Tag Archives: Tammy L. Eigenheer

Nancy L Pope v. La Vida Homeowners Association

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Case Summary

Case ID 22F-H2221013-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-02
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge granted Petitioner's request, finding that the HOA violated its community documents regarding common area maintenance because a bottle tree in the common area caused damage to Petitioner's property. The ALJ ordered the HOA to comply with the relevant community document provisions and refund the Petitioner's $500.00 filing fee. The ALJ noted she lacked statutory authority to award the approximately $28,486.00 in monetary damages requested by Petitioner.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Nancy L Pope Counsel —
Respondent La Vida Homeowners Association Counsel Erik J. Stone

Alleged Violations

CC&Rs Article V Section 1, CC&Rs Article VI Section 1a, and Bylaws Article IV Section 2c

Outcome Summary

The Administrative Law Judge granted Petitioner's request, finding that the HOA violated its community documents regarding common area maintenance because a bottle tree in the common area caused damage to Petitioner's property. The ALJ ordered the HOA to comply with the relevant community document provisions and refund the Petitioner's $500.00 filing fee. The ALJ noted she lacked statutory authority to award the approximately $28,486.00 in monetary damages requested by Petitioner.

Key Issues & Findings

HOA failure to maintain common area landscaping resulting in root damage to homeowner property.

The Respondent HOA violated its community document obligations for common area maintenance (including landscaping) because a bottle tree located in the common area caused substantial root intrusion damage (lifting and heaving) to the Petitioner's patio and concrete slab.

Orders: Petition granted. Respondent ordered to abide by CC&Rs Article V Section 1, CC&Rs Article VI Section 1a, and Bylaws Article IV Section 2c. Respondent ordered to pay Petitioner the filing fee of $500.00 within thirty (30) days. No civil penalty imposed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY 1220

Analytics Highlights

Topics: homeowner rights, maintenance violation, root damage, planned community, bottle tree, CC&Rs
Additional Citations:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY 1220

Video Overview

Audio Overview

Decision Documents

22F-H2221013-REL Decision – 932121.pdf

Uploaded 2026-04-30T09:52:28 (43.6 KB)

22F-H2221013-REL Decision – 932140.pdf

Uploaded 2026-04-30T09:52:34 (5.8 KB)

22F-H2221013-REL Decision – 951381.pdf

Uploaded 2026-04-30T09:52:42 (122.2 KB)

22F-H2221013-REL Decision – 954163.pdf

Uploaded 2026-04-30T09:52:48 (46.1 KB)

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.

Questions

Question

If a tree in the HOA common area damages my home, is the HOA responsible even if the tree was planted by a previous homeowner?

Short Answer

Yes. The HOA's duty to maintain the common area applies regardless of who originally planted the tree.

Detailed Answer

The ALJ determined that even though the parties presumed the trees were planted by an original homeowner decades ago, the HOA still had an obligation to maintain the common area. The HOA was found in violation of the CC&Rs because the tree located in the common area caused damage to the homeowner's property.

Alj Quote

Respondent’s duty to maintain the Common Area did not end at the boundary line of the Common Area. A tree in Respondent’s Common Area caused damage to Petitioner’s property.

Legal Basis

CC&Rs Article V Section 1; Article VI Section 1a

Topic Tags

  • common area maintenance
  • property damage
  • landscaping
  • liability

Question

Can the Administrative Law Judge award me money (damages) to cover the cost of repairs to my home?

Short Answer

No. The ALJ does not have the statutory authority to award monetary damages or injunctive relief.

Detailed Answer

While the ALJ can determine that a violation occurred and order the HOA to abide by the community documents, they cannot order the HOA to pay for the repairs (damages). The homeowner may need to pursue a separate civil action for monetary compensation beyond the filing fee.

Alj Quote

Nothing in the statutes applicable to these disputes provides the Administrative Law Judge with any additional authority to award damages, injunction relief, or declaratory judgments.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • damages
  • remedies
  • jurisdiction
  • repairs

Question

If I win my hearing against the HOA, will I get my filing fee back?

Short Answer

Yes. If the petitioner prevails, the ALJ is required to order the respondent to pay the filing fee.

Detailed Answer

The decision explicitly ordered the HOA to reimburse the homeowner for the $500 filing fee because the petition was granted. This is a statutory requirement when the petitioner wins.

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • reimbursement
  • costs

Question

Does the HOA's duty to 'maintain' landscaping include preventing root damage, or just trimming trees?

Short Answer

The duty to maintain includes preventing damage. Regular trimming is not sufficient if the roots are causing damage.

Detailed Answer

The HOA argued that they fulfilled their duty by having a landscaper trim the trees. However, the ALJ found that despite this regular maintenance, the HOA violated the CC&Rs because the tree's existence and condition caused damage to the adjacent property.

Alj Quote

Despite Respondent’s contract with CityScape for regular arbor maintenance, the bottle tree’s roots caused lifting and heaving of Petitioner’s patio and concrete slab.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • maintenance definition
  • landscaping
  • negligence defense

Question

What is the standard of proof I need to meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner bears the burden of proof. This standard means you must show that your claim is 'more probably true than not' or carries the greater weight of the evidence.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

A.R.S. § 41-1092.07

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Is the HOA liable if they claim they didn't know the roots were causing problems?

Short Answer

Yes. Lack of knowledge or 'negligence' is not necessarily the standard for a CC&R violation in this context.

Detailed Answer

The HOA argued they were not negligent because they did not know about the root intrusion. The ALJ ruled against them anyway, basing the decision on the strict violation of the duty to maintain the common area which resulted in damage, effectively setting aside the 'we didn't know' defense.

Alj Quote

Respondent further argued that because it did not know or have reason to know of the root intrusion, Respondent was not negligent… [However,] the undersigned Administrative Law Judge concludes that… Petitioner established a violation… her petition must be granted.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • negligence
  • liability
  • defense arguments

Case

Docket No
22F-H2221013-REL
Case Title
Nancy L. Pope vs. La Vida Homeowners Association
Decision Date
2022-03-02
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

If a tree in the HOA common area damages my home, is the HOA responsible even if the tree was planted by a previous homeowner?

Short Answer

Yes. The HOA's duty to maintain the common area applies regardless of who originally planted the tree.

Detailed Answer

The ALJ determined that even though the parties presumed the trees were planted by an original homeowner decades ago, the HOA still had an obligation to maintain the common area. The HOA was found in violation of the CC&Rs because the tree located in the common area caused damage to the homeowner's property.

Alj Quote

Respondent’s duty to maintain the Common Area did not end at the boundary line of the Common Area. A tree in Respondent’s Common Area caused damage to Petitioner’s property.

Legal Basis

CC&Rs Article V Section 1; Article VI Section 1a

Topic Tags

  • common area maintenance
  • property damage
  • landscaping
  • liability

Question

Can the Administrative Law Judge award me money (damages) to cover the cost of repairs to my home?

Short Answer

No. The ALJ does not have the statutory authority to award monetary damages or injunctive relief.

Detailed Answer

While the ALJ can determine that a violation occurred and order the HOA to abide by the community documents, they cannot order the HOA to pay for the repairs (damages). The homeowner may need to pursue a separate civil action for monetary compensation beyond the filing fee.

Alj Quote

Nothing in the statutes applicable to these disputes provides the Administrative Law Judge with any additional authority to award damages, injunction relief, or declaratory judgments.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • damages
  • remedies
  • jurisdiction
  • repairs

Question

If I win my hearing against the HOA, will I get my filing fee back?

Short Answer

Yes. If the petitioner prevails, the ALJ is required to order the respondent to pay the filing fee.

Detailed Answer

The decision explicitly ordered the HOA to reimburse the homeowner for the $500 filing fee because the petition was granted. This is a statutory requirement when the petitioner wins.

Alj Quote

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

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • filing fees
  • reimbursement
  • costs

Question

Does the HOA's duty to 'maintain' landscaping include preventing root damage, or just trimming trees?

Short Answer

The duty to maintain includes preventing damage. Regular trimming is not sufficient if the roots are causing damage.

Detailed Answer

The HOA argued that they fulfilled their duty by having a landscaper trim the trees. However, the ALJ found that despite this regular maintenance, the HOA violated the CC&Rs because the tree's existence and condition caused damage to the adjacent property.

Alj Quote

Despite Respondent’s contract with CityScape for regular arbor maintenance, the bottle tree’s roots caused lifting and heaving of Petitioner’s patio and concrete slab.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • maintenance definition
  • landscaping
  • negligence defense

Question

What is the standard of proof I need to meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner bears the burden of proof. This standard means you must show that your claim is 'more probably true than not' or carries the greater weight of the evidence.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.

Legal Basis

A.R.S. § 41-1092.07

Topic Tags

  • burden of proof
  • legal standards
  • evidence

Question

Is the HOA liable if they claim they didn't know the roots were causing problems?

Short Answer

Yes. Lack of knowledge or 'negligence' is not necessarily the standard for a CC&R violation in this context.

Detailed Answer

The HOA argued they were not negligent because they did not know about the root intrusion. The ALJ ruled against them anyway, basing the decision on the strict violation of the duty to maintain the common area which resulted in damage, effectively setting aside the 'we didn't know' defense.

Alj Quote

Respondent further argued that because it did not know or have reason to know of the root intrusion, Respondent was not negligent… [However,] the undersigned Administrative Law Judge concludes that… Petitioner established a violation… her petition must be granted.

Legal Basis

CC&Rs Article V Section 1

Topic Tags

  • negligence
  • liability
  • defense arguments

Case

Docket No
22F-H2221013-REL
Case Title
Nancy L. Pope vs. La Vida Homeowners Association
Decision Date
2022-03-02
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Nancy L Pope (petitioner)
  • Ed Humston (witness)
    H&H Enterprises of Arizona
    Petitioner's Contractor

Respondent Side

  • Erik J. Stone (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
  • Gabrielle Sherwood (property manager)
    City Property Management
    Community Manager for La Vida HOA
  • Debbie Duffy (board member)
    La Vida Homeowners Association
    Board Secretary
  • Lawrence Oliva (board member)
    La Vida Homeowners Association
    Board President
  • Barbara (board member)
    La Vida Homeowners Association
    Mentioned in email correspondence

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Santos Diaz (witness)
    CareScape
    Area Manager for CareScape, Respondent's landscaper
  • c. serrano (unknown)
    Transmitted documents
  • Miranda Alvarez (unknown)
    Transmitted documents
  • AHansen (unknown)
    ADRE staff
    Recipient of transmission
  • djones (unknown)
    ADRE staff
    Recipient of transmission
  • DGardner (unknown)
    ADRE staff
    Recipient of transmission
  • vnunez (unknown)
    ADRE staff
    Recipient of transmission
  • tandert (unknown)
    ADRE staff
    Recipient of transmission

Clifford Burnes v. Saguaro Crest Homeowners Association, Inc.

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Case Summary

Case ID 22F-H2221010-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-12-09
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ granted the Petitioner's petition, finding the Respondent HOA violated A.R.S. § 33-1805 by requiring the Petitioner to inspect records before providing copies and failing to comply with the 10-day statutory deadline. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford Burnes Counsel —
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John T. Crotty

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The ALJ granted the Petitioner's petition, finding the Respondent HOA violated A.R.S. § 33-1805 by requiring the Petitioner to inspect records before providing copies and failing to comply with the 10-day statutory deadline. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee.

Key Issues & Findings

Failure to fulfill records request

Petitioner alleged the Association failed to fulfill his request for copies of records within the statutory 10-day period because the Association improperly required him to inspect the documents first. The ALJ found the Association violated A.R.S. § 33-1805, as the statute does not permit an HOA to mandate prior inspection before providing requested copies.

Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee of $500.00 in certified funds and ordered to henceforth comply with ARIZ. REV. STAT. § 33-1805.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • ARIZ. REV. STAT. §32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA, Records Request, ARS 33-1805, Records Inspection, Timeliness, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • ARIZ. REV. STAT. §32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2221010-REL Decision – 930949.pdf

Uploaded 2026-04-24T11:39:31 (139.0 KB)

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.

Questions

Question

Can my HOA force me to inspect records in person before they will provide me with copies?

Short Answer

No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.

Detailed Answer

The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.

Alj Quote

Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • inspection
  • homeowner rights

Question

How many days does the HOA have to provide copies of records I requested?

Short Answer

The HOA must provide copies within 10 business days.

Detailed Answer

Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.

Alj Quote

On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • deadlines
  • records request
  • HOA obligations

Question

What is the maximum amount the HOA can charge me for copies of records?

Short Answer

The HOA cannot charge more than 15 cents per page.

Detailed Answer

The statute limits the fee an association may charge for copying records to a maximum of fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records request
  • costs

Question

Can the HOA charge me a fee just to look at or review records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records review
  • homeowner rights

Question

If I win my hearing against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the judge can order the HOA to reimburse your filing fee.

Detailed Answer

In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Order

Topic Tags

  • reimbursement
  • penalties
  • legal costs

Question

Can I authorize someone else to look at the HOA records for me?

Short Answer

Yes, if you designate them in writing.

Detailed Answer

The statute allows records to be examined by the member or any person the member designates in writing as their representative.

Alj Quote

…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • representation
  • records request
  • homeowner rights

Question

What standard of proof do I need to meet to win a case against my HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

Legal Standard

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?

Short Answer

No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.

Detailed Answer

The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.

Alj Quote

Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • excuses
  • mailing
  • HOA obligations

Case

Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA force me to inspect records in person before they will provide me with copies?

Short Answer

No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.

Detailed Answer

The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.

Alj Quote

Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • inspection
  • homeowner rights

Question

How many days does the HOA have to provide copies of records I requested?

Short Answer

The HOA must provide copies within 10 business days.

Detailed Answer

Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.

Alj Quote

On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • deadlines
  • records request
  • HOA obligations

Question

What is the maximum amount the HOA can charge me for copies of records?

Short Answer

The HOA cannot charge more than 15 cents per page.

Detailed Answer

The statute limits the fee an association may charge for copying records to a maximum of fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records request
  • costs

Question

Can the HOA charge me a fee just to look at or review records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records review
  • homeowner rights

Question

If I win my hearing against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the judge can order the HOA to reimburse your filing fee.

Detailed Answer

In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Order

Topic Tags

  • reimbursement
  • penalties
  • legal costs

Question

Can I authorize someone else to look at the HOA records for me?

