The ALJ found that the Petitioner did not establish a violation of the Respondent's CC&Rs and recommended the petition be denied. The ALJ specifically noted the lack of proof that fees were inappropriate and that Petitioner failed to provide legal authority requiring equal benefit. The petition was denied, and the Respondent was not ordered to pay the Petitioner's filing fee.
Why this result: The Petitioner failed to meet the burden of proof required to establish a violation of the CC&Rs.
Key Issues & Findings
Alleged violation of CC&Rs regarding disproportionate assessment fees
Petitioner alleged Respondent was in violation of its CC&Rs because Master HOA fees were disproportionately borne by existing homeowners and did not benefit the whole development equally. Petitioner failed to establish a violation because required evidentiary documents (plat attached as 'Exhibit B') were missing, and Petitioner offered no legal authority requiring fees to be equally beneficial or even-handed.
Orders: Petitioner's petition is denied. Respondent shall not pay the filing fee required by section 32-2199.01 to the Petitioner.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.A.C. R2-19-119(B)
Analytics Highlights
Topics: CC&Rs, Master HOA, Assessment Fees, Common Areas, Burden of Proof, Rule Against Perpetuities
Additional Citations:
A.R.S. § 32-2199
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
17F-H1717033-REL Decision – 575166.pdf
Uploaded 2026-01-23T17:20:21 (39.1 KB)
17F-H1717033-REL Decision – 582189.pdf
Uploaded 2026-01-23T17:20:24 (69.4 KB)
17F-H1717033-REL Decision – 584918.pdf
Uploaded 2026-01-23T17:20:27 (674.1 KB)
Briefing Doc – 17F-H1717033-REL
Administrative Hearing Briefing: Janicek v. Sycamore Vista No. 8 HOA
Executive Summary
This briefing document synthesizes the key findings and legal proceedings in case number 17F-H1717033-REL, wherein Petitioner Jay Janicek filed a complaint against Respondent Sycamore Vista No. 8 HOA. The petition was ultimately denied by an Administrative Law Judge (ALJ), a decision formally adopted and finalized by the Commissioner of the Arizona Department of Real Estate.
The core of the dispute centered on the Petitioner’s allegation that the HOA’s fee structure violated its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Janicek argued that payments made by his first-level association to a master association for common area expenses—most egregiously for a roadway loan—were improper because the benefits were not distributed equally among all homeowners.
The denial of the petition hinged on a critical failure of proof by the Petitioner. The CC&Rs define “Common Areas” by referencing a plat map (“Exhibit B”) that was not submitted into evidence by the Petitioner. Without this crucial document, it was impossible to prove that the fees collected by the HOA were for purposes outside the scope of the CC&Rs. Furthermore, the Petitioner failed to provide any legal authority or provision within the governing documents requiring that association fees be “even-handed or equally beneficial to all homeowners.” A secondary argument regarding the “rule against perpetuities,” introduced post-hearing, was also addressed and dismissed by the ALJ as legally inapplicable to the matter.
Case Overview
The following table outlines the principal parties and details of the administrative hearing.
Case Detail
Information
Petitioner
Jay Janicek
Respondent
Sycamore Vista No. 8 HOA
Respondent’s Counsel
Evan Thompson, Thompson Krone PLC
Respondent’s Representative
Steve Russo
Case Number
17F-H1717033-REL
Docket Number
17F-H1717033-REL
Hearing Date
July 12, 2017
Presiding Judge
Dorinda M. Lang, Administrative Law Judge
Hearing Observers
John Shields, Margery and Mathew Janicek
Petitioner’s Allegations
The petition filed by Jay Janicek alleged that Sycamore Vista No. 8 HOA was in violation of its governing CC&Rs. The central arguments presented were:
• Unequal Distribution of Costs and Benefits: The Petitioner contended that expenses paid by the Respondent association to the Sycamore Vista Master Home Owner’s Association (“Master HOA”) did not benefit all homeowners equally. The most “egregious” example cited was the payment toward a loan for a roadway within the master development.
• Violation of CC&Rs: The Petitioner argued that this unequal cost burden was a direct violation of Article 11, Section 11.5 of the Respondent’s CC&Rs. This section stipulates:
• Discrepancy Among Associations: The Petitioner asserted that another first-level association within the master development receives more benefit from the common areas but does not pay into the Master HOA.
• Rule Against Perpetuities: In a post-hearing submission, the Petitioner introduced a new argument that a “rule against perpetuities” was at stake in the matter.
Adjudication and Findings of Fact
The Administrative Law Judge’s decision was based on the Petitioner’s failure to meet the required burden of proof through a preponderance of the evidence.
Evidentiary Failure
The Petitioner’s case failed primarily due to a lack of sufficient evidence to prove a violation of the CC&Rs.
• Missing ‘Exhibit B’: The definition of “Common Areas” was essential to the case. According to Article 1, Section 1.6 of the CC&Rs, these areas are delineated on a plat that was supposed to be attached as “Exhibit B.”
• Critical Finding: The ALJ noted, “Unfortunately, there was no plat attached to the document that was offered into evidence and it was not to be found among the other exhibits. Therefore, Petitioner was unable to establish that Respondent’s fees pay for anything that is not provided for in the CC&Rs.”
• Petitioner’s Concession: The Petitioner did not dispute the Respondent’s argument that the Master HOA fees, including those for roads, were for Common Areas.
Lack of Legal Authority
The Petitioner’s core premise—that fees must be proportional to benefits received—was not substantiated by legal or documentary support.
• The ALJ found that the “Petitioner offered no legal authority that requires that all first level associations must pay the same into a master association or that all homeowners must receive the same benefit from or contribute the same amount (or even a proportionate share) to the common areas.”
• The argument that association fees were “disproportionately heavy” was not established to be a violation of any provision in the CC&Rs.
Post-Hearing Submissions
The record was held open until August 1, 2017, allowing for additional documentation from both parties.
• Petitioner (Exhibit 6): Submitted financial documentation, emails, and the argument concerning the rule against perpetuities.
• Respondent (Exhibit H): Submitted a Notice of Lien and attachments. This exhibit demonstrated that, regarding a lien for water services on properties not part of the Respondent HOA, the “Respondent’s homeowners are not responsible for it.”
Conclusions of Law and Final Decision
Based on the evidence and arguments presented, the ALJ denied the petition, a decision later finalized by the Arizona Department of Real Estate.
Denial of Petition
• The primary conclusion of law was that the “Petitioner has not established that Respondent is in violation of its CC&Rs.”
• The payment for Common Areas was found to be in comportment with the CC&Rs.
Rejection of Key Arguments
• Equal Benefit: The ALJ explicitly concluded: “Petitioner has offered no legal authority or provision of the CC&Rs that requires the association fees to be even-handed or equally beneficial to all homeowners.”
