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Camelback Del Este Homeowners Association, Inc. v. Green Elephant

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Case Summary

Case ID 22F-H2222036-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-04-29
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Camelback Del Este Homeowners Association, Inc. Counsel —
Respondent Green Elephant Development LLC Counsel Ronald E. Huser, Esq.

Alleged Violations

ARIZ. REV. STAT. §§ 32-2102, 32-2199 et seq., 33-1802(4), 41-1092, ARIZ. ADMIN. CODE R2-19-111(4)

Outcome Summary

The petition was denied, and the case was vacated and remanded due to lack of jurisdiction. The OAH determined the Petitioner failed to meet the statutory definition of a 'planned community' required for the Department of Real Estate to have authority over the dispute.

Why this result: OAH lacked authority to hear the dispute because Petitioner failed to establish, by a preponderance of the evidence, that the Association met the definition of a 'planned community' under ARIZ. REV. STAT. § 33-1802(4). Specifically, there was no evidence of real estate ownership, roadway easements, mandatory membership, or mandatory assessments.

Key Issues & Findings

OAH jurisdiction over the dispute based on whether the Petitioner is a 'planned community.'

Petitioner alleged Respondent violated setback requirements in the Declaration of Restrictions (Section 5). Respondent moved for Judgment as a Matter of Law, arguing OAH lacked jurisdiction because Petitioner failed to prove it met the statutory definition of a 'planned community' under ARS § 33-1802(4).

Orders: Petitioner’s petition was denied. Respondent’s motion for a Judgment as a Matter of Law was granted. The matter was vacated and remanded to the Arizona Department of Real Estate (ADRE).

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1802(4)
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. ADMIN. CODE R2-19-111(4)

Analytics Highlights

Topics: HOA Dispute, Jurisdiction, Planned Community Definition, Setback Violation, Judgment as a Matter of Law, Voluntary Membership
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 33-1802(4)
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.05
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-111(4)
  • ARIZ. ADMIN. CODE R2-19-112
  • ARIZ. ADMIN. CODE R2-19-119

Video Overview

Audio Overview

Decision Documents

22F-H2222036-REL Decision – 958968.pdf

Uploaded 2026-01-23T17:45:40 (45.8 KB)

22F-H2222036-REL Decision – 962071.pdf

Uploaded 2026-01-23T17:45:43 (53.3 KB)

22F-H2222036-REL Decision – 966017.pdf

Uploaded 2026-01-23T17:45:47 (143.0 KB)





Study Guide – 22F-H2222036-REL


{ “case”: { “docket_no”: “22F-H2222036-REL”, “case_title”: “Camelback Del Este Homeowners Association, Inc. vs. Green Elephant Development LLC”, “decision_date”: “2022-04-29”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction over every type of homeowner association dispute?”, “short_answer”: “No, the Department only has jurisdiction over disputes involving a “planned community” as defined by statute.”, “detailed_answer”: “The ALJ decision clarifies that the Department’s jurisdiction is limited to disputes between an owner and a “planned community” association. If an association does not meet the statutory definition of a planned community, the administrative court cannot hear the case.”, “alj_quote”: “This matter falls outside the Department’s jurisdiction pursuant to ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq., regarding a dispute between an owner and a planned community association.”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102, 32-2199”, “topic_tags”: [ “jurisdiction”, “planned community definition”, “administrative authority” ] }, { “question”: “What are the specific requirements for an association to be legally considered a ‘planned community’?”, “short_answer”: “A planned community must own/operate real estate (or maintain roadways) and have a declaration mandating membership and assessments.”, “detailed_answer”: “According to Arizona statute cited in the decision, a planned community requires three elements: 1) The association owns/operates real estate or holds easements to maintain roadways; 2) The declaration explicitly states owners are mandatory members; and 3) The declaration explicitly states owners are required to pay assessments.”, “alj_quote”: “a real estate development that includes real estate owned and operated by or real estate on which an easement to maintain roadways or a covenant to maintain roadways is held by a nonprofit corporation… and in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1802(4)”, “topic_tags”: [ “legal definitions”, “planned community”, “assessments”, “mandatory membership” ] }, { “question”: “If my HOA membership is voluntary, can the HOA take me to an administrative hearing?”, “short_answer”: “No, the Office of Administrative Hearings lacks authority over voluntary associations.”, “detailed_answer”: “If the evidence shows that membership is voluntary rather than mandatory, the association does not qualify as a planned community. Consequently, the administrative law judge must dismiss the case for lack of authority.”, “alj_quote”: “Because the evidence failed to establish, at a minimum, that the Association is a planned community, OAH does not have any authority to consider a dispute between the Association and Respondent”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2199(2), 41-1092”, “topic_tags”: [ “voluntary membership”, “jurisdiction”, “dismissal” ] }, { “question”: “Who has the burden of proof in a hearing regarding an alleged violation?”, “short_answer”: “The Petitioner (the party filing the complaint) bears the burden of proof.”, “detailed_answer”: “The party bringing the action must prove their case by a preponderance of the evidence. This includes proving that the tribunal has jurisdiction and that the specific violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence first that this matter is properly before the OAH and then that Respondent violated Section 5 of the DECLARATION.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA need to provide actual measurements to prove a setback violation?”, “short_answer”: “Yes, specific evidence of the actual construction dimensions is required.”, “detailed_answer”: “The ALJ noted that the HOA failed to provide evidence that construction had factually taken place that exceeded the specific setback requirements (e.g., 7ft side, 20ft front). Without measurements or factual proof of the construction’s location relative to property lines, the violation cannot be established.”, “alj_quote”: “[N]o evidence was submitted to establish… that any construction has factually taken place… which exceeds the DECLARATION’S 7ft side setback and 20ft front setback property requirements.”, “legal_basis”: “Preponderance of the Evidence”, “topic_tags”: [ “evidence”, “setbacks”, “violations” ] }, { “question”: “Is an HOA considered a ‘planned community’ if it does not own any common areas?”, “short_answer”: “No, the association must own real estate or hold easements for maintaining roadways.”, “detailed_answer”: “A critical component of the legal definition of a planned community is that the association must own and operate real estate or hold specific maintenance easements. Failure to prove this ownership prevents the association from being classified as a planned community under the statute.”, “alj_quote”: “Petitioner failed to present any evidence that it owns and operates any real estate, or that it has an easement or covenant to maintain roadways.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1802(4)”, “topic_tags”: [ “common areas”, “property ownership”, “planned community definition” ] }, { “question”: “What is the standard of proof used in these administrative hearings?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The standard is whether the contention is more probably true than not. This is described as the greater weight of the evidence or superior evidentiary weight.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)”, “topic_tags”: [ “legal standards”, “preponderance of evidence” ] } ] }






Blog Post – 22F-H2222036-REL


{ “case”: { “docket_no”: “22F-H2222036-REL”, “case_title”: “Camelback Del Este Homeowners Association, Inc. vs. Green Elephant Development LLC”, “decision_date”: “2022-04-29”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction over every type of homeowner association dispute?”, “short_answer”: “No, the Department only has jurisdiction over disputes involving a “planned community” as defined by statute.”, “detailed_answer”: “The ALJ decision clarifies that the Department’s jurisdiction is limited to disputes between an owner and a “planned community” association. If an association does not meet the statutory definition of a planned community, the administrative court cannot hear the case.”, “alj_quote”: “This matter falls outside the Department’s jurisdiction pursuant to ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq., regarding a dispute between an owner and a planned community association.”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102, 32-2199”, “topic_tags”: [ “jurisdiction”, “planned community definition”, “administrative authority” ] }, { “question”: “What are the specific requirements for an association to be legally considered a ‘planned community’?”, “short_answer”: “A planned community must own/operate real estate (or maintain roadways) and have a declaration mandating membership and assessments.”, “detailed_answer”: “According to Arizona statute cited in the decision, a planned community requires three elements: 1) The association owns/operates real estate or holds easements to maintain roadways; 2) The declaration explicitly states owners are mandatory members; and 3) The declaration explicitly states owners are required to pay assessments.”, “alj_quote”: “a real estate development that includes real estate owned and operated by or real estate on which an easement to maintain roadways or a covenant to maintain roadways is held by a nonprofit corporation… and in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1802(4)”, “topic_tags”: [ “legal definitions”, “planned community”, “assessments”, “mandatory membership” ] }, { “question”: “If my HOA membership is voluntary, can the HOA take me to an administrative hearing?”, “short_answer”: “No, the Office of Administrative Hearings lacks authority over voluntary associations.”, “detailed_answer”: “If the evidence shows that membership is voluntary rather than mandatory, the association does not qualify as a planned community. Consequently, the administrative law judge must dismiss the case for lack of authority.”, “alj_quote”: “Because the evidence failed to establish, at a minimum, that the Association is a planned community, OAH does not have any authority to consider a dispute between the Association and Respondent”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2199(2), 41-1092”, “topic_tags”: [ “voluntary membership”, “jurisdiction”, “dismissal” ] }, { “question”: “Who has the burden of proof in a hearing regarding an alleged violation?”, “short_answer”: “The Petitioner (the party filing the complaint) bears the burden of proof.”, “detailed_answer”: “The party bringing the action must prove their case by a preponderance of the evidence. This includes proving that the tribunal has jurisdiction and that the specific violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence first that this matter is properly before the OAH and then that Respondent violated Section 5 of the DECLARATION.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA need to provide actual measurements to prove a setback violation?”, “short_answer”: “Yes, specific evidence of the actual construction dimensions is required.”, “detailed_answer”: “The ALJ noted that the HOA failed to provide evidence that construction had factually taken place that exceeded the specific setback requirements (e.g., 7ft side, 20ft front). Without measurements or factual proof of the construction’s location relative to property lines, the violation cannot be established.”, “alj_quote”: “[N]o evidence was submitted to establish… that any construction has factually taken place… which exceeds the DECLARATION’S 7ft side setback and 20ft front setback property requirements.”, “legal_basis”: “Preponderance of the Evidence”, “topic_tags”: [ “evidence”, “setbacks”, “violations” ] }, { “question”: “Is an HOA considered a ‘planned community’ if it does not own any common areas?”, “short_answer”: “No, the association must own real estate or hold easements for maintaining roadways.”, “detailed_answer”: “A critical component of the legal definition of a planned community is that the association must own and operate real estate or hold specific maintenance easements. Failure to prove this ownership prevents the association from being classified as a planned community under the statute.”, “alj_quote”: “Petitioner failed to present any evidence that it owns and operates any real estate, or that it has an easement or covenant to maintain roadways.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1802(4)”, “topic_tags”: [ “common areas”, “property ownership”, “planned community definition” ] }, { “question”: “What is the standard of proof used in these administrative hearings?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The standard is whether the contention is more probably true than not. This is described as the greater weight of the evidence or superior evidentiary weight.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)”, “topic_tags”: [ “legal standards”, “preponderance of evidence” ] } ] }


Case Participants

Petitioner Side

  • Robert Chiffelle (HOA President/Petitioner Rep/Witness)
    Camelback Del Este Homeowners Association, Inc.
    Also referred to as Bob Chappelle.
  • Jeremy Lyons (HOA Treasurer/Observer)
    Camelback Del Este Homeowners Association, Inc.
    Also referred to as Mr. Lions; submitted the petition on behalf of Petitioner.
  • Missy Lopez (Observer)
    Camelback Del Este Homeowners Association, Inc.
  • Dr. B. Paul Scott (Architectural Committee member/Observer)
    Camelback Del Este Homeowners Association, Inc.
  • Mike Goldwater (Previous HOA President)
    Camelback Del Este Homeowners Association, Inc.

Respondent Side

  • Ronald E. Huser (Respondent Attorney)
    Huser Law Firm
  • Bryant Aplass (Respondent Co-Owner/Director/Witness)
    Green Elephant Development LLC
    Co-owner and member; also referred to as Bryant Alpass/Applas; role listed as Director of Business Development.
  • Cody Sperber (Respondent President/Witness)
    Green Elephant Development LLC
    Also referred to as Cody Fergburgger.
  • Garrett Schmidt (Respondent Rep/Witness)
    Green Elephant Development LLC
  • Reggie Martinez (Witness)
    Green Elephant Development LLC

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (Legal Staff)
    Office of Administrative Hearings
    Transmitted Minute Entries.
  • Miranda Alvarez (Legal Secretary)
    Office of Administrative Hearings
    Transmitted ALJ Decision.

