Category Archives: HOA Cases

Sebastien Verstraet v. Monterey Ridge Condominium Association

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Case Summary

Case ID 23F-H066-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-11-13
Administrative Law Judge Adam D. Stone
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sebastien Verstraet Counsel —
Respondent Monterey Ridge Condominium Association Counsel Marcus R. Martinez

Alleged Violations

Section 4.24, Declaration/Rules

Outcome Summary

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 2026-04-24T12:13:28 (48.3 KB)

23F-H066-REL Decision – 1112087.pdf

Uploaded 2026-04-24T12:13:33 (110.4 KB)

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)

This summary details the proceedings, arguments, and final decision in the case of Sebastien Verstraet v. Monterey Ridge Condominium Association (No. 23F-H066-REL), heard by Administrative Law Judge (ALJ) Adam D. Stone.

Key Facts and Main Issue

The core dispute was whether the Monterey Ridge Condominium Association (Respondent) violated its governing documents by enforcing a prohibition against the Petitioner, Sebastien Verstraet, who installed Luxury Vinyl Plank (LVP) flooring in his third-floor unit. The Petitioner filed the action after the Association, upon discovery of the unauthorized installation, issued a violation notice and required removal of the LVP.

The restriction at issue was Section 4.24 of the Declaration, titled "Flooring Restriction for New Units," which prohibited hard floor coverings (listing materials such as ceramic tile, natural stone, vinyl, hardwood, or laminated flooring) in all third-floor units, requiring carpet and pad instead to mitigate noise disturbance.

Hearing Proceedings and Key Arguments

The evidentiary hearing took place on October 26, 2023.

Petitioner's Position: Mr. Verstraet argued that he was unaware of the prohibition before installation, having only briefly reviewed the community documents received shortly before closing. He contended that LVP is the preferred modern flooring, significantly improves resale value, and provides soundproofing (IIC rating of 63) equal to or better than standard carpeting, rendering the rule obsolete or illogically drafted. He also noted that LVP was already permitted and installed in the kitchen, bathrooms, and laundry room of the unit. Furthermore, he did not seek prior written approval because he was unaware of the restriction.

Respondent's Position: The Association, represented by counsel, asserted its right and obligation to enforce its governing documents as written. Counsel argued that the recorded covenants were binding upon the Petitioner when he took the deed. The rule explicitly prohibits vinyl flooring in all third-floor units to address noise mitigation, a factor contemplated by the developer or subsequent amendment. The Community Manager, Robert Stein, testified that the Association followed typical enforcement procedures, and a neighbor below had complained about rolling noises emanating from the unit. The Association requested dismissal, arguing it had not violated its CC&Rs or Arizona law.

Legal Outcome and Final Decision

The ALJ issued the decision on November 13, 2023.

The ALJ concluded that the Petitioner failed to meet his burden of proving by a preponderance of the evidence that the Association violated its documents or Arizona law. The decision emphasized the following legal points:

  1. Binding Nature of Documents: Although the Petitioner's points regarding LVP's aesthetic appeal and value were "valid," the Declarations and Rules are clear and unambiguous regarding the prohibition of hard floor coverings (including vinyl) in third-floor units.
  2. Failure to Seek Approval: The Petitioner admitted receiving the Declaration prior to closing, not fully reading it, and failing to seek permission to install the flooring. Had he sought approval, he likely would have been informed of the prohibition.

The ALJ ORDERED that Petitioner’s petition be DENIED. Consequently, the Association was not required to reimburse the Petitioner’s filing fee.

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

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    ADRE

Thomas P Hommrich v. The Lakewood Community Association

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Case Summary

Case ID 24F-H009-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-11-09
Administrative Law Judge Brian Del Vecchio
Outcome 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).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas P. Hommrich Counsel —
Respondent The Lakewood Community Association Counsel Quinten Cupps, Esq.

Alleged Violations

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 2026-04-26T10:04:05 (47.0 KB)

24F-H009-REL Decision – 1111460.pdf

Uploaded 2026-04-26T10:04:11 (102.6 KB)

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)

This concise summary details the administrative legal hearing in the matter of Thomas P. Hommrich v The Lakewood Community Association (No. 24F-H009-REL), which convened on October 24, 2023.

Key Facts and Main Issues

The Petitioner, Thomas P. Hommrich, alleged that the Respondent, The Lakewood Community Association, violated Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs) by adopting the Residential Parking Policy (Parking Policy). Section 2.1 governs public property (such as streets), stating that while such property is not generally subject to the Declaration, restrictions imposed upon owners regarding its use "shall be applicable at all times".

The specific dispute centered on the Association's authority to enforce on-street parking restrictions on government-owned property without formally amending the CC&Rs. Petitioner’s Request for Partial Summary Judgment regarding the policy was denied prior to the hearing.

Key Arguments

Petitioner's Argument:

Petitioner Hommrich asserted that the Parking Policy was invalid because it referred to itself as a set of "Rules and Regulations". He argued that under the CC&Rs (specifically referencing Section 5.3 and 12.2), "Rules and Regulations" (or "Association Rules") are only authorized to govern common areas. Therefore, for the Association to legally regulate parking on public streets, the restriction must be contained within a formal amendment to the Declaration, following a strict amendment process. By using "rules and regulations" instead of "restrictions," the Association unlawfully usurped the authority required to govern non-common property.

Respondent's Argument:

The Association contended that the Parking Policy was validly adopted under the authority granted in multiple CC&R sections, particularly Section 4.2(t) and Section 12.2. Section 4.2(t) grants the authority to adopt "additional parking rules and restrictions". Furthermore, Section 12.2 dictates that rules adopted by the Board shall have the "same force and effect as if they were set forth in this declaration," negating the necessity for an amendment to the CC&Rs to adopt every new rule. The Association argued the policy merely clarified existing use restrictions found in 4.2(t), and that the semantic difference emphasized by the Petitioner was irrelevant.

Legal Points and Outcome

The Administrative Law Judge (ALJ) held that the Petitioner bore the burden of proving the alleged violation of Section 2.1 by a preponderance of the evidence.

The ALJ concluded that the Petitioner's assertion that the semantic difference between "rules and regulations" and "rules and restrictions" was critical was irrelevant in determining the Association's authority under Section 2.1. The Association demonstrated that the Parking Policy was passed by a majority vote in compliance with Section 5.3 and that the policy did not subvert Section 4.2(t), but rather further clarified prohibited on-street parking.

The Petitioner failed to meet his burden of proof.

Final Decision:

The ALJ issued an Order dismissing Petitioner’s petition.

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

Virginia Guest v Bella Tierra Community Association

Posted on by

Case Summary

Case ID 24F-H007-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-11-08
Administrative Law Judge Brian Del Vecchio
Outcome The petition was granted in part and denied in part. Petitioner won the claim regarding the unauthorized certified letter charges, resulting in removal of the charges and a $500.00 fee refund. Petitioner lost the claims regarding the animal restriction (chickens are banned fowl) and the failure to engage in mediation (ADR provision 9.15 was inapplicable).
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Virginia Guest Counsel —
Respondent Bella Tierra Community Association Counsel Nicholas C. S. Nogami, Esq.

Alleged Violations

CC&Rs § 5.1, ARIZ. REV. STAT. § 33-1803

Outcome Summary

The petition was granted in part and denied in part. Petitioner won the claim regarding the unauthorized certified letter charges, resulting in removal of the charges and a $500.00 fee refund. Petitioner lost the claims regarding the animal restriction (chickens are banned fowl) and the failure to engage in mediation (ADR provision 9.15 was inapplicable).

Why this result: Petitioner failed to prove violations of CC&Rs § 9.1.1 and CC&Rs § 9.15. Chickens are banned as birds/fowl under CC&Rs § 3.3, and the mediation clause only applies to disputes involving Declarant Parties, not general homeowner disputes.

Key Issues & Findings

Wrongfully charging costs of certified letters/appeal response as a balance forward

Petitioner alleged Respondent wrongfully forwarded the cost of sending certified letters (categorized as a 'balance forward') onto her account without authority in the CC&Rs, violating rules for imposing fines.

Orders: Respondent ordered to pay Petitioner $500.00 of her filing fee and remove the balance forward associated with certified letter costs from her assessment.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&Rs § 5.1
  • ARIZ. REV. STAT. § 33-1803

Analytics Highlights

Topics: animal restriction, HOA enforcement, certified mail fee, dispute resolution, fines
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1803
  • CC&Rs § 9.1.1
  • CC&Rs § 3.3
  • CC&Rs § 9.15
  • CC&Rs § 5.1

Video Overview

Audio Overview

Decision Documents

24F-H007-REL Decision – 1095892.pdf

Uploaded 2026-04-24T12:14:29 (55.6 KB)

24F-H007-REL Decision – 1111192.pdf

Uploaded 2026-04-24T12:14:34 (104.5 KB)

24F-H007-REL Decision – 1095892.pdf

Uploaded 2026-01-23T18:01:15 (55.6 KB)

24F-H007-REL Decision – 1111192.pdf

Uploaded 2026-01-23T18:01:18 (104.5 KB)

This summary addresses the hearing proceedings, key arguments, and final decision in the matter of *Virginia Guest v. Bella Tierra Community Association* (No. 24F-H007-REL), held before Administrative Law Judge Brian Del Vecchio on October 19, 2023.

Key Facts and Main Issues

Virginia Guest (Petitioner), an owner in the Bella Tierra Community Association (Respondent), filed a petition alleging three main violations by the Homeowners Association (HOA):

  1. Enforcement Authority: Whether the HOA wrongfully issued violation notices for owning chickens, thereby violating CC&Rs § 9.1.1 (enforcement rights). This centered on CC&Rs § 3.3, which bans "animal, bird, fowl, poultry, reptile or livestock," except for a "reasonable number of dogs, cats, parakeets or similar household birds".
  2. Dispute Resolution: Whether the HOA violated CC&Rs § 9.15 by failing to engage in mediation regarding the dispute over animal use.
  3. Improper Fines/Fees: Whether the HOA violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803 by charging the Petitioner a "balance forward" (totaling $16.20 at the time of the hearing) to cover the cost of certified letters sent in response to her appeal.

Key Legal Arguments

Petitioner's Arguments:

Petitioner Guest argued that the chickens were permitted because they are domestic pets similar to parakeets and therefore qualify under the exception clause of CC&Rs § 3.3. She contended that the HOA was enforcing a rule that does not exist and acting arbitrarily, violating the enforcement provision (CC&Rs § 9.1.1). Guest insisted that mediation under CC&Rs § 9.15 was required because the Declarant Party (KB Home) still controls the HOA, making the dispute a claim regarding project use against the Declarant or its agents. Finally, she argued that the $16.20 charge for certified letters was an unauthorized fine, as CC&Rs § 5.1 only permits fines for document violations *after* notice and opportunity to be heard, not for administrative costs.

Respondent's Arguments:

The HOA (represented by Nicholas Nogami, Esq.) argued that chickens are plainly classified as "birds" and "fowl" and are thus explicitly banned by CC&Rs § 3.3. The HOA's authority to enforce its governing documents was deemed legitimate under CC&Rs § 9.1.1. Regarding mediation (CC&Rs § 9.15), the HOA asserted that the section only applies to disputes involving Declarant Parties (e.g., construction defects) and not standard homeowner enforcement claims, therefore mediation was not required. The HOA maintained that the $16.20 charge was a certified letter fee, not a fine, imposed to offset costs incurred for correspondence that state law required to be certified.

Final Decision and Outcome

The Administrative Law Judge (ALJ) issued a decision on November 8, 2023, denying the petition in part and granting it in part.

  1. Enforcement (Chickens): DENIED. The ALJ concluded that Petitioner failed to meet the burden of proof that the HOA violated CC&Rs § 9.1.1. The CC&Rs plainly ban birds and fowl. The ALJ ruled that chickens are both birds and fowl, and while the Petitioner subjectively believes they are pets similar to parakeets, the plain language objectively bans them. The HOA thus had the authority to issue violation notices.
  2. Mediation (Dispute Resolution): DENIED. The ALJ found that CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those related to construction defects or project conditions, and does not apply to homeowner disputes. Since the Petitioner is not a Declarant Party, mediation was not required.
  3. Improper Fees/Fines: GRANTED. The ALJ found that the HOA failed to establish that the CC&Rs empowered them to forward the cost of certified letters (the "balance forward") directly to the Petitioner prior to the completion of the hearing. The HOA violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803 by assessing this unauthorized charg

Questions

Question

Can my HOA ban chickens even if I consider them household pets?

Short Answer

Yes. If the CC&Rs explicitly ban 'fowl' or 'poultry,' your subjective belief that they are pets does not override the objective ban.

Detailed Answer

The ALJ determined that even if a homeowner views chickens as pets akin to parakeets, if the CC&Rs explicitly ban 'fowl' or 'poultry,' that ban is enforceable. The specific classification of the animal in the documents overrides the owner's usage of the animal as a pet.

Alj Quote

Petitioner subjectively believes her chickens are pets and therefore qualify for the pet exception of the animal policy; however the CC&Rs plain language objectively bans not only birds but fowl. Chickens are both birds and fowl therefore, homeowners may not have live chickens on their property.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • chickens
  • CC&Rs interpretation
  • violations

Question

Can my HOA charge me for the cost of sending certified letters regarding a violation?

Short Answer

Not unless the CC&Rs explicitly authorize passing those specific administrative costs to the homeowner.

Detailed Answer

The ALJ ruled that an HOA cannot arbitrarily pass on administrative costs, such as certified mail fees for violation notices, unless the governing documents specifically empower them to do so. In this case, the HOA was ordered to remove the charge.

Alj Quote

Respondent failed to establish their CC&Rs empower them to forward the cost of litigation onto Petitioner prior to the completion of hearing. Therefore, Petitioner established Respondent violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803

Legal Basis

CC&Rs § 5.1; A.R.S. § 33-1803

Topic Tags

  • fines
  • fees
  • administrative costs
  • certified mail

Question

Is my HOA required to go to mediation before enforcing a rule violation?

Short Answer

It depends on the specific language of the dispute resolution clause. Some clauses only apply to disputes with the developer (Declarant), not general homeowner enforcement.

Detailed Answer

The homeowner argued that a 'Dispute Notification and Resolution Procedure' required mediation. However, the ALJ found that the specific section cited applied only to 'Declarant Parties' (the developer/builders) regarding construction or design defects, not to standard enforcement actions between the HOA and a homeowner.

Alj Quote

The CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those arising from or related to construction defects or conditions of the Project and not homeowner disputes. Because Petitioner is not a Declarant Party CC&Rs § 9.15 does not apply.

Legal Basis

CC&Rs § 9.15

Topic Tags

  • mediation
  • dispute resolution
  • procedure
  • declarant

Question

Who has the burden of proof when a homeowner challenges an HOA violation?

