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Lisa Marx v. Tara Condominium Association

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Case Summary

Case ID 24F-H054-REL
Agency —
Tribunal —
Decision Date 2024-09-20
Administrative Law Judge KAA
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Lisa Marx Counsel —
Respondent Tara Condominium Association Counsel —

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

24F-H054-REL Decision – 1212274.pdf

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24F-H054-REL Decision – 1212281.pdf

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24F-H054-REL Decision – 1216809.pdf

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24F-H054-REL Decision – 1225818.pdf

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24F-H054-REL Decision – 1226250.pdf

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Briefing Document: Marx v. Tara Condominium Association

Executive Summary

This document provides a comprehensive analysis of the administrative case Lisa Marx v. Tara Condominium Association (No. 24F-H054-REL), adjudicated by the Arizona Office of Administrative Hearings. The dispute centers on two primary allegations brought by homeowner and former board member Lisa Marx against the Tara Condominium Association (TARA): (1) violations of Arizona state law regarding access to association records, and (2) violations of the state’s Open Meeting Law.

The case culminated in a split decision by the Administrative Law Judge (ALJ). TARA was found to have violated A.R.S. § 33-1258 by failing to provide timely access to its financial and other records as requested by the petitioner. However, the petitioner failed to prove her second claim that TARA violated the open meeting provisions of A.R.S. § 33-1248 when board members and volunteers performed maintenance and repair projects on common areas without formal agenda items and board votes.

Consequently, the ALJ sustained the petition on the records violation and dismissed it on the open meeting violation. TARA was ordered to reimburse Ms. Marx $500, representing the filing fee for the single issue on which she prevailed. A subsequent request for rehearing filed by Ms. Marx was procedurally rejected for being submitted to the incorrect agency.

Case Background and Procedural History

Parties and Context

• Petitioner: Lisa Marx, a homeowner in the Tara Condominium Association and a former board member who served in various capacities, including Secretary, Chairperson, and Vice-Chairperson, from 2021 until her resignation in January 2024.

• Respondent: Tara Condominium Association (TARA), a 50-unit nonprofit management association, represented at the hearing by its Chairman, Mark Gottmann.

The dispute arose following a change in board leadership in early 2024, with Ms. Marx alleging the new board was operating without transparency and in violation of state statutes and the association’s governing documents.

Chronology of Key Events

Jan 2024

Lisa Marx resigns from the TARA board two weeks after being elected for a fourth term.

Feb 1, 2024

Mark Gottmann assumes the role of Chairman of the Board.

Feb–Apr 2024

Marx makes a series of five requests for association records, which are either partially or fully denied by the TARA board.

May 29, 2024

Marx files an HOA Dispute Process Petition with the Arizona Department of Real Estate, alleging two categories of violations and paying a 1,000filingfee(500 per issue).

Aug 8, 2024

TARA files an Amended Response, admitting to several of the alleged violations, offering to reimburse Marx’s $1,000 filing fee, and requesting that the hearing be vacated.

Aug 8, 2024

Marx files a reply rejecting the offer, stating that the “numerous” issues required “a ruling that is binding and definite” to “hopefully prevent further violations.”

Aug 16, 2024

The ALJ issues an order requiring Marx to narrow her petition to two specific issues, categorizing the five records-request instances as one “records” issue and requiring her to select one of the thirteen alleged open-meeting violations.

Aug 19, 2024

Marx selects “Example 13” from her petition as her second issue.

Aug 29, 2024

An administrative hearing is held before ALJ Kay A. Abramsohn.

Sep 20, 2024

The ALJ issues a final decision.

Sep 23, 2024

The ALJ issues a Minute Entry rejecting a request for rehearing filed by Marx, as it was sent to the Office of Administrative Hearings instead of the Commissioner of the Arizona Department of Real Estate.

Analysis of Disputed Issues and Testimony

The hearing focused on two central issues as narrowed by the ALJ’s order.

Issue 1: Access to Association Records (A.R.S. § 33-1258)

This issue consolidated five instances across multiple dates where Marx alleged she was improperly denied access to or provision of TARA’s records.

Petitioner’s Position (Lisa Marx):

• Marx testified that she made multiple written requests for documents including vouchers, contracts, financial reports (General Ledger, AP Distribution), architectural change forms, and violation letters.

• The board’s responses were statutorily invalid. For example, a February 22, 2024 response stated: “A member of the Association is entitled to see reasonable financial information only. A member does not have a right to see contracts entered into by the Board nor information concerning specific members. We respectfully refuse your request…” Another denial was based on her being “no longer a board member.”

• Marx argued this refusal to provide records blocks transparency, creates distrust, and prevents homeowners from ensuring the governing documents are being enforced impartially. She asserted that all requested documents, such as financial records and contracts related to common areas, are records homeowners are entitled to examine.

Respondent’s Position (Tara Condominium Association):

• Mark Gottmann testified that the board was new and that any mistakes were made out of “enthusiasm” and a desire to better the community, not malicious intent.

• He stated the board acted on advice from outside sources, including a trade association, which led them to believe they were “over-providing” documents compared to their CC&Rs, which only mandate semi-annual financial statements.

• TARA experienced delays in receiving financial reports from its management company, Colby, after it was acquired by another entity, which in turn delayed distribution to homeowners.

• Gottmann argued that some requested documents did not exist (e.g., contracts for volunteer work), while others were justifiably withheld because they contained private information about individual homeowners (e.g., violation letters, architectural change forms).

Issue 2: Open Meeting Law Violations (A.R.S. § 33-1248)

This issue centered on “Example 13” of the petition, which alleged the board undertook several projects without adhering to open meeting requirements.

Petitioner’s Position (Lisa Marx):

• Marx alleged that several projects were performed on common property without being included on a meeting agenda and without a formal vote by the board in an open meeting. These projects included:

◦ Board members spraying weeds.

◦ Board members digging up grass around trees and laying mulch.

◦ A board member refinishing wood shutters.

• She argued these actions violated A.R.S. § 33-1248 and TARA’s own CC&Rs (Section 9(E)), which states, “A majority vote of the Managers shall entitle the Board to carry out action on behalf of the owners of the units.”

• The failure to discuss these items in an open meeting denied members the right to provide input before the board took action on community property.

Respondent’s Position (Tara Condominium Association):

• Gottmann characterized the projects as ongoing operational responsibilities and good-faith efforts by volunteers to save the association money.

• The weed spraying was described as an “experiment” at no cost to TARA. The mulching was done with donated materials in response to a homeowner’s suggestion. The shutter repair was done by volunteers for a nominal cost of less than $150 for materials, which was within the monthly maintenance budget.

• He argued these were not formal actions requiring a board vote but were undertaken with an “enthusiasm and desire to make our community a better place.” TARA’s CC&Rs (Section 12, Part D) grant the board the power “to use and expend the assessments collected to maintain, care for, and preserve the common elements.”

Administrative Law Judge’s Decision and Order

The ALJ’s decision, issued on September 20, 2024, delivered a split verdict, finding for each party on one of the two core issues.

Finding on Records Violation (A.R.S. § 33-1258):

• Verdict: TARA violated the statute.

• Reasoning: The ALJ concluded that TARA failed to provide access to records it possessed within the statutorily required ten-day timeframe. While TARA had a potential defense for delays related to its management company and a valid reason to withhold records containing personal information of other members, the overall evidence demonstrated a failure to comply with the law.

• Outcome: The petitioner was deemed the prevailing party on this issue.

Finding on Open Meeting Violation (A.R.S. § 33-1248):

• Verdict: TARA did not violate the statute.

• Reasoning: The ALJ found that the petitioner failed to sustain her burden of proof. The evidence showed that TARA conducted its formal meetings in compliance with open meeting laws, providing notice and agendas. The ALJ concluded there was “no evidence in the hearing record that… those work circumstances… were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for ‘formal action’ by the Board.”

• Outcome: The respondent was deemed the prevailing party on this issue.

Final Order

Based on the findings, the ALJ issued the following orders:

1. Petitioner’s Petition is sustained as to the TARA violation of A.R.S. § 33-1258 (Records).

2. Petitioner’s Petition is dismissed as to the alleged violations by TARA of A.R.S. § 33-1248 (Open Meetings).

3. TARA is ordered to reimburse Petitioner in the amount of $500.00, representing the filing fee for the single successful claim.

Questions

Question

Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?

Short Answer

No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.

Detailed Answer

The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.

Alj Quote

TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • records request
  • financial records
  • management company

Question

Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?

Short Answer

Not necessarily. If the work is volunteer-based and doesn't require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.

Detailed Answer

The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute 'formal action' that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.

Alj Quote

There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for 'formal action' by the Board at the TARA monthly meetings.

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • open meetings
  • volunteer work
  • board authority

Question

Can the HOA withhold violation letters or architectural change forms concerning other homeowners?

Short Answer

Yes, if those documents contain personal information about specific members.

Detailed Answer

The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.

Alj Quote

A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for 'personal, health or financial records of an individual member' … In this case, because some of the requested 'repair' contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.

Legal Basis

A.R.S. § 33-1258(B)(4)

Topic Tags

  • privacy
  • violation letters
  • records request

Question

Can the board deny my records request because I am no longer a board member?

Short Answer

No. The right to examine records belongs to all members of the association.

Detailed Answer

The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was 'no longer a Board member.' The statute requires records be made available to 'any member.'

Alj Quote

TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • homeowner rights
  • records access
  • board membership

Question

If I file a petition with two issues and only win one, do I get my filing fee back?

Short Answer

You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.

Detailed Answer

In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.

Alj Quote

IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the 'Example 13' issue and Petitioner bears the filing fee on this issue.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • filing fees
  • dispute resolution
  • penalties

Question

Does being a 'new board' or 'learning the ropes' excuse the HOA from following state laws?

Short Answer

No. Ignorance of the law or being a new board is not a valid defense for violating statutes.

Detailed Answer

The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.

Alj Quote

TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • board duties
  • legal compliance
  • defenses

Case

Docket No
24F-H054-REL
Case Title
Lisa Marx v. Tara Condominium Association
Decision Date
2024-09-20
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to provide financial records because they are waiting to receive them from their third-party management company?

Short Answer

No. The HOA is responsible for providing access to records within the statutory 10-day timeframe, regardless of management company delays.

Detailed Answer

The ALJ ruled that waiting for a management company to provide monthly reports does not excuse the association from its statutory obligation to make records reasonably available within 10 business days. Even if the HOA acts in good faith while waiting for a vendor, failure to provide existing records violates the statute.

Alj Quote

TARA has a defense, although unsupported, regarding the time frame only as to the financial documents for which TARA was waiting from its management company. … Overall, as to A.R.S. § 33-1258, there is no evidence that, within the ten day time frame, TARA provided access to the TARA HOA records it did have and which were required to have been provided to Petitioner; therefore, the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • records request
  • financial records
  • management company

Question

Does a group of board members or volunteers doing unpaid maintenance work require an open meeting and a formal vote?