Nancy L Pope v. La Vida Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2221013-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-02
Administrative Law Judge Tammy L. Eigenheer
Outcome total
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 2026-01-23T17:41:00 (43.6 KB)

22F-H2221013-REL Decision – 932140.pdf

Uploaded 2026-01-23T17:41:05 (5.8 KB)

22F-H2221013-REL Decision – 951381.pdf

Uploaded 2026-01-23T17:41:08 (122.2 KB)

22F-H2221013-REL Decision – 954163.pdf

Uploaded 2026-01-23T17:41:10 (46.1 KB)

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

Joshua M Waldvogel v. Sycamore Estate Parcel 13 Community Association

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

Case Summary

Case ID 21F-H2121044-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-12-15
Administrative Law Judge Tammy L. Eigenheer
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joshua M. Waldvogel Counsel —
Respondent Sycamore Estate Parcel 13 Community Association Counsel Nicole Payne

Alleged Violations

A.R.S. § 33-1817(B)(3); CC&Rs Article VI, Section 6.5

Outcome Summary

The Administrative Law Judge, upon rehearing, affirmed the denial of the petition, concluding that the Respondent HOA timely denied the Petitioner's architectural application. The timeline for a decision did not start until October 6, 2020, when the application was considered complete, making the November 19, 2020, denial valid.

Why this result: Petitioner lost because the interpretation of the CC&Rs stipulated that the 60-day timeline starts only upon receipt of a complete application, which the ALJ determined was October 6, 2020.

Key Issues & Findings

Whether the architectural application for a casita was deemed approved due to the HOA missing the 60-day denial deadline.

Petitioner claimed his architectural application, submitted September 15, 2020, was deemed approved because the Denial Notice (November 19, 2020) occurred after the 60-day deadline (November 14, 2020). The ALJ determined that the 60-day period did not begin until the Application was complete with supporting information (October 6, 2020), making the deadline December 5, 2020, and the denial timely.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • Johnson v. The Pointe Community Association
  • Powell v. Washburn
  • A.R.S. § 33-1817(B)(3)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C.

Analytics Highlights

Topics: Architectural Review, Deemed Approval, HOA Timeline Compliance, CC&R Interpretation, Rehearing
Additional Citations:

  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • A.R.S. § 33-1817(B)(3)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C.

Video Overview

Audio Overview

Decision Documents

21F-H2121044-REL-RHG Decision – 933158.pdf

Uploaded 2026-01-23T17:37:31 (106.1 KB)

21F-H2121044-REL-RHG Decision – ../21F-H2121044-REL/900658.pdf

Uploaded 2026-01-23T17:37:34 (103.7 KB)





Briefing Doc – 21F-H2121044-REL-RHG


Briefing on Waldvogel v. Sycamore Estate Parcel 13 Community Association

Executive Summary

This briefing synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Joshua M. Waldvogel (Petitioner) and the Sycamore Estate Parcel 13 Community Association (Respondent). The core of the conflict was the Petitioner’s application to build a second house, or “casita,” on his property, which was denied by the association’s Architectural Committee (ARC).

The central legal question was procedural: the timing of the association’s denial. The Petitioner argued that the 60-day review period stipulated in the community’s Covenants, Conditions, and Restrictions (CC&Rs) began when he submitted his initial application on September 15, 2020. By this calculation, the association’s November 19, 2020 denial was late, and his application should have been “deemed approved.”

The Respondent countered that the 60-day clock only began after the Petitioner provided a response to a request for additional information on October 6, 2020, making the application complete on that date. This would make the November 19 denial timely.

Administrative Law Judge Tammy L. Eigenheer presided over both an initial hearing and a subsequent rehearing. In both instances, the Judge ruled in favor of the Respondent, finding that the application was not complete until the requested information was provided. The denial was therefore timely and valid. The Petitioner failed to prove that the association violated its governing documents, and his petition was denied in both the initial decision and the final, binding decision on rehearing.

Case Background

• Case Numbers: 21F-H2121044-REL & 21F-H2121044-REL-RHG

• Presiding Judge: Administrative Law Judge Tammy L. Eigenheer

• Petitioner: Joshua M. Waldvogel, owner of Lot 228 at 11208 North 164th Lane, Surprise, Arizona 85388.

• Respondent: Sycamore Estate Parcel 13 Community Association (Sycamore Estates), a homeowners association in Surprise, Arizona.

• Core Issue: Petitioner sought approval from the Sycamore Estates Architectural Committee (ARC) to build a casita on his property. The ARC denied the application. The dispute centers on whether the denial was issued within the 60-day timeframe mandated by the community’s CC&Rs.

Chronology of Key Events

September 15, 2020

Petitioner submits an architectural application to build a casita.

October 5, 2020

Sycamore Estates requests additional information, specifically the required permits for the construction.

October 6, 2020

Petitioner emails a response, stating his architect verified compliance with city “laws” but does not provide permits.

November 13, 2020

The ARC reviews the application and decides to deny it based on CC&Rs Article V, Section 5.2.

November 14, 2020

The date the Petitioner asserts the 60-day deadline for a decision expired.

November 19, 2020

Sycamore Estates issues the official Denial Notice to the Petitioner.

December 5, 2020

The date the Respondent asserts the 60-day deadline for a decision expired.

July 12, 2021

Initial administrative hearing is held.

August 2, 2021

Initial decision is issued, denying the Petitioner’s petition.

November 29, 2021

A rehearing is held at the Petitioner’s request.

December 15, 2021

Final decision on rehearing is issued, again denying the Petitioner’s petition.

Central Arguments of the Parties

Petitioner’s Position (Joshua M. Waldvogel)

• The 60-day timeline for the ARC to approve or deny the application began on the initial submission date of September 15, 2020.

• The deadline for the ARC’s decision was therefore November 14, 2020.

• The association’s request for additional information on October 5, 2020, did not “reset” or pause this timeline.

• Because the Denial Notice was not issued until November 19, 2020, five days after the deadline, the application should be considered “deemed approved” as per the CC&Rs.

• During the rehearing, the Petitioner also argued that Sycamore Estates could only require information listed on the standard submission form.

Respondent’s Position (Sycamore Estates)

• The application was not considered complete until the Petitioner responded to the request for additional information.

• The response, received on October 6, 2020, marked the start of the 60-day review period.

• The deadline for a decision was therefore December 5, 2020.

• The Denial Notice, issued on November 19, 2020, was well within this timeframe and was therefore valid.

Governing Documents and Legal Principles

The case revolved around the interpretation of the Sycamore Estates CC&Rs, which function as a binding contract between the homeowner and the association.

Key CC&R Provisions

• Article VI, Section 6.5 (Application for Approval): This section contains the critical language that formed the basis of the Judge’s decision. It states that the 60-day review period begins:

• Article V, Section 5.2 (Building Type and Size): This section provided the substantive basis for the ARC’s denial of the casita, as it specifies:

Legal Standard

• Burden of Proof: The Petitioner, as the party asserting the claim, had the burden of proof.

• Standard of Proof: The standard was a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Contract Interpretation: In Arizona, unambiguous restrictive covenants (like the CC&Rs) are enforced to give effect to the intent of the parties.

Rulings and Judicial Rationale

The Administrative Law Judge consistently sided with the Respondent’s interpretation of the CC&Rs in both the initial hearing and the rehearing.

Initial Hearing and Decision (August 2, 2021)

• Finding: The Judge concluded that the application was not complete until the Petitioner provided his response on October 6, 2020.

• Rationale: Based on the language in Article VI, Section 6.5, the 60-day clock does not start until the application and all supporting information have been submitted. The association’s request for permits was a reasonable part of gathering this supporting information.

• Conclusion: The November 19, 2020 Denial Notice was issued prior to the December 5, 2020 deadline and was therefore valid. The Judge ordered that the “Petitioner’s petition is denied.”

Rehearing and Final Decision (December 15, 2021)

• Basis for Rehearing: The Petitioner requested a rehearing, alleging the initial decision was an “abuse of discretion.” His written basis was:

• Rehearing Arguments: During the rehearing, the Petitioner acknowledged that the Findings of Fact in the initial decision were not in error and presented the same legal arguments as before.

• Final Ruling: The Judge’s conclusion remained unchanged. Upon consideration of all evidence from the rehearing, the Judge again found that the application was not complete until October 6, 2020, and the denial was timely.

• Final Order: The Judge concluded that the “Petitioner failed to establish that Respondent failed to comply with its CC&Rs” and again ordered that the “Petitioner’s petition is denied.” This order was designated as binding on the parties, with any further appeal requiring judicial review in superior court.






Study Guide – 21F-H2121044-REL-RHG


Study Guide: Waldvogel v. Sycamore Estate Parcel 13 Community Association

This study guide provides a comprehensive review of the administrative case between homeowner Joshua M. Waldvogel and the Sycamore Estate Parcel 13 Community Association. The materials are derived from the Administrative Law Judge Decisions issued on August 2, 2021, and December 15, 2021.

——————————————————————————–

Part I: Short Answer Quiz

Instructions: Answer the following ten questions based on the provided case documents. Each answer should be two to three sentences in length.

1. Who were the petitioner and the respondent in this case, and what specific project was the petitioner seeking approval for?

2. What was the central procedural dispute regarding the timeline for the respondent’s decision on the application?

3. According to the community’s CC&Rs, what is the consequence if the Architectural Committee fails to approve or disapprove an application within the specified timeframe?

4. On what substantive grounds did the Sycamore Estates Architectural Committee ultimately base its decision to deny Mr. Waldvogel’s application?

5. What key date did the petitioner, Mr. Waldvogel, argue was the start of the 60-day review period, and what was his reasoning?

6. What key date did the respondent, Sycamore Estates, argue was the start of the 60-day review period, and what was its reasoning?

7. What was the Administrative Law Judge’s conclusion in the initial hearing decision issued on August 2, 2021?

8. On what basis did the petitioner request a rehearing after the initial decision was rendered against him?

9. During the rehearing, did the petitioner introduce new evidence or arguments, or did he challenge the established Findings of Fact?

10. What legal standard of proof was required in this administrative hearing, and which party held the burden of proof?

——————————————————————————–

Part II: Answer Key

1. The petitioner was Joshua M. Waldvogel, the record owner of Lot 228. The respondent was the Sycamore Estate Parcel 13 Community Association. Mr. Waldvogel was seeking approval for a plan to build a second house, or casita, on his property.

2. The central dispute was determining when the 60-day timeline for the Architectural Committee’s decision officially began. The petitioner argued it started upon the initial application submission, while the respondent contended it began only after a request for additional information was answered, thereby making the application “complete.”

3. Article VI, Section 6.5 of the CC&Rs states that if the committee fails to act within sixty days after a complete application and all supporting information have been submitted, “approval will not be required and this Section will be deemed to have been complied with by the Owner.”

4. The committee denied the application based on Article V, Section 5.2 of the CC&Rs. This section explicitly prohibits the construction of more than “one detached Single Family Residence” on any lot.

5. The petitioner argued the 60-day review period began on September 15, 2020, the date he submitted his initial architectural application. This would have set the deadline at November 14, 2020, making the November 19 Denial Notice late and rendering the application “deemed approved.”

6. The respondent argued the 60-day period began on October 6, 2020, the date the petitioner responded to their request for additional information (permits). Sycamore Estates maintained the application was not complete until that response was received, which would set the deadline at December 5, 2020.

7. The Administrative Law Judge concluded that the application was not complete until the petitioner provided a response to the October 5 request for information. Therefore, the Denial Notice issued on November 19, 2020, was timely and valid, and the petitioner’s petition was denied.

8. The petitioner requested a rehearing on the grounds that the initial decision was “arbitrary, capricious, or an abuse of discretion.” His written statement argued that the CC&Rs do not explicitly state that the review timeline restarts upon a request for more information.

9. No, the petitioner did not introduce new arguments. He presented the same arguments during the rehearing as he had in the initial hearing and acknowledged that the Findings of Fact from the first decision did not contain any errors, choosing only to argue their legal effect.

