Tag Archives: Tammy L. Eigenheer

This summary details the hearing proceedings, key arguments, and final decision in the case of Nancy L. Pope v. La Vida Homeowners Association (No. 22F-H2221013-REL).

Key Facts and Issues

Petitioner Nancy L. Pope, a homeowner in the La Vida subdivision, filed a petition against the La Vida Homeowners Association (HOA), alleging violations of the HOA's Bylaws (Article IV, Section 2c) and CC&Rs (Article V, Section 1; Article VI, Section 1a). The central dispute stemmed from the HOA’s alleged failure to maintain or remove a bottle tree located on the Common Area adjacent to Petitioner’s property, resulting in root intrusion that caused heaving and cracking of Petitioner’s concrete slab and patio.

The damage was discovered in June 2021 during a home remodel, when Petitioner’s contractor tore up the concrete slab and found a substantial web of roots from the bottle tree. Petitioner sought total damages of $28,487, covering floor repair, patio replacement, grinding, and the $550.00 cost Petitioner incurred to remove the bottle tree.

Key Arguments

1. Petitioner's Argument (Negligence and Maintenance Duty): Petitioner argued the HOA was negligent in its maintenance duty. Testimony established that bottle trees are known for their aggressive root systems, which can spread up to 100 feet, and should generally be planted at least 25 to 30 feet from structures. Petitioner argued that the HOA, responsible for common area maintenance, should have been aware of the risks posed by the bottle tree planted close to her home. Petitioner also cited the delay of several months in authorizing the removal of the tree as contributing to increased damages.
2. Respondent's Argument (Lack of Knowledge and Origin): The HOA denied negligence, arguing they had fulfilled their duty by trimming the trees. Respondent asserted that the trees were planted by a predecessor homeowner, not the HOA or developer, and that Petitioner's own irrigation system had watered them. Crucially, the HOA argued that it was not negligent because it "did not know or have reason to know" of the subterranean root intrusion prior to the damage discovery in June 2021, and proactive root maintenance was not an industry standard.

Outcome and Legal Decision

The Administrative Law Judge (ALJ) found that the Petitioner sustained her burden of proving a community document violation by a preponderance of the evidence.

The ALJ granted Petitioner’s petition, concluding that the Respondent violated CC&Rs Article V section 1, Article VI section 1a, and Bylaws Article IV, Section 2c. The ALJ held that the HOA's duty to maintain the Common Area did not end at the boundary line. The core legal finding was that "But for the bottle tree being situated where it was and in the state it was in, there would not be roots coming onto Petitioner’s property to such an extent that caused any amount of damage or harm".

However, in a subsequent order clarifying the scope of authority, the ALJ noted that the statutes governing these disputes (A.R.S. § 32-2199 et seq.) do not grant the Administrative Law Judge authority to award compensatory damages, injunctive relief, or declaratory judgments.

The final *Order* required the Respondent to abide by the community documents and statutes specified. Specifically, the Respondent was ordered to pay Petitioner her filing fee of $500.00.

This summary outlines the Administrative Law Judge Decision in the case of Clifford Burnes v. Saguaro Crest Homeowners Association, Inc..

Key Facts and Background

Petitioner Clifford Burnes, a member of the Saguaro Crest Homeowners Association (HOA), filed a petition alleging the HOA failed to fulfill his request for records in violation of ARIZ. REV. STAT. § 33-1805.

On or about December 31, 2020, Petitioner submitted a certified letter and email requesting COPIES of specific Association documents and acknowledged the statutory fee of fifteen cents per page. The Association received the request on January 5, 2021, meaning the statutory 10-business-day deadline to provide copies expired on or about January 15, 2021.

The Association failed to provide the documents within this deadline. Instead, the HOA made delayed and erroneous attempts to schedule document review and send copies. Early communications were misaddressed or misnamed (using "Norm Burnes" or an incorrect address), delaying the Petitioner's ability to review or receive documents. Petitioner only had the opportunity to inspect the records on February 4, 2021, and did not receive copies until February 27, 2021, after the Association resent the package using his correct legal name, Clifford Burnes.

Main Issues and Arguments

The core legal issue was whether the Respondent HOA violated A.R.S. § 33-1805 by failing to provide copies of requested records within ten business days.

• Petitioner’s Argument: Petitioner asserted the Association wrongly required him to inspect the documents prior to providing copies and failed to provide copies within the statutory ten-day period. Petitioner sought an order requiring compliance, reimbursement of his filing fee, and imposition of a civil fine.
• Respondent’s Argument: The Association argued that it interpreted A.R.S. § 33-1805 to allow them to require a homeowner to inspect documents before providing copies for "efficiency". The HOA claimed to have acted in good faith, attempting to shift the blame for mailing errors to the Petitioner's inconsistent use of the name "Norm Burnes," although counsel acknowledged the HOA possessed the Petitioner's correct legal name and address.

Legal Conclusion and Outcome

The Administrative Law Judge (ALJ) concluded that nothing in ARIZ. REV. STAT. § 33-1805 permits a homeowners’ association to require members to first inspect records before providing copies requested by members.

Since the Petitioner specifically requested copies and the statute clearly states the association has ten business days to provide copies "On request for purchase of copies of records," the Association was determined to have failed to comply with the statutory mandate.

The ALJ found that Petitioner sustained his burden of proof by a preponderance of the evidence, establishing that the Association violated A.R.S. § 33-1805.

Final Decision

The Petitioner’s petition was granted.

The Administrative Law Judge ORDERED:

1. Respondent must reimburse Petitioner’s filing fee of $500.00 in certified funds.
2. Respondent shall henceforth comply with ARIZ. REV. STAT. § 33-1805.