Short Answer

The homeowner (Petitioner) bears the burden of proving the HOA violated the governing documents or statutes.

Detailed Answer

In an administrative hearing where the homeowner files the petition, the homeowner must prove their case by a 'preponderance of the evidence,' meaning their evidence must be more convincing than the HOA's.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs § 3.3, CC&Rs § 9.15, CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803.

Legal Basis

Standard of Proof

Topic Tags

  • legal standards
  • burden of proof
  • hearings

Question

If I win part of my case against the HOA, can I get my filing fees reimbursed?

Short Answer

The ALJ may order partial reimbursement of filing fees if the petition is granted in part.

Detailed Answer

In this case, the homeowner lost the argument regarding chickens but won the argument regarding improper fees for certified letters. Consequently, the ALJ ordered the HOA to reimburse $500 of the $1500 filing fee.

Alj Quote

IT IS FURTHER ORDERED Respondent is ordered to pay Petitioner $500.00 of her $1500.00 filing fee within 30 days of the mailing date of the Administrative Law Judge Decision entered in this matter.

Legal Basis

ALJ Order

Topic Tags

  • remedies
  • filing fees
  • penalties

Question

Does an exception for 'household birds' in the CC&Rs allow me to keep chickens?

Short Answer

Likely not, if chickens are also defined as 'fowl' which are otherwise banned.

Detailed Answer

The ALJ rejected the argument that chickens fell under the exception for 'parakeets or similar household birds,' finding instead that they fell under the explicit ban on 'fowl.'

Alj Quote

Notwithstanding Petitioner’s argument that her chickens are akin to parakeets, an exception to the no animal rule in the CC&Rs, birds and fowl are explicitly banned.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • CC&Rs interpretation
  • exceptions

Case

Docket No
24F-H007-REL
Case Title
Virginia Guest v Bella Tierra Community Association
Decision Date
2023-11-08
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA ban chickens even if I consider them household pets?

Short Answer

Yes. If the CC&Rs explicitly ban 'fowl' or 'poultry,' your subjective belief that they are pets does not override the objective ban.

Detailed Answer

The ALJ determined that even if a homeowner views chickens as pets akin to parakeets, if the CC&Rs explicitly ban 'fowl' or 'poultry,' that ban is enforceable. The specific classification of the animal in the documents overrides the owner's usage of the animal as a pet.

Alj Quote

Petitioner subjectively believes her chickens are pets and therefore qualify for the pet exception of the animal policy; however the CC&Rs plain language objectively bans not only birds but fowl. Chickens are both birds and fowl therefore, homeowners may not have live chickens on their property.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • chickens
  • CC&Rs interpretation
  • violations

Question

Can my HOA charge me for the cost of sending certified letters regarding a violation?

Short Answer

Not unless the CC&Rs explicitly authorize passing those specific administrative costs to the homeowner.

Detailed Answer

The ALJ ruled that an HOA cannot arbitrarily pass on administrative costs, such as certified mail fees for violation notices, unless the governing documents specifically empower them to do so. In this case, the HOA was ordered to remove the charge.

Alj Quote

Respondent failed to establish their CC&Rs empower them to forward the cost of litigation onto Petitioner prior to the completion of hearing. Therefore, Petitioner established Respondent violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803

Legal Basis

CC&Rs § 5.1; A.R.S. § 33-1803

Topic Tags

  • fines
  • fees
  • administrative costs
  • certified mail

Question

Is my HOA required to go to mediation before enforcing a rule violation?

Short Answer

It depends on the specific language of the dispute resolution clause. Some clauses only apply to disputes with the developer (Declarant), not general homeowner enforcement.

Detailed Answer

The homeowner argued that a 'Dispute Notification and Resolution Procedure' required mediation. However, the ALJ found that the specific section cited applied only to 'Declarant Parties' (the developer/builders) regarding construction or design defects, not to standard enforcement actions between the HOA and a homeowner.

Alj Quote

The CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those arising from or related to construction defects or conditions of the Project and not homeowner disputes. Because Petitioner is not a Declarant Party CC&Rs § 9.15 does not apply.

Legal Basis

CC&Rs § 9.15

Topic Tags

  • mediation
  • dispute resolution
  • procedure
  • declarant

Question

Who has the burden of proof when a homeowner challenges an HOA violation?

Short Answer

The homeowner (Petitioner) bears the burden of proving the HOA violated the governing documents or statutes.

Detailed Answer

In an administrative hearing where the homeowner files the petition, the homeowner must prove their case by a 'preponderance of the evidence,' meaning their evidence must be more convincing than the HOA's.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs § 3.3, CC&Rs § 9.15, CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803.

Legal Basis

Standard of Proof

Topic Tags

  • legal standards
  • burden of proof
  • hearings

Question

If I win part of my case against the HOA, can I get my filing fees reimbursed?

Short Answer

The ALJ may order partial reimbursement of filing fees if the petition is granted in part.

Detailed Answer

In this case, the homeowner lost the argument regarding chickens but won the argument regarding improper fees for certified letters. Consequently, the ALJ ordered the HOA to reimburse $500 of the $1500 filing fee.

Alj Quote

IT IS FURTHER ORDERED Respondent is ordered to pay Petitioner $500.00 of her $1500.00 filing fee within 30 days of the mailing date of the Administrative Law Judge Decision entered in this matter.

Legal Basis

ALJ Order

Topic Tags

  • remedies
  • filing fees
  • penalties

Question

Does an exception for 'household birds' in the CC&Rs allow me to keep chickens?

Short Answer

Likely not, if chickens are also defined as 'fowl' which are otherwise banned.

Detailed Answer

The ALJ rejected the argument that chickens fell under the exception for 'parakeets or similar household birds,' finding instead that they fell under the explicit ban on 'fowl.'

Alj Quote

Notwithstanding Petitioner’s argument that her chickens are akin to parakeets, an exception to the no animal rule in the CC&Rs, birds and fowl are explicitly banned.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • CC&Rs interpretation
  • exceptions

Case

Docket No
24F-H007-REL
Case Title
Virginia Guest v Bella Tierra Community Association
Decision Date
2023-11-08
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Virginia Guest (petitioner)
    Appeared on her own behalf

Respondent Side

  • Nicholas C. S. Nogami (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Marcus R. Martinez (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Jamie Petty (association manager / witness)
    Platinum Management
    Association manager for Bella Tierra Community Association; also referenced as Jamie Teddy/Miss Teddy
  • Sean Moynihan (HOA attorney)
    Senology
    General counsel for Respondent; referenced in Petitioner's claims; also referred to as John Moahan

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge for the hearing and decision
  • Jenna Clark (ALJ)
    OAH
    Administrative Law Judge who issued the September 22, 2023 Order
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders

Susannah Sabnekar v. Four Peaks Vista Owners Association

Posted on by

Case Summary

Case ID 24F-H006-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-10-26
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge dismissed the petition, ruling that the statutes cited by the petitioner regarding conveyance of common elements (A.R.S. §§ 33-1252 and 33-1217) do not apply to the leasing of common elements, which was the action taken by the Respondent HOA.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susannah Sabnekar Counsel —
Respondent Four Peaks Vista Owners Association Counsel Maria McKee

Alleged Violations

A.R.S. §§ 33-1252 and 33-1217

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the statutes cited by the petitioner regarding conveyance of common elements (A.R.S. §§ 33-1252 and 33-1217) do not apply to the leasing of common elements, which was the action taken by the Respondent HOA.

Why this result: The statutes cited by the Petitioner apply to conveyances, but the disputed action was determined to be a lease, which is treated separately under Arizona's Condominium Act.

Key Issues & Findings

Whether the Board violated statute by conveying a portion of common elements without a vote from all homeowners.

Petitioner alleged the HOA violated A.R.S. §§ 33-1252 and 33-1217 by approving a lease agreement granting the Declarant (Four Peaks) the right to use a portion of the clubhouse as a management office, arguing this action constituted a conveyance requiring an 80% homeowner vote. The ALJ ruled that the statutes apply only to conveyances, not leases, and found no violation.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • 33-1252
  • 33-1217
  • 33-1242
  • 33-1225

Analytics Highlights

Topics: Condominium Act, Lease vs Conveyance, Common Elements, Declarant Rights, Motion to Dismiss
Additional Citations:

  • 33-1252
  • 33-1217
  • 33-1242
  • 33-1225
  • 33-1226

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Video Overview

Audio Overview

Decision Documents

24F-H006-REL Decision – 1097274.pdf

Uploaded 2026-04-24T12:14:04 (52.7 KB)

24F-H006-REL Decision – 1099296.pdf

Uploaded 2026-04-24T12:14:07 (50.8 KB)

24F-H006-REL Decision – 1099320.pdf

Uploaded 2026-04-24T12:14:12 (48.2 KB)

24F-H006-REL Decision – 1106232.pdf

Uploaded 2026-04-24T12:14:18 (118.8 KB)

24F-H006-REL Decision – 1097274.pdf

Uploaded 2026-01-23T18:00:57 (52.7 KB)

24F-H006-REL Decision – 1099296.pdf

Uploaded 2026-01-23T18:01:00 (50.8 KB)

24F-H006-REL Decision – 1099320.pdf

Uploaded 2026-01-23T18:01:04 (48.2 KB)

24F-H006-REL Decision – 1106232.pdf

Uploaded 2026-01-23T18:01:09 (118.8 KB)

This summary details the hearing proceedings, key arguments, and final decision in the administrative law matter of *Susannah Sabnekar v. Four Peaks Vista Owners Association*, Case No. 24F-H006-REL.

Summary of Administrative Hearing

Key Facts and Background

The Petitioner, Susannah Sabnekar (a condominium unit owner and member of the Association), challenged the Respondent, Four Peaks Vista Owners Association. The dispute centered on a March 21, 2022, decision by the Association’s Board to approve a lease agreement. This Lease granted the Declarant (Four Peaks Investment Partners I LLC and II LLC) the right to maintain a leasing and property management office within a portion of the community’s clubhouse, which constitutes a common element. Petitioner alleged that four Rockwell employees serving on the board voted to approve this motion on July 13, 2023.

Main Legal Issue

The core dispute, heard by Administrative Law Judge Velva Moses-Thompson on October 6, 2023, was whether the Board violated Arizona Revised Statutes (A.R.S.) §§ 33-1252 and 33-1217 by effectively "conveying" a portion of the common elements without securing the statutory vote from all homeowners.

Petitioner's Arguments

Petitioner Susannah Sabnekar, supported by witness Amy Watier, argued that the Board's action was a conveyance or encumbrance of a common element. Petitioner asserted that A.R.S. § 33-1252(A) requires that common elements may only be conveyed if 80% of the persons entitled to vote agree. Furthermore, A.R.S. § 33-1217(E) states that common elements are not subject to partition, and any purported conveyance or encumbrance made without the unit to which the interest is allocated is void.

Respondent's Arguments

The Association maintained that the material facts were not in dispute and that the Petitioner could not establish a statutory violation. The Respondent's primary legal position was that the Petitioner conflated "conveyance" with "leasing," which are separate legal concepts under the Arizona Condominium Act.

Key points raised by the Respondent included:

  1. Statutory Distinction: A.R.S. § 33-1242(A)(9) expressly grants the Association the right to "Grant easements, leases, licenses and concessions through or over the common elements," without referencing the 80% vote requirement of A.R.S. § 33-1252.
  2. Definition of Conveyance: A conveyance, requiring compliance with A.R.S. § 33-1252, signifies a total transfer of fee title and must be evidenced and recorded in the same manner as a deed (A.R.S. § 33-1252(B)). A lease, which expires after a set period, does not meet the formal requirements of a conveyance.
  3. Declarant Rights: The Lease was permitted under A.R.S. § 33-1225, which allows a declarant to maintain sales or management offices on common elements unless prohibited by the declaration or law.

Final Decision and Outcome

The Administrative Law Judge (ALJ) denied the Respondent's pre-hearing Motion to Dismiss, allowing the hearing to proceed. However, after considering the arguments and evidence, the ALJ issued a decision on October 26, 2023, concluding that A.R.S. §§ 33-1252 and 33-1217 do not apply to leases, but rather to conveyances.

Finding that no evidence of a conveyance of common elements was presented, the ALJ determined that Petitioner failed to meet the burden of proof to establish the merits of the petition.

The petition was ordered dismissed.

Questions

Question

Does leasing a common area count as 'conveying' it, requiring a supermajority vote?

Short Answer

No. Leasing and conveying are separate legal concepts in Arizona, and leasing does not trigger the voting requirements of a conveyance.

Detailed Answer

The ALJ determined that Arizona law distinguishes between leasing real property and conveying it. While a conveyance (transfer of title) of common elements often requires an 80% vote under A.R.S. § 33-1252, granting a lease does not. The Association has the specific statutory right to grant leases over common elements without meeting the stricter requirements for a conveyance.

Alj Quote

Plainly, Arizona law distinguishes between leasing real property and conveying it. These are two separate legal concepts. … The Administrative Law Judge concludes that A.R.S. §§ 33-1252 and A.R.S. 33-1217 do not apply to leases, but rather conveyances.

Legal Basis

A.R.S. § 33-1242(A)(9); A.R.S. § 33-1252

Topic Tags

  • common elements
  • leasing
  • voting requirements

Question

Can the HOA board authorize a lease of common elements without a vote of all homeowners?

Short Answer

Yes. The Board generally has the authority to grant leases, whereas conveying the property would require a homeowner vote.

Detailed Answer

The decision highlights that A.R.S. § 33-1242(A)(9) expressly gives the Association the right to lease common elements. This section does not reference the voting requirements found in A.R.S. § 33-1252, which applies only when the Association conveys or encumbers the property (like a mortgage).

Alj Quote

Notably, subsection (A)(9) expressly provides the Association the right to enter into the Lease, without any mention of A.R.S. § 33-1252, while the right to 'convey' Common Elements is subject to the requirements imposed in A.R.S. § 33-1252.

Legal Basis

A.R.S. § 33-1242(A)(9)

Topic Tags

  • board authority
  • leasing
  • common elements

Question

Is a Declarant allowed to use common elements for management offices?

Short Answer

Yes, a Declarant may maintain offices on common elements unless the Declaration specifically prohibits it.

Detailed Answer

The ALJ cited A.R.S. § 33-1225, which explicitly permits a declarant to maintain sales and management offices on common elements unless the community's declaration says otherwise or another law prohibits it.

Alj Quote

A declarant may maintain sales offices, management offices and models in units or on common elements in the condominium unless: 1. The declaration provides otherwise. 2. Such use is prohibited by another provision of law or local ordinances.

Legal Basis

A.R.S. § 33-1225

Topic Tags

  • declarant rights
  • common elements
  • offices

Question

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

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 is 'preponderance of the evidence,' meaning they must show it is more probable than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. §§ 33-1252 and A.R.S. 33-1217 by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal procedure
  • burden of proof

Question

What qualifies as a 'conveyance' of HOA property?