Short Answer

Yes, if you designate them in writing.

Detailed Answer

The statute allows records to be examined by the member or any person the member designates in writing as their representative.

Alj Quote

…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • representation
  • records request
  • homeowner rights

Question

What standard of proof do I need to meet to win a case against my HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

Legal Standard

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?

Short Answer

No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.

Detailed Answer

The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.

Alj Quote

Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • excuses
  • mailing
  • HOA obligations

Case

Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Clifford Burnes (petitioner)
    Appeared on his own behalf; also identified as Clifford (Norm) Burnes or Norm Burnes,,,.

Respondent Side

  • John T. Crotty (respondent attorney)
    Farley, Choate & Wood
    Represented Saguaro Crest Homeowners Association,,.

Neutral Parties

  • Jenna Clark (ALJ)
    Listed as Administrative Law Judge.
  • Tammy L. Eigenheer (ALJ)
    Signed the Administrative Law Judge Decision.
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Recipient of transmission of the Decision.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).

Other Participants

  • Joseph Martinez (unknown)
    Petitioner verbally notified him regarding the undelivered certified mail package.

Richard E Jewell v. Casa Fiesta Townhouses Corp.

Posted on by

Case Summary

Case ID 22F-H2221005-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-10-25
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner's petition alleging the HOA violated conflict of interest statutes (A.R.S. § 33-1811) was dismissed because the Petitioner failed to sustain the burden of proof, as the conflict was deemed sufficiently disclosed prior to the board action.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard E Jewell Counsel —
Respondent Casa Fiesta Townhouses Corp. Counsel Nicole Payne and Carlotta L. Turman

Alleged Violations

A.R.S. § 33-1811

Outcome Summary

The Petitioner's petition alleging the HOA violated conflict of interest statutes (A.R.S. § 33-1811) was dismissed because the Petitioner failed to sustain the burden of proof, as the conflict was deemed sufficiently disclosed prior to the board action.

Why this result: Petitioner failed to sustain the burden of proof on the alleged violation.

Key Issues & Findings

Board Member Conflict of Interest Disclosure

Petitioner alleged the HOA violated the statute regarding conflict of interest when the board hired the board president as a paid office assistant and the conflict was not disclosed by the president. The ALJ found that while the president did not disclose the conflict, the conflict was made known by another attendee prior to discussion and action, fulfilling the statutory purpose.

Orders: Petitioner’s petition be dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1811
  • A.R.S. § 33-1243(c)
  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • A.R.S. § 1-211(B)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)

Analytics Highlights

Topics: HOA governance, Conflict of interest, Statutory interpretation, Board voting
Additional Citations:

  • A.R.S. § 33-1811
  • A.R.S. § 33-1243(c)
  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • A.R.S. § 1-211(B)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)

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Video Overview

Audio Overview

Decision Documents

22F-H2221005-REL Decision – 920344.pdf

Uploaded 2026-04-24T11:38:33 (89.3 KB)

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.

Questions

Question

Can an HOA board member also be a paid employee of the association?

Short Answer

Yes, provided the conflict of interest is properly declared.

Detailed Answer

A board member can be hired for compensation, but they must declare the conflict of interest in an open meeting before the board discusses or acts on the issue. In this case, the Board President was hired as an office assistant.

Alj Quote

If any contract, decision or other action for compensation taken by or on behalf of the board of directors would benefit any member of the board of directors . . . , that member of the board of directors shall declare a conflict of interest for that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • board compensation
  • hiring

Question

Does a conflicted board member have to personally announce their own conflict of interest?

Short Answer

Not necessarily, as long as the members are made aware of the conflict.

Detailed Answer

The ALJ ruled that the purpose of the law is to ensure members are aware of conflicts. If the conflict is discussed and known to attendees, it does not matter if the specific board member was not the one to voice the disclosure.

Alj Quote

The purpose of A.R.S. § 33-1811 is to ensure that the members of a homeowners association are aware of all conflicts of interest prior to any discussion… not to require that a specific board member announce to those members that such a conflict of interest exists.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • procedural requirements
  • meetings

Question

Can a board member vote on a contract that benefits them financially?

Short Answer

Yes, after declaring the conflict.

Detailed Answer

State law allows a board member to vote on an issue benefiting them, provided they have declared the conflict in an open meeting before discussion or action is taken.

Alj Quote

The member shall declare the conflict in an open meeting of the board before the board discusses or takes action on that issue and that member may then vote on that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • voting rights
  • conflict of interest
  • board powers

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (petitioner) is responsible for proving their claim. They must show that their version of events is more likely true than not (the greater weight of the evidence).

Alj Quote

At an administrative hearing, the party asserting a claim, right, entitlement, or affirmative defense has the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence.

Legal Basis

Arizona Administrative Code R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • administrative hearing

Question

Which specific law covers conflict of interest for HOAs (Planned Communities) versus Condominiums?

Short Answer

A.R.S. § 33-1811 for HOAs; A.R.S. § 33-1243 for Condominiums.

Detailed Answer

It is important to cite the correct statute based on the type of community. The petitioner initially cited the condo statute (§ 33-1243) but had to correct it to the planned community statute (§ 33-1811).

Alj Quote

Petitioner indicated that he erroneously cited to A.R.S. § 33-1243(C) in his petition as that statute relates to condominium associations rather than homeowner associations. Rather, Petitioner should have referenced A.R.S. § 33-1811…

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • statutes
  • jurisdiction
  • legal definitions

Question

Is a contract void if the technical requirements of declaring a conflict weren't perfectly followed?

Short Answer

Likely not, if the conflict was known and discussed.

Detailed Answer

Statutes are interpreted to produce sensible results. If the conflict was discussed at length and everyone was aware, a technical failure (like the wrong person announcing it) may not constitute a violation.

Alj Quote

The fact that Mr. Pavia was not the board member to disclose the conflict does not negate that the conflict was made known prior to any discussion and that the conflict was discussed at length during the board meeting prior to any vote.

Legal Basis

Case Law (Gutierrez v. Industrial Commission)

Topic Tags

  • contract validity
  • statutory interpretation
  • enforcement

Case

Docket No
22F-H2221005-REL
Case Title
Richard E Jewell vs. Casa Fiesta Townhouses Corp.
Decision Date
2021-10-25
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an HOA board member also be a paid employee of the association?

Short Answer

Yes, provided the conflict of interest is properly declared.

Detailed Answer

A board member can be hired for compensation, but they must declare the conflict of interest in an open meeting before the board discusses or acts on the issue. In this case, the Board President was hired as an office assistant.

Alj Quote

If any contract, decision or other action for compensation taken by or on behalf of the board of directors would benefit any member of the board of directors . . . , that member of the board of directors shall declare a conflict of interest for that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • board compensation
  • hiring

Question

Does a conflicted board member have to personally announce their own conflict of interest?

Short Answer

Not necessarily, as long as the members are made aware of the conflict.

Detailed Answer

The ALJ ruled that the purpose of the law is to ensure members are aware of conflicts. If the conflict is discussed and known to attendees, it does not matter if the specific board member was not the one to voice the disclosure.

Alj Quote

The purpose of A.R.S. § 33-1811 is to ensure that the members of a homeowners association are aware of all conflicts of interest prior to any discussion… not to require that a specific board member announce to those members that such a conflict of interest exists.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflict of interest
  • procedural requirements
  • meetings

Question

Can a board member vote on a contract that benefits them financially?

Short Answer

Yes, after declaring the conflict.

Detailed Answer

State law allows a board member to vote on an issue benefiting them, provided they have declared the conflict in an open meeting before discussion or action is taken.

Alj Quote

The member shall declare the conflict in an open meeting of the board before the board discusses or takes action on that issue and that member may then vote on that issue.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • voting rights
  • conflict of interest
  • board powers

Question

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

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (petitioner) is responsible for proving their claim. They must show that their version of events is more likely true than not (the greater weight of the evidence).

Alj Quote

At an administrative hearing, the party asserting a claim, right, entitlement, or affirmative defense has the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence.

Legal Basis

Arizona Administrative Code R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • administrative hearing

Question

Which specific law covers conflict of interest for HOAs (Planned Communities) versus Condominiums?

Short Answer

A.R.S. § 33-1811 for HOAs; A.R.S. § 33-1243 for Condominiums.

Detailed Answer

It is important to cite the correct statute based on the type of community. The petitioner initially cited the condo statute (§ 33-1243) but had to correct it to the planned community statute (§ 33-1811).

Alj Quote

Petitioner indicated that he erroneously cited to A.R.S. § 33-1243(C) in his petition as that statute relates to condominium associations rather than homeowner associations. Rather, Petitioner should have referenced A.R.S. § 33-1811…

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • statutes
  • jurisdiction
  • legal definitions

Question

Is a contract void if the technical requirements of declaring a conflict weren't perfectly followed?

Short Answer

Likely not, if the conflict was known and discussed.

Detailed Answer

Statutes are interpreted to produce sensible results. If the conflict was discussed at length and everyone was aware, a technical failure (like the wrong person announcing it) may not constitute a violation.

Alj Quote

The fact that Mr. Pavia was not the board member to disclose the conflict does not negate that the conflict was made known prior to any discussion and that the conflict was discussed at length during the board meeting prior to any vote.

Legal Basis

Case Law (Gutierrez v. Industrial Commission)

Topic Tags

  • contract validity
  • statutory interpretation
  • enforcement

Case

Docket No
22F-H2221005-REL
Case Title
Richard E Jewell vs. Casa Fiesta Townhouses Corp.
Decision Date
2021-10-25
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Richard E Jewell (petitioner)
    Jewell Company Inc.

Respondent Side

  • Nicole Payne (respondent attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
  • Carlotta L. Turman (respondent attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
  • George Pavia (HOA board president/employee)
    Casa Fiesta Townhouses Corp.
    Subject of conflict of interest allegation

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Jeffrey D Points v. Olive 66 Condominium Association

Posted on by

Case Summary

Case ID 21F-H2121059-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-08
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner’s petition was affirmed in part (violation of A.R.S. § 33-1258 regarding documents) and denied in part (no violation of A.R.S. § 33-1248 regarding open meetings). Respondent was ordered to reimburse $500.00 of the filing fee and comply with A.R.S. § 33-1258.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jeffrey D Points Counsel —
Respondent Olive 66 Condominium Association Counsel MacKenzie Hill

Alleged Violations

A.R.S. § 33-1258
A.R.S. § 33-1248

Outcome Summary

The Petitioner’s petition was affirmed in part (violation of A.R.S. § 33-1258 regarding documents) and denied in part (no violation of A.R.S. § 33-1248 regarding open meetings). Respondent was ordered to reimburse $500.00 of the filing fee and comply with A.R.S. § 33-1258.

Why this result: Petitioner failed to prove the violation of A.R.S. § 33-1248 because evidence of improper notice was lacking and the topic discussed in executive session was likely covered by a statutory exemption.

Key Issues & Findings

Access to Association Records

Respondent violated A.R.S. § 33-1258 by failing to provide certain requested 2021 invoices that were in existence at the time of the request within the statutory 10-day period.

Orders: Respondent must comply with A.R.S. § 33-1258 going forward. Petitioner reimbursed $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1805

Open Board Meetings

Petitioner failed to establish a violation of A.R.S. § 33-1248 regarding the March 25, 2021, board meeting, as the issue regarding notice was not established and the topic discussed (Landscaping Bid Review) likely fell under a statutory exemption.

Orders: Petitioner failed to establish the alleged violation of A.R.S. § 33-1248.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1248
  • A.R.S. § 33-1804

Analytics Highlights

Topics: condominium association, document request, open meeting, executive session, invoices, filing fee refund
Additional Citations:

  • A.R.S. § 33-1248
  • A.R.S. § 33-1258
  • A.R.S. § 33-1804
  • A.R.S. § 33-1805
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

21F-H2121059-REL Decision – 909631.pdf

Uploaded 2026-04-24T11:37:01 (47.7 KB)

21F-H2121059-REL Decision – 909633.pdf

Uploaded 2026-04-24T11:37:11 (117.7 KB)

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.

Questions

Question

Can I demand to inspect every single HOA document in person at the management office?

Short Answer

No. While records must be reasonably available, you do not have the right to peruse all documents at will.

Detailed Answer

The Administrative Law Judge ruled that the statute requiring records be 'reasonably available' does not grant an unlimited right to inspect all documents in person. The HOA can withhold certain confidential documents, and sorting through everything to remove them may be considered unduly burdensome.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Inspection Rights

Question

Is it a violation if the HOA fails to provide requested invoices within 10 days?

Short Answer

Yes. If the documents exist and are not provided within the statutory timeframe, it is a violation.

Detailed Answer

The ALJ found the Association in violation of the law because they acknowledged that requested invoices existed at the time of the request but were not provided to the homeowner.

Alj Quote

Respondent’s witness acknowledged that certain invoices requested by Petitioner were in existence at the time of the request, but were not provided to Petitioner. Such a failure to provide the documents requested was a violation of A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Invoices
  • Timeliness

Question

Can the HOA Board discuss vendor contracts or issues in a closed executive session?

Short Answer

Yes, if the discussion involves specific complaints or performance issues regarding an individual employee of the contractor.

Detailed Answer

The ALJ ruled that a 'Landscaping Bid Review' was properly held in executive session because the testimony indicated it involved specific performance issues with an employee of the landscaping company.

Alj Quote

Respondent’s witness asserted that the issue regarding the landscaping bid review was a specific performance issue with an employee of the landscaping company. As that topic falls under the exception listed in A.R.S. § 33-1248(A)(4), Respondent properly considered the issue in an executive session closed to its members.

Legal Basis

A.R.S. § 33-1248(A)(4)

Topic Tags

  • Open Meetings
  • Executive Session
  • Vendors

Question

Will the HOA be fined if they are found to have violated records request laws?

Short Answer

Not necessarily. The ALJ has discretion regarding civil penalties.

Detailed Answer

In this case, even though a violation was found regarding the failure to provide invoices, the judge decided that no civil penalty was appropriate based on the facts presented.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • Penalties
  • Enforcement

Question

Who has the burden of proof in a dispute with the HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a preponderance of the evidence.

Detailed Answer

The homeowner is responsible for providing evidence that outweighs the evidence offered by the HOA. If the homeowner fails to provide sufficient evidence (such as proof of when a meeting agenda was issued), the claim will likely fail.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Burden of Proof

Question

Can I get my filing fee reimbursed if I win?