This summary pertains to the Administrative Law Judge Decision in the case of *Richard E Jewell, Petitioner, vs. Casa Fiesta Townhouses Corp., Respondent* (No. 22F-H2221005-REL), heard on October 7, 2021.

Concise Legal Summary

Key Facts and Issues

Petitioner Richard E. Jewell, a homeowner and member of the Respondent, Casa Fiesta Townhouses Corp. (an Arizona homeowners association or HOA), alleged that the HOA board violated Arizona Revised Statutes (A.R.S.) § 33-1811. The central issue was whether the Board of Directors improperly handled a conflict of interest when voting to hire the sitting Board President, George Pavia, as a salaried office assistant.

The Board voted on July 15, 2021, to employ Mr. Pavia for 40 hours a week at a wage of $15.00 per hour. Petitioner asserted that his only issue was that the Board President failed to personally disclose the conflict of interest prior to the action being taken.

Key Legal Points and Arguments

The relevant statute, A.R.S. § 33-1811, stipulates that if a contract or action for compensation benefits a board member, that member "shall declare a conflict of interest" in an open meeting before discussion or action. A contract entered in violation of this section is void and unenforceable.

During the hearing, the Administrative Law Judge reviewed evidence, including a recording of the July meeting. The evidence showed:

1. At the outset of the virtual meeting, Mr. Pavia indicated he would recuse himself from the discussion.
2. An individual attending the meeting raised the possibility of a conflict of interest.
3. The conflict was discussed at length during the board meeting prior to any vote.
4. Mr. Pavia refrained from participating in the vote.

The Administrative Law Judge concluded that the purpose of A.R.S. § 33-1811 is to ensure HOA members are aware of conflicts prior to discussion. Interpreting the statute to achieve a "fair and sensible result", the Judge determined that the conflict was, in fact, made known and discussed prior to action. The statute's requirement was satisfied, as the fact that Mr. Pavia was not the individual who disclosed the conflict did not negate that the conflict was discussed at length and known to those voting.

Outcome

At the conclusion of the Petitioner’s presentation of evidence, Respondent moved for a directed verdict, arguing the Petitioner failed to sustain his burden of proof. The motion was granted.

The Administrative Law Judge ruled that the Petitioner failed to establish, by a preponderance of the evidence, that Respondent acted in violation of A.R.S. § 33-1811. The Petitioner’s petition was dismissed.

This decision arises from the administrative hearing in the matter of *Jeffrey D Points v. Olive 66 Condominium Association*. The hearing, held on August 19, 2021, before Administrative Law Judge Tammy L. Eigenheer, addressed allegations that the Olive 66 Condominium Association (Respondent) violated Arizona statutes concerning document availability and open meetings.

Key Facts and Legal Framework

The Respondent is a condominium unit owners’ association located in Phoenix, Arizona. The Petitioner, Jeffrey D. Points, alleged violations, initially citing homeowner association (HOA) statutes (A.R.S. §§ 33-1804 and 33-1805). Due to the Respondent’s status, the legal focus shifted to the corresponding condominium statutes: A.R.S. § 33-1248 (meetings) and A.R.S. § 33-1258 (records). Petitioner bore the burden of proving violations by a preponderance of the evidence.

Main Issues and Arguments

The dispute centered on two key issues:

1. Improper Executive Session (A.R.S. § 33-1248): Petitioner challenged the use of a closed session during the March 25, 2021, Board Meeting, specifically regarding the Landscaping Bid Review. The statute allows meetings to be closed for matters relating to the job performance of or specific complaints against an individual employee of a contractor. Respondent’s witness testified that the review addressed specific performance issues with a landscaping company employee.
2. Failure to Produce Documents (A.R.S. § 33-1258): Petitioner made numerous requests for association records, including invoices and 1099s. The statute requires financial and other non-privileged records to be made reasonably available within ten business days of a request. Petitioner also asserted a right to examine *all* association documents in person at the office. Respondent argued that allowing unlimited in-person review was unduly burdensome due to the need to remove confidential documents and ongoing COVID-19 concerns.

Legal Conclusions and Outcome

The Administrative Law Judge (ALJ) reached the following conclusions of law:

• Closed Session (A.R.S. § 33-1248): The ALJ found that the Respondent properly considered the landscaping issue in executive session because it fell under the statutory exception concerning the job performance of an individual contractor employee. Petitioner failed to establish that the meeting notice was improper or that the executive session violated A.R.S. § 33-1248.
• Document Production (A.R.S. § 33-1258): The ALJ rejected Petitioner’s assertion of a right to examine all documents in person. However, Respondent’s counsel acknowledged that certain requested 2021 invoices were in existence at the time of the request but were not provided to the Petitioner within the required 10-day statutory period. This failure constituted a violation of A.R.S. § 33-1258.

The Final Decision

The Petitioner’s petition was affirmed in part and denied in part. Although a violation of the document production statute (A.R.S. § 33-1258) was established, the ALJ found that no civil penalty was appropriate.

The Order required the following remedy:

1. Respondent must reimburse Petitioner $500.00 of the filing fee for the issue on which the Petitioner prevailed.
2. Respondent is directed to comply with the requirements of A.R.S. § 33-1258 going forward.

This is a concise summary of the Administrative Law Judge Decision in the matter of *Aaron Ricks (Somerstone Properties, LLC) v. Montelena Master Community Association*.