Short Answer

A conveyance is generally interpreted as a total transfer of fee title, usually evidenced by a recorded deed.

Detailed Answer

The decision clarifies that a conveyance involves a permanent transfer of interest, such as through a deed, and must be recorded. A lease, which is for a set period and does not transfer title, does not qualify as a conveyance.

Alj Quote

The Legislature… made clear its intent that a conveyance is a total transfer of fee title. … Furthermore, once any such 'conveyance' occurs, it must be evidenced by the execution and recording of the document in the same manner as a deed.

Legal Basis

A.R.S. § 33-1252(A); A.R.S. § 33-1252(B)

Topic Tags

  • definitions
  • conveyance
  • property rights

Question

How are ambiguous restrictive covenants in CC&Rs interpreted?

Short Answer

If they are unambiguous, they are enforced according to the intent of the parties.

Detailed Answer

The ALJ noted that restrictive covenants must be viewed as a whole and interpreted based on their underlying purpose. If the text is clear (unambiguous), it is enforced to uphold the parties' intent.

Alj Quote

In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. 'Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.'

Legal Basis

Case Law (Powell v. Washburn)

Topic Tags

  • CC&Rs
  • interpretation
  • legal standards

Case

Docket No
24F-H006-REL
Case Title
Susannah Sabnekar vs. Four Peaks Vista Owners Association
Decision Date
2023-10-26
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Does leasing a common area count as 'conveying' it, requiring a supermajority vote?

Short Answer

No. Leasing and conveying are separate legal concepts in Arizona, and leasing does not trigger the voting requirements of a conveyance.

Detailed Answer

The ALJ determined that Arizona law distinguishes between leasing real property and conveying it. While a conveyance (transfer of title) of common elements often requires an 80% vote under A.R.S. § 33-1252, granting a lease does not. The Association has the specific statutory right to grant leases over common elements without meeting the stricter requirements for a conveyance.

Alj Quote

Plainly, Arizona law distinguishes between leasing real property and conveying it. These are two separate legal concepts. … The Administrative Law Judge concludes that A.R.S. §§ 33-1252 and A.R.S. 33-1217 do not apply to leases, but rather conveyances.

Legal Basis

A.R.S. § 33-1242(A)(9); A.R.S. § 33-1252

Topic Tags

  • common elements
  • leasing
  • voting requirements

Question

Can the HOA board authorize a lease of common elements without a vote of all homeowners?

Short Answer

Yes. The Board generally has the authority to grant leases, whereas conveying the property would require a homeowner vote.

Detailed Answer

The decision highlights that A.R.S. § 33-1242(A)(9) expressly gives the Association the right to lease common elements. This section does not reference the voting requirements found in A.R.S. § 33-1252, which applies only when the Association conveys or encumbers the property (like a mortgage).

Alj Quote

Notably, subsection (A)(9) expressly provides the Association the right to enter into the Lease, without any mention of A.R.S. § 33-1252, while the right to 'convey' Common Elements is subject to the requirements imposed in A.R.S. § 33-1252.

Legal Basis

A.R.S. § 33-1242(A)(9)

Topic Tags

  • board authority
  • leasing
  • common elements

Question

Is a Declarant allowed to use common elements for management offices?

Short Answer

Yes, a Declarant may maintain offices on common elements unless the Declaration specifically prohibits it.

Detailed Answer

The ALJ cited A.R.S. § 33-1225, which explicitly permits a declarant to maintain sales and management offices on common elements unless the community's declaration says otherwise or another law prohibits it.

Alj Quote

A declarant may maintain sales offices, management offices and models in units or on common elements in the condominium unless: 1. The declaration provides otherwise. 2. Such use is prohibited by another provision of law or local ordinances.

Legal Basis

A.R.S. § 33-1225

Topic Tags

  • declarant rights
  • common elements
  • offices

Question

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

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 is 'preponderance of the evidence,' meaning they must show it is more probable than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. §§ 33-1252 and A.R.S. 33-1217 by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal procedure
  • burden of proof

Question

What qualifies as a 'conveyance' of HOA property?

Short Answer

A conveyance is generally interpreted as a total transfer of fee title, usually evidenced by a recorded deed.

Detailed Answer

The decision clarifies that a conveyance involves a permanent transfer of interest, such as through a deed, and must be recorded. A lease, which is for a set period and does not transfer title, does not qualify as a conveyance.

Alj Quote

The Legislature… made clear its intent that a conveyance is a total transfer of fee title. … Furthermore, once any such 'conveyance' occurs, it must be evidenced by the execution and recording of the document in the same manner as a deed.

Legal Basis

A.R.S. § 33-1252(A); A.R.S. § 33-1252(B)

Topic Tags

  • definitions
  • conveyance
  • property rights

Question

How are ambiguous restrictive covenants in CC&Rs interpreted?

Short Answer

If they are unambiguous, they are enforced according to the intent of the parties.

Detailed Answer

The ALJ noted that restrictive covenants must be viewed as a whole and interpreted based on their underlying purpose. If the text is clear (unambiguous), it is enforced to uphold the parties' intent.

Alj Quote

In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. 'Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.'

Legal Basis

Case Law (Powell v. Washburn)

Topic Tags

  • CC&Rs
  • interpretation
  • legal standards

Case

Docket No
24F-H006-REL
Case Title
Susannah Sabnekar vs. Four Peaks Vista Owners Association
Decision Date
2023-10-26
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Susannah Sabnekar (petitioner)
    Homeowner
  • Amy Watier (witness)
    Homeowner, current board member, and previous board member

Respondent Side

  • Maria McKee (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen, PLC
    Council for Respondent
  • Chad P. Miesen (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen, PLC
    Council for Respondent
  • Charlie Markle (HOA attorney)
    Council for the Association
  • Kathy Gower (property manager)
    Four Peaks Vista Owners Association
    Community manager
  • Shelley Kobat (board member)
    Four Peaks Vista Owners Association
    Associate board president

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list

Michael Holland v. Tonto Forest Estates Homeowner’s Association

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Case Summary

Case ID 23F-H039-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-10-20
Administrative Law Judge Kay Abramsohn
Outcome The Administrative Law Judge granted the Petition, concluding that the HOA violated A.R.S. § 33-1804(A) because the portion of the meeting where recording was prohibited was not effectively 'closed' (as members were allowed to remain) and therefore remained 'open' and subject to members' right to record.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael Holland Counsel —
Respondent Tonto Forest Estates Homeowner's Association Counsel John A. Buric

Alleged Violations

A.R.S. § 33-1804(A)

Outcome Summary

The Administrative Law Judge granted the Petition, concluding that the HOA violated A.R.S. § 33-1804(A) because the portion of the meeting where recording was prohibited was not effectively 'closed' (as members were allowed to remain) and therefore remained 'open' and subject to members' right to record.

Key Issues & Findings

Improperly preventing members from recording an open board meeting

The HOA Board prohibited homeowners participating in an open meeting on September 28, 2022, from recording that meeting. The HOA argued the portion was closed due to receiving legal advice/contemplated litigation, but the ALJ found the portion was not effectively 'closed' because no members were required to leave, thus the HOA lacked authority to prevent recording.

Orders: HOA found in violation; ordered to reimburse Petitioner $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1804(A)
  • A.R.S. § 33-1804

Analytics Highlights

Topics: HOA Open Meeting Law, Recording Rights, Attorney-Client Privilege, Filing Fee Reimbursement
Additional Citations:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1804(A)
  • A.R.S. § 33-1804(C)
  • A.R.S. § 32-2199.05
  • A.R.S. § 41-1092

Video Overview

Audio Overview

Decision Documents

23F-H039-REL Decision – 1040495.pdf

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23F-H039-REL Decision – 1044744.pdf

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23F-H039-REL Decision – 1059207.pdf

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23F-H039-REL Decision – 1059214.pdf

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23F-H039-REL Decision – 1087229.pdf

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23F-H039-REL Decision – 1087233.pdf

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23F-H039-REL Decision – 1095655.pdf

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23F-H039-REL Decision – 1095796.pdf

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23F-H039-REL Decision – 1101606.pdf

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23F-H039-REL Decision – 1102499.pdf

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23F-H039-REL Decision – 1104514.pdf

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23F-H039-REL Decision – 1104862.pdf

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23F-H039-REL Decision – 1040495.pdf

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23F-H039-REL Decision – 1044744.pdf

Uploaded 2026-01-23T17:54:54 (51.9 KB)

23F-H039-REL Decision – 1059207.pdf

Uploaded 2026-01-23T17:54:57 (49.0 KB)

23F-H039-REL Decision – 1059214.pdf

Uploaded 2026-01-23T17:55:01 (5.8 KB)

23F-H039-REL Decision – 1087229.pdf

Uploaded 2026-01-23T17:55:05 (98.4 KB)

23F-H039-REL Decision – 1087233.pdf

Uploaded 2026-01-23T17:55:09 (18.7 KB)

23F-H039-REL Decision – 1095655.pdf

Uploaded 2026-01-23T17:55:13 (70.2 KB)

23F-H039-REL Decision – 1095796.pdf

Uploaded 2026-01-23T17:55:17 (13.5 KB)

23F-H039-REL Decision – 1101606.pdf

Uploaded 2026-01-23T17:55:20 (39.6 KB)

23F-H039-REL Decision – 1102499.pdf

Uploaded 2026-01-23T17:55:26 (41.2 KB)

23F-H039-REL Decision – 1104514.pdf

Uploaded 2026-01-23T17:55:31 (138.2 KB)

23F-H039-REL Decision – 1104862.pdf

Uploaded 2026-01-23T17:55:36 (6.1 KB)

This case, *Michael Holland v. Tonto Forest Estates Homeowner's Association* (No. 23F-H039-REL), centered on a dispute over the Petitioner's right to record a homeowners association board meeting in accordance with Arizona law. The matter was heard by the Office of Administrative Hearings (OAH), presided over by Administrative Law Judge (ALJ) Kay Abramsohn.

Key Facts and Legal Issue

The core dispute arose from a Tonto Forest Estates (TFE) board meeting held on September 28, 2022, which was noticed as an open meeting.

Petitioner Michael Holland alleged that the HOA board violated Arizona Revised Statutes (A.R.S.) § 33-1804(A) by prohibiting homeowners from recording the meeting and forcing those recording to stop. A.R.S. § 33-1804(A) grants attendees the right to audiotape or videotape portions of board meetings that are open.

The Respondent, Tonto Forest Estates Homeowner's Association (HOA), asserted that although the meeting was open, a portion was or should have been closed to recording because the association's attorney was present to provide legal advice regarding pending or contemplated litigation. The HOA argued that they merely requested members stop recording the attorney's presentation and did not use force or threats.

Hearing Proceedings and Key Arguments

The ALJ denied the HOA's initial Motion to Dismiss, determining the Petition raised a valid and justiciable legal issue regarding the alleged improper recording prohibition.

  1. Petitioner's Argument: Holland argued that the HOA violated the statute because the board failed to properly declare and execute a closed session. Since the HOA did not record the meeting itself, they had no statutory basis to preclude members from recording the open session. Furthermore, Petitioner cited A.R.S. § 33-1804(C), arguing that the board did not identify the specific statutory exception authorizing closure prior to entering the alleged closed portion.
  2. Respondent's Argument: The HOA argued the issue was moot since a member successfully recorded the meeting anyway. Counsel argued that the mere presence of the attorney discussing a legal claim satisfied the exception allowing the portion to be closed to recording, and no special process or "magic language" was required to close a portion of a meeting "on the fly".

Legal Conclusion and Outcome

The ALJ found that A.R.S. § 33-1804(A) only permits recording restrictions during a *closed* portion of a meeting.

The Administrative Law Judge concluded that the September 28, 2022 meeting cannot be considered to have been "closed". This conclusion was based on the fact that the HOA President, Kurt Meister, acknowledged that no members present, or anyone attending online, had to leave the meeting for the portion that included the attorney's advice.

Because no portion of the meeting was effectively closed, the HOA had no authority under A.R.S. § 33-1804(A) to prevent members from recording the meeting.

The ALJ issued a decision concluding that the Petitioner had met the burden of proof, establishing that the HOA was in violation of A.R.S. § 33-1804(A).

Final Decision:

The Petition was granted, and Petitioner Michael Holland was deemed the prevailing party. The HOA was ordered to reimburse Petitioner his $500.00 filing fee. The decision noted that a written determination would be issued and sent to the Director's Office at Real Estate for finalization.

Questions

Question

Can I record an open HOA board meeting?

Short Answer

Yes, homeowners have the statutory right to audio or video tape open portions of board and member meetings.

Detailed Answer

Under Arizona law, persons attending HOA meetings are permitted to audiotape or videotape any portion of the meeting that is open. The HOA cannot prohibit this for open sessions.

Alj Quote

A.R.S. § 33-1804(A) allows a person to record 'those portions of the meetings of the board of directors and meetings of the members that are open.'

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • recording meetings
  • homeowner rights
  • open meetings

Question

Can the HOA board stop me from recording if an attorney is giving legal advice?

Short Answer

Not if the meeting remains open to members. To stop recording, the board must physically close the meeting (exclude members).

Detailed Answer

Even if the board intends to receive legal advice (a valid reason to close a meeting), they cannot simply ask members to stop recording while allowing them to remain in the room. If members are allowed to stay, the meeting is not 'closed,' and the right to record remains.

Alj Quote

Because no portion of the September 28, 2022 meeting was 'closed,' the HOA had no authority under A.R.S. § 33-1804(A) to prevent the HOA members from recording the meeting.

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • recording meetings
  • legal advice
  • closed sessions

Question

What actually constitutes a 'closed' meeting or executive session?

Short Answer

A meeting is considered closed only if members are required to leave or are excluded from attending.

Detailed Answer

Merely stating that a portion of the meeting is for legal advice or asking members to stop recording is not enough to close a meeting. If members are present and not asked to leave, the meeting is effectively open.

Alj Quote

However, nothing in the record demonstrates that this specific portion of the meeting was effectively 'closed.' In fact, Mr. Meister confirmed that none of the members present, or anyone online, had to leave the meeting or had to leave the meeting for the portion that included the attorney’s advice.

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • closed sessions
  • definitions
  • procedural requirements

Question

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

Short Answer

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

Detailed Answer

The homeowner must prove by a preponderance of the evidence that the HOA violated the community documents or statutes. This means showing the contention is more probably true than not.

Alj Quote

In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.

Legal Basis

Ariz. Admin. Code R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • hearing procedures

Question

Can I recover my $500 filing fee if I win the hearing?

Short Answer

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

Detailed Answer

If the petitioner prevails in the hearing, the judge has the authority to order the respondent (HOA) to reimburse the statutory filing fee paid to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner his $500.00 filing fee.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • remedies
  • fees
  • penalties

Question

What authority does the Office of Administrative Hearings have in HOA disputes?