Short Answer

Not necessarily. If the work is volunteer-based and doesn't require a specific contract or expenditure necessitating a vote under the CC&Rs or statutes, it may not trigger open meeting requirements.

Detailed Answer

The ALJ determined that volunteer work performed by board members (like weeding or painting) to save money did not constitute 'formal action' that required placement on an agenda or a formal vote in an open meeting, provided no statute or governing document specifically required it.

Alj Quote

There is no evidence in the hearing record that, prior to the volunteer work described in Example 13, that those work circumstances, or any projected volunteer work circumstances, were required by statute or the CC&Rs to be placed on a TARA agenda for discussion and/or for 'formal action' by the Board at the TARA monthly meetings.

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • open meetings
  • volunteer work
  • board authority

Question

Can the HOA withhold violation letters or architectural change forms concerning other homeowners?

Short Answer

Yes, if those documents contain personal information about specific members.

Detailed Answer

The decision affirms that HOAs can refuse to provide records related to specific units, such as violation notices or contracts containing personal data, under the statutory exception for personal, health, or financial records of individual members.

Alj Quote

A.R.S. § 33-1258(B)(4) provides an exception to the requirement to provide records for 'personal, health or financial records of an individual member' … In this case, because some of the requested 'repair' contract information for repairs at certain addresses may have contained personal information of another member, TARA was likely within its statutory authority to refuse to provide that particular information.

Legal Basis

A.R.S. § 33-1258(B)(4)

Topic Tags

  • privacy
  • violation letters
  • records request

Question

Can the board deny my records request because I am no longer a board member?

Short Answer

No. The right to examine records belongs to all members of the association.

Detailed Answer

The ALJ found the HOA in violation when it declined to provide information on the grounds that the requester was 'no longer a Board member.' The statute requires records be made available to 'any member.'

Alj Quote

TARA declined to provide such, stating that Petitioner was no longer a Board member. … TARA failed to comply with A.R.S. § 33-1258 regarding provision of access to TARA HOA records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • homeowner rights
  • records access
  • board membership

Question

If I file a petition with two issues and only win one, do I get my filing fee back?

Short Answer

You may receive a partial reimbursement. The tribunal may order the HOA to reimburse the portion of the fee related to the successful claim.

Detailed Answer

In this case, the petitioner paid 1,000fortwoissues(500 per issue). Since the petitioner prevailed on the records issue but failed on the open meeting issue, the ALJ ordered the HOA to reimburse only $500.

Alj Quote

IT IS ORDERED that TARA reimburse Petitioner in the amount of $500.00. … The Administrative Law Judge concludes TARA is the prevailing party regarding the 'Example 13' issue and Petitioner bears the filing fee on this issue.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • filing fees
  • dispute resolution
  • penalties

Question

Does being a 'new board' or 'learning the ropes' excuse the HOA from following state laws?

Short Answer

No. Ignorance of the law or being a new board is not a valid defense for violating statutes.

Detailed Answer

The HOA argued they were a new board acting in the best interest of the community and learning better governing practices. The ALJ acknowledged this explanation but still ruled that the failure to provide records was a violation of state statute.

Alj Quote

TARA explained that the Board was a new Board and, believing it was acting in the Board’s best interest, was in the process of learning the procedures for better governing practices. … the Administrative Law Judge concludes that TARA violated A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • board duties
  • legal compliance
  • defenses

Case

Docket No
24F-H054-REL
Case Title
Lisa Marx v. Tara Condominium Association
Decision Date
2024-09-20
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Lisa Marx (Petitioner)
    Tara Condominium Association
    Homeowner and former board member who represented herself

Respondent Side

  • Mark Gottmann (Chairman of the Board)
    Tara Condominium Association
    Represented the respondent at the hearing
  • Chandler W. Travis (Attorney)
    Travis Law Firm PLC
    Withdrew as counsel for the respondent prior to the hearing
  • Tina Marie Shepherd (Former Chairperson)
    Tara Condominium Association
    Resigned from the board on January 31, 2024
  • Dennis Anderson (Board Member)
    Tara Condominium Association
    Participated in volunteer maintenance work
  • Judy Rice (Treasurer)
    Tara Condominium Association
  • Stephanie Bushart (Board Member)
    Tara Condominium Association

Neutral Parties

  • Kay A. Abramsohn (Administrative Law Judge)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Brenda Spielder (Observer)
    Tara Condominium Association
    Association member who attended the hearing
  • Cynthia Poland (Observer)
    Tara Condominium Association
    Association member who attended the hearing
  • Renee Snow (Volunteer)
    Tara Condominium Association
    Volunteered for the landscaping committee

John D Klemmer v. Caribbean Gardens Association

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Case Summary

Case ID 21F-H2120009-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-12-17
Administrative Law Judge Kay A. Abramsohn
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John D Klemmer Counsel —
Respondent Caribbean Gardens Association Counsel Nicole D. Payne, Esq., Lydia A. Pierce Linsmeier, Esq.

Alleged Violations

CC&Rs Article 1, Sections 1.5 and 1.8; Article 3, Section 3.4; Article 4, Section 4.1; Article 8, Section 8.1; and, Article 12, Section 12.4

Outcome Summary

The Petition was dismissed because the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent Association violated the cited CC&R provisions by refusing to manage the disputed area, which the ALJ determined was a limited common element.

Why this result: The Petitioner lost because the area in dispute was determined to be a 'limited common element' (a balcony serving Unit 207) under Arizona statute (A.R.S. § 33-1212(A)), not a 'common area' the Association was required to manage under the referenced CC&Rs.

Key Issues & Findings

Refusal to manage, operate, maintain and administer common area

Petitioner alleged the HOA violated multiple CC&Rs by refusing to maintain an area between Unit 206 and Unit 207, which he claimed was a common area. The HOA argued the area was a limited common element. The ALJ concluded, relying on A.R.S. § 33-1212(A), that the disputed area was a limited common element (a balcony) allocated exclusively to Unit 207, thus Petitioner failed to establish a CC&R violation.

Orders: Petitioner's Petition is dismissed. Petitioner bears his $500.00 filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1212(A)
  • CC&Rs Article 1, Section 1.5
  • CC&Rs Article 1, Section 1.6
  • CC&Rs Article 3, Section 3.4
  • CC&Rs Article 4, Section 4.1
  • CC&Rs Article 8, Section 8.1
  • CC&Rs Article 12, Section 12.4

Analytics Highlights

Topics: condominium, common elements, limited common elements, balcony dispute, CC&R violation, A.R.S. 33-1212
Additional Citations:

  • A.R.S. § 33-1212
  • A.R.S. § 33-1218
  • A.R.S. Title 33, Chapter 16
  • A.A.C. R2-19-119
  • CC&Rs Article 1, Sections 1.5, 1.8
  • CC&Rs Article 3, Section 3.4
  • CC&Rs Article 4, Section 4.1
  • CC&Rs Article 8, Section 8.1
  • CC&Rs Article 12, Section 12.4

Video Overview

Audio Overview

Decision Documents

21F-H2120009-REL Decision – 876384.pdf

Uploaded 2026-04-24T11:29:57 (124.8 KB)

21F-H2120009-REL Decision – 843358.pdf

Uploaded 2026-04-24T11:30:03 (129.8 KB)

21F-H2120009-REL Decision – 843358.pdf

Uploaded 2026-01-23T17:35:00 (129.8 KB)

Briefing Document: Klemmer v. Caribbean Gardens Association

Executive Summary

This document synthesizes the findings and decision in the administrative case of John D. Klemmer v. Caribbean Gardens Association (No. 21F-H2120009-REL). The core of the dispute was the legal classification of an outdoor space located between two condominium units. The Petitioner, a unit owner, argued the space was a “common area” that the Association was legally obligated to manage under its governing documents (CC&Rs). The Respondent Association countered that the space was a “balcony” or “limited common element” for the exclusive use of the adjacent unit owner.

The Administrative Law Judge (ALJ) ultimately dismissed the petition. While the Association’s 1973 CC&Rs and the official Plat document were ambiguous regarding the space, the decision hinged on the application of a later state statute, Arizona Revised Statutes (A.R.S.) § 33-1212. This statute defines balconies designed to serve a single unit as “limited common elements” allocated exclusively to that unit. Because the disputed area was only accessible from a single unit (Unit 207), the ALJ concluded it met this statutory definition. Consequently, the Petitioner failed to prove by a preponderance of the evidence that the Association had violated its CC&Rs by not treating the space as a general common area.

——————————————————————————–

Case Overview

Case Name

John D Klemmer v. Caribbean Gardens Association

Case Number

21F-H2120009-REL

Jurisdiction

Arizona Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Kay A. Abramsohn

Hearing Date

November 6, 2020

Decision Date

December 17, 2020

Petitioner

John D. Klemmer (Unit 101 Owner), representing himself

Respondent

Caribbean Gardens Association, represented by Nicole D. Payne, Esq.

Fundamental Dispute: The case centered on whether the Caribbean Gardens Association violated its Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by refusing to manage, operate, and maintain an outdoor area located on the second level between Units 206 and 207, which the Petitioner claimed was a common area belonging to all 40 unit owners.

Petitioner’s Position (John D. Klemmer)

The Petitioner’s case rested on the argument that the disputed area was a “common area” or “common element” as defined by the Association’s governing documents.

• Core Allegation: On April 15, 2020, the Caribbean Board violated multiple sections of its CC&Rs by refusing to administer a common area.

• Basis of Claim: The Petitioner argued that all space not explicitly delineated on the official Plat document as an “Apartment,” “patio,” or “balcony” must be considered a common area. The area in question is blank on the Plat.

• Ownership Argument: Each of the 40 unit owners possesses an “undivided ownership interest in the common areas and [common] elements.” He contended that if the Board did not acknowledge ownership, this common area would be lost to its rightful owners.

• Evidence of Misuse: The Petitioner presented photographic evidence showing that the owners of Unit 207 were exclusively occupying the space as if it were another room, adding furniture, walls, and making improvements to the exterior walls of Unit 206.

• Cited CC&R Violations: The petition alleged violations of the following articles:

◦ Article 1, Sections 1.5 and 1.8: Definitions of “Apartment” and “Plat.”

◦ Article 3, Section 3.4: Requirement for the Association to manage Common Elements.

◦ Article 4, Section 4.1: Vests title of Common Elements in the owners.

◦ Article 8, Section 8.1: Pertains to encroachments.

◦ Article 12, Section 12.4: Binds all owners to the Declaration.

Respondent’s Position (Caribbean Gardens Association)

The Association denied the allegations, arguing that the space was not a common area under its purview.