10. The standard of proof was a “preponderance of the evidence.” The petitioner, as the party asserting a claim, had the burden of proof to establish that the respondent violated the governing documents.

——————————————————————————–

Part III: Essay Questions

Instructions: The following questions are designed for deeper analysis of the case. Formulate comprehensive essay responses that synthesize facts and legal principles from the source documents.

1. Analyze the significance of Article VI, Section 6.5 of the CC&Rs, specifically the clause “together with all supporting information, plans and specifications required by the Design Guidelines have been submitted to it.” How did the interpretation of this specific language become the central legal issue of the case, and why was it determinative of the outcome?

2. Discuss the concept of “preponderance of the evidence” as defined in the legal decisions. Explain which party had the burden of proof and evaluate how the Administrative Law Judge applied this standard to the undisputed facts of the case to reach her conclusions in both the initial hearing and the rehearing.

3. The petitioner’s proposed casita was ultimately denied on the substantive grounds that it violated Article V, Section 5.2 of the CC&Rs. Why did the legal proceedings focus almost entirely on the procedural issue of the decision timeline rather than the substantive prohibition of a second residence on the lot?

4. Examine the petitioner’s basis for requesting a rehearing and the Commissioner’s decision to grant it. Despite the rehearing being granted, the Administrative Law Judge’s decision remained unchanged. Discuss the effectiveness of the petitioner’s arguments during the rehearing process as described in the legal documents.

5. The legal decisions state that CC&Rs are a contract between the parties and that unambiguous restrictive covenants must be enforced to give effect to the parties’ intent. Based on the details provided in this case, explain how the principles of contract law were applied to resolve the dispute between Mr. Waldvogel and the Sycamore Estates association.

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues legally binding decisions. In this case, Tammy L. Eigenheer.

Application

The comprehensive and detailed written request submitted by a homeowner to the Architectural Committee for approval of construction, alteration, or other improvements that would alter the exterior appearance of the property.

Architectural Committee (ARC)

The committee within the Sycamore Estates Community Association responsible for reviewing and approving or denying modifications to lots to ensure compliance with the CC&Rs and Design Guidelines.

Burden of Proof

The obligation of a party in a legal case to provide evidence to prove their claims. In this matter, the petitioner had the burden of proof.

Casita

A small, secondary house or guesthouse. This was the type of structure Mr. Waldvogel sought to build on his property.

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

A legally binding document that governs a planned community or subdivision. The courts treat it as a contract between the homeowners’ association and the property owners.

Denial Notice

The official written communication from the homeowners’ association (Sycamore Estates) informing a homeowner (Mr. Waldvogel) that their architectural application has been formally denied.

Petitioner

The party who initiates a legal action by filing a petition seeking a legal remedy. In this case, homeowner Joshua M. Waldvogel.

Preponderance of the Evidence

The standard of proof in this matter, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Property

The specific lot owned by the petitioner, identified as Lot 228 of Sycamore Estates, located at 11208 North 164th Lane, Surprise, Arizona 85388.

Respondent

The party against whom a petition is filed and who must respond to the claims. In this case, the Sycamore Estate Parcel 13 Community Association.

Restrictive Covenant

A provision within the CC&Rs that limits the use of property. Article V, Section 5.2, which prohibits more than one detached residence per lot, is an example of a restrictive covenant.






Blog Post – 21F-H2121044-REL-RHG


He Tried to Use a 60-Day Deadline to Beat His HOA. Here’s What the Judge Decided.

Introduction: The Waiting Game

You’ve done the research, hired the architect, and finally submitted your home improvement plans to the Homeowners Association (HOA). Now, the waiting game begins. The days tick by, and you start wondering: What happens if they miss their own deadline to respond? Can you just start building?

A recent administrative law case in Arizona provides a fascinating and cautionary answer to this very question. It serves as a stark reminder that your community’s governing documents—the Covenants, Conditions, and Restrictions (CC&Rs)—are a legally binding contract, and assumptions about deadlines can lead to a losing battle.

——————————————————————————–

The Core of the Dispute: A Casita and a Calendar

The case involved Joshua M. Waldvogel, a homeowner in the Sycamore Estates community in Surprise, Arizona. His goal was to build a second house, or “casita,” on his property.

The conflict centered on a simple timeline. Waldvogel submitted his application on September 15, 2020. He argued the HOA had 60 days to respond, making the deadline November 14. When the HOA sent its denial on November 19, Waldvogel claimed that because the denial was late, his project was automatically “deemed approved.” This dispute over a five-day difference escalated to an administrative law hearing. Here are the key takeaways from the judge’s decision that every homeowner should understand.

1. The 60-Day Clock Doesn’t Start Until Your Application is “Complete”

The homeowner believed the 60-day review clock started the moment he sent his initial application. The judge, however, disagreed based on the precise wording in the HOA’s CC&Rs—the binding contract governing the community.

The power was in the fine print. Article VI, Section 6.5 of the CC&Rs stated:

In the event that the Architectural Committee fails to approve or disapprove an Application for approval within sixty (60) days after the Application, together with all supporting information, plans and specifications required by the Design Guidelines have been submitted to it, approval will not be required…

This single clause was the linchpin of the entire case. On October 5, the HOA requested additional information—specifically, the appropriate permits for the proposed construction. The next day, the homeowner responded, but according to the case findings, he “did not provide any permits as requested.” Instead, he emailed to confirm that his architect had verified the plans complied with city “laws.”

The judge ruled that the 60-day clock never started on September 15 because the application wasn’t yet “complete.” The HOA’s simple request for more information was the pivotal event. It established that the official start date for the review period was October 6, the day the homeowner provided his response. This made the November 19 denial well within the required timeframe. The crucial lesson here is that an HOA’s request for information can determine the official start date of their review, regardless of when you first submitted paperwork.

2. The Underlying Rules Are Your Biggest Hurdle

The entire legal battle focused on the procedural timeline—when the HOA denied the project. But in a twist of irony, the substance of the project—what was being proposed—was a non-starter from the beginning.

Even if the homeowner had won his argument about the deadline, his project was in direct violation of another core rule. Article V, Section 5.2 of the CC&Rs clearly stated:

No building shall be constructed or permitted to remain on any lot other than one detached Single Family Residence…

The homeowner fought and lost a battle over how he was denied, when the rules clearly stated his casita project was never going to be approved in the first place. This highlights a critical point: winning a procedural argument is meaningless if your project fundamentally violates the community’s substantive rules.

3. You Can Appeal, But It’s an Uphill Battle

After losing the initial hearing, the homeowner filed for a rehearing, claiming the judge’s decision was an “abuse of discretion.” The appeal, however, only solidified the original outcome and underscored the difficulty of such challenges.

The legal record from the rehearing is particularly telling. The judge noted two critical facts: first, the petitioner “acknowledged that the Findings of Fact set forth in the underlying decision in this matter did not include any errors.” Second, he “presented the same arguments during the rehearing that he provided during the initial hearing.”

In essence, the homeowner appealed without disputing the established facts and by using the same legal argument that had already failed. Unsurprisingly, the judge’s decision remained the same, and the petition was denied again. This serves as a potent reminder that challenging an HOA’s interpretation of its own governing documents can be a difficult, expensive, and often fruitless endeavor.

——————————————————————————–

Conclusion: Read the Fine Print Before You Dream

This case serves as a powerful lesson for every homeowner living under an HOA. Your community’s CC&Rs are a binding contract, and the specific language within them holds immense power. Assumptions about procedures, deadlines, and what you’re allowed to build can be costly mistakes.

It all boils down to one final, critical question: When was the last time you read your community’s governing documents, and what crucial detail might be waiting in the fine print?


Case Participants

Petitioner Side

  • Joshua M. Waldvogel (petitioner)
    Appeared on his own behalf

Respondent Side

  • Nicole Payne (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Represented Respondent
  • Carlotta L. Turman (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen LLP

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Addressed during initial decision transmission
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Addressed during rehearing decision transmission
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient for case transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient for case transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email recipient for case transmission
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email recipient for case transmission

Clifford Burnes v. Saguaro Crest Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 22F-H2221010-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-12-09
Administrative Law Judge Tammy L. Eigenheer
Outcome full
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 2026-01-23T17:40:34 (139.0 KB)

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 loss
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)

Video Overview

Audio Overview

Decision Documents

22F-H2221005-REL Decision – 920344.pdf

Uploaded 2026-01-23T17:39:53 (89.3 KB)

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 partial
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 2026-01-23T17:38:43 (47.7 KB)

21F-H2121059-REL Decision – 909633.pdf

Uploaded 2026-01-23T17:38:48 (117.7 KB)

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',

Nancy L Babington v. Park Scottsdale II Townhouse Corporation

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

Case Summary

Case ID 20F-H2020064-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-24
Administrative Law Judge Tammy L. Eigenheer
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $2,500.00

Parties & Counsel

Petitioner Nancy L. Babington Counsel —
Respondent Park Scottsdale II Townhouse Corporation Counsel Mark K. Sahl, Scott B. Carpenter

Alleged Violations

A.R.S. § 33-1258(A)

Outcome Summary

The Administrative Law Judge found Respondent violated A.R.S. § 33-1258(A). Respondent was ordered to reimburse Petitioner's $500.00 filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.

Key Issues & Findings

Failure to make financial and other association records reasonably available for examination/provide copies within ten business days

Petitioner formally requested several records on May 1, 2020, but Respondent failed to provide the documents within the 10-day statutory limit. Evidence presented at the rehearing established that Respondent possessed the requested bank statements and contracts prior to the request.

Orders: Respondent was ordered to pay Petitioner her $500.00 filing fee and pay a civil penalty of $2,500.00 to the Department of Real Estate.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $2,500.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1258(A)

Analytics Highlights

Topics: A.R.S. § 33-1258, Records Access, HOA Dispute, Civil Penalty, Rehearing
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 32-2199.02

Video Overview

Audio Overview

Decision Documents

20F-H2020064-REL-RHG Decision – 866802.pdf

Uploaded 2025-10-09T03:35:34 (123.5 KB)

20F-H2020064-REL-RHG Decision – ../20F-H2020064-REL/823263.pdf

Uploaded 2026-01-20T13:59:35 (108.6 KB)





Briefing Doc – 20F-H2020064-REL-RHG


Briefing Document: Babington v. Park Scottsdale II Townhouse Corporation

Executive Summary

This document synthesizes the key findings, arguments, and outcomes from the administrative case of Nancy L. Babington (Petitioner) versus the Park Scottsdale II Townhouse Corporation (Respondent). The dispute centered on the Respondent’s failure to provide association records as required by Arizona state law (A.R.S. § 33-1258).

The case progressed through two distinct phases: an initial hearing that ruled in favor of the Respondent, and a subsequent rehearing that reversed the decision. The initial ruling was based on the Respondent’s testimony that it did not possess the requested records due to a dispute with a former management company. However, the rehearing was granted based on newly discovered evidence proving the Respondent, through its management company and board, did possess key documents at the time of the request.

The final judgment established that the Respondent had violated state law. The Administrative Law Judge rejected the Respondent’s defense, including the argument that records held in a corporate satellite office were not in its possession. As a result, the Respondent was ordered to reimburse the Petitioner’s $500 filing fee and pay a $2,500 civil penalty to the Arizona Department of Real Estate.

Case Background and Timeline

The dispute arose from a records request made by Petitioner Nancy L. Babington to her condominium association, Park Scottsdale II Townhouse Corporation, and its management company, Associa Arizona. The timeline of key events is as follows:

June-July 2019

Respondent’s prior management company, Community Management & Consulting, LLC (CMC), terminates its agreement.

Post-July 2019

Respondent hires Associa Arizona (Associa). Associa and the Respondent encounter difficulty obtaining records from CMC due to a financial dispute.

April 29, 2020

Petitioner sends a formal email requesting association records from September 1, 2019, to April 28, 2020, citing A.R.S. § 33-1258.

May 1, 2020

Petitioner provides a specific, nine-point list of requested documents, including bank statements, financial statements, and contracts.

May 28, 2020

Having received no documents, Petitioner files a petition with the Arizona Department of Real Estate.

August 28, 2020

The Office of Administrative Hearings conducts the initial hearing.

September 17, 2020

The Administrative Law Judge (ALJ) issues a decision denying the petition.