Short Answer

OAH can decide petitions, order compliance with statutes/documents, interpret contracts, and levy civil penalties.

Detailed Answer

The tribunal has broad authority to resolve disputes regarding violations of condominium documents or statutes, including interpreting contracts between the parties and imposing penalties for proven violations.

Alj Quote

OAH has the authority to consider and decide the contested petitions, the authority to order any party to abide by the statute, community documents and contract provisions at issue, the authority to interpret the contract between the parties, and the authority to levy a civil penalty on the basis of each proven violation.

Legal Basis

A.R.S. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • OAH authority
  • civil penalties

Case

Docket No
23F-H039-REL
Case Title
Michael Holland v. Tonto Forest Estates Homeowner's Association
Decision Date
2023-10-20
Alj Name
Kay Abramsohn
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I record an open HOA board meeting?

Short Answer

Yes, homeowners have the statutory right to audio or video tape open portions of board and member meetings.

Detailed Answer

Under Arizona law, persons attending HOA meetings are permitted to audiotape or videotape any portion of the meeting that is open. The HOA cannot prohibit this for open sessions.

Alj Quote

A.R.S. § 33-1804(A) allows a person to record 'those portions of the meetings of the board of directors and meetings of the members that are open.'

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • recording meetings
  • homeowner rights
  • open meetings

Question

Can the HOA board stop me from recording if an attorney is giving legal advice?

Short Answer

Not if the meeting remains open to members. To stop recording, the board must physically close the meeting (exclude members).

Detailed Answer

Even if the board intends to receive legal advice (a valid reason to close a meeting), they cannot simply ask members to stop recording while allowing them to remain in the room. If members are allowed to stay, the meeting is not 'closed,' and the right to record remains.

Alj Quote

Because no portion of the September 28, 2022 meeting was 'closed,' the HOA had no authority under A.R.S. § 33-1804(A) to prevent the HOA members from recording the meeting.

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • recording meetings
  • legal advice
  • closed sessions

Question

What actually constitutes a 'closed' meeting or executive session?

Short Answer

A meeting is considered closed only if members are required to leave or are excluded from attending.

Detailed Answer

Merely stating that a portion of the meeting is for legal advice or asking members to stop recording is not enough to close a meeting. If members are present and not asked to leave, the meeting is effectively open.

Alj Quote

However, nothing in the record demonstrates that this specific portion of the meeting was effectively 'closed.' In fact, Mr. Meister confirmed that none of the members present, or anyone online, had to leave the meeting or had to leave the meeting for the portion that included the attorney’s advice.

Legal Basis

A.R.S. § 33-1804(A)

Topic Tags

  • closed sessions
  • definitions
  • procedural requirements

Question

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

Short Answer

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

Detailed Answer

The homeowner must prove by a preponderance of the evidence that the HOA violated the community documents or statutes. This means showing the contention is more probably true than not.

Alj Quote

In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.

Legal Basis

Ariz. Admin. Code R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • hearing procedures

Question

Can I recover my $500 filing fee if I win the hearing?

Short Answer

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

Detailed Answer

If the petitioner prevails in the hearing, the judge has the authority to order the respondent (HOA) to reimburse the statutory filing fee paid to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner his $500.00 filing fee.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • remedies
  • fees
  • penalties

Question

What authority does the Office of Administrative Hearings have in HOA disputes?

Short Answer

OAH can decide petitions, order compliance with statutes/documents, interpret contracts, and levy civil penalties.

Detailed Answer

The tribunal has broad authority to resolve disputes regarding violations of condominium documents or statutes, including interpreting contracts between the parties and imposing penalties for proven violations.

Alj Quote

OAH has the authority to consider and decide the contested petitions, the authority to order any party to abide by the statute, community documents and contract provisions at issue, the authority to interpret the contract between the parties, and the authority to levy a civil penalty on the basis of each proven violation.

Legal Basis

A.R.S. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • OAH authority
  • civil penalties

Case

Docket No
23F-H039-REL
Case Title
Michael Holland v. Tonto Forest Estates Homeowner's Association
Decision Date
2023-10-20
Alj Name
Kay Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael Holland (petitioner)
    Represented himself
  • Jill Burns (witness)
    Recorded the meeting at issue; former officer of the Board
  • Linda L. Holland (party affiliate)
    Co-owner of the property; Michael Holland's mother

Respondent Side

  • Tonto Forest Estates Homeowner's Association (respondent)
  • John A. Buric (HOA attorney)
    Warner Angle Hallam Jackson & Formanek PLC
    Represented Respondent HOA
  • Kurt Meister (board member)
    Tonto Forest Estates Homeowner's Association
    President of the Board of Directors; Testified as witness for Respondent
  • Clint Goodman (HOA attorney)
    Goodman Law
    Attorney who provided legal advice at the September 28, 2022 meeting
  • Steve Dower (board member)
    Tonto Forest Estates Homeowner's Association
    Mentioned in testimony by Petitioner
  • Melissa Jordan (property manager)
    Ogden
    Monitored the phone line during the meeting
  • Carrie Chu (board member)
    Tonto Forest Estates Homeowner's Association
    Spoke during meeting minutes discussion

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge for hearing and final decision
  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge on earlier orders
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
    Recipient of official transmissions
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmissions
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmissions
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmissions
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmissions

Other Participants

  • Mary Gura (community member)
    Attendee of the virtual hearing
  • John Cron (community member)
    Attendee of the virtual hearing; identified in relation to litigation/claim discussed by attorney Goodman
  • Janet Cron (witness)
    Listed on Petitioner's witness list; John Cron's wife
  • Chris Chopat (community member)
    Attendee of the meeting; asked for statute citation regarding recording

Megan E Gardner v. Woodland Valley Ranch Property Owners Association,

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Case Summary

Case ID 23F-H061-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-10-16
Administrative Law Judge Adam D. Stone
Outcome The ALJ affirmed the petition, finding the Respondent HOA violated CC&Rs, Article 3, Section G by failing to provide 30 days' notice prior to the 2023 assessment increase. The Respondent was ordered to reimburse the Petitioner's filing fee.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Megan E Gardner Counsel —
Respondent Woodland Valley Ranch Property Owners Association, Inc. Counsel Kyle A. von Johnson and Edith I. Rudder

Alleged Violations

CC&Rs, Article 3, Section G

Outcome Summary

The ALJ affirmed the petition, finding the Respondent HOA violated CC&Rs, Article 3, Section G by failing to provide 30 days' notice prior to the 2023 assessment increase. The Respondent was ordered to reimburse the Petitioner's filing fee.

Key Issues & Findings

Failure to provide 30-day notice for 2023 dues increase

The HOA increased annual dues from $200.00 to $240.00 effective 1/1/2023 due to a financial crisis caused by embezzlement, but failed to provide the required 30-day written notice as mandated by the CC&Rs. Although the increase was later refunded, the ALJ affirmed the petition finding the HOA failed to comply with the CC&Rs.

Orders: Petitioner's petition is affirmed. Respondent is ordered to reimburse Petitioner's $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&Rs, Article 3, Section G
  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.

Analytics Highlights

Topics: HOA Dues Increase, Notice Violation, CC&R Violation, Embezzlement, Filing Fee Refund, Assessment Timing
Additional Citations:

  • CC&Rs, Article 3, Section G
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 33-1804(D)
  • 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. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

23F-H061-REL Decision – 1077230.pdf

Uploaded 2026-04-24T12:12:40 (41.5 KB)

23F-H061-REL Decision – 1095389.pdf

Uploaded 2026-04-24T12:12:45 (44.3 KB)

23F-H061-REL Decision – 1095762.pdf

Uploaded 2026-04-24T12:12:51 (6.7 KB)

23F-H061-REL Decision – 1102356.pdf

Uploaded 2026-04-24T12:12:57 (110.9 KB)

23F-H061-REL Decision – 1077230.pdf

Uploaded 2026-01-23T17:59:31 (41.5 KB)

23F-H061-REL Decision – 1095389.pdf

Uploaded 2026-01-23T17:59:34 (44.3 KB)

23F-H061-REL Decision – 1095762.pdf

Uploaded 2026-01-23T17:59:37 (6.7 KB)

23F-H061-REL Decision – 1102356.pdf

Uploaded 2026-01-23T17:59:42 (110.9 KB)

This summary addresses the hearing proceedings, key arguments, and final decision in the case of *Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.* (No. 23F-H061-REL), heard by Administrative Law Judge (ALJ) Adam D. Stone on October 2, 2023.

Key Facts and Main Issues

The dispute centered on the Association’s increase of the annual assessment from $200.00 to $240.00 for the 2023 calendar year.

Petitioner's Claim: Megan E. Gardner alleged the Association violated the Covenants, Conditions, and Restrictions (CCRs), specifically Article 3, Section G, which requires the regular assessment amount to be fixed and noticed at least thirty (30) days prior to the end of the calendar year (i.e., by December 1st). The Board voted on the increase on December 16, 2022, missing the required deadline.

Association's Defense (Respondent): The Association, represented by counsel, argued the violation was necessary due to extraordinary circumstances. The former property manager had embezzled nearly $500,000.00 of the Association’s funds in late 2022, leading to financial collapse. Facing an urgent $110,000.00 debt to the road maintenance contractor (crucial for maintaining 200 miles of necessary roadways), the Board had "no choice" but to raise rates to secure immediate funds. The Association asserted that the CCRs did not contemplate such a crisis.

Key Arguments and Legal Points

Respondent's Argument for Mootness: The Association testified that by April 2023, they recovered $387,000.00 in insurance proceeds. Consequently, they paid the debt and issued a $40.00 credit (refund) to all members around May 25, 2023. The Association argued that since the challenged assessment increase was refunded, the petition was moot.

Petitioner's Counter-Argument (Focus on Correction): Gardner received the refund but contended that the issue was not moot. She argued that a refund is not a correction. Gardner sought corrective action requiring the Board to create a formal written record and ensure transparency. She noted that the member portal still incorrectly displayed the $240.00 assessment amount, demonstrating a failure to correct the records and potentially confusing new homeowners. She emphasized that the Board must conduct business according to the CCRs going forward.

Outcome and Final Decision

The Administrative Law Judge issued a Decision on October 16, 2023, concluding that the Petitioner met her burden of proving the CCR violation by a preponderance of the evidence.

Legal Finding: The ALJ affirmed that while he sympathized with the "untenable and horrible position" the Association faced, the Board failed to comply with the CCR’s mandatory 30-day notice provision for the 2023 Assessment.

Order:

  1. Petitioner’s petition was affirmed.
  2. The Association was ORDERED to reimburse Petitioner’s filing fee ($500.00) pursuant to ARIZ. REV. STAT. § 32-2199.02(A), despite Gardner testifying that she was not seeking reimbursement.
  3. No civil penalty was awarded, as the Petitioner did not request one.

Questions

Question

Can my HOA raise dues without proper notice if they are facing a severe financial emergency?

Short Answer

No, financial crises do not exempt the HOA from following the notice timelines in the CC&Rs.

Detailed Answer

The ALJ ruled that even though the HOA was in an 'untenable' position due to embezzlement and urgent debts, they were still strictly bound to provide the specific notice (30 days in this case) required by the governing documents before increasing assessments.

Alj Quote

First, while the tribunal sympathizes with the untenable and horrible position that the Association was facing, it still failed to comply with the CCR’s, by not providing the 30 day notice prior to the 2023 yearly Assessment.

Legal Basis

CC&Rs Compliance

Topic Tags

  • Assessments
  • Emergency Powers
  • Notice Requirements

Question

If I win my hearing, will I get my filing fee back even if I tell the judge I don't want it?

Short Answer

Yes, the statute requires the filing fee to be reimbursed if the petitioner prevails, regardless of their personal preference.

Detailed Answer

The judge ordered the HOA to reimburse the $500 filing fee because the relevant statute (A.R.S. § 32-2199.01) binds the tribunal to order reimbursement when the petitioner wins, even though the homeowner explicitly testified she did not wish to recover it.

Alj Quote

At hearing, Petitioner testified that she did not wish to recovery her filing fee, the tribunal is bound by the statute to order the same.

Legal Basis

A.R.S. § 32-2199.01; A.R.S. § 32-2199.02(A)

Topic Tags

  • Filing Fees
  • Reimbursement
  • Statutory Mandates

Question

What level of proof do I need to provide to win a dispute against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probable than not.

Detailed Answer

The homeowner bears the burden of proof. The standard is not 'beyond a reasonable doubt' (like in criminal cases), but rather showing that the evidence is sufficient to incline a fair mind to one side over 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

A.R.S. § 33-1804(D); A.A.C. R2-19-119

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Evidence

Question

Will the judge automatically fine the HOA if I prove they violated the rules?

Short Answer

No, if you do not specifically request a civil penalty in your petition, the judge generally will not award one.

Detailed Answer

In this case, although the HOA was found in violation, the judge ordered that no civil penalty be awarded specifically because the petitioner did not include a request for a penalty in her initial paperwork.

Alj Quote

IT IS FURTHER ORDERED that no civil penalty be awarded as Petitioner did not request the same in her Petition.

Legal Basis

Administrative Discretion

Topic Tags

  • Civil Penalties
  • Fines
  • Petition Drafting

Question

If the HOA fixes the problem (like refunding money) before the decision, is the case dismissed?

Short Answer

Not necessarily; the judge may still issue a decision affirming the violation occurred.

Detailed Answer

The HOA had already refunded the improper assessment increase to members before the decision was written. However, the ALJ still issued an order affirming the petition and finding that the HOA had failed to comply with the CC&Rs.

Alj Quote

The tribunal finds that Petitioner has met her burden. … Fortunately for the Association and the homeowners, it … was able to issue a refund of $40.00 to its members.

Legal Basis

Mootness (Implicitly Rejected)

Topic Tags

  • Refunds
  • Violations
  • Case Outcomes

Case

Docket No
23F-H061-REL
Case Title
Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.
Decision Date
2023-10-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA raise dues without proper notice if they are facing a severe financial emergency?

Short Answer

No, financial crises do not exempt the HOA from following the notice timelines in the CC&Rs.

Detailed Answer

The ALJ ruled that even though the HOA was in an 'untenable' position due to embezzlement and urgent debts, they were still strictly bound to provide the specific notice (30 days in this case) required by the governing documents before increasing assessments.

Alj Quote

First, while the tribunal sympathizes with the untenable and horrible position that the Association was facing, it still failed to comply with the CCR’s, by not providing the 30 day notice prior to the 2023 yearly Assessment.

Legal Basis

CC&Rs Compliance

Topic Tags

  • Assessments
  • Emergency Powers
  • Notice Requirements

Question

If I win my hearing, will I get my filing fee back even if I tell the judge I don't want it?

Short Answer

Yes, the statute requires the filing fee to be reimbursed if the petitioner prevails, regardless of their personal preference.