• Core Defense: The disputed area is not a common area but is instead a “balcony” attached to Unit 207, or alternatively, a “limited common element” for the exclusive use of the Unit 207 owners.

• Testimony: Board Member Alex Gomez testified that the Board’s position is that the area is a balcony. He further stated that the Association has never maintained any balconies within the community, including the one in question.

• Procedural Motions: The Association initially filed a Motion to Dismiss and a Motion for Summary Judgment, arguing that the tribunal lacked jurisdiction, the Petitioner was seeking relief that couldn’t be granted (declaratory and injunctive), and that other procedural and constitutional issues existed. These motions were denied by the tribunal.

Findings of Fact and Evidence

The ALJ established the following key facts based on the hearing record:

• Description of Disputed Area: The space is a concrete slab on the second level, located between the exterior walls of Unit 206 and Unit 207. It includes outside iron railings that fence it off.

• Exclusive Access: The area is not a staircase landing and can only be accessed through a door from a room within Unit 207. This access is an original feature of the building’s construction.

• Status on the Plat: The official Plat document, which defines the boundaries of apartments and their associated balconies and patios, is blank in the location of the disputed area. It is not specifically delineated in any way.

• Current Use: Photographic evidence confirmed the space contains furniture and other decorative items, indicating exclusive use by the occupants of Unit 207.

Legal Analysis and Conclusion of the Administrative Law Judge

The ALJ’s decision was based on an interpretation of both the community’s CC&Rs and overriding state law.

• Burden of Proof: The Petitioner, Mr. Klemmer, bore the burden of proving by a preponderance of the evidence that the Association had violated the specified CC&R provisions.

• Ambiguity in Governing Documents: The judge acknowledged a conflict in the 1973 CC&Rs.

◦ Article 1.5 defines an “Apartment” by its depiction on the Plat, which does not include the disputed area.

◦ Article 1.6 defines “Common Elements” as “all other portions of the Property except the Apartments.” This definition would logically include the undelineated disputed area.

• Application of State Statute: The decisive factor was the application of A.R.S. § 33-1212, a statute enacted in 1985, after the CC&Rs were recorded. The judge focused on subsection 4:

• Final Conclusion: The ALJ concluded that the disputed area fits the statutory description of a balcony “designed to serve a single unit,” as it is only accessible from Unit 207. Therefore, under Arizona law, it is classified as a “limited common element” allocated exclusively to that unit. Because it is not a general common area, the Association had no obligation to manage it as such. The Petitioner thus failed to establish a violation of the CC&Rs.

Final Order

Based on the analysis, the Administrative Law Judge issued the following orders on December 17, 2020:

1. IT IS ORDERED that Petitioner’s Petition is dismissed.

2. IT IS FURTHER ORDERED that Petitioner bears his $500.00 filing fee.

Study Guide: Klemmer v. Caribbean Gardens Association

This guide provides a detailed review of the Administrative Law Judge Decision in the case of John D. Klemmer v. Caribbean Gardens Association, No. 21F-H2120009-REL. It includes a quiz with an answer key to test comprehension, a set of essay questions for deeper analysis, and a comprehensive glossary of key legal and case-specific terms.

Quiz: Short-Answer Questions

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

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

2. What was the central allegation made by the Petitioner, John D. Klemmer, in his petition filed on August 21, 2020?

3. Describe the specific physical location and characteristics of the disputed area at the heart of this case.

4. On what grounds did the Petitioner argue that the disputed area should be considered a “common area”?

5. What was the initial position of the Caribbean Gardens Association Board regarding the status of the disputed area, as testified by Board Member Alex Gomez?

6. Before the hearing, what arguments did the Respondent make in its Motion for Summary Judgment?

7. How do the CC&Rs define an “Apartment” versus “Common Elements”?

8. Which specific Arizona Revised Statute (A.R.S.) did the Administrative Law Judge ultimately rely upon to classify the disputed area?

9. What was the final conclusion of the Administrative Law Judge regarding the nature of the disputed area?

10. What was the final recommended order issued by the Administrative Law Judge in this case?

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Answer Key

1. The primary parties are John D. Klemmer, the Petitioner who brought the complaint, and the Caribbean Gardens Association, the Respondent and condominium community association. Mr. Klemmer represented himself, while the Association was represented by counsel, Nicole D. Payne, Esq.

2. The Petitioner alleged that on April 15, 2020, the Caribbean Board violated its CC&Rs by refusing to manage, operate, maintain, and administer a specific “common area.” He claimed this refusal would lead to the loss of the area to its rightful owners, the 40 unit owners of Caribbean Gardens.

3. The disputed area is located on the second level of the building, between the exterior walls of Unit 206 and Unit 207. It consists of a concrete slab with attached iron railings and can only be accessed through a door from Unit 207.

4. The Petitioner argued the area was a “common area” because it was not specifically delineated on the Plat document as part of an apartment, patio, or balcony. He contended that any space not explicitly designated as part of a unit on the Plat must therefore be a common element belonging to all 40 unit owners.

5. Board Member Alex Gomez testified that the Board’s position was that the disputed area is not a common area but is a “balcony” attached to Unit 207. He stated that the Association has never maintained any balconies, including the one in question.

6. In its Motion for Summary Judgment, the Respondent argued that the Petitioner was seeking relief that the Tribunal could not grant, that he should have filed a derivative action, and that he had not paid sufficient filing fees for multiple issues. The Respondent also challenged the constitutionality of the Enabling Statutes and the jurisdiction of the Department and the Tribunal.

7. Article 1, Section 1.5 of the CC&Rs defines an “Apartment” as the space enclosed by the planes shown on the Plat, including any patio or balcony areas identified on said Plat. In contrast, Article 1, Section 1.6 defines “Common Elements” as all other portions of the Property except the Apartments, including specific items like pools and landscaping.

8. The Judge relied on A.R.S. § 33-1212, which states that balconies and other fixtures designed to serve a single unit but located outside its boundaries are “limited common elements allocated exclusively to that unit.”

9. The Administrative Law Judge concluded that the disputed area must be a balcony “designed to serve a single unit, but located outside the unit’s boundaries.” Therefore, it is considered a limited common element, and the Petitioner did not establish that the Caribbean Gardens Association had violated any CC&R provisions.

10. The recommended order was that the Petitioner’s Petition be dismissed. It was further ordered that the Petitioner bear his own $500.00 filing fee.

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Essay Questions

The following questions are designed for longer, more analytical responses. No answers are provided.

1. Analyze the conflicting interpretations of the disputed area presented by the Petitioner and the Respondent. How did their respective readings of the CC&Rs and the Plat document lead to their opposing conclusions?

2. Discuss the critical role of the Plat document in this dispute. Explain how the blank space on the Plat between Units 206 and 207 created an ambiguity that was central to the arguments of both parties.

3. Trace the legal reasoning employed by Administrative Law Judge Kay A. Abramsohn. Detail her process of weighing the definitions in the 1973 CC&Rs against the provisions of the 1985 Arizona Revised Statutes to reach a final decision.

4. Evaluate the arguments raised by the Caribbean Gardens Association in its Motion for Summary Judgment. Although the motion was not granted, what significant legal and jurisdictional challenges did it present against the Petitioner’s case and the hearing body’s authority?

5. This case highlights a tension between a condominium’s original governing documents (the 1973 Declaration) and subsequent state law (the 1985 Condominium statutes). Discuss how this dynamic influenced the outcome and what it reveals about the hierarchy of legal authority in condominium governance.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over an administrative hearing and issues a written decision. In this case, the ALJ was Kay A. Abramsohn.

Apartment

As defined by Article 1, Section 1.5 of the CC&Rs, it is a part of the Property intended for independent use as a dwelling unit, consisting of the space enclosed by the planes shown on the Plat, including any patio and balcony areas identified on that Plat.

An abbreviation for the Declaration of Covenants, Conditions and Restrictions, the governing legal documents for the Caribbean Gardens community. These were originally recorded in 1973.

Common Elements

As defined by Article 1, Section 1.6 of the CC&Rs, this term includes “general common elements” as defined in the former A.R.S. § 33-551, along with specific areas like parking, yards, the swimming pool, and “all other portions of the Property except the Apartments.”

Horizontal Property Regime

The legal framework governing the property, established under A.R.S. § 33-551 through § 33-561 at the time of the 1973 Declaration. These statutes were later repealed and replaced by the current Condominium laws.

Limited Common Elements

A legal classification defined in A.R.S. § 33-1212. It refers to fixtures like porches, balconies, patios, and entryways that are designed to serve a single unit but are located outside that unit’s boundaries, and are therefore allocated exclusively to that unit.

Petition

The formal, single-issue legal document filed by John D. Klemmer with the Department to initiate the dispute, alleging that the Caribbean Board violated its CC&Rs.

Petitioner

The party initiating a legal action by filing a petition. In this case, John D. Klemmer, a resident of Unit 101.

The official two-page survey map of the Property and all Apartments, attached to the Declaration as Exhibit “B.” It delineates the boundaries of individual units and other areas within the community.

Preponderance of the Evidence

The standard of proof the Petitioner was required to meet. It means the evidence presented must be more convincing than the opposing evidence, showing the fact in question is more probable than not.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Caribbean Gardens Association.

Tribunal

A term used in the decision to refer to the Arizona Office of Administrative Hearings (OAH), the state agency authorized to hear and decide the contested matter.

Questions

Question

If a balcony or patio serves only my unit but isn't explicitly drawn on the community Plat map, is it considered general common area?

Short Answer

Likely not. Under Arizona law, fixtures designed to serve a single unit located outside its boundaries are considered 'limited common elements' allocated exclusively to that unit, even if the Plat is ambiguous.

Detailed Answer

In this decision, the ALJ determined that an area not drawn on the Plat was a limited common element because it was physically accessible only from one unit. The judge cited A.R.S. § 33-1212(4), which defines features like balconies and patios designed to serve a single unit as limited common elements.

Alj Quote

Accordingly, the Administrative Law Judge concludes that the disputed area must be a balcony 'designed to serve a single unit, but located outside the unit’s boundaries.'

Legal Basis

A.R.S. § 33-1212(4)

Topic Tags

  • Common Elements
  • Plat Maps
  • Property Boundaries

Question

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

Short Answer

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

Detailed Answer

The homeowner must demonstrate that their claims are more probable than not. It is not the HOA's job to disprove the allegations; the homeowner must provide evidence of greater weight.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that, as alleged, Caribbean has violated CC&Rs…

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Procedure
  • Burden of Proof
  • Evidence

Question

Does the Department of Real Estate have jurisdiction to hear disputes about CC&R violations and maintenance issues?

Short Answer

Yes, the Department has jurisdiction to receive petitions and hear disputes regarding property owners and condominium associations.

Detailed Answer

The decision affirms that the Tribunal has the authority to hear contested matters between owners and associations regarding alleged violations of the CC&Rs and statutes.