• Rule Against Perpetuities: While this argument was not part of the original petition, the ALJ addressed it to “lay a concern to rest.” The judge explained that the rule, which states that property ownership must vest within a lifetime plus 21 years, evolved from estate law and does not apply to HOA property sales where ownership vests immediately in the developer or a new owner. The judge concluded, “the rule against perpetuities does not apply to a homeowner’s association and it clearly does not apply in this matter.”
Timeline of Orders
1. July 12, 2017: An “Order Holding Record Open” was issued by ALJ Dorinda M. Lang.
2. August 14, 2017: The “Administrative Law Judge Decision” was issued, ordering that the Petitioner’s petition be denied.
3. August 21, 2017: A “Final Order” was issued by Judy Lowe, Commissioner of the Department of Real Estate, adopting the ALJ’s decision and officially denying the petition.
Post-Decision Procedures
The Final Order, effective August 21, 2017, concluded the administrative action and outlined the subsequent options available to the parties.
• The order is binding unless a rehearing is granted. A request for rehearing must be filed within 30 days of the service of the final order.
• A rehearing may be granted for the following causes:
1. Irregularity in the proceedings or any order or abuse of discretion that deprived a party of a fair hearing.
2. Misconduct by the Department, ALJ, or the prevailing party.
3. Accident or surprise that could not have been prevented by ordinary prudence.
4. Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.
7. The findings of fact or decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact or decision is not supported by the evidence or is contrary to law.
• Parties may appeal the final administrative action by filing a complaint for judicial review.
Study Guide – 17F-H1717033-REL
Study Guide: Janicek v. Sycamore Vista No. 8 HOA
This guide provides a comprehensive review of the administrative hearing case No. 17F-H1717033-REL, Jay Janicek v. Sycamore Vista No. 8 HOA. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, based on the information provided in the case documents.
1. Who were the primary parties in this legal matter, and what were their designated roles?
2. What was the central allegation made by the Petitioner against the Respondent?
3. Which specific article and section of the Covenants, Conditions, and Restrictions (CC&Rs) did the Petitioner claim the Respondent had violated?
4. Explain the key piece of evidence that was missing and why its absence was critical to the case’s outcome.
5. What was the Respondent’s main argument regarding the fees paid to the Master HOA?
6. According to the case documents, who held the burden of proof, and what was the required standard of proof?
7. What was the “rule against perpetuities,” and what reason did the Administrative Law Judge give for its inapplicability to this case?
8. What was the ultimate decision of the Administrative Law Judge, and on what date was it issued?
9. After the hearing, the record was held open. What was the purpose of this, and what types of materials were submitted by the parties during this period?
10. What action did the Commissioner of the Department of Real Estate take after receiving the Administrative Law Judge’s decision?
——————————————————————————–
Answer Key
1. The primary parties were Jay Janicek, designated as the Petitioner, and Sycamore Vista No. 8 HOA, designated as the Respondent. The Petitioner is the party who filed the complaint, and the Respondent is the party against whom the complaint was filed.
2. The Petitioner alleged that the Respondent HOA was in violation of its CC&Rs. He argued that the fees his association paid to the Master HOA for a roadway loan did not benefit the whole development equally and were therefore inappropriate expenses for all homeowners to pay.
3. The Petitioner cited Article 11, Section 11.5 of the Respondent’s CC&Rs. This section, titled “Costs of Improvements,” details how the costs for improving Unimproved Lots and Common Areas in Phase 3 and Phase 4 are to be borne by the owners of lots within those specific phases.
4. The key missing evidence was a plat, referred to as “Exhibit B” in the CC&Rs. This plat was supposed to define the “Common Areas,” and without it, the Petitioner was unable to establish that the fees paid by the Respondent were for anything not provided for in the governing documents.
5. The Respondent argued that the Master HOA fees were used to pay for the development’s common areas. They maintained that the CC&Rs permit these payments and that there is no legal authority requiring all homeowners to receive the same benefit or for all first-level associations to contribute equally.
6. Pursuant to A.A.C. R2-19-119(B), the Petitioner, Jay Janicek, had the burden of proof in this matter. The standard of proof was a preponderance of the evidence, as established by A.A.C. R2-19-119(A).
7. The rule against perpetuities states that property ownership must vest within a time frame of an existing lifetime plus 21 years. The Judge ruled it did not apply because it evolved to handle estates bequeathed to a series of heirs and is not generally applicable to property sales where rights transfer at once; in the HOA’s case, ownership of undeveloped lots had already vested in the developer.
8. The Administrative Law Judge ordered that the Petitioner’s petition be denied. This decision was made on August 14, 2017.
9. The record was held open until August 1, 2017, to allow the Respondent to submit additional documentation and for the Petitioner to submit written objections. During this time, the Petitioner submitted financial documentation, emails, and a new argument about the rule against perpetuities (admitted as Exhibit 6), while the Respondent submitted a Notice of Lien (admitted as Exhibit H).
10. The Commissioner of the Department of Real Estate, Judy Lowe, adopted the Administrative Law Judge’s decision. This was formalized in a Final Order dated August 21, 2017, which accepted the ALJ’s recommendation and denied the Petitioner’s petition.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a detailed essay-style response for each.
1. Analyze the critical evidentiary failure that led to the denial of Jay Janicek’s petition. How did the absence of the plat referred to as “Exhibit B” directly impact his ability to meet the “preponderance of the evidence” standard of proof?
2. Discuss the legal reasoning behind the Administrative Law Judge’s conclusion that there is no requirement for HOA fees to be “even-handed or equally beneficial to all homeowners.” How does this principle relate to the hierarchical structure of Master and first-level associations described in the case?
3. Explain the concept of the “rule against perpetuities” as described in the legal decision. Detail why the Administrative Law Judge, despite noting the argument was outside the original petition, addressed it and ultimately found it inapplicable to the case of a homeowner’s association.
4. Trace the procedural path of this case from the initial hearing to the final binding order. Identify the key dates, decisions, and entities involved at each stage, including the Office of Administrative Hearings and the Department of Real Estate.
5. Based on the Final Order, outline the process and potential grounds for requesting a rehearing. What were the eight specific causes listed in the order that could materially affect a moving party’s rights and justify a rehearing or review?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, Dorinda M. Lang served as the ALJ.
A.A.C.
Abbreviation for Arizona Administrative Code, a compilation of rules and regulations of Arizona state agencies.
A.R.S.
Abbreviation for Arizona Revised Statutes, the collection of all the laws of the state of Arizona.
Areas of Association Responsibility
Locations that the Homeowner’s Association is responsible for maintaining, as defined within its governing documents.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.