Concise Summary of Administrative Hearing

Key Facts and Parties

The hearing took place on January 27, 2021, before Administrative Law Judge Tammy L. Eigenheer. Petitioner, Aaron Ricks, filed a Homeowners Association (HOA) Dispute Process Petition on or about October 27, 2020, alleging violations of community documents and statute. The dispute centered on alleged "unlawful fees ($5,000 in total)" that Petitioner claimed he was forced to pay to sell his home. The specific fee at issue was a $2500.00 transfer fee charged to the purchaser each time a parcel was sold.

Main Issues and Legal Basis

The core issue for the hearing was whether the Respondent, Montelena Master Community Association, violated A.R.S. § 33-1806, A.R.S. § 33-442, and the Association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) Article 6.9.2/6.9.2.9, specifically regarding the imposition of the transfer fee.

The legal focus was A.R.S. § 33-442, which generally prohibits transfer fees but provides exceptions. The key exception cited was A.R.S. § 33-442(C)(3), which allows fees if they are used exclusively for a purpose authorized in the document, touch and concern the land, and are not passed through to a specific third party or declarant (unless authorized to manage property or part of an approved development plan).

Key Arguments

1. Respondent’s Position (Motion for Summary Judgment): Respondent filed a Motion for Summary Judgment arguing the Petition should be dismissed because the CC&Rs (Sections 7.15 and 6.6) authorized the fee, which touched and concerned the land. A 2010 Board Resolution specified the Transfer Fee was "to be used exclusively to fund the Master Association’s operating expenses and/or the Master Association’s reserves". Counsel argued this usage was sufficient to meet A.R.S. § 33-442(C) requirements. Respondent also asserted that the CC&R sections cited by the Petitioner (6.9.2 and 6.9.2.9) addressed a "Contribution to Reserves," not the specific Transfer Fee being contested.
2. Petitioner’s Position: Petitioner acknowledged the statutory exception but argued that the transfer fee must be used for a very specific limited purpose (e.g., a swimming pool or landscaping project), rather than a general purpose like operating expenses or reserves, for the fee to be compliant with A.R.S. § 33-442. Petitioner also asserted that specific CC&R sections precluded the fee. (Petitioner offered no argument regarding A.R.S. § 33-1806).

Legal Points and Outcome

The Administrative Law Judge (ALJ) noted that the Petitioner bore the burden of proof to establish violations by a preponderance of the evidence.

The ALJ determined that Petitioner failed to establish a violation of the community documents and A.R.S. § 33-442. Crucially, Petitioner offered no legal authority to support his interpretation that A.R.S. § 33-442 required the transfer fee to be designated for a more specific purpose than the association’s operating expenses and/or reserves identified in the governing documents.

The final decision was that Petitioner’s petition is dismissed. This decision was done on February 16, 2021.

Administrative Hearing Briefing: Archer v. PMPE Community Association, Inc.

Executive Summary

This briefing document outlines the key details and resolution of case number 20F-H2020063-REL-RHG, involving Petitioner Marc Archer and Respondent PMPE Community Association, Inc. On March 16, 2021, Administrative Law Judge Tammy L. Eigenheer issued an order vacating a scheduled rehearing. The core issue was procedural: the Petitioner’s request for rehearing was based on actions the Respondent took after the initial hearing’s decision, which falls outside the permissible scope of a rehearing. Upon being informed of this limitation, the Petitioner withdrew his request. He indicated his intent to file a new, separate petition to address the Respondent’s denial of his submission to build a house addition. The judge’s order is binding, with any appeal required to be filed in superior court within 35 days.

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Case Overview

I. Case Identification

Detail

Information

Case Name

Marc Archer, Petitioner, vs PMPE Community Association, Inc., Respondent

Case Number

20F-H2020063-REL-RHG

Adjudicating Body

Office of Administrative Hearings (Arizona)

Presiding Judge

Tammy L. Eigenheer, Administrative Law Judge

Date of Order

March 16, 2021

II. Parties Involved

Name & Affiliation

Contact Information

Petitioner

Marc D. Archer

[email protected]

Respondent

PMPE Community Association, Inc.

Not provided

Respondent’s Counsel

Nicholas Nogami, Esq., Carpenter Hazlewood Delgado & Bolen, LLP

[email protected]
[email protected]

Analysis of Proceedings

A. Basis for the Rehearing and Procedural Issue

The scheduled hearing was a rehearing requested by the Petitioner, Marc Archer. The basis for his request centered on events that transpired after the conclusion of the initial hearing.

• Petitioner’s Grounds for Rehearing: The request was explicitly based on “actions taken by Respondent after the decision in the initial hearing had been issued.”

• Jurisdictional Limitation: The Petitioner was informed at the hearing that the scope of a rehearing is limited to matters that occurred before the original petition was filed. The document states: “When Petitioner was informed that the only issues that could be addressed in a rehearing on his petition were those matters that occurred prior to his petition being filed…”

• Subject of New Dispute: The specific post-decision action Archer sought to challenge was the “Respondent’s denial of his submission to build an addition to his house.”

B. Resolution and Outcome

Faced with the procedural limitations of a rehearing, the Petitioner altered his legal strategy, leading to the cancellation of the proceeding.

• Withdrawal of Request: The Petitioner “concluded that he wished to withdraw his request for a rehearing at that time.”

• Stated Intention: Archer “indicated that he would file a new petition to challenge Respondent’s denial of his submission to build an addition to his house.”

• Final Order: The judge issued a formal order vacating the hearing.

Legal Standing and Appeal Process

The order issued on March 16, 2021, carries legal weight and outlines specific requirements for any subsequent appeal.

• Binding Nature of the Order: The order is binding on the parties involved, as stipulated by Arizona Revised Statutes (A.R.S.) § 32-2199.02(B).