Alj Quote

The Department has jurisdiction to receive petitions, hear disputes between a property owner and a condominium community association, and take other actions pursuant to Arizona Revised Statutes (A.R.S.), Title 33, Chapter 16.

Legal Basis

A.R.S. Title 33, Chapter 16

Topic Tags

  • Jurisdiction
  • ADRE Authority
  • Dispute Resolution

Question

Who is responsible for paying the filing fee if the homeowner loses the hearing?

Short Answer

The homeowner (Petitioner) typically bears the cost of the filing fee if the petition is dismissed.

Detailed Answer

In this case, after dismissing the homeowner's petition, the judge ordered the homeowner to bear the cost of the $500 filing fee.

Alj Quote

IT IS FURTHER ORDERED that Petitioner bears his $500.00 filing fee.

Legal Basis

Administrative Order

Topic Tags

  • Fees
  • Penalties
  • Hearing Costs

Question

What specifically counts as a 'limited common element' under Arizona law?

Short Answer

Fixtures like shutters, awnings, balconies, and patios that are outside a unit's boundaries but designed to serve that single unit.

Detailed Answer

State statute specifically lists items such as doorsteps, stoops, porches, balconies, and exterior doors as limited common elements if they are designed for the exclusive use of one unit.

Alj Quote

Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, entryways or patios, and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit's boundaries, are limited common elements allocated exclusively to that unit.

Legal Basis

A.R.S. § 33-1212

Topic Tags

  • Definitions
  • Limited Common Elements
  • Statutes

Question

Can the HOA Board make rules regarding the use of common elements without a vote of the owners?

Short Answer

Yes, if the CC&Rs grant the Board the exclusive right to manage and regulate common elements.

Detailed Answer

The CC&Rs in this case provided the Board with the exclusive power to establish rules governing the use and maintenance of common elements.

Alj Quote

The Board shall have the exclusive right and power to establish and impose rules and regulations governing the use, maintenance and development of all and any part of the Common Elements…

Legal Basis

CC&Rs Article 3, Section 3.4

Topic Tags

  • Board Authority
  • Rules and Regulations
  • Common Elements

Case

Docket No
21F-H2120009-REL
Case Title
John D Klemmer v. Caribbean Gardens Association
Decision Date
2020-12-17
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • John D. Klemmer (petitioner)
    represented himself

Respondent Side

  • Nicole D. Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Alex Gomez (board member)
    Caribbean Board
    testified at hearing
  • Lydia A. Pierce Linsmeier (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP

Neutral Parties

  • Kay A. Abramsohn (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Debra K Morin v. Solera Chandler Homeowners’ Association, Inc.

Posted on by

Case Summary

Case ID 20F-H2020051-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-01-08
Administrative Law Judge Kay Abramsohn
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Debra K. Morin Counsel —
Respondent Solera Chandler Homeowners' Association, Inc. Counsel Lydia A. Perce Linsmeier, Esq.

Alleged Violations

CC&R Article 7, Section 7.1

Outcome Summary

The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.

Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.

Key Issues & Findings

Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times

Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.

Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. 33-1801 et seq.
  • A.R.S. §§ 32-2102
  • A.R.S. §§ 32-2199 et al.
  • A.R.S. § 32-2199.05
  • A.R.S. §§ 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • CC&R Article 7, Section 7.1
  • CC&R Article 7, Section 7.2
  • CC&R Article 9, Section 9.5
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. ADMIN. CODE R2-19-116

Analytics Highlights

Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Additional Citations:

  • A.R.S. 33-1801 et seq.
  • A.R.S. §§ 32-2102
  • A.R.S. §§ 32-2199 et al.
  • A.R.S. § 32-2199.05
  • A.R.S. §§ 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • CC&R Article 7, Section 7.1
  • CC&R Article 7, Section 7.2
  • CC&R Article 9, Section 9.5
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. ADMIN. CODE R2-19-116

Video Overview

Audio Overview

Decision Documents

20F-H2020051-REL Decision – 816310.pdf

Uploaded 2026-04-24T11:26:18 (199.6 KB)

20F-H2020051-REL Decision – 847175.pdf

Uploaded 2026-04-24T11:26:21 (246.5 KB)

Briefing Document: Morin v. Solera Chandler Homeowners’ Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Rehearing Decision in the case of Debra K. Morin versus the Solera Chandler Homeowners’ Association, Inc. (Solera), dated January 8, 2021. The central dispute involved a homeowner’s allegation that the association failed to maintain its common areas in good condition and repair.

The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case, finding conclusively in favor of the Solera HOA. The decision rested on a critical provision within the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which designates the Solera Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas. This clause grants the Board exclusive discretion, superseding an individual homeowner’s opinion on the timing or quality of maintenance.

Despite the petitioner presenting extensive photographic evidence documenting various maintenance issues, the ALJ concluded that this evidence failed to prove a violation of the governing documents. The petitioner did not meet her burden of proving by a preponderance of the evidence that the Board had acted outside its granted authority. The ruling affirms that the authority of the Board is explicitly elevated above that of an individual homeowner in matters of common area maintenance under the controlling legal documents.

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I. Case Background and Procedural History

The case originates from a petition filed by Debra K. Morin, a four-year resident of the Solera community, against the Solera Chandler Homeowners’ Association. The matter was adjudicated by the Arizona Office of Administrative Hearings (Tribunal).

A. Initial Petition

On March 12, 2020, Ms. Morin filed a two-issue petition with the Arizona Department of Real Estate, alleging that Solera, its Board of Directors, and its management company (Premier) had violated numerous governing documents, including the Articles of Incorporation, By-Laws, CC&Rs, and Rules & Regulations (R&Rs).

• Issue #1: Alleged that Solera did not permit “direct communication from homeowners” and sought to have this “policy” rescinded.

• Issue #2: Alleged that Solera was not providing oversight to the General Manager in maintaining the “Areas of Association Responsibility” (AREAS) in “good condition and repair at all times.” Specific complaints included uncontrolled weeds and poor maintenance of the Community Center and other common areas.

B. Procedural Developments

• Motion to Dismiss: Solera filed a Motion to Dismiss, arguing the issues were outside the Department of Real Estate’s jurisdiction.

• Withdrawal of Issue #1: At a May 20, 2020 hearing, the Tribunal noted its jurisdiction did not extend to non-governing documents like the Board’s Code of Ethics. Consequently, Ms. Morin withdrew Issue #1. The Tribunal denied the Motion to Dismiss for the remaining “bare-bones” maintenance allegation in Issue #2.

• Initial Decision (August 19, 2020): Following the original hearing, the ALJ issued a decision concluding that Solera was the “sole judge” regarding maintenance of the AREAS and had not violated its governing documents. The petition was dismissed.

• Rehearing Request (September 24, 2020): Ms. Morin filed a request for rehearing, citing irregularities in the proceedings, misconduct by the prevailing party, and arguing the decision was arbitrary and capricious, particularly in its interpretation of CC&R Article 7, Section 7.1.

• Rehearing Granted and Conducted: The Commissioner of the Arizona Department of Real Estate granted the rehearing, which was conducted telephonically on December 16, 2020.

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II. Core Arguments of the Parties

The fundamental conflict centered on the interpretation of the maintenance standards outlined in the community’s CC&Rs.

A. Petitioner’s Position (Debra K. Morin)

Ms. Morin’s case was built on the principle of equal application of maintenance standards.

• Central Argument: The same maintenance standard requiring homeowners to keep their lots “in good condition and repair at all times” (per CC&R Article 7, Section 7.2) must be applied equally to Solera’s responsibility for the common AREAS (per CC&R Article 7, Section 7.1).

• Core Belief: Because homeowners are given no discretion regarding delays in maintenance, Solera should not be able to take months to address reported issues.

• Evidence Presented: The petitioner submitted extensive documentation, including over 80 photographs (referenced in the rehearing as “310 pictures”), emails, and other documents. This evidence was intended to show persistent maintenance failures, including:

◦ Uncontrolled weeds in granite rock locations

◦ Poor exterior condition of the Community Center

◦ Deficiencies in street asphalt, storm drains, sidewalks, and curbing

◦ Water pooling and intrusion issues

◦ Exposed landscaping lights and irrigation lines

◦ Unremoved tree stumps

B. Respondent’s Position (Solera HOA)

Solera’s defense relied entirely on the specific authority granted to its Board by the governing documents.

• Central Argument: The association met its responsibilities, and the petitioner’s subjective opinions about what, when, or how maintenance should be done are irrelevant.

• Dispositive Legal Provision: Solera consistently cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”

• Interpretation: This provision grants the Board exclusive discretion and authority to determine the nature and timing of maintenance, insulating its decisions from a single homeowner’s critique.

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III. Analysis and Key Findings of the Administrative Law Judge

The Rehearing Decision provided a thorough review of the evidence and legal arguments, ultimately reinforcing the original ruling in favor of Solera.

A. The “Sole Judge” Clause and Board Authority

The ALJ’s conclusion hinged on the unambiguous language of the CC&Rs, which establishes a clear hierarchy of authority.

• CC&R Article 7, Section 7.1: This article was identified as the dispositive text. It states, in pertinent part: “the Board ‘shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS], but all [AREAS], and the Improvements located thereon, shall be maintained in good condition and repair at all times.'” The ALJ found that the “sole judge” provision grants the Board exclusive authority to determine how the “good condition and repair” standard is met.

• CC&R Article 9, Section 9.5: This section further strengthens the Board’s position by granting Solera the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with its interpretation being “final, conclusive and binding.”

• Conclusion on Authority: The ALJ concluded that these provisions clearly lift the Board’s authority above that of an individual homeowner in determining appropriate maintenance.

B. Rejection of the “Equal Standard” Argument

The petitioner’s primary argument for an equal, non-discretionary standard for both the HOA and homeowners was explicitly rejected.

• The ALJ found that the petitioner “failed to provide legal support for her argument that the same maintenance standard is required to be applied to the Board as it is applied to a homeowner.”

• The governing documents themselves create different levels of authority and obligation for the Board versus individual owners.

C. Evaluation of Evidence and Burden of Proof

• Burden of Proof: The decision reiterates that the petitioner bears the burden of proving a violation by a “preponderance of the evidence.”

• Photographic Evidence: The ALJ acknowledged reviewing all photographs from both hearings. The decision states that this evidence successfully documented “the existence, at those dates embedded in the photographs, of items that deal with maintenance and repairs in various locations of Solera AREAS.”

• Failure to Prove a Violation: Crucially, while the photos proved maintenance issues existed, they did not prove a violation of the CC&Rs. Because the Board is the “sole judge,” the existence of a weed or a cracked curb does not automatically constitute a breach of its duties, as the Board retains discretion over the timeline and method of repair.

D. Jurisdictional Limitations

The decision affirmed the Tribunal’s limited jurisdiction, noting that many of the petitioner’s underlying frustrations were not legally actionable in this venue.