Short Answer

Yes, typically for the portion of the case on which you prevail.

Detailed Answer

The ALJ ordered the Association to reimburse the homeowner $500.00, which represented the filing fee for the specific issue (records request) where the homeowner won.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner their $500.00 filing fee for the issue on which they prevailed.

Legal Basis

Order

Topic Tags

  • Remedies
  • Fees

Question

What if I suspect the HOA altered a document they sent me?

Short Answer

You must provide proof. Mere assertion is not enough.

Detailed Answer

The homeowner claimed a landscaping contract was altered but provided no evidence. The ALJ ruled that an assertion without merit cannot be the basis for finding a violation.

Alj Quote

Petitioner’s assertion that the landscaping contract was altered in some way is completely without merit and cannot be the basis for a finding that Respondent violated A.R.S. § 33-1258.

Legal Basis

Evidence

Topic Tags

  • Evidence
  • Fraud Allegations

Question

Do Open Meeting laws apply to Condominium Associations?

Short Answer

Yes, under A.R.S. § 33-1248.

Detailed Answer

Although the homeowner originally cited the Planned Community statutes (A.R.S. § 33-1804), the hearing proceeded under the correct Condominium statutes (A.R.S. § 33-1248), which contain similar open meeting requirements.

Alj Quote

After discussion, the hearing proceeded with the understanding that the statutes applicable to the instant matter were A.R.S. § 33-1248… and A.R.S. § 33-1258…

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • Jurisdiction
  • Condos vs HOAs

Case

Docket No
21F-H2121059-REL
Case Title
Jeffrey D Points vs. Olive 66 Condominium Association
Decision Date
2021-09-08
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I demand to inspect every single HOA document in person at the management office?

Short Answer

No. While records must be reasonably available, you do not have the right to peruse all documents at will.

Detailed Answer

The Administrative Law Judge ruled that the statute requiring records be 'reasonably available' does not grant an unlimited right to inspect all documents in person. The HOA can withhold certain confidential documents, and sorting through everything to remove them may be considered unduly burdensome.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Inspection Rights

Question

Is it a violation if the HOA fails to provide requested invoices within 10 days?

Short Answer

Yes. If the documents exist and are not provided within the statutory timeframe, it is a violation.

Detailed Answer

The ALJ found the Association in violation of the law because they acknowledged that requested invoices existed at the time of the request but were not provided to the homeowner.

Alj Quote

Respondent’s witness acknowledged that certain invoices requested by Petitioner were in existence at the time of the request, but were not provided to Petitioner. Such a failure to provide the documents requested was a violation of A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Invoices
  • Timeliness

Question

Can the HOA Board discuss vendor contracts or issues in a closed executive session?

Short Answer

Yes, if the discussion involves specific complaints or performance issues regarding an individual employee of the contractor.

Detailed Answer

The ALJ ruled that a 'Landscaping Bid Review' was properly held in executive session because the testimony indicated it involved specific performance issues with an employee of the landscaping company.

Alj Quote

Respondent’s witness asserted that the issue regarding the landscaping bid review was a specific performance issue with an employee of the landscaping company. As that topic falls under the exception listed in A.R.S. § 33-1248(A)(4), Respondent properly considered the issue in an executive session closed to its members.

Legal Basis

A.R.S. § 33-1248(A)(4)

Topic Tags

  • Open Meetings
  • Executive Session
  • Vendors

Question

Will the HOA be fined if they are found to have violated records request laws?

Short Answer

Not necessarily. The ALJ has discretion regarding civil penalties.

Detailed Answer

In this case, even though a violation was found regarding the failure to provide invoices, the judge decided that no civil penalty was appropriate based on the facts presented.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • Penalties
  • Enforcement

Question

Who has the burden of proof in a dispute with the HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a preponderance of the evidence.

Detailed Answer

The homeowner is responsible for providing evidence that outweighs the evidence offered by the HOA. If the homeowner fails to provide sufficient evidence (such as proof of when a meeting agenda was issued), the claim will likely fail.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Burden of Proof

Question

Can I get my filing fee reimbursed if I win?

Short Answer

Yes, typically for the portion of the case on which you prevail.

Detailed Answer

The ALJ ordered the Association to reimburse the homeowner $500.00, which represented the filing fee for the specific issue (records request) where the homeowner won.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner their $500.00 filing fee for the issue on which they prevailed.

Legal Basis

Order

Topic Tags

  • Remedies
  • Fees

Question

What if I suspect the HOA altered a document they sent me?

Short Answer

You must provide proof. Mere assertion is not enough.

Detailed Answer

The homeowner claimed a landscaping contract was altered but provided no evidence. The ALJ ruled that an assertion without merit cannot be the basis for finding a violation.

Alj Quote

Petitioner’s assertion that the landscaping contract was altered in some way is completely without merit and cannot be the basis for a finding that Respondent violated A.R.S. § 33-1258.

Legal Basis

Evidence

Topic Tags

  • Evidence
  • Fraud Allegations

Question

Do Open Meeting laws apply to Condominium Associations?

Short Answer

Yes, under A.R.S. § 33-1248.

Detailed Answer

Although the homeowner originally cited the Planned Community statutes (A.R.S. § 33-1804), the hearing proceeded under the correct Condominium statutes (A.R.S. § 33-1248), which contain similar open meeting requirements.

Alj Quote

After discussion, the hearing proceeded with the understanding that the statutes applicable to the instant matter were A.R.S. § 33-1248… and A.R.S. § 33-1258…

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • Jurisdiction
  • Condos vs HOAs

Case

Docket No
21F-H2121059-REL
Case Title
Jeffrey D Points vs. Olive 66 Condominium Association
Decision Date
2021-09-08
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jeffrey D Points (petitioner)
    Appeared on their own behalf

Respondent Side

  • MacKenzie Hill (respondent attorney)
    The Brown Law Group, PLLC
    Represented Olive 66 Condominium Association
  • Nathan Tennyson (respondent attorney)
    Represented Olive 66 Condominium Association
  • Cathy Hacker (association manager)
    Olive 66 Condominium Association
    Provided testimony as Association Manager,
  • Musa (individual/contractor)
    Mentioned regarding 1099s and invoices; referred to as 'Musa', and 'M. Sayegh'
  • Lorinda Brown (individual/contractor)
    Mentioned regarding 1099s and invoices

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Tim (individual)
    Mentioned regarding 1099s/invoices; reportedly 'has not done any work on the property',

Aaron Ricks (Somerstone Properties, LLC), v. Montelena Master

Posted on by

Case Summary

Case ID 21F-H2120024-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-02-16
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge dismissed the Petition because the Petitioner failed to meet the burden of proof to establish that the Montelena Master Community Association violated A.R.S. § 33-442 or its CC&Rs regarding the imposition of a transfer fee. The ALJ found that the use of the fee to fund operating expenses and/or reserves was an acceptable purpose under the relevant statute.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Aaron Ricks (Somerstone Properties, LLC) Counsel —
Respondent Montelena Master Community Association Counsel Troy Stratman

Alleged Violations

A.R.S. § 33-442, A.R.S. § 33-1806

Outcome Summary

The Administrative Law Judge dismissed the Petition because the Petitioner failed to meet the burden of proof to establish that the Montelena Master Community Association violated A.R.S. § 33-442 or its CC&Rs regarding the imposition of a transfer fee. The ALJ found that the use of the fee to fund operating expenses and/or reserves was an acceptable purpose under the relevant statute.

Why this result: Petitioner failed to establish Respondent acted in violation of the community documents and A.R.S. § 33-442.

Key Issues & Findings

Challenge to unauthorized/unlawful transfer fees charged by HOA

Petitioner alleged that the $2500.00 transfer fee charged to the purchaser was an unlawful transfer fee in violation of A.R.S. § 33-442 and specific CC&R provisions, arguing that the authorized use of the fee (Master Association’s operating expenses and/or reserves) was not specific enough to meet the statutory exception under A.R.S. § 33-442(C).

Orders: Petitioner’s petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1806
  • A.R.S. § 33-442
  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: HOA transfer fee, A.R.S. 33-442, CC&R violation, Operating expenses, Reserves
Additional Citations:

  • A.R.S. § 33-1806
  • A.R.S. § 33-442
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)

Video Overview

Audio Overview

Decision Documents

21F-H2120024-REL Decision – 855401.pdf

Uploaded 2026-04-24T11:31:43 (95.8 KB)

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.

Questions

Question

Who is responsible for proving that an HOA violated the law or community documents during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the petition must prove that the HOA committed the alleged violations. This must be established by a 'preponderance of the evidence,' meaning the homeowner's claims are more likely true than not.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

Can an HOA charge a transfer fee that is used for general operating expenses rather than a specific project?

Short Answer

Yes, funding operating expenses or reserves is considered a valid purpose.

Detailed Answer

Under Arizona law (A.R.S. § 33-442), transfer fees are generally prohibited unless they fall under specific exceptions. One exception is if the fee is used for a purpose authorized in the document. The ALJ ruled that using fees for 'operating expenses and/or… reserves' satisfies this requirement; it does not need to be for a specific limited purpose like a swimming pool.

Alj Quote

Petitioner offered no authority to support his interpretation that A.R.S. § 33-442 required that the transfer fee had to be for a more specific purpose than those identified in the governing documents.

Legal Basis

A.R.S. § 33-442(C)

Topic Tags

  • transfer fees
  • operating expenses
  • financial management

Question

Can the HOA Board set the amount of a transfer fee without a vote if the CC&Rs allow it?

Short Answer

Yes, if the CC&Rs grant the Board the authority to set the amount.

Detailed Answer

If the community's Declaration of Covenants, Conditions, and Restrictions (CC&Rs) specifically states that the transfer fee amount is 'to be set by the Board' or established 'from time to time by the Board,' the Board has the authority to determine the fee amount.

Alj Quote

The Master Association may require the new Owner of a Lot or Parcel to pay to the Master Association, or its designated representative, a transfer fee in an amount to be set by the Board . . . .

Legal Basis

CC&Rs Section 6.6; CC&Rs Section 7.15

Topic Tags

  • board authority
  • CC&Rs
  • fees

Question

Can an HOA charge both a Transfer Fee and a Reserve Contribution fee on the same sale?

Short Answer

Yes, an HOA can charge multiple distinct fees if authorized by the governing documents.

Detailed Answer

The ALJ found that a Transfer Fee can be charged in addition to other fees, such as a Reserve Contribution, provided the governing documents (like a Board Resolution or CC&Rs) explicitly state that the fee is in addition to other assessments.

Alj Quote

This Transfer Fee shall be in addition to any other fees and assessments due and payable in relation to the transfer of the property, including, but not limited to, a Reserve Contribution pursuant to Article 6, Section 6.9 of the Declaration.

Legal Basis

Board Resolution (Recorded July 23, 2010)

Topic Tags

  • reserve contribution
  • transfer fees
  • closing costs

Question

What does 'preponderance of the evidence' mean in an HOA dispute?

Short Answer

It means the evidence shows a claim is more probably true than not.

Detailed Answer

This legal standard requires the party with the burden of proof to provide evidence that has 'superior evidentiary weight.' It does not mean removing all doubt, but rather sufficient evidence to incline a fair mind to one side over the other.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Arizona Law of Evidence § 5

Topic Tags

  • legal definitions
  • evidence
  • standard of proof

Question

Is a transfer fee valid if I purchased the property out of bankruptcy?

Short Answer

Yes, if the CC&Rs require payment immediately upon becoming the owner.

Detailed Answer

The manner of purchase (e.g., out of bankruptcy) does not automatically exempt an owner from transfer fees if the CC&Rs mandate that 'Each person or entity who purchases a Lot… shall pay… immediately upon becoming the Owner.'

Alj Quote

Therefore, Respondent was able to charge Petitioner the transfer fee pursuant to his purchase of the property out of bankruptcy.

Legal Basis

CC&Rs Section 7.15

Topic Tags

  • bankruptcy
  • property transfer
  • exemptions

Case

Docket No
21F-H2120024-REL
Case Title
Aaron Ricks (Somerstone Properties, LLC) v. Montelena Master Community Association
Decision Date
2021-02-16
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that an HOA violated the law or community documents during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the petition must prove that the HOA committed the alleged violations. This must be established by a 'preponderance of the evidence,' meaning the homeowner's claims are more likely true than not.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

Can an HOA charge a transfer fee that is used for general operating expenses rather than a specific project?

Short Answer

Yes, funding operating expenses or reserves is considered a valid purpose.

Detailed Answer

Under Arizona law (A.R.S. § 33-442), transfer fees are generally prohibited unless they fall under specific exceptions. One exception is if the fee is used for a purpose authorized in the document. The ALJ ruled that using fees for 'operating expenses and/or… reserves' satisfies this requirement; it does not need to be for a specific limited purpose like a swimming pool.

Alj Quote

Petitioner offered no authority to support his interpretation that A.R.S. § 33-442 required that the transfer fee had to be for a more specific purpose than those identified in the governing documents.

Legal Basis

A.R.S. § 33-442(C)

Topic Tags

  • transfer fees
  • operating expenses
  • financial management

Question

Can the HOA Board set the amount of a transfer fee without a vote if the CC&Rs allow it?

Short Answer

Yes, if the CC&Rs grant the Board the authority to set the amount.

Detailed Answer

If the community's Declaration of Covenants, Conditions, and Restrictions (CC&Rs) specifically states that the transfer fee amount is 'to be set by the Board' or established 'from time to time by the Board,' the Board has the authority to determine the fee amount.

Alj Quote

The Master Association may require the new Owner of a Lot or Parcel to pay to the Master Association, or its designated representative, a transfer fee in an amount to be set by the Board . . . .

Legal Basis

CC&Rs Section 6.6; CC&Rs Section 7.15

Topic Tags

  • board authority
  • CC&Rs
  • fees

Question

Can an HOA charge both a Transfer Fee and a Reserve Contribution fee on the same sale?

Short Answer

Yes, an HOA can charge multiple distinct fees if authorized by the governing documents.

Detailed Answer

The ALJ found that a Transfer Fee can be charged in addition to other fees, such as a Reserve Contribution, provided the governing documents (like a Board Resolution or CC&Rs) explicitly state that the fee is in addition to other assessments.

