdf
Uploaded 2026-01-23T18:01:58 (162.7 KB)
Study Guide – 24F-H012-REL
{ “case”: { “docket_no”: “24F-H012-REL”, “case_title”: “Robert J. Garing v. Prescott Lakes Community Association, Inc.”, “decision_date”: “2023-11-20”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a delegate voting system considered the same as illegal proxy voting in Arizona HOAs?”, “short_answer”: “No. The ALJ determined that a delegate voting system is distinct from proxy voting and is not prohibited by the Planned Communities Act.”, “detailed_answer”: “While Arizona law (A.R.S. § 33-1812) explicitly prohibits proxy voting in planned communities after the period of declarant control, the Administrative Law Judge found that the legislature did not prohibit ‘delegate voting.’ In a delegate system, votes are allocated to the elected Voting Member (delegate) rather than directly to the individual unit for that specific election, meaning the prohibition on casting unit votes via proxy does not apply.”, “alj_quote”: “Here, the relevant and credible evidence of record establishes that while proxy voting is explicitly prohibited under the Planned Community Act, the legislature made no such bar regarding delegate voting as a form of HOA governance.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “proxies”, “delegates”, “elections” ] }, { “question”: “Can my HOA allow neighborhood representatives to vote on behalf of owners?”, “short_answer”: “Yes, if the governing documents establish a delegate system where votes are allocated to the representative rather than the unit.”, “detailed_answer”: “The decision upholds a system where neighborhoods elect ‘Voting Members’ who then cast votes for the Board of Directors. The ALJ reasoned that the Planned Communities Act prohibits proxy voting only when votes are ‘allocated to a unit.’ Under the delegate system described, the votes for directors were allocated to the Voting Members, not the individual units.”, “alj_quote”: “The Planned Community Act does not regulate who is authorized to vote in planned community elections. Instead, it prohibits proxy voting when votes have been ‘allocated to a unit.’ Regarding the election of Board Directors, there are no votes ‘allocated to a unit.’ Instead, all votes are allocated to Neighborhood Voting Members as delegates…”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “board of directors”, “governing documents” ] }, { “question”: “Can neighborhood delegates cast votes for homeowners who did not participate in the poll?”, “short_answer”: “Yes, provided the governing documents allow the delegate to cast unreceived votes at their discretion.”, “detailed_answer”: “The ALJ noted that Voting Members in this case had the discretion to cast votes for units that did not respond to the neighborhood poll. This practice was found not to violate the statutory prohibition on proxies because it was part of a valid delegate voting structure.”, “alj_quote”: “Voting Members do not have complete discretion when casting votes. They only have discretion to cast unreceived votes.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “discretionary voting”, “absentee ballots” ] }, { “question”: “What is the burden of proof for a homeowner challenging their HOA in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard used is ‘preponderance of the evidence,’ which means the homeowner must show that their contention is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812.”, “legal_basis”: “A.A.C. R2-19-119(B)(2)”, “topic_tags”: [ “burden of proof”, “administrative hearing”, “legal procedure” ] }, { “question”: “Does the Nonprofit Corporation Act apply to HOAs in Arizona?”, “short_answer”: “Yes, unless the Planned Communities Act specifically exempts the HOA from a provision.”, “detailed_answer”: “The ALJ reasoned that because the legislature specifically exempted planned communities from some parts of the Nonprofit Act but was silent on delegate voting, the Nonprofit Act’s allowance of such systems remains relevant context for HOA governance.”, “alj_quote”: “In fact, the legislature specifically exempted planned communities from certain enumerated provisions of the Nonprofit Act, but did not address delegate voting within the Planned Community Act in any capacity.”, “legal_basis”: “A.R.S. § 10-3101 et seq.”, “topic_tags”: [ “corporate law”, “statutory interpretation”, “nonprofit act” ] }, { “question”: “If I disagree with the Administrative Law Judge’s decision, what can I do?”, “short_answer”: “You can appeal to the Superior Court within 35 days of being served the order.”, “detailed_answer”: “The decision is binding, but parties have the right to seek judicial review. This appeal must be filed with the Superior Court within a strict 35-day window following the service of the order.”, “alj_quote”: “A party wishing to appeal this order must seek judicial review as prescribed by ARIZ. REV. STAT. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties.”, “legal_basis”: “A.R.S. § 41-1092.08(H); A.R.S. § 12-904(A)”, “topic_tags”: [ “appeals”, “judicial review”, “superior court” ] } ] }