• Not Actionable: A homeowner’s dissatisfaction with the Board, its management company, or the General Manager is “not within the purview of this process or the jurisdiction of the Tribunal.”

• Irrelevant Documents: Arguments based on City of Chandler standards, the landscaping contract with Integrated Landscape Management (ILM), or Premier’s General Manager job description were deemed irrelevant, as the Tribunal’s review is limited to the association’s governing documents and applicable state statutes.

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IV. Final Order and Conclusion

Based on an exhaustive review of the record from both the original hearing and the rehearing, the Administrative Law Judge reached a definitive conclusion.

• Final Finding: The petitioner failed to sustain her burden of proof to establish a violation by Solera of the governing documents. The ALJ concluded that Solera is in compliance with its governing documents, including CC&R Article 7, Section 7.1.

• Order:

◦ IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.

◦ The order was issued on January 8, 2021.

◦ As a decision issued after a rehearing, the order is binding on the parties. Any further appeal must be filed with the Superior Court within 35 days from the date of service.

Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.

This guide provides a comprehensive review of the administrative rehearing case No. 20F-H2020051-REL-RHG, between Petitioner Debra K. Morin and Respondent Solera Chandler Homeowners’ Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms derived from the case documents.

Short-Answer Quiz

Answer each of the following questions in 2-3 sentences based on the information provided in the case decision.

1. Who were the primary parties in this case, and who represented them at the telephonic hearing on December 16, 2020?

2. What were the two initial issues Petitioner Debra K. Morin raised in her petition filed on March 12, 2020?

3. Why did the Petitioner withdraw Issue #1 from her petition during the May 20, 2020 hearing?

4. What was the Petitioner’s central argument regarding the maintenance standard that Solera should be held to?

5. What type of evidence did the Petitioner primarily present to document the alleged maintenance failures in the Areas of Association Responsibility (AREAS)?

6. What specific clause in the CC&Rs did Solera (the Respondent) rely on to defend its actions and decisions regarding maintenance?

7. What were the primary reasons the Commissioner of the Arizona Department of Real Estate granted the Petitioner’s request for a rehearing?

8. How did the Administrative Law Judge rule on the relevance of non-governing documents, such as the City of Chandler ordinances and the Premier Management Company job description?

9. What is the legal standard of proof that a petitioner must meet in these proceedings, and how is it defined in the decision?

10. What was the final conclusion and order of the Administrative Law Judge in the Rehearing Decision issued on January 8, 2021?

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Answer Key

1. The primary parties were the Petitioner, Debra K. Morin, who represented herself, and the Respondent, Solera Chandler Homeowners’ Association (Solera). Solera was represented by Lydia Linsmeier, Esq.

2. Issue #1 alleged that Solera did not allow direct communication from homeowners. Issue #2 alleged that Solera, its Board, and its management company were not providing proper oversight to maintain the Areas of Association Responsibility (AREAS) in good condition and repair.

3. The Petitioner withdrew Issue #1 after the Tribunal ruled that the statutory parameters of its jurisdiction did not include the interpretation or application of a non-governing document like the Board’s Code of Ethics. The allegations regarding ethics and mismanagement based on this code were therefore removed from consideration.

4. The Petitioner’s central argument was that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that just as homeowners are required by CC&R Article 7, Section 7.2 to maintain their lots in good condition at all times, Solera must be held to the same standard for common AREAS under CC&R Article 7, Section 7.1.

5. The Petitioner presented an “enormity” of photographic evidence to document the maintenance issues. The decision notes she presented over eighty photographs at the original hearing and an additional “310 pictures” were mentioned in the rehearing, showing weeds, debris, exposed wiring, and other issues at various dates.

6. Solera relied on CC&R Article 7, Section 7.1, which states that the Solera Board of Directors “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Solera argued that the Petitioner’s subjective opinions on maintenance were therefore not relevant.

7. The rehearing was granted for reasons outlined in the Petitioner’s request, which claimed: irregularities in the proceedings, misconduct by the prevailing party, and that the original decision was arbitrary, capricious, an abuse of discretion, not supported by evidence, or contrary to law.

8. The Judge ruled that such documents were not relevant or justiciable. City standards were not under review, and the management company’s job description and landscape contract were not Solera governing documents, so they could not be used to prove a violation of the association’s governing documents.

9. The petitioner bears the burden of proving their case by a “preponderance of the evidence.” This is defined as proof that convinces the trier of fact that the contention is more probably true than not, and it represents the greater weight of evidence.

10. The Administrative Law Judge concluded that the Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents. The Judge found Solera to be the prevailing party, in compliance with CC&R Article 7, Section 7.1, and ordered that the Petitioner’s appeal be dismissed.

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Suggested Essay Questions

The following questions are designed to encourage deeper analysis of the case. No answers are provided.

1. Analyze the balance of power between a homeowner and an HOA as depicted in this case. Discuss how specific clauses in the CC&Rs, particularly Article 7 (Section 7.1) and Article 9 (Sections 9.5 and 9.9), grant authority to the Board and limit the recourse available to an individual owner within the association’s own framework.

2. Examine the role and limitations of evidence in this administrative hearing. Why was the Petitioner’s photographic evidence, despite its volume, ultimately insufficient to meet the burden of proof? Discuss the distinction made by the Tribunal between evidence of a maintenance issue and evidence of a violation of the governing documents.

3. The Petitioner argued for an equal application of the “maintenance standard” to both homeowners and the HOA, stating “[t]here must be equal consideration to have a valid contract.” Evaluate this argument in the context of the specific language found in the Solera CC&Rs. Is the concept of “equal consideration” legally applicable in the way the Petitioner suggests?

4. Discuss the jurisdiction of the Arizona Office of Administrative Hearings (the Tribunal) in HOA disputes as described in the decision. Explain why the Tribunal could rule on the maintenance of common areas but had to dismiss claims related to the Solera Code of Ethics, City of Chandler ordinances, and Premier Management’s internal documents.

5. Based on the findings of fact, trace the procedural journey of this case from the initial petition to the final rehearing order. Identify the key turning points, such as the Motion to Dismiss and the Order Granting Rehearing, and explain their impact on the scope and outcome of the dispute.

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Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

The judicial authority, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings, makes findings of fact, issues decisions, and conducts rehearings.

Areas of Association Responsibility (AREAS)

The common areas within the Solera community that the homeowners’ association is responsible for managing and maintaining. This includes landscaping, the Community Center exterior, street conditions, storm drains, sidewalks, walls, and curbing.

Articles of Incorporation

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit A.

By-Laws

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit B.

CC&Rs (Declaration of Covenants, Conditions, and Restrictions)

A primary governing document for the Solera at Springfield Lakes community. It outlines the rights and responsibilities of both the homeowners and the association.

Maintenance Standard

Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”

Motion to Dismiss

A formal request filed by a party (in this case, Solera) asking for a petition or case to be dismissed on the grounds that the issues are outside the Department’s jurisdiction or that the requested relief cannot be granted as a matter of law.

Petitioner

The party who initiates a legal action or petition. In this case, Debra K. Morin, a homeowner in the Solera community.

Preponderance of the Evidence

The standard of proof required for a petitioner to win in these proceedings. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Premier Management Company (Premier)

The management company hired by the Solera Board of Directors to handle duties including the oversight of a General Manager.

Project Documents

Defined in CC&R Article 1, Section 1.37 as the CC&Rs, any supplements to the CC&Rs, the By-Laws, the Rules and Regulations (R&Rs), and the Design Guidelines.

Respondent

The party against whom a petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.

R&Rs (Rules and Regulations)

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit D.

Tribunal

A term used to refer to the Arizona Office of Administrative Hearings (OAH), the body responsible for conducting administrative hearings for disputes referred by the Arizona Department of Real Estate.

🧑‍⚖️

20F-H2020051-REL-RHG

1 source

This document presents an Administrative Law Judge Rehearing Decision regarding a dispute between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The Petitioner initially filed a two-issue complaint with the Arizona Department of Real Estate alleging that the HOA had violated various governing documents, primarily concerning lack of direct homeowner communication and a failure to maintain Association Responsibility Areas (AREAS) in good condition. After the first issue was withdrawn due to jurisdictional limitations, the initial decision dismissed the petition, finding the HOA was the sole judge of appropriate maintenance under the Covenants, Conditions, and Restrictions (CC&Rs). This rehearing decision, granted due to claims of procedural irregularities and arbitrary findings, ultimately reaffirms the original dismissal, concluding that the Petitioner failed to meet the burden of proof to establish a violation of the governing documents.

Case Participants

Petitioner Side

  • Debra K. Morin (petitioner)
    Represented herself

Respondent Side

  • Lydia A. Perce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Solera Chandler Homeowners' Association
  • Denise Frazier (general manager/witness)
    Premier Management Company / Solera Chandler Homeowners' Association
    Solera's onsite general manager who testified

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge for both original and rehearing decisions
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner of the Arizona Department of Real Estate
  • Felicia Del Sol (administrative)
    Transmitted the original August 19, 2020 Decision

Steven D. Stienstra v. Cedar Ridge Homeowners Association

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

Case Summary

Case ID 19F-H1918033-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-04-01
Administrative Law Judge Kay Abramsohn
Outcome The Petitioner was the prevailing party. The ALJ affirmed that the HOA violated its CC&Rs regarding enforcement procedures, particularly by failing to adhere to Section 18 requirements and incorrectly applying Section 1.1 against the owner, rendering the legal fee demands improper. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Steven D. Stienstra Counsel —
Respondent Cedar Ridge Homeowners Association Counsel Michelle Molinario, Diana J. Elston, Keith D. Collett

Alleged Violations

A.R.S. § 33-1806.01; CC&Rs Section 1.1; CC&Rs Section 18

Outcome Summary

The Petitioner was the prevailing party. The ALJ affirmed that the HOA violated its CC&Rs regarding enforcement procedures, particularly by failing to adhere to Section 18 requirements and incorrectly applying Section 1.1 against the owner, rendering the legal fee demands improper. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,.

Why this result: The HOA failed to follow the explicit due process requirements (written notice and 30 days to appear) mandated by CC&Rs Section 18 for enforcement against the owner, and incorrectly relied on Section 1.1 to justify its demand for unauthorized flat fees,,,,.

Key Issues & Findings

HOA enforcement action regarding CC&R violations and asserted legal fees

Petitioner challenged the HOA's enforcement actions regarding short-term rentals and leasing less than the entire lot. The ALJ found the HOA proceeded inappropriately under Section 1.1 (intended for action against occupants on the owner's behalf) and failed to follow the mandatory enforcement requirements of Section 18, thus violating its own CC&Rs. Consequently, the asserted legal fees were not assigned to Petitioner,,,.