• Appeal Requirements: A party wishing to appeal the order must seek judicial review.

◦ Venue: The appeal must be filed with the superior court.

◦ Deadline: The filing must occur within thirty-five (35) days from the date the order was served upon the parties.

• Governing Statutes: The appeal process is prescribed by the following state statutes:

◦ A.R.S. § 41-1092.08(H)

◦ A.R.S. § 12-904(A)

◦ Title 12, Chapter 7, Article 6 of the Arizona Revised Statutes

Document Distribution

Copies of the “Order Vacating Hearing” were officially distributed via mail, email, or fax on March 16, 2021, to the following parties:

• Arizona Department of Real Estate:

◦ Judy Lowe, Commissioner

◦ Additional recipients at the department ([email protected], [email protected], [email protected], [email protected], [email protected], [email protected])

• Petitioner:

◦ Marc D. Archer

• Respondent’s Counsel:

◦ Nicholas Nogami, Esq. (Carpenter Hazlewood Delgado & Bolen, LLP)

Briefing Document: Babington v. Park Scottsdale II Townhouse Corporation

Executive Summary

This document synthesizes the findings from two administrative hearings concerning a records request dispute between homeowner Nancy L. Babington (Petitioner) and the Park Scottsdale II Townhouse Corporation (Respondent). The case, No. 20F-H2020064-REL, culminated in a reversal of an initial ruling, finding the Respondent in violation of Arizona law A.R.S. § 33-1258 for failing to provide association records within the statutory timeframe.

The initial hearing on August 28, 2020, resulted in a denial of the petition. The Respondent successfully argued that it could not produce the requested documents because they were not in its possession, largely due to a dispute with a former management company. However, a rehearing was granted after the Petitioner discovered new evidence.

The rehearing on March 4, 2021, established that the Respondent, through its management company Associa Arizona, was in possession of key requested documents—specifically bank statements and signed contracts—at the time of the initial request. Evidence revealed the bank statements were held at a central corporate office in Texas and were not retrieved, while signed contracts had not been forwarded to the management company by board members. The Administrative Law Judge found this directly contradicted the Respondent’s initial defense.

As a result, the Administrative Law Judge reversed the earlier decision, ordering the Respondent to reimburse the Petitioner’s $500 filing fee and imposing a $2,500 civil penalty payable to the Arizona Department of Real Estate. The case underscores an association’s responsibility to produce all records in its possession, regardless of physical location within the corporate structure, and affirms the court’s authority to levy penalties for violations.

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1. Case Overview

• Case Number: 20F-H2020064-REL

• Petitioner: Nancy L. Babington

• Respondent: Park Scottsdale II Townhouse Corporation

• Core Allegation: Violation of A.R.S. § 33-1258, which mandates that a condominium owners’ association must make its financial and other records reasonably available for examination by a member within ten business days of a request.

• Hearings Conducted:

◦ Initial Hearing: August 28, 2020

◦ Rehearing: March 4, 2021

• Presiding Administrative Law Judge: Tammy L. Eigenheer

2. Chronology of the Dispute

The dispute originated from difficulties following a change in the Respondent’s management company and subsequent records requests by the Petitioner.

• June-July 2019: The previous management company, Community Management & Consulting, LLC (CMC), terminated its agreement with the Respondent. A “financial disagreement” led to CMC withholding records, complicating the transition.

• Post-July 2019: Respondent hired Associa Arizona as its new management company. Associa and the Respondent’s counsel attempted to obtain the withheld records from CMC.

• April 29, 2020: After previous attempts to get information, Petitioner Nancy L. Babington sent a formal email to Associa and the Respondent’s Board of Directors. In the email, she stated:

• May 1, 2020: Linda Parker, Director of Client Services with Associa, replied, stating the request was not specific and asked the Petitioner to identify the exact records needed.

• May 1, 2020: The Petitioner responded with a detailed list of nine specific items:

1. All bank statements with copies of cancelled checks since Sept 1, 2019.

2. Any and all financial statements since Sept 1, 2019.

3. Any and all 1099s issued for 2019.

4. Any and all Executive Session meeting minutes conducted in 2020 (excluding statutory exemptions).

5. Any and all contracts signed in 2020.

6. Any and all outstanding invoices with a due date over 45 days.

7. Any documentation regarding the legality of the $204.75 maintenance fee.

8. Any proof of Stephen Silberschlag’s liability insurance.

9. Any landscaping plans.

• May 4, 2020: Ms. Parker from Associa responded that the company could only provide records within its possession.

• May 15, 2020: Following another email from the Petitioner, Ms. Parker stated that Associa had scheduled a meeting with the board on May 20 to discuss the request further.

• May 28, 2020: Having not received any of the requested documents, the Petitioner filed a petition with the Arizona Department of Real Estate.

3. The Initial Hearing and Decision (August – September 2020)

The first hearing focused on whether the Respondent had violated the statute by failing to produce the documents.

• The Respondent argued that it was unable to provide documents that were not in its possession.

• Joseph Silberschlag, Secretary of the Board of Directors, testified that issues with the former management company (CMC) meant neither the Respondent nor Associa had possession of many necessary documents.

• Specifically, he stated that without previous financial documents and starting balances from CMC, the association was unable to create current financial statements.

• The Respondent maintained it was under no statutory obligation to create documents to fulfill the Petitioner’s request.

• The Administrative Law Judge (ALJ) concluded that the Petitioner “failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”

• The finding was based on the Respondent’s argument that it did not possess the requested documents at the time of the request.

• On September 17, 2020, the ALJ issued a decision denying the Petitioner’s petition.

