The Administrative Law Judge, following a rehearing, affirmed the original decision, concluding that the Petitioner failed to sustain the burden of proof that the Respondent HOA violated CC&R Article X regarding the denial of an architectural modification request for a patio shade. The Respondent was found to have acted in compliance with the community documents, and the appeal was dismissed.
Why this result: Petitioner failed to meet the burden of proof to establish a violation of the CC&R's and failed to follow the procedural requirements necessary to appeal a deemed disapproval under CC&R Section 10.3.
Key Issues & Findings
Denial of request for patio shade structure and alleged violation of response timeline
Petitioner challenged the HOA's denial of his application for a patio shade, arguing the denial was improper because the shade would be attached (not a separate structure) and that the HOA missed the 30-day response deadline. The ALJ determined that the HOA's denial based on the 'only one structure other than the residence' rule (since a shed already existed) complied with the non-exhaustive Architectural Committee Standards (Article X, 10.2). Regarding the delayed response, the ALJ noted that Section 10.3 mandated that a late response results in the request being 'deemed disapproved,' and the Petitioner failed to subsequently request the required appeal meeting.
Orders: The Administrative Law Judge concluded that Petitioner failed to sustain the burden of proof that the Respondent violated Article X of the CC&R’s. The Respondent was declared the prevailing party, and the Petitioner's appeal (rehearing) was dismissed.
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020042-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-04-27
Administrative Law Judge
Adam D. Stone
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Charles P Mandela
Counsel
—
Respondent
Blue Ridge Estates Homeowners' Association
Counsel
Nicholas Nogami, Esq.
Alleged Violations
CC&R Article X; A.R.S. § 41-2198.01
Outcome Summary
The Administrative Law Judge concluded that the Petitioner failed to sustain the burden of proof that the Respondent HOA violated Article X of the CC&R’s regarding the denial of an architectural modification request (patio shade). The Respondent was found to be the prevailing party, and the appeal (rehearing) was dismissed.
Why this result: Petitioner failed to establish a violation of the CC&R's by a preponderance of the evidence. The ALJ concluded the Respondent acted in compliance with the CC&R’s Section 10.2 and 10.3 when denying the request, and Petitioner failed to follow the requisite procedures in Section 10.3 to appeal the denial.
Key Issues & Findings
Denial of request for patio shade structure
Petitioner challenged the HOA's denial of his application to build a patio shade. The HOA denied the request stating that 'Only one structure other than the residence may be placed on the property,' and a shed already existed. Petitioner argued the shade, being attached, was not a stand-alone structure. The ALJ upheld the denial, finding the HOA acted in compliance with CC&Rs Article X, Sections 10.2 and 10.3, and that Petitioner failed to follow appeal procedures outlined in Section 10.3.
Orders: Petitioner's appeal (rehearing request) was dismissed, and Respondent was declared the prevailing party.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 41-2198.01
CC&R Article X
CC&R Section 10.3
A.R.S. § 32-2199.02(A)
A.A.C. R2-19-119(A)
Analytics Highlights
Topics: HOA, CC&R, Architectural Review, Denial, Rehearing, Burden of proof
Briefing on Mandela v. Blue Ridge Estates Homeowners’ Association
Executive Summary
This document synthesizes the findings from two administrative law judge decisions concerning a dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association (“Blue Ridge”). The core issue was Blue Ridge’s denial of Mr. Mandela’s request to build a patio shade structure.
In the initial hearing on January 13, 2021, Mr. Mandela argued the denial was erroneous because the shade would be attached to his house, not a separate structure, and that similar structures existed in the community. Blue Ridge defended its decision based on Article X of its Covenants, Conditions, and Restrictions (CC&Rs), which limits properties to one structure besides the main residence. The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, finding that Blue Ridge acted within the authority granted by its CC&Rs, as its architectural standards were not exhaustive and it provided a reasonably detailed written reason for the denial.
Following this decision, Mr. Mandela was granted a rehearing, which took place on April 16, 2021. During this second hearing, he introduced a new argument that Blue Ridge had violated Article 10.3 of the CC&Rs by failing to respond to his request within the stipulated 30-day timeframe. However, the ALJ found that the same article specifies that a failure to respond results in the request being “deemed disapproved.” The ALJ concluded that Mr. Mandela had failed to follow the subsequent appeal procedures outlined in the CC&Rs and again failed to meet his burden of proof. Consequently, the appeal was dismissed, and Blue Ridge was declared the prevailing party. Notably, during the rehearing, Mr. Mandela testified that his request for the patio shade had since been approved by the Blue Ridge board.
Initial Hearing and Decision (Case No. 20F-H2020042-REL)
The first evidentiary hearing was held on January 13, 2021, before Administrative Law Judge Adam D. Stone to address Mr. Mandela’s petition alleging Blue Ridge violated its CC&Rs.
The Core Dispute
• Petitioner’s Request: On August 28, 2019, Charles P. Mandela submitted a request to build a “patio shade less than 200 sq. feet,” described as a four-post structure he intended to attach to the east wall of his residence.
• Respondent’s Denial: On October 25, 2019, Blue Ridge denied the request, stating: “Only one structure other than the residence may be placed on the property. The site plan that was given for review shows the residence and also a shed on property already existing, this would be the allowable limit per the Architectural Standards.”
Arguments Presented
• Petitioner (Charles P. Mandela):
◦ Argued passionately that the denial was erroneous because the patio shade was to be attached to the house, not a separate, stand-alone structure.
◦ Presented photographs of other properties within Blue Ridge Estates that had multiple structures and stand-alone patio shades similar to his proposal.
• Respondent (Blue Ridge Estates HOA):
◦ Contended it properly followed Article X of the CC&Rs in its denial.
◦ At the hearing, Blue Ridge pointed to Article III of the CC&Rs as justification, classifying the proposed shade as an additional structure on the property.
Judge’s Findings and Conclusions
The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, concluding he had not established by a preponderance of the evidence that Blue Ridge violated Article X of the CC&Rs.
• Interpretation of CC&R Section 10.2: The judge found that the architectural standards listed in this section were explicitly not exhaustive. The text states standards “may include, without limitation, provisions regarding” aspects like size, design, and placement. This allowed the architectural committee to deny the request based on the “one additional structure” rule, even if not explicitly listed.
• Compliance with CC&R Section 10.3: This section requires the committee to provide “reasonably detailed written reasons for such disapproval.” The judge found that the denial email of October 25, 2019, fulfilled this requirement. The email did not need to cite a specific CC&R section, only to provide an explanation.
• On Precedent and Fairness: The ALJ acknowledged Mr. Mandela’s evidence of similar structures on other properties. However, the decision noted: “While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.”
• Final Ruling: The petition was denied in a decision dated January 29, 2021.
Rehearing and Final Decision (Case No. 20F-H2020042-REL-RHG)
Mr. Mandela filed for a rehearing on February 5, 2021, on the grounds that the decision was arbitrary, capricious, or not supported by evidence. The Arizona Department of Real Estate Commissioner granted the request, and a new hearing was held on April 16, 2021.
New Testimony and Arguments
• Petitioner (Charles P. Mandela):
◦ Subsequent Approval: Testified that since the January 29, 2021 decision, his request for the patio shade had been approved by the Blue Ridge board.
◦ Procedural Violation: Argued that Blue Ridge violated CC&R Section 10.3 by failing to respond to his August 28, 2019, request within the required 30-day period, as the denial was not issued until October 25, 2019.
◦ History of Denials: Stated he had made several previous requests in 2018 and 2019 that were either denied or ignored.
◦ Discrimination: Claimed he had been discriminated against due to the previous denials.
• Respondent (Blue Ridge Estates HOA):
◦ Interpretation of Section 10.3: Argued that while the section may be “confusingly drafted,” it stipulates that if the committee fails to respond within 30 days, the request is “deemed disapproved.” Therefore, the board acted within its authority.
◦ Failure to Appeal: Contended that Mr. Mandela failed to follow the proper appeal procedure outlined in the CC&Rs, as he never specifically requested a meeting to discuss the denial.
Judge’s Final Findings and Conclusions
The ALJ affirmed the original decision, finding for the Respondent as the prevailing party and dismissing Mr. Mandela’s appeal.