Common Areas
Areas within a housing development that are owned by the association for the use and benefit of all homeowners. The definition of these areas was a central issue in the case.
Commissioner
The head of a government department. In this context, Judy Lowe, the Commissioner of the Arizona Department of Real Estate, who adopted the ALJ’s decision.
First Level Association
An individual homeowner’s association within a larger development that also has a master association. The Respondent, Sycamore Vista No. 8 HOA, is a first level association.
Master HOA
The Sycamore Vista Master Home Owner’s Association. An overarching organization that governs expenses and common areas concerning an entire development composed of multiple first-level associations.
Office of Administrative Hearings (OAH)
The state agency that conducts administrative hearings for other state agencies. This case was referred to the OAH by the Department of Real Estate.
Petitioner
The party who files a petition or brings an action in a legal proceeding. In this case, Jay Janicek.
A map, drawn to scale, showing the divisions of a piece of land. The missing plat in this case was intended to show the “Common Areas.”
Preponderance of the Evidence
The standard of proof in most civil cases. It requires that the evidence shows a claim is more likely to be true than not true.
Respondent
The party against whom a petition is filed or who is responding to a legal action. In this case, Sycamore Vista No. 8 HOA.
Rule Against Perpetuities
A legal rule that prevents a property owner from controlling the disposition of their property for an indefinite period after their death. The ALJ found it did not apply in this HOA context.
Unimproved Lot Assessments
Fees imposed on the owners of undeveloped lots to pay for the costs of improving certain areas, as described in Section 6.13 of the CC&Rs.
Unimproved Lots
Parcels of land within the development that have not yet been built upon.
Blog Post – 17F-H1717033-REL
Select all sources
575166.pdf
582189.pdf
584918.pdf
No emoji found
Loading
17F-H1717033-REL
3 sources
These documents chronicle the legal proceedings of a dispute between Jay Janicek, the Petitioner, and Sycamore Vista No. 8 HOA, the Respondent, before the Office of Administrative Hearings. The first source is an “Order Holding Record Open,” dated July 12, 2017, which temporarily extends the deadline for submitting additional evidence. The subsequent sources contain the “Administrative Law Judge Decision” issued on August 14, 2017, which outlines the hearing details and the judge’s recommendation to deny the petition because Janicek failed to establish a violation of the HOA’s Covenants, Conditions, and Restrictions. Finally, the third document presents the “Final Order” from the Department of Real Estate Commissioner on August 21, 2017, which accepts and affirms the Administrative Law Judge’s decision to deny the petition. Janicek’s core claim argued that certain master association fees were disproportionately applied and did not benefit all homeowners equally, which the judge ultimately dismissed due to a lack of supporting legal authority or CC&R provisions.
Based on 3 sources
Case Participants
Petitioner Side
Jay Janicek(petitioner)
Respondent Side
Evan Thompson(HOA attorney) Thompson Krone PLC Attorney for Respondent
Steve Russo(respondent representative)
Neutral Parties
Dorinda M. Lang(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
Dan Gardner(HOA Coordinator) Office of Administrative Hearings Addressee for rehearing request
Other Participants
John Shields(observer)
Margery Janicek(observer)
Mathew Janicek(observer)
M. Aguirre(unknown) Thompson Krone PLC Listed on transmittal documents
The ALJ found that the Petitioner did not establish a violation of the Respondent's CC&Rs and recommended the petition be denied. The ALJ specifically noted the lack of proof that fees were inappropriate and that Petitioner failed to provide legal authority requiring equal benefit. The petition was denied, and the Respondent was not ordered to pay the Petitioner's filing fee.
Why this result: The Petitioner failed to meet the burden of proof required to establish a violation of the CC&Rs.
Key Issues & Findings
Alleged violation of CC&Rs regarding disproportionate assessment fees
Petitioner alleged Respondent was in violation of its CC&Rs because Master HOA fees were disproportionately borne by existing homeowners and did not benefit the whole development equally. Petitioner failed to establish a violation because required evidentiary documents (plat attached as 'Exhibit B') were missing, and Petitioner offered no legal authority requiring fees to be equally beneficial or even-handed.
Orders: Petitioner's petition is denied. Respondent shall not pay the filing fee required by section 32-2199.01 to the Petitioner.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.A.C. R2-19-119(B)
Analytics Highlights
Topics: CC&Rs, Master HOA, Assessment Fees, Common Areas, Burden of Proof, Rule Against Perpetuities
Additional Citations:
A.R.S. § 32-2199
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.A.C. R2-19-119
Audio Overview
Decision Documents
17F-H1717033-REL Decision – 575166.pdf
Uploaded 2025-10-08T06:57:56 (39.1 KB)
17F-H1717033-REL Decision – 582189.pdf
Uploaded 2025-10-08T06:57:57 (69.4 KB)
17F-H1717033-REL Decision – 584918.pdf
Uploaded 2025-10-08T06:57:58 (674.1 KB)
Briefing Doc – 17F-H1717033-REL
Administrative Hearing Briefing: Janicek v. Sycamore Vista No. 8 HOA
Executive Summary
This briefing document synthesizes the key findings and legal proceedings in case number 17F-H1717033-REL, wherein Petitioner Jay Janicek filed a complaint against Respondent Sycamore Vista No. 8 HOA. The petition was ultimately denied by an Administrative Law Judge (ALJ), a decision formally adopted and finalized by the Commissioner of the Arizona Department of Real Estate.
The core of the dispute centered on the Petitioner’s allegation that the HOA’s fee structure violated its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Janicek argued that payments made by his first-level association to a master association for common area expenses—most egregiously for a roadway loan—were improper because the benefits were not distributed equally among all homeowners.
The denial of the petition hinged on a critical failure of proof by the Petitioner. The CC&Rs define “Common Areas” by referencing a plat map (“Exhibit B”) that was not submitted into evidence by the Petitioner. Without this crucial document, it was impossible to prove that the fees collected by the HOA were for purposes outside the scope of the CC&Rs. Furthermore, the Petitioner failed to provide any legal authority or provision within the governing documents requiring that association fees be “even-handed or equally beneficial to all homeowners.” A secondary argument regarding the “rule against perpetuities,” introduced post-hearing, was also addressed and dismissed by the ALJ as legally inapplicable to the matter.
Case Overview
The following table outlines the principal parties and details of the administrative hearing.