Post-Sept 2020

Respondent provides some of the requested documents to the Petitioner. Upon review, Petitioner discovers evidence that the documents had been in the Respondent’s possession prior to her request.

Date Unspecified

Petitioner files a request for rehearing based on newly discovered material evidence.

March 4, 2021

A rehearing is held.

March 24, 2021

The ALJ issues a new decision, reversing the original finding and ruling in favor of the Petitioner.

The Initial Hearing: Petition Denied

The initial hearing on August 28, 2020, focused on whether the Respondent had violated its statutory obligation to provide records.

Petitioner’s Allegation

The Petitioner’s case was based on her formal request for records on April 29, 2020, and the Respondent’s failure to produce any documents. Her petition stated:

“After repeated attempts since the beginning of this year to get information, on April 29, 2020 I emailed Associa Arizona and the Board of Directors of Park Scottsdale II formally requesting records per ARS 33-1258 and to date, May 25, 2020, I have not received anything.”

Respondent’s Defense

The Respondent’s primary defense was that it could not provide documents that were not in its possession.

• Withheld Records: Joseph Silberschlag, Secretary of the Board of Directors, testified that due to ongoing issues with the former management company (CMC), neither the association nor Associa had possession of many documents, including previous financial records.

• Inability to Create Documents: Mr. Silberschlag stated that without the starting balances from CMC, it was not possible to create current financial statements.

• No Obligation to Create: The Respondent argued it was “under no statutory obligation to create documents to respond to Petitioner’s request.”

Ruling and Rationale

The ALJ sided with the Respondent in the initial decision. The judge noted that while there was no dispute that the documents were not provided within the 10-day statutory period, the Petitioner had not provided any authority showing the Respondent was required to create a document responsive to her request. The ruling concluded:

“Respondent did not have possession of any of the documents requested at the time of Petitioner’s request… Thus, Petitioner failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”

The petition was subsequently denied on September 17, 2020.

The Rehearing: Decision Reversed

A rehearing was granted after the Petitioner discovered that, contrary to the testimony at the initial hearing, the Respondent had possessed several of the requested documents. The rehearing on March 4, 2021, introduced new evidence that fundamentally changed the outcome of the case.

New Evidence and Testimony

The Petitioner presented evidence focusing on three categories of documents she had requested:

• Bank Statements: Petitioner testified that bank statements she received after the initial hearing showed they had been sent to Associa starting in August 2019. Evelyn Shanley, Community Director for Associa, testified that the statements were sent to a national office in Richardson, Texas, and admitted she did not contact that office to obtain them in response to the Petitioner’s request.

• Contracts: Petitioner received two contracts signed by board members on March 27 and March 31, 2020, which were in existence prior to her request. Ms. Shanley admitted these were not provided because the board members had not given them to Associa.

• 1099s: Petitioner noted a document indicating four vendors were eligible for 1099s for 2019. Ms. Shanley denied that any 1099s had been issued.

Respondent’s Evolved Arguments

Faced with the new evidence, the Respondent’s arguments shifted:

• “Immediate Possession”: Counsel argued that the requested documents were not in the “immediate possession” of Associa’s local office.

• Concession on Bank Statements: During closing arguments, Respondent’s counsel acknowledged that “‘one could concede’ the bank statements located in Richardson, Texas were in the possession of Associa and should have been provided to Petitioner in response to her request.”

• Mootness and Penalties: Counsel argued the matter was now moot because the documents had been provided. It was further argued that a civil penalty was inappropriate because the Petitioner did not specifically request one on her initial petition form.

Final Ruling and Rationale

The ALJ found the new evidence compelling and decisive.

• Direct Contradiction: The ruling stated that “the evidence presented during the rehearing was directly contradictory” to the representation made at the initial hearing that Respondent did not have possession of the documents.

• Violation Established: The ALJ concluded that the Petitioner successfully “established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”

• Authority for Civil Penalty: The ALJ firmly rejected the Respondent’s argument against a civil penalty. The decision cited A.R.S. § 32-2199.02, noting that the plain language of the statute grants the judge the authority to levy a penalty for established violations. The judge wrote, “Nothing in the statute limits the available remedies to those specifically requested by a petitioner.”

Final Order and Penalties

Given the established violation, the ALJ found that a civil penalty was appropriate. The final order, issued March 24, 2021, mandated the following actions by the Respondent within 30 days of the decision’s mailing date:

1. Reimbursement of Filing Fee: Pay the Petitioner, Nancy L. Babington, her filing fee of $500.00.

2. Payment of Civil Penalty: Pay the Arizona Department of Real Estate a civil penalty of $2,500.00.






Study Guide – 20F-H2020064-REL-RHG


Study Guide: Babington v. Park Scottsdale II Townhouse Corporation

This study guide provides a comprehensive review of the administrative case Nancy L. Babington vs. Park Scottsdale II Townhouse Corporation. It covers the initial hearing, the subsequent rehearing, the key arguments presented by both parties, and the final legal outcome. The materials are designed to test and deepen understanding of the case’s facts, legal principles, and timeline.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, using only information provided in the case documents.

1. What specific Arizona statute did Petitioner Nancy L. Babington allege that the Respondent, Park Scottsdale II Townhouse Corporation, had violated?

2. What was the Respondent’s primary defense during the initial hearing for not providing the requested documents within the statutory timeframe?

3. What was the official outcome of the first Administrative Law Judge Decision issued on September 17, 2020?

4. On what legal grounds did the Petitioner successfully request a rehearing of the case?

5. What new evidence regarding the requested bank statements was introduced during the rehearing?

6. How did the Respondent’s management company, Associa Arizona, explain its failure to produce the two contracts signed in March 2020?

7. What was the Respondent’s counsel’s argument at the rehearing for why a civil penalty should not be levied?

8. How did the Administrative Law Judge counter the Respondent’s argument regarding the imposition of a civil penalty?

9. What two financial penalties were included in the final order issued on March 24, 2021?

10. What is the standard of proof the Petitioner was required to meet, and what is its definition according to the case file?

——————————————————————————–

Answer Key

1. The Petitioner alleged that the Respondent had violated A.R.S. Title 33, Chapter 16, Section 33-1258. This statute requires a condominium owners association to make its financial and other records reasonably available for examination by any member within ten business days of a request.

2. During the initial hearing, the Respondent argued that it was unable to provide the documents because they were not in its possession. This was attributed to a financial disagreement with its former management company, Community Management & Consulting (CMC), which was withholding records.

3. The first decision, issued on September 17, 2020, was in favor of the Respondent. The Administrative Law Judge denied the Petitioner’s petition, concluding she had failed to establish by a preponderance of the evidence that the Respondent violated the statute, as it was not required to create or provide documents it did not possess.

4. A rehearing was granted based on the Petitioner’s claim of “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” After the initial ruling, the Respondent provided some documents, which revealed that it had, in fact, been in possession of them prior to the Petitioner’s formal request.

5. During the rehearing, it was revealed that bank statements were being sent to Associa’s national central office in Richardson, Texas, starting in August 2019. An Associa representative admitted that the local office never contacted the central office to obtain these statements in response to the Petitioner’s request.

6. Associa’s representative, Evelyn Shanley, admitted that two signed contracts existed but had not been provided to the Petitioner. She stated this was because the members of the Board of Directors who signed them had not yet provided the contracts to Associa.

7. The Respondent’s counsel argued that a civil penalty was not appropriate because the Petitioner did not specifically request one by checking the corresponding box on the initial petition. Counsel asserted that the rehearing process was not designed for the Petitioner to change the relief requested.

8. The Judge rejected the Respondent’s argument, stating it was an erroneous interpretation of A.R.S. § 32-2199.02. The Judge clarified that the plain language of the statute allows the Administrative Law Judge to levy a civil penalty for established violations, and nothing in the statute limits available remedies to only those specifically requested by a petitioner.

9. The final order required the Respondent to pay the Petitioner her filing fee of $500.00. Additionally, the Respondent was ordered to pay a civil penalty of $2,500.00 to the Arizona Department of Real Estate.

10. The required standard of proof was a “preponderance of the evidence.” The case document defines this as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for essay-style responses. Formulate a comprehensive argument using only the evidence and legal reasoning presented in the source documents.

1. Analyze the concept of “possession” as it applied to the association’s records in this case. How did the distinction between Associa’s local Arizona office and its national central office in Texas impact the initial ruling versus the outcome of the rehearing?

2. Trace the evolution of the Respondent’s legal arguments from the first hearing to the second. Discuss the strengths and weaknesses of their positions at each stage, including the “mootness” argument, and explain why their defense ultimately failed.

3. Discuss the legal standard of “preponderance of the evidence.” How did the Petitioner fail to meet this standard in the initial hearing but succeed in the rehearing? Use specific examples of evidence related to the bank statements and contracts to support the analysis.

4. Examine the role and authority of the Administrative Law Judge in this case, particularly concerning the decision to grant a rehearing and the authority to levy a civil penalty even when not explicitly requested by the petitioner.

5. Evaluate the significance of A.R.S. § 33-1258 for condominium owners. Using the facts of this case, explain the rights it grants to members and the obligations it places on associations and their management companies regarding record-keeping and transparency.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, the ALJ was Tammy L. Eigenheer.

A.R.S. § 33-1258

The specific Arizona Revised Statute that requires condominium associations to make all financial and other records reasonably available for examination by a member within ten business days of a request.

Associa Arizona (Associa)

The management company hired by Park Scottsdale II Townhouse Corporation after the termination of the previous management agreement. Associa was responsible for handling the Petitioner’s records request on behalf of the association.

Civil Penalty

A monetary penalty levied by a government agency or administrative judge for a violation of a statute or regulation. In this case, a $2,500 penalty was levied against the Respondent for violating A.R.S. § 33-1258.

Community Management & Consulting, LLC (CMC)

The previous management company for Park Scottsdale II Townhouse Corporation. CMC terminated its agreement in 2019 and was withholding records from the association due to a financial disagreement.

Department of Real Estate

The Arizona state agency with jurisdiction to hear disputes between property owners and condominium owners associations. The Petitioner filed her initial petition with this department.

HOA Dispute Rehearing Request

The formal request filed by the Petitioner with the Department of Real Estate to have the case reheard. It was granted based on the discovery of new material evidence.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner was Nancy L. Babington, a member of the condominium association.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It is defined as evidence that is more convincing and shows that the fact sought to be proved is more probable than not.

Respondent

The party against whom a petition is filed. In this case, the Respondent was Park Scottsdale II Townhouse Corporation, the condominium owners association.






Blog Post – 20F-H2020064-REL-RHG


She Sued Her HOA and Lost. What Happened Next Reversed Everything: 4 Lessons from a Homeowner’s Fight for Records

For too many homeowners, the Homeowner’s Association is a black box. Simple requests for financial records or board contracts—information you are legally entitled to—are met with delays, excuses, or outright silence. This isn’t just an annoyance; it’s an abuse of power that can leave residents feeling helpless against a secretive body that controls their property and their money. But what happens when one homeowner refuses to accept the stonewalling?

The case of Nancy L. Babington versus her Scottsdale, Arizona HOA provides a powerful playbook for fighting back. Documented in public legal records, her journey began with a standard request for records, escalated to a legal petition that she initially lost, and ended with a stunning reversal that holds critical lessons for every homeowner in America. Her fight demonstrates how persistence, diligence, and an understanding of the law can turn a seemingly hopeless situation into a victory for transparency.

Here are the four essential lessons from her successful battle for accountability.

1. Lesson One: An Initial Loss Isn’t the Final Word

Nancy Babington’s initial petition against her HOA was denied. At the first hearing on August 28, 2020, the HOA presented a seemingly plausible defense: they couldn’t provide the records because of an ongoing dispute with a former management company, CMC, which they claimed was withholding the documents.

The judge sided with the HOA. In a decision issued on September 17, 2020, the judge ruled against Babington, stating she had not sufficiently proven her case. The official ruling found she “failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).” For most people, this would have been the end of the story.

But then the HOA made a critical, almost theatrical, miscalculation. After their victory, they provided Babington with some of the documents she had requested. As she reviewed them, she discovered the bombshell: the records proved the HOA had possessed crucial documents like bank statements and signed board contracts all along. These documents had nothing to do with the former management company, CMC, making the HOA’s initial defense appear to be a deliberate misdirection. This was the “newly discovered material evidence” she needed. The homeowner turned the HOA’s own actions against them, securing a rehearing on March 4, 2021, that would unravel their entire case.