Orders: The Petition was granted. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,. The asserted legal fees of $1,500 and $2,600 sought by the HOA were determined not to be assignable to the Petitioner,.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1806.01
  • CC&Rs Section 1.1
  • CC&Rs Section 18

Analytics Highlights

Topics: HOA Enforcement, CC&R Violation, Legal Fees, Due Process, Rental Restriction
Additional Citations:

  • A.R.S. § 33-1806.01
  • CC&Rs Section 1.1
  • CC&Rs Section 18
  • A.R.S. § 10-3830

Video Overview

Audio Overview

Decision Documents

19F-H1918033-REL-RHG Decision – 779896.pdf

Uploaded 2026-01-23T17:27:52 (210.6 KB)

19F-H1918033-REL-RHG Decision – ../19F-H1918033-REL/753362.pdf

Uploaded 2026-01-23T17:27:56 (169.0 KB)

Briefing Document: Stienstra v. Cedar Ridge Homeowners Association

Executive Summary

This document synthesizes two Administrative Law Judge (ALJ) decisions concerning a dispute between homeowner Steven D. Stienstra (Petitioner) and the Cedar Ridge Homeowners Association (HOA/Respondent). The core conflict centered on the HOA’s enforcement actions and subsequent demand for attorney’s fees related to alleged violations of Covenants, Conditions, and Restrictions (CC&Rs) prohibiting short-term rentals.

The ALJ ultimately ruled in favor of the Petitioner in both the initial hearing and a subsequent rehearing. The decisions established that the HOA violated its own CC&Rs by employing an incorrect and unreasonable enforcement procedure. Specifically, the HOA misapplied Section 1.1 of the CC&Rs, which governs an owner’s failure to take action against a non-compliant tenant, instead of following the prescribed due process for owner violations outlined in Section 18. Consequently, the ALJ concluded that the attorney’s fees demanded by the HOA were not assignable to the Petitioner. The final order required the HOA to reimburse the Petitioner’s $500 filing fee, affirming that the HOA’s actions, including a series of escalating cease and desist letters, were procedurally flawed and unreasonable given the circumstances.

Case Overview and Core Dispute

The case, No. 19F-H1918033-REL, involved a petition filed by Steven D. Stienstra in November 2018 with the Arizona Department of Real Estate. Mr. Stienstra alleged that the Cedar Ridge Homeowners Association, a voluntary board in Sedona, Arizona, violated A.R.S. § 33-1806.01 and Sections 1.1 and 18 of its own CC&Rs.

The dispute originated from short-term rental activity at Mr. Stienstra’s property, which he purchased in August 2017. While the Petitioner admitted to the initial violations, he contended that he ceased the activity immediately after a phone call from the HOA President in April 2018. Despite his assurances, the HOA, acting on legal advice, pursued enforcement through a series of cease and desist letters, culminating in a demand for $2,600 in attorney’s fees.

The central issue before the Office of Administrative Hearings was whether the HOA’s enforcement process was proper under its governing documents and, consequently, whether Mr. Stienstra was liable for the legal fees incurred by the HOA.

Chronology of the Dispute

Details

Aug 2017

Property Purchase

Steven D. Stienstra purchases the residence. He acknowledges the CC&R restrictions on short-term rentals.

Jan-Apr 2018

Rental Activity

Stienstra’s son uses VRBO to manage stays for friends and family, which expands to produce some revenue from rentals of less than 30 days.

Apr 3, 2018

Motor Home Incident

HOA Secretary Vic Burolla calls Stienstra about a motor home parked in the driveway, a separate CC&R violation.

April 2018

Ferguson’s Phone Call

HOA President Bill Ferguson calls Stienstra about the short-term rentals. Recollections vary, but Stienstra claims he agreed to cease the activity. Ferguson’s impression was that Stienstra was not going to stop.

Apr 26, 2018

HOA Retains Counsel

The first noted contact between the HOA and its law firm occurs after the phone call with Stienstra.

May 11, 2018

First Cease & Desist Letter

The HOA’s attorney sends a letter demanding Stienstra cease all rentals of less than 30 days and rentals of less than the entire property within ten days, threatening a lawsuit under Section 1.1 of the CC&Rs.

June 1, 2018

Second Cease & Desist Letter

The HOA rejects Stienstra’s explanation of compliance. The letter demands payment of $1,500.00 by July 2, 2018, described as a “flat amount to resolve the matter.”

June 17, 2018

Third Cease & Desist Letter

Citing a new Facebook Marketplace post by Stienstra’s son (offering to lease bedrooms separately), the HOA sends another letter. The demand for attorney’s fees increases to $2,600.00.

Sep 4, 2018

Informal Meeting

At Stienstra’s request, three HOA board members meet with him in an unofficial capacity to discuss the dispute. The meeting transcript reflects a tense relationship.

Nov 2018

Petition Filed

Stienstra files his petition with the Arizona Department of Real Estate.

Oct 7, 2019

Initial Hearing

The Office of Administrative Hearings conducts a hearing on the matter.

Nov 15, 2019

Initial Decision

ALJ Kay Abramsohn issues a decision finding the HOA violated its CC&Rs and grants Stienstra’s petition.

Dec 19, 2019

Rehearing Request

The HOA requests a rehearing, arguing the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion.”

Mar 12, 2020

Rehearing

A rehearing is conducted where the HOA introduces new arguments, including that its board acted in good faith on legal advice.

Apr 1, 2020

Rehearing Decision

The ALJ issues a final decision affirming the original order, finding Stienstra to be the prevailing party and ordering the HOA to reimburse his $500 filing fee.

Analysis of Arguments and Evidence

Petitioner’s Position (Steven D. Stienstra)

• Compliance: Stienstra argued that he and his son ceased all short-term rental activity immediately following the April 2018 phone call from HOA President Bill Ferguson.

• Improper Procedure: The core of his argument was that the HOA failed to follow the enforcement procedures mandated by Section 18 of the CC&Rs. This section requires the Board to provide written notice of a breach, a 30-day period for the owner to appear before the Board, and a reasonable time (up to 60 days) to remedy the breach before levying fines.

• Misapplication of CC&Rs: Stienstra contended the HOA incorrectly proceeded under Section 1.1, which he argued applies to an owner’s failure to take legal action against a non-compliant tenant, not direct violations by the owner themselves.

• Unjustified Fees: Because the HOA did not provide due process and followed an improper enforcement path, Stienstra argued he should be released from any liability for the attorney’s fees the HOA incurred.

Respondent’s Position (Cedar Ridge HOA)

• Reasonable Belief of Violation: The HOA argued it had reason to believe violations were ongoing. It cited the continued presence of a VRBO listing (which Stienstra’s son claimed was inactive for booking) and observations of “multiple cars parked there daily” as evidence.

• Reliance on Legal Counsel: The HOA maintained that its actions were reasonable because it sought and followed the advice of its attorney. At the rehearing, it cited A.R.S. § 10-3830, arguing it discharged its duties in good faith.

• Discretion in Enforcement: The Board believed it had the discretion to enforce the CC&Rs under either Section 1.1 or Section 18. Board Secretary Vic Burolla testified at the rehearing that Section 1.1 was chosen because it “seemed more expeditious, to be able to collect” legal fees.

• “Unclean Hands” Doctrine: At the rehearing, the HOA argued for the first time that because Stienstra had admittedly violated the CC&Rs initially, he had “unclean hands” and was not entitled to seek relief regarding the HOA’s subsequent actions.

Key Evidence Presented

• CC&Rs: The text of Section 1.1 (“Leasing”) and Section 18 (“Enforcement of Covenants”) were central to the case.

• Cease & Desist Letters: The series of three letters from the HOA’s attorney documented the escalating demands and the HOA’s legal strategy.

• Testimony of Board Members: Testimony from Bill Ferguson and Vic Burolla provided insight into the Board’s decision-making process, including their impression of the April 2018 phone call and their justification for hiring an attorney. Vic Burolla provided conflicting testimony, stating in the initial hearing he was “not aware of any specific instructions in the CC&Rs” for notifications, but stating in the rehearing that the Board had discussed the benefits of proceeding under either Section 1.1 or Section 18.

• VRBO and Facebook Listings: Printouts of the online rental listings were used as evidence by the HOA to demonstrate ongoing or attempted violations.

• Meeting Transcript: A transcript of the informal September 4, 2018 meeting revealed the “tense relationship” and communication breakdown between the parties. When asked who was in the house if not tenants, Stienstra replied, “It’s not anybody’s business who’s in our house, really.”

Administrative Law Judge’s Findings and Rulings

The ALJ’s conclusions were consistent across both the initial decision and the rehearing decision, ultimately finding that the Petitioner had proven his case by a preponderance of the evidence.

Interpretation of Governing CC&Rs

• Section 1.1 vs. Section 18: The ALJ decisively concluded that the two sections govern different circumstances.

◦ Section 1.1 applies when an occupant or lessee violates the CC&Rs. It requires the owner to take legal action against that occupant within 10 days of a written demand from the Board. If the owner fails, the Board may act “on behalf of such owner against owner’s occupant.” The ALJ found these were “not the circumstances in this case.”

◦ Section 1.8 is the proper procedure for violations committed directly by the owner. It provides a clear due process framework: written notice, an opportunity to be heard by the Board, and a period to cure the breach.

• Conclusion: The ALJ ruled that the “appropriate action that was required to be taken by Respondent was set forth in Section 18 of the CC&Rs.” By using Section 1.1, the HOA committed a procedural violation.

Assessment of HOA Enforcement Actions

• Verbal Warning: The ALJ characterized the April 2018 phone call from Mr. Ferguson as “appropriate in the nature of education” but clarified it “is not an ‘enforcement’ action under the CC&Rs.”

• Unreasonable Continuation: The Judge found the HOA’s continued actions after the May 11 letter to be unreasonable. The decision notes that the HOA’s characterization of Stienstra “intentionally” continuing to violate the CC&Rs “simply demonstrates that the Board members did not and were not going to believe Petitioner or his son no matter what information they provided.”

• Distrust: The decision highlights the Board’s fundamental distrust, quoting Mr. Burolla’s testimony that even if the HOA had called to clarify the situation, “there’s no reason to suspect we would have been told the truth.”

Ruling on Attorney’s Fees

• Not Assignable to Petitioner: Because the HOA violated its own CC&Rs by following an improper enforcement procedure, the ALJ ruled that the “asserted legal fees are not assigned to Petitioner.”

• Improper Demand: The ALJ specifically analyzed the demand in the June 1, 2018 letter for “$1,500.00… authorized by the Board as a flat amount to resolve the matter.” The ruling states this amount “could only be looked at as either a settlement offer or as some sort of fine, which is not authorized under Section 1.1 but only under Section 18.” It was not a legitimate accounting of actual fees incurred as permitted by the CC&Rs.