Case Detail
Information
Petitioner
Jay Janicek
Respondent
Sycamore Vista No. 8 HOA
Respondent’s Counsel
Evan Thompson, Thompson Krone PLC
Respondent’s Representative
Steve Russo
Case Number
17F-H1717033-REL
Docket Number
17F-H1717033-REL
Hearing Date
July 12, 2017
Presiding Judge
Dorinda M. Lang, Administrative Law Judge
Hearing Observers
John Shields, Margery and Mathew Janicek
Petitioner’s Allegations
The petition filed by Jay Janicek alleged that Sycamore Vista No. 8 HOA was in violation of its governing CC&Rs. The central arguments presented were:
• Unequal Distribution of Costs and Benefits: The Petitioner contended that expenses paid by the Respondent association to the Sycamore Vista Master Home Owner’s Association (“Master HOA”) did not benefit all homeowners equally. The most “egregious” example cited was the payment toward a loan for a roadway within the master development.
• Violation of CC&Rs: The Petitioner argued that this unequal cost burden was a direct violation of Article 11, Section 11.5 of the Respondent’s CC&Rs. This section stipulates:
• Discrepancy Among Associations: The Petitioner asserted that another first-level association within the master development receives more benefit from the common areas but does not pay into the Master HOA.
• Rule Against Perpetuities: In a post-hearing submission, the Petitioner introduced a new argument that a “rule against perpetuities” was at stake in the matter.
Adjudication and Findings of Fact
The Administrative Law Judge’s decision was based on the Petitioner’s failure to meet the required burden of proof through a preponderance of the evidence.
Evidentiary Failure
The Petitioner’s case failed primarily due to a lack of sufficient evidence to prove a violation of the CC&Rs.
• Missing ‘Exhibit B’: The definition of “Common Areas” was essential to the case. According to Article 1, Section 1.6 of the CC&Rs, these areas are delineated on a plat that was supposed to be attached as “Exhibit B.”
• Critical Finding: The ALJ noted, “Unfortunately, there was no plat attached to the document that was offered into evidence and it was not to be found among the other exhibits. Therefore, Petitioner was unable to establish that Respondent’s fees pay for anything that is not provided for in the CC&Rs.”
• Petitioner’s Concession: The Petitioner did not dispute the Respondent’s argument that the Master HOA fees, including those for roads, were for Common Areas.
Lack of Legal Authority
The Petitioner’s core premise—that fees must be proportional to benefits received—was not substantiated by legal or documentary support.
• The ALJ found that the “Petitioner offered no legal authority that requires that all first level associations must pay the same into a master association or that all homeowners must receive the same benefit from or contribute the same amount (or even a proportionate share) to the common areas.”
• The argument that association fees were “disproportionately heavy” was not established to be a violation of any provision in the CC&Rs.
Post-Hearing Submissions
The record was held open until August 1, 2017, allowing for additional documentation from both parties.
• Petitioner (Exhibit 6): Submitted financial documentation, emails, and the argument concerning the rule against perpetuities.
• Respondent (Exhibit H): Submitted a Notice of Lien and attachments. This exhibit demonstrated that, regarding a lien for water services on properties not part of the Respondent HOA, the “Respondent’s homeowners are not responsible for it.”
Conclusions of Law and Final Decision
Based on the evidence and arguments presented, the ALJ denied the petition, a decision later finalized by the Arizona Department of Real Estate.
Denial of Petition
• The primary conclusion of law was that the “Petitioner has not established that Respondent is in violation of its CC&Rs.”
• The payment for Common Areas was found to be in comportment with the CC&Rs.
Rejection of Key Arguments
• Equal Benefit: The ALJ explicitly concluded: “Petitioner has offered no legal authority or provision of the CC&Rs that requires the association fees to be even-handed or equally beneficial to all homeowners.”
• Rule Against Perpetuities: While this argument was not part of the original petition, the ALJ addressed it to “lay a concern to rest.” The judge explained that the rule, which states that property ownership must vest within a lifetime plus 21 years, evolved from estate law and does not apply to HOA property sales where ownership vests immediately in the developer or a new owner. The judge concluded, “the rule against perpetuities does not apply to a homeowner’s association and it clearly does not apply in this matter.”
Timeline of Orders
1. July 12, 2017: An “Order Holding Record Open” was issued by ALJ Dorinda M. Lang.
2. August 14, 2017: The “Administrative Law Judge Decision” was issued, ordering that the Petitioner’s petition be denied.
3. August 21, 2017: A “Final Order” was issued by Judy Lowe, Commissioner of the Department of Real Estate, adopting the ALJ’s decision and officially denying the petition.
Post-Decision Procedures
The Final Order, effective August 21, 2017, concluded the administrative action and outlined the subsequent options available to the parties.
• The order is binding unless a rehearing is granted. A request for rehearing must be filed within 30 days of the service of the final order.
• A rehearing may be granted for the following causes:
1. Irregularity in the proceedings or any order or abuse of discretion that deprived a party of a fair hearing.
2. Misconduct by the Department, ALJ, or the prevailing party.
3. Accident or surprise that could not have been prevented by ordinary prudence.
4. Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.
7. The findings of fact or decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact or decision is not supported by the evidence or is contrary to law.
• Parties may appeal the final administrative action by filing a complaint for judicial review.
The ALJ found that the Petitioner did not establish a violation of the Respondent's CC&Rs and recommended the petition be denied. The ALJ specifically noted the lack of proof that fees were inappropriate and that Petitioner failed to provide legal authority requiring equal benefit. The petition was denied, and the Respondent was not ordered to pay the Petitioner's filing fee.
Why this result: The Petitioner failed to meet the burden of proof required to establish a violation of the CC&Rs.
Key Issues & Findings
Alleged violation of CC&Rs regarding disproportionate assessment fees
Petitioner alleged Respondent was in violation of its CC&Rs because Master HOA fees were disproportionately borne by existing homeowners and did not benefit the whole development equally. Petitioner failed to establish a violation because required evidentiary documents (plat attached as 'Exhibit B') were missing, and Petitioner offered no legal authority requiring fees to be equally beneficial or even-handed.
Orders: Petitioner's petition is denied. Respondent shall not pay the filing fee required by section 32-2199.01 to the Petitioner.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.A.C. R2-19-119(B)
Analytics Highlights
Topics: CC&Rs, Master HOA, Assessment Fees, Common Areas, Burden of Proof, Rule Against Perpetuities
Additional Citations:
A.R.S. § 32-2199
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.A.C. R2-19-119
Audio Overview
Decision Documents
17F-H1717033-REL Decision – 575166.pdf
Uploaded 2025-10-08T07:02:10 (39.1 KB)
17F-H1717033-REL Decision – 582189.pdf
Uploaded 2025-10-08T07:02:11 (69.4 KB)
17F-H1717033-REL Decision – 584918.pdf
Uploaded 2025-10-08T07:02:11 (674.1 KB)
Briefing Doc – 17F-H1717033-REL
Administrative Hearing Briefing: Janicek v. Sycamore Vista No. 8 HOA
Executive Summary
This briefing document synthesizes the key findings and legal proceedings in case number 17F-H1717033-REL, wherein Petitioner Jay Janicek filed a complaint against Respondent Sycamore Vista No. 8 HOA. The petition was ultimately denied by an Administrative Law Judge (ALJ), a decision formally adopted and finalized by the Commissioner of the Arizona Department of Real Estate.