2. Lesson Two: “Possession” Is More Than What’s in the Local Office

During the rehearing, the HOA pivoted to a new excuse, this time concerning bank statements. Their national management company, Associa, had its bank statements sent to a central office in Richardson, Texas. Because the records weren’t physically in the local Arizona office, the HOA argued they were not in their “immediate possession” and therefore not subject to the production deadline.

Under questioning, the Community Director, Evelyn Shanley, admitted she never even contacted the Texas office to get the statements for the homeowner. The HOA’s legal argument rested on the idea that their own corporate geography could shield them from transparency laws.

The judge flatly rejected this logic. An organization is responsible for its own records, no matter where they are stored. The argument was so weak that the HOA’s own lawyer was forced to backpedal during the hearing. The final decision noted:

Counsel acknowledged during closing arguments that “one could concede” the bank statements located in Richardson, Texas were in the possession of Associa and should have been provided to Petitioner in response to her request.

This ruling is a critical precedent: Your HOA cannot hide records in a corporate vault in another state and claim they are out of reach. If the documents belong to the association, they are in its possession, period.

3. Lesson Three: The Board Is the HOA, Not a Separate Entity

The next fight was over two contracts signed by board members in March 2020—documents that were created months after the dispute with the old management company. The excuse for not providing them? The management company claimed the contracts “had not been provided by the members of the Board of Directors to Associa.”

This was an attempt to create a legal fiction—that the Board of Directors and the HOA’s management company are separate entities, and that if the Board withholds a document from its own agent, the HOA can claim ignorance. The court did not buy it. By holding the HOA (the Respondent) responsible for the failure to produce the documents, the judge made it clear that this distinction is invalid.

For the purposes of records law, the Board is the HOA. The lesson is clear: The buck stops with the HOA. Board members cannot play a shell game with documents to evade their legal duty.

4. Lesson Four: Justice Doesn’t Require You to Check the Right Box

Having lost on the facts, the HOA’s counsel made one last-ditch effort to avoid a penalty. They argued that a civil penalty was inappropriate because the petitioner “did not indicate in her petition that she was seeking a civil penalty.” In essence, they claimed that because she hadn’t checked the right box on a form, the judge was powerless to punish them for breaking the law.

The Administrative Law Judge swiftly dismantled this procedural excuse. The judge’s final decision, issued on March 24, 2021, explicitly called out the HOA’s flawed logic:

Respondent erroneously interpreted A.R.S. § 32-2199.02 to require a petitioner to identify the requested relief in the petition when the plain language of the statute provides that the Administrative Law Judge may levy a civil penalty for violations that are established. Nothing in the statute limits the available remedies to those specifically requested by a petitioner.

The final ruling was the tangible consequence of the HOA’s failed arguments and lack of transparency. The judge ordered the HOA to reimburse Babington’s $500 filing fee and levied a separate $2,500 civil penalty payable to the Arizona Department of Real Estate. The message was unmistakable: the law has teeth, and a judge can use them based on the facts, regardless of which boxes were checked on a form.

Conclusion: Knowledge is Power

Nancy Babington’s fight is a masterclass in homeowner advocacy. Her journey from a seemingly hopeless loss to a precedent-setting victory proves that a single resident, armed with facts and relentless persistence, can force an HOA to follow the law. This case affirms that transparency is a legal requirement, not an optional courtesy. It serves as a powerful reminder that while the law is on the side of transparency, it often falls to diligent homeowners to hold their associations accountable.

This case was won because the facts came to light—do you know what your rights are, and what records you’re entitled to see from your own HOA?


Case Participants

Petitioner Side

  • Nancy L. Babington (petitioner)
    Appeared on her own behalf at both the initial hearing and the rehearing.,

Respondent Side

  • Lydia Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at the initial hearing.,
  • Mark K. Sahl (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at the rehearing.,
  • Scott B. Carpenter (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at the rehearing.,
  • Joseph Silberschlag (board member)
    Park Scottsdale II Townhouse Corporation
    Secretary of the Board of Directors; testified at the initial hearing; also referred to as 'Joe Silberschlag' in the petition request.,,,
  • Debbie Schumacher (board member)
    Park Scottsdale II Townhouse Corporation
    Named in Petitioner's record request email.,
  • Marty Shuford (board member)
    Park Scottsdale II Townhouse Corporation
    Named in Petitioner's record request email.,
  • Angelina Rajenovich (board member)
    Park Scottsdale II Townhouse Corporation
    Named in Petitioner's record request email.,
  • Dermot Brown (board member)
    Park Scottsdale II Townhouse Corporation
    Named in Petitioner's record request email.,
  • Lori Nusbaum (board member)
    Park Scottsdale II Townhouse Corporation
    Named in Petitioner's record request email.,
  • Linda Parker (property manager)
    Associa Arizona
    Director of Client Services; responded to Petitioner's record requests.,,,
  • Evelyn Shanley (property manager/witness)
    Associa Arizona
    Community Director; previously communicated with Petitioner; testified at the rehearing.,,,
  • Laura Smith (property manager)
    Associa Arizona
    Previously communicated with Petitioner regarding records.,

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (admin staff)
    Transmitted the initial decision.

Other Participants

  • Stephen Silberschlag (unknown)
    Petitioner requested proof of his liability insurance.,

Nancy L Babington v. Park Scottsdale II Townhouse Corporation

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

Case Summary

Case ID 20F-H2020064-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-24
Administrative Law Judge Tammy L. Eigenheer
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $2,500.00

Parties & Counsel

Petitioner Nancy L. Babington Counsel —
Respondent Park Scottsdale II Townhouse Corporation Counsel Mark K. Sahl and Scott B. Carpenter

Alleged Violations

A.R.S. § 33-1258(A)

Outcome Summary

Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.

Key Issues & Findings

Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.

Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.

Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $2,500.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 32-2199.02
  • A.A.C. R2-19-119

Analytics Highlights

Topics: HOA records request, A.R.S. 33-1258, Rehearing, Civil Penalty, Possession of Records
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 32-2199.02
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

20F-H2020064-REL-RHG Decision – 866802.pdf

Uploaded 2026-01-23T17:33:54 (123.5 KB)

20F-H2020064-REL-RHG Decision – ../20F-H2020064-REL/823263.pdf

Uploaded 2026-01-23T17:33:57 (108.6 KB)





Briefing Doc – 20F-H2020064-REL-RHG


Briefing Document: Babington v. Park Scottsdale II Townhouse Corporation

Executive Summary

This document synthesizes the key findings, arguments, and outcomes from the administrative case of Nancy L. Babington (Petitioner) versus the Park Scottsdale II Townhouse Corporation (Respondent). The dispute centered on the Respondent’s failure to provide association records as required by Arizona state law (A.R.S. § 33-1258).

The case progressed through two distinct phases: an initial hearing that ruled in favor of the Respondent, and a subsequent rehearing that reversed the decision. The initial ruling was based on the Respondent’s testimony that it did not possess the requested records due to a dispute with a former management company. However, the rehearing was granted based on newly discovered evidence proving the Respondent, through its management company and board, did possess key documents at the time of the request.

The final judgment established that the Respondent had violated state law. The Administrative Law Judge rejected the Respondent’s defense, including the argument that records held in a corporate satellite office were not in its possession. As a result, the Respondent was ordered to reimburse the Petitioner’s $500 filing fee and pay a $2,500 civil penalty to the Arizona Department of Real Estate.

Case Background and Timeline

The dispute arose from a records request made by Petitioner Nancy L. Babington to her condominium association, Park Scottsdale II Townhouse Corporation, and its management company, Associa Arizona. The timeline of key events is as follows:

June-July 2019

Respondent’s prior management company, Community Management & Consulting, LLC (CMC), terminates its agreement.

Post-July 2019

Respondent hires Associa Arizona (Associa). Associa and the Respondent encounter difficulty obtaining records from CMC due to a financial dispute.

April 29, 2020

Petitioner sends a formal email requesting association records from September 1, 2019, to April 28, 2020, citing A.R.S. § 33-1258.

May 1, 2020

Petitioner provides a specific, nine-point list of requested documents, including bank statements, financial statements, and contracts.

May 28, 2020

Having received no documents, Petitioner files a petition with the Arizona Department of Real Estate.

August 28, 2020

The Office of Administrative Hearings conducts the initial hearing.

September 17, 2020

The Administrative Law Judge (ALJ) issues a decision denying the petition.

Post-Sept 2020

Respondent provides some of the requested documents to the Petitioner. Upon review, Petitioner discovers evidence that the documents had been in the Respondent’s possession prior to her request.

Date Unspecified

Petitioner files a request for rehearing based on newly discovered material evidence.

March 4, 2021

A rehearing is held.

March 24, 2021

The ALJ issues a new decision, reversing the original finding and ruling in favor of the Petitioner.

The Initial Hearing: Petition Denied

The initial hearing on August 28, 2020, focused on whether the Respondent had violated its statutory obligation to provide records.

Petitioner’s Allegation

The Petitioner’s case was based on her formal request for records on April 29, 2020, and the Respondent’s failure to produce any documents. Her petition stated:

“After repeated attempts since the beginning of this year to get information, on April 29, 2020 I emailed Associa Arizona and the Board of Directors of Park Scottsdale II formally requesting records per ARS 33-1258 and to date, May 25, 2020, I have not received anything.”

Respondent’s Defense

The Respondent’s primary defense was that it could not provide documents that were not in its possession.

• Withheld Records: Joseph Silberschlag, Secretary of the Board of Directors, testified that due to ongoing issues with the former management company (CMC), neither the association nor Associa had possession of many documents, including previous financial records.

• Inability to Create Documents: Mr. Silberschlag stated that without the starting balances from CMC, it was not possible to create current financial statements.

• No Obligation to Create: The Respondent argued it was “under no statutory obligation to create documents to respond to Petitioner’s request.”

Ruling and Rationale

The ALJ sided with the Respondent in the initial decision. The judge noted that while there was no dispute that the documents were not provided within the 10-day statutory period, the Petitioner had not provided any authority showing the Respondent was required to create a document responsive to her request. The ruling concluded:

“Respondent did not have possession of any of the documents requested at the time of Petitioner’s request… Thus, Petitioner failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”

The petition was subsequently denied on September 17, 2020.

The Rehearing: Decision Reversed

A rehearing was granted after the Petitioner discovered that, contrary to the testimony at the initial hearing, the Respondent had possessed several of the requested documents. The rehearing on March 4, 2021, introduced new evidence that fundamentally changed the outcome of the case.

New Evidence and Testimony

The Petitioner presented evidence focusing on three categories of documents she had requested:

• Bank Statements: Petitioner testified that bank statements she received after the initial hearing showed they had been sent to Associa starting in August 2019. Evelyn Shanley, Community Director for Associa, testified that the statements were sent to a national office in Richardson, Texas, and admitted she did not contact that office to obtain them in response to the Petitioner’s request.

• Contracts: Petitioner received two contracts signed by board members on March 27 and March 31, 2020, which were in existence prior to her request. Ms. Shanley admitted these were not provided because the board members had not given them to Associa.

• 1099s: Petitioner noted a document indicating four vendors were eligible for 1099s for 2019. Ms. Shanley denied that any 1099s had been issued.

Respondent’s Evolved Arguments

Faced with the new evidence, the Respondent’s arguments shifted:

• “Immediate Possession”: Counsel argued that the requested documents were not in the “immediate possession” of Associa’s local office.

• Concession on Bank Statements: During closing arguments, Respondent’s counsel acknowledged that “‘one could concede’ the bank statements located in Richardson, Texas were in the possession of Associa and should have been provided to Petitioner in response to her request.”

• Mootness and Penalties: Counsel argued the matter was now moot because the documents had been provided. It was further argued that a civil penalty was inappropriate because the Petitioner did not specifically request one on her initial petition form.

Final Ruling and Rationale

The ALJ found the new evidence compelling and decisive.

• Direct Contradiction: The ruling stated that “the evidence presented during the rehearing was directly contradictory” to the representation made at the initial hearing that Respondent did not have possession of the documents.

