Tag Archives: Nathan Tennyson

Sam & Pipper O’ Shaughnessy Stangl v. Sabino Vista Townhouse

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Case Summary

Case ID 22F-H2221009-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-04-25
Administrative Law Judge Velva Moses-Thompson
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sam & Pipper O' Shaughnessy Stangl Counsel —
Respondent Sabino Vista Townhouse Association Counsel Nathan Tennyson

Alleged Violations

Article VI of the CC&Rs

Outcome Summary

The Administrative Law Judge deemed Petitioners the prevailing party. Respondent HOA violated Article VI of the CC&Rs by failing to maintain and remove rubbish from the natural desert area within the Common Area up to the exterior building lines, as the Board's determination not to maintain the area lacked proper authority without a CC&R amendment. The Respondent was ordered to comply with the CC&Rs and refund the Petitioners' filing fee.

Key Issues & Findings

HOA maintenance obligations for common area up to exterior building lines

Petitioners alleged the HOA failed to maintain and otherwise manage all property up to the exterior building lines and patio enclosures, specifically a natural desert area within the Common Area. The ALJ found that the CC&Rs require the Association to maintain and remove all rubbish within its property up to the exterior building lines, and the Board lacked the authority to refuse maintenance of the natural desert area without amending the CC&Rs.

Orders: Respondent is ordered to comply with the requirements of Article VI of the CC&Rs going forward and must pay Petitioners their filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • Article VI of the CC&Rs
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: HOA Maintenance, CC&R Interpretation, Common Area Maintenance, Filing Fee Refund, Prevailing Party
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

22F-H2221009-REL Decision – 959583.pdf

Uploaded 2026-04-24T11:38:59 (49.7 KB)

22F-H2221009-REL Decision – 964651.pdf

Uploaded 2026-04-24T11:39:03 (18.7 KB)

22F-H2221009-REL Decision – 964655.pdf

Uploaded 2026-04-24T11:39:07 (99.7 KB)

22F-H2221009-REL Decision – 927714.pdf

Uploaded 2026-04-24T11:39:13 (95.3 KB)

22F-H2221009-REL Decision – 927747.pdf

Uploaded 2026-04-24T11:39:19 (37.5 KB)

Stangl v. Sabino Vista Townhouse Association: A Dispute Over Common Area Maintenance

Executive Summary

This briefing document synthesizes the key facts, arguments, and legal decisions in the administrative case of Sam & Pipper O’ Shaughnessy Stangl versus the Sabino Vista Townhouse Association. The central conflict revolves around the Association’s legal obligation, as defined by its Covenants, Conditions, and Restrictions (CC&Rs), to maintain a common area behind the Petitioners’ property.

The Petitioners alleged that the Association violated Article 6 of its CC&Rs by failing to maintain this area for over two decades, resulting in the accumulation of rubbish and the creation of a habitat for pests. The Association countered that the area in question was designated “natural desert” to serve as a buffer, and that maintaining it was not required and would be cost-prohibitive.

An initial hearing in November 2021 resulted in a decision in favor of the Petitioners. The Association was granted a rehearing, which took place in April 2022. Despite new arguments from the Association regarding budget constraints, historical precedent, and alleged interference by the Petitioners, the Administrative Law Judge (ALJ) upheld the original decision.

The final ruling on April 25, 2022, found that the language of CC&R Article 6 is unambiguous and requires the Association to maintain “all property up to the exterior building lines.” The ALJ concluded that the Board of Directors does not have the authority to unilaterally designate a common area as “unmaintained” without formally amending the CC&Rs. Consequently, the Association was ordered to comply with Article 6 and reimburse the Petitioners’ filing fee.

Case Overview

Case Name

Sam & Pipper O’ Shaughnessy Stangl, Petitioners, vs. Sabino Vista Townhouse Association, Respondent.

Case Numbers

22F-H2221009-REL (Initial Hearing)
22F-H2221009-REL-RHG (Rehearing)

Adjudicating Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Velva Moses-Thompson

Key Dates

Petition Filed: August 6, 2021
Initial Hearing: November 8, 2021
Initial Decision: November 29, 2021
Rehearing: April 4, 2022
Final Decision: April 25, 2022

The Central Allegation: Violation of CC&R Article 6

The dispute is founded on the interpretation of Article 6 of the Sabino Vista Townhouse Association’s CC&Rs concerning “Common Maintenance.”

Key Provisions of Article 6:

• Maintenance Obligation: “The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping… roofs, common elements, decorative walls, drainage… and be responsible for the rubbish removal of all areas within the common properties.”

• Standard of Care: “The Board of Directors of the Association shall use a reasonably high standard of care in providing for the repair, management and maintenance of said property, so that said townhouse project will reflect high pride of ownership.”

Petitioners’ Core Claim: Filed on August 6, 2021, the petition alleged that the Association violated Article 6 by failing to maintain the property behind their townhome unit. They asserted this neglect had persisted for the approximately 24 years they had lived there, leading to overgrowth and pest infestations.

The First Hearing and Decision (November 2021)

Summary of Arguments

• Petitioners (Sam & Pipper O’ Shaughnessy Stangl):

◦ Alleged observing only 12 hours of landscaping work in their immediate back area over 24 years.

◦ Claimed the accumulated rubbish and overgrowth served as a habitat for pests, specifically mentioning “a pack rat for rattlesnakes.”

◦ Submitted a photograph of a rattlesnake skin found in their backyard as evidence.

• Respondent (Sabino Vista Townhouse Association):

◦ Testimony was provided by Charles Taylor Ostermeyer, secretary of the Board of Directors.

◦ Argued the area in question is a “natural desert area and underbrush” that begins 30 to 40 feet behind the homes.

◦ Initially claimed the Board had adopted a rule limiting maintenance to just 4 feet behind residences, citing Board meeting minutes. However, when pressed by the ALJ, Ostermeyer conceded that believing a formal rule was adopted “would be conjecture on my part.”

◦ Asserted it would be too costly to clear the entire region.

◦ Contended that the decision not to maintain the open desert area was a valid exercise of the “business judgment rule” applicable to non-profit organizations.

November 29, 2021 Decision

The ALJ, Velva Moses-Thompson, ruled in favor of the Petitioners.

• Finding: The preponderance of the evidence showed the Respondent failed to maintain the property as required by the unambiguous language of Article 6.

• Reasoning: The Respondent provided “no evidence of an Amendment to Article VI” and “no evidence of a rule properly adopted by the Board that would limit the common area to be maintained.”

• Order: The Petitioners were deemed the prevailing party, and the Association was ordered to reimburse their $500 filing fee and comply with Article 6 going forward.

The Rehearing and Final Decision (April 2022)

The Association’s request for a rehearing was granted, with the new hearing held on April 4, 2022. The Association was represented by Nathan Tennyson, Esq., and presented testimony from John Polasi, a Board member and Chairman of the Landscape Committee.

Rehearing Testimony and Arguments

Petitioner Arguments (Sam O’ Shaughnessy Stangl)

Respondent Arguments (John Polasi, HOA Board)

Core Issue is Deflection: Argued the Association’s narrative was a “deflection from the main issue.” Stated the HOA focused on irrelevant topics to circumvent the court’s correct original ruling.

Area is a “Natural Buffer”: The unmaintained area has existed since 1974 and serves as a natural buffer from Tanque Verde Creek, keeping wildlife out and preventing hikers/bikers from wandering into the neighborhood.

Tree Trimming Incident: Claimed the HOA falsely accused him of “singlehandedly” stopping all tree trimming. Clarified a December 2021 interaction with a contractor (Leon’s Tree Service) lasted only 30 seconds, where he refused permission to cut three shade branches in his private front courtyard.

Petitioner Hindrance: Alleged the Petitioners actively hindered tree trimming in December 2021 by refusing the contractor entry into their courtyard and blocking their driveway with an SUV to prevent the trimming of a low-hanging branch.

Pest Infestations: Maintained that pests are a significant problem, citing a recent rattlesnake sighting on his birthday (March 21) and his personal removal of “252 packrats in the last three years.”

Pest Control is Managed: Stated the HOA contracts “Mr. Packrat” to inspect the entire property quarterly. Polasi testified he had been chairman for a year and had “never heard of a single pack rider or rattlesnake anywhere.”

Misuse of Common Area: Dismissed accusations of misusing the common area as “pure deflection.” He stated his use (grilling, sitting outdoors) was adjudicated in court 18 years prior and found to be in compliance with CC&Rs.

Petitioner Misuse of Common Area: Accused the Petitioners of violating CC&Rs by placing personal items (barbecue, smoker, tables, chairs) in the common area and cutting a hole in their patio wall for water and electric lines.

Developer’s Intent: Cited a statement from Dale Chastine, the original developer, asserting the CC&Rs were written to “strictly forbid any unfettered wild growth” and require all common areas to be maintained in the same manner.

Board Authority and Historical Precedent: Cited 2020 Board Minutes that formally designated the area “35 ft to the south of southern homeowner rear wall” as “unmaintained natural desert landscape.” Referenced 1999 minutes indicating a 4-foot maintenance rule was previously in place.

New Issues: Attempted to introduce new evidence regarding a “complete drainage channel that… is now buried under debris and soil,” but the ALJ did not admit it as it was a new allegation not in the original petition.

Budgetary Constraints: Argued that maintaining the entire two-to-four-acre area would be excessively expensive. He noted the HOA had recently spent $15,000 on front-area tree trimming and $10,000 on tree repairs, and had other costs like a new pool pump.

April 25, 2022 Final Decision

The ALJ again ruled in favor of the Petitioners, affirming the initial decision.

• Core Conclusion: “Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines.”

• Legal Reasoning: The CC&Rs are unambiguous and require the Association to maintain and remove rubbish from all property within its boundaries, including the area designated as “natural desert.”

• Path Forward for HOA: The ALJ explicitly stated, “If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.”

• Final Order: The order from the November 29, 2021 decision was reiterated: Petitioners were deemed the prevailing party, the Respondent was ordered to pay the $500 filing fee, and the Respondent was directed to comply with Article VI of the CC&Rs.

Stangl v. Sabino Vista Townhouse Association: A Case Study Guide

This study guide provides a comprehensive review of the administrative case between homeowners Sam & Pipper O’ Shaughnessy Stangl and the Sabino Vista Townhouse Association. It includes a short-answer quiz with a corresponding answer key, a set of essay questions for deeper analysis, and a glossary of key terms found within the case documents.

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Short Answer Quiz

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

1. What was the central violation alleged by the Petitioners in their August 6, 2021, petition?

2. According to Article 6 of the CC&Rs, what is the Sabino Vista Townhouse Association’s responsibility regarding property maintenance?

3. In the first hearing on November 8, 2021, what was the Respondent’s primary argument for not maintaining the area behind the Petitioners’ home?

4. What was the outcome of the first Administrative Law Judge Decision issued on November 29, 2021?

5. Who testified for the Respondent at the April 4, 2022, rehearing, and what were his roles within the Association?

6. What two historical documents did the Respondent present at the rehearing to support its maintenance policy for the area in question?

7. Describe the Respondent’s accusation against the Petitioners regarding the tree trimming service in December 2021.

8. What strategic reasons did the Respondent’s witness, John Polasi, give for leaving the desert area unmaintained?

9. In the final decision of April 25, 2022, why did the Administrative Law Judge rule against the Association despite its evidence of a board-approved maintenance plan?

10. What specific orders were issued to the Respondent in the final court decision?

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Answer Key

1. The Petitioners alleged that the Sabino Vista Townhouse Association violated Article 6 of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, they claimed the Association failed to maintain and otherwise manage all property up to the exterior lines and patio enclosures, focusing on the unkempt two-acre area behind their townhome.

2. Article 6 requires the Association to “maintain and otherwise manage all property up to the exterior building lines and patio enclosures.” This includes landscaping, common elements, and rubbish removal, and mandates that the Board of Directors use a “reasonably high standard of care” so the project reflects a high pride of ownership.

3. In the first hearing, the Respondent argued that it had applied the “business judgment rule” applicable to non-profit organizations. The Association contended it would be too costly to clear out the entire region, which it described as an open desert area with many trees and weeds.

4. The Administrative Law Judge (ALJ) found the Petitioners to be the prevailing party. The ALJ ordered the Respondent to comply with Article 6 of the CC&Rs going forward and to pay the Petitioners their filing fee of $500.00.

5. John Polasi testified for the Respondent at the rehearing. He was identified as a member of the Respondent’s Board of Directors and the Chairman of the Landscaping Committee.

6. The Respondent presented minutes from a Board Meeting in February 1999, which stated that only 4 feet behind residences were maintained, with the remainder left natural. They also presented minutes from a 2020 Board Meeting that revised this policy, designating an area 35 feet from the southern homeowner walls as the maintenance boundary.

7. The Respondent alleged that the Petitioners interfered with and prevented a tree trimming project conducted by Leon’s Tree Service. The witness claimed the Petitioners refused entry into their front patio to trim overhanging limbs and moved a vehicle into their driveway to block the work.

8. John Polasi testified that the unmaintained desert area serves as a “natural buffer.” He stated it keeps animals from the adjacent Tanque Verde Creek area from coming onto homeowner property and also prevents bikers and hikers from wandering into the neighborhood.

9. The ALJ ruled that although the Board had determined it would not maintain the natural desert area, the Board does not have the authority under its CC&Rs to refuse maintenance. The judge concluded that the CC&Rs require the Association to maintain all property up to the exterior lines and that if the Association wishes to change this, it must formally amend its CC&Rs.

10. The final order deemed the Petitioners the prevailing party and directed the Respondent to pay the Petitioners’ $500.00 filing fee within thirty days. It further ordered the Respondent to comply with the requirements of Article VI of the CC&Rs going forward.

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Essay Questions

Instructions: The following questions are designed for essay-length responses to encourage a deeper analysis of the case. Answers are not provided.

1. Analyze the legal reasoning of the Administrative Law Judge in both the initial and final decisions. Why was Article 6 of the CC&Rs consistently interpreted as unambiguous, and how did this interpretation override the Respondent’s “business judgment” defense and subsequent board resolutions?

2. Compare and contrast the evidence and arguments presented by the Respondent in the first hearing versus the rehearing. How did the Association’s defense strategy evolve, and what new evidence did it introduce in the second hearing?

3. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Using specific examples from the testimony and exhibits, explain how the Petitioners met this burden of proof and why the Respondent’s affirmative defenses failed to meet the same standard in both hearings.

4. Examine the tension between a homeowners’ association’s governing documents (like CC&Rs) and the operational decisions made by its Board of Directors. How does this case illustrate the limits of a Board’s authority to interpret or modify its responsibilities without formally amending the core documents?

5. Evaluate the various pieces of evidence introduced during the rehearing, such as the Board Minutes from 1999 and 2020, the letter from Leon’s Tree Service, and the attempted introduction of the developer’s affidavit. What role did each piece of evidence play in shaping the arguments, and why was some evidence given more weight or deemed inadmissible by the judge?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions and orders. In this case, the ALJ was Velva Moses-Thompson.

Affidavit

A written statement confirmed by oath or affirmation, for use as evidence in court. An affidavit from the original developer, Dale Chastain, was presented but not admitted into evidence.

Affirmative Defense

A defense in which the defendant introduces evidence that, if found to be credible, will negate liability, even if it is proven that the defendant committed the alleged acts.

Arizona Dept. of Real Estate

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

Business Judgment Rule

A legal principle that grants directors of a corporation (or non-profit association) immunity from liability for losses incurred in corporate transactions if the directors acted in good faith. This was used as a defense by the Respondent in the first hearing.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision. The interpretation of Article 6 of the CC&Rs was the central issue of the case.

Common Area

Property in a planned community that is owned by the homeowners’ association and intended for the use and enjoyment of all members. The dispute centered on the maintenance of a common area behind the Petitioners’ home.

Conjecture

An opinion or conclusion formed on the basis of incomplete information. A witness for the Respondent admitted his belief about a maintenance rule was “conjecture.”

Evidentiary Hearing

A formal proceeding where parties present evidence and testimony before a judge to resolve a disputed issue.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. In this case, the Sabino Vista Townhouse Association.

Office of Administrative Hearings

An independent state agency in Arizona where evidentiary hearings are conducted by Administrative Law Judges.

Petitioners

The party that files a petition to initiate a legal proceeding. In this case, Sam & Pipper O’ Shaughnessy Stangl.

Preponderance of the Evidence

The standard of proof in most civil cases, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioners had the burden of proving their case by this standard.

Rehearing

A second hearing of a case, granted upon request, to reconsider the original decision. The April 4, 2022, hearing was a rehearing, treated as a “complete and new hearing.”

Respondent

The party against whom a petition is filed. In this case, the Sabino Vista Townhouse Association.

Restrictive Covenant

A provision in a deed or other legal document that limits the use of real property. The court noted that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.

Riparian Area

An area of land adjacent to a river or stream. The Respondent’s witness described the community as being in a riparian area next to Tanque Verde Creek.

He Sued His HOA Over Landscaping and Won. They Demanded a Do-Over. He Won Again. Here Are the Lessons.

Introduction: The David vs. Goliath Tale of a Homeowner and His HOA

For many homeowners, dealing with a Homeowners Association (HOA) can feel like a constant struggle. Disputes over rules, maintenance, and responsibilities are common frustrations. But what happens when a homeowner believes their HOA is fundamentally failing to uphold its end of the bargain?

This is the story of Sam O’ Shaughnessy Stangl, a homeowner who took his HOA to court over its failure to maintain a common area behind his home. The outcome was surprising enough: he won. But when the HOA was granted a complete “do-over” hearing to re-argue the case from scratch, he won a second time.

This case, Stangl vs. Sabino Vista Townhouse Association, offers a powerful case study in the hierarchy of governing documents and the legal principle of plain language in contract law. Here are the surprising and powerful lessons from the repeated legal victory that every homeowner should know.

1. An HOA Board Vote Can’t Override Its Own Founding Documents

The HOA’s core defense was that its Board of Directors had made a decision to leave the area behind the homes as an “unmaintained natural desert.” This argument, however, proved legally insufficient across two separate hearings.

In the first hearing, board secretary Charles Taylor Ostermeyer testified that the board had decided to limit maintenance. However, when pressed by the judge, he admitted that claiming this decision was a formal “rule” would be “conjecture on my part.” For the rehearing, the association presented board member John Polaski, who formalized the argument, claiming the unmaintained area served as a “natural buffer.” To support this, they presented minutes from a 2020 board meeting, arguing that the board’s decision recorded in those minutes effectively created a new policy for that common area.

In both instances, the Administrative Law Judge delivered a decisive counter-ruling. The judge found that the association’s primary governing documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were the superior legal authority. A simple board vote recorded in meeting minutes could not nullify the binding requirements of the CC&Rs. The judge’s final order from the rehearing was unequivocal:

Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines. … If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.

This is a critical lesson for every homeowner. The CC&Rs function as a legally binding contract between the association and its members. A simple board resolution, a new rule, or a long-standing “tradition” cannot legally contradict the foundational covenants.

2. When the Contract is Clear, “All” Simply Means All

The entire case ultimately hinged on a single sentence in Article VI of the Sabino Vista Townhouse Association CC&Rs. This piece of text was so clear and powerful that the judge cited it as the deciding factor in both the original hearing and the rehearing. The language stated:

“The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping…”

The HOA attempted to argue around this plain language. Its representatives claimed that maintaining the entire area was too costly, that it had been unmaintained since the community was built in 1974, and that it was a “riparian area” (land adjacent to a river or stream) that should be left wild.

In both hearings, the judge rejected these arguments. The word “all” was not open to interpretation. The language of the CC&Rs was unambiguous and therefore had to be enforced as it was written. This illustrates a fundamental legal principle: when contract language is clear, arguments about convenience, cost, or past practice often fail when pitted against the plain text of a governing legal document.

3. Facts are Stubborn, Even in a “Complete New Hearing”

In a highly unusual procedural twist, after losing the first hearing in November 2021, the HOA was granted a “re-hearing” in April 2022. This was not an appeal, which reviews an original decision for errors, but a complete strategic reset. The judge explained its legal significance:

“And this is a re-hearing. So it is a complete and new hearing. … as if the first hearing didn’t happen.”

The HOA used this second chance to launch a new strategy. While the first hearing’s defense centered on cost and a vague, unwritten policy, the second hearing featured a new witness and a new, two-pronged approach: formalizing the “natural buffer” argument and adding an ad hominem strategy that attempted to portray Mr. Stangl as an uncooperative resident who had personally interfered with tree trimming.

But while the HOA’s tactics shifted, the central fact of the case could not be changed. The text of the CC&Rs was the same in April 2022 as it was in November 2021. The final outcome was identical to the first. The judge once again ruled in favor of the homeowner, ordering the HOA to comply with its own CC&Rs and to reimburse Mr. Stangl’s $500 filing fee.

This demonstrates a key legal reality: while procedural tactics can create new opportunities for argument, they cannot alter the foundational text of a contract. The HOA’s strategy shifted, but the CC&Rs—the central fact of the case—remained immutable.

Conclusion: A Final Takeaway for Every Homeowner

The case of Stangl vs. Sabino Vista Townhouse Association offers three profound takeaways for homeowners: the CC&Rs are supreme over board decisions, the plain language of those documents is incredibly powerful, and a fact-based argument is resilient. It serves as a potent reminder that an association’s governing documents are not just suggestions—they are enforceable contracts.

The next time you question an HOA policy, will you stop at their latest newsletter, or will you go back to the source?