Alj Quote

This Transfer Fee shall be in addition to any other fees and assessments due and payable in relation to the transfer of the property, including, but not limited to, a Reserve Contribution pursuant to Article 6, Section 6.9 of the Declaration.

Legal Basis

Board Resolution (Recorded July 23, 2010)

Topic Tags

  • reserve contribution
  • transfer fees
  • closing costs

Question

What does 'preponderance of the evidence' mean in an HOA dispute?

Short Answer

It means the evidence shows a claim is more probably true than not.

Detailed Answer

This legal standard requires the party with the burden of proof to provide evidence that has 'superior evidentiary weight.' It does not mean removing all doubt, but rather sufficient evidence to incline a fair mind to one side over the other.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Arizona Law of Evidence § 5

Topic Tags

  • legal definitions
  • evidence
  • standard of proof

Question

Is a transfer fee valid if I purchased the property out of bankruptcy?

Short Answer

Yes, if the CC&Rs require payment immediately upon becoming the owner.

Detailed Answer

The manner of purchase (e.g., out of bankruptcy) does not automatically exempt an owner from transfer fees if the CC&Rs mandate that 'Each person or entity who purchases a Lot… shall pay… immediately upon becoming the Owner.'

Alj Quote

Therefore, Respondent was able to charge Petitioner the transfer fee pursuant to his purchase of the property out of bankruptcy.

Legal Basis

CC&Rs Section 7.15

Topic Tags

  • bankruptcy
  • property transfer
  • exemptions

Case

Docket No
21F-H2120024-REL
Case Title
Aaron Ricks (Somerstone Properties, LLC) v. Montelena Master Community Association
Decision Date
2021-02-16
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Aaron Ricks (petitioner)
    Somerstone Properties, LLC

Respondent Side

  • Troy Stratman (HOA attorney)
    Stratman Law Firm, PLC

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Jean Williams v. Surprise Farms II Community Association

Posted on by

Case Summary

Case ID 20F-H2020054-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-07-30
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner failed to prove the HOA violated A.R.S. § 33-1803(A) or the CC&Rs by increasing the Annual Assessment by 20% without a vote, as the increase remained below the Maximum Annual Assessment and complied with the statutory 20% cap.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jean Williams Counsel —
Respondent Surprise Farms II Community Association Counsel Nick Nogami

Alleged Violations

A.R.S. § 33-1803; CC&Rs Article VII, Section 7.2 and 7.4(a)-(c)

Outcome Summary

Petitioner failed to prove the HOA violated A.R.S. § 33-1803(A) or the CC&Rs by increasing the Annual Assessment by 20% without a vote, as the increase remained below the Maximum Annual Assessment and complied with the statutory 20% cap.

Why this result: Petitioner’s assertion was based on an erroneous reading of the CC&Rs, confusing the maximum automatic increase of the Maximum Annual Assessment (10%) with the limit on the actual Annual Assessment increase.

Key Issues & Findings

Whether the 20% increase in the Annual Assessment effective April 2020 violated statutory limits or CC&R requirements for member approval.

Petitioner alleged the Respondent HOA violated A.R.S. § 33-1803 and the CC&Rs by increasing the Annual Assessment by 20% (from $720 to $864) effective April 2020 without obtaining a 2/3 majority vote of the members.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1803(A)
  • CC&Rs Article VII, Section 7.2
  • CC&Rs Article VII, Section 7.4

Analytics Highlights

Topics: assessment increase, HOA assessments, statutory compliance, CC&R interpretation
Additional Citations:

  • A.R.S. § 33-1803(A)
  • CC&Rs Article VII, Section 7.2
  • CC&Rs Article VII, Section 7.4

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Video Overview

Audio Overview

Decision Documents

20F-H2020054-REL Decision – 810957.pdf

Uploaded 2026-04-26T09:53:01 (103.0 KB)

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.

Study Guide: Williams v. Surprise Farms II Community Association

This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2020054-REL, Jean Williams v. Surprise Farms II Community Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based on the provided legal decision.

1. Who were the primary parties involved in this case, and what were their respective roles?

2. What was the central allegation Jean Williams made against the Surprise Farms II Community Association in her petition?

3. What was the specific percentage and dollar amount of the Annual Assessment increase that took effect in April 2020, and was it approved by a vote of the members?

4. According to the decision, which two governing documents did the Petitioner allege the Respondent had violated?

5. What limitation does Arizona Revised Statute (A.R.S.) § 33-1803(A) place on an association’s ability to raise regular assessments?

6. How did the community’s CC&Rs define the relationship between the “Annual Assessment” set by the Board and the “Maximum Annual Assessment”?

7. What was the calculated “Maximum Annual Assessment” for the year 2020, according to the automatic increase formula in the CC&Rs?

8. According to the Administrative Law Judge, what was the petitioner’s fundamental misunderstanding of Article VII, Section 7.4 of the CC&Rs?

9. Who bore the “burden of proof” in this case, and what legal standard was required to meet it?

10. What was the final order issued by the Administrative Law Judge, and on what date was the decision made?

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Quiz Answer Key

1. The primary parties were Jean Williams, who was the Petitioner appearing on her own behalf, and the Surprise Farms II Community Association, which was the Respondent represented by Nick Nogami. The case was adjudicated by Administrative Law Judge Tammy L. Eigenheer.

2. The petitioner alleged that the association improperly increased the Maximum Monthly Assessment by 20% without the required approval from a two-thirds majority of the association members. She claimed this action violated the community’s CC&Rs and that the association incorrectly used A.R.S. § 33-1803 to justify the increase.

3. Effective April 2020, the Annual Assessment increased by twenty percent, from $720.00 per year to $864.00 per year. The respondent stipulated that this increase occurred without any vote of the members.

4. The Petitioner alleged that the Respondent had violated the provisions of A.R.S. § 33-1803 and specific sections of the association’s governing documents: Article VII, Section 7.2 and 7.4(a)-(c) of the Covenants, Conditions, and Restrictions (CC&Rs).

5. A.R.S. § 33-1803(A) states that an association cannot impose a regular assessment that is more than twenty percent greater than the previous fiscal year’s assessment without the approval of a majority of the members. This limit applies unless the community’s own documents impose an even lower limit.

6. Article VII, Section 7.2 of the CC&Rs granted the Board sole discretion to set the Annual Assessment. This discretion was limited by the provision that the amount must be subject to, and therefore less than or equal to, the “Maximum Annual Assessment” as calculated under Section 7.4.

7. Using the annual ten percent increase formula set forth in Article VII, Section 7.4 of the CC&Rs, the calculated Maximum Annual Assessment for the year 2020 was $2,426.00.

8. The judge concluded that the petitioner’s case was predicated on her erroneous reading of the CC&Rs. She incorrectly believed the 10% figure in Section 7.4 applied to the Annual Assessment itself, when in fact it was the automatic escalator for the Maximum Annual Assessment, which served as a ceiling for the board’s discretion.

9. The Petitioner, Jean Williams, bore the burden of proof in this proceeding. She was required to prove her allegations by a “preponderance of the evidence,” which is defined as evidence with the most convincing force.

10. The final order, issued on July 30, 2020, was that the Petitioner’s petition be dismissed. The Judge concluded that the Respondent did not violate the referenced provisions of the CC&Rs or A.R.S. § 33-1803(A).

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Essay Questions

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

1. Analyze the distinction between “Annual Assessment” and “Maximum Annual Assessment” as defined in the Surprise Farms II CC&Rs. Explain how the petitioner’s failure to differentiate between these two terms was central to the case’s outcome.

2. Explain the interplay between the community’s CC&Rs (specifically Article VII, Sections 7.2 and 7.4) and the state law (A.R.S. § 33-1803(A)). How did the judge determine that the HOA’s actions complied with both governing authorities?

3. Describe the burden of proof in this case. Who held the burden, what was the standard required, and did they successfully meet it? Use specific details from the “CONCLUSIONS OF LAW” section to support your answer.

4. Trace the history of the assessment increases from April 2019 to April 2020. Detail the specific monetary and percentage increases for both years and explain why the 20% increase in 2020 was deemed legally permissible without a member vote, while an increase over 20% would not have been.

5. Discuss the legal reasoning behind the Administrative Law Judge’s decision to dismiss the petition. What specific conclusions of law and interpretations of the CC&Rs led directly to the ruling that the respondent did not improperly increase the annual assessment?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Tammy L. Eigenheer, who presides over administrative hearings and makes legal decisions and rulings.

Annual Assessment

As defined in the CC&Rs, “the charge levied and assessed each year against each Lot and Parcel pursuant to Article VII, Section 7.2 hereof.” The Board has sole discretion to set this amount, as long as it does not exceed the Maximum Annual Assessment.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The specific statute relevant to this case is A.R.S. § 33-1803(A), which governs HOA assessment increases.

Burden of Proof

The obligation on a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving the Respondent violated the law and CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set forth the rules for a planned community or homeowners association. In this case, the CC&Rs for Surprise Farms II were recorded in 2003.

HOA (Homeowners Association)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Surprise Farms II Community Association is the HOA in this case.

Maximum Annual Assessment

A ceiling on the Annual Assessment, established by the CC&Rs. This amount was set at $480 initially and designed to increase automatically by ten percent each year without a member vote, serving as the upper limit for the Board’s assessment-setting discretion.

Petitioner

The party who files a petition initiating a legal case. In this matter, Jean Williams was the Petitioner.

Preponderance of the Evidence

The legal standard of proof required in this proceeding. It is met when the evidence presented has the “most convincing force” and shows that a fact is more likely to be true than not true.

Respondent

The party against whom a petition is filed. In this matter, the Surprise Farms II Community Association was the Respondent.

Why This Homeowner Lost Her Lawsuit Against the HOA (And What You Can Learn From It)

1.0 Introduction: The Dreaded HOA Letter

It’s a scenario many homeowners fear: a letter from the Homeowners Association (HOA) announcing a significant and unexpected fee increase. The feeling of frustration and powerlessness can be overwhelming. When Jean Williams received notice that her HOA was raising her annual assessment by a full 20%, she believed the board had overstepped its authority. The increase seemed to be a clear violation of the community’s governing documents, so she decided to fight back and took her HOA to court. The outcome, however, was not what she—or many other homeowners—would have expected.

2.0 The Core Misunderstanding: “Maximum” Dues vs. “Actual” Dues

The foundation of Jean Williams’s case was her belief that the community’s Covenants, Conditions, and Restrictions (CC&Rs) limited any annual fee increase to 10% without a vote from the members. This is where the critical misunderstanding occurred.

The judge in the case identified a crucial distinction in the legal language. The 10% limit mentioned in the CC&Rs did not apply to the Annual Assessment—the actual dollar amount billed to homeowners each year. Instead, it applied to the Maximum Annual Assessment, a theoretical ceiling on how high the fees could potentially go.

But why was this ceiling so high? The CC&Rs were designed so that this Maximum Annual Assessment would increase automatically by 10% every single year since its inception in 2003. This cumulative growth operated silently in the background for over a decade, creating a vast difference between the two figures. For the year 2020, the actual assessment billed to homeowners was $864. However, due to years of automatic increases, the allowable Maximum Annual Assessment had ballooned to $2,426. The board was operating with far more financial latitude than the petitioner realized.

3.0 How State Law Set the Real Limit at 20%

The next layer of this case involves the interplay between the HOA’s documents and state law. An Arizona state law, A.R.S. § 33-1803(A), dictates that an HOA cannot raise regular assessments by more than 20% in a single year without a vote from the majority of members, unless the community’s own documents set a lower limit.

This is the key legal point. Williams believed her community documents did set a lower limit of 10%. Critically, however, that 10% limit applied only to the wrong variable—the theoretical Maximum Annual Assessment ceiling, not the Annual Assessment actually paid. The CC&Rs’ failure to place a specific annual cap on the actual assessment created a legal vacuum. This vacuum was automatically filled by the Arizona state statute, making its 20% cap the only legally binding limit.

The HOA’s increase from $720 to $864 was exactly 20%. This placed their action right at the maximum threshold allowed by state law without requiring a member vote, making it legally permissible.

4.0 The Fine Print: The Power of “Sole Discretion”

The HOA board’s authority was further solidified by specific language embedded in its governing documents. Article VII, Section 7.2 of the CC&Rs explicitly granted the board “sole discretion” to determine the amount of the Annual Assessment.

The true power of this clause was unlocked by its connection to the two types of assessments. The board’s “sole discretion” was the legal tool that allowed them to set the Annual Assessment at any level they chose, provided it did not exceed the automatically growing Maximum Annual Assessment ceiling. With a ceiling of $2,426 and a previous fee of only $720, the board was legally empowered to enact the 20% increase without consulting homeowners.

5.0 The Judge’s Final Word: A Cautionary Tale

Ultimately, the judge concluded that the homeowner’s entire case was built on a misreading of the governing documents. The judge’s decision offers a clear and potent lesson for all homeowners, emphasizing that the precise wording of these legal documents is everything.

In the final decision, the judge wrote:

Petitioner’s assertion that Respondent could not increase the Annual Assessment by twenty percent was predicated on her erroneous reading of Article VII, Section 7.4 of the CC&Rs. … By definition, the existence of a Maximum Annual Assessment necessitates an Annual Assessment that may be less than the maximum.

The judge’s reasoning is precise: creating a “maximum” assessment in a legal document inherently implies the existence of a separate “actual” assessment that can be lower. Williams’s case collapsed because she treated these two distinct legal concepts as one and the same.

6.0 Conclusion: Are You Sure You Know What Your Documents Say?

The case of Jean Williams serves as a powerful reminder of how interlocking legal mechanics can produce unexpected outcomes. The board’s power was not derived from a single rule, but from the synthesis of three distinct elements: a high Maximum Assessment ceiling created by a silent, cumulative growth clause; the board’s “sole discretion” to set actual fees anywhere underneath that ceiling; and the state law’s 20% backstop that became the only relevant limit in the absence of a specific cap in the CC&Rs.

This case proves that the devil is truly in the details. It begs a critical question for every homeowner living in a planned community: When was the last time you read your community’s CC&Rs?