Blog Post – 24F-H012-REL
{ “case”: { “docket_no”: “24F-H012-REL”, “case_title”: “Robert J. Garing v. Prescott Lakes Community Association, Inc.”, “decision_date”: “2023-11-20”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a delegate voting system considered the same as illegal proxy voting in Arizona HOAs?”, “short_answer”: “No. The ALJ determined that a delegate voting system is distinct from proxy voting and is not prohibited by the Planned Communities Act.”, “detailed_answer”: “While Arizona law (A.R.S. § 33-1812) explicitly prohibits proxy voting in planned communities after the period of declarant control, the Administrative Law Judge found that the legislature did not prohibit ‘delegate voting.’ In a delegate system, votes are allocated to the elected Voting Member (delegate) rather than directly to the individual unit for that specific election, meaning the prohibition on casting unit votes via proxy does not apply.”, “alj_quote”: “Here, the relevant and credible evidence of record establishes that while proxy voting is explicitly prohibited under the Planned Community Act, the legislature made no such bar regarding delegate voting as a form of HOA governance.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “proxies”, “delegates”, “elections” ] }, { “question”: “Can my HOA allow neighborhood representatives to vote on behalf of owners?”, “short_answer”: “Yes, if the governing documents establish a delegate system where votes are allocated to the representative rather than the unit.”, “detailed_answer”: “The decision upholds a system where neighborhoods elect ‘Voting Members’ who then cast votes for the Board of Directors. The ALJ reasoned that the Planned Communities Act prohibits proxy voting only when votes are ‘allocated to a unit.’ Under the delegate system described, the votes for directors were allocated to the Voting Members, not the individual units.”, “alj_quote”: “The Planned Community Act does not regulate who is authorized to vote in planned community elections. Instead, it prohibits proxy voting when votes have been ‘allocated to a unit.’ Regarding the election of Board Directors, there are no votes ‘allocated to a unit.’ Instead, all votes are allocated to Neighborhood Voting Members as delegates…”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “board of directors”, “governing documents” ] }, { “question”: “Can neighborhood delegates cast votes for homeowners who did not participate in the poll?”, “short_answer”: “Yes, provided the governing documents allow the delegate to cast unreceived votes at their discretion.”, “detailed_answer”: “The ALJ noted that Voting Members in this case had the discretion to cast votes for units that did not respond to the neighborhood poll. This practice was found not to violate the statutory prohibition on proxies because it was part of a valid delegate voting structure.”, “alj_quote”: “Voting Members do not have complete discretion when casting votes. They only have discretion to cast unreceived votes.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “discretionary voting”, “absentee ballots” ] }, { “question”: “What is the burden of proof for a homeowner challenging their HOA in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard used is ‘preponderance of the evidence,’ which means the homeowner must show that their contention is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812.”, “legal_basis”: “A.A.C. R2-19-119(B)(2)”, “topic_tags”: [ “burden of proof”, “administrative hearing”, “legal procedure” ] }, { “question”: “Does the Nonprofit Corporation Act apply to HOAs in Arizona?”, “short_answer”: “Yes, unless the Planned Communities Act specifically exempts the HOA from a provision.”, “detailed_answer”: “The ALJ reasoned that because the legislature specifically exempted planned communities from some parts of the Nonprofit Act but was silent on delegate voting, the Nonprofit Act’s allowance of such systems remains relevant context for HOA governance.”, “alj_quote”: “In fact, the legislature specifically exempted planned communities from certain enumerated provisions of the Nonprofit Act, but did not address delegate voting within the Planned Community Act in any capacity.”, “legal_basis”: “A.R.S. § 10-3101 et seq.”, “topic_tags”: [ “corporate law”, “statutory interpretation”, “nonprofit act” ] }, { “question”: “If I disagree with the Administrative Law Judge’s decision, what can I do?”, “short_answer”: “You can appeal to the Superior Court within 35 days of being served the order.”, “detailed_answer”: “The decision is binding, but parties have the right to seek judicial review. This appeal must be filed with the Superior Court within a strict 35-day window following the service of the order.”, “alj_quote”: “A party wishing to appeal this order must seek judicial review as prescribed by ARIZ. REV. STAT. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties.”, “legal_basis”: “A.R.S. § 41-1092.08(H); A.R.S. § 12-904(A)”, “topic_tags”: [ “appeals”, “judicial review”, “superior court” ] } ] }
Case Participants
Petitioner Side
Robert J. Garing(petitioner) Prescott Lakes Community Association, Inc. member Also served as alternate Voting Member for 2 years
James Thomas Joan(witness) Also listed as Jimmy Yiannis
Respondent Side
Adrianne A. Speas(HOA attorney) Krupnik & Speas, LLC Appeared as counsel for Respondent
Robert Sisley(board president; witness) Prescott Lakes Community Association, Inc. Also Alternate Voting Member for Parkside; served as the association representative
Catherine Black(assistant community manager; witness) Homeco Homeco is the HOA management company for Respondent
Lynn M. Krupnik(HOA attorney) Krupnik & Speas, LLC Counsel listed for Respondent in distribution
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate Final decision authority/recipient of ALJ Decision
The Administrative Law Judge denied the petition, concluding that the homeowner failed to meet the burden of proof to show the HOA violated its documents. The Declaration and Rules unambiguously prohibited hard floor coverings (including vinyl) in the Petitioner's third-floor unit, and the Petitioner admitted installing the flooring without seeking approval.
Why this result: Petitioner failed to meet the burden of proof. Petitioner received the governing documents prior to closing, failed to fully read them, and failed to seek permission from the Association prior to installing the prohibited Luxury Vinyl Plank flooring.
Key Issues & Findings
Flooring Restriction for New Units
Petitioner challenged the Association's enforcement of a declaration rule prohibiting hard floor coverings (like LVP) in his third-floor unit, arguing his chosen flooring had sufficient soundproofing. The Association argued the rule was clear, unambiguous, and mandatory for enforcement.
Orders: Petitioner's petition is denied. Respondent shall not reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092
ARIZ. ADMIN. CODE R2-19-119
Analytics Highlights
Topics: Flooring Restriction, Luxury Vinyl Plank (LVP), CCNR Enforcement, Third Floor Unit, Prior Approval
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092
ARIZ. ADMIN. CODE R2-19-119
Video Overview
Audio Overview
Decision Documents
23F-H066-REL Decision – 1085177.pdf
Uploaded 2026-01-23T18:00:06 (48.3 KB)
23F-H066-REL Decision – 1112087.pdf
Uploaded 2026-01-23T18:00:14 (110.4 KB)
Questions
Question
Can I install hard flooring like vinyl or hardwood in my upper-floor condo unit?
Short Answer
Not if the CC&Rs specifically prohibit it to mitigate noise, even if the product is high quality.
Detailed Answer
If the governing documents explicitly prohibit hard floor coverings in specific units (such as second or third-floor units) to mitigate noise, the HOA can enforce this restriction regardless of the quality or sound rating of the material installed.
Alj Quote
Except for entry areas where hard floor coverings have been installed by Declarant, and except for kitchen, bathroom and laundry areas, hard floor coverings (e.g., ceramic tile, natural stone, vinyl, hardwood or laminated flooring) shall be prohibited in all other areas… and all third floor Units.
Legal Basis
CC&Rs Section 4.24
Topic Tags
architectural restrictions
flooring
noise mitigation
Question
Is it a valid defense that I didn't read the CC&Rs before making a change?
Short Answer
No. If you received the documents, you are responsible for knowing the rules.
Detailed Answer
Admitting that you received the Declaration and Rules but did not read them is not a valid defense against a violation. The tribunal will likely find against a homeowner who had the opportunity to review the restrictions but failed to do so.
Alj Quote
Petitioner admitted in his testimony that he timely received a copy of the Declaration and Rules approximately a week prior to closing. Petitioner also admitted that he did not fully read the same… The tribunal finds that Petitioner has not met his burden.