4. The Rehearing and Reversal (March 2021)

Following the initial decision, the case was reopened based on new evidence presented by the Petitioner.

• After the September 2020 decision, the Respondent provided some of the requested documents to the Petitioner.

• Upon reviewing these documents, the Petitioner realized that the Respondent had, in fact, been in possession of several key records prior to her May 1, 2020 request.

• She filed a Rehearing Request with the Department of Real Estate, citing “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” The request was granted.

The rehearing revealed crucial details about the location and accessibility of the requested records.

Record Type

Petitioner’s Evidence

Respondent’s Testimony/Explanation

Bank Statements

The documents received post-hearing showed that bank statements had been sent to Associa starting in August 2019.

Evelyn Shanley, Community Director for Associa, testified that statements for all HOAs were sent to a central office in Richardson, Texas. She admitted she did not contact the Texas office to obtain the statements for the Petitioner’s request. Counsel for the Respondent conceded the statements in Texas were in the possession of Associa.

Contracts

Petitioner presented two contracts signed by Board members on March 27 and March 31, 2020, prior to her request.

Ms. Shanley admitted the two signed contracts existed but stated that the Board of Directors members had not provided them to Associa.

1099 Forms

Petitioner noted a document indicating four vendors were eligible for 1099s.

Ms. Shanley denied that any 1099s had been issued.

• The documents were not in the “immediate possession” of the local Associa office.

• The matter was now moot because the Petitioner had received all requested documents.

• A civil penalty was inappropriate because the Petitioner did not specifically request one on her initial petition form.

• The evidence presented at the rehearing was “directly contradictory” to the representations made by the Respondent at the initial hearing.

• The Petitioner successfully established by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1258(A) by failing to provide documents (bank statements and contracts) that were in its possession.

• The ALJ rejected the Respondent’s argument against a civil penalty, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a penalty for established violations, and “nothing in the statute limits the available remedies to those specifically requested by a petitioner.”

5. Final Order and Penalties

The Administrative Law Judge Decision issued on March 24, 2021, reversed the initial finding and imposed penalties on the Respondent.

IT IS ORDERED that:

1. Respondent must pay the Petitioner her filing fee of $500.00 within 30 days.

2. Respondent must pay to the Department of Real Estate a civil penalty in the amount of $2,500.00 within 30 days.

Briefing on Administrative Law Judge Decision: Williams v. Surprise Farms II Community Association

Executive Summary

This briefing analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020054-REL, where petitioner Jean Williams alleged that the Surprise Farms II Community Association improperly increased annual homeowner assessments. The ALJ dismissed the petition, concluding that the Association acted within its authority as defined by both its Covenants, Conditions, and Restrictions (CC&Rs) and Arizona state law.

The central finding of the case is that the petitioner erroneously interpreted the CC&Rs by confusing the “Annual Assessment” (the actual amount charged to homeowners) with the “Maximum Annual Assessment” (a calculated upper limit). The ALJ determined that the Association’s 20% increase in the Annual Assessment for 2020 was permissible because:

1. It did not exceed the 20% year-over-year cap allowed by Arizona Revised Statutes (A.R.S.) § 33-1803(A) without a member vote.

2. The resulting assessment of $864 was significantly below the $2,426 Maximum Annual Assessment permitted for 2020 under the community’s own CC&Rs.

Ultimately, the decision affirms the Board’s discretion to set the Annual Assessment, provided it stays within the dual constraints of the state’s percentage increase limit and the community’s own calculated maximum charge.

Case Overview

• Case Number: 20F-H2020054-REL

• Parties:

◦ Petitioner: Jean Williams

◦ Respondent: Surprise Farms II Community Association

• Administrative Law Judge: Tammy L. Eigenheer

• Hearing Date: July 10, 2020

• Decision Date: July 30, 2020

• Nature of Dispute: The petitioner contested the validity of a 20% increase in the annual homeowners association assessment implemented in April 2020, arguing it required a member vote.

Petitioner’s Allegations

Jean Williams filed a petition with the Arizona Department of Real Estate on March 31, 2020, alleging that the Surprise Farms II Community Association violated its governing documents and state law.

• Core Allegation: The Association illegally increased the “Maximum Monthly Assessment” by 20% without the approval of a two-thirds majority of association members.

• Cited Violations:

◦ A.R.S. § 33-1803: The statute governing assessment increases.

◦ CC&Rs Article VII, Sections 7.2 and 7.4(a)-(c): The sections of the community’s governing documents that outline assessment rules.

• Petitioner’s Argument: Williams contended that the Association’s CC&Rs limited any annual assessment increase to 10% unless a vote was held. She argued that the Association’s justification for the 20% increase, which cited A.R.S. § 33-1803, was a direct violation of the community’s covenants.

Respondent’s Position and Stipulated Facts

The Surprise Farms II Community Association denied all of the petitioner’s complaints. At the hearing, the Association did not present witnesses and relied on its legal argument. The respondent stipulated to the key facts regarding the assessment increases:

• April 2019 Increase: The Annual Assessment increased from $660.00 to $720.00 per year, a 9% increase, without a vote of the members.

• April 2020 Increase: The Annual Assessment increased from $720.00 to $864.00 per year, a 20% increase, without a vote of the members.

Governing Rules and Document Analysis

The ALJ’s decision rested on a detailed interpretation of state law and two distinct concepts within the Association’s CC&Rs: the “Annual Assessment” and the “Maximum Annual Assessment.”

Arizona Revised Statutes (A.R.S.) § 33-1803(A)

This state law establishes a default cap on assessment increases. It states that an association “shall not impose a regular assessment that is more than twenty percent greater than the immediately preceding fiscal year’s assessment without the approval of the majority of the members,” unless the community’s own documents impose an even lower limit.