The core of the dispute centered on the Petitioner’s allegation that the HOA’s fee structure violated its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Janicek argued that payments made by his first-level association to a master association for common area expenses—most egregiously for a roadway loan—were improper because the benefits were not distributed equally among all homeowners.
The denial of the petition hinged on a critical failure of proof by the Petitioner. The CC&Rs define “Common Areas” by referencing a plat map (“Exhibit B”) that was not submitted into evidence by the Petitioner. Without this crucial document, it was impossible to prove that the fees collected by the HOA were for purposes outside the scope of the CC&Rs. Furthermore, the Petitioner failed to provide any legal authority or provision within the governing documents requiring that association fees be “even-handed or equally beneficial to all homeowners.” A secondary argument regarding the “rule against perpetuities,” introduced post-hearing, was also addressed and dismissed by the ALJ as legally inapplicable to the matter.
Case Overview
The following table outlines the principal parties and details of the administrative hearing.
Case Detail
Information
Petitioner
Jay Janicek
Respondent
Sycamore Vista No. 8 HOA
Respondent’s Counsel
Evan Thompson, Thompson Krone PLC
Respondent’s Representative
Steve Russo
Case Number
17F-H1717033-REL
Docket Number
17F-H1717033-REL
Hearing Date
July 12, 2017
Presiding Judge
Dorinda M. Lang, Administrative Law Judge
Hearing Observers
John Shields, Margery and Mathew Janicek
Petitioner’s Allegations
The petition filed by Jay Janicek alleged that Sycamore Vista No. 8 HOA was in violation of its governing CC&Rs. The central arguments presented were:
• Unequal Distribution of Costs and Benefits: The Petitioner contended that expenses paid by the Respondent association to the Sycamore Vista Master Home Owner’s Association (“Master HOA”) did not benefit all homeowners equally. The most “egregious” example cited was the payment toward a loan for a roadway within the master development.
• Violation of CC&Rs: The Petitioner argued that this unequal cost burden was a direct violation of Article 11, Section 11.5 of the Respondent’s CC&Rs. This section stipulates:
• Discrepancy Among Associations: The Petitioner asserted that another first-level association within the master development receives more benefit from the common areas but does not pay into the Master HOA.
• Rule Against Perpetuities: In a post-hearing submission, the Petitioner introduced a new argument that a “rule against perpetuities” was at stake in the matter.
Adjudication and Findings of Fact
The Administrative Law Judge’s decision was based on the Petitioner’s failure to meet the required burden of proof through a preponderance of the evidence.
Evidentiary Failure
The Petitioner’s case failed primarily due to a lack of sufficient evidence to prove a violation of the CC&Rs.
• Missing ‘Exhibit B’: The definition of “Common Areas” was essential to the case. According to Article 1, Section 1.6 of the CC&Rs, these areas are delineated on a plat that was supposed to be attached as “Exhibit B.”
• Critical Finding: The ALJ noted, “Unfortunately, there was no plat attached to the document that was offered into evidence and it was not to be found among the other exhibits. Therefore, Petitioner was unable to establish that Respondent’s fees pay for anything that is not provided for in the CC&Rs.”
• Petitioner’s Concession: The Petitioner did not dispute the Respondent’s argument that the Master HOA fees, including those for roads, were for Common Areas.
Lack of Legal Authority
The Petitioner’s core premise—that fees must be proportional to benefits received—was not substantiated by legal or documentary support.
• The ALJ found that the “Petitioner offered no legal authority that requires that all first level associations must pay the same into a master association or that all homeowners must receive the same benefit from or contribute the same amount (or even a proportionate share) to the common areas.”
• The argument that association fees were “disproportionately heavy” was not established to be a violation of any provision in the CC&Rs.
Post-Hearing Submissions
The record was held open until August 1, 2017, allowing for additional documentation from both parties.
• Petitioner (Exhibit 6): Submitted financial documentation, emails, and the argument concerning the rule against perpetuities.
• Respondent (Exhibit H): Submitted a Notice of Lien and attachments. This exhibit demonstrated that, regarding a lien for water services on properties not part of the Respondent HOA, the “Respondent’s homeowners are not responsible for it.”
Conclusions of Law and Final Decision
Based on the evidence and arguments presented, the ALJ denied the petition, a decision later finalized by the Arizona Department of Real Estate.
Denial of Petition
• The primary conclusion of law was that the “Petitioner has not established that Respondent is in violation of its CC&Rs.”
• The payment for Common Areas was found to be in comportment with the CC&Rs.
Rejection of Key Arguments
• Equal Benefit: The ALJ explicitly concluded: “Petitioner has offered no legal authority or provision of the CC&Rs that requires the association fees to be even-handed or equally beneficial to all homeowners.”
• Rule Against Perpetuities: While this argument was not part of the original petition, the ALJ addressed it to “lay a concern to rest.” The judge explained that the rule, which states that property ownership must vest within a lifetime plus 21 years, evolved from estate law and does not apply to HOA property sales where ownership vests immediately in the developer or a new owner. The judge concluded, “the rule against perpetuities does not apply to a homeowner’s association and it clearly does not apply in this matter.”
Timeline of Orders
1. July 12, 2017: An “Order Holding Record Open” was issued by ALJ Dorinda M. Lang.
2. August 14, 2017: The “Administrative Law Judge Decision” was issued, ordering that the Petitioner’s petition be denied.
3. August 21, 2017: A “Final Order” was issued by Judy Lowe, Commissioner of the Department of Real Estate, adopting the ALJ’s decision and officially denying the petition.
Post-Decision Procedures
The Final Order, effective August 21, 2017, concluded the administrative action and outlined the subsequent options available to the parties.
• The order is binding unless a rehearing is granted. A request for rehearing must be filed within 30 days of the service of the final order.
• A rehearing may be granted for the following causes:
1. Irregularity in the proceedings or any order or abuse of discretion that deprived a party of a fair hearing.
2. Misconduct by the Department, ALJ, or the prevailing party.
3. Accident or surprise that could not have been prevented by ordinary prudence.
4. Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.
7. The findings of fact or decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact or decision is not supported by the evidence or is contrary to law.
• Parties may appeal the final administrative action by filing a complaint for judicial review.
The ALJ found that the Petitioner did not establish a violation of the Respondent's CC&Rs and recommended the petition be denied. The ALJ specifically noted the lack of proof that fees were inappropriate and that Petitioner failed to provide legal authority requiring equal benefit. The petition was denied, and the Respondent was not ordered to pay the Petitioner's filing fee.