• No Expenses Incurred Under Section 1.1: The Judge found that since Stienstra took action to stop the leasing, no legal action by the HOA “on behalf of the owner against the occupant” was required. Therefore, no expenses were actually incurred pursuant to the parameters of Section 1.1.

Final Decisions and Order

• Initial Decision (Nov 15, 2019): The petition was granted, and the HOA was ordered to reimburse Mr. Stienstra the $500.00 filing fee.

• Rehearing Decision (Apr 1, 2020): The ALJ affirmed the original order. The HOA’s new arguments regarding “good faith” and “unclean hands” did not alter the core finding of procedural failure. The final order declared the Petitioner the prevailing party and re-stated the requirement for the HOA to reimburse the filing fee.

Study Guide: Stienstra v. Cedar Ridge Homeowners Association

This study guide provides a comprehensive review of the administrative hearing and rehearing decisions in the case between petitioner Steven D. Stienstra and respondent Cedar Ridge Homeowners Association. It includes a short-answer quiz with an answer key, a series of essay questions for deeper analysis, and a glossary of key terms found in the legal decisions.

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the information provided in the case documents.

1. Who were the primary parties in this case, and what was the central issue that prompted the administrative hearing?

2. What specific violations of the CC&Rs did the homeowner, Steven Stienstra, or his son commit that initiated the dispute?

3. Describe the initial action taken by HOA President Bill Ferguson in April 2018 and explain why the Administrative Law Judge did not consider it a formal enforcement action.

4. The HOA’s attorneys sent three Cease & Desist letters. What was the primary demand of the first letter, and what financial demands were added in the second and third letters?

5. What were the two key sections of the CC&Rs at the center of the dispute, and what did each section generally govern?

6. Why did the Administrative Law Judge (ALJ) conclude that the HOA’s decision to proceed under Section 1.1 of the CC&Rs was inappropriate for the violations committed by the owner?

7. According to the ALJ’s decision, what specific procedural steps should the HOA have followed under Section 18 of the CC&Rs to properly enforce the covenants against an owner?

8. On what grounds did the Cedar Ridge HOA request a rehearing after the initial decision was issued in favor of the petitioner?

9. During the rehearing, the HOA introduced an “unclean hands” argument. What did this argument claim, and how did the ALJ respond to it?

10. What was the final, binding outcome of this case after the rehearing, including the ruling on attorney’s fees and the petitioner’s filing fee?

——————————————————————————–

Quiz Answer Key

1. The primary parties were the Petitioner, homeowner Steven D. Stienstra, and the Respondent, Cedar Ridge Homeowners Association (HOA). While the dispute began over rental violations, the central issue at the hearing was the liability for legal fees the HOA incurred and asserted were owed by the Petitioner.

2. The Petitioner’s son violated Section 1.1 of the CC&Rs by listing the property on VRBO for short-term rentals (less than 30 consecutive days) and producing revenue from January to April 2018. He also later posted on Facebook Marketplace offering to rent separate units within the home, which violated the rule requiring the lease of an “owner’s entire lot.”

3. HOA President Bill Ferguson made a phone call to Mr. Stienstra in April 2018 to bring the short-term rental violations to his attention. The ALJ characterized this as a “courtesy or informational call” and not a formal enforcement action because it did not comply with the written notice procedures required by either Section 1.1 or Section 18 of the CC&Rs.

4. The first letter (May 11, 2018) demanded that Stienstra cease all rentals of less than 30 days. The second letter (June 1, 2018) added a demand for $1,500 in attorney’s fees, and the third letter (June 17, 2018) increased this demand to $2,600.

5. The key sections were Section 1.1 and Section 18. Section 1.1 governed leasing requirements (e.g., minimum 30-day term) and detailed a process for an owner to take action against a non-compliant tenant (occupant). Section 18, titled “Enforcement of Covenants,” provided the formal process for the HOA Board to take action against a non-compliant owner.

6. The ALJ concluded that Section 1.1 was inappropriate because its enforcement mechanism empowers the HOA to act “on behalf of such owner against owner’s occupant” if the owner fails to do so. In this case, the HOA was taking direct action against the owner (Stienstra) for his own violations, a scenario that the ALJ determined was governed by Section 18.

7. Under Section 18, the HOA was required to notify the owner “in writing of the breach,” provide the owner 30 days to appear before the Board to respond, and then grant a reasonable time period (not to exceed 60 days) to remedy the breach before it could levy a fine.

8. The HOA requested a rehearing on the grounds that the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion, and was not support by the evidence.” The HOA specifically alleged the ALJ had not considered evidence that it had reason to believe violations were continuing and had erred in interpreting the CC&Rs.

9. The HOA argued that because the Petitioner had admittedly violated the CC&Rs, he had “unclean hands” and therefore was not entitled to seek relief from the Department regarding the HOA’s actions. The ALJ noted that the remedy sought by the Petitioner was monetary (release from fees), not equitable, and the core issue remained whether the HOA’s enforcement actions were valid under its own governing documents.

10. The final outcome, upheld on rehearing, was that the Petitioner’s petition was granted. The HOA was ordered to reimburse Mr. Stienstra for his $500 filing fee, and the ALJ concluded that the asserted legal fees were not assignable to him due to the HOA’s failure to follow its own CC&R enforcement procedures.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response to each question using only the facts and arguments presented in the provided legal decisions.

1. Analyze the procedural missteps made by the Cedar Ridge HOA Board in its enforcement actions against Steven Stienstra. How did its choice to proceed under Section 1.1 instead of Section 18 fundamentally undermine its position, according to the Administrative Law Judge?

2. Discuss the role of communication and miscommunication in escalating the conflict between Stienstra and the HOA. Use specific examples from the text, such as the Ferguson phone call, the continued VRBO listing, the HOA’s internal distrust, and the unofficial board meeting, to illustrate your points.

3. Evaluate the HOA’s argument on rehearing that its actions were protected because they acted in good faith based on the advice of their attorney, as allowed under A.R.S. § 10-3830. Why was this argument ultimately unpersuasive to the Administrative Law Judge?

4. The central issue in this case evolved from CC&R violations to a dispute over attorney’s fees. Trace this evolution, explaining how each Cease & Desist letter escalated the financial stakes and why the ALJ ultimately determined the fees were not assignable to Stienstra.

5. Compare and contrast the enforcement mechanisms detailed in Section 1.1 and Section 18 of the Cedar Ridge CC&Rs. Explain the specific purpose of each section and why applying the correct one was critical to the outcome of this case.

——————————————————————————–

Glossary

Definition

A.R.S. § 33-1806.01

An Arizona Revised Statute providing that a planned community property owner may use their property as a rental unless prohibited in the declaration and must abide by the declaration’s rental time period restrictions.

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, hears evidence, and makes legal findings and rulings. In this case, the ALJ was Kay Abramsohn.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving the HOA’s violations by a preponderance of the evidence.

Covenants, Conditions, and Restrictions. The governing legal documents that set forth the rules for a planned community or homeowners association.

Cease & Desist Letter

A formal written demand from an attorney or party to stop (cease) and not restart (desist) an allegedly illegal or infringing activity.

Declaration

The legal document that creates a homeowners association and its CC&Rs.

Forcible Entry and Detainer

A legal action, often used for eviction, to recover possession of real property from someone who is in wrongful possession. Section 1.1 mentions this as an action an owner could take against a non-compliant tenant.

A legal claim or right against a property to secure the payment of a debt. Section 18 of the CC&Rs allows the HOA to place a lien on a property for an unpaid special assessment or fine.

Occupant

As used in Section 1.1, refers to a tenant or lessee under a lease agreement, distinct from the property owner.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, homeowner Steven D. Stienstra.

Preponderance of the Evidence

The standard of proof in this case, meaning that the evidence as a whole shows that the fact sought to be proved is more probable than not.

Respondent

The party against whom a petition is filed. In this case, the Cedar Ridge Homeowners Association.

Special Assessment

A charge levied by an HOA against an owner for a specific purpose, such as repaying attorney’s fees incurred by the HOA or as a fine, as described in Sections 1.1 and 18.

Unclean Hands

A legal doctrine arguing that a party who has acted unethically or in bad faith in relation to the subject of a complaint should not be entitled to seek relief. The HOA raised this argument against the Petitioner on rehearing.

An Expedia Group website containing listings for vacation property rentals, which the Petitioner’s son used to list the property.

Study Guide: Stienstra v. Cedar Ridge Homeowners Association

This study guide provides a comprehensive review of the administrative hearing and rehearing decisions in the case between petitioner Steven D. Stienstra and respondent Cedar Ridge Homeowners Association. It includes a short-answer quiz with an answer key, a series of essay questions for deeper analysis, and a glossary of key terms found in the legal decisions.

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the information provided in the case documents.

1. Who were the primary parties in this case, and what was the central issue that prompted the administrative hearing?

2. What specific violations of the CC&Rs did the homeowner, Steven Stienstra, or his son commit that initiated the dispute?

3. Describe the initial action taken by HOA President Bill Ferguson in April 2018 and explain why the Administrative Law Judge did not consider it a formal enforcement action.

4. The HOA’s attorneys sent three Cease & Desist letters. What was the primary demand of the first letter, and what financial demands were added in the second and third letters?

5. What were the two key sections of the CC&Rs at the center of the dispute, and what did each section generally govern?

6. Why did the Administrative Law Judge (ALJ) conclude that the HOA’s decision to proceed under Section 1.1 of the CC&Rs was inappropriate for the violations committed by the owner?

7. According to the ALJ’s decision, what specific procedural steps should the HOA have followed under Section 18 of the CC&Rs to properly enforce the covenants against an owner?

8. On what grounds did the Cedar Ridge HOA request a rehearing after the initial decision was issued in favor of the petitioner?

9. During the rehearing, the HOA introduced an “unclean hands” argument. What did this argument claim, and how did the ALJ respond to it?

10. What was the final, binding outcome of this case after the rehearing, including the ruling on attorney’s fees and the petitioner’s filing fee?

——————————————————————————–

Quiz Answer Key

1. The primary parties were the Petitioner, homeowner Steven D. Stienstra, and the Respondent, Cedar Ridge Homeowners Association (HOA). While the dispute began over rental violations, the central issue at the hearing was the liability for legal fees the HOA incurred and asserted were owed by the Petitioner.

2. The Petitioner’s son violated Section 1.1 of the CC&Rs by listing the property on VRBO for short-term rentals (less than 30 consecutive days) and producing revenue from January to April 2018. He also later posted on Facebook Marketplace offering to rent separate units within the home, which violated the rule requiring the lease of an “owner’s entire lot.”

3. HOA President Bill Ferguson made a phone call to Mr. Stienstra in April 2018 to bring the short-term rental violations to his attention. The ALJ characterized this as a “courtesy or informational call” and not a formal enforcement action because it did not comply with the written notice procedures required by either Section 1.1 or Section 18 of the CC&Rs.