Legal Basis
Contractual Obligation / Constructive Notice
Topic Tags
homeowner responsibilities
CC&Rs
ignorance of law
Question
Does my HOA have to approve a renovation if the new material is 'better' or more valuable than what is required?
Short Answer
No. Clear rules in the CC&Rs override arguments about aesthetics or resale value.
Detailed Answer
Even if a homeowner presents valid points about the superior look or potential resale value of a prohibited improvement (like LVP flooring vs. carpet), the ALJ will enforce the clear and unambiguous language of the governing documents.
Alj Quote
While Petitioner probably had valid points about the look and potential value of LVP flooring versus carpeting, unfortunately, the Declarations and Rules are clear and unambiguous…
Legal Basis
Enforcement of Governing Documents
Topic Tags
architectural control
property value
renovations
Question
What happens if I start a renovation without asking for HOA permission first?
Short Answer
You risk violating rules you weren't aware of and may be forced to stop or reverse the work.
Detailed Answer
Skipping the approval process is risky. If a homeowner fails to seek permission, they miss the opportunity to be informed of specific prohibitions before spending money on installation.
Alj Quote
Petitioner admitted that he did not seek permission from the Association to install the LVP flooring, which had he done, he probably would have been informed that the Rules did not allow for the same.
Legal Basis
Architectural Review Process
Topic Tags
procedural requirements
renovations
violations
Question
Who has to prove their case in an HOA dispute hearing?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove by a 'preponderance of the evidence' that the HOA violated the governing documents or laws.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the Declarations and Association Rules.
Legal Basis
Burden of Proof (ARIZ. ADMIN. CODE R2-19-119)
Topic Tags
legal procedure
burden of proof
hearings
Question
What does 'preponderance of the evidence' mean?
Short Answer
It means the evidence shows the claim is more likely true than not.
Detailed Answer
The standard involves superior evidentiary weight that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Legal Standard of Evidence
Topic Tags
legal definitions
evidence
Question
If I lose my case against the HOA, will I get my filing fee back?
Short Answer
No. Reimbursement is generally denied if the petition is denied.
Detailed Answer
If the ALJ rules against the homeowner and denies the petition, the order will typically state that the Respondent (HOA) is not required to reimburse the filing fee.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee…
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
costs
penalties
fees
Case
Docket No
23F-H066-REL
Case Title
Sebastien Verstraet v. Monterey Ridge Condominium Association
Decision Date
2023-11-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can I install hard flooring like vinyl or hardwood in my upper-floor condo unit?
Short Answer
Not if the CC&Rs specifically prohibit it to mitigate noise, even if the product is high quality.
Detailed Answer
If the governing documents explicitly prohibit hard floor coverings in specific units (such as second or third-floor units) to mitigate noise, the HOA can enforce this restriction regardless of the quality or sound rating of the material installed.
Alj Quote
Except for entry areas where hard floor coverings have been installed by Declarant, and except for kitchen, bathroom and laundry areas, hard floor coverings (e.g., ceramic tile, natural stone, vinyl, hardwood or laminated flooring) shall be prohibited in all other areas… and all third floor Units.
Legal Basis
CC&Rs Section 4.24
Topic Tags
architectural restrictions
flooring
noise mitigation
Question
Is it a valid defense that I didn't read the CC&Rs before making a change?
Short Answer
No. If you received the documents, you are responsible for knowing the rules.
Detailed Answer
Admitting that you received the Declaration and Rules but did not read them is not a valid defense against a violation. The tribunal will likely find against a homeowner who had the opportunity to review the restrictions but failed to do so.
Alj Quote
Petitioner admitted in his testimony that he timely received a copy of the Declaration and Rules approximately a week prior to closing. Petitioner also admitted that he did not fully read the same… The tribunal finds that Petitioner has not met his burden.
Legal Basis
Contractual Obligation / Constructive Notice
Topic Tags
homeowner responsibilities
CC&Rs
ignorance of law
Question
Does my HOA have to approve a renovation if the new material is 'better' or more valuable than what is required?
Short Answer
No. Clear rules in the CC&Rs override arguments about aesthetics or resale value.
Detailed Answer
Even if a homeowner presents valid points about the superior look or potential resale value of a prohibited improvement (like LVP flooring vs. carpet), the ALJ will enforce the clear and unambiguous language of the governing documents.