Case Participants

Petitioner Side

  • Sam O' Shaughnessy Stangl (petitioner)
  • Pipper O' Shaughnessy Stangl (petitioner)
  • Dale Chastine (developer/witness)
    Original developer who provided an affidavit supporting petitioners
  • Lisa Chastine (witness)
    Signed father's affidavit as a witness

Respondent Side

  • Blake R. Johnson (HOA attorney)
    The Brown Law Group, PLLC
  • Nathan Tennyson (HOA attorney)
    The Brown Law Group, PLLC
    Appeared for rehearing; also referred to as Nathan Henderson in transcript
  • Charles Taylor Ostermeyer (board member)
    Sabino Vista Townhouse Association
    Secretary of Board; testified at original hearing
  • John Polasi (board member)
    Sabino Vista Townhouse Association
    Chairman of the Landscaping Committee; testified at rehearing
  • Leon (contractor)
    Leon's Tree Service
    Tree trimmer hired by HOA; provided a signed statement/testimony

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • c. serrano (clerk)
    Transmitted order
  • Miranda Alvarez (clerk)
    Transmitted order

Other Participants

  • Barbara Barski (property manager)
    Former manager of the association

Jennie Bennett v. Catalina Del Rey Homeowners Association

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

Case Summary

Case ID 20F-H2019002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-02-26
Administrative Law Judge Antara Nath Rivera
Outcome The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jennie Bennett Counsel Maxwell Riddiough
Respondent Catalina Del Rey Homeowners Association Counsel Nathan Tennyson

Alleged Violations

CC&Rs Sections 12(c) and 12(h)(1)

Outcome Summary

The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.

Why this result: Petitioner failed to meet the burden of proof that the backflow flap was a common element maintenance responsibility under CC&Rs Sections 12(c) or 12(h)(1).

Key Issues & Findings

Violation of community documents regarding maintenance responsibility for sewage backflow flap.

Petitioner alleged the HOA violated CC&Rs by refusing to pay for repairs related to a malfunctioning backflow flap that caused a sewage overflow, arguing the item was a common element maintenance responsibility.

Orders: Petitioner Jennie Bennett’s Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs Section 12(c)
  • CC&Rs Section 12(h)(1)
  • CC&Rs Section 15

Analytics Highlights

Topics: HOA, CC&Rs, Maintenance Responsibility, Plumbing, Sewage Overflow, Burden of Proof
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A) and (B)(1)

Video Overview

Audio Overview

Decision Documents

20F-H2019002-REL-RHG Decision – 771959.pdf

Uploaded 2026-01-23T17:30:01 (103.3 KB)

Briefing Document: Jennie Bennett vs. Catalina Del Rey Homeowners Association

Executive Summary

This document synthesizes the findings, arguments, and conclusions from the Administrative Law Judge (ALJ) Decision in case number 20F-H2019002-REL-RHG, concerning a dispute between homeowner Jennie Bennett (Petitioner) and the Catalina Del Rey Homeowners Association (Respondent).

The core of the dispute was the financial responsibility for repairing a malfunctioning sewage backflow valve that caused an overflow at the petitioner’s residence. The petitioner argued that the HOA violated its Covenants, Conditions, Restrictions and Easements (CC&Rs), specifically Sections 12(c) and 12(h)(1), by refusing to cover the repair costs. The petitioner’s claim was complicated by the fact that the HOA had, just two weeks prior to the incident, rescinded a “Sewer Maintenance Policy” that had previously addressed such issues. The petitioner stated she was not notified of this rescission.

The respondent contended that the backflow valve was located on the petitioner’s private property, not in a common area, making its maintenance the petitioner’s responsibility under Section 15 of the CC&Rs. The HOA asserted that the 2017 policy was rescinded precisely because legal guidance confirmed this distinction. The HOA also maintained that notice of the rescission was sent to all homeowners.

The ALJ ultimately ruled in favor of the respondent, dismissing the petitioner’s petition. The decision concluded that the petitioner failed to meet the burden of proof—a preponderance of the evidence—to establish that the backflow valve was a common element covered by the cited CC&R sections. The evidence, including a plat map and photos, demonstrated the valve was on the petitioner’s private property. While the timing of the policy rescission was deemed “extremely unfortunate,” the ALJ found that once rescinded, the HOA was no longer obligated to share repair costs.

I. Case Overview

• Case Name: Jennie Bennett, Petitioner, vs. Catalina Del Rey Homeowners Association, Respondent.

• Case Number: 20F-H2019002-REL-RHG

• Forum: Arizona Office of Administrative Hearings

• Administrative Law Judge: Antara Nath Rivera

• Hearing Date: February 7, 2020

• Decision Date: February 26, 2020

• Core Allegation: The petitioner alleged that the HOA violated community documents, specifically Sections 12(c) and 12(h)(1) of the CC&Rs.

II. Central Dispute and Timeline of Events

The central issue was whether the HOA was responsible for the cost of repairing a malfunctioning sewage backflow flap on the petitioner’s property.

• March 2017: The HOA adopts a “Sewer Maintenance Policy” to outline processes for sewage maintenance.

• February 13, 2019: The HOA Board rescinds the Sewer Maintenance Policy.

• March 3, 2019: Petitioner Jennie Bennett experiences a sewage overflow at her residence due to a malfunctioning backflow valve.

• March – May 2019: The petitioner brings her concerns to the HOA board at multiple meetings but receives no response.

• May 22, 2019: The HOA responds to the petitioner after receiving a letter from her attorney.

• July 10, 2019: The petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.

III. Petitioner’s Position and Arguments (Jennie Bennett)

The petitioner, a resident for 20 years, argued that the HOA was liable for the repair costs based on the following points:

• CC&R Violation: The refusal to pay for the repair constituted a violation of Sections 12(c) and 12(h)(1) of the CC&Rs, which pertain to the HOA’s duty to maintain sewer lines and common elements.

• Lack of Notice: The petitioner testified she was not notified of the policy rescission on February 13, 2019. The sewage overflow occurred just two weeks later, and upon reporting it, she was informed by a neighbor that the HOA had historically covered such issues.

• Procedural Failure: The HOA failed to address her concerns at the March, April, or May board meetings, only engaging after her attorney intervened.

• Community Support: The petitioner collected 97 signatures on a grassroots petition asking the HOA to cover the repair due to the short time frame between the policy rescission and the incident, and the lack of notice. The petition stated: “I am asking to be covered because of the 2 week time frame and no notice. I agree with being covered by the HOA for the flap.”

IV. Respondent’s Position and Arguments (Catalina Del Rey HOA)

The HOA, represented by community manager Vanessa Lubinsky of Cadden Community Management, presented a defense centered on the distinction between private and common property.

• Private Property Responsibility: The HOA’s primary argument was that the backflow flap was located on the petitioner’s private property and was therefore her responsibility to maintain under Section 15 of the CC&Rs, which governs utilities like plumbing within a homeowner’s lot.

• Evidence of Location: The respondent submitted a plat map and photographs as evidence. The photos illustrated that the backflow flap was located “next to Petitioner’s walk up to her front door,” well within her property lines and not on common elements.

• Plumbing vs. Sewer Issue: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue,” because of its location on private property.

• Rationale for Policy Change: The 2017 Sewer Maintenance Policy was rescinded after the HOA received “additional legal guidance” confirming that backflow flaps were within homeowners’ units and thus their responsibility under Section 15.

• Notice and Procedure: Ms. Lubinsky testified that notice of the rescission was issued to homeowners via both email and postal mail (postcards). She clarified that the rescission was a board decision that did not require a homeowner vote, as it was not an amendment to the CC&Rs.

V. Relevant Sections of the CC&Rs

The dispute hinged on the interpretation of the following sections of the Declaration of Covenants, Conditions, Restrictions and Easements.

Section

Quoted Text from the Decision

Section 12(c)

“The Association shall maintain and landscape all front and side years open to the street, and shall maintain sewer lines, sidewalks, walkways, brick trim, streets and common recreation areas. …The words “repair or maintain” shall not be construed that the Association shall repair or maintain any individual lot owner’s roof or similar structure.”

Section 12(h)(1)

“Each such lot will be subject to assessments and the owner thereof shall pay to the Associations assessments as follows: Such lots pro rata share of the actual cost to the Association of all repair, maintenance, safety and control of common elements, including but not limited to maintenance of walkways, sidewalks, streets and sewers, care of lawns and landscaping in common areas and front and side yards of residences… .”

Section 15

(Described, not quoted) This section provides that the homeowner is responsible for the maintenance of utilities such as electricity and plumbing on their private property, similar to a single-family residence.

VI. Administrative Law Judge’s Findings and Ruling

The ALJ’s decision was based on the petitioner’s failure to meet the required burden of proof.

• Burden of Proof: The petitioner was required to establish the HOA’s violation by a “preponderance of the evidence,” meaning proof that convinces the trier of fact the contention is more probably true than not.

• Factual Determination: The judge found that the evidence, specifically the photos and plat map, demonstrated conclusively that the backflow flap was on the petitioner’s private property near her front door.

• Conclusion on CC&Rs: Because the flap was determined not to be located within a common area, the petitioner failed to establish that it fell under the purview of Sections 12(c) or 12(h)(1). Therefore, she failed to prove the HOA had a responsibility to repair it under those sections.

• Effect of Policy Rescission: The judge acknowledged, “It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.” However, the ruling stated that once the policy was rescinded, the HOA “was not obligated to share the cost of repairs.”

• Final Order: “IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.” The order is binding on the parties, with any appeal required to be filed with the superior court within thirty-five days of service.

Study Guide: Bennett v. Catalina Del Rey Homeowners Association

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case text.

1. Who were the Petitioner and the Respondent in this case, and what was the legal case number?

2. What specific sections of the community documents did Petitioner Jennie Bennett allege the Respondent had violated?

3. Describe the incident that prompted the dispute and the date on which it occurred.

4. What was the “Sewer Maintenance Policy,” when was it adopted, and when was it rescinded?

5. According to the Respondent’s manager, Vanessa Lubinsky, why was the repair Jennie Bennett’s financial responsibility?

6. What evidence did the Respondent present to prove the location of the malfunctioning backflow flap?

7. What steps did Jennie Bennett take to rally support from her neighbors after the Respondent did not address her concerns?

8. What is the legal standard for the burden of proof in this case, and which party does it fall on?

9. According to Section 12(c) of the CC&Rs, what specific areas is the Homeowners Association responsible for maintaining?

10. What was the final ruling, or “Order,” issued by the Administrative Law Judge in this case?

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Answer Key

1. The Petitioner was Jennie Bennett, represented by attorney Maxwell Riddiough. The Respondent was the Catalina Del Rey Homeowners Association, represented by attorney Nathan Tennyson. The case number was 20F-H2019002-REL-RHG.

2. The Petitioner alleged that the Respondent violated Sections 12(c) and 12(h)(1) of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). This was noted as a single-issue petition.

3. On or about March 3, 2019, the Petitioner experienced a sewage overflow into her house. The overflow was caused by malfunctioning backflow valves.

4. The Sewer Maintenance Policy was a policy adopted in March 2017 to outline the process for sewage maintenance issues. It was rescinded by the HOA Board on February 13, 2019, shortly before the Petitioner’s incident.

5. Vanessa Lubinsky testified that the issue was the Petitioner’s responsibility because the malfunctioning backflow flap was located on her private property. Under Section 15 of the CC&Rs, homeowners are responsible for the maintenance of their own plumbing, electricity, and other utilities.

6. The Respondent presented a plat map, which specified all property lines, and photos. This evidence illustrated that the backflow flap was located inside the lines of the Petitioner’s private property, next to the walk-up to her front door, and not on common elements.

7. The Petitioner obtained 97 signatures on a “Grassroots petition.” The petition explained her situation and argued that she should be covered by the HOA for the repair due to the short time between the policy rescission and her incident, and because she had not received written notice.

8. The legal standard is “preponderance of the evidence,” which means the proof must convince the trier of fact that the contention is more probably true than not. The burden of proof fell on the Petitioner, Jennie Bennett, to establish that the Respondent committed the alleged violations.

9. Section 12(c) states the Association is responsible for maintaining and landscaping front and side yards open to the street. It also specifies the Association’s duty to maintain sewer lines, sidewalks, walkways, brick trim, streets, and common recreation areas.

10. The Administrative Law Judge ordered that Petitioner Jennie Bennett’s Petition be dismissed. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent had violated the CC&Rs.

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Essay Questions

Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a detailed essay response for each prompt, using specific evidence and arguments from the provided text to support your conclusions.

1. Analyze and contrast the core arguments presented by the Petitioner, Jennie Bennett, and the Respondent, Catalina Del Rey Homeowners Association. How did each party use the CC&Rs and the Sewer Maintenance Policy to support their position?

2. Discuss the significance of the Sewer Maintenance Policy’s rescission. Evaluate the timing of the rescission relative to the Petitioner’s incident and the arguments made regarding notification to homeowners.

3. Explain the legal concept of “preponderance of the evidence” as defined in the case document. How did Administrative Law Judge Antara Nath Rivera apply this standard to the evidence presented by both parties to reach a final decision?

4. Evaluate the role of physical evidence, specifically the plat map and photographs, in the outcome of this hearing. Why was determining the precise location of the backflow flap the central issue of the case?

5. From an ethical and community governance perspective, discuss the actions of the Catalina Del Rey Homeowners Association. Consider their decision to rescind the policy, the method of notification, and their initial responses (or lack thereof) to Ms. Bennett’s requests at the board meetings.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Antara Nath Rivera, who presides over hearings at the Office of Administrative Hearings and makes legal decisions and orders.

Burden of Proof

The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.

Common Elements

Areas within the HOA community that are not part of an individual homeowner’s private property and are maintained by the Association. Examples from the text include walkways, sidewalks, streets, sewers, and recreation areas.

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

The governing legal documents that outline the rules, obligations, and restrictions for a planned community. The Petitioner alleged a violation of Sections 12(c) and 12(h)(1) of these documents.

Homeowners Association (HOA)

The community organization, Catalina Del Rey Homeowners Association, responsible for managing and maintaining the common elements of a planned community as defined by the CC&Rs.

Petitioner

The party who initiates a legal action by filing a petition. In this case, the Petitioner was homeowner Jennie Bennett.

Plat Map

A map, drawn to scale, showing the divisions of a piece of land. In this case, it was used as evidence to specify all property lines, including the Petitioner’s.

Preponderance of the Evidence

The evidentiary standard required to win the case, defined as proof that convinces the trier of fact that a contention is “more probably true than not.” It is described as the “greater weight of the evidence.”

Rescission

The act of canceling or revoking a policy or decision. The HOA Board rescinded its Sewer Maintenance Policy on February 13, 2019.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Catalina Del Rey Homeowners Association.

A Homeowner’s Sewage Nightmare: 5 Surprising Lessons from a Losing Battle with an HOA

Introduction: The Dreaded HOA Letter

For many homeowners, the greatest fear isn’t a storm or a failing appliance; it’s a sudden, catastrophic repair bill. This anxiety is often magnified for those living in a planned community, where another layer of complexity—the Homeowners Association (HOA)—governs every aspect of property maintenance. A dispute with the HOA can turn a straightforward repair into a frustrating and expensive legal battle.

The case of Jennie Bennett, a resident in her home for 20 years, and the Catalina Del Rey Homeowners Association is a stark cautionary tale. After a sewage overflow caused by a malfunctioning backflow valve, Ms. Bennett found herself in a dispute with her HOA over who should pay for the repair, claiming the association had violated Sections 12(c) and 12(h)(1) of its governing documents. The resulting legal decision reveals critical, and often surprising, insights into how HOA rules are interpreted and enforced. This article breaks down the five most impactful lessons from her losing battle.

1. Location is Everything: The Critical Line Between Private and Common Property

The single most important factor in the judge’s decision was the physical location of the broken part. The entire case hinged on a simple question: was the malfunctioning backflow flap on Jennie Bennett’s private property or in an HOA-maintained common area?

The HOA argued that the plat map and photos proved the flap was located “next to Petitioner’s walk up to her front door,” placing it squarely inside her private property line. While the homeowner claimed the HOA was responsible for “sewer lines” under Sections 12(c) and 12(h)(1) of the Covenants, Conditions, and Restrictions (CC&Rs), this argument failed. The HOA’s manager, Vanessa Lubinsky, perfectly synthesized the association’s legal position when she “opined that the backflow flap was a plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”

Because the backflow flap was deemed to be on private property, it fell under Section 15 of the CC&Rs. This clause stipulated that the homeowner was responsible for the maintenance of their own plumbing, electricity, and other utilities—much like the owner of a single-family residence. The specific location of the failure, not the general nature of the system it belonged to, determined financial responsibility.

2. An HOA ‘Policy’ Can Vanish Overnight

For nearly two years, from March 2017 to February 2019, the Catalina Del Rey HOA had a “Sewer Maintenance Policy” in place. This policy, which had been in effect for nearly two years, outlined a process for handling sewage maintenance; however, once rescinded, the HOA was no longer obligated to share in repair costs. The Board of Directors rescinded this policy on February 13, 2019. The petitioner’s sewage overflow occurred on March 3, 2019—less than three weeks later.

Crucially, the HOA’s action was not arbitrary. According to case testimony, the board rescinded the policy because, “After Respondent received additional legal guidance, it was determined that the backflow flaps were located within the homeowners’ units and on private property.” This reveals a critical insight: the HOA made a calculated, legally-informed decision to shift liability back to homeowners to align with the CC&Rs.

This also highlights the significant difference between a formal, recorded CC&R and a simple board policy. As the HOA manager clarified, rescinding the policy did not require a homeowner vote because it was not an amendment to the core CC&Rs. A board can unilaterally change a policy, altering the financial obligations of every resident without a community-wide vote.

3. The High Cost of “Extremely Unfortunate” Timing

The timing of the sewage backup, occurring just after the policy change, was a devastating coincidence for the homeowner. The administrative law judge acknowledged this directly in the final decision, stating:

It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.

Compounding the issue was a dispute over communication. The petitioner claimed she “was not notified of the rescission.” In her efforts to be covered, she even gathered 97 signatures on a “Grassroots petition” from her neighbors. The petitioner claimed she received no substantive response from the board regarding her repair claim until her attorney sent a formal letter on May 22, 2019. The HOA countered this, stating that notice of the policy change had been sent to homeowners via both email and postcards.

This takeaway is impactful because it demonstrates how quickly a homeowner’s rights and financial obligations can change. A simple board decision, potentially missed in a stack of mail or an overlooked email, can result in thousands of dollars in unexpected costs.

4. The Burden of Proof Is on the Homeowner, Not the HOA

In any legal dispute, one side has the “burden of proof”—the responsibility to convince the judge that their claim is true. In this HOA case, that burden fell entirely on the petitioner, Jennie Bennett.

The legal standard required her to prove her case by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient to persuade a judge that a claim is more likely true than not. The legal decision provides a clear definition:

“[t]he greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ultimately, the judge concluded that the homeowner did not meet this standard. The final order states, “Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.” This underscores a critical point: when a homeowner challenges an HOA, it is their responsibility to build the winning case with convincing evidence.

Conclusion: Know Your Documents, Know Your Property Lines

The overarching lesson from Jennie Bennett’s experience is that in an HOA, the fine print matters immensely. The precise wording of the governing documents and, as this case proves, the exact location of property lines are paramount. A board policy you rely on today could be gone tomorrow, and a repair you assume is a community responsibility could be deemed yours based on a measurement of inches.

This case serves as a powerful reminder for all homeowners to be proactive. Read your CC&Rs, pay attention to all communications from your board, and understand the difference between binding covenants and changeable policies. It all comes down to one final, critical question: Do you know exactly where your maintenance responsibilities end and your HOA’s begin?

Case Participants

Petitioner Side

  • Jennie Bennett (petitioner)
    Testified at hearing
  • Maxwell Riddiough (petitioner attorney)

Respondent Side

  • Nathan Tennyson (respondent attorney)
    Brown|Olcott, PLLC
  • Vanessa Lubinsky (property manager)
    Cadden Community Management
    Testified on behalf of Respondent
  • Daniel (staff)
    Cadden
    Informed Petitioner about policy rescission

Neutral Parties

  • Antara Nath Rivera (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • JC Niles (witness)
    Mentioned in Petitioner's Grassroots petition

Robert L Greco v. Bellasera Community Association, Inc.

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Case Summary

Case ID 20F-H2019018-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-29
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert L Greco Counsel —
Respondent Bellasera Community Association, Inc. Counsel Nathan Tennyson

Alleged Violations

A.R.S. § 33-1803(B)

Outcome Summary

The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.

Why this result: Petitioner failed to meet the burden of proving Respondent violated A.R.S. § 33-1803(B), as the evidence showed Petitioner received sufficient constructive notice of the alleged violation and had an opportunity to be heard or appeal.

Key Issues & Findings

Whether the HOA violated statutory requirements regarding notice and imposition of monetary penalties/late fees, resulting in suspension of privileges.

Petitioner alleged the HOA violated A.R.S. § 33-1803(B) by imposing fines and suspending gate/clubhouse access without providing adequate (actual) notice of the violation and hearing opportunity, and by improperly imposing late fees. The ALJ found the HOA provided constructive notice, satisfying the statute, and was entitled to impose cumulative fines for the ongoing violation.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1803(B)
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • BLACK'S LAW DICTIONARY 1220
  • BLACK'S LAW DICTIONARY 1090

Analytics Highlights

Topics: HOA fines, Constructive notice, Statutory violation, Access suspension, Maintenance violation
Additional Citations:

  • A.R.S. § 33-1803(B)
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

20F-H2019018-REL Decision – 766844.pdf

Uploaded 2026-01-23T17:30:37 (133.7 KB)

Briefing Document: Greco v. Bellasera Community Association, Inc.

Executive Summary

This document synthesizes the findings and decision in the case of Robert L. Greco (Petitioner) versus the Bellasera Community Association, Inc. (Respondent), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge dismissed the petition, ruling in favor of the Homeowners Association (HOA).

The core dispute originated from a 2013 violation notice regarding a faded garage door. The Petitioner claimed he did not receive the initial notices and only became aware of the issue upon receiving a letter from the HOA’s attorney. Despite subsequently painting the door, an outstanding balance of $750 in fines remained on his account. For six years, the Petitioner paid his quarterly dues but ignored the outstanding fine balance. In June 2019, after failed settlement negotiations, the HOA deactivated the Petitioner’s security gate fob and clubhouse access, prompting him to file the formal dispute.

The judge’s decision rested on two key legal conclusions. First, the court rejected the Petitioner’s argument that “actual notice” was required for the fines to be valid. It ruled that the multiple notices mailed to the Petitioner’s residence constituted sufficient “constructive notice” under Arizona law, providing both notification of the violation and an opportunity to be heard. Second, the court determined that the $750 charge was not an improper late fee but rather three separate, legitimate fines of $250 each, levied for an ongoing, uncorrected violation as per the HOA’s enforcement policy.

Case Overview

Case Name

Robert L Greco, Petitioner, vs. Bellasera Community Association, Inc., Respondent

Case Number

20F-H2019018-REL

Jurisdiction

Arizona Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

January 9, 2020

Decision Date

January 29, 2020

Petitioner’s Core Allegation

Respondent violated A.R.S. § 33-1803(B) by imposing penalties and revoking privileges without providing proper notice and an opportunity to be heard.

Core Factual Issue

The denial of automatic gate and clubhouse access to the Petitioner on July 1, 2019, due to unpaid fines from 2013.

Chronology of the Dispute

The conflict between Mr. Greco and the Bellasera Community Association unfolded over six years, escalating from a minor maintenance issue to a formal legal dispute and revocation of privileges.

Initial Violation and Fines (2013)

Details

Feb. 5, 2013

Courtesy Notice

Respondent sent a notice to Petitioner’s address stating his garage door was faded and needed to be repainted, in violation of the Design Guidelines.

Mar. 14, 2013

Final Notice & First Fine

A follow-up notice was sent, stating a $250 fine was posted to Petitioner’s account. It warned that an additional $250 fine would be assessed automatically every 14 days if the violation remained uncorrected.

Apr. 2, 2013

Notice of Remedy & Second Fine

A third notice was sent, posting another $250 fine. This letter explicitly warned that the HOA had the “ability to suspend privileges for use of the Recreational Facilities” and informed the Petitioner of his right to appeal within 14 days.

May 7, 2013

Fourth Notice & Third Fine

A fourth notice was sent, posting another $250 fine to the account. It again noted the right to appeal the fine.

Jun. 5, 2013

Letter from HOA Counsel

Attorney Kelly Oetinger sent a letter demanding the garage door be repainted within 15 days. The letter explicitly stated, “If you do not repaint… the Association may disable the transponder you use to enter the community and may disable the fobs you use for the clubhouse.”

Petitioner’s Response and Aftermath (2013)

• July 4, 2013: Petitioner repainted the garage door.

• July 5, 2013: Petitioner sent a letter to the HOA stating the attorney’s letter was his “initial alert of the garage door condition.” He explained his delay by stating, “To effectively manage my workload, I dispose of unsolicited mail… In the future, I will exercise greater caution in disposing of unsolicited mail.”

• July 5, 2013: The HOA sent a letter acknowledging the repainting and offered to settle the $900 in fines for a payment of $500. The letter reiterated the threat to deactivate gate openers and fobs.

• July 17, 2013: The HOA sent a follow-up letter correcting an internal accounting error. The total fines were $750, not $900. A new settlement offer was made: pay $375, and the remaining $375 would be waived.

Period of Inaction (2013 – 2019)

From 2013 to 2019, the Petitioner received quarterly statements from the HOA indicating a $750 balance in addition to current assessments. Each quarter, the Petitioner would physically cross out the $750 balance and pay only the current assessment amount.

Escalation and Revocation of Privileges (2019)

• June 2019: Dennis Carson, a friend of the Petitioner serving on the HOA Board of Directors, informed him that his name was on a penalty list and the Board planned to deactivate his security gate and clubhouse access.

• June 2019: Settlement negotiations failed. The Petitioner offered $100; the Board countered with $250. The Petitioner then offered $251 ($250 for the fine and $1 to rent the clubhouse), which the Board declined.

• July 1, 2019: The Respondent deactivated the Petitioner’s security gate fob and access to the clubhouse.

• October 11, 2019: The Petitioner filed the Homeowners Association Dispute Process Petition, initiating the legal proceedings.

Key Arguments and Legal Findings

The Administrative Law Judge’s decision centered on the interpretation of “notice” as required by state law and the legitimacy of the fines imposed by the HOA.

Petitioner’s Position

1. Lack of Proper Notice: The Petitioner argued that he had not received “actual notice” of the violation or the impending fines until the letter from the HOA’s counsel on June 5, 2013. He asserted that because he acted promptly after receiving that letter, the fines were unjust. His argument implied that warnings in mail he did not personally read could not be held against him.

2. Improper Fines: The Petitioner alleged that the additional $500 in charges on the original $250 fine constituted improper late fees.

Administrative Law Judge’s Conclusions of Law

The Judge systematically refuted the Petitioner’s arguments, concluding that the HOA acted within its rights and in accordance with the law.

1. On the Matter of Notice:

• The governing statute, A.R.S. § 33-1803(B), requires “notice and an opportunity to be heard” before imposing penalties.

• The Judge found no legal authority requiring this to be “actual notice.” To accept this argument would create an unworkable standard where a homeowner could “avoid receiving ‘actual notice’ by simply refusing to sign for a certified mailing.”

• The decision established that the Petitioner received constructive notice through the “multiple mailings that were presumably delivered to his residential address.”

• The notices also informed the Petitioner how to appeal the matter, thereby satisfying the requirement for an “opportunity to be heard.”

• Conclusion: “Accordingly, Petitioner was provided notice and an opportunity to be heard in accordance with A.R.S. § 33-1803(B).”

2. On the Matter of Fines:

• The Judge differentiated between late fees and fines for an ongoing violation.

• The notices sent by the Respondent “clearly stated that an ongoing failure to remedy the violation would result in additional fines every 14 days.”

• The violation persisted from before March 14, 2013 (first fine) until July 5, 2013 (when the door was confirmed painted).

• Conclusion: The Respondent was entitled to impose three separate fines for the “ongoing condition of the garage door,” making the total of $750 legitimate.

Final Order and Implications

Based on the analysis of the evidence and law, the Administrative Law Judge reached a definitive conclusion.

• Final Ruling: “This Tribunal concludes that Respondent did not violate the provisions of A.R.S. § 33-1803(B).”

• Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”

• Binding Nature: The order, dated January 29, 2020, is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Greco v. Bellasera Community Association, Inc.

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case of Robert L. Greco (Petitioner) versus Bellasera Community Association, Inc. (Respondent), Case No. 20F-H2019018-REL. It includes a short-answer quiz to test your knowledge, an answer key for review, a set of essay questions for deeper analysis, and a glossary of key terms.

Short-Answer Quiz

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

1. Who were the Petitioner and Respondent in this case, and what was the Petitioner’s central complaint that initiated the legal action?

2. What specific violation of the community’s rules was the Petitioner initially accused of, and which governing documents were cited as being violated?

3. Describe the timeline of notices and fines issued by the Respondent between February and May 2013.

4. What was the Petitioner’s explanation for not responding to the initial violation notices from the Respondent before receiving a letter from the association’s attorney?

5. What actions did the Respondent take in or around June 2019 that led the Petitioner to file his petition with the Arizona Department of Real Estate?

6. What was the Petitioner’s primary legal argument regarding the “notice” required by the Arizona statute A.R.S. § 33-1803(B)?

7. How did the Administrative Law Judge differentiate between “actual notice” and “constructive notice” in her decision?

8. Why did the judge ultimately conclude that the Respondent had provided the Petitioner with adequate “notice and an opportunity to be heard”?

9. Explain the Petitioner’s allegation about improper late fees and the reason the judge rejected this argument.

10. What was the final order of the Administrative Law Judge in this case, and what recourse was available to the parties?

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Answer Key

1. The Petitioner was homeowner Robert L. Greco, and the Respondent was the Bellasera Community Association, Inc. (the HOA). Greco’s central complaint, filed on October 11, 2019, was that the HOA had denied him automatic gate access and use of clubhouse facilities on July 1, 2019, despite his being a long-term resident with timely payment of all quarterly dues.

2. The Petitioner was accused of having a faded garage door that needed to be repainted. The violation was cited as being contrary to the CC&Rs (Covenants, Conditions and Restrictions), specifically Article V, Section 5.2, and the community’s Design Guidelines, specifically Article III, Section J.

3. The Respondent sent an initial “Courtesy Notice” on February 5, 2013. This was followed by a “Final Notice” with a $250 fine on March 14, a “Notice of Remedy” with another $250 fine on April 2, and a “Fourth Notice of Non-Compliance” with another $250 fine on May 7, 2013.

4. The Petitioner claimed that the attorney’s letter, received around June 5, 2013, was his “initial alert” regarding the garage door condition. He stated that he routinely disposes of unsolicited mail without reading it and had inadvertently discarded the previous notices sent by the Respondent.

5. In June 2019, after failed settlement negotiations over the outstanding $750 in fines from 2013, the Respondent deactivated the Petitioner’s security gate fob and his access to the clubhouse. This action prompted the Petitioner to file his dispute petition.

6. The Petitioner’s primary argument was that he did not receive “actual notice” of the violation until the attorney’s letter. He contended that because he acted promptly to correct the violation after receiving actual notice, he should not have been fined.

7. The judge used definitions from Black’s Law Dictionary. “Actual notice” was defined as notice given directly to, or personally received by, a party. “Constructive notice” was defined as notice arising by presumption of law from facts and circumstances that a party had a duty to take notice of.

8. The judge concluded that the multiple notices mailed to the Petitioner’s residential address constituted “constructive notice” of the violation. Because the relevant statute, A.R.S. § 33-1803(B), does not explicitly require “actual notice,” and the mailings also advised him of his right to appeal, the judge found the Respondent had fulfilled its obligation to provide notice and an opportunity to be heard.

9. The Petitioner alleged that the additional $500 in fines were improper late fees on the original $250 fine. The judge rejected this, clarifying that the Respondent’s notices stated that additional fines would be assessed every 14 days for an ongoing failure to remedy the violation. Therefore, the additional charges were three separate fines for the “ongoing condition of the garage door,” not late fees.

10. The final order was that the Petitioner’s petition be dismissed. The parties were notified that this order was binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.

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Essay Questions

The following questions are designed for deeper analysis and discussion. No answers are provided.

1. Analyze the Administrative Law Judge’s reasoning for favoring “constructive notice” over “actual notice” in the context of A.R.S. § 33-1803(B). Discuss the potential consequences for homeowners and HOAs if the ruling had required “actual notice.”

2. Trace the negotiation attempts between the Petitioner and the Respondent in 2013 and 2019. Evaluate the effectiveness of these attempts and discuss whether the dispute could have been resolved without formal legal proceedings.

3. The Petitioner argued that the fines imposed after the initial $250 were improper late fees. The judge, however, characterized them as new fines for an “ongoing condition.” Based on the evidence presented in the notices, construct an argument supporting both the Petitioner’s and the judge’s interpretation.

4. Discuss the concept of “burden of proof” in this case. Explain what “preponderance of the evidence” means and identify the key pieces of evidence that allowed the judge to conclude the Respondent did not violate the statute.

5. Examine the roles of the various community governing documents cited in this case (CC&Rs, Design Guidelines, Violation Enforcement policy). Explain how these documents worked together to grant the Respondent the authority to take action against the Petitioner.

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Glossary of Key Terms

Definition

A.R.S. § 33-1803(B)

The Arizona Revised Statute central to this case, which permits an HOA board to impose reasonable monetary penalties for violations after providing “notice and an opportunity to be heard.”

Actual Notice

As defined in the decision, it is “[n]otice given directly to, or received personally by, a party.”

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues a decision. In this case, it was Tammy L. Eigenheer.

Bellasera Community Association, Inc.

The Respondent in the case; the homeowners association (HOA) for the Bellasera Community in Arizona.

An acronym for Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents for the community, which the Petitioner was found to have violated (specifically Article V, Section 5.2).

Constructive Notice

As defined in the decision, it is “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.” The judge ruled that mail sent to a residence constitutes this form of notice.

Design Guidelines

A set of rules established by the HOA governing the aesthetic appearance of properties. The Petitioner was found in violation of Article III, Section J of these guidelines.

Petitioner

The party who initiates a legal action or petition seeking a ruling. In this case, it was the homeowner, Robert L. Greco.

Preponderance of the evidence

The standard of proof required in this hearing. It is defined as “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.”

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, it was the HOA.

He Threw Away His Mail for Years. His HOA’s Response Is a Warning to Every Homeowner.

That official-looking envelope from your Homeowners Association sits on the counter, a silent challenge. It’s easy to dismiss it as a newsletter or a bland reminder, just another piece of paper to be sorted later. But what if it isn’t? What if that envelope is a legal summons in disguise, the first shot in a battle you don’t even know you’re fighting?

For Robert L. Greco, a resident in his community for 17 years, this hypothetical became a harsh reality. He learned that ignoring HOA correspondence can ignite a conflict that smolders for years before erupting into severe consequences. Originating from a maintenance issue as simple as a faded garage door, his case offers a masterclass in the powerful lessons every homeowner should heed.

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1. The “I Didn’t Read It” Defense Doesn’t Work

The central pillar of the homeowner’s defense was disarmingly simple: he claimed he never received the first four violation notices because he habitually throws away what he considers “unsolicited mail.” He argued that without having read the warnings, he couldn’t be held responsible for the fines.

The judge’s ruling, however, invoked a foundational legal concept that extends far beyond HOA disputes into areas like property deeds and public records: the difference between “actual notice” and “constructive notice.” While actual notice means you personally saw the information, constructive notice presumes you have knowledge of something because it was delivered properly—in this case, mailed to the correct address. Whether you open the envelope is irrelevant.

In a July 5, 2013 letter, the homeowner unwittingly sealed his own fate by describing his mail-handling routine:

Routinely, Saturdays are my mail-pick-up days, and invariably, I walk straight to the re-cyclable container, and deposit the mail in the receptacle… I was astonished to learn that my garage door failed inspection. This is my initial alert of the garage door condition.

For homeowners, the takeaway is a stark one: in the eyes of the law, your recycling bin is not a valid legal defense. The burden doesn’t fall on an HOA to ensure you read your mail, only to send it. The responsibility to open and review all official correspondence rests squarely on the homeowner.

2. A Tiny Issue Can Snowball into a Years-Long Standoff

The timeline of this dispute reveals a classic case of conflict avoidance, where a minor, fixable problem was allowed to spiral into a major legal battle. The cost of a can of paint and a Saturday afternoon of work was ultimately dwarfed by a six-year, $750 dispute that cost the homeowner his access to his own community.

• February 5, 2013: The HOA sends its first “Courtesy Notice” regarding a faded garage door in need of repainting.

• March – May 2013: After no response, the HOA issues three more notices, levying escalating fines that total $750.

• 2013 to 2019: For six years, the homeowner receives quarterly statements showing the $750 balance. Each time, he would “cross out the $750.00 balance and pay the current assessment.”

• June/July 2019: The HOA finally forces the issue by deactivating his security gate fob and his access to the clubhouse.

This progression shows how a simple lack of communication transformed a weekend chore into a years-long standoff. By ignoring the notices and the subsequent fines, the homeowner allowed a molehill to grow into a mountain of conflict.

3. “Continuing Violation” Fines Are Not Late Fees

The homeowner contended that the HOA was improperly stacking late fees on top of an initial $250 penalty. However, the administrative law judge highlighted a critical distinction embedded in the association’s rules.

The HOA wasn’t charging late fees on a single, past-due penalty. It was levying new fines for a “continuing violation.” The notice sent on March 14, 2013, explicitly warned that “an additional fine of $250 will be assessed automatically every 14 days… if the violation remains uncorrected.”

This is a crucial detail found in many HOA bylaws. An unpainted garage door is not a one-time offense; it is an ongoing breach of community standards. A homeowner who thinks they are simply letting a single fine sit unpaid may actually be incurring entirely new violations over time, dramatically increasing their financial liability.

4. Failed Negotiations Can Cost More Than Money

Twice, this dispute could have been resolved. The breakdown in negotiations, however, reveals how ego and principle can prove more costly than the fines themselves.

The first attempt came in 2013, after the homeowner had finally painted the garage. The HOA initially offered to settle a supposed $900 balance for $500. This, however, was based on an “internal accounting error.” In a subsequent letter, the HOA apologized, corrected the record to show the true balance was $750, and made a formal offer: pay half—just $375—and the matter would be closed. The offer was not accepted. Including this error shows the HOA was not infallible, making the subsequent stalemate more complex.

The second negotiation occurred in 2019, prompted by a friend on the Board who urged a settlement. The homeowner offered $100. The Board countered with $250. The homeowner’s final offer was exquisitely specific: “$251.00, $250.00 to settle the outstanding fines and $1.00 to rent the clubhouse on a specific date.”

This offer was a tactical and psychological blunder. That extra dollar wasn’t about money; it was a message. Whether intended as a sarcastic jab or a principled stand to assert his rights as a member, it transformed a financial negotiation into a battle of wills. For a Board of Directors, accepting such an offer could be seen as capitulating to a petty gesture, setting a precedent that defiance works. They declined. Shortly after, the homeowner’s access to community facilities was cut off, leading to the legal petition he ultimately lost.

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Conclusion: A Lesson in Communication

This case serves as a powerful warning. The legal force of “constructive notice” makes you responsible for the mail you receive, not just the mail you read. The six-year standoff over a can of paint shows how inaction can have disproportionate consequences. And the failed $251 offer demonstrates that good-faith negotiation is paramount.

Ultimately, the homeowner was left still owing the money and locked out of his own amenities—a casualty of a battle he prolonged at every turn. It leaves every homeowner with a critical question to consider: in a dispute with your HOA, where is the line between standing on principle and causing yourself unnecessary harm?

Case Participants

Petitioner Side

  • Robert L Greco (petitioner)

Respondent Side

  • Nathan Tennyson (attorney)
    Brown|Olcott, PLLC
  • David Reid (board member)
    Testified for Respondent
  • Annette McCarthy (manager)
    Acting Manager; Testified for Respondent
  • Kelly Oetinger (attorney)
    Counsel for Respondent in 2013
  • Dennis Carson (board member)

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
  • Judy Lowe (Commissioner)
    ADRE

Sean McCoy v. Barclay Place Homeowners Association

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

Case Summary

Case ID 19F-H1919062-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-08-27
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner prevailed on the claim regarding the failure to provide financial compilations (ISS-002) and was awarded a filing fee refund. Respondent prevailed on claims regarding meeting recordings (ISS-001) and communication restrictions (ISS-003). A rehearing on ISS-003 affirmed the decision in favor of the Respondent.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sean McCoy Counsel —
Respondent Barclay Place Homeowners Association Counsel Nathan Tennyson

Alleged Violations

A.R.S. § 33-1804(A)
A.R.S. § 33-1810
A.R.S. § 33-1805(A)

Outcome Summary

Petitioner prevailed on the claim regarding the failure to provide financial compilations (ISS-002) and was awarded a filing fee refund. Respondent prevailed on claims regarding meeting recordings (ISS-001) and communication restrictions (ISS-003). A rehearing on ISS-003 affirmed the decision in favor of the Respondent.

Why this result: Petitioner failed to prove violations regarding meeting recordings (as the Board provided recordings) and communication restrictions (as the Board may manage communication channels for onerous requests).

Key Issues & Findings

Failure to allow videotaping

Petitioner alleged the HOA violated statute by prohibiting members from recording meetings. The ALJ found that because the Board recorded the meetings and made them available, prohibiting members from recording did not violate the statute.

Orders: Respondent deemed prevailing party on this item.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Failure to provide compiled financial statements

The HOA failed to complete and provide the 2017 financial compilation within the statutory timeframe (180 days after fiscal year end). Documents were not sent to the accountant until one month prior to the hearing.

Orders: Respondent ordered to pay Petitioner $500.00 (filing fee refund) within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Denial of reasonable access and communication

Petitioner alleged that requiring him to communicate solely through the HOA's attorney violated his rights. The ALJ found this was standard practice when requests become onerous and did not constitute a violation.

Orders: Respondent deemed prevailing party on this item.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

19F-H1919062-REL-RHG Decision – 761767.pdf

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19F-H1919062-REL-RHG Decision – ../19F-H1919062-REL/733895.pdf

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Case Summary: McCoy v. Barclay Place Homeowners Association Case No. 19F-H1919062-REL-RHG

Procedural Context This summary covers an administrative dispute before the Arizona Department of Real Estate involving a rehearing. It is critical to distinguish between the Original Decision (August 27, 2019) and the Rehearing Decision (January 2, 2020),. The rehearing was granted exclusively to reconsider "Complaint Item Three," while the findings on the first two complaints remained adjudicated under the original decision.

I. Original Decision (August 2019)

In the initial proceeding, Petitioner Sean McCoy alleged three violations by the Respondent, Barclay Place HOA.

  • Complaint Item One (Videotaping): Petitioner alleged the HOA violated A.R.S. § 33-1804(A) by prohibiting him from recording meetings.
  • Finding: The Administrative Law Judge (ALJ) ruled for the Respondent. The Board recorded meetings itself and made them available to members; therefore, restricting members from recording did not violate the statute,.
  • Complaint Item Two (Financials): Petitioner alleged the HOA failed to provide compiled financial statements for 2017.
  • Finding: The ALJ ruled for the Petitioner. The HOA failed to complete the compilation within 180 days of the fiscal year-end, violating A.R.S. § 33-1810,. The HOA was ordered to pay the Petitioner $500.00.
  • Complaint Item Three (Communication Restrictions): Petitioner argued that the HOA violated A.R.S. § 33-1805(A) by requiring him to communicate solely through the Board’s attorney rather than contacting the Board or management directly.
  • Finding: The ALJ initially ruled for the Respondent, determining such restrictions are standard industry practice when a homeowner’s requests become onerous,.
II. Rehearing Proceedings (December 2019)

The Department granted a rehearing specifically for Complaint Item Three regarding the denial of reasonable access and communication,.

Key Facts and Arguments

  • The Restriction: In January 2019, the HOA's attorney issued a "cease and desist" letter to the Petitioner. It instructed him to direct all communications to the law firm via U.S. Mail and explicitly prohibited direct contact with the Board or management company.
  • The Incident: On March 6, 2019, Petitioner emailed the management company directly to request contracts, citing A.R.S. § 33-1805(A). The management company refused to accept the email, citing the legal directive to communicate only through counsel.
  • Petitioner’s Argument: Petitioner argued that a letter sent by his own attorney to the HOA's counsel rescinded or terminated the "cease and desist" letter, restoring his right to direct communication.

Legal Analysis and Decision The ALJ ruled in favor of the Respondent, maintaining the original outcome for Item Three based on the following legal points:

  1. Privileged Information: An earlier request by Petitioner (Jan 14, 2019) sought information regarding Board authorizations. The ALJ found this sought privileged attorney-client communications, which the attorney was not required to provide.
  2. Validity of Communication Restrictions: Regarding the March 6, 2019 request, the ALJ found that the Petitioner failed to provide any legal authority to support his assertion that his attorney's objection unilaterally terminated the HOA's cease and desist letter.
  3. No Statutory Violation: Because the management company was acting under valid legal instructions to route communication through counsel, their failure to respond to Petitioner’s direct email did not violate A.R.S. § 33-1805.
Final Outcome
  • Complaint Item Two: Petitioner prevailed (Original Decision).

Case Participants

Petitioner Side

  • Sean McCoy (petitioner)
    appeared on his own behalf at hearing
  • James A. Whitehill (attorney)
    Sent correspondence on behalf of Petitioner

Respondent Side

  • Nathan Tennyson (HOA attorney)
    Brown/Olcott, PLLC
    Represented Respondent at hearing
  • Frank Puma (witness)
    Arizona Community Management Services, LLC (AZCMS)
    Vice President of Client Operations
  • Jamie Murad (witness)
    Arizona Community Management Services, LLC (AZCMS)
    Community Manager
  • Dana Young Jungclaus (witness)
  • Jonathan Olcott (HOA attorney)
    Brown/Olcott
    Authored cease and desist letters

Neutral Parties

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

Rogelio A. Garcia vs. Villagio at Tempe Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918009-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-03-04
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rogelio A. Garcia Counsel —
Respondent Villagio at Tempe Homeowners Association Counsel Nathan Tennyson

Alleged Violations

ARIZ. REV. STAT. § 33-1242

Outcome Summary

The Administrative Law Judge dismissed the petition for rehearing, finding that the Petitioner failed to prove that the Respondent HOA violated A.R.S. § 33-1242. The HOA was not required to provide the statutory details or the notice of the right to petition ADRE because the Petitioner failed to submit a written response by certified mail within 21 days of the violation notices.

Why this result: The Petitioner failed to meet the burden of proof to show the HOA violated A.R.S. § 33-1242. The HOA was not required to provide the information listed in A.R.S. § 33-1242 (C) or the notice of right to petition in (D) because the Petitioner did not submit a written response by certified mail within twenty-one days, which is the triggering requirement for those obligations.

Key Issues & Findings

Alleged violation of statutory requirements for homeowner association violation notices.

Petitioner alleged Respondent violated A.R.S. § 33-1242 requirements regarding violation notices. The ALJ found that Petitioner failed to establish the violation because he did not respond by certified mail within the 21-day statutory period, meaning the HOA was not triggered to fulfill its obligations under § 33-1242(C) and (D).

Orders: Petitioner's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. ADMIN. CODE § R2-19-119

Analytics Highlights

Topics: HOA Notice Violation, A.R.S. 33-1242, Statutory Construction, Homeowner Petition Dismissed
Additional Citations:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. ADMIN. CODE § R2-19-119
  • Home Builders Association of Central Arizona v. City of Scottsdale, 187 Ariz. 479, 483, 930 P.2d 993, 997(1997)
  • Canon School Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994)

Video Overview

Audio Overview

Decision Documents

19F-H1918009-REL Decision – 692638.pdf

Uploaded 2026-04-25T09:58:56 (89.4 KB)

19F-H1918009-REL Decision – 671673.pdf

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19F-H1918009-REL Decision – 692638.pdf

Uploaded 2026-04-24T11:15:40 (89.4 KB)

19F-H1918009-REL Decision – 671673.pdf

Uploaded 2026-04-24T11:15:44 (85.4 KB)

Briefing Document: Garcia v. Villagio at Tempe Homeowners Association

Executive Summary

This document synthesizes two Administrative Law Judge Decisions concerning a dispute between homeowner Rogelio A. Garcia (Petitioner) and the Villagio at Tempe Homeowners Association (Respondent). The core of the case is Mr. Garcia’s allegation that the HOA violated Arizona Revised Statute (A.R.S.) § 33-1242 by failing to follow specific procedures after issuing notices for a violation of its short-term rental policy.

The Administrative Law Judge ultimately dismissed Mr. Garcia’s petition in both an initial hearing and a subsequent rehearing. The central finding was that Mr. Garcia failed to meet a critical prerequisite outlined in the statute: he did not respond to the violation notices by certified mail within the 21-day period. This failure meant that the HOA’s corresponding statutory obligations—such as providing the name of the person who observed the violation—were never triggered.

Furthermore, the judge determined that the HOA was not required to inform Mr. Garcia of his right to an administrative hearing because the violation notices themselves included instructions on the HOA’s internal process for contesting the matter. Mr. Garcia’s argument that the HOA’s rapid issuance of fines and subsequent notices prevented him from responding was found to be unsubstantiated by evidence. The decisions underscore a strict interpretation of the statute, placing the initial burden of response on the unit owner.

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I. Case Overview

This matter was adjudicated by the Arizona Office of Administrative Hearings after a petition was filed with the Arizona Department of Real Estate. The case involved an initial hearing and a rehearing requested by the Petitioner.

Entity / Individual

Petitioner

Rogelio A. Garcia

Respondent

Villagio at Tempe Homeowners Association (“Villagio”)

Respondent’s Counsel

Nathan Tennyson, Esq.

Adjudicating Body

Office of Administrative Hearings

Administrative Law Judge

Velva Moses-Thompson

Case Number (Initial)

19F-H1918009-REL

Case Number (Rehearing)

19F-H1918009-REL-RHG

Core Allegation

Violation of A.R.S. § 33-1242 by the Respondent.

II. Chronology of Events

• March 8, 2018: Villagio mails the first letter to Mr. Garcia, alleging a violation of short-term lease provisions in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The letter instructs him to file an appeal with the Board of Directors within 10 days of receipt.

• March 22, 2018: Villagio mails a second notice for the same violation, informing Mr. Garcia that a $1,000 fine has been posted to his account. This notice also contains instructions for contesting the violation.

• April 5, 2018: Villagio mails a third notice, informing Mr. Garcia that a $2,000 fine has been posted to his account for the continuing violation.

• Response from Garcia: Mr. Garcia did not respond to any of the three notices within the 21-calendar-day period specified by statute. He did, at some point, file an appeal directly with Villagio, which held a hearing but did not change its position.

• August 17, 2018 (approx.): Mr. Garcia files a petition with the Arizona Department of Real Estate, formally initiating the administrative hearing process.

• October 30, 2018: The first evidentiary hearing is held before Administrative Law Judge Velva Moses-Thompson.

• November 19, 2018: The initial Administrative Law Judge Decision is issued, dismissing Mr. Garcia’s petition.

• January 3, 2019 (approx.): The Arizona Department of Real Estate issues an order setting a rehearing for the matter, following a request from Mr. Garcia.

• February 12, 2019: The rehearing is held. Mr. Garcia testifies on his own behalf, and Villagio presents testimony from Community Manager Tom Gordon.

• March 4, 2019: The final Administrative Law Judge Decision is issued, again dismissing Mr. Garcia’s petition.

III. Central Legal Issue: Interpretation of A.R.S. § 33-1242

The entire dispute centered on the procedural requirements laid out in A.R.S. § 33-1242, which governs how an HOA must handle notices of violation to a unit owner. The key provisions are:

• Unit Owner’s Responsibility (Subsection B): A unit owner who receives a written notice of violation may provide the association with a written response. This response must be sent by certified mail within twenty-one calendar days after the date of the notice.

• Association’s Obligations upon Response (Subsection C): Within ten business days after receiving the certified mail response, the association must provide a written explanation that includes:

1. The specific provision of the condominium documents allegedly violated.

2. The date the violation occurred or was observed.

3. The first and last name of the person(s) who observed the violation.

4. The process the unit owner must follow to contest the notice.

• Association’s Obligation Regarding Administrative Hearings (Subsection D): An association must provide written notice of the owner’s option to petition for an administrative hearing with the state real estate department unless the information required in Subsection C, paragraph 4 (the contest process) is provided in the initial notice of violation.

IV. Analysis of Arguments and Evidence

Petitioner’s Position (Rogelio A. Garcia)

Mr. Garcia’s arguments, presented across both hearings, focused on three primary claims of statutory violation by Villagio:

1. Failure to Provide Required Information: Villagio violated the statute by not providing him with the first and last name of the person who observed the violation.

2. Failure to Notify of Hearing Rights: Villagio did not inform him of his right to petition for an administrative hearing with the state real estate department.

3. Prevention of Response: Mr. Garcia contended that Villagio effectively prevented him from responding via certified mail within the 21-day statutory period. He argued that the notices’ demand for compliance within 10 days, combined with the issuance of a second notice and a fine just 14 days after the first, led him to believe he only had 10 days to act before incurring another violation.

Respondent’s Position (Villagio at Tempe HOA)

Villagio presented a defense based on a direct reading of the statute and Mr. Garcia’s inaction:

1. Statutory Obligations Not Triggered: Villagio’s central argument was that its obligations under A.R.S. § 33-1242(C)—including the duty to name the observer—are only triggered after a unit owner submits a written response by certified mail within 21 days. Since Mr. Garcia never sent such a response, these obligations never came into effect.

2. Internal Contest Process Satisfied Statute: Per A.R.S. § 33-1242(D), the duty to notify an owner of their right to an administrative hearing only applies if the HOA fails to provide its own contest process. Villagio argued that because all three notices explicitly stated the process for appealing to the Board of Directors, it had fulfilled its statutory duty.

3. No Prevention of Response: Mr. Garcia was never legally or physically prevented from sending a certified letter. During cross-examination, he admitted he was not under any court order prohibiting him from responding.

4. Statute Inapplicability (Argument from Rehearing): Villagio further contended that A.R.S. § 33-1242 applies specifically to violations concerning the “condition of the property,” not the “use” of the property. Since short-term renting is a use, Villagio argued the statute did not apply to this situation at all.

Key Testimony from Rehearing

During the February 12, 2019 rehearing, Villagio’s Community Manager, Tom Gordon, testified.

• On direct examination, Mr. Gordon stated that Villagio does not restrict homeowners from responding to violation notices within the 21-day period.

• On cross-examination, when asked by Mr. Garcia if Villagio would have abided by “this statute” had he responded in 21 days, Mr. Gordon replied, “No.” He explained this by stating that homeowners are given 10 days to contest a notice with Villagio pursuant to its own short-term rental policy.

V. Administrative Law Judge’s Decisions and Rationale

The judge’s findings were consistent across both the initial decision and the rehearing decision, leading to the same conclusion in each instance.

Initial Decision (November 19, 2018)

• Finding of Fact: It was undisputed that Mr. Garcia did not respond to the March 8, March 22, or April 5, 2018 notices within 21 calendar days.

• Conclusion 1: Because Mr. Garcia did not respond within the 21-day period, Villagio was not required to provide him with the first and last name of the person(s) who observed the violation.

• Conclusion 2: Because Villagio notified Mr. Garcia of the process for contesting the notice, it was not required under A.R.S. § 33-1242(D) to provide him with notice of the right to petition for an administrative hearing.

• Outcome: Mr. Garcia failed to establish by a preponderance of the evidence that a violation occurred. The petition was dismissed.

Rehearing Decision (March 4, 2019)

The judge reaffirmed the initial findings and addressed Mr. Garcia’s argument that he was prevented from responding.

• Finding on “Prevention”: The judge found no evidence that Villagio informed Mr. Garcia he could not respond within 21 days or otherwise prevented him from doing so. The issuance of a second notice 14 days after the first was not deemed a preventative act that nullified Mr. Garcia’s statutory window to respond to the first notice.

• Statutory Construction: The decision invoked the legal principle that “what the Legislature means, it will say,” indicating a strict, literal interpretation of the statute’s requirements.

• Reaffirmed Conclusions: The judge again concluded that because Mr. Garcia failed to submit a written response by certified mail, Villagio’s obligations under A.R.S. § 33-1242(C) were not triggered, and its inclusion of an internal appeal process satisfied the requirements of A.R.S. § 33-1242(D).

• Outcome: Mr. Garcia’s petition was dismissed for a second time, with Villagio deemed the prevailing party.

VI. Final Disposition

The Administrative Law Judge ordered that Mr. Garcia’s petition be dismissed. The decision issued after the rehearing on March 4, 2019, is binding on the parties. Any party wishing to appeal the order must seek judicial review with the superior court within thirty-five days from the date the order was served.

Study Guide: Garcia v. Villagio at Tempe Homeowners Association

This guide is designed to review the key facts, legal arguments, and outcomes of the administrative case between Rogelio A. Garcia and the Villagio at Tempe Homeowners Association, as detailed in case number 19F-H1918009-REL.

Quiz: Short-Answer Questions

Instructions: Answer the following questions in two to three sentences, based on the provided source context.

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

2. What specific violation did the Villagio at Tempe Homeowners Association initially accuse Mr. Garcia of committing?

3. What was the core of Mr. Garcia’s legal complaint against the Homeowners Association?

4. According to the court’s findings, what crucial step did Mr. Garcia fail to take after receiving the violation notices?

5. What was Villagio’s main argument for why it was not obligated to provide Mr. Garcia with the name of the person who observed the violation?

6. Under what circumstance did Villagio argue it was not required to provide Mr. Garcia with notice of his right to petition for an administrative hearing?

7. What new fines were imposed on Mr. Garcia in the notices dated March 22, 2018, and April 5, 2018?

8. At the rehearing, what was Mr. Garcia’s explanation for why he was unable to respond to the notices within the statutory 21-day period?

9. What argument did Villagio introduce at the rehearing concerning the distinction between a property’s “condition” and its “use”?

10. What was the final outcome of both the initial hearing and the subsequent rehearing?

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Answer Key

1. The primary parties were Rogelio A. Garcia, the Petitioner who brought the complaint, and the Villagio at Tempe Homeowners Association, the Respondent defending against the complaint. The case was heard by Administrative Law Judge Velva Moses-Thompson.

2. Villagio accused Mr. Garcia of violating the short-term lease provisions located in the association’s Covenants, Conditions, and Restrictions (CC&Rs). The association alleged that Mr. Garcia’s unit was being rented in violation of its short-term rental policy.

3. Mr. Garcia alleged that Villagio violated ARIZ. REV. STAT. § 33-1242. He claimed Villagio failed to provide him the opportunity to respond by certified mail within 21 days, did not inform him of his right to an administrative hearing, and did not provide the name of the person who observed the violation.

4. The court found that Mr. Garcia did not respond to the violation notices sent on March 8, March 22, and April 5, 2018. Specifically, he failed to provide the association with a written response by sending it via certified mail within 21 calendar days after the date of the notices.

5. Villagio argued that its obligation to provide the observer’s name under A.R.S. § 33-1242(C) is only triggered if the unit owner first submits a written response by certified mail within the 21-day period. Because Mr. Garcia did not do so, Villagio was not required to provide that information.

6. Villagio argued it was not required to provide notice of the right to petition for a hearing because it had already fulfilled its legal obligation under A.R.S. § 33-1242(D). The violation notices it sent to Mr. Garcia contained instructions on the process for contesting the notice with the Board of Directors.

7. The notice dated March 22, 2018, informed Mr. Garcia that a fine of $1,000 had been posted to his account. The subsequent notice on April 5, 2018, stated that an additional $2,000 fine had been posted for the same violation.

8. Mr. Garcia contended that Villagio prevented him from responding because it did not wait 21 days before issuing subsequent notices and fines. He believed he only had 10 days to comply based on language in the notices, which created confusion and pressure.

9. At the rehearing, Villagio argued that A.R.S. § 33-1242 did not apply because the statute addresses violations related to the “condition of the property.” Villagio asserted its notices concerned the “use” of Mr. Garcia’s property (short-term renting), not its physical condition.

10. In both the initial hearing decision issued on November 19, 2018, and the rehearing decision issued on March 4, 2019, the Administrative Law Judge found that Mr. Garcia failed to prove Villagio had violated the statute. Consequently, Mr. Garcia’s petition was dismissed in both instances.

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Essay Questions

Instructions: The following questions are designed to provoke deeper analysis of the case. Formulate a comprehensive response to each, drawing evidence and reasoning exclusively from the case documents.

1. Analyze the legal reasoning used by Administrative Law Judge Velva Moses-Thompson to dismiss Mr. Garcia’s petition. How did the judge interpret and apply the specific subsections of ARIZ. REV. STAT. § 33-1242 to the facts presented in the initial hearing and the rehearing?

2. Trace the progression of arguments made by both Rogelio A. Garcia and Villagio from the initial petition through the rehearing. How did their claims and defenses evolve, and what new evidence or legal theories were introduced in the second hearing?

3. Discuss the significance of the “burden of proof” in this case, which rested upon Mr. Garcia. Explain the standard of a “preponderance of the evidence” as defined in the legal decision and detail why the judge concluded Mr. Garcia failed to meet this standard.

4. Evaluate the strength and potential implications of Villagio’s argument, introduced at the rehearing, that A.R.S. § 33-1242 applies only to the “condition” of a property and not its “use.” Although the judge did not base the final decision on this point, discuss how this interpretation could affect future disputes between homeowners and associations.

5. Based on the dates and actions described in the two decisions, construct a detailed procedural timeline of this case. Begin with the first violation letter from Villagio and conclude with the notice of the right to appeal the rehearing decision, including all key notices, filings, hearings, and fines.

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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. In this case, the ALJ was Velva Moses-Thompson.

ARIZ. REV. STAT. (A.R.S.)

The Arizona Revised Statutes, which are the codified laws of the state of Arizona. The central statute in this case was A.R.S. § 33-1242.

Burden of Proof

The obligation on a party in a legal case to prove its allegations. In this matter, Mr. Garcia bore the burden of proof to show that Villagio committed the alleged violation.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents that dictate how a condominium or planned community must be operated and maintained, and which contain the rules that unit owners must follow. Mr. Garcia was accused of violating the short-term lease provisions of Villagio’s CC&Rs.

Certified Mail

A type of mail service that provides the sender with a mailing receipt and electronic verification that an article was delivered or that a delivery attempt was made. A.R.S. § 33-1242(B) specifies this method for a unit owner’s written response to a violation notice.

Evidentiary Hearing

A formal proceeding, similar to a trial, where parties present evidence (such as testimony and documents) to a neutral decision-maker. Hearings were held in this case on October 30, 2018, and February 12, 2019.

Office of Administrative Hearings

A state agency that conducts impartial hearings for other state agencies, boards, and commissions. This office was responsible for conducting the hearings in this case.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Rogelio A. Garcia was the Petitioner.

Preponderance of the Evidence

The standard of proof required in this case. It is 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.”

Rehearing

A second hearing of a case to reconsider the original decision, often granted to review the evidence or arguments. Mr. Garcia requested and was granted a rehearing after the initial decision was issued.

Respondent

The party against whom a petition is filed; the party who must respond to the allegations. In this case, the Villagio at Tempe Homeowners Association was the Respondent.

Unit Owner

A person who owns a unit within a condominium or planned community and is subject to the association’s governing documents. Mr. Garcia is a unit owner in the Villagio at Tempe community.

Select all sources
671673.pdf
692638.pdf

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19F-H1918009-REL-RHG

2 sources

These sources consist of two Administrative Law Judge Decisions from the Office of Administrative Hearings regarding a dispute between Rogelio A. Garcia (Petitioner) and the Villagio at Tempe Homeowners Association (Respondent). The first document records the initial decision from October 2018, which dismissed Mr. Garcia’s petition alleging the HOA violated Arizona statute § 33-1242 by not providing required information following a notice of violation for short-term leasing. The second document details the rehearing decision from February 2019, which again found that Mr. Garcia failed to prove the HOA violated the statute because he did not respond to the violation notices by certified mail within the mandatory 21-day period to trigger the HOA’s legal obligations. Both rulings concluded that since the HOA provided him with the process for contesting the notices, they were not required to provide written notice of his option to petition for an administrative hearing. Consequently, both decisions dismissed Mr. Garcia’s petition and designated the HOA as the prevailing party.

2 sources

What are the legal requirements concerning notice and response for HOA violations?
How did the unit owner’s failure to respond impact their statutory rights?
What legal interpretation was key to dismissing the homeowner’s administrative petition?

Based on 2 sources

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00:00

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Rogelio A. Garcia (petitioner)
    Appeared on behalf of himself,

Respondent Side

  • Nathan Tennyson (HOA attorney)
    Brown Olcott, PLLC
    Appeared on behalf of Respondent Villagio at Tempe Homeowners Association,
  • Tom Gordon (Community Manager/witness)
    AAM LLC
    Community Manager for Villagio; testified on behalf of Villagio

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Administrative Law Judge,
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of electronic transmission of the decision,

Other Participants

  • Amanda Shaw (Representative/Contact)
    AAM LLC
    Listed as c/o for service of process for Villagio at Tempe Homeowners Association

Michelle Ruffo vs. Reflections in the Catalinas Condo Association

Posted on by

Case Summary

Case ID 18F-H1818044-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-10-03
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the HOA violated the governing documents or relevant statutes in assessing fines for unauthorized parking.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michelle Ruffo Counsel —
Respondent Reflections in the Catalinas Condo Association Counsel Nathan Tennyson

Alleged Violations

A.R.S. §§ 33-1242, 33-1248, 33-1803(A), 33-1803(B), 33-1805; CC&Rs §§ 1.36, 1.38, 4.7, 2.8.3

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the HOA violated the governing documents or relevant statutes in assessing fines for unauthorized parking.

Why this result: Petitioner continually violated CC&R § 4.7 and failed to prove Respondent violated any CC&R or statute, particularly as A.R.S. § 33-1242 did not apply to disputes concerning the use of limited common elements.

Key Issues & Findings

HOA violation of CC&Rs and Statutes by imposing parking fines

Petitioner challenged the HOA's decision to assess continuous fines against her account totaling $2,544.00 for repeatedly parking in spaces that were not assigned to her unit 52, arguing the fines and enforcement lacked proper statutory process and violated CC&Rs. The ALJ found that Petitioner failed to meet her burden of proof and that the statute cited (A.R.S. § 33-1242) concerning property condition notices did not apply to this dispute regarding limited common elements (parking spaces).

Orders: Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1242
  • A.R.S. § 33-1803
  • CC&R § 4.7
  • CC&R § 2.8.3

Analytics Highlights

Topics: parking violation, fines, HOA enforcement, limited common elements, due process, Arizona Department of Real Estate
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 33-1242
  • A.R.S. § 33-1248
  • A.R.S. § 33-1803
  • A.R.S. § 33-1805
  • A.R.S. § 12-349
  • CC&R § 4.7
  • CC&R § 2.8.3

Video Overview

Audio Overview

Decision Documents

18F-H1818044-REL Decision – 663567.pdf

Uploaded 2026-04-24T11:12:35 (270.9 KB)

18F-H1818044-REL Decision – 663567.pdf

Uploaded 2026-01-23T17:24:18 (270.9 KB)

Briefing Document: Ruffo v. Reflections in the Catalinas Condo Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in case number 18F-H1818044-REL, involving Petitioner Michelle Ruffo and Respondent Reflections in the Catalinas Condo Association. The core of the dispute centers on a series of fines levied by the Association against Ms. Ruffo for repeatedly parking in condominium parking spaces not assigned to her unit.

The Petitioner argued that she had informal written permission from other residents to use their spaces, that the Association’s notices of violation were procedurally flawed, that she was the victim of retaliatory harassment, and that her own assigned space was frequently occupied by others. The Respondent maintained that its actions were in strict accordance with the community’s Covenants, Conditions, and Restrictions (CC&Rs), which unambiguously require owners to use only their assigned parking spaces and outline a formal process for reallocating them, a process the Petitioner did not follow.

The ALJ ultimately denied the petition, finding that Ms. Ruffo failed to meet her burden of proof. The decision concluded that the Association acted within its rights, that its enforcement actions were consistent with its governing documents, and that the Petitioner’s reliance on informal agreements represented the very “evils that the CC&Rs were designed to prevent.” As of the hearing date, the outstanding balance of fines, interest, and fees on the Petitioner’s account totaled $2,544.00.

Case Background

Parties Involved

Name / Entity

Representation / Key Details

Petitioner

Michelle Ruffo

Owner of unit 52, assigned parking space #131. Appeared on her own behalf.

Respondent

Reflections in the Catalinas Condo Assoc.

The condominium unit owners’ association. Represented by Nathan Tennyson, Esq. of Brown Olcott, PLLC.

Adjudicator

Diane Mihalsky

Administrative Law Judge, Office of Administrative Hearings.

Witnesses

Carol Lundberg

Testified for the Petitioner.

Vanessa Chapman Lubinsky & Gabino Trejo

Former and current property managers, respectively, who testified for the Respondent.

Core Dispute

The central issue is the Association’s imposition of fines against Ms. Ruffo for violating the community’s parking regulations. On or about April 17, 2018, Ms. Ruffo filed a petition alleging the Association violated its CC&Rs and several Arizona statutes by fining her for parking in spaces #38 and #40, which were not assigned to her unit #52. The Association denied any violation, asserting it was enforcing valid community rules.

Chronology of the Dispute

The conflict escalated over a period of approximately two years, marked by a series of notices, fines, and failed attempts at resolution.

• August 2, 2016: The Association sends a “Friendly Reminder” to Ms. Ruffo to cease parking in space #40 and use her assigned space, #131.

• August 5, 2016: A “Notice of Violation” is sent for the same issue, serving as a second warning.

• March 14, 2017: A “Final Non-Compliance Notice” is issued, noting violations in both space #40 and #38. The notice informs Ms. Ruffo of her right to a hearing with the Board of Directors if requested within 14 days.

• March 30, 2017: The first fine of $50.00 is assessed after Ms. Ruffo’s vehicle is again observed in space #38.

• April 17, 2017: Ms. Ruffo responds in writing, claiming she has permission to use the spaces and requests the fine be waived.

• April 27, 2017: The Association’s Board reviews and denies the waiver request. Ms. Ruffo was invited to address the Board but did not attend.

• June 6, 2017: A $200.00 fine is assessed for two observed violations in space #40.

• June 26, 2017: Another $200.00 fine is assessed for violations in spaces #40 and #38.

• July 11, 2017: The Association warns that access to community amenities (pool, fitness room) will be denied if fines remain unpaid. This action is later taken.

• August 31, 2017: A Board meeting is scheduled for Ms. Ruffo and her attorney, Mark F. Williman, to attend. Neither party attends, and they fail to provide advance notice. The Association incurs a $200 legal fee for its attorney’s attendance.

• September 25, 2017: Fines totaling $1,400.00 are assessed for multiple observed violations.

• September 27, 2017: The Association attempts to tow Ms. Ruffo’s vehicle. The attempt is aborted after she refuses to exit the vehicle and calls the Pima County Sheriff’s Office.

• October 4, 2017: The Association’s attorney informs Ms. Ruffo that another hearing will not be scheduled until she reimburses the Association for the $200 legal fee from the missed August 31 meeting.

• October 2017 – January 2018: A series of additional fines are assessed for ongoing violations, and Ms. Ruffo sends multiple letters requesting a hearing and protesting the fines and the $200 reimbursement requirement.

• April 17, 2018: Ms. Ruffo files the formal petition with the Arizona Department of Real Estate.

• September 18, 2018: The evidentiary hearing is held before the Office of Administrative Hearings.

Analysis of Arguments and Evidence

Petitioner’s Position (Michelle Ruffo)

Ms. Ruffo’s defense was multi-faceted, based on claims of permission, procedural errors by the Association, and alleged harassment.

• Claim of Permission: Ms. Ruffo testified that since 2005, she had been parking in spaces #38 and #40 with written permission. She claimed a 2006 agreement with the Morleys, then owners of unit #56, for space #40. She also submitted a 2018 email from Julie Ruiz, a tenant in unit #53, granting permission to use space #38.

• Allegations of Improper Notices: She argued the Association’s notices violated A.R.S. § 33-1242(C) because they did not always identify the person who observed the violation or provide photographic evidence.

• Allegations of Harassment and Retaliation: Through an attorney, Ms. Ruffo alleged she was being “unlawfully discriminated against and harassed in retaliation for her role related to allegations that HOA President Mitch Treese misappropriated HOA funds.” The ALJ noted that no evidence was submitted at the hearing to support this claim.

• Counter-Evidence: Ms. Ruffo submitted photographs dated from October 2016 to July 2017 showing other vehicles, including those of Associa maintenance and a landscaping contractor, parked in her assigned space #131.

• Dispute over Hearing Preconditions: She argued that the Association’s demand for a $200 reimbursement for its attorney’s fees as a condition for a new hearing was unlawful and not permitted under the CC&Rs.

Respondent’s Position (The Association)

The Association’s case rested on the explicit language of its governing documents and its adherence to established enforcement procedures.

• Primacy of the CC&Rs: The Association argued that its governing documents are unambiguous. Section 4.7 explicitly forbids owners from parking in any space other than the one assigned to their unit as a Limited Common Element.

• Formal Reallocation Process: Per Section 2.8.3, reallocating a Limited Common Element like a parking space requires a formal, written amendment executed by the unit owners involved and submitted to the Board for approval. Ms. Ruffo never followed this procedure.

• Rejection of Informal Agreements: The property manager testified that such private agreements are not legally binding or enforceable by the Association and create confusion, as evidenced by complaints from subsequent owners and tenants who were unable to use their assigned spaces.

• Adherence to Enforcement Policy: The Association followed its documented Violation Enforcement Policy, starting with a friendly reminder and escalating to formal notices and fines for continued non-compliance.

• Opportunity to Be Heard: Ms. Ruffo was provided opportunities to address the Board on April 27, 2017, and August 31, 2017. She failed to attend either meeting, and her failure to provide notice for the latter caused the Association to incur unnecessary legal fees.

• Witness Testimony: The former property manager, Ms. Chapman, testified that she had personally witnessed all the charged violations.

Governing Documents and Statutes

The case hinged on the interpretation of the Association’s CC&Rs and relevant Arizona state law.

Key CC&R Provisions

Section

Provision

Relevance

Motor Vehicles: “no Owner, Lessee or Occupant may park any . . . motor vehicle . . . in any Parking Spaces other than the Parking Space assigned to the Unit as a Limited Common Element.”

The central rule that the Petitioner was found to have repeatedly violated.

§ 2.8.3

Reallocation of Limited Common Elements: A reallocation requires a formal, recorded amendment executed by the owners and submitted to the Board.

The official procedure for changing parking space assignments, which the Petitioner did not follow for her informal agreements.

§ 13.1

Enforcement: Grants the Association the right to impose monetary penalties, suspend an owner’s right to use facilities, and tow vehicles in violation of the rules, after notice and an opportunity to be heard.

Provides the legal authority within the governing documents for the Association’s actions (fines, suspension of amenity access, attempted tow).

§ 1.36

“Parking Space” Definition: Defines a parking space as a portion of the Limited Common Elements.

Legally classifies the disputed parking spaces, making them subject to the rules governing Limited Common Elements.

Arizona Revised Statutes (A.R.S.)

The Petitioner cited A.R.S. § 33-1242(C), which requires an association, upon written request from an owner, to provide details of an alleged violation, including the observer’s name and the date. The ALJ determined this statute was inapplicable to the dispute. The judge’s reasoning was that the statute applies specifically to notices regarding the “condition of the property owned by the unit owner” (i.e., her physical condo unit #52), not her use of Limited Common Elements like parking spaces, which she does not own.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision was a conclusive denial of the petition, siding entirely with the Association.

Final Order: “IT IS ORDERED that Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied because Petitioner has not established that Respondent violated the CC&Rs or any statute in assessing fines against her for her repeated violations of CC&R § 4.7 by parking in spaces that were not assigned to her unit #52.”

Key Legal Conclusions

• Burden of Proof: The Petitioner bore the burden of proving her claims by a preponderance of the evidence and failed to do so.

• Unambiguous Covenants: The CC&Rs regarding parking are unambiguous and must be enforced to give effect to the intent of the parties. CC&R § 4.7 clearly requires owners to park in their assigned spaces.

• Invalidity of Informal Agreements: The ALJ found that the Petitioner’s reliance on informal agreements illustrated “the evils that the CC&Rs were designed to prevent.” These undocumented side deals create instability and conflict when properties are sold or new tenants arrive, undermining the security and order of the community’s parking plan.

• Respondent’s Proper Conduct: The Association was found to have followed its own enforcement policy and provided the Petitioner with opportunities to be heard.

• Attorney’s Fee Condition: While the CC&Rs do not explicitly authorize charging an owner for attorney’s fees as a precondition for a hearing, the ALJ noted that A.R.S. § 33-1242(A)(18) allows an association to “exercise any . . . powers necessary and proper for the governance and operation.” Furthermore, civil statutes often require a party to pay for fees they cause an opponent to incur unnecessarily.

• Futility of a Board Hearing: The ALJ concluded that, in light of the Petitioner’s arguments and her “continued violation of Respondent’s parking policy over nearly two years,” a hearing before the Association’s Board would not have changed her behavior or the outcome of the matter.

Financial Implications

The conflict resulted in significant financial penalties for the Petitioner. The fines were assessed on an escalating basis for continued violations.

• March 30, 2017: $50.00

• June 6, 2017: $200.00

• June 26, 2017: $200.00

• August 9, 2017: $200.00

• September 25, 2017: $1,400.00

• October 17, 2017: $100.00

• November 6, 2017: $100.00

As of the hearing on September 18, 2018, the total outstanding balance on Ms. Ruffo’s account, including interest and certified letter fees, was $2,544.00.

Study Guide: Ruffo v. Reflections in the Catalinas Condo Association

This guide is designed to review and assess understanding of the Administrative Law Judge Decision in case number 18F-H1818044-REL, Michelle Ruffo v. Reflections in the Catalinas Condo Association.

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Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the provided legal decision.

1. Who are the primary parties in this case, and what is the central dispute between them?

2. What was the Petitioner’s main justification for parking in spaces that were not assigned to her unit?

3. According to the Association’s CC&Rs, what is the formal procedure required to reallocate a Limited Common Element, such as a parking space?

4. Describe the key enforcement actions the Condo Association took against the Petitioner in response to the ongoing parking violations.

5. Why did the Administrative Law Judge determine that Arizona Revised Statute § 33-1242(B) and (C) did not apply in this case?

6. Summarize the incident involving the tow truck on September 27, 2017.

7. What reason did the Association’s attorney provide for requiring the Petitioner to pay a $200 fee before another hearing would be scheduled?

8. What evidence did the Petitioner submit to demonstrate that her own assigned parking space, #131, was frequently occupied by others?

9. Identify the two property managers who provided telephonic testimony on behalf of the Respondent.

10. What was the final ruling in this case, and what was the judge’s primary reason for this decision?

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Answer Key

1. The primary parties are Michelle Ruffo, the Petitioner and owner of unit 52, and Reflections in the Catalinas Condo Association, the Respondent. The central dispute is over fines imposed by the Association against Ms. Ruffo for her repeated violations of parking rules by parking in spaces not assigned to her unit.

2. The Petitioner justified her actions by claiming she had long-standing written permission from other unit owners or tenants to use their spaces. Specifically, she cited a 2006 agreement with the owners of unit #56 to use space #40 and more recent permission from a tenant in unit #53 to use space #38.

3. According to Section 2.8.3 of the CC&Rs, reallocating a Limited Common Element requires an amendment to the Declaration. This amendment must be executed by the owners involved, state how the element is being reallocated, and be submitted to the Board of Directors for approval before it can be recorded.

4. The Association’s enforcement actions escalated over time, beginning with a “Friendly Reminder” and moving to a “Notice of Violation” and a “Final Non-Compliance Notice.” Subsequently, the Association assessed escalating monetary fines, suspended the Petitioner’s access to amenities like the pool and fitness room, and attempted to have her vehicle towed.

5. The judge ruled the statute did not apply because it specifically pertains to written notices about the condition of the property owned by the unit owner. The dispute in this case was not about the condition of Ms. Ruffo’s unit (#52) but about her use of Limited Common Elements (parking spaces) that were not assigned to her.

6. On September 27, 2017, the Association attempted to tow the Petitioner’s vehicle from a space not assigned to her. The Petitioner was inside her vehicle and refused to leave, calling the Pima County Sheriff’s Office. The responding officer instructed the tow truck driver to remove the equipment and try again at another time.

7. The Association required the $200 fee to reimburse it for the attorney’s fees it incurred for a Board meeting scheduled on August 31, 2017. The Petitioner and her attorney at the time, Mr. Williman, failed to attend this meeting and did not provide notice of their absence until a few minutes before it was scheduled to begin.

8. The Petitioner submitted a series of dated photographs showing various other vehicles parked in her assigned space, #131. These vehicles included maintenance trucks bearing the Associa logo, a landscaping contractor’s truck and trailer, and several other private cars.

9. The two property managers who testified for the Respondent were Gabino Trejo, the current manager, and Vanessa Chapman Lubinsky (referred to as Ms. Chapman), the former manager.

10. The final ruling was a denial of Michelle Ruffo’s petition. The judge found that the Petitioner had not established that the Respondent violated any CC&Rs or statutes, concluding that the Association was justified in assessing fines for her repeated and clear violations of CC&R § 4.7, which requires owners to park in their assigned spaces.

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response to each, structuring your answer in a standard essay format.

1. Analyze the arguments and evidence presented by both the Petitioner and the Respondent. Discuss the specific CC&R sections, witness testimonies, and exhibits each side used to support their claims, and explain why the Administrative Law Judge ultimately found the Respondent’s position more convincing.

2. The concept of “Limited Common Elements” is central to this case. Using the definitions provided in the CC&Rs (Sections 1.31, 1.36, and 2.8.1(e)), explain the legal significance of this designation in the dispute over parking spaces. How did the specific rules for reallocating these elements (CC&R § 2.8.3) undermine the Petitioner’s primary defense?

3. Trace the timeline of communication and escalating enforcement actions taken by the Reflections in the Catalinas Condo Association against Michelle Ruffo, beginning with the “Friendly Reminder” in August 2016. Evaluate whether the Association followed its own Violation Enforcement Policy and the powers granted to it in the CC&Rs throughout this process.

4. Discuss the role of legal representation and the various attorneys involved in this case (Nathan Tennyson, Mark F. Williman, Eric J. Thomae, Jonathan Olcott). How did their actions, communications, and, in one instance, inaction, impact the proceedings and the relationship between the Petitioner and the Respondent?

5. The Petitioner argued that her right to due process was violated because the violation notices she received did not contain photographs or identify the person who observed the violation. Explain the Administrative Law Judge’s legal reasoning for rejecting this argument, specifically referencing the interpretation of A.R.S. § 33-1242 and the distinction made between a violation concerning the “condition of the property owned” versus the use of common elements.

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Glossary of Key Terms and Entities

Term / Entity

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings. In this case, Diane Mihalsky presided over the hearing at the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. Several statutes, including those under Title 33 (Property) and Title 32 (Professions and Occupations), were cited in the case.

Associa Property Management Services

The property management company employed by the Respondent to manage the condominium complex. Both Ms. Chapman and Mr. Trejo were employees of Associa.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set out the guidelines for a planned community or condominium. The CC&Rs define the rights and obligations of the homeowners’ association and its members.

Gabino Trejo

The current property manager for the Respondent at the time of the hearing.

Limited Common Elements

As defined in CC&R § 1.31, a portion of the Common Elements allocated for the exclusive use of one or more, but fewer than all, of the Units. Parking spaces are explicitly defined as Limited Common Elements.

Mark F. Williman, Esq.

An attorney and friend of the Petitioner who agreed to help her resolve issues with the Board. He failed to attend a scheduled Board meeting on her behalf on August 31, 2017.

Michelle Ruffo

The Petitioner in the case, owner of condominium unit 52, and member of the Respondent association.

Parking Space

As defined in CC&R § 1.36, a portion of the Limited Common Elements intended for parking a single motor vehicle and allocated to a specific Unit Owner for their exclusive use.

Petitioner

The party who files a petition or brings an action in a legal proceeding. In this case, Michelle Ruffo.

Preponderance of the Evidence

The standard of proof in this case, defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.

Reflections in the Catalinas Condo Association

The Respondent in the case; the condominium unit owners’ association for the development where the Petitioner resides.

Respondent

The party against whom a petition is filed or an action is brought. In this case, the Reflections in the Catalinas Condo Association.

Vanessa Chapman Lubinsky (Ms. Chapman)

The former property manager for the Respondent (from 2012 to early 2018) who handled most of the interactions and sent most of the violation notices to the Petitioner.

Violation Enforcement Policy

The Respondent’s official policy that outlines the procedure for addressing violations, including sending a “Friendly Reminder” and a “Notice of Violation,” and provides for a hearing if requested within 14 days.

How a Parking Spot Deal Led to a Tow Truck Standoff and a $2,544 HOA Bill: 4 Lessons

Introduction: The Handshake Deal That Cost a Fortune

It’s a common scenario in community living: you make a friendly, informal agreement with a neighbor. Maybe you agree to switch parking spots for convenience or let them use your guest pass. These simple handshake deals seem harmless, but what happens when they collide with the ironclad rules of a homeowners’ association (HOA)?

The real-life case of Michelle Ruffo and her condo association serves as a stark cautionary tale. A long-standing, informal parking arrangement escalated into a bitter dispute that culminated in a tow truck standoff, loss of amenities, and a final bill for $2,544 in fines and fees. This case reveals several surprising and critical lessons for anyone living in a community governed by an association.

1. Your Neighbor’s Permission Can Be Legally Worthless

The core of the dispute was Ms. Ruffo’s belief that she had the right to park in spaces other than her own. Since 2006, she had an agreement with another owner to use space #40. Later, she began parking in space #38, believing she had permission from that unit’s tenant. From her perspective, she had done her due diligence. This is the core conflict in community living: the perceived authority of a neighbor’s handshake versus the legal authority of the governing documents.

The association, however, operated under its official Covenants, Conditions, and Restrictions (CC&Rs). Those documents told a different story.

• Section 4.7 explicitly required owners to park only in their assigned spaces.

• Section 2.8.3 detailed the only valid procedure for changing parking allocations. Because parking spaces are “Limited Common Elements,” any reallocation required a formal, written amendment executed by the unit owners involved, submitted to the Board for approval, and then officially recorded.

Crucially, the property manager testified that the owner of the unit assigned to space #38 had explicitly denied giving Ms. Ruffo permission and reported that his tenants were complaining. Because Ms. Ruffo never followed the formal procedure, her informal agreements were not recognized or enforceable. The Administrative Law Judge’s decision highlighted the critical importance of these rules:

Because Petitioner never submitted any written agreement with another owner regarding reallocation of parking spaces to Respondent’s Board for its tacit approval, as CC&R § 2.8.3 requires, subsequent tenants and owners have no notice of Petitioner’s alleged agreements with their predecessors regarding parking spaces. If everyone adopted Petitioner’s sense of entitlement as to parking spaces at the Reflections, no one would be able to park their car with any security or plan.

2. Ignoring Official Notices Leads to More Than Just Fines

This conflict didn’t begin with a massive fine. The property management company, Associa, followed a documented escalation process that provided Ms. Ruffo with multiple opportunities to comply. For any homeowner, this documented paper trail should have been a five-alarm fire, signaling a problem that required immediate and formal resolution.

The warnings began on August 2, 2016, with a “Friendly Reminder,” followed by a “Notice of Violation” and a “Final Non-Compliance Notice.” The first fine of just $50 wasn’t assessed until March 30, 2017. But as the violations continued, so did the consequences. After a July 11, 2017 letter, the association shut off Ms. Ruffo’s “electric-key access to the pool and fitness center for the community,” a tangible loss of amenities.

The financial penalties then began to skyrocket. Fines of $200 were assessed in June and August. Then, on September 25, 2017, the association dropped the hammer: a single letter assessing $1,400 for 14 separate observed violations. Just two days later, on September 27, the dispute reached its climax. The association attempted to tow Ms. Ruffo’s vehicle. She was inside the car and refused to leave, prompting her to call the Sheriff’s Office to intervene. The situation had moved from letters and fines to a physical standoff in the parking lot.

3. Skipping a Hearing Can Get You a Bill for the HOA’s Lawyer

After retaining an attorney, Ms. Ruffo was scheduled to have her case heard by the Board on August 31, 2017. The association, anticipating a formal legal discussion, also had its own attorney present. In any formal dispute, failing to appear at your own requested hearing is a critical error. In this case, it not only cost Ruffo credibility but also came with an immediate invoice.

Minutes before the meeting, while the Board and its lawyer were waiting, Ruffo’s attorney sent a message that neither he nor his client would be attending. This last-minute cancellation had a direct financial consequence. The association’s attorney charged it $200 for the time spent on the aborted meeting. The Board then refused to schedule another hearing until Ms. Ruffo reimbursed the association for that $200 fee. This failure to engage was immediately followed by the association’s most severe actions: the $1,400 fine and the attempt to tow her vehicle.

4. “But They Do It Too!” Is Not a Winning Legal Defense

A common response to a violation notice is to point out that others are breaking the rules as well. Ms. Ruffo attempted this strategy, presenting photographic evidence that her own assigned space, #131, was frequently occupied by other vehicles, including maintenance vans bearing the property management company’s logo.

While the property manager testified that she had addressed the issue with the maintenance crew, the Judge ultimately found this argument unpersuasive. The ruling contained a crucial insight: The lesson isn’t just that this defense failed, but why it failed. The Judge noted that Ms. Ruffo “did not present any evidence… that she made any effort to report others parking in her assigned space when there was something that the property manager or Respondent could have done about it.” By failing to formally and properly report her own issue, she undermined her claim that the association was negligent, making it impossible to excuse her own persistent violations.

Conclusion: Read the Fine Print Before You Shake On It

This case serves as a powerful reminder of a fundamental truth of community living: in an HOA, the official, written governing documents are the ultimate authority. Informal “handshake deals,” no matter how reasonable they seem, can lead to serious consequences when they conflict with the rules. This dispute didn’t just involve letters; it led to escalating fines, the loss of amenities, a physical standoff with a tow truck, and ultimately a legal judgment.

This entire conflict, which cost thousands of dollars and countless hours, started with a parking spot—when was the last time you read your community’s rules?

Case Participants

Petitioner Side

  • Michelle Ruffo (petitioner)
    Appeared on her own behalf.
  • Carol Lundberg (witness)
    Resides in Unit 45; presented testimony by Petitioner.
  • Julie Ruiz (witness)
    Unit 53 Tenant
    Provided email confirming she gave Petitioner permission to park in Unit 53's space.
  • Mark F. Williman (attorney)
    Retained by Petitioner; failed to attend the August 31, 2017 Board meeting.
  • Eric J. Thomae (attorney)
    Retained by Petitioner sometime after October 24, 2017.

Respondent Side

  • Nathan Tennyson (HOA attorney)
    Brown Olcott, PLLC
  • Vanessa Chapman Lubinsky (property manager)
    Associa Property Management Services
    Former manager; referred to as Ms. Chapman in the decision.
  • Gabino Trejo (property manager)
    Associa Property Management Services
    Current manager.
  • John Pohlig (unit owner)
    Owner of unit assigned space #38; communicated he had not given Petitioner permission to park there.
  • Jonathan Olcott (HOA attorney)
  • Mitch Treese (HOA president)
    Alleged by Petitioner's attorney to have misappropriated HOA funds.

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Felicia Del Sol (administrative staff)
    Transmitted decision electronically.

Rex E. Duffett vs. Suntech Patio Homes Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1818025-REL, 18F-H1818027-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-24
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rex E. Duffett Counsel —
Respondent Suntech Patio Homes Homeowners Association Counsel Nathan Tennyson

Alleged Violations

CC&Rs Amendment (March 1993)
A.R.S. § 33-1805(A)

Outcome Summary

The ALJ denied the maintenance claim because the Petitioner failed to prove the existence of the damage with unclear evidence. The ALJ granted the records request claim because the HOA failed to respond to the Petitioner's request within the required 10 days. The HOA was ordered to pay the Petitioner's filing fee of $500.00.

Why this result: Insufficient evidence to substantiate the maintenance claim.

Key Issues & Findings

Failure to repair and paint exterior walls

Petitioner alleged the HOA failed to respond to repeated requests to repair cracks and paint the exterior walls of his unit.

Orders: Denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lost

Cited:

  • 4
  • 17
  • 18

Failure to provide records

Petitioner alleged the HOA failed to provide requested meeting notices and minutes within the statutory 10-day timeframe following a request made on December 22, 2017.

Orders: Respondent ordered to comply with A.R.S. § 33-1805(A) in the future.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • 19
  • 20
  • 21

Video Overview

Audio Overview

Decision Documents

18F-H1818027-REL Decision – 630610.pdf

Uploaded 2026-04-24T11:10:25 (114.0 KB)

18F-H1818027-REL Decision – 630610.pdf

Uploaded 2026-01-27T21:14:18 (114.0 KB)

Administrative Law Judge Decision: Duffett v. Suntech Patio Homes Homeowners Association

This briefing document provides a comprehensive analysis of the consolidated administrative hearing between Rex E. Duffett (Petitioner) and the Suntech Patio Homes Homeowners Association (Respondent). The cases, heard by the Arizona Office of Administrative Hearings on April 4, 2018, address disputes regarding exterior maintenance responsibilities and the statutory requirements for the disclosure of association records.

Executive Summary

The litigation comprised two distinct petitions filed by Rex E. Duffett against Suntech Patio Homes Homeowners Association. The first petition (Case No. 18F-H1818025-REL) alleged that the Association failed to maintain and repair exterior walls as required by the community's Conditions, Covenants, and Restrictions (CC&Rs). The second petition (Case No. 18F-H1818027-REL) alleged a violation of A.R.S. § 33-1805(A), stemming from the Association’s failure to provide requested documents within the legally mandated timeframe.

The Administrative Law Judge (ALJ) denied the petition regarding maintenance repairs due to a lack of clear evidence but ruled in favor of the Petitioner regarding the records request. The Association was ordered to comply with future record requests and to reimburse the Petitioner’s $500 filing fee.

Case Overview
Category Details
Petitioner Rex E. Duffett
Respondent Suntech Patio Homes Homeowners Association
Administrative Law Judge Tammy L. Eigenheer
Hearing Date April 4, 2018
Core Issues Maintenance of exterior walls; Access to association records (A.R.S. § 33-1805(A))
Final Ruling Maintenance claim denied; Records request claim upheld

Detailed Analysis of Key Themes

1. Maintenance Responsibility and the Burden of Proof

The community CC&Rs, amended in March 1993, explicitly state that the Association is responsible for the painting and maintenance of the "exterior walls of all units." Despite this clear obligation, the Petitioner’s claim failed because he did not meet the legal burden of proof—the "preponderance of the evidence."

  • Evidentiary Failure: The Petitioner submitted black and white photographs to support his claims of cracks and water damage. The ALJ found these photographs were of insufficient quality to identify the location or severity of the alleged damage.
  • Conflicting Testimony: While the Petitioner claimed a roofing company identified a crack in the exterior wall as the source of a ceiling leak, the current community manager testified that her inspection only revealed one area of missing stucco on the garage and no visible cracks on the front of the house.
  • Judicial Conclusion: Without convincing visual or physical evidence of a maintenance issue, the ALJ could not conclude that immediate repairs were necessary.
2. Statutory Disclosure Obligations (A.R.S. § 33-1805(A))

The legal core of the second petition involved the Association’s failure to adhere to Arizona law regarding record transparency. A.R.S. § 33-1805(A) requires associations to make financial and other records "reasonably available" and provides a strict ten-business-day window to fulfill requests.

  • The Request: On December 22, 2017, the Petitioner requested meeting notices and minutes regarding rules, regulations, and dues increases.
  • The Violation: The Association’s former management company, The Management Trust, failed to respond to the request within the ten-day statutory limit.
  • Defense of Vagueness: The Association argued the request was unclear; however, the ALJ ruled that the management company had a duty to either respond or seek clarification within the ten-day window rather than ignoring the request.
3. Impact of Management Transitions

The proceedings revealed significant administrative friction caused by a transition between management companies. Pride Community Management (Pride) took over from The Management Trust on February 1, 2018, shortly after the petitions were filed.

  • Document Retention Issues: Pride testified that the previous management company initially provided only one box of information, later discovering seven or eight additional boxes in storage. This lack of organized record-keeping hampered Pride’s ability to respond to the Petitioner’s historical document requests.
  • Operational Friction: Testimony from the owner of Pride indicated that the Association had attempted to terminate its contract with The Management Trust earlier for poor performance, but was held to a full two-year contract.

Important Quotes with Context

On Maintenance Responsibility

"The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . ."

  • Context: Excerpt from the March 1993 amendment to the Association's CC&Rs, establishing the legal basis for the Petitioner's repair request.
On Evidentiary Standards

"The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack."

  • Context: Findings of Fact regarding the Petitioner's failure to provide clear evidence, which ultimately led to the denial of Case No. 18F-H1818025-REL.
On Management's Duty to Respond

"The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute."

  • Context: The ALJ’s conclusion regarding Case No. 18F-H1818027-REL, emphasizing that "vague" requests do not absolve an HOA of its ten-day statutory deadline under A.R.S. § 33-1805(A).

Actionable Insights

For Homeowners
  • Documentation Quality: When alleging physical damage in a legal or administrative setting, high-quality, clear, and preferably color photographic evidence is essential. Unclear documentation can lead to a failure to meet the "preponderance of the evidence" standard even if a maintenance responsibility exists.
  • Statutory Timelines: Homeowners should be aware that HOAs have exactly ten business days to fulfill a record examination or copy request under A.R.S. § 33-1805(A).
For Homeowners Associations
  • Management Oversight: Associations are legally responsible for the failures of their management companies. The failure of "The Management Trust" to respond to a faxed request resulted in the Association being labeled the losing party and ordered to pay $500.
  • Proactive Record Keeping: Associations should maintain clear records of meeting notices and minutes. The Association’s witness testified that meeting notices are "not normally maintained," which complicates compliance with statutory records requests.
  • Clarification, Not Silence: If a member’s records request is vague, the Association must still engage within the ten-day window to seek clarification rather than allowing the deadline to expire without a response.

Final Order Summary

The Administrative Law Judge issued the following orders on April 24, 2018:

  1. Maintenance Petition: Denied.
  2. Records Petition: Petitioner deemed the prevailing party.
  3. Future Compliance: The Association is ordered to comply with A.R.S. § 33-1805(A) moving forward.
  4. Financial Penalty: The Association must pay the Petitioner his $500.00 filing fee within thirty days.

Study Guide: Rex E. Duffett vs. Suntech Patio Homes Homeowners Association

This study guide provides a comprehensive analysis of the administrative hearing between Rex E. Duffett (Petitioner) and the Suntech Patio Homes Homeowners Association (Respondent). It explores the legal obligations of homeowners associations (HOAs) regarding property maintenance and the statutory requirements for providing records to association members.

1. Case Overview and Core Themes

The proceedings involved two consolidated cases (No. 18F-H1818025-REL and No. 18F-H1818027-REL) heard in the Arizona Office of Administrative Hearings. The central themes include:

  • Contractual Obligations (CC&Rs): The duty of an HOA to maintain community property as defined in the Conditions, Covenants, and Restrictions.
  • Statutory Compliance (A.R.S. § 33-1805): The legal requirement for associations to provide records to members within specific timeframes.
  • Burden of Proof: The necessity for a petitioner to establish claims through a "preponderance of the evidence."
  • Management Transitions: The impact of changing property management companies on an association's ability to fulfill its administrative duties.

2. Key Legal Concepts and Data Points

The Preponderance of the Evidence

In these proceedings, the Petitioner bears the burden of proof. Under A.A.C. R2-19-119, the Petitioner must prove their case by a "preponderance of the evidence." This is defined as the "greater weight of the evidence"—evidence that possesses the most convincing force, rather than simply having a higher number of witnesses.

Maintenance Responsibilities (Case 18F-H1818025-REL)

According to the 1993 amendment to the Respondent’s CC&Rs, the Suntech Patio Homeowners Association is responsible for:

  • Painting and maintenance of the exterior walls of all units.

In this case, the Petitioner alleged that cracks in his exterior walls allowed water to seep into the interior, causing damage. However, the claim was denied because the evidence submitted (black and white photographs) failed to clearly show the damage, and the Administrative Law Judge (ALJ) could not verify the severity or location of the cracks.

Record Retention and Access (Case 18F-H1818027-REL)

Under A.R.S. § 33-1805(A), associations have strict guidelines for managing member requests for information:

Requirement Statutory Regulation
Availability Records must be made "reasonably available" for examination.
Response Time The association has 10 business days to fulfill a request for examination or provide copies.
Copy Fees Associations may charge no more than $0.15 per page.
Exclusions Certain records, such as minutes from closed executive meetings, may be restricted to Board members only.
Chronology of Events
  • March 1993: CC&Rs amended to include HOA responsibility for exterior walls.
  • July/August 2017: Petitioner notifies management of cracks and requests repairs.
  • December 22, 2017: Petitioner faxes a request for meeting notices and minutes regarding rules, regulations, and dues increases.
  • January 8/23, 2018: Petitioner files petitions with the Department of Real Estate.
  • February 1, 2018: Management shifts from "The Management Trust" to "Pride Community Management."
  • April 4, 2018: Administrative hearing held.
  • April 24, 2018: ALJ issues the final decision and order.

3. Short-Answer Practice Questions

  1. What was the specific reason the ALJ denied the Petitioner’s claim regarding the exterior wall repairs?
  • Answer: The Petitioner failed to meet the burden of proof (preponderance of evidence) because the submitted black-and-white photographs did not clearly show the alleged cracks or damage.
  1. How many business days does an association have to provide copies of records once a member requests them?
  • Answer: Ten business days.
  1. What was the Respondent’s defense regarding the missing documents requested by the Petitioner?
  • Answer: The Respondent argued that the previous management company (The Management Trust) had not provided all records during the transition and that meeting notices are not normally maintained by the Association.
  1. What is the maximum per-page fee an HOA can charge for copies under A.R.S. § 33-1805(A)?
  • Answer: Fifteen cents ($0.15).
  1. Which party was ordered to pay the $500 filing fee, and why?
  • Answer: The Respondent (HOA) was ordered to pay the fee because the Petitioner was deemed the prevailing party in the case regarding the records request violation (Case 18F-H1818027-REL).

4. Essay Prompts for Deeper Exploration

  1. The Impact of Management Transitions on Legal Liability: Discuss how the transition from "The Management Trust" to "Pride Community Management" affected the Association's ability to comply with A.R.S. § 33-1805(A). Should an association be held liable for the failures of its third-party property management company? Use evidence from the case to support your argument.
  1. Evidence Standards in Administrative Law: Analyze the importance of evidence quality in property disputes. The Petitioner provided testimony and photographs, yet still lost the maintenance claim. Evaluate what types of evidence (e.g., color photos, expert testimony, repair receipts) might have changed the outcome of Case 18F-H1818025-REL.
  1. Transparency vs. Privacy in HOA Governance: A.R.S. § 33-1805(A) creates a right to transparency, yet the Respondent claimed that minutes for "closed executive meetings" were only available to Board members. Explore the balance between a homeowner's right to know how their dues are used and the Association's need for private executive sessions.

5. Glossary of Important Terms

  • A.R.S. § 33-1805(A): The Arizona Revised Statute governing the inspection and copying of association records by members.
  • Administrative Law Judge (ALJ): An official who presides over hearings and makes decisions regarding disputes involving government agencies and specific legal statutes.
  • CC&Rs (Conditions, Covenants, and Restrictions): The governing documents of a common interest community that outline the rights and obligations of both the association and the homeowners.
  • Petitioner: The party who initiates a lawsuit or petition (in this case, Rex E. Duffett).
  • Preponderance of the Evidence: The standard of proof in most civil cases, meaning that the claim is more likely to be true than not true.
  • Respondent: The party against whom a petition is filed (in this case, Suntech Patio Homes Homeowners Association).
  • Special Assessment: A fee charged to homeowners by the association to cover expenses not included in the regular budget (e.g., the proposed $46,000 stucco and paint project).
  • Unanimous Written Consent: A method by which a board of directors can take action without a formal meeting, provided all members agree in writing.

Lessons from the Bench: What Homeowners and HOAs Can Learn from the Suntech Patio Homes Case

Introduction: A Tale of Two Petitions

In early 2018, the Arizona Office of Administrative Hearings reviewed a complex dispute between homeowner Rex E. Duffett and the Suntech Patio Homes Homeowners Association. Presided over by Administrative Law Judge Tammy L. Eigenheer, this consolidated hearing served as a critical examination of two pillars of HOA governance: the duty to maintain common structures and the statutory right of members to access association records.

Mr. Duffett’s legal challenge was comprised of two distinct petitions. The first sought to compel the HOA to repair exterior wall cracks that he alleged were causing interior damage. The second petition alleged a violation of state transparency laws regarding a records request that went unfulfilled. For homeowners and board members alike, the resulting decision offers a masterclass in the importance of evidentiary standards and the non-negotiable nature of statutory deadlines.

The Maintenance Dispute: Why Evidence is Everything

The primary conflict regarding maintenance involved the interpretation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). Mr. Duffett testified that he discovered a leak in his garage ceiling. While a roofing company, Lyons Roofing, determined the roof itself was sound, they identified a crack in the exterior wall as the source of the leak. Although Lyons Roofing performed an emergency repair on the crack, they did not paint the area, and Mr. Duffett argued the HOA was responsible for the final repair and painting to prevent mold and structural decay.

In such proceedings, the Petitioner bears the burden of proof by a "preponderance of the evidence." This legal standard is defined as "the greater weight of the evidence" or the "most convincing force," rather than simply the number of witnesses.

The HOA’s defense noted that the Board intended to spend $46,000 in 2018 to repair stucco and paint all exterior walls in the community, though this plan was pending a potential special assessment. Notably, the current Community Manager, Rebecca Stowers, admitted during a 2018 inspection that she observed a missing area of stucco on the front of the garage. Despite this admission, the Petitioner’s case failed because his primary evidence—black and white photographs—was of such poor quality that the Judge could not discern the location or severity of the alleged damage.

Case Snapshot: CC&R Maintenance Provisions The Provision: A 1993 amendment to the Suntech Patio Homes CC&Rs mandates that the Association is responsible for the painting and maintenance of the exterior walls of all units. The Evidence Gap: The Petitioner claimed a garage ceiling leak was caused by wall cracks, supported by a repair performed by Lyons Roofing. however, he submitted black and white photographs at the hearing. Because these images failed to clearly document the damage, the Judge ruled the evidence lacked the "convincing force" necessary to prove the HOA had breached its maintenance duties.

The Right to Know: Understanding A.R.S. § 33-1805(A)

While the maintenance claim faltered on evidence, the records dispute turned on the strict application of Arizona law. Under A.R.S. § 33-1805(A), an association has exactly ten business days to provide copies of requested records or make them available for inspection.

On December 22, 2017, Mr. Duffett faxed a request for specific documents to the HOA’s management company. The requested items included:

  • Meeting notices and minutes for every meeting where rules and regulations were discussed.
  • Meeting notices and minutes for every meeting where the most recent HOA dues increase was discussed.
  • A copy of the notice for the last association rate increase, including any signed written consents for decisions made outside of formal meetings.

The Association argued that the request was "unclear" or "vague," noting that rules and regulations are discussed at nearly every meeting. However, Judge Eigenheer clarified a vital legal point: if a request is perceived as vague, the Association’s duty is to request additional clarification within the ten-day window, not to ignore the request or delay the response.

The "Transition Trap": When Management Changes Cause Legal Hurdles

A significant portion of the HOA’s defense involved its transition between management firms. At the time of the request, Suntech Patio Homes was managed by The Management Trust. On February 1, 2018, Pride Community Management took over.

Testimony from Pride’s owner, Frank Peake, and manager Rebecca Stowers revealed that the transition was fraught with difficulty. The HOA had attempted to terminate The Management Trust early for poor performance, but was held to the full contract term. When the handoff finally occurred, The Management Trust initially provided Pride with only "one box of information." It was only later that the former company informed Pride that seven or eight additional boxes of records were still sitting in storage.

The Judge ruled that these administrative failures—specifically those of the former management company—did not excuse the HOA. Because The Management Trust was the HOA's agent during the ten-day statutory window following the December 22 request, the HOA was legally responsible for the failure to respond. The "transition trap" of missing boxes and poor record-keeping is not a valid defense against A.R.S. § 33-1805(A).

The Verdict: Final Rulings and Financial Consequences

Judge Tammy L. Eigenheer issued a split decision that serves as a reminder that procedural compliance is just as important as substantive claims in HOA law.

Case Outcomes
Issue Decision
Maintenance of Exterior Walls Petition Denied
Access to Association Records Petitioner Deemed Prevailing Party

While the maintenance petition was denied due to poor photographic evidence, the Petitioner was deemed the prevailing party regarding the records access. Consequently, the Judge ordered the HOA to pay Mr. Duffett $500.00 to reimburse his filing fee and issued a formal order for the Association to comply with A.R.S. § 33-1805(A) in all future matters.

Conclusion: Key Takeaways for Homeowners and Boards

The Suntech Patio Homes case provides three essential lessons for navigating the complexities of HOA disputes:

  1. Visual Evidence Must Meet High Standards: In maintenance disputes, the "preponderance of the evidence" requires clear proof. Homeowners should use high-resolution, color photographs and professional reports (like those from Lyons Roofing) to ensure the Judge can clearly see the "location and severity" of the issue.
  2. The 10-Day Rule is Absolute: A.R.S. § 33-1805(A) does not grant extensions for administrative convenience. If a board or manager finds a request vague, they have a legal obligation to seek clarification immediately rather than letting the ten-day clock expire.
  3. Boards are Responsible for their Agents: An HOA cannot escape liability by blaming a previous management company for lost boxes or poor communication. Boards must ensure that their management contracts and transition protocols prioritize the preservation and accessibility of association records to remain in compliance with state law.

Case Participants

Petitioner Side

  • Rex E. Duffett (petitioner)
    Appeared on his own behalf

Respondent Side

  • Nathan Tennyson (attorney)
    Brown/Olcott, PLLC
    Represented Respondent
  • Rebecca Stowers (witness)
    Pride Community Management
    Community Manager; testified at hearing
  • Shawn Mason (property manager)
    The Management Trust
    Provided initial responses to petitions; former management
  • Frank Peake (witness)
    Pride Community Management
    Owner of Pride; testified at hearing

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Listed on distribution list
  • F. Del Sol (administrative staff)
    Office of Administrative Hearings
    Transmitted the decision
  • L. Dettorre (agency staff)
    Arizona Department of Real Estate
    Listed on distribution list
  • A. Hansen (agency staff)
    Arizona Department of Real Estate
    Listed on distribution list
  • D. Jones (agency staff)
    Arizona Department of Real Estate
    Listed on distribution list
  • D. Gardner (agency staff)
    Arizona Department of Real Estate
    Listed on distribution list
  • N. Cano (agency staff)
    Arizona Department of Real Estate
    Listed on distribution list

Rex E. Duffett vs. Suntech Patio Homes Homeowners Association (ROOT)

Posted on by

Case Summary

Case ID 18F-H1818025-REL / 18F-H1818027-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-24
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rex E. Duffett Counsel —
Respondent Suntech Patio Homes Homeowners Association Counsel Nathan Tennyson

Alleged Violations

CC&Rs
A.R.S. § 33-1805(A)

Outcome Summary

Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.

Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).

Key Issues & Findings

Failure to repair and maintain exterior walls

Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.

Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs
  • 5
  • 17

Failure to provide requested association records

Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.

Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805(A)
  • 19
  • 20
  • 21
  • 22

Analytics Highlights

Topics: HOA, Document Request, Records Disclosure, Maintenance, CC&Rs, Filing Fee Refund
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • A.R.S. § 33-1805(A)
  • CC&Rs

Video Overview

Audio Overview

Decision Documents

18F-H1818025-REL Decision – 630610.pdf

Uploaded 2026-04-24T11:10:12 (114.0 KB)

Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.

The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.

The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.

As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.

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Case Overview

Case Numbers

18F-H1818025-REL and 18F-H1818027-REL (Consolidated)

Petitioner

Rex E. Duffett

Respondent

Suntech Patio Homes Homeowners Association

Hearing Date

April 4, 2018

Decision Date

April 24, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:

1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.

2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.

Petition 1: Failure to Repair Exterior Walls (Denied)

Petitioner’s Allegations and Evidence

• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”

• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”

• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.

• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.

• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.

Respondent’s Position and Evidence

• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.

• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”

• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.

Conclusion of Law and Ruling

• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.

• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”

• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.

Petition 2: Failure to Provide Association Records (Upheld)

Petitioner’s Allegations and Evidence

• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.

• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:

◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.

◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.

◦ A copy of the notice for the last association rate increase.

Respondent’s Position and Evidence

• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.

• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”

• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”

Conclusion of Law and Ruling

• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.

• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”

• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.

Final Order and Implications

The Administrative Law Judge issued the following orders based on the conclusions of law:

Case Number

Subject

Ruling

18F-H1818025-REL

Exterior Wall Repairs

Petition Denied

18F-H1818027-REL

Document Request

Petitioner Deemed Prevailing Party

Directives to the Respondent (Suntech Patio Homes HOA):

1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.

2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.

This order is considered binding on the parties unless a rehearing is granted.

Study Guide: Duffett v. Suntech Patio Homes HOA

This guide provides a comprehensive review of the Administrative Law Judge Decision in the consolidated cases of Rex E. Duffett v. Suntech Patio Homes Homeowners Association, Case Numbers 18F-H1818025-REL and 18F-H1818027-REL. The decision, issued by the Arizona Office of Administrative Hearings, addresses two separate petitions filed by a homeowner against his Homeowners Association (HOA), one concerning property maintenance and the other concerning access to association records.

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Quiz: Short-Answer Questions

Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case decision.

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

2. What were the two distinct allegations made by the Petitioner in the petitions that were consolidated for this hearing?

3. According to the community’s governing documents (CC&Rs), what specific responsibility did the HOA have regarding the exterior of residential units?

4. On what grounds did the Administrative Law Judge rule against the Petitioner in his claim for wall repairs (Case No. 18F-H1818025-REL)?

5. What specific Arizona statute did the Petitioner claim the HOA violated in his second petition regarding access to records (Case No. 18F-H1818027-REL)?

6. Describe the roles and performance of the two management companies, The Management Trust and Pride Community Management, as detailed in the hearing evidence.

7. What was the final outcome of the petition concerning the HOA’s failure to provide documents, and who was named the prevailing party?

8. What specific types of documents did the Petitioner request from the HOA in his fax dated December 22, 2017?

9. What was the legal standard of proof the Petitioner was required to meet, and for which petition did he successfully meet it?

10. What financial penalty was imposed upon the Respondent as part of the final Order?

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Answer Key

1. The Petitioner was Rex E. Duffett, a homeowner who filed the petitions. The Respondent was the Suntech Patio Homes Homeowners Association, the entity Mr. Duffett alleged had violated community rules and state law.

2. The first petition alleged that the HOA violated the CC&Rs by failing to respond to repeated requests for repairs to the exterior walls of his unit. The second petition alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested association documents.

3. A March 1993 amendment to the CC&Rs states that the Suntech Patio Homeowners Association “shall be responsible for the painting and maintenance of the… Exterior walls of all units.”

4. The judge ruled against the Petitioner because he failed to establish his claim by a preponderance of the evidence. The black and white photographs submitted did not clearly show the alleged crack’s location or severity, so the judge could not conclude that a repair was immediately necessary.

5. The Petitioner claimed the HOA violated A.R.S. § 33-1805(A). This statute requires an association to make records reasonably available for examination and to provide copies of requested records within ten business days.

6. The Management Trust was the HOA’s management company when the incidents occurred and failed to properly respond to the Petitioner’s requests. Pride Community Management took over on February 1, 2018, and testified that the transition was difficult due to the sparse documentation initially provided by The Management Trust.

7. The judge ruled in favor of the Petitioner, deeming him the prevailing party in Case Number 18F-H1818027-REL. The judge ordered the HOA to comply with the applicable statute in the future.

8. The Petitioner requested copies of meeting notices and minutes for meetings where rules and regulations were discussed and where the last HOA dues increase was discussed. He also requested a copy of the notice of the last rate increase and any associated signed written consents.

9. The legal standard was “preponderance of the evidence,” defined as evidence with the most convincing force. The Petitioner failed to meet this standard for the wall repair petition but successfully met it for the document request petition.

10. The Respondent (HOA) was ordered to pay the Petitioner his filing fee of $500.00. The payment was to be made directly to the Petitioner within thirty days of the Order.

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Suggested Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a response using only the information and evidence presented in the provided decision.

1. Analyze the concept of “preponderance of the evidence” as it is defined and applied in this case. How did the quality of evidence submitted by the Petitioner lead to two different outcomes for his two petitions?

2. Discuss the role and responsibilities of a homeowners association’s management company, using the actions of The Management Trust and the subsequent challenges faced by Pride Community Management as primary examples. How did the transition between these two companies impact the case?

3. Evaluate the Respondent’s arguments and actions in both petitions. In the wall repair case, what was their stated plan, and why was it ultimately not considered by the judge? In the document request case, what was their defense, and why did it fail?

4. Based on the text of A.R.S. § 33-1805(A), explain the specific obligations of an HOA regarding member requests for records. Detail how the Suntech Patio Homes HOA, through its management, failed to meet these obligations, leading to the ruling against them.

5. Examine the communication breakdown between the Petitioner and the Respondent. Citing specific examples from the “Findings of Fact” and “Hearing Evidence” sections, explain how miscommunication and lack of timely response exacerbated the conflict.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, weighs evidence, and issues a legally binding decision. In this case, the ALJ was Tammy L. Eigenheer.

A.R.S. § 33-1805(A)

An Arizona Revised Statute that legally requires homeowners associations to make financial and other records available for member examination and to provide copies upon request within ten business days.

A.R.S. § 32-2199 et seq.

The section of the Arizona Revised Statutes that grants jurisdiction to the Arizona Department of Real Estate to hear disputes between homeowners and their associations.

Conditions, Covenants and Restrictions (CC&Rs)

The governing legal documents that establish the rules, obligations, and restrictions for a planned community and its homeowners association.

Consolidated for Hearing

A procedural step where two or more separate legal cases involving the same parties are combined into a single hearing for efficiency.

Department

Within the context of this case, refers to the Arizona Department of Real Estate, the state agency where the Petitioner initially filed his petitions.

The final, legally binding ruling issued by the Administrative Law Judge at the conclusion of the hearing.

Petitioner

The party who initiates a legal action by filing a petition. In this case, homeowner Rex E. Duffett.

Preponderance of the Evidence

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

Prevailing Party

The party who is found to have won the legal dispute. The Petitioner was deemed the prevailing party in the document request case.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Suntech Patio Homes Homeowners Association.

A Homeowner Sued His HOA Over a Cracked Wall. He Lost Because of Bad Photocopies.

Introduction: The David vs. Goliath Battle Against Your HOA

For many homeowners, a dispute with their Homeowners Association (HOA) can feel like an uphill battle. It’s a common story of frustration, complex rules, and feeling unheard. The legal case of Rex E. Duffett versus the Suntech Patio Homes HOA is a perfect example, but with a twist. This isn’t just a story about winning or losing; it’s a fascinating cautionary tale filled with surprising lessons for any homeowner navigating a conflict with their association. This breakdown of the real-life administrative court decision reveals the unexpected details that can make or break a case.

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1. Takeaway #1: The Quality of Your Proof Matters More Than the Truth

The dispute began when Rex Duffett filed a petition alleging his HOA had failed to repair a crack in his exterior wall that he claimed was causing a water leak. According to the association’s own CC&Rs, maintaining exterior walls was the HOA’s responsibility. To document the problem, he diligently sent faxes and certified mail to the management company, including photographs of the damage.

Despite his efforts, the Administrative Law Judge denied his petition for repairs.

The reason was as surprising as it was simple: the evidence he submitted was not clear enough. The black and white copies of the photographs he provided at the hearing “did not clearly show any damage.” The judge’s finding was blunt and highlights a critical point for any legal dispute:

The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.

The lesson here is critical. In a legal dispute, having proof is not enough; the proof must be clear, convincing, and well-presented. Mr. Duffett’s primary case failed not because he was necessarily wrong, but because his evidence failed to persuade the judge. In an administrative hearing, a handful of high-resolution color photographs, or even a short video, would have provided irrefutable evidence and could have changed the entire outcome of his primary petition.

2. Takeaway #2: Your HOA is on the Hook for Its Management Company’s Failures

Mr. Duffett also filed a second petition against the HOA for failing to provide records he requested, such as meeting minutes. Under Arizona law (A.R.S. § 33-1805(A)), an association must fulfill such a request within ten business days. The HOA failed to do so.

The root of the problem was the HOA’s previous management company, “The Management Trust.” This company not only failed to respond to the homeowner’s request but also failed to notify the new management company about it. The relationship between the HOA and this vendor was so poor that the HOA had previously tried to terminate the contract, but the management company “refused to acknowledge the termination and held Respondent to the full two year contract.” The transition was chaotic; the old company initially provided only one box of information before later discovering “seven or eight more boxes” in storage.

Even though the management company was clearly at fault, the Judge ruled that the HOA violated the law. This provides a powerful insight for both boards and homeowners: an HOA cannot blame its vendors. Legally, the association is the responsible party. Hiring an incompetent or unresponsive management company creates significant legal and financial liability for the association and, by extension, every homeowner. This is not an abstract risk; in this case, the management company’s failure to forward a simple request directly led to a legal violation that cost the association—and thus, its members—the $500 filing fee ordered by the judge.

3. Takeaway #3: A “Win” Can Be More Complicated Than It Looks

When you look at the final outcome, Mr. Duffett’s case presents a nuanced picture of what a “win” really means in an HOA dispute. The judge issued a split decision:

• Petition for Repairs: Denied. The homeowner lost.

• Petition for Documents: The homeowner was deemed the “prevailing party.” He won.

As the prevailing party in the second petition, the homeowner received a clear victory. The judge ordered the HOA to comply with the document access law in the future and, crucially, to pay the homeowner back his $500 filing fee.

This highlights a common reality in legal disputes: a homeowner can secure a clear procedural victory (enforcing the right to documents and recovering fees) while simultaneously failing to achieve their core substantive goal (getting the wall repaired). The outcome shows that legal victories can be partial and may not address the real-world problem that initiated the dispute in the first place.

4. Takeaway #4: Vague Requests and Messy Records Create Chaos

This case is a masterclass in how poor communication from both sides can create a perfect storm of dysfunction.

First, the homeowner’s request for documents was “somewhat vague.” The new management company testified it was “unclear because rules and regulations are discussed in some form at virtually every meeting.” While the HOA still violated the law by failing to respond at all, this highlights a crucial lesson for homeowners: be as specific and clear as possible in all written communication to avoid ambiguity.

This vague request then ran headlong into the second problem: the HOA’s institutional chaos. The new Community Manager testified that the only relevant document they possessed was the minutes from a single meeting, and that “seven or eight more boxes” of records were missing after a disastrous transition between management companies. The homeowner’s ambiguous request met an organization that likely couldn’t have responded effectively even if it wanted to.

For both sides, meticulous documentation is a shield. For homeowners, a clear, specific, and undeniable paper trail strengthens their position. For HOA boards, organized records are essential for smooth operations, seamless transitions between management companies, and, most importantly, avoiding legal liability.

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Conclusion: The Devil is in the Details

The case of Duffett v. Suntech Patio Homes HOA is a powerful reminder that in legal disputes, the outcome often hinges on the small stuff. Small details—the quality of a photocopy, the precise wording of a request, the competence of a vendor, the location of a box of files—can have massive consequences. They can mean the difference between winning and losing, between getting a problem solved and walking away with only a partial victory.

This case shows how easily things can go wrong. The next time you’re in a dispute, what’s the one small detail you might be overlooking that could change everything?

Case Participants

Petitioner Side

  • Rex E. Duffett (petitioner)

Respondent Side

  • Nathan Tennyson (attorney)
    BROWN/OLCOTT, PLLC
  • Rebecca Stowers (property manager)
    Pride Community Management
    Community Manager
  • Frank Peake (property manager)
    Pride Community Management
    Owner of Pride
  • Shawn Mason (property manager)
    The Management Trust
    Former management company staff

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
  • ncano (ADRE staff)
    Arizona Department of Real Estate
  • F. Del Sol (staff)
    Signed transmission document

Jeff Lion vs. Riggs Ranch Meadows Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1817009-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-01-10
Administrative Law Judge Thomas Shedden
Outcome The Petitioner's petition was dismissed because he failed to appear or provide an authorized representative at the scheduled hearing, resulting in the Respondent being deemed the prevailing party.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jeff Lion Counsel —
Respondent Riggs Ranch Meadows Homeowners Association Counsel Nathan Tennyson

Alleged Violations

Article 8 of the Respondent’s CC&Rs

Outcome Summary

The Petitioner's petition was dismissed because he failed to appear or provide an authorized representative at the scheduled hearing, resulting in the Respondent being deemed the prevailing party.

Why this result: Petitioner failed to appear at the hearing scheduled at his request and failed to provide an authorized representative (as appearances are considered the practice of law under Arizona Supreme Court Rule 31).

Key Issues & Findings

Violation of CC&Rs

Petitioner Jeff Lion alleged that the Respondent violated Article 8 of the CC&Rs.

Orders: Petitioner Jeff Lion’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Arizona Supreme Court Rule 31
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: Dismissal, Failure to Appear, Unauthorized Representation, HOA, CC&R
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Arizona Supreme Court Rule 31
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Video Overview

Audio Overview

Decision Documents

18F-H1817009-REL Decision – 611264.pdf

Uploaded 2026-04-24T11:08:16 (69.6 KB)

18F-H1817009-REL Decision – 611264.pdf

Uploaded 2026-01-23T17:21:53 (69.6 KB)

Briefing Document: Lion v. Riggs Ranch Meadows HOA (Case No. 18F-H1817009-REL)

Executive Summary

This document summarizes the Administrative Law Judge Decision in the case of Jeff Lion (Petitioner) versus Riggs Ranch Meadows Homeowners Association (Respondent). The Petitioner’s case, which alleged a violation of the Respondent’s CC&Rs, was dismissed due to the Petitioner’s failure to appear at the scheduled hearing on January 9, 2018.

The hearing had been rescheduled to this date at the Petitioner’s own request. On the day of the hearing, two witnesses for Mr. Lion appeared but were informed by the tribunal that they could not legally represent him as they were not licensed attorneys, a requirement under Arizona Supreme Court Rule 31. Because no authorized representative for the Petitioner was present, no evidence could be presented to support the claim. Consequently, Administrative Law Judge Thomas Shedden dismissed the petition and designated the Riggs Ranch Meadows Homeowners Association as the prevailing party.

Case Background and Procedural History

The matter originated from a petition filed by Jeff Lion against the Riggs Ranch Meadows Homeowners Association.

• Initial Allegation: Mr. Lion alleged that the Respondent violated Article 8 of its Covenants, Conditions, and Restrictions (CC&Rs).

• Notice of Hearing: On October 2, 2017, the Arizona Department of Real Estate issued a Notice of Hearing, initially scheduling the matter for November 29, 2017, at the Office of Administrative Hearings in Phoenix.

• Continuance: Mr. Lion filed a Motion to Continue the hearing, which was rescheduled for 9:00 a.m. on January 9, 2018, without objection from the Respondent.

Analysis of the January 9, 2018 Hearing

The proceedings on the rescheduled hearing date were pivotal to the case’s outcome.

• Petitioner’s Failure to Appear: Mr. Jeff Lion, the Petitioner, did not appear at the hearing at its scheduled time.

• Attempted Representation by Non-Attorneys: Two witnesses named by Mr. Lion were present. They informed the tribunal that Mr. Lion would not be appearing and that they intended to represent him.

• Tribunal’s Ruling on Representation: The tribunal advised the witnesses that they were legally prohibited from representing Mr. Lion. Citing Arizona Supreme Court Rule 31, the judge clarified that appearances at the Office of Administrative Hearings constitute the practice of law and require representation by an attorney licensed in Arizona. The witnesses confirmed they did not hold such licenses.

• Consequences of Non-Appearance: As there was no authorized representative present for the Petitioner, no evidence was taken. The judge noted that the hearing had been continued to that specific date at Mr. Lion’s request and proceeded to vacate the matter based on his failure to appear.

Legal Findings and Conclusions of Law

The Administrative Law Judge’s decision was grounded in established legal principles and procedural rules.

• Jurisdiction: The Arizona Department of Real Estate was confirmed to have authority over the matter pursuant to ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

• Burden of Proof: The decision reiterated that the party asserting a claim—in this case, Mr. Lion—carries the burden of proof. The standard required was a “preponderance of the evidence,” which is defined as evidence with “the most convincing force” sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

• Core Rationale for Dismissal: The central conclusion of law was that Mr. Lion failed to meet his burden of proof. By not appearing at the hearing he had requested, and by not securing authorized legal representation, he “failed to present any evidence in support of his petition.”

Final Order and Implications

The decision, issued on January 10, 2018, formally concluded the administrative hearing process with a definitive outcome.

• Dismissal of Petition: The Administrative Law Judge ordered that “Petitioner Jeff Lion’s petition is dismissed.”

• Prevailing Party: The Respondent, Riggs Ranch Meadows Homeowners Association, was officially deemed the prevailing party in the matter.

• Post-Decision Options: The order is binding on the parties unless a rehearing is granted. A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order, as stipulated by ARIZ. REV. STAT. § 32-2199.04 and § 41-1092.09.

Key Parties and Representatives

Name/Entity

Contact/Representation Information

Petitioner

Jeff Lion

PO Box 1350, Selma, CA 93662

Respondent

Riggs Ranch Meadows Homeowners Association

Represented by Nathan Tennyson, Esq.

Respondent’s Counsel

Nathan Tennyson, Esq.

BROWN/OLCOTT, PLLC, 373 S. Main Ave., Tucson, AZ 85701

Administrative Law Judge

Thomas Shedden

Office of Administrative Hearings

Overseeing Body

Arizona Department of Real Estate

Commissioner: Judy Lowe

Study Guide for Administrative Law Judge Decision: Lion v. Riggs Ranch Meadows HOA

This study guide provides a review of the Administrative Law Judge Decision in the case of Jeff Lion v. Riggs Ranch Meadows Homeowners Association, Case No. 18F-H1817009-REL. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms found within the document.

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Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, based entirely on the provided legal decision.

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

2. Why was the administrative hearing held on January 9, 2018, instead of the originally scheduled date?

3. Describe the events that occurred at the scheduled hearing time on January 9, 2018.

4. What specific rule was cited by the tribunal to prevent the petitioner’s witnesses from representing him?

5. What is the standard of proof for this matter, and which party had the burden of proof?

6. According to the decision, what was the direct consequence of the petitioner’s failure to have an authorized representative present at the hearing?

7. How does the legal document define the term “preponderance of the evidence”?

8. What was the final order issued by the Administrative Law Judge?

9. Who was identified as the “prevailing party” and why?

10. What option was available to the parties if they disagreed with the judge’s order?

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Answer Key

1. The petitioner was Jeff Lion, and the respondent was the Riggs Ranch Meadows Homeowners Association. Mr. Lion alleged that the respondent had violated Article 8 of its CC&Rs.

2. The hearing was originally set for November 29, 2017. It was rescheduled to January 9, 2018, because the petitioner, Mr. Lion, filed a Motion to Continue, to which the respondent did not object.

3. On January 9, 2018, the petitioner, Jeff Lion, did not appear for the hearing. Two witnesses appeared on his behalf and stated their intention to represent him, but they were not permitted to do so.

4. The tribunal cited Arizona Supreme Court Rule 31, which governs the practice of law. Since the witnesses were not licensed attorneys in Arizona, they were not legally permitted to represent Mr. Lion at the hearing.

5. The standard of proof is a “preponderance of the evidence.” The party asserting the claim, in this case, the petitioner Jeff Lion, had the burden of proof.

6. Because no authorized representative was present for Mr. Lion, no evidence was taken in support of his petition. This failure to present evidence was a key factor in the case’s dismissal.

7. The document defines “preponderance of the evidence” by quoting Black’s Law Dictionary as: “The greater weight of the evidence…that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

8. The final order was that Petitioner Jeff Lion’s petition is dismissed. The decision was issued on January 10, 2018.

9. The Respondent, Riggs Ranch Meadows Homeowners Association, was deemed the prevailing party. This was because Mr. Lion failed to present any evidence in support of his petition, leading to its dismissal.

10. The parties could request a rehearing pursuant to ARIZ. REV. STAT. section 32-2199.04. The request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

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Suggested Essay Questions

Instructions: The following questions are designed for longer, essay-style responses to explore the procedural and legal principles of the case more deeply.

1. Analyze the significance of Arizona Supreme Court Rule 31 in the outcome of this case. How does the principle that appearances at administrative hearings constitute the “practice of law” affect how individuals can pursue claims?

2. Discuss the interrelated concepts of “burden of proof” and “standard of proof” as they apply to this case. Explain why Jeff Lion’s failure to appear made it legally impossible for him to meet the standard of a “preponderance of the evidence.”

3. Evaluate the procedural fairness of the Administrative Law Judge’s decision to dismiss the petition. Consider the timeline of events, including the petitioner’s own request to reschedule the hearing, in your analysis.

4. Based on the “Conclusions of Law” section, construct an argument explaining the logical steps Administrative Law Judge Thomas Shedden took to arrive at the final order of dismissal.

5. Examine the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings as outlined in the document. How do these two entities interact in resolving a dispute initiated by a homeowner against a Homeowners Association?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (Thomas Shedden in this case) who presides over hearings at an administrative agency to resolve disputes.

ARIZ. ADMIN. CODE

The Arizona Administrative Code, a compilation of rules and regulations of Arizona state agencies. Section R2-19-119 is cited as establishing the standard of proof.

ARIZ. REV. STAT.

The Arizona Revised Statutes, which are the laws passed by the Arizona state legislature. Title 32, Chapter 20, Article 11 is cited as giving the Department of Real Estate authority.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to support their claim. In this case, the petitioner (Mr. Lion) had the burden of proof.

Covenants, Conditions, and Restrictions. These are rules governing a planned community or homeowners association. Mr. Lion alleged a violation of Article 8 of the Respondent’s CC&Rs.

Motion to Continue

A formal request made by a party to an administrative tribunal or court to postpone a scheduled hearing to a later date.

Office of Administrative Hearings (OAH)

The state agency where the hearing took place, which conducts hearings for other state agencies.

Petitioner

The party who files a petition or brings a legal action against another party. In this case, Jeff Lion.

Practice of Law

The act of representing others in legal proceedings. The decision states that appearances at the OAH are considered the practice of law and are restricted to licensed attorneys under Arizona Supreme Court Rule 31.

Preponderance of the Evidence

The standard of proof in this case. It is met when the evidence presented is more convincing and has greater weight than the evidence offered in opposition, inclining a fair mind to one side of the issue.

Prevailing Party

The party who wins a legal case or dispute. The Riggs Ranch Meadows Homeowners Association was deemed the prevailing party.

Rehearing

A second hearing of a case to re-examine the issues and the decision. The parties had 30 days to file a request for a rehearing.

Respondent

The party against whom a petition is filed. In this case, the Riggs Ranch Meadows Homeowners Association.

Tribunal

A body established to settle certain types of dispute. In this context, it refers to the Administrative Law Judge presiding over the hearing.

How One Homeowner Lost His Case Against His HOA Before It Even Began

Introduction: The David vs. Goliath Story You Haven’t Heard

Disputes with a Homeowners Association (HOA) are a common source of frustration. It often feels like a David vs. Goliath battle, pitting an individual against a structured organization with rules and resources. When faced with what they believe is an unfair application of those rules, some homeowners decide to fight back.

This was the situation for Jeff Lion, who filed a petition against his HOA, Riggs Ranch Meadows, alleging a violation of Article 8 of its Covenants, Conditions, and Restrictions (CC&Rs). But this story didn’t end with a dramatic debate over property rights. Instead, it was over before it started, derailed by a simple but fatal procedural misstep. This case offers three critical lessons for anyone considering a formal dispute, revealing how understanding the basic rules of the game is far more important than just believing you have a good argument.

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1. The Most Important Step is Showing Up

The central, decisive event of the case was a stunning failure in participation: the petitioner, Jeff Lion, did not appear at the hearing on January 9, 2018. The ultimate procedural irony? This was the exact hearing date that he himself had requested.

The contrast on that day could not have been starker. While Mr. Lion was a no-show for the fight he started, the HOA—the “Goliath” in this story—arrived fully prepared, represented by its attorney, Nathan Tennyson, Esq. The judge’s decision was swift and absolute. Because Mr. Lion did not appear, no evidence was taken, and his petition was dismissed entirely.

This outcome is rooted in a core legal principle known as the “burden of proof.” Simply put, the person making a claim is responsible for presenting evidence to support it. As the one who filed the petition, it was Mr. Lion’s job to prove his case. By failing to appear, he presented zero evidence and could not possibly meet this fundamental burden. The merits of his specific complaint about Article 8 were never even heard, all because of a self-inflicted failure to participate in the process he initiated on the day he chose.

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2. Not Just Anyone Can Speak for You in Court

In a surprising turn, while Mr. Lion was absent, his two named witnesses did appear at the hearing. They informed the judge that the petitioner would not be attending and that they intended to represent him in his absence.

The Administrative Law Judge immediately shut down their attempt. The reason highlights a crucial rule that trips up many non-lawyers: the witnesses were not licensed attorneys, and the law strictly forbids such representation. Appearances at these administrative hearings are legally considered “the practice of law.”

The court’s decision was based on an unambiguous rule, which it cited in its legal conclusions:

Appearances at the Office of Administrative Hearings are considered to be the practice of law. See Arizona Supreme Court Rule 31.

This is a counter-intuitive lesson for many. You might assume a trusted friend, family member, or knowledgeable witness could speak on your behalf. This case demonstrates that the legal system has rigid rules about who is authorized to provide representation. Good intentions and a willingness to help are not enough to grant someone the legal authority to act as your advocate in a formal hearing.

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3. “Winning” is About Tipping the Scale of Evidence

In administrative hearings, the standard for winning is called “a preponderance of the evidence.” This doesn’t mean proving your case beyond all doubt. Think of it like a scale. “Preponderance of the evidence” simply means you have to provide enough evidence to make the scale tip, even just slightly, in your favor.

The formal definition clarifies this concept of relative weight:

The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Applying this standard to Mr. Lion’s case makes the outcome painfully clear. Since he failed to appear and no evidence was taken on his behalf, the “weight” of his evidence was zero. It was therefore impossible for him to tip the scale, no matter how strong his case might have been in theory. Because he presented nothing, Riggs Ranch Meadows was deemed the “prevailing party” by default. This demonstrates how the legal system is a structured process focused on evidence presented according to rules, not just on feelings or the theoretical rightness of a claim.

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Conclusion: The Rules of the Game Matter

The case of Jeff Lion provides a masterclass in legal procedure. The three key lessons are simple but absolute: you must show up to your own hearing, especially one you scheduled; only licensed attorneys can legally represent you; and you must present evidence to meet your burden of proof.

This case wasn’t ultimately about CC&Rs or neighborhood rules; it was about procedure. It serves as a stark reminder that before entering any formal dispute, the first question to ask isn’t “Am I right?” but “Do I understand the rules?”

Case Participants

Petitioner Side

  • Jeff Lion (petitioner)

Respondent Side

  • Nathan Tennyson (respondent attorney)
    BROWN/OLCOTT, PLLC

Neutral Parties

  • Thomas Shedden (ALJ)
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • Felicia Del Sol (ADRE transmission signatory)
  • LDettorre (ADRE recipient)
    Arizona Department of Real Estate
  • AHansen (ADRE recipient)
    Arizona Department of Real Estate
  • djones (ADRE recipient)
    Arizona Department of Real Estate
  • DGardner (ADRE recipient)
    Arizona Department of Real Estate
  • ncano (ADRE recipient)
    Arizona Department of Real Estate

James and Shawna Larson vs. Tempe Gardens Townhouse Corporation

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Case Summary

Case ID 17F-H1717038-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2017-12-11
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner James and Shawna Larson Counsel Lisa M. Hanger
Respondent Tempe Gardens Townhouse Corporation Counsel Nathan Tennyson

Alleged Violations

A.R.S. § 33-1255(C); CC&R sections 9 and 9(b)

Outcome Summary

The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).

Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.

Key Issues & Findings

Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.

Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).

Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1255(C)
  • CC&R section 9
  • CC&R section 9(b)
  • A.R.S. § 33-1212(4)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Analytics Highlights

Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Additional Citations:

  • A.R.S. § 33-1255(C)
  • CC&R section 9
  • CC&R section 9(b)
  • A.R.S. § 33-1212(4)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.09
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona

Video Overview

Audio Overview

Decision Documents

17F-H1717038-REL Decision – 605540.pdf

Uploaded 2026-04-24T11:05:44 (105.0 KB)

17F-H1717038-REL Decision – 583987.pdf

Uploaded 2026-04-24T11:05:48 (53.0 KB)

17F-H1717038-REL Decision – 585505.pdf

Uploaded 2026-04-24T11:05:53 (385.9 KB)

Briefing on Larson v. Tempe Gardens Townhouse Corporation

Executive Summary

This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.

The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.

In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.

Procedural History and Jurisdictional Rulings

Initial Petition and Dismissal Recommendation

On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.

Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.

This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:

• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”

• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.

• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.

• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.

Rejection of Dismissal and Re-Hearing

On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”

• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.

• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”

• This question was deemed sufficient to make the matter “ripe for adjudication.”

• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.

Analysis of the Merits of the Dispute

The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.

Respondent’s (HOA) Case

The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:

• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”

• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.

◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).

◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.

◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.

◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.

Petitioners’ (Larsons’) Case

The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.

• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.

• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:

◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.

◦ A second bid quoted $5,975 to remove and then replace the structure.

• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.

• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.

Final Administrative Law Judge Decision

On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.

Key Findings and Conclusions of Law

Finding/Conclusion

Details

Standard of Review

The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.

Reasonableness of HOA Action

Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.

HOA Authority

CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”

Patio Cover Classification

The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).

Cost Responsibility

The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”

Final Order

Based on these findings, the Administrative Law Judge ordered the following:

“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”

The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.

Study Guide: Larson v. Tempe Gardens Townhouse Corporation

This study guide provides a comprehensive review of the administrative case between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

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Short-Answer Quiz

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

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

2. What was the initial reason given by Administrative Law Judge (ALJ) Suzanne Marwil for recommending the dismissal of the Larsons’ petition?

3. Why did the Commissioner of the Department of Real Estate, Judy Lowe, reject the initial recommendation for dismissal?

4. What was the central dispute that was ultimately decided in the November 20, 2017, hearing?

5. According to the final Administrative Law Judge Decision, what is the legal classification of the petitioners’ patio cover?

6. Which specific sections of the CC&Rs did the Respondent, Tempe Gardens Townhouse Corporation, cite as the basis for its authority?

7. What key reasons did project manager Wayne King provide to justify the necessity of removing the patio covers for the painting project?

8. Describe the significant difference in the cost estimates for removing and replacing the patio cover as presented by the Petitioners versus the Respondent’s project manager.

9. What was the final ruling regarding who was financially responsible for the removal and potential reinstallation of the patio cover?

10. What was the ultimate outcome of the Larsons’ petition following the final hearing, and which party was deemed the “prevailing party”?

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Answer Key

1. The primary parties were the Petitioners, homeowners James and Shawna Larson, and the Respondent, the Tempe Gardens Townhouse Corporation, which is their homeowner’s association (HOA). The dispute arose from the HOA’s plan to repair and paint the building exteriors.

2. ALJ Marwil initially recommended dismissal due to a “lack of justiciable controversy.” She found that the Petitioners had failed to cite any provision of the CC&Rs that the Respondent had currently violated, as the threatened action to remove the patio cover was speculative and had not yet occurred.

3. Commissioner Lowe rejected the dismissal because she found the matter was “ripe for adjudication.” Her decision was based on a June 1, 2017 letter from the Respondent that questioned whether “the presence of the awning [is] a violation of the Association’s governing documents,” which she interpreted as the Respondent alleging a violation.

4. The central dispute was whether the Tempe Gardens Townhouse Corporation had the authority to mandate that homeowners, specifically the Larsons, remove their patio covers at their own expense to facilitate a building repair and painting project.

5. The final decision classifies the Petitioners’ patio cover as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4). This classification was crucial to determining financial responsibility.

6. The Respondent cited sections 9 and 9(b) of the CC&Rs. Section 9(b) makes the Respondent responsible for maintaining building exteriors, and section 9 grants it the authority to take “Any cooperative action necessary or appropriate to the proper maintenance and upkeep” of those exteriors.

7. Wayne King testified that removal was necessary to properly and safely complete the work using scaffolding, as required by modern safety laws. He also stated that removal was needed to repair improperly flashed areas behind the covers and to ensure the painting contractor would provide a warranty for the project.

8. The Petitioners presented bids showing the cost to remove and rebuild the cover would be between $3,980 and $5,975. In contrast, Mr. King opined these estimates were very high and that the cost should be closer to $1,000 if existing materials were reused.

9. The final ruling, based on ARIZ. REV. STAT. section 33-1255(C), was that the Petitioners must bear the cost of removing the patio cover and, if they choose, the cost of reinstalling it. This is because the patio cover is a limited common element assigned specifically to their unit.

10. The final outcome was the dismissal of the Larsons’ petition. The Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party in the matter.

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Essay Questions

The following questions are designed for a more in-depth analysis. Use the provided documents to construct a detailed, evidence-based response.

1. Trace the procedural history of this case from the initial filing to the final decision. Discuss the key turning points, including the initial recommendation for dismissal, its rejection by the Commissioner, and the reasoning behind the final judgment.

2. Analyze the legal arguments presented by both the Petitioners and the Respondent in the November 2017 hearing. On what specific statutes and CC&R provisions did each side rely, and how did the Administrative Law Judge ultimately interpret these documents?

3. Evaluate the role of expert testimony in this case, specifically focusing on the evidence provided by project manager Wayne King. How did his testimony regarding safety, project requirements, and cost estimates influence the Administrative Law Judge’s findings on the reasonableness of the Respondent’s actions?

4. Discuss the legal concept of a “limited common element” as defined and applied in the source documents. Explain how this classification was central to the final decision regarding financial responsibility for the patio cover’s removal and reinstallation.

5. The initial Administrative Law Judge found no “justiciable controversy,” while the Commissioner later found the matter “ripe for adjudication.” Based on the details in all three documents, explain the arguments for both positions and analyze why the case ultimately proceeded to a full hearing.

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Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

An official in the Office of Administrative Hearings who adjudicates complaints regarding condominium and planned community documents and ensures compliance with relevant statutes.

Covenants, Conditions, and Restrictions. The documents that govern the community and are described as a contract between the homeowner’s association and the homeowners.

Justiciable Controversy

A real dispute that a tribunal has the authority to resolve. The initial petition was recommended for dismissal for a lack of a justiciable controversy because the Respondent’s threatened actions were deemed speculative.

Limited Common Element

A legal classification for property defined under ARIZ. REV. STAT. section 33-1212(4). In this case, the Petitioners’ patio cover was classified as such, meaning any common expense associated with its maintenance, repair, or replacement is assessed against the unit to which it is assigned.

Petition

The formal document filed with the Department of Real Estate to initiate a complaint against a homeowner’s association.

Petitioner

The party that files a petition initiating a legal action. In this case, the homeowners James and Shawna Larson.

Preponderance of the Evidence

The standard of proof required 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.”

Prevailing Party

The party that is successful in a legal dispute. In the final order, the Respondent was deemed the prevailing party.

Respondent

The party against whom a petition is filed. In this case, the Tempe Gardens Townhouse Corporation.

Ripe for Adjudication

A term used by the Commissioner of the Department of Real Estate to indicate that a dispute is ready to be formally heard and decided by the Administrative Law Judge.

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17F-H1717038-REL-RHG

3 sources

These documents chronicle the legal dispute between James and Shawna Larson (Petitioners) and the Tempe Gardens Townhouse Corporation (Respondent) concerning the removal of the Larsons’ patio cover for building maintenance. Initially, an Administrative Law Judge (ALJ) recommended dismissal because the Petitioners did not allege a current violation of the governing documents, thus lacking a justiciable controversy since the association had only threatened action. However, the Department of Real Estate Commissioner rejected this recommendation, asserting that a violation of the governing documents was alleged by the Respondent, making the matter ripe for adjudication. Following a rehearing, a different ALJ issued a final decision finding that the Respondent acted reasonably in requiring the patio cover removal for safe and proper painting and repairs, concluding that the Petitioners must bear the cost of removal and reinstallation as the cover is a limited common element.

3 sources

Based on 3 sources

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Case Participants

Petitioner Side

  • James Larson (petitioner)
  • Shawna Larson (petitioner)
  • Lisa M. Hanger (attorney)
    Counsel for Petitioners

Respondent Side

  • Nathan Tennyson (attorney)
    Brown Alcott PLLC
    Counsel for Respondent Tempe Gardens Townhouse Corporation
  • Wayne King (witness)
    Project manager hired by Respondent for the painting project; provided testimony

Neutral Parties

  • Suzanne Marwil (ALJ)
    Office of Administrative Hearings
    Authored Recommended Order Dismissal dated August 25, 2017
  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
    Authored Administrative Law Judge Decision dated December 11, 2017
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Rejected Recommendation of Dismissal
  • Dan Gardner (HOA coordinator)
    Transmitted documents (Order Rejecting Recommendation of Dismissal)

Other Participants

  • Chris Morga (contractor)
    Jacob and Co.
    Mentioned as a vendor who could remove patio covers