• Violation Established: The ALJ concluded that the Petitioner successfully “established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”

• Authority for Civil Penalty: The ALJ firmly rejected the Respondent’s argument against a civil penalty. The decision cited A.R.S. § 32-2199.02, noting that the plain language of the statute grants the judge the authority to levy a penalty for established violations. The judge wrote, “Nothing in the statute limits the available remedies to those specifically requested by a petitioner.”

Final Order and Penalties

Given the established violation, the ALJ found that a civil penalty was appropriate. The final order, issued March 24, 2021, mandated the following actions by the Respondent within 30 days of the decision’s mailing date:

1. Reimbursement of Filing Fee: Pay the Petitioner, Nancy L. Babington, her filing fee of $500.00.

2. Payment of Civil Penalty: Pay the Arizona Department of Real Estate a civil penalty of $2,500.00.






Study Guide – 20F-H2020064-REL-RHG


Study Guide: Babington v. Park Scottsdale II Townhouse Corporation

This study guide provides a comprehensive review of the administrative case Nancy L. Babington vs. Park Scottsdale II Townhouse Corporation. It covers the initial hearing, the subsequent rehearing, the key arguments presented by both parties, and the final legal outcome. The materials are designed to test and deepen understanding of the case’s facts, legal principles, and timeline.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, using only information provided in the case documents.

1. What specific Arizona statute did Petitioner Nancy L. Babington allege that the Respondent, Park Scottsdale II Townhouse Corporation, had violated?

2. What was the Respondent’s primary defense during the initial hearing for not providing the requested documents within the statutory timeframe?

3. What was the official outcome of the first Administrative Law Judge Decision issued on September 17, 2020?

4. On what legal grounds did the Petitioner successfully request a rehearing of the case?

5. What new evidence regarding the requested bank statements was introduced during the rehearing?

6. How did the Respondent’s management company, Associa Arizona, explain its failure to produce the two contracts signed in March 2020?

7. What was the Respondent’s counsel’s argument at the rehearing for why a civil penalty should not be levied?

8. How did the Administrative Law Judge counter the Respondent’s argument regarding the imposition of a civil penalty?

9. What two financial penalties were included in the final order issued on March 24, 2021?

10. What is the standard of proof the Petitioner was required to meet, and what is its definition according to the case file?

——————————————————————————–

Answer Key

1. The Petitioner alleged that the Respondent had violated A.R.S. Title 33, Chapter 16, Section 33-1258. This statute requires a condominium owners association to make its financial and other records reasonably available for examination by any member within ten business days of a request.

2. During the initial hearing, the Respondent argued that it was unable to provide the documents because they were not in its possession. This was attributed to a financial disagreement with its former management company, Community Management & Consulting (CMC), which was withholding records.

3. The first decision, issued on September 17, 2020, was in favor of the Respondent. The Administrative Law Judge denied the Petitioner’s petition, concluding she had failed to establish by a preponderance of the evidence that the Respondent violated the statute, as it was not required to create or provide documents it did not possess.

4. A rehearing was granted based on the Petitioner’s claim of “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” After the initial ruling, the Respondent provided some documents, which revealed that it had, in fact, been in possession of them prior to the Petitioner’s formal request.

5. During the rehearing, it was revealed that bank statements were being sent to Associa’s national central office in Richardson, Texas, starting in August 2019. An Associa representative admitted that the local office never contacted the central office to obtain these statements in response to the Petitioner’s request.

6. Associa’s representative, Evelyn Shanley, admitted that two signed contracts existed but had not been provided to the Petitioner. She stated this was because the members of the Board of Directors who signed them had not yet provided the contracts to Associa.

7. The Respondent’s counsel argued that a civil penalty was not appropriate because the Petitioner did not specifically request one by checking the corresponding box on the initial petition. Counsel asserted that the rehearing process was not designed for the Petitioner to change the relief requested.

8. The Judge rejected the Respondent’s argument, stating it was an erroneous interpretation of A.R.S. § 32-2199.02. The Judge clarified that the plain language of the statute allows the Administrative Law Judge to levy a civil penalty for established violations, and nothing in the statute limits available remedies to only those specifically requested by a petitioner.

9. The final order required the Respondent to pay the Petitioner her filing fee of $500.00. Additionally, the Respondent was ordered to pay a civil penalty of $2,500.00 to the Arizona Department of Real Estate.

10. The required standard of proof was a “preponderance of the evidence.” The case document defines this as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for essay-style responses. Formulate a comprehensive argument using only the evidence and legal reasoning presented in the source documents.

1. Analyze the concept of “possession” as it applied to the association’s records in this case. How did the distinction between Associa’s local Arizona office and its national central office in Texas impact the initial ruling versus the outcome of the rehearing?

2. Trace the evolution of the Respondent’s legal arguments from the first hearing to the second. Discuss the strengths and weaknesses of their positions at each stage, including the “mootness” argument, and explain why their defense ultimately failed.

3. Discuss the legal standard of “preponderance of the evidence.” How did the Petitioner fail to meet this standard in the initial hearing but succeed in the rehearing? Use specific examples of evidence related to the bank statements and contracts to support the analysis.

4. Examine the role and authority of the Administrative Law Judge in this case, particularly concerning the decision to grant a rehearing and the authority to levy a civil penalty even when not explicitly requested by the petitioner.

5. Evaluate the significance of A.R.S. § 33-1258 for condominium owners. Using the facts of this case, explain the rights it grants to members and the obligations it places on associations and their management companies regarding record-keeping and transparency.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, the ALJ was Tammy L. Eigenheer.

A.R.S. § 33-1258

The specific Arizona Revised Statute that requires condominium associations to make all financial and other records reasonably available for examination by a member within ten business days of a request.

Associa Arizona (Associa)

The management company hired by Park Scottsdale II Townhouse Corporation after the termination of the previous management agreement. Associa was responsible for handling the Petitioner’s records request on behalf of the association.

Civil Penalty

A monetary penalty levied by a government agency or administrative judge for a violation of a statute or regulation. In this case, a $2,500 penalty was levied against the Respondent for violating A.R.S. § 33-1258.

Community Management & Consulting, LLC (CMC)

The previous management company for Park Scottsdale II Townhouse Corporation. CMC terminated its agreement in 2019 and was withholding records from the association due to a financial disagreement.

Department of Real Estate

The Arizona state agency with jurisdiction to hear disputes between property owners and condominium owners associations. The Petitioner filed her initial petition with this department.

HOA Dispute Rehearing Request

The formal request filed by the Petitioner with the Department of Real Estate to have the case reheard. It was granted based on the discovery of new material evidence.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner was Nancy L. Babington, a member of the condominium association.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It is defined as evidence that is more convincing and shows that the fact sought to be proved is more probable than not.

Respondent

The party against whom a petition is filed. In this case, the Respondent was Park Scottsdale II Townhouse Corporation, the condominium owners association.






Blog Post – 20F-H2020064-REL-RHG


She Sued Her HOA and Lost. What Happened Next Reversed Everything: 4 Lessons from a Homeowner’s Fight for Records

For too many homeowners, the Homeowner’s Association is a black box. Simple requests for financial records or board contracts—information you are legally entitled to—are met with delays, excuses, or outright silence. This isn’t just an annoyance; it’s an abuse of power that can leave residents feeling helpless against a secretive body that controls their property and their money. But what happens when one homeowner refuses to accept the stonewalling?

The case of Nancy L. Babington versus her Scottsdale, Arizona HOA provides a powerful playbook for fighting back. Documented in public legal records, her journey began with a standard request for records, escalated to a legal petition that she initially lost, and ended with a stunning reversal that holds critical lessons for every homeowner in America. Her fight demonstrates how persistence, diligence, and an understanding of the law can turn a seemingly hopeless situation into a victory for transparency.

Here are the four essential lessons from her successful battle for accountability.

1. Lesson One: An Initial Loss Isn’t the Final Word

Nancy Babington’s initial petition against her HOA was denied. At the first hearing on August 28, 2020, the HOA presented a seemingly plausible defense: they couldn’t provide the records because of an ongoing dispute with a former management company, CMC, which they claimed was withholding the documents.

The judge sided with the HOA. In a decision issued on September 17, 2020, the judge ruled against Babington, stating she had not sufficiently proven her case. The official ruling found she “failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).” For most people, this would have been the end of the story.

But then the HOA made a critical, almost theatrical, miscalculation. After their victory, they provided Babington with some of the documents she had requested. As she reviewed them, she discovered the bombshell: the records proved the HOA had possessed crucial documents like bank statements and signed board contracts all along. These documents had nothing to do with the former management company, CMC, making the HOA’s initial defense appear to be a deliberate misdirection. This was the “newly discovered material evidence” she needed. The homeowner turned the HOA’s own actions against them, securing a rehearing on March 4, 2021, that would unravel their entire case.

2. Lesson Two: “Possession” Is More Than What’s in the Local Office

During the rehearing, the HOA pivoted to a new excuse, this time concerning bank statements. Their national management company, Associa, had its bank statements sent to a central office in Richardson, Texas. Because the records weren’t physically in the local Arizona office, the HOA argued they were not in their “immediate possession” and therefore not subject to the production deadline.

Under questioning, the Community Director, Evelyn Shanley, admitted she never even contacted the Texas office to get the statements for the homeowner. The HOA’s legal argument rested on the idea that their own corporate geography could shield them from transparency laws.

The judge flatly rejected this logic. An organization is responsible for its own records, no matter where they are stored. The argument was so weak that the HOA’s own lawyer was forced to backpedal during the hearing. The final decision noted:

Counsel acknowledged during closing arguments that “one could concede” the bank statements located in Richardson, Texas were in the possession of Associa and should have been provided to Petitioner in response to her request.

This ruling is a critical precedent: Your HOA cannot hide records in a corporate vault in another state and claim they are out of reach. If the documents belong to the association, they are in its possession, period.

3. Lesson Three: The Board Is the HOA, Not a Separate Entity

The next fight was over two contracts signed by board members in March 2020—documents that were created months after the dispute with the old management company. The excuse for not providing them? The management company claimed the contracts “had not been provided by the members of the Board of Directors to Associa.”

This was an attempt to create a legal fiction—that the Board of Directors and the HOA’s management company are separate entities, and that if the Board withholds a document from its own agent, the HOA can claim ignorance. The court did not buy it. By holding the HOA (the Respondent) responsible for the failure to produce the documents, the judge made it clear that this distinction is invalid.

For the purposes of records law, the Board is the HOA. The lesson is clear: The buck stops with the HOA. Board members cannot play a shell game with documents to evade their legal duty.

4. Lesson Four: Justice Doesn’t Require You to Check the Right Box

Having lost on the facts, the HOA’s counsel made one last-ditch effort to avoid a penalty. They argued that a civil penalty was inappropriate because the petitioner “did not indicate in her petition that she was seeking a civil penalty.” In essence, they claimed that because she hadn’t checked the right box on a form, the judge was powerless to punish them for breaking the law.

The Administrative Law Judge swiftly dismantled this procedural excuse. The judge’s final decision, issued on March 24, 2021, explicitly called out the HOA’s flawed logic:

Respondent erroneously interpreted A.R.S. § 32-2199.02 to require a petitioner to identify the requested relief in the petition when the plain language of the statute provides that the Administrative Law Judge may levy a civil penalty for violations that are established. Nothing in the statute limits the available remedies to those specifically requested by a petitioner.

The final ruling was the tangible consequence of the HOA’s failed arguments and lack of transparency. The judge ordered the HOA to reimburse Babington’s $500 filing fee and levied a separate $2,500 civil penalty payable to the Arizona Department of Real Estate. The message was unmistakable: the law has teeth, and a judge can use them based on the facts, regardless of which boxes were checked on a form.

Conclusion: Knowledge is Power

Nancy Babington’s fight is a masterclass in homeowner advocacy. Her journey from a seemingly hopeless loss to a precedent-setting victory proves that a single resident, armed with facts and relentless persistence, can force an HOA to follow the law. This case affirms that transparency is a legal requirement, not an optional courtesy. It serves as a powerful reminder that while the law is on the side of transparency, it often falls to diligent homeowners to hold their associations accountable.

This case was won because the facts came to light—do you know what your rights are, and what records you’re entitled to see from your own HOA?