Case Participants

Petitioner Side

  • Jean Williams (petitioner)
    Appeared and testified on her own behalf

Respondent Side

  • Nick Nogami (HOA attorney)
    Surprise Farms II Community Association

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Susan L Alandar v. Ventana Lakes Property Owners’ Association

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Case Summary

Case ID 20F-H2020046-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-07-23
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner's petition alleging violations of statute and community documents was denied in its entirety. Two issues were found moot because the prohibited action had already concluded, and the other two issues failed because the Petitioner did not meet the burden of proof to establish a violation.
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susan L. Alandar Counsel —
Respondent Ventana Lakes Property Owners' Association Counsel Nicholas Nogami

Alleged Violations

A.R.S. § 33-1804
CC&R’s Article V Section C; Bylaws Article IV.E.8; Ventana Lakes Rule 8.4.A
CC&R’s Article III Section A; CC&R’s Article IV Section C.23; Bylaws Article IV.E.8; Ventana Lakes Rule 8.4.A
Ventana Lakes Rule 8.3.B.1.b

Outcome Summary

The Petitioner's petition alleging violations of statute and community documents was denied in its entirety. Two issues were found moot because the prohibited action had already concluded, and the other two issues failed because the Petitioner did not meet the burden of proof to establish a violation.

Why this result: Issues 2 and 3 were moot. Issues 1 and 4 failed on the merits because the evidence did not prove the HOA violated the cited statute or rule.

Key Issues & Findings

Board conducted interviews of candidates in closed executive session.

Petitioner alleged the Board improperly conducted interviews for Board vacancies in closed sessions. The Board admitted to the practice but asserted they did so to elicit personal, health, or financial information, which is a statutory exception to the open meeting law.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804

Discriminately penalized homeowners/members (Italian American Club).

Petitioner alleged the HOA wrongfully penalized and denied use of facilities to the Italian American Club (IAC). This issue was based on a specific one-year prohibition on facility use imposed after the IAC violated rules regarding moving furniture.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Article V, Section C of the CC&Rs
  • Article IV.E.8 of the Bylaws
  • Ventana Lakes Rules 8.4.A

Refusal of homeowners' use of facilities without authorization by rule.

Petitioner alleged the HOA wrongfully denied the Italian American Club use of facilities following an incident where club members moved tables against HOA rules, resulting in a one-year ban on facility use.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Article III, Section A of the CC&Rs
  • Article IV, Section C.23 of the CC&Rs
  • Article IV.E.8 of the Bylaws
  • Ventana Lakes Rules 8.4.A

Refusal to place written requests for Board action on the agenda.

Petitioner argued that Ventana Lakes Rule 8.3.B.1.b required the Board president to include every single written request from members on the next upcoming Board meeting agenda, which the Board had failed to do.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Ventana Lakes Rule 8.3.B.1.b

Analytics Highlights

Topics: HOA Open Meetings, Executive Session, Mootness, Facility Use Suspension, Agenda Setting
Additional Citations:

  • A.R.S. § 33-1804
  • Article IV, Section E of the Bylaws
  • Article 5, Section C of the CC&Rs
  • Article IV, Section C(23) of the CC&Rs
  • Article XII, Section B of the CC&Rs
  • Article III, Section A of the CC&Rs
  • Ventana Lake Rules 8.3.B
  • Ventana Lake Rules 8.4.A
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02

Video Overview

Audio Overview

Decision Documents

20F-H2020046-REL Decision – 809207.pdf

Uploaded 2026-04-24T11:25:42 (157.4 KB)

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.

Study Guide: Alandar v. Ventana Lakes Property Owners’ Association

This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2020046-REL, concerning a dispute between Petitioner Susan L. Alandar and Respondent Ventana Lakes Property Owners’ Association. The guide includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, arguments, and legal conclusions.

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Short-Answer Quiz

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

1. What were the initial steps Susan L. Alandar took to begin the HOA dispute process, and when did she file her petition?

2. What was the Ventana Lakes Board’s practice regarding interviewing candidates for Board vacancies both before and after June 2019?

3. What was the core of the dispute regarding the Italian American Club (IAC), and what specific action by the club led to the conflict on April 4, 2019?

4. What penalty did the Board of Directors impose on the Italian American Club, and for what duration?

5. Why did the Administrative Law Judge ultimately dismiss Issues 2 and 3 (concerning the IAC) as moot?

6. What was the Petitioner’s argument regarding the Board President’s responsibility for setting the meeting agenda under Ventana Lakes Rule 8.3.B.1.b?

7. How did the Administrative Law Judge interpret the Board President’s authority and discretion in setting the agenda?

8. Which party bears the “burden of proof” in this type of hearing, and what is the standard of proof required?

9. According to Arizona statute A.R.S. § 33-1804, when is it permissible for a Board of Directors to hold a closed or executive session?

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

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Answer Key

1. On or about February 3, 2020, Susan L. Alandar filed a Homeowners Association (HOA) Dispute Process Petition with the Arizona Department of Real Estate. She initially indicated two issues would be presented and paid a $1000.00 filing fee.

2. Prior to June 2019, the Board conducted candidate interviews, discussions, and votes in closed executive sessions. After June 2019, the Board conducted interviews in executive session to elicit private information but held the final vote in an open session.

3. The dispute centered on the IAC’s non-compliance with association rules. The conflict on April 4, 2019, was triggered when IAC members were observed on security cameras moving tables and chairs from a storage area against the instructions of the facilities manager.

4. In an executive session on April 17, 2019, the Board revoked the Italian American Club’s ability to use all of the association’s facilities. The penalty was for a period of one year, from May 1, 2019, to April 30, 2020.

5. The Judge dismissed these issues as moot because the one-year prohibition on the IAC’s use of facilities had already expired at the time of the hearing. Since the penalty was no longer in effect, the Judge could not order the Respondent to take any corrective action.

6. The Petitioner argued that Rule 8.3.B.1.b required the Board president to place any written request for Board action from an association member onto the agenda for the next meeting. She contended this was a mandatory duty, regardless of the nature or number of requests.

7. The Judge concluded that the rule’s plain language does not require every request to be placed on the agenda. Citing the impracticality of including hundreds of hypothetical requests, the Judge found that the Board President has broad, inherent authority to limit the items on the agenda.

8. The Petitioner bears the burden of proof to establish that the Respondent committed the alleged violations. The required standard of proof is a “preponderance of the evidence.”

9. A.R.S. § 33-1804 allows a portion of a meeting to be closed to consider specific matters, including personal, health, or financial information about an individual member or employee of the association. The Board used this exception to justify holding candidate interviews in executive session.

10. The final order issued on July 23, 2020, was that the Petitioner’s petition is denied.

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Essay Questions

The following questions are designed for deeper analysis and discussion. Formulate comprehensive answers based on the facts and legal reasoning presented in the decision.

1. Analyze the Board of Directors’ evolving practice for interviewing candidates for board vacancies (Issue 1). Discuss how their pre- and post-June 2019 methods relate to the specific language and exceptions outlined in A.R.S. § 33-1804.

2. Explain the legal concept of “mootness” as it was applied to the sanctions against the Italian American Club (Issues 2 and 3). Why was the Administrative Law Judge unable to rule on the propriety of the Board’s actions, and what does this imply about the timing of legal challenges in HOA disputes?

3. Compare and contrast the Petitioner’s interpretation of Ventana Lakes Rule 8.3.B.1.b with the Administrative Law Judge’s final interpretation (Issue 4). Discuss the Judge’s reasoning for concluding that the Board President has “inherent authority” to limit agenda items.

4. Define the “preponderance of the evidence” standard. Using examples from at least two of the four issues raised in the petition, explain how the Petitioner failed to meet this burden of proof.

5. Based on the referenced community documents (CC&Rs and Bylaws), describe the scope of the Ventana Lakes Board of Directors’ power to regulate Common Areas, suspend resident privileges, and enforce rules. How do these documents grant authority that was relevant to the Board’s actions against the Italian American Club?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions based on the evidence and applicable law. In this case, the ALJ was Tammy L. Eigenheer.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Bylaws

A set of rules adopted by an organization, such as an HOA, to govern its internal management and operations. Article IV, Section E of the Bylaws addresses the Board’s powers and duties.

Covenants, Conditions & Restrictions. These are legally binding rules recorded with the property deeds in a planned community, governing property use and the rights and obligations of the homeowners and the HOA.

Common Areas

Property within a planned community owned by the HOA for the common use and enjoyment of all residents, such as the Yacht Club and recreational facilities mentioned in the case.

Executive Session

A closed portion of a meeting of a deliberative body, such as an HOA board, which is not open to the general membership. A.R.S. § 33-1804 specifies the limited circumstances under which such a session can be held.

HOA (Homeowners Association)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. In this case, the Ventana Lakes Property Owners’ Association.

A legal term for a matter that is no longer in controversy or has become irrelevant. The ALJ declared the issues regarding the Italian American Club moot because the one-year penalty had already expired.

Petitioner

The party who files a petition initiating a legal action or administrative proceeding. In this case, Susan L. Alandar.

Preponderance of the Evidence

The standard of proof in most civil cases, which requires the trier of fact (the judge) to be convinced that a contention is more probably true than not. The Petitioner had the burden to meet this standard.

Respondent

The party against whom a petition is filed or an appeal is brought. In this case, the Ventana Lakes Property Owners’ Association.

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20F-H2020046-REL

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The provided text is an Administrative Law Judge Decision concerning a dispute between Susan L. Alandar, the Petitioner, and the Ventana Lakes Property Owners’ Association, the Respondent. The Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging four violations of statute and community documents by the HOA, requiring her to pay additional filing fees to pursue all four issues. The judge systematically addressed each of the four allegations, which included improper closed-door interviews for board candidates, discriminatory penalizing and facility denial against an Italian American Club, and the refusal to place all member-requested items on the board agenda. Ultimately, the Administrative Law Judge denied the Petitioner’s petition, finding that she failed to establish the alleged violations by a preponderance of the evidence, and further determined that the facilities denial issue was moot as the one-year prohibition had expired.

1 source

What were the specific allegations and outcomes across the four distinct issues presented?
How did the Administrative Law Judge interpret governing documents regarding Board authority and rules?
What legal standards and statutes primarily governed the resolution of this HOA dispute petition?

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Case Participants

Petitioner Side

  • Susan L. Alandar (petitioner)
    Appeared on her own behalf.

Respondent Side

  • Nicholas Nogami (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP
    Represented Ventana Lakes Property Owners' Association.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Administrative Law Judge who signed the decision.
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Decision transmitted to.
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Decision transmitted to.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Decision transmitted to.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Decision transmitted to.
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Decision transmitted to.
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Decision transmitted to.

Other Participants

  • c. serrano (Staff/Clerk)
    Transmitted the decision to the attorney for the Respondent.

Ronna Biesecker, v. 6100 Fifth Condominium Homeowners Association,

Posted on by

Case Summary

Case ID 20F-H2020050-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-06-25
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ronna Biesecker Counsel —
Respondent 6100 Fifth Condominium Homeowners Association Counsel —

Alleged Violations

A.R.S. § 33-1247 and CC&Rs § 10(c)

Outcome Summary

The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.

Why this result: Petitioner failed to meet the burden of proof, as evidence suggested the water leak was caused by the sliding glass door of the unit above, not a flaw in the common elements.

Key Issues & Findings

Failure to maintain all Common Elements (Water Leak Dispute)

Petitioner alleged the Respondent HOA failed to maintain Common Elements, leading to water leaks in her unit. Respondent denied the violation, asserting the leak originated from the upstairs unit’s sliding doors or track assemblies, which are the responsibility of that unit owner.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1247
  • CC&Rs § 10(c)
  • Article II.E, Section 1 of the Bylaws
  • Article C of the CC&Rs

Analytics Highlights

Topics: condominium, maintenance dispute, common elements, water damage, burden of proof
Additional Citations:

  • A.R.S. § 33-1247
  • CC&Rs § 10(c)
  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
  • Vazanno v. Superior Court

Video Overview

Audio Overview

Decision Documents

20F-H2020050-REL Decision – 802352.pdf

Uploaded 2026-04-24T11:26:08 (103.2 KB)

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.

Study Guide: Biesecker v. 6100 Fifth Condominium Homeowners Association

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 20F-H2020050-REL, concerning a dispute between condominium owner Ronna Biesecker and the 6100 Fifth Condominium Homeowners Association. The case centers on determining responsibility for water leaks affecting the Petitioner’s unit. Use the following sections to test and deepen your understanding of the facts, legal arguments, and final outcome.

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Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, using only information provided in the case document.

1. Who were the Petitioner and Respondent in this case, and what was their relationship?

2. What was the central claim made by the Petitioner against the Respondent?

3. According to the Respondent, what was the source of the water leaks and who was responsible for the repair?

4. What legal standard, or “burden of proof,” did the Petitioner need to meet to win her case?

5. What two key community documents, in addition to Arizona state law, define the Respondent’s responsibility for maintaining “common elements”?

6. Summarize the findings of the two inspection reports mentioned in the evidence (from Olander’s and the December 23, 2019 invoice).

7. What was the Petitioner’s theory about the source of the leak, as stated during the hearing?

8. How did Robert Eric Struse, the Respondent’s Statutory Agent, counter the Petitioner’s theory about the stucco crack?

9. What was the final ruling, or “Order,” issued by the Administrative Law Judge?

10. Why did the Administrative Law Judge conclude that the Petitioner failed to meet her burden of proof?

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Answer Key

1. The Petitioner was Ronna Biesecker, who owned condominium unit A113. The Respondent was the 6100 Fifth Condominium Homeowners Association, of which the Petitioner was a member.

2. The Petitioner filed a petition alleging the Respondent violated its CC&Rs (§ 10(c)) and Arizona statute A.R.S. § 33-1247 by failing to maintain the common elements, which she believed were the source of water leaks in her unit.

3. The Respondent argued that the source of the water leaks was the upstairs unit’s sliding doors or track assemblies. Therefore, the responsibility for maintenance and repair belonged to the owner of that specific unit, not the Homeowners Association.

4. The Petitioner had the burden of proof to establish her claim by a “preponderance of the evidence.” This legal standard requires providing proof that convinces the trier of fact that the contention is more probably true than not.

5. The Respondent’s responsibility is defined in Article II.E, Section 1 of the community Bylaws and Section C of the CC&Rs. Both documents state the association is responsible for the maintenance and repair of common elements using assessments paid by owners.