Detailed Answer

The judge ordered the HOA to reimburse the $500 filing fee because the relevant statute (A.R.S. § 32-2199.01) binds the tribunal to order reimbursement when the petitioner wins, even though the homeowner explicitly testified she did not wish to recover it.

Alj Quote

At hearing, Petitioner testified that she did not wish to recovery her filing fee, the tribunal is bound by the statute to order the same.

Legal Basis

A.R.S. § 32-2199.01; A.R.S. § 32-2199.02(A)

Topic Tags

  • Filing Fees
  • Reimbursement
  • Statutory Mandates

Question

What level of proof do I need to provide to win a dispute against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probable than not.

Detailed Answer

The homeowner bears the burden of proof. The standard is not 'beyond a reasonable doubt' (like in criminal cases), but rather showing that the evidence is sufficient to incline a fair mind to one side over 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

A.R.S. § 33-1804(D); A.A.C. R2-19-119

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Evidence

Question

Will the judge automatically fine the HOA if I prove they violated the rules?

Short Answer

No, if you do not specifically request a civil penalty in your petition, the judge generally will not award one.

Detailed Answer

In this case, although the HOA was found in violation, the judge ordered that no civil penalty be awarded specifically because the petitioner did not include a request for a penalty in her initial paperwork.

Alj Quote

IT IS FURTHER ORDERED that no civil penalty be awarded as Petitioner did not request the same in her Petition.

Legal Basis

Administrative Discretion

Topic Tags

  • Civil Penalties
  • Fines
  • Petition Drafting

Question

If the HOA fixes the problem (like refunding money) before the decision, is the case dismissed?

Short Answer

Not necessarily; the judge may still issue a decision affirming the violation occurred.

Detailed Answer

The HOA had already refunded the improper assessment increase to members before the decision was written. However, the ALJ still issued an order affirming the petition and finding that the HOA had failed to comply with the CC&Rs.

Alj Quote

The tribunal finds that Petitioner has met her burden. … Fortunately for the Association and the homeowners, it … was able to issue a refund of $40.00 to its members.

Legal Basis

Mootness (Implicitly Rejected)

Topic Tags

  • Refunds
  • Violations
  • Case Outcomes

Case

Docket No
23F-H061-REL
Case Title
Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.
Decision Date
2023-10-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Megan E Gardner (petitioner)
    Property owner of Parcel 222

Respondent Side

  • Kyle A. von Johnson (HOA attorney)
    Woodland Valley Ranch Property Owners Association, Inc.
  • Edith I. Rudder (HOA attorney)
    Woodland Valley Ranch Property Owners Association, Inc.
  • Ronald Carter (Treasurer/Witness)
    Woodland Valley Ranch Property Owners Association, Inc.
    Treasurer since June 2022. Referred to as 'Ronald Cotter' in the ALJ Decision Findings of Fact.
  • David Goodman (Witness)
    Woodland Valley Ranch Property Owners Association, Inc.
    Appeared remotely; recruited to serve as President after previous board members resigned.

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings (OAH)
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate (ADRE)
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate (ADRE)
    Listed for copy transmittal
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate (ADRE)
    Listed for copy transmittal
  • djones (ADRE Staff)
    Arizona Department of Real Estate (ADRE)
    Listed for copy transmittal
  • labril (ADRE Staff)
    Arizona Department of Real Estate (ADRE)
    Listed for copy transmittal

Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners

Posted on by

Case Summary

Case ID 24F-H001-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-10-16
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge concluded that Petitioner failed to establish a violation of Article 4.4 of the CC&Rs, finding that the Association's regulation of the lap pool temperature was authorized and reasonable, and dismissed the petition.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kristeen L. Herron Counsel —
Respondent The Villages at Rancho El Dorado Homeowners Association Counsel Lydia Linsmeier

Alleged Violations

CC&Rs Article 4.4

Outcome Summary

The Administrative Law Judge concluded that Petitioner failed to establish a violation of Article 4.4 of the CC&Rs, finding that the Association's regulation of the lap pool temperature was authorized and reasonable, and dismissed the petition.

Why this result: Petitioner failed to sustain her burden of proof by a preponderance of the evidence that the Association violated CC&Rs Article 4.4. Petitioner's preference for warmer water did not establish discrimination or a rule violation.

Key Issues & Findings

Whether The Villages at Rancho El Dorado Homeowners Association (Respondent) is in violation of CC&Rs Article 4.4 for “turning off the lap pool heater … [f]or approximately one month” which Petitioner further alleges constitutes discrimination against senior residents.

Petitioner alleged the HOA violated CC&Rs Article 4.4 by turning off the lap pool heater around mid-April 2023, making the temperature too cold for her use and constituting discrimination against senior residents who rely on the pool for exercise. The ALJ found Petitioner failed to prove a violation of CC&Rs Article 4.4 or age-based discrimination.

Orders: Petitioner's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs Article 4.4
  • The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7(e)
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA Dispute, CC&R Violation, Pool Heating, Discrimination Claim, Common Area Use, 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. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-106
  • ARIZ. ADMIN. CODE R2-19-119
  • CC&Rs Article 4.4
  • CC&Rs 8.2(c)(12)
  • The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

24F-H001-REL Decision – 1089588.pdf

Uploaded 2026-01-23T18:00:27 (52.0 KB)

24F-H001-REL Decision – 1102316.pdf

Uploaded 2026-01-23T18:00:31 (136.7 KB)

This matter came before the Office of Administrative Hearings (OAH) on September 25, 2023, concerning a dispute between homeowner Kristeen L. Herron (Petitioner) and The Villages at Rancho El Dorado Homeowners Association (Respondent HOA). The Petitioner, appearing on her own behalf, bore the burden of proving, by a preponderance of the evidence, that the Respondent violated a community document.

Key Facts and Main Issue

The sole issue for determination was whether the HOA violated CC&Rs Article 4.4 by "turning off the lap pool heater" for approximately one month (mid-April to mid-May 2023), which Petitioner alleged constituted discrimination against senior residents. Petitioner, a "snowbird" residing at the property from October to May, uses the lap pool for exercise therapy due to health issues.

The HOA's governing rules (Rule 3.5.7(e)) stipulate that when the main community pool is closed for the winter season (late-October through April), the lap pool water "shall be heated and maintained at a temperature… which shall be between 78°F and 82°F". The HOA Board adopted a resolution on March 29, 2023, to shut off the lap pool heater simultaneously with opening the large pool, which occurred once the large pool reached 82°F.

Key Legal Arguments

  1. Petitioner's Argument: Petitioner argued that turning off the heater around April 15, 2023, was premature, leaving the water too cold for senior residents who required warmer temperatures (preferably 84°F or higher) for health and exercise. Petitioner contended this action, along with the refusal to amend the pool rule (3.5.7(e)), violated CC&R 4.4, which prohibits rules that "discriminate among Owners". Petitioner's witness testified that the 78°F–82°F range was falsely attributed to the Arizona Department of Health.
  2. Respondent's Argument: The HOA asserted its authority under CC&Rs Article 4.4 and 8.2(c)(12) to adopt and enforce rules governing common areas, including setting pool temperatures. The HOA maintained that the 78°F–82°F range was reasonable, nondiscriminatory, and followed the established rules for the winter season. Respondent argued that Petitioner's preference for a higher temperature did not establish a violation of the rule or amount to discrimination. Testimony confirmed the lap pool is not intended for medicinal purposes.

Outcome and Legal Conclusion

The Administrative Law Judge (ALJ) took the matter under advisement and issued a decision on October 16, 2023, ruling in favor of the Respondent.

The ALJ concluded that the Petitioner failed to sustain her burden of proof. The material facts established that the HOA was obligated to heat the pool between 78°F and 82°F during the winter season (through April 2023).

The critical legal finding was that there was no evidence in the record to support the contention that the HOA failed to maintain temperatures within the required range through April 2023. Furthermore, the ALJ determined that Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her personal preference does not amount to age-based discrimination.

Based on these conclusions, the Petitioner’s petition was dismissed.

{ “case”: { “docket_no”: “24F-H001-REL”, “case_title”: “Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners Association”, “decision_date”: “2023-10-16”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “In an administrative hearing, the petitioner (homeowner) is responsible for proving that the HOA violated a community document. The standard of proof is ‘preponderance of the evidence,’ which means showing that the claim is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA rule regarding amenity usage constitute discrimination if it negatively affects senior citizens’ preferences?”, “short_answer”: “No, if the rule is applied neutrally and is within the HOA’s authority, personal preference does not equate to discrimination.”, “detailed_answer”: “The ALJ ruled that rules regarding common area maintenance (such as pool temperature) do not amount to age-based discrimination simply because they do not meet the personal preferences of senior residents, provided the HOA has the authority to govern the property use.”, “alj_quote”: “Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her preference does not amount to age-based discrimination.”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “discrimination”, “common areas”, “amenities” ] }, { “question”: “Can an HOA board adopt rules that restrict the use of common areas like pools?”, “short_answer”: “Yes, the CC&Rs typically grant the Board the power to adopt rules governing property use.”, “detailed_answer”: “The decision affirms that the HOA Board has the authority to adopt, amend, and repeal rules regarding the use of the property, including common areas, as long as those rules do not discriminate among owners and are consistent with the declaration.”, “alj_quote”: “By action of the Board, the Association may, from time to time and subject to the provisions of this Declaration, adopt, amend, and repeal rules and regulations to be known as the ‘Rules.’ The Rules may restrict and govern the use of the Property”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “HOA authority”, “rules and regulations”, “common areas” ] }, { “question”: “Does the administrative court have the power to interpret the CC&Rs as a contract?”, “short_answer”: “Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.”, “detailed_answer”: “The ALJ confirmed that the CC&Rs form an enforceable contract between the Association and the property owner, and the OAH has the legal authority to interpret this contract during a dispute.”, “alj_quote”: “Thus, the CC&Rs form an enforceable contract between the Association and each property owner… OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195”, “topic_tags”: [ “contract law”, “jurisdiction”, “CC&Rs” ] }, { “question”: “If the HOA follows its written rules regarding maintenance (e.g., heating schedules), is it liable for a violation?”, “short_answer”: “No, if the HOA acts in accordance with the established rules, there is no violation.”, “detailed_answer”: “In this case, the HOA rules specified heating the pool during the ‘winter season’ to a specific range. Because there was no evidence the HOA failed to meet these specific written requirements, the ALJ found no violation.”, “alj_quote”: “There is no evidence in the record that would support the contention that the Association failed to do so through April 2023.”, “legal_basis”: “Recreation Center Complex Rule 3.5.7(e)”, “topic_tags”: [ “maintenance”, “compliance”, “violations” ] }, { “question”: “What is the definition of ‘preponderance of the evidence’?”, “short_answer”: “It is evidence that convinces the judge the claim is ‘more probably true than not.'”, “detailed_answer”: “The decision defines this legal standard as the greater weight of the evidence, which inclines a fair mind to one side of the issue, even if it doesn’t wholly free the mind from doubt.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “Does a homeowner have to pay a fee to file a petition against their HOA?”, “short_answer”: “Yes, a filing fee is required by statute.”, “detailed_answer”: “The petitioner in this case was required to tender a $500.00 filing fee to the Department of Real Estate when submitting their petition.”, “alj_quote”: “On July 07, 2023, tendered $500.00 to the Department as a filing fee for the petition at issue.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.05”, “topic_tags”: [ “fees”, “filing process”, “procedure” ] } ] }

{ “case”: { “docket_no”: “24F-H001-REL”, “case_title”: “Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners Association”, “decision_date”: “2023-10-16”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “In an administrative hearing, the petitioner (homeowner) is responsible for proving that the HOA violated a community document. The standard of proof is ‘preponderance of the evidence,’ which means showing that the claim is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA rule regarding amenity usage constitute discrimination if it negatively affects senior citizens’ preferences?”, “short_answer”: “No, if the rule is applied neutrally and is within the HOA’s authority, personal preference does not equate to discrimination.”, “detailed_answer”: “The ALJ ruled that rules regarding common area maintenance (such as pool temperature) do not amount to age-based discrimination simply because they do not meet the personal preferences of senior residents, provided the HOA has the authority to govern the property use.”, “alj_quote”: “Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her preference does not amount to age-based discrimination.”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “discrimination”, “common areas”, “amenities” ] }, { “question”: “Can an HOA board adopt rules that restrict the use of common areas like pools?”, “short_answer”: “Yes, the CC&Rs typically grant the Board the power to adopt rules governing property use.”, “detailed_answer”: “The decision affirms that the HOA Board has the authority to adopt, amend, and repeal rules regarding the use of the property, including common areas, as long as those rules do not discriminate among owners and are consistent with the declaration.”, “alj_quote”: “By action of the Board, the Association may, from time to time and subject to the provisions of this Declaration, adopt, amend, and repeal rules and regulations to be known as the ‘Rules.’ The Rules may restrict and govern the use of the Property”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “HOA authority”, “rules and regulations”, “common areas” ] }, { “question”: “Does the administrative court have the power to interpret the CC&Rs as a contract?”, “short_answer”: “Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.”, “detailed_answer”: “The ALJ confirmed that the CC&Rs form an enforceable contract between the Association and the property owner, and the OAH has the legal authority to interpret this contract during a dispute.”, “alj_quote”: “Thus, the CC&Rs form an enforceable contract between the Association and each property owner… OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195”, “topic_tags”: [ “contract law”, “jurisdiction”, “CC&Rs” ] }, { “question”: “If the HOA follows its written rules regarding maintenance (e.g., heating schedules), is it liable for a violation?”, “short_answer”: “No, if the HOA acts in accordance with the established rules, there is no violation.”, “detailed_answer”: “In this case, the HOA rules specified heating the pool during the ‘winter season’ to a specific range. Because there was no evidence the HOA failed to meet these specific written requirements, the ALJ found no violation.”, “alj_quote”: “There is no evidence in the record that would support the contention that the Association failed to do so through April 2023.”, “legal_basis”: “Recreation Center Complex Rule 3.5.7(e)”, “topic_tags”: [ “maintenance”, “compliance”, “violations” ] }, { “question”: “What is the definition of ‘preponderance of the evidence’?”, “short_answer”: “It is evidence that convinces the judge the claim is ‘more probably true than not.'”, “detailed_answer”: “The decision defines this legal standard as the greater weight of the evidence, which inclines a fair mind to one side of the issue, even if it doesn’t wholly free the mind from doubt.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “Does a homeowner have to pay a fee to file a petition against their HOA?”, “short_answer”: “Yes, a filing fee is required by statute.”, “detailed_answer”: “The petitioner in this case was required to tender a $500.00 filing fee to the Department of Real Estate when submitting their petition.”, “alj_quote”: “On July 07, 2023, tendered $500.00 to the Department as a filing fee for the petition at issue.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.05”, “topic_tags”: [ “fees”, “filing process”, “procedure” ] } ] }

Case Participants

Petitioner Side

  • Kristeen L. Herron (petitioner)
    The Villages at Rancho El Dorado Homeowners Association
    Property owner and member of the Association
  • Karen Ellis (witness)
    The Villages at Rancho El Dorado Homeowners Association
    Witness for Petitioner; property owner/member
  • LouAnne Schmidt (observer)
    Potential witness for Petitioner, not permitted to testify

Respondent Side

  • Lydia Linsmeier (HOA attorney)
    Carpenter Hazelwood Delgado & Bolen
  • Eden Cohen (HOA attorney)
    Carpenter Hazelwood Delgado & Bolen
  • April Lord (witness)
    City Property Management
    Vice President of Management Services
  • Christiano Monteiro (board member)
    The Villages at Rancho El Dorado Homeowners Association
    Board President; Testified as witness for Respondent
  • John Deck (maintenance technician)
    The Villages at Rancho El Dorado Homeowners Association
    Director of Maintenance
  • Mark (board member)
    The Villages at Rancho El Dorado Homeowners Association
    Board member mentioned making a motion
  • Heather Tiveres (property manager)
    City Property Management
    Former managing agent employee whose name was clarified in testimony

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

John R Ashley v. Rancho Reyes II Community Association, INC

Posted on by

Case Summary

Case ID 23F-H058-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-10-04
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge dismissed Petitioner John R. Ashley's petition against Rancho Reyes II Community Association, Inc. The ALJ found that the HOA did not violate the Bylaws regarding the minimum number of directors because compliance was impossible due to lack of member interest, and the issue was subsequently moot as the board currently met the minimum requirement.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John R. Ashley Counsel —
Respondent Rancho Reyes II Community Association, INC Counsel James Brewer, Esq.