Case Participants

Petitioner Side

  • Nancy L. Babington (petitioner)
    Appeared on her own behalf at both the initial hearing and the rehearing.,

Respondent Side

  • Lydia Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at the initial hearing.,
  • Mark K. Sahl (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at the rehearing.,
  • Scott B. Carpenter (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Respondent at the rehearing.,
  • Joseph Silberschlag (board member)
    Park Scottsdale II Townhouse Corporation
    Secretary of the Board of Directors; testified at the initial hearing; also referred to as 'Joe Silberschlag' in the petition request.,,,
  • Debbie Schumacher (board member)
    Park Scottsdale II Townhouse Corporation
    Named in Petitioner's record request email.,
  • Marty Shuford (board member)
    Park Scottsdale II Townhouse Corporation
    Named in Petitioner's record request email.,
  • Angelina Rajenovich (board member)
    Park Scottsdale II Townhouse Corporation
    Named in Petitioner's record request email.,
  • Dermot Brown (board member)
    Park Scottsdale II Townhouse Corporation
    Named in Petitioner's record request email.,
  • Lori Nusbaum (board member)
    Park Scottsdale II Townhouse Corporation
    Named in Petitioner's record request email.,
  • Linda Parker (property manager)
    Associa Arizona
    Director of Client Services; responded to Petitioner's record requests.,,,
  • Evelyn Shanley (property manager/witness)
    Associa Arizona
    Community Director; previously communicated with Petitioner; testified at the rehearing.,,,
  • Laura Smith (property manager)
    Associa Arizona
    Previously communicated with Petitioner regarding records.,

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (admin staff)
    Transmitted the initial decision.

Other Participants

  • Stephen Silberschlag (unknown)
    Petitioner requested proof of his liability insurance.,

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

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

Case Summary

Case ID 21F-H2120001-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-17
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1804
A.R.S. § 33-1804

Outcome Summary

Petitioner's petition was affirmed in part and denied in part. Petitioner prevailed on Complaint #1 (improper use of email/unanimous written consent for non-privileged business), but lost on Complaint #2 (alleged improper emergency executive session). Respondent was ordered to comply with A.R.S. § 33-1804 and reimburse the $500 filing fee.

Why this result: Petitioner failed to prove the violation related to the emergency executive session (Complaint #2).

Key Issues & Findings

Non-privileged Association Business Conducted in Closed Session (Complaint #1)

The HOA used unanimous written consents obtained via individual emails from board members to approve association business (such as approving repairs, replacement of equipment, and pruning) outside of open meetings, violating the requirement that all meetings of the board of directors must be open to members.

Orders: Respondent ordered to reimburse the $500.00 filing fee and comply with A.R.S. § 33-1804 going forward. No civil penalty assessed due to the COVID-19 pandemic circumstances.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 10-3821

Association Business Conducted in an Emergency Executive Session (Complaint #2)

Petitioner alleged misuse of emergency executive sessions. Respondent represented that the sessions only addressed issues under statutory exceptions. Petitioner failed to establish by a preponderance of the evidence that this violation occurred.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804

Analytics Highlights

Topics: Open Meeting Law, Unanimous Written Consent, Executive Session, COVID-19
Additional Citations:

  • A.R.S. § 33-1804
  • A.R.S. § 10-3821
  • A.R.S. § 32-2199 et seq.

Video Overview

Audio Overview

Decision Documents

21F-H2120001-REL-RHG Decision – 864802.pdf

Uploaded 2026-01-23T17:34:10 (101.9 KB)

21F-H2120001-REL-RHG Decision – ../21F-H2120001-REL/838004.pdf

Uploaded 2026-01-23T17:34:13 (125.4 KB)





Briefing Doc – 21F-H2120001-REL-RHG


Administrative Hearing Brief: Morin vs. Solera Chandler Homeowners’ Association

Executive Summary

This briefing document synthesizes the findings and rulings from an administrative case (No. 21F-H2120001-REL) involving homeowner Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The core issue revolved around the association’s adherence to Arizona’s open meeting laws for planned communities, as stipulated in A.R.S. § 33-1804.

The Administrative Law Judge ultimately found that the Solera Chandler HOA violated this statute by conducting non-privileged association business without an open meeting. The Board of Directors made numerous decisions between March and July 2020—including approving contracts for repairs, appointing committee members, and changing design guidelines—through a process of “unanimous written consent” executed via individual emails. This method circumvented statutory requirements for 48-hour notice to members, published agendas, and the opportunity for homeowners to speak before a vote.

The HOA defended its actions by citing the challenges of the COVID-19 pandemic and a separate statute, A.R.S. § 10-3821, which permits non-profit corporations to act without a meeting. However, the Judge ruled that the specific requirements of the HOA open meeting law (A.R.S. § 33-1804) take precedence, emphasizing the state’s explicit policy in favor of transparency and open meetings for homeowners’ associations.

While the petitioner’s primary complaint was affirmed, a second allegation regarding the misuse of emergency executive sessions was denied due to insufficient evidence. The final order directed the HOA to comply with A.R.S. § 33-1804 in the future and to reimburse the petitioner’s $500 filing fee. No civil penalty was assessed, with the judge acknowledging the “unprecedented global pandemic” as a mitigating circumstance.

Case Overview

Case Number

21F-H2120001-REL

Petitioner

Debra K. Morin

Respondent

Solera Chandler Homeowners’ Association, Inc.

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Jurisdiction

Arizona Office of Administrative Hearings

Timeline of Adjudication

• July 10, 2020: Debra Morin files a petition with the Arizona Department of Real Estate.

• October 29, 2020: The initial administrative hearing is held.

• November 18, 2020: The first Administrative Law Judge Decision is issued.

• February 25, 2021: A rehearing is held at the Respondent’s request to clarify a finding of fact.

• March 17, 2021: The final Administrative Law Judge Decision is issued, affirming the original conclusion with a factual correction.

Petitioner’s Allegations

The petitioner, Debra K. Morin, focused her case on two specific complaints alleging violations of Arizona’s open meeting law for HOAs (A.R.S. § 33-1804).

Complaint #1: Improper Use of Closed Sessions and Unanimous Written Consent

The petitioner alleged that the Solera HOA Board of Directors conducted non-privileged association business in closed sessions without proper procedure. Specifically, the Board was accused of:

• Failing to provide members with 48-hour notice of meetings.

• Failing to provide agendas for the business being conducted.

• Denying members the opportunity to speak prior to the Board taking action on key issues.

• Using “unanimous written consent” to bypass open meeting requirements.

Complaint #2: Misuse of “Emergency Executive Sessions”

The petitioner further alleged that the Board conducted privileged association business under the guise of “emergency executive sessions” improperly by:

• Failing to identify the specific statutory exception to the open meeting law that permitted the closed session.

• Failing to provide an agenda and 48-hour notice where possible.

• Failing to produce minutes stating the reason for the emergency and submitting them at the next board meeting.

Respondent’s Actions and Defense

The Solera Chandler HOA acknowledged using unanimous written consents but argued its actions were a necessary response to the COVID-19 pandemic, which prevented in-person meetings. The Board asserted its actions were legally authorized under A.R.S. § 10-3821, a statute governing non-profit corporations.

Use of Unanimous Written Consent

Evidence presented at the rehearing established the Board’s procedure. For each action, an individual from the community management company would email each Board member individually to solicit a “yes” or “no” vote. If all members voted “yes,” the action was considered passed by unanimous consent, and the Board President would sign the formal consent document. The HOA stated it had not used this method before the pandemic and did not intend to continue its use.

The following actions were taken by the Board using this method and were later ratified at the August 5, 2020, open Board meeting:

Action Taken via Unanimous Written Consent

March 30, 2020

Approve repair and replacement of sidewalk and community center entrance.

March 30, 2020

Approve repair and replacement of cool decking around both pools.

April 30, 2020

Approve Kirk Sandquist as a member of the Architectural Review Committee.

April 30, 2020

Approve Tom Dusbabek as a member of the Architectural Review Committee.

May 5, 2020

Approve Gilbert Road retention basin project, related irrigation replacement, and addition of 420 tons of granite.

May 8, 2020

Approve replacement of a Carrier 6-ton heat pump.

May 8, 2020

Approve replacement of two Carrier 5-ton heat pumps.

May 27, 2020

Approve hiring Ken Eller to draft architectural drawings.

June 4, 2020

Approve a change to the Design Guidelines at the request of the Architectural Review Committee.

July 1, 2020

Approve the 2020 summer hardwood pruning and removal of trees.

Chronology of Executive Sessions

In addition to the actions taken by written consent, the Board held numerous executive (closed) sessions between March and August 2020, citing specific exceptions in A.R.S. § 33-1804(A). Minutes for these meetings were approved at the August 5, 2020 executive session but were redacted to conceal the substance of the discussions.

Date of Session

Cited Statutory Exceptions for Closed Session (A.R.S. § 33-1804(A))

March 13, 2020

(1) Legal advice, (2) Pending litigation, (4) Employee matters

March 16, 2020

(1) Legal advice, (2) Pending litigation

March 19, 2020

(1) Legal advice

March 24, 2020

(4) Employee matters

April 6, 2020

(4) Employee matters

April 10, 2020

(4) Employee matters

May 4, 2020

(4) Employee matters

May 12, 2020*

(1) Legal advice, (2) Pending litigation, (4) Employee matters

May 15, 2020

(1) Legal advice, (2) Pending litigation

May 27, 2020

(2) Pending litigation, (4) Employee matters

June 24, 2020

(2) Pending litigation, (3) Personal/health/financial information

August 5, 2020

(1) Legal advice, (2) Pending litigation, (3) Personal/health/financial information

*Designated an “emergency executive session.”

Adjudication and Legal Rulings

The Administrative Law Judge’s decision rested on the interpretation and primacy of Arizona’s statutes governing homeowners’ associations.

Statutory Conflict and Interpretation

The central legal question was the conflict between two state laws:

• A.R.S. § 33-1804: Specifically requires all HOA Board meetings to be open to all members, with limited exceptions for closed executive sessions. It explicitly states a policy that statutes should be construed “in favor of open meetings.”

• A.R.S. § 10-3821: A general corporate law that allows boards of non-profit corporations to take action “without a meeting” if there is unanimous written consent from all directors.

The Judge concluded that while A.R.S. § 10-3821 may apply to non-profits generally, the more specific statute, A.R.S. § 33-1804, governs the conduct of HOA boards. The requirement for open meetings in the HOA statute overrides the provision allowing for action without a meeting in the general non-profit statute.

Ruling on Complaint #1 (Improper Closed Business)

Finding: In favor of the Petitioner.

• The Judge ruled that the Petitioner established by a preponderance of the evidence that the Respondent committed the violation.

• The decision states, “Respondent improperly conducted association business in closed sessions via email rather than in meetings open to the members.”

• An initial finding that the business was conducted via “conference calls” was corrected after the rehearing to specify the method was individual emails, but this did not change the outcome.

• The Judge gave “consideration to the fact that Respondent was faced with an unprecedented global pandemic” and found that no civil penalty was appropriate under the circumstances.

Ruling on Complaint #2 (Misuse of Executive Sessions)

Finding: In favor of the Respondent.

• The Judge found that the Petitioner failed to meet the burden of proof for this allegation.

• The decision notes, “Nothing in the record suggested the Board discussed other issues that did not fall under the exceptions listed and/or that the May 12, 2020 executive session was not an emergency.”

Final Order and Directives

The Administrative Law Judge’s final, binding order issued on March 17, 2021, included the following directives:

1. Petition Affirmed in Part: The petitioner’s petition was affirmed on the issue of Complaint #1 and denied on the issue of Complaint #2.

2. Reimbursement of Filing Fee: Respondent (Solera Chandler HOA) was ordered to reimburse the Petitioner (Debra Morin) her $500.00 filing fee for the issue on which she prevailed.

3. Compliance Mandate: Respondent was directed to comply with the requirements of A.R.S. § 33-1804 going forward.






Study Guide – 21F-H2120001-REL-RHG


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

This study guide provides a review of the administrative law case involving Debra K. Morin and the Solera Chandler Homeowners’ Association, Inc. It includes short-answer questions with an answer key, essay questions for further analysis, and a comprehensive glossary of key terms based on the provided legal decisions.

Short-Answer Quiz

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

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

2. What were the two main complaints filed by the Petitioner against the Respondent’s Board of Directors?

3. Which specific Arizona Revised Statute (A.R.S.) did the Petitioner allege the Respondent violated, and what is the general policy purpose of this statute?

4. How did the Respondent justify its use of unanimous written consents and its decision to forgo open meetings from March to July 2020?

5. What was the Administrative Law Judge’s final ruling on Complaint #1, which concerned conducting non-privileged association business?

6. What was the ruling on Complaint #2, which concerned the use of emergency executive sessions, and what was the reason for this outcome?

7. A rehearing was granted after the initial decision. What specific factual conclusion from the first decision was the focus of this rehearing?

8. How did the evidence presented at the rehearing clarify the method used by the Board of Directors to pass unanimous written consents?

9. Despite finding the Respondent in violation of state law, why did the Administrative Law Judge decide not to impose a civil penalty?

10. What two actions was the Respondent ordered to take as a result of the final ruling?

——————————————————————————–

Answer Key

1. The primary parties were Debra K. Morin, the Petitioner, and Solera Chandler Homeowners’ Association, Inc., the Respondent. The Petitioner filed a petition with the Arizona Department of Real Estate alleging statutory violations by the Respondent homeowners’ association.

2. The Petitioner’s first complaint alleged that the Respondent conducted non-privileged business in closed sessions using unanimous written consent, without providing proper notice, agendas, or an opportunity for members to speak. The second complaint alleged the Respondent conducted privileged business under the guise of “emergency executive sessions” without proper justification or documentation.

3. The Petitioner alleged a violation of A.R.S. § 33-1804. The stated policy of this statute is that all meetings of a planned community should be conducted openly, with notices and agendas provided to reasonably inform members and ensure they have the ability to speak before a vote is taken.

4. The Respondent argued that due to the COVID-19 pandemic, its Board of Directors was unable to meet in person to protect the health of its members and directors. The Respondent asserted that taking action via unanimous written consents was authorized under a different statute, A.R.S. § 10-3821, which applies to non-profit corporations.

5. The Judge affirmed the Petitioner’s first complaint, finding that she had established by a preponderance of the evidence that the Respondent improperly conducted association business. The Judge ruled that while A.R.S. § 10-3821 allows for action without a meeting, A.R.S. § 33-1804 specifically requires that HOA board meetings be open to members.

6. The Judge denied the Petitioner’s second complaint. The ruling stated that the Petitioner failed to establish by a preponderance of the evidence that the executive sessions were improper, as nothing in the record suggested the Board discussed issues outside of the legally permitted exceptions or that the May 12, 2020 session was not a true emergency.

7. The rehearing focused on Conclusion of Law 8 from the initial decision, which stated that the “Respondent improperly conducted association business in closed sessions via conference calls.” The Respondent disputed that the business related to the unanimous written consents was conducted via conference call.

8. Evidence at the rehearing established that an individual from the community management company would email each Board member individually to request a “yes” or “no” vote on a proposal. If all members voted “yes,” the action was considered passed by unanimous consent, which the Judge still found to be a violation of the open meeting law.

9. The Judge gave consideration to the fact that the Respondent was “faced with an unprecedented global pandemic while balancing the need to comply with the applicable statutes.” Because of these unique circumstances, the Judge found that no civil penalty was appropriate.

10. The Respondent was ordered to reimburse the Petitioner her $500.00 filing fee for the complaint on which she prevailed. The Respondent was also directed to comply with the requirements of A.R.S. § 33-1804 going forward.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for deeper analysis and discussion. Answers are not provided.

1. Analyze the statutory conflict between A.R.S. § 33-1804 (HOA open meetings) and A.R.S. § 10-3821 (non-profit action without a meeting) as presented in this case. Explain the legal reasoning the Administrative Law Judge used to determine that the requirements of A.R.S. § 33-1804 took precedence for a homeowners’ association.

2. Discuss the legal standard of “preponderance of the evidence.” How did the Petitioner successfully meet this evidentiary burden for Complaint #1 but fail to meet it for Complaint #2?

3. Evaluate the impact of the COVID-19 pandemic on the actions of the Solera Chandler Homeowners’ Association and the final judgment of the Administrative Law Judge. How did this external event influence both the violation itself and the penalty phase of the ruling?

4. According to A.R.S. § 33-1804(F), what is the stated public policy of Arizona regarding meetings of planned communities? How did this explicit policy statement likely influence the judge’s interpretation of the law and the final decision regarding Complaint #1?

5. Describe the full procedural history of this case, from the initial petition through the rehearing and final order. What does the granting of a rehearing to correct a factual finding demonstrate about the legal process and the importance of accuracy in judicial decisions?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

A judge who presides over administrative hearings, in this case within the Office of Administrative Hearings. The ALJ hears evidence and issues a decision based on the applicable laws and facts.

A.R.S. § 10-3821

An Arizona Revised Statute pertaining to non-profit corporations. It allows a corporation’s board of directors to take action without a meeting if the action is approved by a unanimous written consent signed by every director.

A.R.S. § 33-1804

An Arizona Revised Statute specifically governing planned communities (homeowners’ associations). It mandates that all board of directors meetings be open to association members, requires 48-hour notice and an agenda, and allows members to speak.

Executive Session

A portion of a board meeting that is closed to association members. A.R.S. § 33-1804 strictly limits these sessions to specific topics, such as receiving legal advice, discussing pending litigation, or reviewing confidential personal, health, or financial information of an individual.

Hearing

A formal proceeding before an Administrative Law Judge where parties present evidence and arguments related to a legal dispute. In this case, hearings were held on October 29, 2020, and February 25, 2021.

Jurisdiction

The official power to make legal decisions and judgments. In this matter, the Arizona Department of Real Estate had jurisdiction to hear disputes between a property owner and a homeowners’ association.

Petitioner

The party who files a petition initiating a legal action. In this case, Debra K. Morin was the Petitioner.

Preponderance of the Evidence

The standard of proof required in this administrative case. It means the evidence presented must be more convincing and probable than the evidence offered in opposition, showing the fact sought to be proved is “more probable than not.”

Rehearing

A second hearing granted to re-examine an issue from an initial hearing. In this case, a rehearing was granted at the Respondent’s request to address the factual finding of how it conducted business (conference calls vs. email).

Respondent

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

Statutory Construction

The process of interpreting and applying legislation. The primary goal is to ascertain the legislature’s intent, beginning with the plain text of the statute.

Unanimous Written Consent

A procedure, authorized by A.R.S. § 10-3821, where an action is approved in writing by all members of a board of directors without a formal meeting. The Respondent used this method for actions such as approving repairs, appointing committee members, and changing design guidelines.






Blog Post – 21F-H2120001-REL-RHG


4 Surprising Lessons from One Homeowner’s Legal Battle with Her HOA

Introduction: When Your HOA Goes Dark

In the chaos of early 2020, as the world shut down, many Homeowners’ Association boards faced a critical challenge: how to govern when gathering in person was impossible? For residents of the Solera Chandler community, the answer was alarming—their board went dark. Citing the global crisis, the board began making major community decisions in secret, bypassing open meetings entirely. This raised a crucial legal question for every homeowner in the state: can an HOA board use a pandemic as justification to govern by private email? The legal battle launched by one determined resident, Debra K. Morin, provides a fascinating and unexpected answer.

1. Your HOA Board Can’t Govern by Email—Even in a Pandemic

At first glance, the Solera Chandler HOA board’s actions seemed like a practical response to an unprecedented crisis. To keep community business moving, the board began approving actions through a series of votes conducted via email. Using this process, the board made several significant decisions, including:

• Approving repairs for sidewalks and the community center entrance.

• Approving the replacement of cool decking around both pools.

• Appointing two new members to the Architectural Review Committee.

• Approving a major retention basin project, including irrigation replacement and the addition of 420 tons of granite.

• Hiring an architect to draft drawings.

The board’s defense rested on a clever, but ultimately flawed, legal argument. They cited Arizona statute A.R.S. § 10-3821, which allows general non-profit corporations to take action via “unanimous written consent” without a formal meeting. It was a reasonable assumption. However, an Administrative Law Judge ruled their actions were a clear violation of state law.

The legal reasoning is a vital lesson in statutory interpretation. The judge affirmed that when two laws conflict, the more specific statute prevails. In this case, the highly specific HOA Open Meeting Law (A.R.S. § 33-1804), which explicitly requires board meetings to be open to all members, overrides the more general rule for non-profits. The ruling provided a clear interpretation of the law: even a global pandemic does not grant an HOA board the power to circumvent its duty of transparency. In fact, a rehearing in the case clarified the board was making decisions through a series of individual emails—a method that completely prevented any form of an open meeting.

2. The Law Prioritizes Transparency Above All Else

The judge’s decision was not a mere technicality. It was a firm defense of the core policy undergirding Arizona’s HOA laws. The statute itself contains a powerful mission statement that leaves no room for ambiguity. A.R.S. § 33-1804(F) declares:

It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken.

This principle is the bedrock of community governance. It ensures that homeowners can observe deliberations and have their say before a final decision is made. This right to be heard is lost when a board approves a costly pool deck repair or appoints a new committee member through a series of private emails, with homeowners only finding out after the fact. The court affirmed that this right is not a suggestion; it is a non-negotiable legal requirement.

3. A Legal “Win” Doesn’t Always Mean Punishment

After proving a clear violation of state law, the homeowner won… but the HOA received no punishment. Here’s why that isn’t a contradiction. Although Debra K. Morin successfully demonstrated that the board had broken the law, the Administrative Law Judge decided against imposing any civil penalty.

The judge’s reasoning highlights the law’s capacity for context. “Consideration is given to the fact that Respondent was faced with an unprecedented global pandemic while balancing the need to comply with the applicable statutes and conduct association business,” the decision stated.

Instead of a punitive fine, the consequences were corrective. The board was formally ordered to comply with the open meeting law (A.R.S. § 33-1804) going forward, and the association was required to reimburse Ms. Morin for her $500 filing fee. This outcome reveals a surprising nuance in administrative law: a judgment can simultaneously vindicate a petitioner and uphold the law while acknowledging mitigating circumstances, focusing on future compliance rather than past punishment.

4. One Determined Homeowner Can Make a Difference

This entire legal challenge was initiated by a single resident: Debra K. Morin. Her story, however, is a realistic and therefore more empowering example of homeowner advocacy. Ms. Morin actually filed two separate complaints. While she won her landmark case regarding secret email voting, she did not prevail on a second, unrelated claim concerning the board’s use of “emergency executive sessions.”

This partial victory makes her success on the transparency issue even more significant. It shows that the legal system carefully parsed her arguments, affirming the one with the broadest implications for community governance. By filing her petition, she secured a formal order compelling her HOA to follow the law and was refunded the costs she incurred.

Morin’s petition demonstrates that community governance is not a spectator sport. It proves that one homeowner with a grasp of the rules and the determination to see them enforced can successfully realign a board with its fundamental duty of transparency.

Conclusion: Is Your HOA Playing by the Rules?

The case of Morin vs. Solera Chandler HOA delivers a sharp, unambiguous message: the legal requirement for transparency is absolute, even in the face of extraordinary circumstances. While the board’s pandemic-related pressures earned it leniency from fines, the foundational principle of open governance was decisively upheld. This case serves as a powerful reminder of the rights of homeowners and the duties of their elected boards. It sets a clear standard for openness—does your own HOA’s process for making decisions live up to it?


Case Participants

Petitioner Side

  • Debra K. Morin (petitioner)
    Appeared on her own behalf,

Respondent Side

  • Lydia A. Peirce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Also cited as Lydia Linsmeier,,,
  • Joshua M. Bolen (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Gail Ryan (board member (President))
    Solera Chandler Homeowners' Association, Inc.
    Resigned August 5, 2020

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • f. del sol (clerk/staff)
    Signed transmission notice,
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient

Other Participants

  • Kirk Sandquist (committee member (ARC))
    Approved to Architectural Review Committee
  • Tom Dusbabek (committee member (ARC))
    Approved to Architectural Review Committee
  • Ken Eller (consultant)
    Approved to draft architectural drawings

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 none
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 2026-01-23T17:36:12 (95.8 KB)

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