6. An employee from Olander’s opined that the leak was coming from the unit above Petitioner’s, specifically from large gaps under the sliding door’s threshold. Similarly, the inspector’s invoice from December 23, 2019, concluded that the water damage appeared to be coming from the upstairs unit’s sliding doors or their track assemblies.

7. During the hearing, the Petitioner stated that it was “obvious” the leak was coming from a crack in the stucco in the pop-out surrounding the sliding doors at the roof level. She posited this was a common element and therefore the Respondent’s responsibility to repair.

8. Mr. Struse testified that if water were leaking through the crack in the stucco, the upstairs unit would have also sustained internal damage. He confirmed that an inspection of the inside of the upstairs unit showed this was not happening, undermining the Petitioner’s theory.

9. The Administrative Law Judge ordered that the Petitioner’s petition be dismissed.

10. The judge concluded the Petitioner failed to meet her burden of proof because the credible evidence, particularly the opinions of the companies that inspected the area, concluded the leak was coming from the sliding glass door of the unit above. The Petitioner did not establish by a preponderance of the evidence that the leak was attributable to the condition of the common elements.

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Essay Questions

The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and legal principles from the case document to support your arguments.

1. Analyze the distinction between “common elements” and an individual “unit” as defined by A.R.S. § 33-1247 and the community’s governing documents. How was this distinction central to the judge’s final decision in this case?

2. Discuss the role and weight of evidence presented during the hearing. Compare the Petitioner’s testimony and personal observations with the professional opinions from Olander’s and the inspector. Why did the judge find the professional opinions more convincing in determining the outcome?

3. Explain the legal standard of “preponderance of the evidence” as defined in the case document’s Conclusions of Law. Using specific examples from the hearing evidence, detail why Ronna Biesecker failed to meet this standard.

4. Based on the referenced community documents, what are the primary maintenance responsibilities of the 6100 Fifth Condominium Homeowners Association? How did the Respondent’s stated refusal to “arbitrate, mediate, or serve as a third party” in the dispute between unit owners align with or diverge from these responsibilities?

5. Imagine you are advising the Petitioner before the hearing. What additional evidence or types of expert testimony could she have presented to potentially change the outcome of the case and successfully prove the leak was the Respondent’s responsibility?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Tammy L. Eigenheer) from the Office of Administrative Hearings who presides over the evidentiary hearing and issues a legally binding decision and order.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The statutes referenced (e.g., § 33-1247) govern the responsibilities of condominium associations and the legal procedures for disputes.

Bylaws

A set of rules governing the internal operations of an organization. In this case, Article II.E, Section 1 of the Bylaws obligates the Association to maintain the common elements using assessments paid by owners.

CC&Rs (Covenants, Conditions, and Restrictions)

A legal document that outlines the rights and obligations of property owners and the homeowners association. Section C of the CC&Rs required the Association to maintain, repair, and care for the common elements.

Common Elements

Areas of the condominium property for which the homeowners association is responsible for maintenance, upkeep, care, and repair, as distinguished from an individual owner’s unit.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Ronna Biesecker, the condominium owner who alleged the homeowners association violated its duties.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is established by evidence with the most convincing force.

Respondent

The party against whom a petition is filed. In this case, the 6100 Fifth Condominium Homeowners Association.

Statutory Agent

An individual designated to receive legal notices and appear on behalf of a business entity. In this case, Robert Eric Struse appeared and testified on behalf of the Respondent association.

Your HOA Isn’t Your Landlord: 3 Surprising Lessons from a Condo Water Leak Lawsuit

Introduction: The Dreaded Drip

It’s a scenario that strikes fear into the heart of any condo owner: the tell-tale stain on the ceiling, the damp spot on the wall, the dreaded drip of a mysterious water leak. The immediate anxiety is followed by a pressing question: “Who is responsible for fixing this, and who pays for the damage?” Many assume the answer is straightforward, but as a recent lawsuit involving the 6100 Fifth Condominium Homeowners Association demonstrates, the lines of responsibility in a condominium community are often more complicated than they appear.

This article explores a real-life court case between a condo owner and her HOA to uncover three surprising truths about condo ownership, liability, and the true role of your HOA.

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1. It’s Not Where the Damage Is, It’s Where the Leak Starts

In the case, condo owner Ronna Biesecker experienced persistent water leaks in her unit (A113) around her sliding glass door. On May 1, 2019, after observing new cracks in the exterior stucco, she “posited that the cracks could be a source of the leak.” This became the foundation of her claim: if the water was coming from the stucco—a “Common Element”—then the HOA was responsible for the repairs.

However, a year-long trail of evidence pointed in a different direction. As early as January 18, 2019, an employee from the door installation company opined that the leak was “coming from the unit above.” On February 8, 2019, a handyman repairing plaster damage stated the issue was from “an old leak coming from above.” Even a roofing report from October 28, 2019, which noted the stucco cracking, stopped short of blaming it, instead recommending the owner contact a “stucco contractor or Window Company.”

This evidence culminated in a formal inspector’s report on December 23, 2019, which concluded the water was “coming from the upstairs unit sliding doors or their track assemblies.” Because the source of the leak originated from a part of the neighbor’s private unit, the legal responsibility shifted. Based on Arizona statute A.R.S. § 33-1247, the HOA was not liable. The key lesson here is unambiguous: legal responsibility follows the source of the problem, not the location of the resulting damage.

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2. “More Probably True Than Not”: The Burden of Proof Is on You

In any lawsuit, the person bringing the complaint—in this case, the homeowner—carries the “burden of proof.” This means she had to provide enough evidence to meet a specific legal standard, which the court defined as “preponderance of the evidence.” The legal decision offers a clear definition of this standard:

“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

In simple terms, Ms. Biesecker had to convince the judge that her theory—that the leak came from the common element stucco—was more likely to be true than the HOA’s theory that it came from the neighbor’s door.

Her claim was undone by simple logic. The HOA’s Statutory Agent, Mr. Struse, provided devastating testimony, arguing that “if water was leaking through the crack in the stucco, the upstairs unit would have also had internal damage, which was not happening.” This single point made the petitioner’s theory far less probable. The judge ultimately ruled that the petitioner “failed to establish by a preponderance of the evidence that Respondent violated the provisions of the CC&Rs or Arizona statutes,” proving that an owner’s belief isn’t enough without convincing evidence.

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3. Your HOA Won’t (and Often Can’t) Settle Neighbor-to-Neighbor Fights

Before filing the lawsuit, the petitioner attempted to resolve the issue directly. On or about February 11, 2019, she contacted the owner of the unit above hers to request repairs but “did not receive a response.” Frustrated, she turned to the HOA for help. In March or April 2019, she asked the Property Manager to “help mediate the issue” between her and her neighbor.

The HOA’s response was direct and legally sound: the Property Manager “responded that it would not arbitrate, mediate, or serve as a third party to the dispute.” This is a crucial and often misunderstood takeaway for condo owners. While an HOA’s role is to manage common elements and enforce community-wide rules, it is not legally obligated—and often not permitted—to intervene in private disputes between two homeowners over damage originating from private property. Your HOA is not a landlord or a mediator for personal conflicts; it’s an administrative body with a specific and legally defined scope of authority.

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Conclusion: Know Your Lines

The lessons from this case are clear: condo living involves a complex web of overlapping responsibilities. The line between what constitutes a common element, your private property, and your neighbor’s property is legally significant and determines who is ultimately responsible when things go wrong. Understanding these distinctions isn’t just helpful—it’s essential for protecting your investment and resolving issues effectively.

Before the next problem arises, have you read your community documents to know exactly where your responsibility ends and your neighbor’s begins?

Case Participants

Petitioner Side

  • Ronna Biesecker (petitioner)
    Appeared and testified on her own behalf.

Respondent Side

  • Robert Eric Struse (statutory agent)
    6100 Fifth Condominium Homeowners Association
    Appeared and presented testimony on behalf of Respondent.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Douglas J Karolak vs. VVE – Casa Grande Homeowners Association

Posted on by

Case Summary

Case ID 20F-H2020041-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-05-21
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1817(A)(1) and the community documents by improperly recording Amended CC&Rs without proper owner consent. The Respondent was ordered to refund the $500.00 filing fee. However, the ALJ could not grant the requested relief (rescission of the Amended CC&Rs) due to a lack of statutory authority.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Douglas J. Karolak Counsel —
Respondent VVE – Casa Grande Homeowners Association Counsel David Fitzgibbons

Alleged Violations

A.R.S. § 33-1817(A)(1); CC&Rs Part 10, Section 10.4

Outcome Summary

Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1817(A)(1) and the community documents by improperly recording Amended CC&Rs without proper owner consent. The Respondent was ordered to refund the $500.00 filing fee. However, the ALJ could not grant the requested relief (rescission of the Amended CC&Rs) due to a lack of statutory authority.

Key Issues & Findings

Violation regarding the validity of Amended CC&Rs due to lack of required owner approval.

The Petitioner alleged that the Amended CC&Rs recorded by the Board were invalid because they were not approved by two-thirds (2/3) of the lot owners as required by the CC&Rs and statute. The ALJ agreed, finding the Board acted improperly and violated the documents and statute.

Orders: Respondent was ordered to pay Petitioner the filing fee of $500.00. No civil penalty was assessed. The ALJ determined she lacked the statutory authority to order the rescission of the Amended CC&Rs requested by the Petitioner.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1817(A)(1)
  • CC&Rs Part 10, Section 10.4

Analytics Highlights

Topics: HOA Dispute, CC&R Amendment, Board Authority, Filing Fee Refund, Partial Win
Additional Citations:

  • 20F-H2020041-REL
  • A.R.S. § 33-1817
  • A.R.S. § 33-1817(A)(1)
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.07(G)(2)
  • CC&Rs Part 10, Section 10.4

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Decision Documents

20F-H2020041-REL Decision – 792824.pdf

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Briefing Document: Karolak vs. VVE – Casa Grande Homeowners Association

Executive Summary

This briefing analyzes the Administrative Law Judge (ALJ) Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL). The central issue was whether the HOA Board had the authority to unilaterally amend and record changes to the community’s Covenants, Conditions, and Restrictions (CC&Rs) without the required homeowner vote.

The petitioner, Douglas J. Karolak, successfully argued that the HOA violated its own governing documents and Arizona state law by filing “Amended CC&Rs” on October 5, 2018, without securing the approval of two-thirds of the lot owners. The HOA contended its actions were a valid exercise of its authority to create “Association Rules.”

ALJ Tammy L. Eigenheer ruled decisively in favor of the petitioner. The decision established a clear legal distinction between the Board’s power to adopt rules and the separate, more stringent process required to formally amend the CC&Rs. The judge found the Board acted improperly, declaring Karolak the prevailing party and ordering the HOA to reimburse his $500 filing fee. Notably, while the judge found the amended document was improperly recorded, she concluded she lacked the statutory authority to order its rescission, which was the remedy the petitioner had requested.

Case Overview

Case Name

Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association

Case Number

20F-H2020041-REL

Arizona Office of Administrative Hearings

Administrative Law Judge

Tammy L. Eigenheer

Hearing Date

May 1, 2020

Decision Date

May 21, 2020

The Central Dispute

The core of the dispute revolved around the legitimacy of a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs), which the HOA Board recorded with the Pinal County Recorder on October 5, 2018.

• Petitioner’s Position (Douglas J. Karolak): The Amended CC&Rs are invalid because they were not approved by “owners of at least two-thirds (2/3) of the Lots,” a requirement explicitly stated in Section 10.4 of the original CC&Rs and supported by Arizona statute A.R.S. § 33-1817(A)(1). Karolak argued that the Board’s action of recording an amendment is fundamentally different from its power to adopt internal “Association Rules.”

• Respondent’s Position (VVE – Casa Grande HOA): The Board argued that its actions were a valid exercise of the authority granted to it under the CC&Rs. It claimed that because the only changes were to Part 7 (Use Restrictions), they fell under the Board’s power to “adopt, amend, or repeal such rules and regulations as it deems reasonable and appropriate” (Section 3.4) and to “modify or waive the foregoing restrictions… by reasonable rules and regulations” (Section 7.43). The Respondent’s counsel did, however, concede that “perhaps the Amended CC&Rs should not have been recorded.”

Factual Background and Chronology

• The VVE – Casa Grande Homeowners Association is a 56-lot community in Casa Grande, Arizona, with 19 lots remaining vacant at the time of the hearing.

• April 30, 1999: The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” (CC&Rs) was recorded.

• 2014 and 2015: The HOA Board made unsuccessful attempts to amend the CC&Rs through membership votes.

• 2018: Following the failed votes, the Board determined it would make changes to the “rules section” of the CC&Rs under the authority it believed was granted by Section 3.4.

• October 5, 2018: The Board recorded the Amended CC&Rs with the Pinal County Recorder. The HOA acknowledged that these amendments had not been approved by the required two-thirds of lot owners.

Legal Analysis and Key Provisions

The decision rested on the interpretation of specific sections of the community’s CC&Rs and Arizona state law. The judge concluded that the document’s structure clearly separates the process of rulemaking from the process of formal amendment.

Provision

Source

Summary of Stipulation

Amendment Process

CC&Rs Section 10.4

Requires an instrument “executed by the Owners of at least two-thirds (2/3) of the Lots” and recorded to become effective.

Rulemaking Authority

CC&Rs Section 3.4

Empowers the Board to adopt, amend, or repeal “Association Rules” governing the use of the property. States rules have the “same force and effect as if they were set forth in” the CC&Rs.

Statutory Requirement

A.R.S. § 33-1817(A)(1)

Provides that a declaration may be amended by the association via an affirmative vote or written consent of the number of owners specified in the declaration.

The judge’s rationale emphasized that the distinct sections for rulemaking (3.4) and amendments (10.4) demonstrate that the original drafters did not intend for the Board to have the power to unilaterally amend the CC&Rs. The judge stated, “The fact that the two topics are covered as separate topics in the CC&Rs leads to the conclusion that the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”

The Court’s Decision and Final Order

The Administrative Law Judge ruled that the petitioner, Douglas J. Karolak, had successfully proven by a preponderance of the evidence that the respondent HOA had acted improperly.

Key Findings:

• The HOA Board did not have the authority to amend the CC&Rs without the approval of two-thirds of the lot owners.

• The Board’s action of recording the Amended CC&Rs on October 5, 2018, was a violation of the community’s governing documents (Section 10.4) and Arizona state law (A.R.S. § 33-1817(A)(1)).