CC&Rs Article VII: Key Definitions

The case hinged on the distinction between two terms defined in the CC&Rs:

1. Maximum Annual Assessment (Section 7.4): This section defines a ceiling for how much the Board could charge.

◦ It began at $480 in the first year.

◦ Crucially, this maximum automatically increases by up to 10% each year without a member vote.

◦ To raise the Maximum Annual Assessment above this automatic 10% annual increase, a two-thirds vote of members is required.

2. Annual Assessment (Section 7.2): This section defines the actual charge levied against each property.

◦ The Board has “sole discretion” to set this amount each year.

◦ The only limitation is that the Annual Assessment must be less than or equal to the “Maximum Annual Assessment” calculated under Section 7.4.

Administrative Law Judge’s Findings and Conclusion

The ALJ concluded that the petitioner failed to prove by a preponderance of the evidence that the Association violated the CC&Rs or state law. The decision was based on the following key points of analysis:

Erroneous Reading of the CC&Rs

The ALJ found the petitioner’s entire argument was “predicated on her erroneous reading of Article VII, Section 7.4 of the CC&Rs.” The petitioner incorrectly believed the 10% automatic increase to the Maximum Annual Assessment was a cap on the Annual Assessment itself.

The decision explicitly clarifies this distinction:

“Petitioner repeatedly asserted that an increase in the Annual Assessment was limited to ten percent in any given year unless approved by a vote of the members even though Article VII, Section 7.4 was entitled Maximum Annual Assessment and consistently referenced the same. By definition, the existence of a Maximum Annual Assessment necessitates an Annual Assessment that may be less than the maximum.”

Calculation of the Maximum Annual Assessment

The ALJ used the CC&Rs’ formula (a 10% cumulative increase per year since 2003) to calculate the authorized Maximum Annual Assessment for each year. This demonstrated the significant gap between what the Association could charge and what it actually charged.

Maximum Annual Assessment

$480.00

$528.00

$580.80

$638.88

$702.76

$773.03

$850.33

$935.36

$1,028.89

$1,131.77

$1,244.94

$1,369.43

$1,369.43

$1,657.00

$1,822.70

$2,004.97

$2,205.46

$2,426.00

Legality of the 2020 Assessment Increase

The ALJ determined the Association’s 2020 increase was compliant with all rules for two reasons:

1. Compliance with State Law: The increase from $720 to $864 was exactly 20%, which is the maximum allowed under A.R.S. § 33-1803(A) without a member vote.

2. Compliance with CC&Rs: The new Annual Assessment of $864 was substantially lower than the calculated Maximum Annual Assessment of $2,426 allowed for 2020.

The Board therefore acted within its “sole discretion” as granted by Section 7.2 of the CC&Rs.

Final Order

Based on the finding that the Association acted properly, IT IS ORDERED that Petitioner’s petition is dismissed. The decision is binding unless a rehearing is requested within 30 days of the order.

Administrative Law Judge Decision: Alandar vs. Ventana Lakes POA

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020046-REL, involving a dispute between Petitioner Susan L. Alandar and the Ventana Lakes Property Owners’ Association (the “Respondent” or “Board”). The petition, filed with the Arizona Department of Real Estate, alleged multiple violations of state statutes and the Association’s governing documents. The ALJ ultimately denied the petition in its entirety, finding that the Petitioner failed to meet the burden of proof by a preponderance of the evidence for any of her claims.

The key takeaways from the decision are as follows:

• Board Candidate Interviews: The Board’s practice of interviewing candidates for board vacancies in closed executive sessions was deemed permissible. The ALJ found that these sessions were appropriately used to elicit personal, health, or financial information relevant to a candidate’s ability to serve, which is an exception to Arizona’s open meeting law (A.R.S. § 33-1804).

• Sanctions Against a Club: The Petitioner’s challenge to a one-year ban on facility use imposed upon the Italian American Club (IAC) was dismissed as moot. Because the one-year penalty had expired before the hearing date, the ALJ concluded there was no active issue to rule on or remedy to order.

• Agenda Setting Authority: The ALJ determined that the Board president possesses broad, inherent authority in setting the agenda for Board meetings. The governing rules do not require the president to place every written request from an Association member onto the agenda for the next meeting.

• Burden of Proof: Across all issues, the Petitioner failed to provide sufficient evidence to convince the judge that her contentions were “more probably true than not.” The decision repeatedly highlights the lack of evidence to support the claims of improper conduct.

Case Overview

On February 3, 2020, Petitioner Susan L. Alandar filed a petition alleging that the Ventana Lakes Property Owners’ Association violated Arizona state law and several provisions of its own Covenants, Conditions & Restrictions (CC&Rs), Bylaws, and Rules. After paying an additional filing fee, the Petitioner presented four distinct issues for the hearing held on June 11, 2020. The final decision was issued on July 23, 2020.

Case Detail

Information

Case Number

20F-H2020046-REL

Petitioner

Susan L. Alandar

Respondent

Ventana Lakes Property Owners’ Association

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

June 11, 2020

Decision Date

July 23, 2020

Final Disposition

Petitioner’s petition is denied.

Detailed Analysis of Allegations and Rulings

Issue 1: Board Candidate Interviews in Executive Session

• Allegation: The Petitioner contended that the Board of Directors violated A.R.S. § 33-1804 (Arizona’s open meeting law for HOAs) by interviewing candidates for Board appointments in closed executive sessions.