Alleged Violations

Article IV, Section 1 of the Bylaws

Outcome Summary

The Administrative Law Judge dismissed Petitioner John R. Ashley's petition against Rancho Reyes II Community Association, Inc. The ALJ found that the HOA did not violate the Bylaws regarding the minimum number of directors because compliance was impossible due to lack of member interest, and the issue was subsequently moot as the board currently met the minimum requirement.

Why this result: Petitioner failed to provide sufficient evidence to rebut Respondent’s claim that it actively sought a third board member. The Respondent was exonerated under the legal doctrine of impossibility of performance, and the current compliance with the three-member minimum rendered the dispute moot.

Key Issues & Findings

Alleged violation regarding the minimum number of Board Directors

Petitioner alleged Respondent violated Article IV, Section 1 of the Bylaws by having only two Board Directors dismiss and order a redo of the 1/9/2023 Annual Membership Meeting for 3/7/2023, arguing that three directors were required to properly handle the Association’s affairs.

Orders: The petition is dismissed. Respondent was unable to comply with the Bylaws requiring three directors due to impossibility (lack of member interest) while actively seeking compliance, and the dispute is currently moot as the board now has three or more members.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. §§ 33-1801 to 33-1818
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • Garner v. Ellingson, 18 Ariz. 181, 182 (App. 1972)
  • Whelan v. Griffith Consumers Company, 170 A.2d 229, 230 (D.C. App., 1961)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Assân v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: impossibility of performance, board structure, election dispute, bylaw violation, Planned Communities Act, mootness
Additional Citations:

  • A.R.S. §§ 33-1801 to 33-1818
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • Garner v. Ellingson, 18 Ariz. 181, 182 (App. 1972)
  • Whelan v. Griffith Consumers Company, 170 A.2d 229, 230 (D.C. App., 1961)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Assân v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

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Decision Documents

23F-H058-REL Decision – 1075520.pdf

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23F-H058-REL Decision – 1078604.pdf

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23F-H058-REL Decision – 1078608.pdf

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23F-H058-REL Decision – 1099484.pdf

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23F-H058-REL Decision – 1075520.pdf

Uploaded 2026-01-23T17:58:49 (45.8 KB)

23F-H058-REL Decision – 1078604.pdf

Uploaded 2026-01-23T17:58:52 (47.9 KB)

23F-H058-REL Decision – 1078608.pdf

Uploaded 2026-01-23T17:58:56 (5.5 KB)

23F-H058-REL Decision – 1099484.pdf

Uploaded 2026-01-23T17:59:01 (104.5 KB)

This summary addresses the administrative hearing held on September 14, 2023, in the matter of John R. Ashley v. Rancho Reyes II Community Association, INC (No. 23F-H058-REL).

Key Facts and Main Issues

Petitioner John R. Ashley challenged the actions of the Rancho Reyes II Community Association (Respondent). The sole issue of the hearing was whether the Respondent violated Article IV, Section 1 of the Community Bylaws. This bylaw requires the affairs of the Association to be managed by "not less than three (3) nor more than nine (9) directors".

The violation Petitioner alleged was that two sitting Board Directors (Sherry Ortega and Maria Ruelas) acted alone (on or about January 19, 2023) in dismissing the results of the January 2023 Annual Membership Meeting and ordering a redo election for March 7, 2023, when at least three directors were required to handle Association affairs. It was established that the Board operated with only two members from late 2021 until the March 2023 election.

The January 2023 election, in which five members were elected, was invalidated by the two existing board members after the community manager suspected fraud and irregularities (including stuffed ballots, improper envelopes, and an elected candidate whose husband stated she did not submit her name and was not fluent in English).

Key Arguments

Petitioner's Argument: Petitioner argued the decision to redo the election was invalid because it was made by fewer than three directors, thus violating the Bylaw. Petitioner also contended that the two directors (Ortega and Ruelas) were not duly elected in 2022, asserting that there were effectively zero legal board members when the re-election was ordered. Petitioner further argued that the Respondent's claims of fraud were "non-existent" under ARS title 33, Section 1812, because the board was responsible for approving returned ballots prior to the meeting.

Respondent's Legal Defense: Respondent asserted that operating with only two members was due to impossibility or impracticability of performance. Respondent argued that it actively sought a third board member, but homeowners were not interested in serving. Respondent relied on Arizona case law, stating that "when, due to circumstances beyond the control of the parties the performance of a contract is rendered impossible, the party failing to perform is exonerated" (*Garner v. Ellingson*). The Respondent maintained that the re-election was necessary due to the severe irregularities in the January vote.

Outcome and Legal Decision

On October 4, 2023, Administrative Law Judge Velva Moses-Thompson issued a decision dismissing the Petition.

The Administrative Law Judge (ALJ) concluded that Petitioner failed to meet the burden of proof to establish a violation by a preponderance of the evidence. The ALJ found that while the Bylaws required a minimum of three directors, the preponderance of the evidence showed that the Respondent actively sought a third member, and it was "unable to comply with Article IV, Section 1 of the Bylaws" due to lack of interest from members. The ALJ implicitly accepted the Respondent's defense that non-compliance was due to circumstances beyond the control of the parties.

Furthermore, the ALJ noted that the Association currently has at least three duly elected board members (elected in March 2023), meaning the issue of Bylaw compliance "is no longer in dispute". Based on the impossibility defense and the resolution of the current dispute regarding board size, the Petition was ordered dismissed.

Questions

Question

Can my HOA be penalized for having fewer than the required number of board members if no one volunteers to serve?

Short Answer

Likely not. If the HOA actively seeks candidates but no one steps up, they may be exonerated due to 'impossibility of performance.'

Detailed Answer

The decision establishes that if an HOA board is understaffed (e.g., 2 members when bylaws require 3) because homeowners refuse to volunteer despite recruitment efforts, the HOA is not held liable. The legal principle of 'impossibility' applies when circumstances beyond the parties' control prevent compliance with the bylaws.

Alj Quote

It is well settled that when, due to circumstances beyond the control of the parties the performance of a contract is rendered impossible, the party failing to perform is exonerated.

Legal Basis

Contract Law Principles (Garner v. Ellingson); Bylaws Article IV, Section 1

Topic Tags

  • Board Composition
  • Impossibility Defense
  • Bylaws

Question

If my HOA has already fixed a violation by the time of the hearing, can I still get a ruling against them?

Short Answer

No. If the HOA comes into compliance before the decision is made, the dispute may be considered resolved and the petition dismissed.

Detailed Answer

In this case, the homeowner sued because the board had too few members. However, by the time of the hearing, a full board had been elected. The judge dismissed the petition because the violation was no longer active and compliance was not in dispute.

Alj Quote

Accordingly, because the preponderance of the evidence has shown that Respondent was unable to comply with Article IV, Section 1 of the Bylaws and compliance with Article IV, Section 1 of the Bylaws is no longer in dispute, the Petition must be dismissed.

Legal Basis

Mootness

Topic Tags

  • Procedural
  • Mootness
  • Dismissal

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 violation occurred.

Detailed Answer

The homeowner must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated Article IV, Section 1 of its Bylaws, by a preponderance of the evidence.

Legal Basis

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

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Hearing Procedures

Question

What counts as 'preponderance of the evidence' in an HOA dispute?

Short Answer

Evidence that makes a claim 'more probably true than not.'

Detailed Answer

It is not about the quantity of witnesses, but the convincing force of the evidence. It must be sufficient to incline a fair mind to one side over 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

Arizona Law of Evidence

Topic Tags

  • Evidence
  • Legal Definitions

Question

How are HOA bylaws and restrictive covenants interpreted by the judge?

Short Answer

They are interpreted to support the intent of the parties and the underlying purpose of the document.

Detailed Answer

The judge will look at the documents as a whole rather than isolating a single sentence, ensuring that the interpretation gives effect to the intended purpose of the rules.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Contract Interpretation Principles (Powell v. Washburn)

Topic Tags

  • CC&R Interpretation
  • Bylaws

Question

Can an HOA board order a new election if they suspect fraud in the previous one?

Short Answer

Yes, this action was accepted in the context of this decision.

Detailed Answer

The decision notes that the community manager and board members decided to hold a new election after consulting with an attorney regarding suspected fraudulent tactics and unfair processes in the initial election.

Alj Quote

Respondent’s community manager suspected that the election was not a fair process and that certain individuals used fraudulent tactics to influence the election. After consulting with Respondent’s attorney, the community manager along with Ms. Ortega decided to hold a new election in March of 2023.

Legal Basis

Board Authority

Topic Tags

  • Elections
  • Fraud
  • Board Powers

Case

Docket No
23F-H058-REL
Case Title
John R. Ashley v. Rancho Reyes II Community Association, Inc.
Decision Date
2023-10-04
Alj Name
Velva Moses-Thompson
Tribunal
Office of Administrative Hearings
Agency
Arizona Department of Real Estate

Questions

Question

Can my HOA be penalized for having fewer than the required number of board members if no one volunteers to serve?

Short Answer

Likely not. If the HOA actively seeks candidates but no one steps up, they may be exonerated due to 'impossibility of performance.'

Detailed Answer

The decision establishes that if an HOA board is understaffed (e.g., 2 members when bylaws require 3) because homeowners refuse to volunteer despite recruitment efforts, the HOA is not held liable. The legal principle of 'impossibility' applies when circumstances beyond the parties' control prevent compliance with the bylaws.

Alj Quote

It is well settled that when, due to circumstances beyond the control of the parties the performance of a contract is rendered impossible, the party failing to perform is exonerated.

Legal Basis

Contract Law Principles (Garner v. Ellingson); Bylaws Article IV, Section 1

Topic Tags

  • Board Composition
  • Impossibility Defense
  • Bylaws

Question

If my HOA has already fixed a violation by the time of the hearing, can I still get a ruling against them?

Short Answer

No. If the HOA comes into compliance before the decision is made, the dispute may be considered resolved and the petition dismissed.

Detailed Answer

In this case, the homeowner sued because the board had too few members. However, by the time of the hearing, a full board had been elected. The judge dismissed the petition because the violation was no longer active and compliance was not in dispute.

Alj Quote

Accordingly, because the preponderance of the evidence has shown that Respondent was unable to comply with Article IV, Section 1 of the Bylaws and compliance with Article IV, Section 1 of the Bylaws is no longer in dispute, the Petition must be dismissed.

Legal Basis

Mootness

Topic Tags

  • Procedural
  • Mootness
  • Dismissal

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 violation occurred.

Detailed Answer

The homeowner must prove their case by a 'preponderance of the evidence.' This means they must convince the judge that their claim is more likely true than not.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated Article IV, Section 1 of its Bylaws, by a preponderance of the evidence.

Legal Basis

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

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Hearing Procedures

Question

What counts as 'preponderance of the evidence' in an HOA dispute?

Short Answer

Evidence that makes a claim 'more probably true than not.'

Detailed Answer

It is not about the quantity of witnesses, but the convincing force of the evidence. It must be sufficient to incline a fair mind to one side over 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

Arizona Law of Evidence

Topic Tags

  • Evidence
  • Legal Definitions

Question

How are HOA bylaws and restrictive covenants interpreted by the judge?

Short Answer

They are interpreted to support the intent of the parties and the underlying purpose of the document.

Detailed Answer

The judge will look at the documents as a whole rather than isolating a single sentence, ensuring that the interpretation gives effect to the intended purpose of the rules.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Contract Interpretation Principles (Powell v. Washburn)

Topic Tags

  • CC&R Interpretation
  • Bylaws

Question

Can an HOA board order a new election if they suspect fraud in the previous one?

Short Answer

Yes, this action was accepted in the context of this decision.

Detailed Answer

The decision notes that the community manager and board members decided to hold a new election after consulting with an attorney regarding suspected fraudulent tactics and unfair processes in the initial election.

Alj Quote

Respondent’s community manager suspected that the election was not a fair process and that certain individuals used fraudulent tactics to influence the election. After consulting with Respondent’s attorney, the community manager along with Ms. Ortega decided to hold a new election in March of 2023.