Why this result: The Petitioner failed to meet the burden of proof required to establish a violation of the CC&Rs.
Key Issues & Findings
Alleged violation of CC&Rs regarding disproportionate assessment fees
Petitioner alleged Respondent was in violation of its CC&Rs because Master HOA fees were disproportionately borne by existing homeowners and did not benefit the whole development equally. Petitioner failed to establish a violation because required evidentiary documents (plat attached as 'Exhibit B') were missing, and Petitioner offered no legal authority requiring fees to be equally beneficial or even-handed.
Orders: Petitioner's petition is denied. Respondent shall not pay the filing fee required by section 32-2199.01 to the Petitioner.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.A.C. R2-19-119(B)
Analytics Highlights
Topics: CC&Rs, Master HOA, Assessment Fees, Common Areas, Burden of Proof, Rule Against Perpetuities
Additional Citations:
A.R.S. § 32-2199
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
17F-H1717033-REL Decision – 575166.pdf
Uploaded 2025-10-09T03:31:37 (39.1 KB)
17F-H1717033-REL Decision – 582189.pdf
Uploaded 2025-10-09T03:31:37 (69.4 KB)
17F-H1717033-REL Decision – 584918.pdf
Uploaded 2025-10-09T03:31:37 (674.1 KB)
Briefing Doc – 17F-H1717033-REL
Administrative Hearing Briefing: Janicek v. Sycamore Vista No. 8 HOA
Executive Summary
This briefing document synthesizes the key findings and legal proceedings in case number 17F-H1717033-REL, wherein Petitioner Jay Janicek filed a complaint against Respondent Sycamore Vista No. 8 HOA. The petition was ultimately denied by an Administrative Law Judge (ALJ), a decision formally adopted and finalized by the Commissioner of the Arizona Department of Real Estate.
The core of the dispute centered on the Petitioner’s allegation that the HOA’s fee structure violated its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, Janicek argued that payments made by his first-level association to a master association for common area expenses—most egregiously for a roadway loan—were improper because the benefits were not distributed equally among all homeowners.
The denial of the petition hinged on a critical failure of proof by the Petitioner. The CC&Rs define “Common Areas” by referencing a plat map (“Exhibit B”) that was not submitted into evidence by the Petitioner. Without this crucial document, it was impossible to prove that the fees collected by the HOA were for purposes outside the scope of the CC&Rs. Furthermore, the Petitioner failed to provide any legal authority or provision within the governing documents requiring that association fees be “even-handed or equally beneficial to all homeowners.” A secondary argument regarding the “rule against perpetuities,” introduced post-hearing, was also addressed and dismissed by the ALJ as legally inapplicable to the matter.
Case Overview
The following table outlines the principal parties and details of the administrative hearing.
Case Detail
Information
Petitioner
Jay Janicek
Respondent
Sycamore Vista No. 8 HOA
Respondent’s Counsel
Evan Thompson, Thompson Krone PLC
Respondent’s Representative
Steve Russo
Case Number
17F-H1717033-REL
Docket Number
17F-H1717033-REL
Hearing Date
July 12, 2017
Presiding Judge
Dorinda M. Lang, Administrative Law Judge
Hearing Observers
John Shields, Margery and Mathew Janicek
Petitioner’s Allegations
The petition filed by Jay Janicek alleged that Sycamore Vista No. 8 HOA was in violation of its governing CC&Rs. The central arguments presented were:
• Unequal Distribution of Costs and Benefits: The Petitioner contended that expenses paid by the Respondent association to the Sycamore Vista Master Home Owner’s Association (“Master HOA”) did not benefit all homeowners equally. The most “egregious” example cited was the payment toward a loan for a roadway within the master development.
• Violation of CC&Rs: The Petitioner argued that this unequal cost burden was a direct violation of Article 11, Section 11.5 of the Respondent’s CC&Rs. This section stipulates:
• Discrepancy Among Associations: The Petitioner asserted that another first-level association within the master development receives more benefit from the common areas but does not pay into the Master HOA.
• Rule Against Perpetuities: In a post-hearing submission, the Petitioner introduced a new argument that a “rule against perpetuities” was at stake in the matter.
Adjudication and Findings of Fact
The Administrative Law Judge’s decision was based on the Petitioner’s failure to meet the required burden of proof through a preponderance of the evidence.
Evidentiary Failure
The Petitioner’s case failed primarily due to a lack of sufficient evidence to prove a violation of the CC&Rs.
• Missing ‘Exhibit B’: The definition of “Common Areas” was essential to the case. According to Article 1, Section 1.6 of the CC&Rs, these areas are delineated on a plat that was supposed to be attached as “Exhibit B.”
• Critical Finding: The ALJ noted, “Unfortunately, there was no plat attached to the document that was offered into evidence and it was not to be found among the other exhibits. Therefore, Petitioner was unable to establish that Respondent’s fees pay for anything that is not provided for in the CC&Rs.”
• Petitioner’s Concession: The Petitioner did not dispute the Respondent’s argument that the Master HOA fees, including those for roads, were for Common Areas.
Lack of Legal Authority
The Petitioner’s core premise—that fees must be proportional to benefits received—was not substantiated by legal or documentary support.
• The ALJ found that the “Petitioner offered no legal authority that requires that all first level associations must pay the same into a master association or that all homeowners must receive the same benefit from or contribute the same amount (or even a proportionate share) to the common areas.”
• The argument that association fees were “disproportionately heavy” was not established to be a violation of any provision in the CC&Rs.
Post-Hearing Submissions
The record was held open until August 1, 2017, allowing for additional documentation from both parties.
• Petitioner (Exhibit 6): Submitted financial documentation, emails, and the argument concerning the rule against perpetuities.
• Respondent (Exhibit H): Submitted a Notice of Lien and attachments. This exhibit demonstrated that, regarding a lien for water services on properties not part of the Respondent HOA, the “Respondent’s homeowners are not responsible for it.”
Conclusions of Law and Final Decision
Based on the evidence and arguments presented, the ALJ denied the petition, a decision later finalized by the Arizona Department of Real Estate.
Denial of Petition
• The primary conclusion of law was that the “Petitioner has not established that Respondent is in violation of its CC&Rs.”
• The payment for Common Areas was found to be in comportment with the CC&Rs.
Rejection of Key Arguments
• Equal Benefit: The ALJ explicitly concluded: “Petitioner has offered no legal authority or provision of the CC&Rs that requires the association fees to be even-handed or equally beneficial to all homeowners.”
• Rule Against Perpetuities: While this argument was not part of the original petition, the ALJ addressed it to “lay a concern to rest.” The judge explained that the rule, which states that property ownership must vest within a lifetime plus 21 years, evolved from estate law and does not apply to HOA property sales where ownership vests immediately in the developer or a new owner. The judge concluded, “the rule against perpetuities does not apply to a homeowner’s association and it clearly does not apply in this matter.”
Timeline of Orders
1. July 12, 2017: An “Order Holding Record Open” was issued by ALJ Dorinda M. Lang.
2. August 14, 2017: The “Administrative Law Judge Decision” was issued, ordering that the Petitioner’s petition be denied.
3. August 21, 2017: A “Final Order” was issued by Judy Lowe, Commissioner of the Department of Real Estate, adopting the ALJ’s decision and officially denying the petition.
Post-Decision Procedures
The Final Order, effective August 21, 2017, concluded the administrative action and outlined the subsequent options available to the parties.
• The order is binding unless a rehearing is granted. A request for rehearing must be filed within 30 days of the service of the final order.
• A rehearing may be granted for the following causes:
1. Irregularity in the proceedings or any order or abuse of discretion that deprived a party of a fair hearing.
2. Misconduct by the Department, ALJ, or the prevailing party.
3. Accident or surprise that could not have been prevented by ordinary prudence.
4. Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.
5. Excessive or insufficient penalties.
6. Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.
7. The findings of fact or decision is arbitrary, capricious, or an abuse of discretion.
8. The findings of fact or decision is not supported by the evidence or is contrary to law.
• Parties may appeal the final administrative action by filing a complaint for judicial review.
Study Guide – 17F-H1717033-REL
Study Guide: Janicek v. Sycamore Vista No. 8 HOA
This guide provides a comprehensive review of the administrative hearing case No. 17F-H1717033-REL, Jay Janicek v. Sycamore Vista No. 8 HOA. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, based on the information provided in the case documents.
1. Who were the primary parties in this legal matter, and what were their designated roles?
2. What was the central allegation made by the Petitioner against the Respondent?
3. Which specific article and section of the Covenants, Conditions, and Restrictions (CC&Rs) did the Petitioner claim the Respondent had violated?
4. Explain the key piece of evidence that was missing and why its absence was critical to the case’s outcome.
5. What was the Respondent’s main argument regarding the fees paid to the Master HOA?
6. According to the case documents, who held the burden of proof, and what was the required standard of proof?
7. What was the “rule against perpetuities,” and what reason did the Administrative Law Judge give for its inapplicability to this case?
8. What was the ultimate decision of the Administrative Law Judge, and on what date was it issued?
9. After the hearing, the record was held open. What was the purpose of this, and what types of materials were submitted by the parties during this period?
10. What action did the Commissioner of the Department of Real Estate take after receiving the Administrative Law Judge’s decision?
——————————————————————————–
Answer Key
1. The primary parties were Jay Janicek, designated as the Petitioner, and Sycamore Vista No. 8 HOA, designated as the Respondent. The Petitioner is the party who filed the complaint, and the Respondent is the party against whom the complaint was filed.
2. The Petitioner alleged that the Respondent HOA was in violation of its CC&Rs. He argued that the fees his association paid to the Master HOA for a roadway loan did not benefit the whole development equally and were therefore inappropriate expenses for all homeowners to pay.
3. The Petitioner cited Article 11, Section 11.5 of the Respondent’s CC&Rs. This section, titled “Costs of Improvements,” details how the costs for improving Unimproved Lots and Common Areas in Phase 3 and Phase 4 are to be borne by the owners of lots within those specific phases.
4. The key missing evidence was a plat, referred to as “Exhibit B” in the CC&Rs. This plat was supposed to define the “Common Areas,” and without it, the Petitioner was unable to establish that the fees paid by the Respondent were for anything not provided for in the governing documents.
5. The Respondent argued that the Master HOA fees were used to pay for the development’s common areas. They maintained that the CC&Rs permit these payments and that there is no legal authority requiring all homeowners to receive the same benefit or for all first-level associations to contribute equally.
6. Pursuant to A.A.C. R2-19-119(B), the Petitioner, Jay Janicek, had the burden of proof in this matter. The standard of proof was a preponderance of the evidence, as established by A.A.C. R2-19-119(A).
7. The rule against perpetuities states that property ownership must vest within a time frame of an existing lifetime plus 21 years. The Judge ruled it did not apply because it evolved to handle estates bequeathed to a series of heirs and is not generally applicable to property sales where rights transfer at once; in the HOA’s case, ownership of undeveloped lots had already vested in the developer.
8. The Administrative Law Judge ordered that the Petitioner’s petition be denied. This decision was made on August 14, 2017.
9. The record was held open until August 1, 2017, to allow the Respondent to submit additional documentation and for the Petitioner to submit written objections. During this time, the Petitioner submitted financial documentation, emails, and a new argument about the rule against perpetuities (admitted as Exhibit 6), while the Respondent submitted a Notice of Lien (admitted as Exhibit H).
10. The Commissioner of the Department of Real Estate, Judy Lowe, adopted the Administrative Law Judge’s decision. This was formalized in a Final Order dated August 21, 2017, which accepted the ALJ’s recommendation and denied the Petitioner’s petition.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a detailed essay-style response for each.
1. Analyze the critical evidentiary failure that led to the denial of Jay Janicek’s petition. How did the absence of the plat referred to as “Exhibit B” directly impact his ability to meet the “preponderance of the evidence” standard of proof?
2. Discuss the legal reasoning behind the Administrative Law Judge’s conclusion that there is no requirement for HOA fees to be “even-handed or equally beneficial to all homeowners.” How does this principle relate to the hierarchical structure of Master and first-level associations described in the case?
3. Explain the concept of the “rule against perpetuities” as described in the legal decision. Detail why the Administrative Law Judge, despite noting the argument was outside the original petition, addressed it and ultimately found it inapplicable to the case of a homeowner’s association.
4. Trace the procedural path of this case from the initial hearing to the final binding order. Identify the key dates, decisions, and entities involved at each stage, including the Office of Administrative Hearings and the Department of Real Estate.
5. Based on the Final Order, outline the process and potential grounds for requesting a rehearing. What were the eight specific causes listed in the order that could materially affect a moving party’s rights and justify a rehearing or review?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, Dorinda M. Lang served as the ALJ.
A.A.C.
Abbreviation for Arizona Administrative Code, a compilation of rules and regulations of Arizona state agencies.
A.R.S.
Abbreviation for Arizona Revised Statutes, the collection of all the laws of the state of Arizona.
Areas of Association Responsibility
Locations that the Homeowner’s Association is responsible for maintaining, as defined within its governing documents.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.
Common Areas
Areas within a housing development that are owned by the association for the use and benefit of all homeowners. The definition of these areas was a central issue in the case.