• Factual Background: The Respondent acknowledged that prior to June 2019, its practice was to conduct interviews, discussions, and votes to fill Board vacancies entirely within executive session, announcing the result in an open meeting. After this practice was questioned, the Board changed its procedure. Since June 2019, the Board has conducted candidate interviews in executive session specifically to “elicit private information that may impact the candidate’s ability to perform the duties of a Board member.” An example provided was a candidate who revealed his wife’s dementia diagnosis, which would take priority over Board duties. Under this revised process, the final vote on candidates is cast in an open session, and candidates also participate in an open forum where members can ask questions.

• Conclusion of Law: The ALJ found that the uncontroverted evidence showed the executive sessions were used for the purpose of discussing “personal, health, or financial information,” which is a specific exception allowed under A.R.S. § 33-1804. The decision states, “While Petitioner may believe the interviews were being conducted in executive session for nefarious purposes, no evidence was presented to establish such motives existed.” Consequently, the Petitioner failed to establish a violation.

Issues 2 & 3: Penalties and Facility Use Denial for the Italian American Club

• Allegation: The Petitioner argued that the Respondent wrongfully penalized the Italian American Club (IAC) and denied its members use of facilities, asserting that this action was discriminatory and not authorized by rule, in violation of CC&R’s Article V Section C and other community documents.

• Factual Background:

◦ In January 2018, the Board met with the IAC regarding non-compliance with rules and warned that failure to comply could result in the loss of privileges to use the Yacht Club.

◦ On April 4, 2019, an incident occurred where IAC members, after their last-minute request for more tables and chairs was denied, were observed on security cameras moving furniture from a storage area themselves. This was against Association rules, reportedly due to insurance policy limitations on volunteers moving tables.

◦ The situation escalated into a verbal altercation. Even after staff agreed to set up the requested tables, IAC members were again seen moving more furniture.

◦ On April 17, 2019, after reviewing video and audio recordings of the incident, the Board revoked the IAC’s right to use all Association facilities for a one-year period, from May 1, 2019, to April 30, 2020.

• Conclusion of Law: The ALJ found that the one-year prohibition on the IAC’s use of facilities had expired on April 30, 2020, prior to the June 11, 2020 hearing. As no evidence was presented that the revocation was still in effect, the matter was declared moot. The decision notes that even if the judge had found the revocation improper, she could not order any action because the penalty was no longer active. The ALJ did not rule on the merits of whether the Board’s action was initially justified.

Issue 4: Refusal to Place Member Items on Board Meeting Agenda

• Allegation: The Petitioner claimed the Board violated Ventana Lakes Rule 8.3.B.1.b by refusing to place homeowners’ written requests for Board action on the agenda for upcoming Board meetings. The Petitioner’s position was that the rule required the Board president to place any such item on the agenda.

• Factual Background: Both parties agreed that the Board president had received written requests from members that were not subsequently included on a meeting agenda. The Petitioner herself acknowledged during the hearing that it would be impractical for the president to include every single request if, for example, hundreds were received for a single meeting.

• Conclusion of Law: The ALJ determined that the “plain language” of the rule does not mandate that all requests must be placed on the agenda. The judge used the Petitioner’s own hypothetical concession to demonstrate that the Board president must have “inherent authority to limit the number of items to be included.” The ruling concluded that the president’s authority in setting the agenda is “broad” and that the Petitioner failed to prove a violation of the rule.

Key Referenced Authority

The decision was based on an interpretation of the following Arizona statutes and Ventana Lakes governing documents:

Document

Provision

Relevance to the Case

Arizona Revised Statutes

A.R.S. § 33-1804

Open Meetings: Allows meetings to be closed for specific reasons, including discussion of “Personal, health or financial information about an individual member.”

Article III, Section A

Easements of Enjoyment: Gives the Board the right to suspend any Resident from using Common Areas and to regulate their use through rules.

Article IV, Section C

Health, Safety and Welfare: Allows the Board to make rules restricting activities deemed a nuisance or to adversely affect the health, safety, or welfare of residents.

Article V, Section C

Ventana Lakes Rules: Grants the Association power to adopt and repeal rules governing the use of Common Areas, provided they are not discriminatory or inconsistent.

Bylaws

Article IV.E.8

Board Powers: Grants the Board the power to adopt, amend, and enforce rules covering the operation and use of all property.

Ventana Lakes Rules

Rule 8.3.B

Board President Duties: States the president shall prepare agendas and “ensure that written requests for Board action…are placed on the agenda.” (Interpreted by ALJ).

Final Order

The Administrative Law Judge concluded the hearing with a definitive ruling:

“IT IS ORDERED that Petitioner’s petition is denied.”

This order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Administrative Hearing Brief: Biesecker v. 6100 Fifth Condominium HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 20F-H2020050-REL, wherein Petitioner Ronna Biesecker alleged that the 6100 Fifth Condominium Homeowners Association (HOA) failed to fulfill its maintenance responsibilities. The Administrative Law Judge (ALJ) ultimately dismissed the petition, ruling that the Petitioner did not meet the burden of proof required to substantiate her claim.

The central conflict involved recurring water leaks in Ms. Biesecker’s condominium unit (A113). The Petitioner contended that the leaks originated from cracks in the building’s exterior stucco, which are defined as “Common Elements” and are therefore the HOA’s responsibility to repair under its governing documents and Arizona state law. In contrast, the HOA argued that the source of the water was the sliding door assembly of the upstairs unit, making its maintenance the responsibility of that unit’s owner.

The final decision rested on the weight of evidence presented. Multiple expert inspections, conducted by Olander’s and another inspector retained by the HOA, concluded that the leaks were attributable to the upstairs unit’s sliding doors. This evidence was deemed more convincing than the Petitioner’s own assessment regarding the stucco. The ALJ concluded that Ms. Biesecker failed to prove by a “preponderance of the evidence” that the damage was caused by a flaw in the common elements, leading to the dismissal of her case.