4. The first letter (May 11, 2018) demanded that Stienstra cease all rentals of less than 30 days. The second letter (June 1, 2018) added a demand for $1,500 in attorney’s fees, and the third letter (June 17, 2018) increased this demand to $2,600.

5. The key sections were Section 1.1 and Section 18. Section 1.1 governed leasing requirements (e.g., minimum 30-day term) and detailed a process for an owner to take action against a non-compliant tenant (occupant). Section 18, titled “Enforcement of Covenants,” provided the formal process for the HOA Board to take action against a non-compliant owner.

6. The ALJ concluded that Section 1.1 was inappropriate because its enforcement mechanism empowers the HOA to act “on behalf of such owner against owner’s occupant” if the owner fails to do so. In this case, the HOA was taking direct action against the owner (Stienstra) for his own violations, a scenario that the ALJ determined was governed by Section 18.

7. Under Section 18, the HOA was required to notify the owner “in writing of the breach,” provide the owner 30 days to appear before the Board to respond, and then grant a reasonable time period (not to exceed 60 days) to remedy the breach before it could levy a fine.

8. The HOA requested a rehearing on the grounds that the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion, and was not support by the evidence.” The HOA specifically alleged the ALJ had not considered evidence that it had reason to believe violations were continuing and had erred in interpreting the CC&Rs.

9. The HOA argued that because the Petitioner had admittedly violated the CC&Rs, he had “unclean hands” and therefore was not entitled to seek relief from the Department regarding the HOA’s actions. The ALJ noted that the remedy sought by the Petitioner was monetary (release from fees), not equitable, and the core issue remained whether the HOA’s enforcement actions were valid under its own governing documents.

10. The final outcome, upheld on rehearing, was that the Petitioner’s petition was granted. The HOA was ordered to reimburse Mr. Stienstra for his $500 filing fee, and the ALJ concluded that the asserted legal fees were not assignable to him due to the HOA’s failure to follow its own CC&R enforcement procedures.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response to each question using only the facts and arguments presented in the provided legal decisions.

1. Analyze the procedural missteps made by the Cedar Ridge HOA Board in its enforcement actions against Steven Stienstra. How did its choice to proceed under Section 1.1 instead of Section 18 fundamentally undermine its position, according to the Administrative Law Judge?

2. Discuss the role of communication and miscommunication in escalating the conflict between Stienstra and the HOA. Use specific examples from the text, such as the Ferguson phone call, the continued VRBO listing, the HOA’s internal distrust, and the unofficial board meeting, to illustrate your points.

3. Evaluate the HOA’s argument on rehearing that its actions were protected because they acted in good faith based on the advice of their attorney, as allowed under A.R.S. § 10-3830. Why was this argument ultimately unpersuasive to the Administrative Law Judge?

4. The central issue in this case evolved from CC&R violations to a dispute over attorney’s fees. Trace this evolution, explaining how each Cease & Desist letter escalated the financial stakes and why the ALJ ultimately determined the fees were not assignable to Stienstra.

5. Compare and contrast the enforcement mechanisms detailed in Section 1.1 and Section 18 of the Cedar Ridge CC&Rs. Explain the specific purpose of each section and why applying the correct one was critical to the outcome of this case.

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Glossary

Definition

A.R.S. § 33-1806.01

An Arizona Revised Statute providing that a planned community property owner may use their property as a rental unless prohibited in the declaration and must abide by the declaration’s rental time period restrictions.

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, hears evidence, and makes legal findings and rulings. In this case, the ALJ was Kay Abramsohn.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving the HOA’s violations by a preponderance of the evidence.

Covenants, Conditions, and Restrictions. The governing legal documents that set forth the rules for a planned community or homeowners association.

Cease & Desist Letter

A formal written demand from an attorney or party to stop (cease) and not restart (desist) an allegedly illegal or infringing activity.

Declaration

The legal document that creates a homeowners association and its CC&Rs.

Forcible Entry and Detainer

A legal action, often used for eviction, to recover possession of real property from someone who is in wrongful possession. Section 1.1 mentions this as an action an owner could take against a non-compliant tenant.

A legal claim or right against a property to secure the payment of a debt. Section 18 of the CC&Rs allows the HOA to place a lien on a property for an unpaid special assessment or fine.

Occupant

As used in Section 1.1, refers to a tenant or lessee under a lease agreement, distinct from the property owner.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, homeowner Steven D. Stienstra.

Preponderance of the Evidence

The standard of proof in this case, meaning that the evidence as a whole shows that the fact sought to be proved is more probable than not.

Respondent

The party against whom a petition is filed. In this case, the Cedar Ridge Homeowners Association.

Special Assessment

A charge levied by an HOA against an owner for a specific purpose, such as repaying attorney’s fees incurred by the HOA or as a fine, as described in Sections 1.1 and 18.

Unclean Hands

A legal doctrine arguing that a party who has acted unethically or in bad faith in relation to the subject of a complaint should not be entitled to seek relief. The HOA raised this argument against the Petitioner on rehearing.

An Expedia Group website containing listings for vacation property rentals, which the Petitioner’s son used to list the property.

Case Participants

Petitioner Side

  • Steven D. Stienstra (petitioner)
    Appeared on his own behalf,.
  • Petitioner's son (witness)
    Related to Petitioner
    Managed rental property listings (referred to as 'Son'),,; testified at hearing,.

Respondent Side

  • Michelle Molinario (HOA attorney)
    Jones, Skelton & Hochuli, PLC.
    Represented Cedar Ridge Homeowners Association,.
  • Keith D. Collett (HOA attorney)
    Jones, Skelton & Hochuli, PLC.
    Represented Cedar Ridge Homeowners Association/HOA,,.
  • Diana J. Elston (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
    Represented Cedar Ridge Homeowners Association/HOA,.
  • Vic Burolla (board member)
    Cedar Ridge Homeowners Association
    HOA Board Secretary,,; witness at initial hearing,,; no longer Secretary by time of hearing,.
  • Bill Ferguson (board member)
    Cedar Ridge Homeowners Association
    HOA Board President,; no longer President by time of hearing,; witness at initial hearing.
  • Tucker (board member)
    Cedar Ridge Homeowners Association
    HOA Board Vice-president,; participated in September 4, 2018 meeting,.
  • Griffin (board member)
    Cedar Ridge Homeowners Association
    HOA Board Treasurer,; participated in September 4, 2018 meeting,.
  • Dick Ellis (board member)
    Cedar Ridge Homeowners Association
    May have attended portion of September 4, 2018 meeting,.

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge,,.
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Commissioner,,.

Joan A. Tober, vs. Civano 1 Neighborhood 1 Homeowners Association

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

Case Summary

Case ID 19F-H1918042-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-15
Administrative Law Judge Kay A. Abramsohn
Outcome The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joan A. Tober Counsel —
Respondent Civano 1 Neighborhood 1 Homeowners Association Counsel Diana J. Elston

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.

Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.

Key Issues & Findings

HOA violation of requirement to provide association records within ten business days.

Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.

Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Video Overview

Audio Overview

Decision Documents

19F-H1918042-REL-RHG Decision – 764197.pdf

Uploaded 2026-01-23T17:28:27 (187.4 KB)

19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/714863.pdf

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19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/725808.pdf

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Briefing Document: Tober v. Civano 1 Homeowners Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”

The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.

The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.

Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.

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Case Overview

This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).

Case Name

Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.

Case Number

19F-H1918042-REL

Adjudicating Body

Office of Administrative Hearings (OAH)

Administrative Law Judge

Kay A. Abramsohn

Core Issue

Alleged violation of A.R.S. § 33-1805, which governs member access to association records.

Initial Hearing Date

June 5, 2019

Initial Decision Date

July 29, 2019

Rehearing Date

December 11, 2019

Final Decision Date

January 15, 2020

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Key Parties and Individuals

• Petitioner: Joan A. Tober

◦ A homeowner in the Civano 1 Neighborhood since 2001.

◦ Previously worked for the company that developed the land/homes in the association area.

◦ Has served as a past Board member for the HOA.

◦ Served as an alternate member on the Finance Committee in 2018.

◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.

• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)

◦ The governing body for the planned community.

◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.

• Adjudicator: Kay Abramsohn

◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.

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Chronology of the Dispute

Nov 20, 2018

At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.

Nov 26, 2018

Petitioner sends her first email request for a copy of the Letter.

Nov 27, 2018

Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.

Nov 29, 2018

At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

Nov 29, 2018

At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.

Dec 13, 2018

Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”

Dec 26, 2018

Petitioner files her single-issue petition with the Arizona Department of Real Estate.

Jan 15-16, 2019

The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.

June 5, 2019

The initial administrative hearing is held.

July 29, 2019

Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.

Aug 5, 2019

Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”

Aug 23, 2019

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

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.

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Core Dispute and Arguments

Petitioner’s Position (Joan A. Tober)

1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”

2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.

3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).

Respondent’s Position (Civano 1 HOA)

1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).

2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.

3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.

4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.

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Key Findings of Fact and Evidence

The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.

• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”

• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.

• Petitioner’s Request and Failure to Clarify:

◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.

◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”

◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”

◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.

• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.

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Legal Rulings and Conclusions of Law

Initial Decision (July 29, 2019)

• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.

• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”

• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.

Final Decision on Rehearing (January 15, 2020)

• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.

• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”

• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”

• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”

• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”

• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.

Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association

This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. 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, legal arguments, and procedural history.

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Short Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.

1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?

2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?

3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?

4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?

5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?

6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?

7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?

8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?

9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.

10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?

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Answer Key

1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”

2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).

3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.

4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.

5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.

6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.

8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.

9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.

10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.

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Essay Questions

Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.

1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.

2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.

3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.

4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?

5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.

A.R.S. § 33-1805

The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.

Attorney-Client Privilege

A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”

Burden of Proof

The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.

Executive Session

A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.

An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

Office of Administrative Hearings (OAH)

The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.

Petition

The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.

Preponderance of the Evidence

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

Rehearing

A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”

Respondent

The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

The Letter

The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.

She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.

Introduction: The Fight for Information

Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.

This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.

1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.

The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”

Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.

The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.

2. Takeaway #2: Asking for “Everything” Can Get You Nothing.

Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.

After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”

In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:

An association is not required to guess what records are being requested.

The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.

3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.

What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.

But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:

Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.

Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.

Conclusion: Strategy Over Sheer Effort

The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.

This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?

Case Participants

Petitioner Side

  • Joan A. Tober (petitioner)
    Former Board member; current Finance Committee member

Respondent Side

  • Diana J. Elston (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
  • Mr. Mastrosimone (Board President)
    Civano 1 Neighborhood 1 Homeowners Association
    Testified at rehearing

Neutral Parties

  • Kay A. Abramsohn (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (Clerk)
  • Felicia Del Sol (Clerk)
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal