Case Summary
| Case ID | 24F-H041-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2024-08-14 |
| Administrative Law Judge | Kay A. Abramsohn |
| Outcome | The Administrative Law Judge dismissed the Petitioner's claim, finding that the HOA (Park) was in compliance with its By-Laws. Frank Maiz was found to be the spouse of the unit owner (Mercedes B.B. Maiz), making him eligible to serve on the Board of Directors. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Deborah Masear | Counsel | — |
|---|---|---|---|
| Respondent | Paradise Park Condominiums Phase II Homeowners Association | Counsel | Erica L. Mortenson |
Alleged Violations
Park By-Laws Article III, Section 1
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's claim, finding that the HOA (Park) was in compliance with its By-Laws. Frank Maiz was found to be the spouse of the unit owner (Mercedes B.B. Maiz), making him eligible to serve on the Board of Directors.
Why this result: Petitioner was mistaken regarding the current ownership of the unit at issue and failed to prove the respondent violated the Park By-Laws.
Key Issues & Findings
Board of Directors Qualification (Owner/Spouse Requirement)
Petitioner alleged that Frank Maiz was ineligible for the Board because his wife, Mercedes B.B. Maiz, was not the true owner of the unit, arguing that their daughter (also Mercedes B.B. Maiz) was the owner based on a recorded Beneficiary Deed. The Respondent proved that the wife owned the property, making Frank Maiz eligible as her spouse.
Orders: Petitioner's Petition is dismissed. Park is deemed the prevailing party. Petitioner shall bear her filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 33-1801 et seq.
- A.R.S. § 32-2199.05
- ARIZ. ADMIN. CODE R2-19-119
- Tierra Ranchos Homeowners Ass'n v. Kitchukov
Video Overview
Audio Overview
Decision Documents
24F-H041-REL Decision – 1178740.pdf
24F-H041-REL Decision – 1202883.pdf
24F-H041-REL Decision – 1211324.pdf
24F-H041-REL Decision – 1178740.pdf
24F-H041-REL Decision – 1202883.pdf
24F-H041-REL Decision – 1211324.pdf
This summary details the proceedings, key arguments, and final decision in the matter of *Deborah Masear v. Paradise Park Condominiums Phase II Homeowners Association* (Park), Case No. 24F-H041-REL, before the Arizona Office of Administrative Hearings (OAH). The hearing convened on July 25, 2024.
Key Facts and Main Issues
The central legal issue was whether the Respondent, Paradise Park Condominiums Phase II Homeowners Association, violated its By-Laws Article III, Section 1 by allowing Frank Maiz to run for and serve on the Board of Directors in the 2024 election.
The relevant By-Law provision stipulates that each member of the Board of Directors must be "either an owner of a Unit or the spouse of an owner".
Petitioner Deborah Masear's position was that Frank Maiz was ineligible because his spouse, Mrs. Maiz, was not the owner of Unit 245. Petitioner alleged that the true owner of the property was the daughter, identified in public records as "Mercedes B.B. Maiz". Petitioner presented documents, including a Beneficiary Deed, which Petitioner claimed showed the daughter as the property owner and the "Seller".
The Petitioner bore the burden of proving the alleged violation by a preponderance of the evidence.
Key Arguments and Evidence
The Respondent, represented by Attorney Erica L. Mortenson, countered the allegations by presenting sworn testimony from Frank Maiz and his wife, Mercedes Bofill Benaches Maiz (also known as Mercedes B.B. Maiz).
Respondent’s evidence established:
- Ownership and Status: Mercedes B.B. Maiz testified that she married Frank Maiz in 1975 and has owned Unit 245 since 1990. Frank Maiz confirmed he has served as a director while married to the owner of Unit 245.
- Mistaken Identity: Mercedes B.B. Maiz clarified that she is the owner. The Petitioner's confusion arose from the fact that Mrs. Maiz shares a similar name with her daughter, Mercedes Bofill Maiz. The Administrative Law Judge (ALJ) concluded the Petitioner was mistaken regarding the current ownership and the owner's name.
- Beneficiary Deed: Mrs. Maiz explained that she executed the Beneficiary Deed (Transfer on Death Deed) in April 2023, listing her two children as beneficiaries, because she was anticipating heart surgery. She confirmed she is still alive, meaning the interest conveyed by the deed has not yet vested; therefore, she remains the current owner.
Outcome and Final Decision
The Administrative Law Judge (ALJ), Kay A. Abramsohn, concluded that the Petitioner failed to meet the burden of proof necessary to demonstrate a violation.
The ALJ found:
- The hearing record clearly documented that Mercedes B.B. Maiz owns Unit 245.
- The record clearly documented that Frank German Maiz is married to Mercedes B.B. Maiz.
Based on these findings, Frank German Maiz satisfies the requirement of being the "spouse of the owner" of Unit 245.
The Order resulted in:
- The Petitioner’s Petition was dismissed.
- Park was deemed the prevailing party, and the Petitioner was ordered to bear her filing fee.
This decision confirms that Park was in compliance with its By-Laws. This order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of service.
Questions
Question
Who is responsible for proving a violation occurred in an HOA dispute hearing?
Short Answer
The petitioner (the person filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the person bringing the complaint must prove their case. The HOA does not automatically have to prove they are innocent; the accuser must prove the violation occurred.
Alj Quote
In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- legal standards
- burden of proof
- procedure
Question
Can the spouse of a homeowner serve on the Board of Directors even if they are not listed on the deed?
Short Answer
Yes, if the community bylaws explicitly allow spouses of owners to serve.
Detailed Answer
If the specific HOA bylaws state that board members can be owners or the spouse of an owner, a spouse may run for and serve on the board even if they are not legally listed on the property deed.
Alj Quote
Park By-Laws Article III, Section 1 provides, in pertinent part: Each member of the Board of Directors shall be either an owner of a Unit or the spouse of an owner.
Legal Basis
Community Bylaws
Topic Tags
- board eligibility
- bylaws
- elections
Question
Does a 'Beneficiary Deed' transfer ownership of a property immediately?
Short Answer
No, a Beneficiary Deed transfers title only upon the death of the owner.
Detailed Answer
The existence of a recorded Beneficiary Deed does not mean the current owner has given up their rights. The current owner remains the owner until they die, at which point the property transfers to the beneficiary.
Alj Quote
Mercedes B.B. Maiz testified that she executed the Beneficiary Deed… indicating that, upon her death, the subject property is deeded to her daughter… [and] The hearing record clearly documented that Mercedes B.B. Maiz owns Unit 245 at Park.
Legal Basis
Fact Finding / Property Law
Topic Tags
- property ownership
- deeds
- evidence
Question
What is the standard of evidence required to win an administrative hearing against an HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
To win, the evidence must show that the claim is more likely true than not. It does not require removal of all doubt, just that the evidence carries more weight than the opposing side.
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
- evidence
Question
Where can a homeowner file a petition regarding violations of condo statutes or documents?
Short Answer
The Arizona Department of Real Estate (ADRE).
Detailed Answer
Arizona law allows owners to petition the Department of Real Estate for a hearing if there is a dispute regarding violations of condominium documents or regulating statutes.
Alj Quote
Pursuant to A.R.S. §§ 32-2102 and 32-2199 et al., regarding a dispute between an owner and a planned community association, the owner or association may petition the department for a hearing concerning violations of condominium documents or violations of the statutes that regulate condominiums…
Legal Basis
A.R.S. § 32-2199
Topic Tags
- jurisdiction
- filing a complaint
Question
If I lose my case against the HOA, who pays the filing fee?
Short Answer
The petitioner (homeowner) must pay their own filing fee if the petition is dismissed.
Detailed Answer
If the Administrative Law Judge rules in favor of the HOA and dismisses the petition, the homeowner is ordered to bear the cost of the filing fee.
Alj Quote
IT IS ORDERED Petitioner shall bear her filing fee.
Legal Basis
Administrative Order
Topic Tags
- fees
- penalties
Case
- Docket No
- 24F-H041-REL
- Case Title
- Deborah Masear v. Paradise Park Condominiums Phase II Homeowners Association
- Decision Date
- 2024-08-14
- Alj Name
- Kay A. Abramsohn
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Who is responsible for proving a violation occurred in an HOA dispute hearing?
Short Answer
The petitioner (the person filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the person bringing the complaint must prove their case. The HOA does not automatically have to prove they are innocent; the accuser must prove the violation occurred.
Alj Quote
In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
- legal standards
- burden of proof
- procedure
Question
Can the spouse of a homeowner serve on the Board of Directors even if they are not listed on the deed?
Short Answer
Yes, if the community bylaws explicitly allow spouses of owners to serve.
Detailed Answer
If the specific HOA bylaws state that board members can be owners or the spouse of an owner, a spouse may run for and serve on the board even if they are not legally listed on the property deed.
Alj Quote
Park By-Laws Article III, Section 1 provides, in pertinent part: Each member of the Board of Directors shall be either an owner of a Unit or the spouse of an owner.
Legal Basis
Community Bylaws
Topic Tags
- board eligibility
- bylaws
- elections
Question
Does a 'Beneficiary Deed' transfer ownership of a property immediately?
Short Answer
No, a Beneficiary Deed transfers title only upon the death of the owner.
Detailed Answer
The existence of a recorded Beneficiary Deed does not mean the current owner has given up their rights. The current owner remains the owner until they die, at which point the property transfers to the beneficiary.
Alj Quote
Mercedes B.B. Maiz testified that she executed the Beneficiary Deed… indicating that, upon her death, the subject property is deeded to her daughter… [and] The hearing record clearly documented that Mercedes B.B. Maiz owns Unit 245 at Park.
Legal Basis
Fact Finding / Property Law
Topic Tags
- property ownership
- deeds
- evidence
Question
What is the standard of evidence required to win an administrative hearing against an HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
To win, the evidence must show that the claim is more likely true than not. It does not require removal of all doubt, just that the evidence carries more weight than the opposing side.
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
- evidence
Question
Where can a homeowner file a petition regarding violations of condo statutes or documents?
Short Answer
The Arizona Department of Real Estate (ADRE).
Detailed Answer
Arizona law allows owners to petition the Department of Real Estate for a hearing if there is a dispute regarding violations of condominium documents or regulating statutes.
Alj Quote
Pursuant to A.R.S. §§ 32-2102 and 32-2199 et al., regarding a dispute between an owner and a planned community association, the owner or association may petition the department for a hearing concerning violations of condominium documents or violations of the statutes that regulate condominiums…
Legal Basis
A.R.S. § 32-2199
Topic Tags
- jurisdiction
- filing a complaint
Question
If I lose my case against the HOA, who pays the filing fee?
Short Answer
The petitioner (homeowner) must pay their own filing fee if the petition is dismissed.
Detailed Answer
If the Administrative Law Judge rules in favor of the HOA and dismisses the petition, the homeowner is ordered to bear the cost of the filing fee.
Alj Quote
IT IS ORDERED Petitioner shall bear her filing fee.
Legal Basis
Administrative Order
Topic Tags
- fees
- penalties
Case
- Docket No
- 24F-H041-REL
- Case Title
- Deborah Masear v. Paradise Park Condominiums Phase II Homeowners Association
- Decision Date
- 2024-08-14
- Alj Name
- Kay A. Abramsohn
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Deborah Masear (petitioner)
Represented herself
Respondent Side
- Erica L. Mortenson (HOA attorney)
Goodman Law Group
Represented Respondent at the hearing - Frank German Maiz (board member; witness)
Paradise Park Condominiums Phase II Homeowners Association
Spouse of owner; testified for Respondent - Mercedes Bofill Benaches Maiz (owner; witness)
Paradise Park Condominiums Phase II Homeowners Association
Owner of the unit at issue; testified for Respondent - Ashley N. Turner (attorney)
Goodman Law Group
Listed for transmission - GT (observer)
Goodman Law Group
Observing from Respondent's attorney's office
Neutral Parties
- Kay A. Abramsohn (ALJ)
OAH
Presided over the hearing and issued the decision - Sondra J. Vanella (ALJ)
OAH
Signed the minute entry granting continuance - Susan Nicolson (Commissioner)
Arizona Department of Real Estate - vnunez (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission - djones (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission - labril (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission - mneat (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission - lrecchia (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission - gosborn (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission
Other Participants
- John Prieve (observer)
Requested to observe the hearing - Mercedes Bofill Maiz (beneficiary; daughter)
Daughter of owner Mercedes B.B. Maiz - Frank Bofill Maiz (beneficiary; son)
Son of owner Mercedes B.B. Maiz