Alj Quote
While Petitioner probably had valid points about the look and potential value of LVP flooring versus carpeting, unfortunately, the Declarations and Rules are clear and unambiguous…
Legal Basis
Enforcement of Governing Documents
Topic Tags
architectural control
property value
renovations
Question
What happens if I start a renovation without asking for HOA permission first?
Short Answer
You risk violating rules you weren't aware of and may be forced to stop or reverse the work.
Detailed Answer
Skipping the approval process is risky. If a homeowner fails to seek permission, they miss the opportunity to be informed of specific prohibitions before spending money on installation.
Alj Quote
Petitioner admitted that he did not seek permission from the Association to install the LVP flooring, which had he done, he probably would have been informed that the Rules did not allow for the same.
Legal Basis
Architectural Review Process
Topic Tags
procedural requirements
renovations
violations
Question
Who has to prove their case in an HOA dispute hearing?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove by a 'preponderance of the evidence' that the HOA violated the governing documents or laws.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the Declarations and Association Rules.
Legal Basis
Burden of Proof (ARIZ. ADMIN. CODE R2-19-119)
Topic Tags
legal procedure
burden of proof
hearings
Question
What does 'preponderance of the evidence' mean?
Short Answer
It means the evidence shows the claim is more likely true than not.
Detailed Answer
The standard involves superior evidentiary weight that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Legal Standard of Evidence
Topic Tags
legal definitions
evidence
Question
If I lose my case against the HOA, will I get my filing fee back?
Short Answer
No. Reimbursement is generally denied if the petition is denied.
Detailed Answer
If the ALJ rules against the homeowner and denies the petition, the order will typically state that the Respondent (HOA) is not required to reimburse the filing fee.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee…
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
costs
penalties
fees
Case
Docket No
23F-H066-REL
Case Title
Sebastien Verstraet v. Monterey Ridge Condominium Association
Decision Date
2023-11-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Sebastien Verstraet(petitioner) Appeared on his own behalf
Ron Riecks(witness) Flooring installer for Petitioner; also referred to as Ron Reichkes
Respondent Side
Joshua M. Bolen(attorney) Carpenter Hazlewood
Marcus R. Martinez(attorney) Carpenter Hazlewood
Robert Stein(property manager) City Property Management Testified as a witness for Respondent
Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs)
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's petition, finding that the Petitioner failed to prove that the Association violated CC&Rs Section 2.1 by adopting the Residential Parking Policy. The Policy was deemed a valid clarification authorized by existing CC&R provisions (4.2(t) and 5.3).
Why this result: Petitioner failed to meet the burden of proof required to establish a violation of the governing documents.
Key Issues & Findings
Violation of CC&Rs Section 2.1 regarding adoption of Residential Parking Policy
Petitioner alleged that the Association's adoption of the Residential Parking Policy violated CC&Rs Section 2.1 because the policy used the unauthorized term 'Rules and Regulations' rather than 'restrictions,' thereby attempting to amend the CC&Rs without following the proper process, particularly concerning the use of government-owned property.
Orders: Petitioner's petition was dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA, CC&Rs, Parking Policy, Rules vs Restrictions, Burden of Proof, Planned Community
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H009-REL Decision – 1101544.pdf
Uploaded 2026-01-23T18:01:45 (47.0 KB)
24F-H009-REL Decision – 1111460.pdf
Uploaded 2026-01-23T18:01:48 (102.6 KB)
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Thomas P. Hommrich(petitioner) Property owner, appeared on his own behalf
Respondent Side
Quinten Cupps(HOA attorney) VIal Fotheringham, LLP Represented The Lakewood Community Association
Sandra Smith(community manager) Lakewood Community Association Witness who testified on behalf of Respondent
Neutral Parties
Brian Del Vecchio(ALJ) Office of Administrative Hearings Administrative Law Judge for the hearing and final decision
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Administrative Law Judge who issued the October 12, 2023 Order
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Moses Thompson(Judge) Judge cited in precedent case (Brian Seatic v Lake Resort Condominium)
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
labril(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
Brian Seatic(party) Party in precedent case (Brian Seatic v Lake Resort Condominium) cited during the hearing