Commissioner
The head of a government department. In this context, Judy Lowe, the Commissioner of the Arizona Department of Real Estate, who adopted the ALJ’s decision.
First Level Association
An individual homeowner’s association within a larger development that also has a master association. The Respondent, Sycamore Vista No. 8 HOA, is a first level association.
Master HOA
The Sycamore Vista Master Home Owner’s Association. An overarching organization that governs expenses and common areas concerning an entire development composed of multiple first-level associations.
Office of Administrative Hearings (OAH)
The state agency that conducts administrative hearings for other state agencies. This case was referred to the OAH by the Department of Real Estate.
Petitioner
The party who files a petition or brings an action in a legal proceeding. In this case, Jay Janicek.
A map, drawn to scale, showing the divisions of a piece of land. The missing plat in this case was intended to show the “Common Areas.”
Preponderance of the Evidence
The standard of proof in most civil cases. It requires that the evidence shows a claim is more likely to be true than not true.
Respondent
The party against whom a petition is filed or who is responding to a legal action. In this case, Sycamore Vista No. 8 HOA.
Rule Against Perpetuities
A legal rule that prevents a property owner from controlling the disposition of their property for an indefinite period after their death. The ALJ found it did not apply in this HOA context.
Unimproved Lot Assessments
Fees imposed on the owners of undeveloped lots to pay for the costs of improving certain areas, as described in Section 6.13 of the CC&Rs.
Unimproved Lots
Parcels of land within the development that have not yet been built upon.
Blog Post – 17F-H1717033-REL
Select all sources
575166.pdf
582189.pdf
584918.pdf
No emoji found
Loading
17F-H1717033-REL
3 sources
These documents chronicle the legal proceedings of a dispute between Jay Janicek, the Petitioner, and Sycamore Vista No. 8 HOA, the Respondent, before the Office of Administrative Hearings. The first source is an “Order Holding Record Open,” dated July 12, 2017, which temporarily extends the deadline for submitting additional evidence. The subsequent sources contain the “Administrative Law Judge Decision” issued on August 14, 2017, which outlines the hearing details and the judge’s recommendation to deny the petition because Janicek failed to establish a violation of the HOA’s Covenants, Conditions, and Restrictions. Finally, the third document presents the “Final Order” from the Department of Real Estate Commissioner on August 21, 2017, which accepts and affirms the Administrative Law Judge’s decision to deny the petition. Janicek’s core claim argued that certain master association fees were disproportionately applied and did not benefit all homeowners equally, which the judge ultimately dismissed due to a lack of supporting legal authority or CC&R provisions.
Based on 3 sources
Case Participants
Petitioner Side
Jay Janicek(petitioner)
Respondent Side
Evan Thompson(HOA attorney) Thompson Krone PLC Attorney for Respondent
Steve Russo(respondent representative)
Neutral Parties
Dorinda M. Lang(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
Dan Gardner(HOA Coordinator) Office of Administrative Hearings Addressee for rehearing request
Other Participants
John Shields(observer)
Margery Janicek(observer)
Mathew Janicek(observer)
M. Aguirre(unknown) Thompson Krone PLC Listed on transmittal documents
The ALJ dismissed the petition in its entirety. While the HOA admitted responsibility for common areas, the Petitioner failed to establish that the water staining on the subfloor or the condition of the pipes constituted damage requiring repair or replacement. The ALJ relied on the Respondent's expert testimony that the subfloor was structurally sound.
Why this result: Insufficient evidence to prove that the staining constituted structural damage or that mold/bacteria levels required remediation; Respondent provided expert testimony that the area was structurally sound.
Key Issues & Findings
Maintenance and Repair of Common Elements
Petitioner alleged the HOA was responsible for repairing water damage/staining to the subfloor and pipes in the common area ceiling/floor space caused by flooding from the unit above. Petitioner sought replacement of stained wood and remediation.
Orders: Petition dismissed in its entirety.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1212(1)
A.R.S. § 33-1212(2)
A.R.S. § 33-1247(B)
A.R.S. § 33-1251(C)
A.R.S. § 33-1221(1)
A.R.S. § 33-1253(A)(1)
A.R.S. § 33-1253(A)(2)
A.R.S. § 33-1253(H)
Decision Documents
16F-H1616006-BFS Decision – 513174.pdf
Uploaded 2026-02-11T06:02:57 (72.6 KB)
16F-H1616006-BFS Decision – 521856.pdf
Uploaded 2026-02-11T06:02:57 (62.9 KB)
**Case Summary: *John Klemmer vs. Caribbean Gardens Association***
**Case No.** 16F-H1616006-BFS
**Forum:** Arizona Office of Administrative Hearings
**Overview and Proceedings**
On August 2, 2016, Administrative Law Judge Dorinda M. Lang presided over a hearing regarding a petition filed by homeowner John Klemmer (Petitioner) against the Caribbean Gardens Association (Respondent). The Petitioner alleged that the Respondent violated Arizona Revised Statutes and the community’s Covenants, Conditions, and Restrictions (CC&Rs) by failing to repair damage to the common area located between his unit and the unit directly above him.
**Key Facts and Arguments**
The dispute arose from flooding in the upstairs unit that affected the space above the Petitioner's ceiling.
* **Petitioner’s Position:** Klemmer argued that the Association was responsible for the common areas and must repair the damage caused by the flooding. He presented photographs showing discoloration on the subfloor and staining on a sewer pipe. He demanded the replacement of the stained wood due to concerns regarding mold, bacteria, and the condition of the sewer pipe.
* **Respondent’s Defense:** The Association acknowledged its responsibility for common areas but argued that the specific condition complained of did not require repair. The Respondent presented testimony from a licensed contractor who stated that he inspected the area and determined the discoloration did not constitute structural damage. The witness testified that water staining is common near toilets and, despite the lack of mold testing, the wood remained structurally sound.
**Legal Analysis and Findings**
The Administrative Law Judge applied the "preponderance of the evidence" standard, requiring the Petitioner to show his contentions were more probably true than not.
* **Responsibility vs. Necessity:** While the legal responsibility of the Association to maintain common areas was undisputed, the Judge found that the Petitioner failed to prove that the area actually required remediation.
* **Insufficiency of Evidence:** The Judge determined that photographs of staining were insufficient to prove that wood replacement was necessary. Furthermore, the Petitioner failed to provide evidence that the sewer pipe was malfunctioning or that there were levels of mold or bacteria requiring abatement.
**Outcome and Final Decision**
The Administrative Law Judge ordered that the petition be **dismissed in its entirety**.
Following the decision dated August 19, 20
Case Participants
Petitioner Side
John Klemmer(petitioner) Caribbean Gardens Association (Owner) Listed as John D. Klemmer in appearances