• The Board’s ability to create “Association Rules” is a separate and distinct process from the formal procedure required to amend the Declaration.

Final Order:

• The petitioner, Douglas J. Karolak, was deemed the prevailing party.

• The respondent HOA was ordered to pay the petitioner his $500.00 filing fee within thirty days of the order.

• No civil penalty was found to be appropriate in the matter.

• Critically, the judge determined that under the applicable statute (A.R.S. § 32-2199.02), the Administrative Law Judge does not have the authority to order the Amended CC&Rs rescinded, despite this being the remedy requested by the petitioner.

The order is binding on both parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the decision.

Study Guide: Karolak v. VVE – Casa Grande Homeowners Association

This guide is designed to review the key facts, legal arguments, and outcomes of the Administrative Law Judge Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL).

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the provided legal decision.

1. Who were the petitioner and the respondent in this case, and what was the petitioner’s core allegation?

2. What specific statute and section of the community documents did the petitioner claim the respondent violated?

3. According to Section 10.4 of the original CC&Rs, what was the required procedure for amending the Declaration?

4. Under what authority did the VVE – Casa Grande HOA Board claim it could make changes to the community documents without a membership vote?

5. What key event occurred on or about October 5, 2018, that became the central point of the dispute?

6. What was the respondent’s primary argument for why their actions were valid?

7. What is the “preponderance of the evidence,” and which party bears the burden of proof to establish a violation?

8. Why did the Administrative Law Judge conclude that the Board’s authority to create “Association Rules” was a separate process from amending the CC&Rs?

9. What remedy did the petitioner request, and why was it not granted by the Administrative Law Judge?

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

——————————————————————————–

Answer Key

1. The petitioner was Douglas J. Karolak, a homeowner. The respondent was the VVE – Casa Grande Homeowners Association. Karolak’s core allegation was that the HOA had improperly amended the community’s governing documents.

2. The petitioner alleged a violation of Arizona Revised Statute (A.R.S.) § 33-1817(A)(1). He also claimed a violation of Part 10, Section 10.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).

3. Section 10.4 of the CC&Rs stipulated that the Declaration could be amended by an instrument executed by the owners of at least two-thirds (2/3) of the lots. The amendment would not be effective until that instrument was officially recorded.

4. The HOA Board claimed it had the authority to make the changes under Section 3.4 of the CC&Rs. This section empowered the Board to adopt, amend, or repeal “Association Rules” as it deemed reasonable and appropriate.

5. On or about October 5, 2018, the Board recorded a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs) with the Pinal County Recorder. This was done without the required two-thirds vote from the lot owners.

6. The respondent argued that because the only changes made were to Part 7 (Use Restrictions), which fell under the type of rules the Board was authorized to adopt, the Amended CC&Rs were a valid exercise of the Board’s authority. Their counsel did acknowledge, however, that perhaps the document should not have been recorded.

7. A “preponderance of the evidence” is proof that convinces the trier of fact that a contention is more probably true than not. The petitioner bears the burden of proof to establish that the respondent committed the alleged violations by this standard.

8. The Judge concluded they were separate processes because the CC&Rs cover the topics in different sections. This separation led the Judge to believe the original drafters did not intend for the Board to have the authority to amend the CC&Rs on its own.

9. The petitioner requested that the improperly recorded Amended CC&Rs be rescinded. This remedy was not granted because the applicable statute, A.R.S. § 32-2199.02, does not give the Administrative Law Judge the specific authority to order a document rescinded.

10. The final order deemed the petitioner the prevailing party. It further ordered the respondent to repay the petitioner his $500.00 filing fee within thirty days, but found that no civil penalty was appropriate.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to promote deeper analysis of the case. Formulate a comprehensive response to each, using only the information presented in the legal decision.

1. Analyze the distinction made by the Administrative Law Judge between the Board’s authority to create “Association Rules” under Section 3.4 and the process for amending the Declaration under Section 10.4. Why was this distinction critical to the case’s outcome?

2. Discuss the legal standard of “preponderance of the evidence” as defined in the decision. How did the petitioner successfully meet this burden of proof to establish the respondent’s violation, and what specific facts supported this conclusion?

3. Examine the respondent’s (HOA’s) argument regarding its authority to amend the CC&Rs. What were the fundamental flaws in this argument, and how did their counsel’s acknowledgment about the recording of the Amended CC&Rs potentially weaken their position?

4. Explain the legal framework governing this dispute, citing the specific Arizona Revised Statutes (A.R.S.) mentioned in the decision. Detail the roles of the Arizona Department of Real Estate, the Office of Administrative Hearings, and the Administrative Law Judge in resolving this type of HOA conflict.

5. Evaluate the final Order of the Administrative Law Judge. While the petitioner was deemed the prevailing party, why was their requested remedy (rescission of the Amended CC&Rs) denied? What does this reveal about the specific limits of the Administrative Law Judge’s authority in such cases under A.R.S. § 32-2199.02?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings. In this case, Tammy L. Eigenheer of the Office of Administrative Hearings made the findings of fact, conclusions of law, and issued the final order.

A.R.S. § 33-1817(A)(1)

The specific Arizona Revised Statute cited by the petitioner. It states that a declaration may be amended by the association with an affirmative vote or written consent of the number of owners specified in the declaration.

Amended CC&Rs

The document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates,” which the HOA Board recorded on October 5, 2018, without the required two-thirds owner approval.

Association Rules

Rules and regulations that the HOA Board is empowered to adopt, amend, or repeal under Section 3.4 of the CC&Rs to govern the use of Common Areas and other parts of the Project. The Board argued their changes fell under this authority.

Burden of Proof

The obligation to prove one’s assertion. In this case, the petitioner bore the burden of proof to establish the respondent’s violations by a preponderance of the evidence.

An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents for a planned community. The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” was recorded on April 30, 1999.

Department

Refers to the Arizona Department of Real Estate, the agency with which the petitioner filed his Homeowners Association (HOA) Dispute Process Petition.

An acronym for Homeowners Association. In this case, the VVE – Casa Grande Homeowners Association, an association of 56 lot owners in Casa Grande, Arizona.

Office of Administrative Hearings

The office responsible for conducting hearings for disputes filed with state agencies like the Department of Real Estate.

Petitioner

The party who initiates a legal action or petition. In this case, homeowner Douglas J. Karolak.

Preponderance of the Evidence

The evidentiary standard required to win the case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the VVE – Casa Grande Homeowners Association.

Your HOA Just Changed the Rules? Why This Homeowner’s $500 Victory is a Warning to Everyone

For millions of Americans, living in a planned community means living under the authority of a Homeowners Association (HOA). While intended to protect property values, these relationships can often feel one-sided, with boards issuing mandates and homeowners feeling powerless to push back. It’s a common frustration, but it’s rare to see a single homeowner challenge their board and force a legal reckoning.

A recent case from Arizona, Douglas J. Karolak versus the VVE – Casa Grande Homeowners Association, provides a critical case study in board overreach and the surprising limits of legal victory. Karolak alleged his HOA board violated its own governing documents and state law by improperly changing the community’s core rules.

He took his case to an administrative law judge and, in a significant ruling, he won. But the outcome of this seemingly straightforward dispute was far from simple. The final decision reveals a shocking twist that holds critical lessons for every homeowner about the difference between being right on paper and getting the remedy you actually want.

There’s a Huge Difference Between a ‘Rule Change’ and a ‘Declaration Amendment’

The first lesson from this case is a critical one for every homeowner: understand the constitutional hierarchy of your community’s documents. The core of the dispute was the HOA Board’s attempt to amend its foundational document, the CC&Rs (Covenants, Conditions, and Restrictions), without getting the required approval from the homeowners.

Here are the key facts of the case:

• The Original Rule: The community’s CC&Rs explicitly stated in Section 10.4 that any amendment required a vote and execution by “at least two-thirds (2/3) of the Lots.” This is the highest level of authority in a planned community, akin to a constitution.

• The Failed Attempts: The Board had tried to get this two-thirds vote in both 2014 and 2015, but was unsuccessful.

• The Workaround: In 2018, the Board decided to bypass the homeowners. It used a separate power granted in Section 3.4 of the CC&Rs—the authority to create day-to-day “Association Rules”—to make what it called changes to the “‘rules section’ of the CC&Rs, specifically targeting the Use Restrictions in Part 7.”

The judge’s conclusion was crystal clear: The CC&Rs were drafted to treat the power to create “rules” and the power to “amend” the declaration as two entirely separate processes. This separation acts as a crucial check on the board’s power, preventing a small group from unilaterally changing the fundamental property rights of all owners. As the judge noted, “the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”

Recording a Document Doesn’t Magically Make It Valid

To make their changes appear official, the HOA Board took a significant step. On October 5, 2018, they filed a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates (Amended CC&Rs)” with the Pinal County Recorder.

For the average homeowner, a formally recorded document filed with the county looks final, official, and legally binding. It’s an intimidating piece of paper that suggests any challenge would be futile.

However, the judge’s ruling highlights a critical legal truth: procedural legitimacy is paramount. An official-looking document, even one filed with the county, is invalid if the legal process required to create it was ignored. The judge found that because the Board did not follow the correct internal procedure—securing the two-thirds vote from homeowners—the very act of recording the document was improper. Even the HOA’s own lawyer seemed to concede this point during the hearing, acknowledging that “perhaps the Amended CC&Rs should not have been recorded.”

The Winner’s Paradox: You Can Be Right and Still Not Get Your Desired Fix

The final order from the Administrative Law Judge was unambiguous: Douglas Karolak, the petitioner, was officially deemed the “prevailing party.” The judge concluded that the HOA had acted in violation of its own community documents and Arizona state law. This was a clear-cut victory for the homeowner.

But here is the shocking twist. Karolak’s requested remedy was for the illegally filed “Amended CC&Rs” to be rescinded—in other words, to have them officially nullified and removed. This seems like the logical and necessary fix to the problem.

The judge, however, was bound by the limits of her authority. The final decision states plainly: “The Administrative Law Judge does not have the authority under the applicable statute to order the Amended CC&Rs rescinded.” This highlights a critical jurisdictional gap. The Administrative Law Judge’s role in this venue is to determine if a violation occurred and assign limited penalties, not to perform the function of a higher court, which might have the power to void a recorded document.

So, what was the actual remedy for this clear violation? The judge ordered the HOA to repay Karolak his $500 filing fee. No other civil penalty was issued. The homeowner won the argument but did not get the one thing he asked for to correct the board’s improper action.

A Victory on Paper, A Question in Practice

The case of Douglas J. Karolak is a powerful real-world lesson. It proves that a single homeowner, armed with a thorough understanding of their community’s governing documents, can successfully challenge an overreaching HOA board and win. It confirms that procedural shortcuts, even when filed and recorded, do not make an illegal action legal.

But it also reveals the frustrating limitations that can exist within the legal process. The homeowner was proven right, but the improperly filed document remains on the books, unable to be rescinded in this specific venue. It raises a crucial question for homeowners everywhere: How do you ensure your victory has real teeth?

Case Participants

Petitioner Side

  • Douglas J. Karolak (petitioner)

Respondent Side

  • David A. Fitzgibbons III (HOA attorney)
    Fitzgibbons Law Offices PLC
    Represented VVE – Casa Grande Homeowners Association
  • CV Mathai (witness)
    VVE – Casa Grande Homeowners Association
  • John Kelsey (witness)
    VVE – Casa Grande Homeowners Association
  • Kristi Kelsey (witness)
    VVE – Casa Grande Homeowners Association
  • William Findley (witness)
    VVE – Casa Grande Homeowners Association
  • Kay Niemi (witness)
    VVE – Casa Grande Homeowners Association
  • Mark Korte (witness)
    VVE – Casa Grande Homeowners Association
  • Felicia Del Sol (property manager rep)
    Norris Management

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Richard P Quinn vs. Homestead North Homeowners Association

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Case Summary

Case ID 20F-H2019040-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-05-05
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ dismissed the petition. The ruling clarified that while the Bylaws mention automatic resignation for delinquency, it is only effective upon Board acceptance. The Petitioner's attempt to accept the resignation via email did not constitute a valid Board action/vote.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard P. Quinn Counsel —
Respondent Homestead North Homeowners Association Counsel Quinten T. Cupps

Alleged Violations

Bylaws Article III, Section III, Item 4

Outcome Summary

The ALJ dismissed the petition. The ruling clarified that while the Bylaws mention automatic resignation for delinquency, it is only effective upon Board acceptance. The Petitioner's attempt to accept the resignation via email did not constitute a valid Board action/vote.

Why this result: The Bylaws explicitly state resignation is effective when the Board accepts it. The Petitioner's email action was not a valid Board act under the Bylaws regarding meetings and quorums.

Key Issues & Findings

Failure to accept automatic resignation of delinquent director

Petitioner alleged that a Board member's delinquency constituted an automatic resignation under the Bylaws and that he, as a Board member, accepted it via email. The ALJ determined that the Bylaws require the Board to accept the resignation for it to be effective. The Petitioner's email did not constitute an act of the Board as it was not done at a duly held meeting with a quorum.

Orders: Petitioner's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Bylaws Article III, Section 4
  • Bylaws Article III, Section 9

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Decision Documents

20F-H2019040-REL Decision – 787679.pdf

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Administrative Law Judge Decision: Quinn v. Homestead North Homeowners Association

Executive Summary

This briefing document summarizes the administrative decision in the matter of Richard P. Quinn v. Homestead North Homeowners Association (Case No. 20F-H2019040-REL). The case centered on a dispute regarding whether a member of the Association’s Board of Directors, Karen Igo, had effectively resigned due to a financial delinquency under the Association's Bylaws.

The Petitioner, Richard P. Quinn, alleged that a "Wall Charge" of $3,925.00 applied to Ms. Igo’s account constituted a delinquent assessment that should have triggered an automatic resignation. The Respondent, Homestead North Homeowners Association, argued that even if a delinquency existed, the Board never formally accepted any resignation as required by the Bylaws. Administrative Law Judge Tammy L. Eigenheer ultimately dismissed the petition, ruling that the Petitioner failed to prove that the Board had legally accepted the resignation, a necessary condition for the resignation to take effect.