Case Overview

Case Name

Ronna Biesecker, Petitioner, vs. 6100 Fifth Condominium Homeowners Association, Respondent.

Case Number

20F-H2020050-REL

Office of Administrative Hearings (Arizona)

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

June 5, 2020

Decision Date

June 25, 2020

Petitioner

Ronna Biesecker, owner of unit A113

Respondent

6100 Fifth Condominium Homeowners Association, represented by Robert Eric Struse, Statutory Agent

Core Allegations and Defenses

Petitioner’s Claim (Ronna Biesecker)

• Core Allegation: The Petitioner filed a petition on March 10, 2020, alleging that the Respondent (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) § 10(c) and Arizona Revised Statutes (A.R.S.) § 33-1247 by failing to maintain the common elements of the condominium community.

• Specifics of Claim: Ms. Biesecker asserted that persistent water leaks into her unit were caused by cracks in the exterior stucco surrounding the sliding doors.

• Basis of Responsibility: She argued that because the exterior stucco is a “common element,” the HOA was legally responsible for its repair and any subsequent damage to her unit.

• Requested Action: The Petitioner had previously requested that the HOA repair the exterior leaks and had attempted to have the HOA mediate the issue with the owner of the upstairs unit.

Respondent’s Position (6100 Fifth Condominium HOA)

• Core Defense: The HOA denied any violation of its CC&Rs or state statutes.

• Specifics of Defense: The HOA maintained that the source of the water leaks was not a common element. Instead, it attributed the leaks to the sliding doors or track assemblies of the condominium unit located directly above the Petitioner’s.

• Basis of Responsibility: According to the HOA’s governing documents and state law, the maintenance of elements belonging to an individual unit (such as a sliding door) is the responsibility of that unit’s owner, not the association.

• Actions Taken: The HOA declined to “arbitrate, mediate, or serve as a third party” in the dispute between the Petitioner and the owner of the upstairs unit. It also conducted an inspection which supported its position.

Evidentiary Timeline and Key Findings

The decision was based on a sequence of events and expert assessments presented as evidence.

• January 5, 2019: Petitioner experiences the first water leak in her unit (A113) near the sliding glass door.

• January 18, 2019: An employee from Olander’s, a door installation company contacted by the Petitioner, inspects the unit. The employee’s opinion was that “the leak was coming from the unit above Petitioner and that the sliding door above Petitioner’s unit had large gaps under the threshold which allowed water to get in.”

• February 8, 2019: Nathan’s Handyman Service repairs plaster damage in the Petitioner’s unit and notes in a report that the damage was “the result of an old leak coming from above Petitioner’s unit.” The report also identified rusted wire mesh, indicating previous repairs to the area.

• March/April 2019: The HOA’s Property Manager formally refuses the Petitioner’s request to mediate the dispute with the owner of the upstairs unit.

• May 1, 2019: Petitioner emails the HOA, proposing that new cracks in the stucco pop-out at the roof level could be the source of the leak.

• October 28, 2019: A “Roof Opinion Report” from Roof Savers Locke Roofing states that no roof repairs are needed but notes the presence of “server [sic] cracking at the stucco.” The report recommends contacting a stucco or window contractor.

• November 27, 2019: Another leak occurs in the same area of the Petitioner’s unit.

• December 9, 2019: The HOA’s Property Manager and an inspector assess the water damage in the Petitioner’s unit.

• December 23, 2019: An invoice from the inspector states: “After inspecting the shared roof and building interior/exterior it appears the water damage to the lower unit is coming from the upstairs unit sliding doors or their track assemblies.”

• June 5, 2020 (Hearing Testimony):

◦ The Petitioner stated it was “obvious” the leak originated from the stucco crack.

◦ The HOA’s Statutory Agent, Robert Eric Struse, testified that the December 2019 inspection included the interior of the upstairs unit. He argued that if the stucco crack were the cause, the upstairs unit would also show internal water damage, which it did not.

Governing Documents and Statutes

The case revolved around the interpretation of responsibility as defined by the following legal framework:

• Bylaws (Article II.E, Section 1) & CC&Rs (Article C): These documents obligate the HOA to collect assessments to meet common expenses, including the “maintenance, upkeep, care, repair, [and] reconstruction… for the common elements.”

• A.R.S. § 33-1247: This Arizona statute codifies the division of maintenance responsibility. It states that “the association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit.”

Conclusions of Law and Final Order

The Administrative Law Judge’s decision was based on the application of the legal standard of proof to the evidence presented.

• Burden of Proof: The ALJ established that the Petitioner bore the burden of proof to demonstrate, by a “preponderance of the evidence,” that the HOA violated the applicable statutes or CC&Rs. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

• Central Legal Finding: The judge determined that if the water damage was caused by a flaw in the common elements, the HOA would be responsible. However, the Petitioner failed to meet her burden of proof in establishing this causal link.

• Reasoning for Decision: The ruling states: “Petitioner failed to establish by a preponderance of the evidence that the water leak and damage was attributable to the condition of the common elements. Rather, the opinions of the companies that inspected the area concluded that the leak was coming from the sliding glass door of the unit above Petitioner’s.” The collective weight of the expert opinions from Olander’s and the HOA’s inspector outweighed the Petitioner’s personal theory about the stucco cracks.

• Final Order: Based on these findings, the judge issued a final order: “IT IS ORDERED that Petitioner’s petition is dismissed.” This order is binding unless a rehearing is granted.