Legal Basis

Board Authority

Topic Tags

  • Elections
  • Fraud
  • Board Powers

Case

Docket No
23F-H058-REL
Case Title
John R. Ashley v. Rancho Reyes II Community Association, Inc.
Decision Date
2023-10-04
Alj Name
Velva Moses-Thompson
Tribunal
Office of Administrative Hearings
Agency
Arizona Department of Real Estate

Case Participants

Petitioner Side

  • John R. Ashley (petitioner)
    Represented himself
  • Rmulo Gonzalez (board member elect)
    Elected in March 2023 election; contested re-election procedures
  • James Canella (board member elect)
    Elected in January 2023 election; member of the community who desired to serve
  • Daniel Walker (board member elect)
    Elected in January 2023 election
  • Richard Springer (witness reference)
    Homeowner mentioned by Petitioner as willing to serve on the board
  • Charles Seers (witness reference)
    Homeowner mentioned by Petitioner as willing to serve on the board; name variations include Charles Zippers

Respondent Side

  • James Brewer (attorney)
    Tyson & Mendes, LLP
    Represented Respondent Rancho Reyes II Community Association
  • Leah M. McKeever (attorney)
    Tyson & Mendes, LLP
  • Lynn M. Allen (attorney)
    Tyson & Mendes, LLP
  • Sherry Ortega (board member)
    Rancho Reyes II Community Association
    Vice President since March 2023; President previously; testified for Respondent
  • Maria Ruelas (board member)
    Rancho Reyes II Community Association
    Director in 2022 until March 2023
  • Kimberly Schone (COO/witness)
    Mission Management (Community Manager)
    Chief Operating Officer, testified for Respondent
  • Ronda Raal (CEO/property manager)
    Mission Management (Community Manager)
    CEO of the management company
  • Sammy (assistant)
    Mission Management (Community Manager)
    Assistant who helped count ballots for January 2023 election; name variations include Tammy, Cammy, Samantha
  • Joy (manager)
    Mission Management (Community Manager)
    Manager during January 2023 election period
  • Jennifer (manager)
    Mission Management (Community Manager)
    Current manager of the account
  • Vince (management staff)
    Mission Management (Community Manager)
    Saw ballot video footage

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Also referred to as Fala Moses Thompson
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate (ADRE)
  • AHansen (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents
  • VNunez (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents
  • DJones (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents
  • Labril (ADRE staff)
    Arizona Department of Real Estate (ADRE)
    Recipient of official documents

Other Participants

  • Cordova Sapola (board member elect)
    Elected in March 2023 election; unresponsive and did not attend meetings
  • Eugenia Francisco (elected candidate)
    Elected in January 2023 election but refuted candidacy; name variations include Eugene Silva
  • Yolanda Molina (former board member)
    Former Treasurer; resigned December 2021
  • Mario Martinez (witness reference)
    Adam LMC
  • Diane (former property manager)
    First manager for the HOA around 2017-2018

John W Gray v. Mesa Coronado III Condominium Association

Posted on by

Case Summary

Case ID 23F-H063-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-09-20
Administrative Law Judge Velva Moses-Thompson
Outcome Petitioner prevailed on Issue 2 (Records Requests violation), resulting in the refund of the $500 filing fee. Respondent prevailed on Issue 1 (Failure to Hold Meetings, found moot) and Issue 3 (Board Legitimacy, insufficient evidence). No civil penalty was imposed.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John W. Gray Counsel —
Respondent Mesa Coronado III Condominium Association Counsel Chad M. Gallacher, Esq.

Alleged Violations

ARS § 33-1248(B), Bylaw Article 2.1
ARS § 33-1258, Bylaw Article 1.6
ARS § 33-1243(B), Bylaw Article 3.2

Outcome Summary

Petitioner prevailed on Issue 2 (Records Requests violation), resulting in the refund of the $500 filing fee. Respondent prevailed on Issue 1 (Failure to Hold Meetings, found moot) and Issue 3 (Board Legitimacy, insufficient evidence). No civil penalty was imposed.

Why this result: Petitioner lost Issue 1 because the failure to hold meetings was resolved and deemed moot. Petitioner lost Issue 3 due to insufficient evidence.

Key Issues & Findings

No meeting was held in 2020, 2021, or 2022

Petitioner alleged violation for failure to hold annual meetings in 2020, 2021, and 2022. The Board admitted meetings were not held due to the pandemic but held an annual meeting in 2023.

Orders: —

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARS § 33-1248(B)
  • Bylaw Article 2.1
  • ARS § 33-1250(C)

Petitioner has received no response to multiple requests for information

Petitioner made multiple requests for information and records (including meeting minutes from 2018-2023 and fire suppression invoices from 2014-2023). Respondent failed to provide copies of minutes from 2018-2019 and records related to the sprinkler system.

Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty (30) days and directed to comply with A.R.S. § 33-1258 and Bylaw Article 1.6 going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARS § 33-1258
  • Bylaw Article 1.6

The people claiming to be the Board are not legitimate, not duly elected, and have appointed themselves to successive terms of office

Petitioner alleged the board members were illegitimate because annual meetings lacked quorum (2018, 2019) or were not held (2020-2022), leading directors to continue in office unlawfully.

Orders: —

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARS § 33-1243(B)
  • Bylaw Article 3.2
  • A.R.S. § 10-3805(E)

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

23F-H063-REL Decision – 1081668.pdf

Uploaded 2026-04-24T12:13:14 (46.0 KB)

23F-H063-REL Decision – 1095241.pdf

Uploaded 2026-04-24T12:13:19 (143.2 KB)

23F-H063-REL Decision – 1081668.pdf

Uploaded 2026-01-23T17:59:50 (46.0 KB)

23F-H063-REL Decision – 1095241.pdf

Uploaded 2026-01-23T17:59:55 (143.2 KB)

This matter, *John W. Gray v Mesa Coronado III Condominium Association* (No. 23F-H063-REL), was heard before Administrative Law Judge (ALJ) Velva Moses-Thompson at the Office of Administrative Hearings (OAH) on August 31, 2023. The Petitioner, John W. Gray, alleged that the Mesa Coronado III Condominium Association violated Arizona Revised Statutes (A.R.S.) and its Bylaws across three issues.

Key Facts and Procedural History

The Petitioner, a unit owner, filed his petition on or about May 15, 2023. Prior to the hearing, the OAH denied the Petitioner’s motion for a Default Decision, noting that the Commissioner, not the OAH, holds jurisdiction for defaults based on failure to respond, and the Commissioner had already accepted the Respondent's response.

The Association admitted that it failed to hold annual board meetings in 2020, 2021, and 2022. Furthermore, prior meetings in 2018 and 2019 failed to achieve quorum. The Petitioner also made multiple requests for information and records (including meeting minutes and fire sprinkler system invoices dating back to 2014) which he contended were ignored or inadequately addressed.

Main Issues and Arguments

  1. Failure to Hold Annual Meetings (2020–2022) (A.R.S. § 33-1248(B) and Bylaw Article 2.1):
  • *Respondent's Argument:* The failure was due to the COVID-19 pandemic and related health concerns. The Association argued it should not be penalized for trying to cope with an unprecedented situation, noting the difficulty of holding mandatory in-person voting (A.R.S. § 33-1250(C)) during the crisis. A meeting was successfully held in July 2023.
  • *Petitioner's Argument:* The statutes and bylaws have no emergency exception. Meetings could have been conducted remotely or effectively via absentee ballot, which was already an accepted practice.
  1. Board Legitimacy (A.R.S. § 33-1243(B) and Bylaw Article 3.2):
  • *Respondent's Argument:* The directors’ continuation in office was required by operation of law, specifically the Bylaws (Article 3.2) and the Nonprofit Corporation Act (A.R.S. § 10-3805(E)). These provisions dictate that directors shall continue to hold office until a successor is elected and qualified, preventing a lapse in governance when quorum is not met due to owner apathy. The current board members were validly elected in July 2023.
  • *Petitioner's Argument:* The board improperly and unilaterally appointed themselves to successive terms for five years (2018–2022) by making only a single attempt at an annual election and failing to reschedule, largely due to cost concerns.
  1. Failure to Respond to Information Requests (A.R.S. § 33-1258 and Bylaw Article 1.6):
  • *Respondent's Argument:* Some requests were for information rather than formal records, and some requests (like the fire system invoices back to 2014) were extensive and time-consuming to compile. They admitted they were still working on producing these records. They also noted that meeting minutes for 2020-2022 did not exist because no meetings were held.
  • *Petitioner's Argument:* The law requires a timely response, which the Association failed to provide, constituting a violation of the Condo Act.

Final Decision and Outcome

The ALJ issued her decision on September 20, 2023.

  • Issue 1 (Annual Meetings): The ALJ ruled the issue was moot because an annual meeting was held in 2023. Respondent was deemed the prevailing party on Issue 1.
  • Issue 3 (Board Legitimacy): The Petitioner failed to establish by a preponderance of the evidence that the board members were not legitimate or duly elected, citing the legal principle allowing directors to hold office until successors are elected (A.R.S. § 10-3805(E)). Respondent was deemed the prevailing party on Issue 3.
  • Issue 2 (Records Requests): The ALJ found that the Respondent failed to provide copies of minutes for meetings held in 2018 and 2019, and records reques

Questions

Question

If my HOA fails to hold an annual meeting, do the current directors automatically lose their positions?

Short Answer

No. Directors typically continue to serve until a successor is elected or qualified.

Detailed Answer

The ALJ concluded that board members may serve successive terms and, in the absence of a new election (often due to lack of quorum), existing members continue to serve. The failure to hold a meeting does not automatically illegitimate the board.

Alj Quote

Directors of a non-profit organization may be elected for successive terms, unless otherwise provided for in the articles of incorporation or bylaws.

Legal Basis

A.R.S. § 10-3805(B)

Topic Tags

  • Board Legitimacy
  • Elections
  • Terms of Office

Question

Can I penalize my HOA for failing to hold meetings during a public health emergency like COVID-19?

Short Answer

Likely no, especially if the issue is resolved by the time of the hearing.

Detailed Answer

The ALJ found that failing to hold in-person meetings due to the pandemic was supported by the weight of evidence. Furthermore, because the HOA eventually held a meeting in 2023, the dispute regarding the missed meetings was considered moot.

Alj Quote

The weight of the evidence shows that the Board failed to hold in person board meetings from 2020 to 2022, due to the pandemic… Because there is no current dispute regarding the failure to hold an annual board meeting, the issue is now moot.

Legal Basis

Mootness Doctrine

Topic Tags

  • Meetings
  • COVID-19
  • Mootness

Question

Does the HOA have a valid excuse for not providing old meeting minutes if they claim they are hard to find?

Short Answer

No. The HOA must justify any failure to provide requested minutes.

Detailed Answer

The ALJ ruled against the HOA for failing to provide minutes from 2018 and 2019, noting that the HOA provided no evidence to justify this failure, despite arguments about the difficulty of production.

Alj Quote

Although there were no board meetings from 2020-2022, Respondent provide no evidence to justify its failure to provide copies of the minutes of Association meetings from 2018 to 2019.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Requests
  • Meeting Minutes
  • HOA Obligations

Question

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

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this case, the Petitioner prevailed on the issue regarding records requests (Issue 2), and the ALJ ordered the Respondent to pay the Petitioner the $500 filing fee directly.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Remedy

Topic Tags

  • Remedies
  • Filing Fees
  • Costs

Question

Is the HOA required to allow in-person voting even if they want to hold virtual meetings?

Short Answer

Yes, the law requires providing for votes to be cast in person.

Detailed Answer

The decision highlights that state law requires the Board to allow members to vote in person, which was a factor in why the Board did not hold virtual-only meetings during the pandemic.

Alj Quote

The Board was required by law to allow members to vote in person.

Legal Basis

A.R.S. § 33-1250(C)

Topic Tags

  • Voting
  • In-Person Requirements
  • Virtual Meetings

Question

What standard of proof do I need to meet to prove my HOA violated the law?

Short Answer

You must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The burden of proof lies with the Petitioner to show that their contention is more probably true than not.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the Association’s Bylaws and applicable statutes by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A)

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Evidence

Question

Can the HOA withhold records just because I didn't ask for them in a specific format?

Short Answer

The request must be for records/copies; a general inquiry for information might not trigger the statutory obligation.

Detailed Answer

The ALJ distinguished between requests for information (like names of directors) and requests to examine or copy specific records. The decision noted that some initial correspondence 'did not include a request to examine records or to make copies of records.'

Alj Quote

Mr. Gray’s attorney requested that the Board respond in within 30 days of receipt of the letter. However, the letter did not include a request to examine records or to make copies of records.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Requests
  • Procedural Requirements

Case

Docket No
23F-H063-REL
Case Title
John W. Gray v. Mesa Coronado III Condominium Association
Decision Date
2023-09-20
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA fails to hold an annual meeting, do the current directors automatically lose their positions?

Short Answer

No. Directors typically continue to serve until a successor is elected or qualified.

Detailed Answer

The ALJ concluded that board members may serve successive terms and, in the absence of a new election (often due to lack of quorum), existing members continue to serve. The failure to hold a meeting does not automatically illegitimate the board.

Alj Quote

Directors of a non-profit organization may be elected for successive terms, unless otherwise provided for in the articles of incorporation or bylaws.

Legal Basis

A.R.S. § 10-3805(B)

Topic Tags

  • Board Legitimacy
  • Elections
  • Terms of Office

Question

Can I penalize my HOA for failing to hold meetings during a public health emergency like COVID-19?

Short Answer

Likely no, especially if the issue is resolved by the time of the hearing.

Detailed Answer

The ALJ found that failing to hold in-person meetings due to the pandemic was supported by the weight of evidence. Furthermore, because the HOA eventually held a meeting in 2023, the dispute regarding the missed meetings was considered moot.

Alj Quote

The weight of the evidence shows that the Board failed to hold in person board meetings from 2020 to 2022, due to the pandemic… Because there is no current dispute regarding the failure to hold an annual board meeting, the issue is now moot.

Legal Basis

Mootness Doctrine

Topic Tags

  • Meetings
  • COVID-19
  • Mootness

Question

Does the HOA have a valid excuse for not providing old meeting minutes if they claim they are hard to find?

Short Answer

No. The HOA must justify any failure to provide requested minutes.

Detailed Answer

The ALJ ruled against the HOA for failing to provide minutes from 2018 and 2019, noting that the HOA provided no evidence to justify this failure, despite arguments about the difficulty of production.

Alj Quote

Although there were no board meetings from 2020-2022, Respondent provide no evidence to justify its failure to provide copies of the minutes of Association meetings from 2018 to 2019.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Requests
  • Meeting Minutes
  • HOA Obligations

Question

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

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this case, the Petitioner prevailed on the issue regarding records requests (Issue 2), and the ALJ ordered the Respondent to pay the Petitioner the $500 filing fee directly.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Remedy

Topic Tags

  • Remedies
  • Filing Fees
  • Costs

Question

Is the HOA required to allow in-person voting even if they want to hold virtual meetings?

Short Answer

Yes, the law requires providing for votes to be cast in person.

Detailed Answer

The decision highlights that state law requires the Board to allow members to vote in person, which was a factor in why the Board did not hold virtual-only meetings during the pandemic.

Alj Quote

The Board was required by law to allow members to vote in person.

Legal Basis

A.R.S. § 33-1250(C)

Topic Tags

  • Voting
  • In-Person Requirements
  • Virtual Meetings

Question

What standard of proof do I need to meet to prove my HOA violated the law?

Short Answer

You must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

The burden of proof lies with the Petitioner to show that their contention is more probably true than not.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the Association’s Bylaws and applicable statutes by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A)

Topic Tags

  • Burden of Proof
  • Legal Standards
  • Evidence

Question

Can the HOA withhold records just because I didn't ask for them in a specific format?

Short Answer

The request must be for records/copies; a general inquiry for information might not trigger the statutory obligation.

Detailed Answer

The ALJ distinguished between requests for information (like names of directors) and requests to examine or copy specific records. The decision noted that some initial correspondence 'did not include a request to examine records or to make copies of records.'

Alj Quote

Mr. Gray’s attorney requested that the Board respond in within 30 days of receipt of the letter. However, the letter did not include a request to examine records or to make copies of records.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Requests
  • Procedural Requirements

Case

Docket No
23F-H063-REL
Case Title
John W. Gray v. Mesa Coronado III Condominium Association
Decision Date
2023-09-20
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • John W. Gray (petitioner)
    Mesa Coronado III Condominium Association (Member)
    Appeared on behalf of himself.
  • David Bacon (petitioner's attorney)
    Davis Ma Magcguire Gardner
    Wrote letter on behalf of Petitioner John W. Gray.

Respondent Side

  • Chad M. Gallacher (HOA attorney)
    HOALaw.biz
    Attorney for Mesa Coronado III Condominium Association.
  • Adriana Lacombe (Community Manager/Witness)
    Curtis Management
    Community Manager for Mesa Coronado III Condominium Association. Also referred to as Andrea Lome in testimony.
  • Jim Reid (property manager)
    Curtis Management
    Contact listed for Mesa Coronado III Condominium Association.
  • Rita Ali (board member/president)
    Mesa Coronado III Condominium Association
    Board President; reelected July 18, 2023.
  • Cassandra Miller (board member)
    Mesa Coronado III Condominium Association
    Appointed/elected board member.
  • Richard Randolph (board member)
    Mesa Coronado III Condominium Association
    Re-elected July 18, 2023.
  • Carl Fleming (former board member)
    Mesa Coronado III Condominium Association
    Moved out, creating a vacancy.
  • Derek Blackman (former board member/president)
    Mesa Coronado III Condominium Association
    Sold unit in 2016.

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official communication.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official communication.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official communication.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official communication.

Other Participants

  • Andrea West (proposed board member)
    Mesa Coronado III Condominium Association (Member)
    Requested appointment to the board in 2018; presence noted by Petitioner at 2018 meeting.
  • Jennifer Dulick (homeowner/member)
    Mesa Coronado III Condominium Association (Member)
    Attended 2018 annual meeting attempt.

Charlotte Tande v. Wintergardens Co-Operative

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Case Summary

Case ID 23F-H059-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-09-05
Administrative Law Judge Tammy L. Eigenheer
Outcome The case was dismissed because the Administrative Law Judge determined the Wintergardens Co-Operative, a cooperative mobile home park, did not qualify as a 'planned community' or 'condominium association' under Title 33, Chapter 9 or 16, thus the Arizona Department of Real Estate lacked jurisdiction to hear the dispute.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Charlotte Tande Counsel —
Respondent Wintergardens Co-Operative Counsel Beth Mulcahy, Esq.

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1810

Outcome Summary

The case was dismissed because the Administrative Law Judge determined the Wintergardens Co-Operative, a cooperative mobile home park, did not qualify as a 'planned community' or 'condominium association' under Title 33, Chapter 9 or 16, thus the Arizona Department of Real Estate lacked jurisdiction to hear the dispute.

Why this result: The Respondent was found not to be a 'Planned Community' because its shareholders were lessees, not owners of 'separately owned lots, parcels or units' as required by A.R.S. § 33-1802(4).

Key Issues & Findings

Open Meeting Requirements

Petitioner alleged Respondent failed to comply with the open meeting requirements of A.R.S. § 33-1804.

Orders: The case was dismissed after Respondent's Motion to Dismiss was granted.

Filing fee: $0.00

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 33-1802(4)
  • A.R.S. § 32-2199.01(A)

Financial Records Provision

Petitioner alleged Respondent failed to provide certain financial records as required by A.R.S. § 33-1810.

Orders: The case was dismissed after Respondent's Motion to Dismiss was granted.

Filing fee: $0.00

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1810
  • A.R.S. § 33-1802(4)
  • A.R.S. § 32-2199.01(A)

Video Overview

Audio Overview

Decision Documents

23F-H059-REL Decision – 1074375.pdf

Uploaded 2026-04-24T12:11:59 (45.4 KB)

23F-H059-REL Decision – 1089824.pdf

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23F-H059-REL Decision – 1089829.pdf

Uploaded 2026-04-24T12:12:12 (40.0 KB)

23F-H059-REL Decision – 1091579.pdf

Uploaded 2026-04-24T12:12:23 (38.0 KB)

23F-H059-REL Decision – 1074375.pdf

Uploaded 2026-01-23T17:59:07 (45.4 KB)

23F-H059-REL Decision – 1089824.pdf

Uploaded 2026-01-23T17:59:10 (83.6 KB)

23F-H059-REL Decision – 1089829.pdf

Uploaded 2026-01-23T17:59:13 (40.0 KB)

23F-H059-REL Decision – 1091579.pdf

Uploaded 2026-01-23T17:59:17 (38.0 KB)

This summary details the proceedings, key arguments, and final decision in the case of *Charlotte Tande vs. Wintergardens Co-Operative*, No. 23F-H059-REL, heard before the Office of Administrative Hearings (OAH).

Key Facts and Procedural History

The Petitioner, Charlotte Tande, is a shareholder and lessee of a property within the Respondent, Wintergardens Co-Operative, a non-profit corporation operating a cooperative mobile home and R.V. Park in Yuma, Arizona. Petitioner filed a two-issue petition with the Arizona Department of Real Estate (Department) alleging the Respondent failed to comply with: 1) open meeting requirements (A.R.S. § 33-1804), and 2) the requirement to provide certain financial records (A.R.S. § 33-1810). The Department referred the petition to the OAH for an evidentiary hearing.

Main Issues and Arguments

The central legal issue was whether the Wintergardens Co-Operative was subject to the provisions of the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16).

  1. Respondent's Position: Wintergardens Co-Operative filed a Motion to Dismiss arguing that it is not a "Planned Community" as defined in A.R.S. § 33-1802(4). Respondent asserted that its shareholders are lessees under a Proprietary Lease, not owners of "separately owned lots, parcels or units," which is a requirement for a Planned Community designation.
  2. Petitioner's Position: Petitioner argued in response that Wintergardens was a "Planned Community" and was therefore required to comply with the relevant statutes. Petitioner asserted that shareholders were "Lessees and OWNERS under a proprietary Lease," although she did not identify what the shareholders owned other than a share of the co-operative.

Key Legal Points and Outcome

The Administrative Law Judge (ALJ) reviewed the Motion, Response, and Reply.

The statutes granting the Department and OAH jurisdiction (A.R.S. § 32-2199.01(A)) are limited to hearing disputes between an owner and a condominium association or a planned community association. Therefore, for the OAH to have jurisdiction, the Respondent had to qualify as one of these entities.

The ALJ analyzed the definition of a "Planned Community" (A.R.S. § 33-1802(4)), which explicitly requires that the declaration state that the owners of separately owned lots, parcels or units are mandatory members. The ALJ concluded that, while shareholders may own a share of the co-operative entity, nothing in the pleadings indicated they were owners of any "separately owned lots, parcels or units".

Conclusion of Law: The ALJ determined that Respondent’s cooperative does not fall within the definition of a planned community because its purposes and functions are separate and distinct.

Final Decision: Because Wintergardens Co-Operative does not meet the definition of a planned community, the Department lacked jurisdiction to hear the dispute between the Petitioner and the Respondent. The Order granted the Respondent’s Motion to Dismiss, and the scheduled hearing was vacated from the calendar. This Order, issued September 5, 2023, is binding unless a rehearing is requested within 30 days.

{ “case”: { “docket_no”: “23F-H059-REL”, “case_title”: “Charlotte Tande vs. Wintergardens Co-Operative”, “decision_date”: “2023-09-05”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction to hear disputes regarding housing cooperatives?”, “short_answer”: “No, not if the cooperative does not meet the legal definition of a ‘planned community’ or ‘condominium.'”, “detailed_answer”: “The Department only has jurisdiction over disputes involving condominium associations or planned community associations. If a housing cooperative does not fit the statutory definition of these entities (e.g., shareholders are lessees rather than owners of separate lots), the Department cannot hear the dispute.”, “alj_quote”: “Therefore, because Respondent does not fall within the definition of a planned community, the Department does not have jurisdiction to hear a dispute between Petitioner and Respondent.”, “legal_basis”: “A.R.S. § 32-2199.01(A); A.R.S. § 33-1802(4)”, “topic_tags”: [ “Jurisdiction”, “Cooperatives”, “Planned Community Definition” ] }, { “question”: “If I have a proprietary lease in a cooperative, am I considered an ‘owner’ for the purpose of filing an HOA dispute?”, “short_answer”: “Likely not, unless you hold title to a separately owned lot, parcel, or unit.”, “detailed_answer”: “Even if you own a share of the cooperative corporation, if you are a lessee under a proprietary lease and do not own a separate lot or unit, you may not meet the definition of an owner required to classify the community as a ‘planned community’ under Arizona law.”, “alj_quote”: “While the shareholders may be owners of a share of Respondent as an entity, nothing in any of the pleadings indicated that the shareholders were owners of any ‘separately owned lots, parcels or units.'”, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Ownership Status”, “Lease vs Ownership”, “Definitions” ] }, { “question”: “What is the legal definition of a ‘Planned Community’ in Arizona?”, “short_answer”: “It is a development where owners of separately owned lots are mandatory members of an association and must pay assessments.”, “detailed_answer”: “A planned community is defined as a real estate development managed by a nonprofit corporation where the declaration states that owners of separately owned lots, parcels, or units are mandatory members and are required to pay assessments.”, “alj_quote”: ““Planned community” means a real estate development… in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.“, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Definitions”, “Planned Community” ] }, { “question”: “Can the Administrative Law Judge give me legal advice if I am representing myself?”, “short_answer”: “No, the Office of Administrative Hearings cannot provide legal advice to parties.”, “detailed_answer”: “The ALJ must remain neutral and cannot offer guidance or legal advice to either party involved in the dispute.”, “alj_quote”: “To the extent Petitioner was asking the Administrative Law Judge for guidance, the Office of Administrative Hearings cannot provide parties with legal advice.”, “legal_basis”: “Procedural Rule”, “topic_tags”: [ “Procedural”, “Legal Advice”, “OAH Role” ] }, { “question”: “What happens to my hearing if the judge determines the community is not a planned community?”, “short_answer”: “The case will be dismissed and the hearing vacated.”, “detailed_answer”: “If the judge finds that the community does not meet the statutory definition of a planned community or condominium, the ADRE/OAH lacks subject matter jurisdiction, and the motion to dismiss will be granted.”, “alj_quote”: “IT IS ORDERED granting Respondent’s Motion to Dismiss. The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.”, “legal_basis”: “Jurisdiction”, “topic_tags”: [ “Dismissal”, “Hearing Process”, “Jurisdiction” ] } ] }

{ “case”: { “docket_no”: “23F-H059-REL”, “case_title”: “Charlotte Tande vs. Wintergardens Co-Operative”, “decision_date”: “2023-09-05”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction to hear disputes regarding housing cooperatives?”, “short_answer”: “No, not if the cooperative does not meet the legal definition of a ‘planned community’ or ‘condominium.'”, “detailed_answer”: “The Department only has jurisdiction over disputes involving condominium associations or planned community associations. If a housing cooperative does not fit the statutory definition of these entities (e.g., shareholders are lessees rather than owners of separate lots), the Department cannot hear the dispute.”, “alj_quote”: “Therefore, because Respondent does not fall within the definition of a planned community, the Department does not have jurisdiction to hear a dispute between Petitioner and Respondent.”, “legal_basis”: “A.R.S. § 32-2199.01(A); A.R.S. § 33-1802(4)”, “topic_tags”: [ “Jurisdiction”, “Cooperatives”, “Planned Community Definition” ] }, { “question”: “If I have a proprietary lease in a cooperative, am I considered an ‘owner’ for the purpose of filing an HOA dispute?”, “short_answer”: “Likely not, unless you hold title to a separately owned lot, parcel, or unit.”, “detailed_answer”: “Even if you own a share of the cooperative corporation, if you are a lessee under a proprietary lease and do not own a separate lot or unit, you may not meet the definition of an owner required to classify the community as a ‘planned community’ under Arizona law.”, “alj_quote”: “While the shareholders may be owners of a share of Respondent as an entity, nothing in any of the pleadings indicated that the shareholders were owners of any ‘separately owned lots, parcels or units.'”, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Ownership Status”, “Lease vs Ownership”, “Definitions” ] }, { “question”: “What is the legal definition of a ‘Planned Community’ in Arizona?”, “short_answer”: “It is a development where owners of separately owned lots are mandatory members of an association and must pay assessments.”, “detailed_answer”: “A planned community is defined as a real estate development managed by a nonprofit corporation where the declaration states that owners of separately owned lots, parcels, or units are mandatory members and are required to pay assessments.”, “alj_quote”: ““Planned community” means a real estate development… in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.“, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Definitions”, “Planned Community” ] }, { “question”: “Can the Administrative Law Judge give me legal advice if I am representing myself?”, “short_answer”: “No, the Office of Administrative Hearings cannot provide legal advice to parties.”, “detailed_answer”: “The ALJ must remain neutral and cannot offer guidance or legal advice to either party involved in the dispute.”, “alj_quote”: “To the extent Petitioner was asking the Administrative Law Judge for guidance, the Office of Administrative Hearings cannot provide parties with legal advice.”, “legal_basis”: “Procedural Rule”, “topic_tags”: [ “Procedural”, “Legal Advice”, “OAH Role” ] }, { “question”: “What happens to my hearing if the judge determines the community is not a planned community?”, “short_answer”: “The case will be dismissed and the hearing vacated.”, “detailed_answer”: “If the judge finds that the community does not meet the statutory definition of a planned community or condominium, the ADRE/OAH lacks subject matter jurisdiction, and the motion to dismiss will be granted.”, “alj_quote”: “IT IS ORDERED granting Respondent’s Motion to Dismiss. The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.”, “legal_basis”: “Jurisdiction”, “topic_tags”: [ “Dismissal”, “Hearing Process”, “Jurisdiction” ] } ] }

Case Participants

Petitioner Side

  • Charlotte Tande (petitioner)

Respondent Side

  • Beth Mulcahy (attorney)
    Mulcahy Law Firm, PC
    Esq.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Signed Orders dated July 18, 2023 and September 5, 2023
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Alyssa Leverette (ALJ)
    Office of Administrative Hearings
    Signed Minute Entry granting continuance dated September 5, 2023
  • AHansen (staff)
    Arizona Department of Real Estate
    Listed as contact/recipient for transmissions
  • vnunez (staff)
    Arizona Department of Real Estate
    Listed as contact/recipient for transmissions
  • djones (staff)
    Arizona Department of Real Estate
    Listed as contact/recipient for transmissions
  • labril (staff)
    Arizona Department of Real Estate
    Listed as contact/recipient for transmissions