Detailed Analysis of Key Themes

1. Interpretation of "Automatic Resignation" Clauses

The case turned significantly on the specific language of the Association’s Bylaws, Article III, Section 4. While the Bylaws state that a delinquency of more than 30 days "shall automatically constitute a resignation," this phrase is immediately qualified by the clause "effective when the Board of Directors accepts such resignation."

The Administrative Law Judge (ALJ) determined that regardless of whether the debt was a delinquent assessment, the "automatic" resignation was not self-executing. It required an affirmative act of the Board to become effective. This interpretation underscores the principle that qualifying clauses in community documents can prevent immediate, unilateral changes in Board composition.

2. Quorum and Valid Board Actions

A central theme of the dispute was what constitutes a valid act of the Board. The Petitioner attempted to "accept" the resignation via email, claiming that as a Board member, his sole vote in favor (with no other responses) constituted a majority.

The ALJ rejected this based on Article III, Section 9 of the Bylaws, which defines a quorum and the requirements for a "duly held meeting." The ruling clarified two critical procedural standards:

  • Email is not a meeting: Correspondence via email does not satisfy the requirement for a duly held meeting.
  • Individual action is not Board action: A single member cannot constitute a quorum or take a "majority" vote in the absence of other participating members at a formal meeting.
3. Classification of Financial Obligations

The dispute highlighted the distinction between "Assessments" and other charges, such as "Wall Charges" or "Self-Help" codes. Ms. Igo’s account showed a $3,925.00 charge listed under "Self-Help" rather than "Assessment."

While the Petitioner argued this debt triggered the resignation clause, the Respondent noted that Ms. Igo had cleared the balance in full before the petition was filed. Ultimately, the ALJ found the classification of the debt moot because the procedural requirement for Board acceptance of the resignation had not been met.

Important Quotes with Context

Quote Context Significance
"Any delinquency or violation shall automatically constitute a resignation effective when the Board of Directors accepts such resignation." Found in Article III, Section 4 of the Association Bylaws. This is the "pivot point" of the case; it established that resignation is not final until the Board acts.
"Every act or decision done or made by a majority of the directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board." Found in Article III, Section 9 of the Association Bylaws regarding Quorum. This established the legal standard for what counts as an official HOA decision.
"An email correspondence does not constitute a duly held meeting of the Board." Conclusion of Law #5 by ALJ Tammy L. Eigenheer. This clarifies that electronic messaging between members cannot bypass the formal meeting requirements of the Bylaws.
"Petitioner’s purported 'vote' could not be considered a majority of the Board voting on the matter." Conclusion of Law #5 regarding Petitioner’s email to other Board members. This emphasizes that one person cannot create a "majority" by being the only one to respond to an email.

Actionable Insights

Procedural Rigor in Governance

The decision emphasizes that Board members must adhere strictly to the procedural requirements outlined in their community documents. Unilateral actions—such as one member attempting to accept a resignation on behalf of the whole Board—are legally insufficient and will likely be overturned in administrative hearings.

The Limitation of Email in HOA Business

HOA Boards should be cautious about conducting official business via email. As demonstrated in this case, email lacks the legal standing of a "duly held meeting" unless specifically permitted and structured under state law or community bylaws. Official acts, particularly those involving the removal or resignation of directors, must occur within the framework of a meeting where a quorum is present.

Burden of Proof for Petitioners

In HOA disputes, the Petitioner bears the burden of proof to establish a violation by a "preponderance of the evidence." This case serves as a reminder that even if a violation seems apparent (such as a delinquency), the Petitioner must also prove that all conditions for a remedy (such as the effective date of a resignation) have been met according to the plain language of the Bylaws.

Drafting and Reviewing Bylaws

For community associations, the wording of "automatic" triggers is critical. The inclusion of the phrase "effective when the Board of Directors accepts such resignation" provides a safeguard for the Board to maintain stability, but it also creates a procedural hurdle that must be cleared before a seat can be declared vacant.

Case Study: Quinn v. Homestead North Homeowners Association (Administrative Decision 20F-H2019040-REL)

This study guide provides a comprehensive overview of the administrative hearing between Richard P. Quinn and the Homestead North Homeowners Association. It explores the interpretation of community bylaws, the legal requirements for board actions, and the evidentiary standards applied in Arizona administrative law.

Key Concepts and Legal Principles

1. The HOA Dispute Process (A.R.S. § 32-2199)

Under Arizona law, homeowners or planned community organizations may file a petition with the Department of Real Estate to resolve disputes regarding violations of community documents or state statutes. These cases are adjudicated by the Office of Administrative Hearings.

2. Automatic Resignation vs. Effective Resignation

The case centers on Article III, Section 4 of the Association's Bylaws. While a director’s delinquency in paying assessments for more than 30 days "automatically" constitutes a resignation, that resignation is not legally final or operational until it is formally accepted by the Board of Directors.

3. Board Quorum and Official Acts

Pursuant to Article III, Section 9 of the Bylaws:

  • Quorum: A majority of the directors must be present to transact business.
  • Act of the Board: An official decision or act of the Board requires a majority vote of the directors present at a "duly held meeting" where a quorum exists.
4. Evidentiary Standards: Preponderance of the Evidence

In administrative hearings, the Petitioner carries the burden of proof. They must establish the violation by a "preponderance of the evidence," meaning the evidence shows the claim is more probably true than not. This is defined as the "greater weight of the evidence" or evidence with the "most convincing force."

Short-Answer Practice Questions

1. What specific provision of the community documents did the Petitioner allege was violated? The Petitioner asserted a violation of Bylaws Article III, Section III, Item 4 (later referenced as Article III, Section 4).

2. What was the "Wall Charge" and how did it differ from a standard assessment? The Board posted a charge of $3,925.00 to Karen Igo’s account on March 13, 2019. It was categorized under the code type "Self-Help" rather than "Assessment."

3. According to the Bylaws, what circumstances besides delinquency can lead to the removal of a director? A director may be removed for more than three consecutive absences from regular Board meetings (unless due to injury or illness) or if they cease to be an owner of a lot or have an interest therein.

4. Why did the Administrative Law Judge (ALJ) reject the Petitioner's email "vote" as a valid Board action? The ALJ ruled that email correspondence does not constitute a "duly held meeting" of the Board. Furthermore, a single member’s email cannot constitute a quorum, meaning the individual vote was not a majority act of the Board.

5. What was the outcome of the October 30, 2019, Executive Session regarding this matter? The Petitioner attempted to raise the topic of the resignation, but the President of the Board "shut down" the Executive Session at that point.

6. What is the filing fee for an HOA Dispute Process Petition according to the document? The Petitioner paid a $500.00 filing fee.

Essay Prompts for Deeper Exploration

1. The Interplay of Automaticity and Board Discretion

Analyze the language of Article III, Section 4: "said delinquency or violation shall automatically constitute a resignation effective when the Board of Directors accepts such resignation." Discuss the potential conflict between the word "automatically" and the requirement for Board acceptance. Does this requirement give the Board the power to shield a delinquent member from removal?

2. Procedural Validity in Corporate Governance

Using the ALJ's findings regarding Article III, Section 9, argue the importance of "duly held meetings" and "quorums" in preventing unilateral actions by individual board members. Why is the Petitioner's reliance on Robert’s Rules of Order insufficient to overcome the specific requirements of the Association's Bylaws?

3. Definition of Debt in Homeowners Associations

The case bifurcated two questions: whether the "Wall Charge" was an "Assessment" and whether the Board accepted the resignation. Given that the charge was labeled "Self-Help," discuss how the classification of a debt impacts the rights and standing of board members under community governing documents.

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A presiding officer who hears evidence and issues decisions in administrative law cases.
Assessment Periodic fees paid by homeowners to the HOA; delinquency in these may trigger board member disqualification.
Bifurcation The legal process of dividing a trial or hearing into two parts to address specific issues separately.
Duly Held Meeting A formal gathering of the Board conducted according to the rules set forth in the Bylaws.
Moot A point or question that is no longer relevant or has no practical legal effect; in this case, Respondent argued the issue was moot because the debt was paid.
Petitioner The party who files the petition or claim (Richard P. Quinn).
Preponderance of the Evidence The standard of proof in civil and administrative cases; proof that a contention is more likely true than not.
Quorum The minimum number of board members (a majority) required to be present to make the proceedings of a meeting valid.
Respondent The party against whom a petition is filed (Homestead North Homeowners Association).
Self-Help A specific code type used by the Association to categorize the "Wall Charge" debt, distinct from standard assessments.

HOA Resignations and the Power of Board Acceptance: A Case Study from Homestead North

Introduction: When Does a Board Resignation Actually Count?

In the battle between “automatic” rules and board process, process almost always wins. For many Homeowners Association (HOA) board members, the governing documents feel like a series of tripwires: miss a meeting, fall behind on dues, or violate a rule, and you’re out. But as a recent case from the Arizona Office of Administrative Hearings demonstrates, the law favors stability and formal procedure over the “gotcha” moments individual members might try to manufacture.

The case of Richard P. Quinn vs. Homestead North Homeowners Association (No. 20F-H2019040-REL) centers on a fundamental question of HOA governance: Can a board member be forced out the moment they become financially delinquent, or is the exit only final once the board officially “accepts” it? As we will see, even when a bylaw uses the word “automatic,” the procedural fine print often tells a different story.

The "Wall Charge" Controversy: Background of the Dispute

The conflict at Homestead North began with a significant charge on the account of board member Karen Igo. Petitioner Richard P. Quinn argued that this debt triggered an automatic resignation under the community’s bylaws, claiming Ms. Igo was ineligible to serve.

The financial timeline is essential to understanding the dispute:

  • March 13, 2019: The Association posted a "Wall Charge" of $3,925.00 to Ms. Igo’s account.
  • The "Self-Help" Distinction: Crucially, the Board categorized this as "Self-Help" rather than a standard "Assessment." In HOA governance, "Self-Help" typically refers to costs incurred by the association to repair or maintain an owner's property when the owner has failed to do so.
  • Payment History: From April through September 2019, Ms. Igo made monthly payments of $100.00. This covered her $48.50 monthly assessment and applied the remainder to the "Wall Charge."
  • Final Resolution: On October 21, 2019, Ms. Igo paid the remaining balance of $3,600.00 in full, resulting in a credit on her account.

Quinn’s argument was straightforward: Because the debt existed for more than 30 days, Ms. Igo had effectively resigned from the board by default. He contended that the moment the delinquency crossed the 30-day threshold, the seat became vacant.

Decoding the Bylaws: The "Effective When" Clause

To determine if Ms. Igo was actually ousted, the Administrative Law Judge (ALJ) scrutinized Article III, Section 4 of the Homestead North Bylaws. This section serves as the "Rule of Law" for director disqualification.

The Bylaws state:

"No director shall continue to serve on the Board if such director is more than thirty (30) days delinquent in the payment of an Assessment or in violation of Declaration or Architectural Guidelines and said delinquency or violation shall automatically constitute a resignation effective when the Board of Directors accepts such resignation."

As a governance specialist, I cannot overemphasize the importance of that final phrase. While Quinn focused on the word "automatically," the ALJ focused on the procedural gatekeeper: the resignation is only effective when the Board accepts it. This wording prevents "automatic" rules from being weaponized to decapitate a board without the remaining directors’ knowledge or consent. It transforms a self-executing event into one that requires formal board action.

The Procedural Pitfall: Why an Email Isn't a Meeting

In an attempt to force the issue, Quinn took matters into his own hands. On October 18, 2019, he sent an email to the board stating that he, as a director, accepted Ms. Igo’s resignation. When no other directors responded, Quinn argued that under Robert’s Rules of Order, his single "vote" constituted a majority of one to zero.

The reality of board governance is rarely that simple. The "messy reality" of this dispute peaked on October 30, 2019, during an Executive Session. When Quinn attempted to raise the issue of Ms. Igo’s resignation, the Board President "shut down" the session entirely, refusing to entertain the unilateral move.

The ALJ’s reasoning for rejecting Quinn’s email "acceptance" rested on two foundational pillars of HOA law found in Article III, Section 9:

  • The Quorum Rule: Official board acts require a majority of directors to be present to constitute a quorum. One director acting alone via email never meets the legal threshold for a quorum.
  • The Meeting Requirement: An "act of the Board" must occur at a "duly held meeting." The judge ruled that an email chain is not a meeting. Governance cannot be conducted through one-sided digital correspondence; it requires a formal forum where the body can deliberate and vote.

The ALJ's Final Verdict: A Lesson in Governance

The Administrative Law Judge ruled in favor of the Association, dismissing the petition. The decision hinged on the preponderance of the evidence—the legal standard requiring the Petitioner to prove that his claims were more likely true than not.

The ALJ concluded that Quinn failed to prove the Board ever formally accepted the resignation at a duly held meeting. Because the "procedural gate" of board acceptance was never passed, the underlying question—whether the "Wall Charge" technically qualified as an "Assessment"—became moot. In legal terms, since the board hadn't accepted the resignation, the nature of the debt was irrelevant; Ms. Igo remained on the board regardless.

Key Takeaways for HOA Boards and Members

This case is a masterclass in why process matters as much as—if not more than—the rules themselves. Board members and directors should take note of these three pillars:

  1. Language Matters—Look for the "Hook": Pro-tip: Always look for phrases like "effective when the board accepts." These hooks are designed to protect the board from being destabilized by minor accounting errors or weaponized bylaws. They ensure that the board maintains control over its own composition.
  2. Process Over Emotion: Even if a violation seems black-and-white, individual board members cannot act unilaterally. Whether it is an email or an unscheduled outburst in an executive session, efforts to bypass formal agendas will almost always fail in court.
  3. Know Your Quorum: To be legally defensible, a board decision must be a collective act. This means notice, a quorum, and a formal vote at a "duly held meeting." Private emails and "votes of one" are not just bad practice; they are legally void.

By adhering strictly to procedural bylaws, HOAs can avoid the high costs and headaches of administrative hearings, ensuring that community leadership remains stable and legally sound.

Case Participants

Petitioner Side

  • Richard P. Quinn (Petitioner)
    Homestead North Homeowners Association (Board Member)
    Appeared on his own behalf; member of the Board

Respondent Side

  • Quinten T. Cupps (Respondent Attorney)
    Represented Homestead North Homeowners Association
  • Karen Igo (Board member)
    Homestead North Homeowners Association
    Subject of the resignation dispute; had delinquent 'Wall Charge'

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the order