• Scope of Rehearing: The judge determined that the rehearing was limited to the August 28, 2019, request and its subsequent denial, as that was the sole focus of the original petition. Mr. Mandela’s arguments about prior denials were not considered new evidence relevant to the specific violation alleged.
• Interpretation of the 30-Day Rule: The ALJ sided with the HOA’s interpretation of Section 10.3. While acknowledging that Blue Ridge took more than thirty days to issue a written denial, the judge ruled that the CC&R’s provision for a “deemed disapproved” status meant the request was properly denied under the rules.
• Petitioner’s Failure to Follow Procedure: The judge noted that Mr. Mandela admitted he did not formally request a meeting with the Architectural Committee after the denial, which was the required next step in the appeal process under Section 10.3.
• Final Ruling: The final decision, dated April 27, 2021, concluded that Mr. Mandela failed to sustain his burden of proof. The HOA was found to have acted in compliance with the CC&Rs, and the appeal was dismissed. This order was declared binding on the parties.
Timeline of Key Events
August 28, 2019
Charles Mandela submits his request to build a patio shade.
October 25, 2019
Blue Ridge HOA denies the request via email, citing the one-additional-structure limit.
January 13, 2020
Mandela files a petition with the Arizona Department of Real Estate.
January 13, 2021
The first evidentiary hearing is held before the Office of Administrative Hearings.
January 29, 2021
The Administrative Law Judge (ALJ) issues a decision denying Mandela’s petition.
February 5, 2021
Mandela files a request for a rehearing.
March 15, 2021
The Commissioner of the Department of Real Estate grants the rehearing request.
April 16, 2021
The rehearing is conducted.
April 27, 2021
The ALJ issues a final decision, finding for the HOA and dismissing Mandela’s appeal.
Central CC&R Provision: Article X, Section 10.3
The most heavily debated provision was Section 10.3 of the Blue Ridge Estates CC&Rs, which outlines the procedure for architectural requests. Its language was central to the outcome of the rehearing.
Key text from Section 10.3:
“The Architectural Committee shall have thirty (30) days after receipt of such plans, specifications, and elevations to approve or disapprove of the proposed construction… In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved and the Owner can then request a meeting with the Architectural Committee to discuss the reasons for such disapproval…”
This clause was interpreted by the ALJ to mean that the HOA’s failure to provide a written response within 30 days automatically constituted a denial, shifting the burden to the homeowner to request a follow-up meeting, a step Mr. Mandela did not take.
Study Guide – 20F-H2020042-REL-RHG
Study Guide: Mandela v. Blue Ridge Estates Homeowners’ Association
This study guide provides a comprehensive review of the administrative legal dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association, as detailed in the Administrative Law Judge Decisions from January 29, 2021, and April 27, 2021. The case centers on the denial of an architectural request and the interpretation of the association’s governing documents (CC&Rs).
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Quiz: Key Facts and Arguments
Answer the following questions in 2-3 sentences each, based on the provided legal decisions.
1. Who were the primary parties in this case, and what were their roles?
2. What specific structure did Charles P. Mandela request approval to build on August 28, 2019?
3. What was the initial reason given by the Blue Ridge Estates HOA for denying Mr. Mandela’s request on October 25, 2019?
4. What was Mr. Mandela’s central argument during the first hearing on January 13, 2021?
5. According to the decision from the first hearing, why did the Administrative Law Judge rule that the HOA’s denial was in compliance with Section 10.2 of the CC&Rs?
6. On what grounds did Mr. Mandela file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 5, 2021?
7. During the rehearing, what new argument did Mr. Mandela raise concerning the timeline of the HOA’s denial of his August 28, 2019 request?
8. How did the HOA’s legal counsel counter Mr. Mandela’s argument regarding the 30-day response time outlined in Section 10.3?
9. What procedural step, outlined in Section 10.3, did Mr. Mandela admit he failed to take after his request was deemed denied?
10. What was the final outcome of the rehearing on April 16, 2021, and what was the judge’s conclusion regarding the HOA’s actions?
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Answer Key
1. The primary parties were Petitioner Charles P. Mandela, a homeowner, and Respondent Blue Ridge Estates Homeowners’ Association of Coconino County. Mr. Mandela filed the petition against the HOA after it denied his request to build a patio shade.
2. On August 28, 2019, Mr. Mandela requested approval to build a “patio shade less than 200 sq. feet.” The structure was a four-post shade that he intended to attach to the east side wall of his residence.
3. The HOA denied the request based on Architectural Committee Standards Article X. The denial stated that only one structure other than the residence may be placed on the property, and Mr. Mandela already had a residence and a shed.
4. Mr. Mandela’s central argument was that the denial was erroneous because the patio shade was not a separate stand-alone structure. He planned to attach it to his house, and he presented photographs of other properties with similar structures.
5. The judge ruled the denial complied with Section 10.2 because the list of standards the Architectural Committee could enforce was “not an exhaustive one.” This meant the committee could properly deny the request based on the one-structure limit, even if it wasn’t explicitly enumerated.
6. Mr. Mandela requested a rehearing on the grounds that the findings of fact were arbitrary, capricious, or an abuse of discretion. He also claimed the decision was not supported by the evidence or was contrary to law.
7. During the rehearing, Mr. Mandela argued that the Board violated Section 10.3 of the CC&Rs. He contended that since he made his request on August 28, 2019, and the Board did not respond until October 25, 2019, it had failed to provide a written response within the required 30-day period.
8. The HOA’s counsel argued that while Section 10.3 may be “confusingly drafted,” it specifies that if the committee fails to approve or disapprove within the 30-day period, the request is “deemed disapproved.” Therefore, the Board was within its authority.
9. Mr. Mandela admitted that he did not formally request a meeting with the Architectural Committee to discuss the reasons for the disapproval. This is the procedural step required by Section 10.3 after a request is deemed denied.
10. The final outcome was that the petition was dismissed, and the Respondent (HOA) was declared the prevailing party. The judge concluded that the HOA had not violated the CC&Rs and had acted in compliance with its governing documents.
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Essay Questions for Further Study
The following questions are designed to promote a deeper analysis of the case. Formulate a comprehensive response to each, citing specific details from the legal decisions.
1. Analyze the interpretation of CC&R Section 10.3, specifically the “deemed disapproved” clause. Discuss how this clause functioned as a key legal defense for the HOA and ultimately shaped the outcome of the rehearing.
2. The legal standard in this case was “a preponderance of the evidence.” Define this standard as described in the legal text and evaluate the evidence Mr. Mandela presented in both hearings. Why did the Administrative Law Judge conclude that Mr. Mandela failed to meet his burden of proof?
3. Compare and contrast the arguments presented by the Petitioner and Respondent in the initial hearing (January 13, 2021) versus the rehearing (April 16, 2021). How did the focus of the legal arguments shift between the two proceedings?
4. Examine the authority and jurisdiction of the Architectural Committee as outlined in CC&R Section 10.2. Discuss the significance of the phrase “Such standards and procedures may include, without limitation, provisions regarding…” in the judge’s initial decision.
5. Trace the procedural history of this case, from Mr. Mandela’s initial request in August 2019 to the final order in April 2021. Identify at least four key procedural milestones and explain their significance to the case’s progression and ultimate resolution.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge, in this case Adam D. Stone, who presides over hearings at the Office of Administrative Hearings and makes decisions on petitions concerning disputes regulated by state agencies.
Architectural Committee
A body within the Blue Ridge Estates HOA established by Article X of the CC&Rs, with jurisdiction over all original construction and any modifications, additions, or alterations to the exterior of homes or properties.
Arizona Department of Real Estate
The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations and the associations themselves in Arizona.
Burden of Proof
The obligation of a party in a legal proceeding to produce evidence that proves the facts it claims are true. In this case, the Petitioner (Mr. Mandela) bore the burden of proof.
An abbreviation for Covenants, Conditions, and Restrictions, which are the governing legal documents for a planned community like Blue Ridge Estates. This case centered on the interpretation of Article X of the Blue Ridge CC&Rs.
Homeowners’ Association (HOA)
The governing organization for a planned community. In this case, the Respondent was the Blue Ridge Estates Homeowners Association of Coconino County.
Motion to Dismiss
A formal request filed by a party asking for a lawsuit or petition to be dismissed. The Blue Ridge HOA filed a Motion to Dismiss, which was denied on October 7, 2020, allowing the case to proceed.
Office of Administrative Hearings
An independent state agency in Arizona where petitions related to disputes with HOAs are sent for an evidentiary hearing before an Administrative Law Judge.
Petitioner
The party who files a petition initiating a legal action. In this case, Charles P. Mandela was the Petitioner.
Preponderance of the Evidence
The standard of proof required in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” representing the greater weight of evidence.
Rehearing
A second hearing granted to review a legal decision. Mr. Mandela was granted a rehearing after the initial decision, based on his claim that the findings were arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this case, the Blue Ridge Estates Homeowners’ Association was the Respondent.
Tribunal
A term used in the documents to refer to the judicial body hearing the case, specifically the Office of Administrative Hearings and the presiding Administrative Law Judge.
Blog Post – 20F-H2020042-REL-RHG
He Fought the HOA Over a Patio and Lost. Here Are 5 Shocking Lessons Every Homeowner Needs to Learn.
Introduction: The Perils of a Simple Home Improvement Project
For any homeowner, the excitement of a new project—a deck, a fence, or a simple patio shade—can quickly turn to frustration when it collides with the dense rulebook of a Homeowners’ Association (HOA). What seems like a straightforward improvement can become a complex battle of bylaws and procedures.
This was the reality for Charles P. Mandela, a homeowner in the Blue Ridge Estates community. His plan to build a simple patio shade was denied by his HOA, sparking a legal challenge that went before an Administrative Law Judge. While Mr. Mandela ultimately lost his case on its legal merits, the details of his fight offer a masterclass in the surprising and often counter-intuitive world of HOA governance. This article distills the most shocking lessons from his case, providing critical insights for any homeowner living under an HOA.
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1. The “Deemed Disapproved” Clause: How an HOA’s Silence Becomes a Legal “No”
Mr. Mandela submitted his request to build a patio shade on August 28, 2019. He argued that the HOA, Blue Ridge Estates, violated its own rules, which required a response within 30 days. The HOA didn’t send its formal denial until October 25, 2019, well past the deadline. On the surface, it seemed like a clear procedural violation by the HOA.
However, a bizarre and “unartfully drafted” clause hidden in the HOA’s governing documents (CC&Rs) turned this logic on its head. The rule stated:
In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved…
Contrary to common sense, the rule meant that the HOA’s failure to respond on time resulted in an automatic denial, not a pending approval. The Administrative Law Judge was bound by this text, concluding that because the 30-day period had passed without a formal approval, the request was “properly deemed denied.”
2. The “My Neighbor Has One” Argument Is Weaker Than You Think
To support his case, Mr. Mandela presented photographs showing that “similar shades exist on other properties with additional structures.” He argued that the HOA was engaging in selective enforcement by denying his project while having approved others like it. This is one of the most frequent arguments homeowners make when they feel singled out by their HOA board.
The judge’s conclusion was a stunning reality check. The legal decision stated:
While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.
The legal reasoning here is crucial for homeowners to understand. Architectural committees are not static; members change, and so can their interpretation of aesthetic standards. Each application is legally considered a distinct request, evaluated under the rules in place at that moment. A previous committee’s approval—which may have even been a mistake or a variance granted under different circumstances—does not create a binding legal precedent that forces the current committee to repeat it.
3. Procedure is Everything: A Missed Step Can Cost You the Case
The HOA’s rules contained a specific process for appealing a denial. After a project is “deemed disapproved” because the 30-day clock ran out, the homeowner must then formally request a meeting with the committee to discuss the denial.
The judge found that Mr. Mandela had failed to take this critical next step. This procedural misstep, however small it might seem, became a key factor in the case against him. The decision hinged on this procedural failure, stating:
Further, Petitioner admitted that in his several email responses that he did not formally request a meeting with the Architectural Committee, thus he failed to follow the procedures in Section 10.3.
This highlights a crucial lesson: meticulously follow every single procedural step outlined in your HOA’s documents. Failure to do so, such as not using the correct language to request a meeting, can be used to dismiss your claim, regardless of its other merits.
4. “Unartfully Drafted” Rules Can Still Be Legally Binding
Even the Administrative Law Judge acknowledged the poor quality of the HOA’s rulebook. In the decision, the judge offered a candid assessment of the rule regarding the 30-day response time, stating, “Admittedly this section is unartfully drafted…”
Despite this observation, the rule was enforced exactly as written. The judge was bound by the text, however confusing, and concluded that “from the evidence presented, the request was properly deemed denied.”
This is perhaps the most sobering lesson. Homeowners often assume that a rule that is confusing or seems illogical won’t hold up under scrutiny. This case proves that the literal text of the governing documents possesses immense power. What a rule literally says is far more important than what one might assume it should mean.
5. The Final Twist: He Lost the Case But Got His Patio Anyway
After the initial decision was made against him, Mr. Mandela requested a rehearing. During this second hearing, a surprising fact emerged. Mr. Mandela testified that “since the decision on January 29, 2021, his request for the patio shade had been approved by the Board.”
This outcome highlights a crucial dynamic: while Mr. Mandela lost the legal argument based on procedural history, his persistent engagement in the process—including filing a formal appeal—likely created enough administrative and community pressure to compel the Board to find a practical, non-legal solution. It’s a powerful reminder that a legal loss on a technicality does not always foreclose a real-world victory.
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Conclusion: Do You Really Know Your HOA’s Rules?
The case of Charles Mandela serves as a powerful cautionary tale. It reveals that HOA disputes are rarely won on appeals to fairness or common sense. Instead, they are won or lost in the fine print of the governing documents—documents that can contain counter-intuitive clauses, procedural traps, and “unartfully drafted” rules that are nonetheless legally binding.
A homeowner’s best defense is not passion or conviction, but a deep and thorough understanding of the specific rules and procedures they agreed to live by. This case forces every homeowner to ask: Are you prepared to navigate the literal text of your community’s rules, where silence can mean “no” and a neighbor’s precedent is no precedent at all?
Case Participants
Petitioner Side
Charles P Mandela(petitioner)
Respondent Side
Nicholas Nogami(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020042-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-04-27
Administrative Law Judge
Adam D. Stone
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Charles P Mandela
Counsel
—
Respondent
Blue Ridge Estates Homeowners' Association
Counsel
Nicholas Nogami, Esq.
Alleged Violations
CC&R Article X; CC&R Section 10.3
Outcome Summary
The Administrative Law Judge, following a rehearing, affirmed the original decision, concluding that the Petitioner failed to sustain the burden of proof that the Respondent HOA violated CC&R Article X regarding the denial of an architectural modification request for a patio shade. The Respondent was found to have acted in compliance with the community documents, and the appeal was dismissed.
Why this result: Petitioner failed to meet the burden of proof to establish a violation of the CC&R's and failed to follow the procedural requirements necessary to appeal a deemed disapproval under CC&R Section 10.3.
Key Issues & Findings
Denial of request for patio shade structure and alleged violation of response timeline
Petitioner challenged the HOA's denial of his application for a patio shade, arguing the denial was improper because the shade would be attached (not a separate structure) and that the HOA missed the 30-day response deadline. The ALJ determined that the HOA's denial based on the 'only one structure other than the residence' rule (since a shed already existed) complied with the non-exhaustive Architectural Committee Standards (Article X, 10.2). Regarding the delayed response, the ALJ noted that Section 10.3 mandated that a late response results in the request being 'deemed disapproved,' and the Petitioner failed to subsequently request the required appeal meeting.
Orders: The Administrative Law Judge concluded that Petitioner failed to sustain the burden of proof that the Respondent violated Article X of the CC&R’s. The Respondent was declared the prevailing party, and the Petitioner's appeal (rehearing) was dismissed.
Briefing on Mandela v. Blue Ridge Estates Homeowners’ Association
Executive Summary
This document synthesizes the findings from two administrative law judge decisions concerning a dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association (“Blue Ridge”). The core issue was Blue Ridge’s denial of Mr. Mandela’s request to build a patio shade structure.
In the initial hearing on January 13, 2021, Mr. Mandela argued the denial was erroneous because the shade would be attached to his house, not a separate structure, and that similar structures existed in the community. Blue Ridge defended its decision based on Article X of its Covenants, Conditions, and Restrictions (CC&Rs), which limits properties to one structure besides the main residence. The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, finding that Blue Ridge acted within the authority granted by its CC&Rs, as its architectural standards were not exhaustive and it provided a reasonably detailed written reason for the denial.
Following this decision, Mr. Mandela was granted a rehearing, which took place on April 16, 2021. During this second hearing, he introduced a new argument that Blue Ridge had violated Article 10.3 of the CC&Rs by failing to respond to his request within the stipulated 30-day timeframe. However, the ALJ found that the same article specifies that a failure to respond results in the request being “deemed disapproved.” The ALJ concluded that Mr. Mandela had failed to follow the subsequent appeal procedures outlined in the CC&Rs and again failed to meet his burden of proof. Consequently, the appeal was dismissed, and Blue Ridge was declared the prevailing party. Notably, during the rehearing, Mr. Mandela testified that his request for the patio shade had since been approved by the Blue Ridge board.
Initial Hearing and Decision (Case No. 20F-H2020042-REL)
The first evidentiary hearing was held on January 13, 2021, before Administrative Law Judge Adam D. Stone to address Mr. Mandela’s petition alleging Blue Ridge violated its CC&Rs.
The Core Dispute
• Petitioner’s Request: On August 28, 2019, Charles P. Mandela submitted a request to build a “patio shade less than 200 sq. feet,” described as a four-post structure he intended to attach to the east wall of his residence.
• Respondent’s Denial: On October 25, 2019, Blue Ridge denied the request, stating: “Only one structure other than the residence may be placed on the property. The site plan that was given for review shows the residence and also a shed on property already existing, this would be the allowable limit per the Architectural Standards.”
Arguments Presented
• Petitioner (Charles P. Mandela):
◦ Argued passionately that the denial was erroneous because the patio shade was to be attached to the house, not a separate, stand-alone structure.
◦ Presented photographs of other properties within Blue Ridge Estates that had multiple structures and stand-alone patio shades similar to his proposal.
• Respondent (Blue Ridge Estates HOA):
◦ Contended it properly followed Article X of the CC&Rs in its denial.
◦ At the hearing, Blue Ridge pointed to Article III of the CC&Rs as justification, classifying the proposed shade as an additional structure on the property.
Judge’s Findings and Conclusions
The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, concluding he had not established by a preponderance of the evidence that Blue Ridge violated Article X of the CC&Rs.
• Interpretation of CC&R Section 10.2: The judge found that the architectural standards listed in this section were explicitly not exhaustive. The text states standards “may include, without limitation, provisions regarding” aspects like size, design, and placement. This allowed the architectural committee to deny the request based on the “one additional structure” rule, even if not explicitly listed.
• Compliance with CC&R Section 10.3: This section requires the committee to provide “reasonably detailed written reasons for such disapproval.” The judge found that the denial email of October 25, 2019, fulfilled this requirement. The email did not need to cite a specific CC&R section, only to provide an explanation.
• On Precedent and Fairness: The ALJ acknowledged Mr. Mandela’s evidence of similar structures on other properties. However, the decision noted: “While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.”
• Final Ruling: The petition was denied in a decision dated January 29, 2021.
Rehearing and Final Decision (Case No. 20F-H2020042-REL-RHG)
Mr. Mandela filed for a rehearing on February 5, 2021, on the grounds that the decision was arbitrary, capricious, or not supported by evidence. The Arizona Department of Real Estate Commissioner granted the request, and a new hearing was held on April 16, 2021.
New Testimony and Arguments
• Petitioner (Charles P. Mandela):
◦ Subsequent Approval: Testified that since the January 29, 2021 decision, his request for the patio shade had been approved by the Blue Ridge board.
◦ Procedural Violation: Argued that Blue Ridge violated CC&R Section 10.3 by failing to respond to his August 28, 2019, request within the required 30-day period, as the denial was not issued until October 25, 2019.
◦ History of Denials: Stated he had made several previous requests in 2018 and 2019 that were either denied or ignored.
◦ Discrimination: Claimed he had been discriminated against due to the previous denials.
• Respondent (Blue Ridge Estates HOA):
◦ Interpretation of Section 10.3: Argued that while the section may be “confusingly drafted,” it stipulates that if the committee fails to respond within 30 days, the request is “deemed disapproved.” Therefore, the board acted within its authority.
◦ Failure to Appeal: Contended that Mr. Mandela failed to follow the proper appeal procedure outlined in the CC&Rs, as he never specifically requested a meeting to discuss the denial.
Judge’s Final Findings and Conclusions
The ALJ affirmed the original decision, finding for the Respondent as the prevailing party and dismissing Mr. Mandela’s appeal.
• Scope of Rehearing: The judge determined that the rehearing was limited to the August 28, 2019, request and its subsequent denial, as that was the sole focus of the original petition. Mr. Mandela’s arguments about prior denials were not considered new evidence relevant to the specific violation alleged.
• Interpretation of the 30-Day Rule: The ALJ sided with the HOA’s interpretation of Section 10.3. While acknowledging that Blue Ridge took more than thirty days to issue a written denial, the judge ruled that the CC&R’s provision for a “deemed disapproved” status meant the request was properly denied under the rules.
• Petitioner’s Failure to Follow Procedure: The judge noted that Mr. Mandela admitted he did not formally request a meeting with the Architectural Committee after the denial, which was the required next step in the appeal process under Section 10.3.
• Final Ruling: The final decision, dated April 27, 2021, concluded that Mr. Mandela failed to sustain his burden of proof. The HOA was found to have acted in compliance with the CC&Rs, and the appeal was dismissed. This order was declared binding on the parties.
Timeline of Key Events
August 28, 2019
Charles Mandela submits his request to build a patio shade.
October 25, 2019
Blue Ridge HOA denies the request via email, citing the one-additional-structure limit.
January 13, 2020
Mandela files a petition with the Arizona Department of Real Estate.
January 13, 2021
The first evidentiary hearing is held before the Office of Administrative Hearings.
January 29, 2021
The Administrative Law Judge (ALJ) issues a decision denying Mandela’s petition.
February 5, 2021
Mandela files a request for a rehearing.
March 15, 2021
The Commissioner of the Department of Real Estate grants the rehearing request.
April 16, 2021
The rehearing is conducted.
April 27, 2021
The ALJ issues a final decision, finding for the HOA and dismissing Mandela’s appeal.
Central CC&R Provision: Article X, Section 10.3
The most heavily debated provision was Section 10.3 of the Blue Ridge Estates CC&Rs, which outlines the procedure for architectural requests. Its language was central to the outcome of the rehearing.
Key text from Section 10.3:
“The Architectural Committee shall have thirty (30) days after receipt of such plans, specifications, and elevations to approve or disapprove of the proposed construction… In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved and the Owner can then request a meeting with the Architectural Committee to discuss the reasons for such disapproval…”
This clause was interpreted by the ALJ to mean that the HOA’s failure to provide a written response within 30 days automatically constituted a denial, shifting the burden to the homeowner to request a follow-up meeting, a step Mr. Mandela did not take.
Study Guide – 20F-H2020042-REL-RHG
Study Guide: Mandela v. Blue Ridge Estates Homeowners’ Association
This study guide provides a comprehensive review of the administrative legal dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association, as detailed in the Administrative Law Judge Decisions from January 29, 2021, and April 27, 2021. The case centers on the denial of an architectural request and the interpretation of the association’s governing documents (CC&Rs).
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Quiz: Key Facts and Arguments
Answer the following questions in 2-3 sentences each, based on the provided legal decisions.
1. Who were the primary parties in this case, and what were their roles?
2. What specific structure did Charles P. Mandela request approval to build on August 28, 2019?
3. What was the initial reason given by the Blue Ridge Estates HOA for denying Mr. Mandela’s request on October 25, 2019?
4. What was Mr. Mandela’s central argument during the first hearing on January 13, 2021?
5. According to the decision from the first hearing, why did the Administrative Law Judge rule that the HOA’s denial was in compliance with Section 10.2 of the CC&Rs?
6. On what grounds did Mr. Mandela file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 5, 2021?
7. During the rehearing, what new argument did Mr. Mandela raise concerning the timeline of the HOA’s denial of his August 28, 2019 request?
8. How did the HOA’s legal counsel counter Mr. Mandela’s argument regarding the 30-day response time outlined in Section 10.3?
9. What procedural step, outlined in Section 10.3, did Mr. Mandela admit he failed to take after his request was deemed denied?
10. What was the final outcome of the rehearing on April 16, 2021, and what was the judge’s conclusion regarding the HOA’s actions?
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Answer Key
1. The primary parties were Petitioner Charles P. Mandela, a homeowner, and Respondent Blue Ridge Estates Homeowners’ Association of Coconino County. Mr. Mandela filed the petition against the HOA after it denied his request to build a patio shade.
2. On August 28, 2019, Mr. Mandela requested approval to build a “patio shade less than 200 sq. feet.” The structure was a four-post shade that he intended to attach to the east side wall of his residence.
3. The HOA denied the request based on Architectural Committee Standards Article X. The denial stated that only one structure other than the residence may be placed on the property, and Mr. Mandela already had a residence and a shed.
4. Mr. Mandela’s central argument was that the denial was erroneous because the patio shade was not a separate stand-alone structure. He planned to attach it to his house, and he presented photographs of other properties with similar structures.
5. The judge ruled the denial complied with Section 10.2 because the list of standards the Architectural Committee could enforce was “not an exhaustive one.” This meant the committee could properly deny the request based on the one-structure limit, even if it wasn’t explicitly enumerated.
6. Mr. Mandela requested a rehearing on the grounds that the findings of fact were arbitrary, capricious, or an abuse of discretion. He also claimed the decision was not supported by the evidence or was contrary to law.
7. During the rehearing, Mr. Mandela argued that the Board violated Section 10.3 of the CC&Rs. He contended that since he made his request on August 28, 2019, and the Board did not respond until October 25, 2019, it had failed to provide a written response within the required 30-day period.
8. The HOA’s counsel argued that while Section 10.3 may be “confusingly drafted,” it specifies that if the committee fails to approve or disapprove within the 30-day period, the request is “deemed disapproved.” Therefore, the Board was within its authority.
9. Mr. Mandela admitted that he did not formally request a meeting with the Architectural Committee to discuss the reasons for the disapproval. This is the procedural step required by Section 10.3 after a request is deemed denied.
10. The final outcome was that the petition was dismissed, and the Respondent (HOA) was declared the prevailing party. The judge concluded that the HOA had not violated the CC&Rs and had acted in compliance with its governing documents.
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Essay Questions for Further Study
The following questions are designed to promote a deeper analysis of the case. Formulate a comprehensive response to each, citing specific details from the legal decisions.
1. Analyze the interpretation of CC&R Section 10.3, specifically the “deemed disapproved” clause. Discuss how this clause functioned as a key legal defense for the HOA and ultimately shaped the outcome of the rehearing.
2. The legal standard in this case was “a preponderance of the evidence.” Define this standard as described in the legal text and evaluate the evidence Mr. Mandela presented in both hearings. Why did the Administrative Law Judge conclude that Mr. Mandela failed to meet his burden of proof?
3. Compare and contrast the arguments presented by the Petitioner and Respondent in the initial hearing (January 13, 2021) versus the rehearing (April 16, 2021). How did the focus of the legal arguments shift between the two proceedings?
4. Examine the authority and jurisdiction of the Architectural Committee as outlined in CC&R Section 10.2. Discuss the significance of the phrase “Such standards and procedures may include, without limitation, provisions regarding…” in the judge’s initial decision.
5. Trace the procedural history of this case, from Mr. Mandela’s initial request in August 2019 to the final order in April 2021. Identify at least four key procedural milestones and explain their significance to the case’s progression and ultimate resolution.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge, in this case Adam D. Stone, who presides over hearings at the Office of Administrative Hearings and makes decisions on petitions concerning disputes regulated by state agencies.
Architectural Committee
A body within the Blue Ridge Estates HOA established by Article X of the CC&Rs, with jurisdiction over all original construction and any modifications, additions, or alterations to the exterior of homes or properties.
Arizona Department of Real Estate
The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations and the associations themselves in Arizona.
Burden of Proof
The obligation of a party in a legal proceeding to produce evidence that proves the facts it claims are true. In this case, the Petitioner (Mr. Mandela) bore the burden of proof.
An abbreviation for Covenants, Conditions, and Restrictions, which are the governing legal documents for a planned community like Blue Ridge Estates. This case centered on the interpretation of Article X of the Blue Ridge CC&Rs.
Homeowners’ Association (HOA)
The governing organization for a planned community. In this case, the Respondent was the Blue Ridge Estates Homeowners Association of Coconino County.
Motion to Dismiss
A formal request filed by a party asking for a lawsuit or petition to be dismissed. The Blue Ridge HOA filed a Motion to Dismiss, which was denied on October 7, 2020, allowing the case to proceed.
Office of Administrative Hearings
An independent state agency in Arizona where petitions related to disputes with HOAs are sent for an evidentiary hearing before an Administrative Law Judge.
Petitioner
The party who files a petition initiating a legal action. In this case, Charles P. Mandela was the Petitioner.
Preponderance of the Evidence
The standard of proof required in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” representing the greater weight of evidence.
Rehearing
A second hearing granted to review a legal decision. Mr. Mandela was granted a rehearing after the initial decision, based on his claim that the findings were arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this case, the Blue Ridge Estates Homeowners’ Association was the Respondent.
Tribunal
A term used in the documents to refer to the judicial body hearing the case, specifically the Office of Administrative Hearings and the presiding Administrative Law Judge.
Blog Post – 20F-H2020042-REL-RHG
He Fought the HOA Over a Patio and Lost. Here Are 5 Shocking Lessons Every Homeowner Needs to Learn.
Introduction: The Perils of a Simple Home Improvement Project
For any homeowner, the excitement of a new project—a deck, a fence, or a simple patio shade—can quickly turn to frustration when it collides with the dense rulebook of a Homeowners’ Association (HOA). What seems like a straightforward improvement can become a complex battle of bylaws and procedures.
This was the reality for Charles P. Mandela, a homeowner in the Blue Ridge Estates community. His plan to build a simple patio shade was denied by his HOA, sparking a legal challenge that went before an Administrative Law Judge. While Mr. Mandela ultimately lost his case on its legal merits, the details of his fight offer a masterclass in the surprising and often counter-intuitive world of HOA governance. This article distills the most shocking lessons from his case, providing critical insights for any homeowner living under an HOA.
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1. The “Deemed Disapproved” Clause: How an HOA’s Silence Becomes a Legal “No”
Mr. Mandela submitted his request to build a patio shade on August 28, 2019. He argued that the HOA, Blue Ridge Estates, violated its own rules, which required a response within 30 days. The HOA didn’t send its formal denial until October 25, 2019, well past the deadline. On the surface, it seemed like a clear procedural violation by the HOA.
However, a bizarre and “unartfully drafted” clause hidden in the HOA’s governing documents (CC&Rs) turned this logic on its head. The rule stated:
In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved…
Contrary to common sense, the rule meant that the HOA’s failure to respond on time resulted in an automatic denial, not a pending approval. The Administrative Law Judge was bound by this text, concluding that because the 30-day period had passed without a formal approval, the request was “properly deemed denied.”
2. The “My Neighbor Has One” Argument Is Weaker Than You Think
To support his case, Mr. Mandela presented photographs showing that “similar shades exist on other properties with additional structures.” He argued that the HOA was engaging in selective enforcement by denying his project while having approved others like it. This is one of the most frequent arguments homeowners make when they feel singled out by their HOA board.
The judge’s conclusion was a stunning reality check. The legal decision stated:
While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.
The legal reasoning here is crucial for homeowners to understand. Architectural committees are not static; members change, and so can their interpretation of aesthetic standards. Each application is legally considered a distinct request, evaluated under the rules in place at that moment. A previous committee’s approval—which may have even been a mistake or a variance granted under different circumstances—does not create a binding legal precedent that forces the current committee to repeat it.
3. Procedure is Everything: A Missed Step Can Cost You the Case
The HOA’s rules contained a specific process for appealing a denial. After a project is “deemed disapproved” because the 30-day clock ran out, the homeowner must then formally request a meeting with the committee to discuss the denial.
The judge found that Mr. Mandela had failed to take this critical next step. This procedural misstep, however small it might seem, became a key factor in the case against him. The decision hinged on this procedural failure, stating:
Further, Petitioner admitted that in his several email responses that he did not formally request a meeting with the Architectural Committee, thus he failed to follow the procedures in Section 10.3.
This highlights a crucial lesson: meticulously follow every single procedural step outlined in your HOA’s documents. Failure to do so, such as not using the correct language to request a meeting, can be used to dismiss your claim, regardless of its other merits.
4. “Unartfully Drafted” Rules Can Still Be Legally Binding
Even the Administrative Law Judge acknowledged the poor quality of the HOA’s rulebook. In the decision, the judge offered a candid assessment of the rule regarding the 30-day response time, stating, “Admittedly this section is unartfully drafted…”
Despite this observation, the rule was enforced exactly as written. The judge was bound by the text, however confusing, and concluded that “from the evidence presented, the request was properly deemed denied.”
This is perhaps the most sobering lesson. Homeowners often assume that a rule that is confusing or seems illogical won’t hold up under scrutiny. This case proves that the literal text of the governing documents possesses immense power. What a rule literally says is far more important than what one might assume it should mean.
5. The Final Twist: He Lost the Case But Got His Patio Anyway
After the initial decision was made against him, Mr. Mandela requested a rehearing. During this second hearing, a surprising fact emerged. Mr. Mandela testified that “since the decision on January 29, 2021, his request for the patio shade had been approved by the Board.”
This outcome highlights a crucial dynamic: while Mr. Mandela lost the legal argument based on procedural history, his persistent engagement in the process—including filing a formal appeal—likely created enough administrative and community pressure to compel the Board to find a practical, non-legal solution. It’s a powerful reminder that a legal loss on a technicality does not always foreclose a real-world victory.
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Conclusion: Do You Really Know Your HOA’s Rules?
The case of Charles Mandela serves as a powerful cautionary tale. It reveals that HOA disputes are rarely won on appeals to fairness or common sense. Instead, they are won or lost in the fine print of the governing documents—documents that can contain counter-intuitive clauses, procedural traps, and “unartfully drafted” rules that are nonetheless legally binding.
A homeowner’s best defense is not passion or conviction, but a deep and thorough understanding of the specific rules and procedures they agreed to live by. This case forces every homeowner to ask: Are you prepared to navigate the literal text of your community’s rules, where silence can mean “no” and a neighbor’s precedent is no precedent at all?
Case Participants
Petitioner Side
Charles P Mandela(petitioner)
Respondent Side
Nicholas Nogami(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020049-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-03-08
Administrative Law Judge
Jenna Clark
Outcome
loss
Filing Fees Refunded
$500.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Michael J Stoltenberg
Counsel
—
Respondent
Rancho Del Oro Homeowners Association
Counsel
Nicole Payne, Esq.
Alleged Violations
CC&Rs Section 14.8
Outcome Summary
The Administrative Law Judge denied the Petitioner's petition following a rehearing. The ALJ concluded that the Petitioner failed to sustain the burden of proof that the Association violated CC&Rs Section 14.8, as that section applies only to the Association's notice obligation to members and not to assessment payments sent by members to the Association.
Why this result: The Petitioner failed to meet the burden of proof because the CC&R provision cited was inapplicable to the dispute. Additionally, the Petitioner was found to have inadvertently caused delays in payment receipt by using restricted delivery, contrary to instructions.
Key Issues & Findings
Whether the Association violated CC&Rs 14.8.
Petitioner alleged the Association violated CC&Rs Section 14.8 by failing to handle his monthly assessment payments correctly, resulting in late fees and threats of foreclosure. The ALJ found that Section 14.8 governs the Association's notice obligations to members and is inapplicable to the Petitioner's delivery of assessment payments to the Association.
Orders: Petitioner's petition was denied on rehearing.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1243
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Analytics Highlights
Topics: CC&Rs, Assessments, Late Fees, Notice Provision, Burden of Proof, Rehearing
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1243
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association
Executive Summary
This document synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The Petitioner’s complaint, alleging the Association violated its governing documents and acted in bad faith regarding the handling of his monthly assessment payments, was comprehensively reviewed and ultimately denied. This denial was subsequently affirmed in a rehearing.
The core of the dispute centered on the Petitioner’s unilateral decision to send his monthly payments via restricted U.S. Postal Service delivery to a specific, unpaid volunteer board member. This action, taken despite clear instructions to mail payments to the Association’s P.O. Box, resulted in delayed receipt and returned mail, leading to the imposition of late fees and threats of foreclosure against the Petitioner.
The Administrative Law Judge’s central finding was that the Petitioner fundamentally misinterpreted Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs). The judge concluded this section is unambiguously applicable only to notices sent from the Association to its members, and imposes no obligations on the Association regarding mail received from members. The payment delays and resulting penalties were determined to be the direct consequence of the Petitioner’s own “volitionally took” actions, for which the Association bore no responsibility. Furthermore, the Petitioner’s claims of “bad faith” under Arizona’s nonprofit corporation statutes were dismissed as falling outside the jurisdictional authority of the Arizona Department of Real Estate and the Office of Administrative Hearings.
I. Case Overview
The legal matter concerns a petition filed by a homeowner against his condominium association, alleging violations of the community’s governing documents and state law.
Case Number
20F-H2020049-REL / 20F-H2020049-REL-RHG
Petitioner
Michael J. Stoltenberg
Respondent
Rancho Del Oro Homeowners Association
Adjudicating Body
Arizona Office of Administrative Hearings (OAH)
Administrative Law Judge
Jenna Clark
The Petitioner’s initial complaint, filed on March 2, 2020, alleged that the Association “fail to do their job, and are acting in bad faith,” specifically citing violations of ARIZ. REV. STAT. §§ 10-3842 and 10-801, and Section 14.8 of the Association’s CC&Rs. He sought an order compelling the Association’s compliance and the issuance of a civil penalty.
II. Procedural History and Timeline
The dispute progressed through an initial hearing, a decision, a granted request for rehearing, and a final binding order.
• March 2, 2020: Petitioner files a single-issue petition with the Arizona Department of Real Estate (“Department”).
• March 24, 2020: Respondent files an ANSWER, denying all complaint items.
• April 1, 2020: The Department refers the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
• July 14, 2020: The initial evidentiary hearing is held.
• August 3, 2020: An AMENDED ADMINISTRATIVE LAW JUDGE DECISION is issued, denying the Petitioner’s petition.
• August 28, 2020: Petitioner submits a request for a rehearing.
• September 9, 2020: The Petitioner’s request for a rehearing is granted.
• February 16, 2021: A rehearing is held before the same Administrative Law Judge.
• March 8, 2021: A final ADMINISTRATIVE LAW JUDGE DECISION is issued, again denying the Petitioner’s petition.
III. Central Dispute: Assessment Payments and CC&R Section 14.8
The conflict originated from the Petitioner’s method of submitting monthly assessment payments and his interpretation of the Association’s obligations under its CC&Rs.
The Petitioner’s Actions and Their Consequences
• Instruction: On January 4, 2016, the Petitioner was advised that the Association’s “primary address for receiving all correspondence and all assessment payments from its members” was PO Box 4333, Yuma, Arizona 85366.
• Unilateral Change in Method: Beginning in November 2019, the Petitioner began sending his monthly payments via restricted delivery through the United States Postal Service (USPS), designated for “board member Rhea Carlisle’s pickup only.”
• Petitioner’s Rationale: He took this action based on a belief that an agent of the Association’s property management company had previously thrown away one of his mailed payments.
• Petitioner’s Acknowledged Awareness: The Petitioner was aware that the Association employed a property management company to collect mail and that Ms. Carlisle was an “unpaid volunteer board member,” not an employee of that company.
• Resulting Delays and Penalties: This restricted delivery method caused significant issues.
◦ One payment was returned by USPS on January 25, 2020.
◦ Another was returned by USPS on June 8, 2020.
◦ Other payments were picked up late on various dates.
◦ For each instance where the payment was received late, the Petitioner was assessed a late fee and his residence was placed in danger of foreclosure.
The Disputed Provision: CC&Rs Section 14.8
The legal basis for the Petitioner’s claim rested on his interpretation of Section 14.8 of the Association’s Bylaws.
• Full Text of Section 14.8, Notices:
• Respondent’s Argument: The Association argued that this section was “inapplicable to the facts as presented” because it governs the Association’s obligation when sending notices to homeowners, not the other way around.
IV. Administrative Law Judge’s Findings and Conclusions
Across two separate decisions, the Administrative Law Judge (ALJ) consistently found that the Petitioner failed to meet his burden of proof and that his interpretation of the governing documents was incorrect.
Initial Decision (August 3, 2020)
• Inapplicability of Section 14.8: The ALJ’s primary conclusion was a complete rejection of the Petitioner’s legal argument.
• Petitioner’s Culpability: The ALJ placed the responsibility for the late payments squarely on the Petitioner.
• Outcome: The petition was denied.
Rehearing Decision (March 8, 2021)
The rehearing was granted on the Petitioner’s grounds of an alleged “Error in the admission or rejection of evidence or other errors of law” and that the initial decision was “arbitrary, capricious, or an abuse of discretion.” The ALJ found no merit in these claims.
• Reaffirmation of Core Finding: The ALJ reiterated and strengthened the conclusion regarding Section 14.8.
• Jurisdictional Ruling: The ALJ explicitly addressed the Petitioner’s “bad faith” claim by citing ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers of nonprofit corporations.
• Failure to Support Rehearing Claims: The ALJ noted a complete lack of new evidence to justify the rehearing.
• Final Outcome: The petition was again denied. The order was made final and binding, with any further appeal requiring judicial review in superior court.
Study Guide – 20F-H2020049-REL-RHG
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based entirely on the provided legal documents.
1. Who are the two primary parties in case No. 20F-H2020049-REL, and what are their respective roles?
2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?
3. Why did the Petitioner, beginning in November 2019, change the way he mailed his monthly assessment payments?
4. What is the specific subject of Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs)?
5. What were the consequences for the Petitioner each time the Association received his monthly assessment payment late?
6. According to the Administrative Law Judge, why was Section 14.8 of the CC&Rs inapplicable to the facts of this case?
7. What was the legal standard of proof the Petitioner was required to meet, and what is its definition?
8. On what grounds did the Petitioner request and receive a rehearing after the initial decision was issued?
9. Why did the Administrative Law Judge dismiss the Petitioner’s argument regarding Arizona Revised Statutes § 10-3842 during the rehearing?
10. What was the final outcome of both the initial hearing on July 14, 2020, and the rehearing on February 16, 2021?
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Quiz Answer Key
1. The primary parties are Michael J Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” The Petitioner is a condominium owner and member of the Association who filed a petition alleging violations, while the Respondent is the homeowners’ association that governs the development.
2. The Petitioner alleged that the Association was in violation of Arizona Revised Statutes §§ 10-3842 and 10-801, and section 14.8 of the Association’s CC&Rs. Specifically, he alleged that the Association “fail to do their job, and are acting in bad faith.”
3. The Petitioner changed his mailing method because he believed an agent of the Association’s property management company had thrown away one of his mailed payments. As a result, he began sending payments via restricted delivery by the USPS, for board member Rhea Carlisle’s pickup only.
4. Section 14.8, titled “Notices,” pertains to any notice permitted or required by the Declaration or Bylaws. It specifically addresses the Association’s notice obligation to its members when mailing them information, outlining when such notices are deemed delivered.
5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence put his residence in danger of foreclosure by the Association.
6. The Judge concluded Section 14.8 was inapplicable because its language speaks specifically to the Association’s obligation to provide notice to its members. The section has no binding authority or control over homeowners sending mail to the Association.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as “proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with the most convincing force that inclines an impartial mind to one side of an issue.
8. The Petitioner’s rehearing request was granted on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.” He also claimed that the initial findings of fact or decision were “arbitrary, capricious, or an abuse of discretion.”
9. The argument regarding ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers, was dismissed because it falls outside of the Department of Real Estate’s jurisdiction. The Petitioner had been advised of the Department’s jurisdictional limitations when he first filed his petition.
10. In both the initial decision (dated August 03, 2020) and the final order after the rehearing (dated March 08, 2021), the Administrative Law Judge denied the Petitioner’s petition. The Judge concluded in both instances that the Petitioner failed to sustain his burden of proof.
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Essay Questions
Instructions: The following questions are designed to be answered in a detailed essay format, synthesizing information from across the provided documents. Answers are not provided.
1. Analyze the legal reasoning used by Administrative Law Judge Jenna Clark to deny the Petitioner’s claims in both the initial hearing and the rehearing. Discuss the interpretation of CC&R Section 14.8, the concept of burden of proof, and jurisdictional limitations.
2. Trace the complete procedural history of case No. 20F-H2020049-REL from the filing of the petition to the final order. Include all key dates, actions taken by the parties and the Department, and the specific reasons for each major step, such as the granting of the rehearing.
3. Evaluate the actions taken by the Petitioner, Michael Stoltenberg, regarding his assessment payments. Explain why his unilateral decision to use restricted mail delivery, despite being aware of the Association’s procedures, ultimately caused the negative outcomes he sought to avoid.
4. Explain the contractual relationship between a homeowners’ association and a property owner as described in the legal documents. How do the CC&Rs function as an enforceable contract, and how was this concept central to the dispute?
5. Discuss the roles and authorities of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH) in resolving HOA disputes, as demonstrated by this case. What are their powers, and what specific limitations on their jurisdiction are identified in the text?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues findings of fact, conclusions of law, and an order. In this case, the ALJ was Jenna Clark.
Arizona Department of Real Estate (Department)
The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Association
The Rancho Del Oro Homeowners Association, a condominium association whose membership is comprised of the condominium owners in the Rancho Del Oro residential real estate development in Yuma, Arizona.
Board of Directors (the Board)
The body that oversees the Homeowners Association.
Burden of Proof
The obligation of a party in a legal proceeding to prove their contention. In this case, the Petitioner bore the burden of proving the Respondent violated the CC&Rs.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These governing documents form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate refers matters for an evidentiary hearing. The OAH has the authority to hear and decide contested cases and interpret the contract (CC&Rs) between parties.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael J Stoltenberg, a homeowner and member of the Association.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.
Statutory Agent
An individual listed as an official agent for an entity. For the years 2019 and 2020, Diana Crites was listed as the Association’s Statutory Agent.
Abbreviation for the United States Postal Service.
Blog Post – 20F-H2020049-REL-RHG
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based entirely on the provided legal documents.
1. Who are the two primary parties in case No. 20F-H2020049-REL, and what are their respective roles?
2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?
3. Why did the Petitioner, beginning in November 2019, change the way he mailed his monthly assessment payments?
4. What is the specific subject of Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs)?
5. What were the consequences for the Petitioner each time the Association received his monthly assessment payment late?
6. According to the Administrative Law Judge, why was Section 14.8 of the CC&Rs inapplicable to the facts of this case?
7. What was the legal standard of proof the Petitioner was required to meet, and what is its definition?
8. On what grounds did the Petitioner request and receive a rehearing after the initial decision was issued?
9. Why did the Administrative Law Judge dismiss the Petitioner’s argument regarding Arizona Revised Statutes § 10-3842 during the rehearing?
10. What was the final outcome of both the initial hearing on July 14, 2020, and the rehearing on February 16, 2021?
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Quiz Answer Key
1. The primary parties are Michael J Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” The Petitioner is a condominium owner and member of the Association who filed a petition alleging violations, while the Respondent is the homeowners’ association that governs the development.
2. The Petitioner alleged that the Association was in violation of Arizona Revised Statutes §§ 10-3842 and 10-801, and section 14.8 of the Association’s CC&Rs. Specifically, he alleged that the Association “fail to do their job, and are acting in bad faith.”
3. The Petitioner changed his mailing method because he believed an agent of the Association’s property management company had thrown away one of his mailed payments. As a result, he began sending payments via restricted delivery by the USPS, for board member Rhea Carlisle’s pickup only.
4. Section 14.8, titled “Notices,” pertains to any notice permitted or required by the Declaration or Bylaws. It specifically addresses the Association’s notice obligation to its members when mailing them information, outlining when such notices are deemed delivered.
5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence put his residence in danger of foreclosure by the Association.
6. The Judge concluded Section 14.8 was inapplicable because its language speaks specifically to the Association’s obligation to provide notice to its members. The section has no binding authority or control over homeowners sending mail to the Association.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as “proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with the most convincing force that inclines an impartial mind to one side of an issue.
8. The Petitioner’s rehearing request was granted on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.” He also claimed that the initial findings of fact or decision were “arbitrary, capricious, or an abuse of discretion.”
9. The argument regarding ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers, was dismissed because it falls outside of the Department of Real Estate’s jurisdiction. The Petitioner had been advised of the Department’s jurisdictional limitations when he first filed his petition.
10. In both the initial decision (dated August 03, 2020) and the final order after the rehearing (dated March 08, 2021), the Administrative Law Judge denied the Petitioner’s petition. The Judge concluded in both instances that the Petitioner failed to sustain his burden of proof.
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Essay Questions
Instructions: The following questions are designed to be answered in a detailed essay format, synthesizing information from across the provided documents. Answers are not provided.
1. Analyze the legal reasoning used by Administrative Law Judge Jenna Clark to deny the Petitioner’s claims in both the initial hearing and the rehearing. Discuss the interpretation of CC&R Section 14.8, the concept of burden of proof, and jurisdictional limitations.
2. Trace the complete procedural history of case No. 20F-H2020049-REL from the filing of the petition to the final order. Include all key dates, actions taken by the parties and the Department, and the specific reasons for each major step, such as the granting of the rehearing.
3. Evaluate the actions taken by the Petitioner, Michael Stoltenberg, regarding his assessment payments. Explain why his unilateral decision to use restricted mail delivery, despite being aware of the Association’s procedures, ultimately caused the negative outcomes he sought to avoid.
4. Explain the contractual relationship between a homeowners’ association and a property owner as described in the legal documents. How do the CC&Rs function as an enforceable contract, and how was this concept central to the dispute?
5. Discuss the roles and authorities of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH) in resolving HOA disputes, as demonstrated by this case. What are their powers, and what specific limitations on their jurisdiction are identified in the text?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues findings of fact, conclusions of law, and an order. In this case, the ALJ was Jenna Clark.
Arizona Department of Real Estate (Department)
The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Association
The Rancho Del Oro Homeowners Association, a condominium association whose membership is comprised of the condominium owners in the Rancho Del Oro residential real estate development in Yuma, Arizona.
Board of Directors (the Board)
The body that oversees the Homeowners Association.
Burden of Proof
The obligation of a party in a legal proceeding to prove their contention. In this case, the Petitioner bore the burden of proving the Respondent violated the CC&Rs.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These governing documents form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate refers matters for an evidentiary hearing. The OAH has the authority to hear and decide contested cases and interpret the contract (CC&Rs) between parties.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael J Stoltenberg, a homeowner and member of the Association.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.
Statutory Agent
An individual listed as an official agent for an entity. For the years 2019 and 2020, Diana Crites was listed as the Association’s Statutory Agent.
Abbreviation for the United States Postal Service.
Case Participants
Petitioner Side
Michael J Stoltenberg(petitioner) Rancho Del Oro condominium owner Appeared on his own behalf,
Respondent Side
Nicole Payne(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Appeared on behalf of Rancho Del Oro Homeowners Association,,
Rhea Carlisle(board member) Rancho Del Oro Homeowners Association Unpaid volunteer board member; Petitioner directed mail specifically to her,,,
Diana Crites(statutory agent) Rancho Del Oro Homeowners Association Statutory Agent for 2019 and 2020,
Lydia Peirce(HOA attorney staff/contact) Linsmeier Carpenter, Hazlewood, Delgado & Bolen, LLP Listed as contact for Respondent in 2020 decision transmission
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE commissioner) Arizona Department of Real Estate Commissioner receiving the OAH order,
Dan Gardner(HOA coordinator) Arizona Department of Real Estate HOA Coordinator contact for the Commissioner
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020051-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-01-08
Administrative Law Judge
Kay Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Debra K. Morin
Counsel
—
Respondent
Solera Chandler Homeowners' Association, Inc.
Counsel
Lydia A. Perce Linsmeier, Esq.
Alleged Violations
CC&R Article 7, Section 7.1
Outcome Summary
The Administrative Law Judge concluded that Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents regarding the maintenance of Areas of Association Responsibility (AREAS). The Tribunal dismissed the Petition and the subsequent Rehearing Appeal, finding Solera was in compliance with CC&R Article 7, Section 7.1.
Why this result: The Petitioner failed to prove by a preponderance of the evidence that Solera violated its governing documents. The CC&Rs grant the Board the authority to be the "sole judge" as to appropriate maintenance, repair, and replacement of all AREAS.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to meet the maintenance standard required by CC&R Article 7, Section 7.1, citing various examples of disrepair, including weeds, sidewalks, and streets, and arguing the same standard applied to homeowners must apply to the HOA. The Tribunal rejected this, finding that the CC&Rs designate the Board as the sole judge regarding appropriate maintenance, and Petitioner failed to meet the burden of proof to show a violation.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents, including CC&R Article 7, Section 7.1, and the Petition/Rehearing Appeal was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&R Article 7, Section 7.1
CC&R Article 9, Section 9.5
A.R.S. § 32-2199.02(B)
Analytics Highlights
Topics: HOA, Maintenance, CC&Rs, Jurisdiction, Burden of Proof, Rehearing
Additional Citations:
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.09
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 41-1092
A.R.S. § 32-2199.05
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Briefing Document: Morin v. Solera Chandler Homeowners’ Association, Inc.
Executive Summary
This briefing document synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin (Petitioner), and the Solera Chandler Homeowners’ Association, Inc. (Respondent/Solera). The case centered on the Petitioner’s allegations that the HOA failed to maintain common areas to the standards required by its own governing documents.
The Petitioner filed a two-issue petition, with the primary surviving issue being that Solera, its Board of Directors, and its management company were not maintaining the “Areas of Association Responsibility” (AREAS) in good condition and repair at all times. The Petitioner’s core argument was that the same stringent maintenance standard applied to individual homeowners must be equally applied to the HOA. She provided extensive photographic evidence of issues such as weeds, deteriorating sidewalks, street disrepair, and exposed wiring.
The HOA defended its actions by citing its established procedures for maintenance, including a committee review process, a scheduled Reserves plan, and the use of licensed contractors. Critically, Solera’s defense rested on provisions within its Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which grant the Board of Directors the exclusive right to interpret the CC&Rs and designate it as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
Following an initial hearing, the Administrative Law Judge (ALJ) dismissed the petition, finding that the Petitioner had not met the burden of proof. The ALJ ruled that under the governing documents, the HOA Board has sole discretion in maintenance matters, and the Petitioner’s subjective opinions on how and when work should be done were not relevant to determining a violation. The Petitioner was granted a rehearing, where she presented additional evidence and arguments. However, the ALJ upheld the original decision, reaffirming that the CC&Rs grant the Board authority superseding that of an individual homeowner in determining appropriate maintenance. The petition was dismissed, and Solera was deemed the prevailing party in both instances.
Case Overview
Case Name
Debra K. Morin, Petitioner, v. Solera Chandler Homeowners’ Association, Inc., Respondent.
Case Number
No. 20F-H2020051-REL / 20F-H2020051-REL-RHG
Tribunal
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge (ALJ) Kay Abramsohn
Petitioner
Debra K. Morin (represented herself)
Respondent
Solera Chandler Homeowners’ Association, Inc. (represented by Lydia Linsmeier, Esq.)
Petition Filed
On or about March 12, 2020
Initial Hearing
May 20, 2020 and July 15, 2020
Initial Decision
August 19, 2020 (Petition Dismissed)
Rehearing Hearing
December 16, 2020
Rehearing Decision
January 8, 2021 (Original Dismissal Upheld)
Petitioner’s Allegations and Arguments
The Petitioner, a resident of Solera for four years, filed a petition with the Arizona Department of Real Estate alleging violations of Solera’s Articles of Incorporation, By-Laws, CC&Rs, and Rules and Regulations (R&Rs). The allegations were organized into two primary issues.
Issue #1: Lack of Direct Communication
• Allegation: Solera, its Board, and its management company, Premier Management Company (Premier), “do not allow direct communication from homeowners.”
• Requested Relief: The Petitioner sought to have this “policy” rescinded.
• Outcome: This issue was connected to allegations of ethics violations based on the Board’s Code of Ethics, which the Tribunal determined was a non-governing document outside its jurisdiction. As a result, the Petitioner withdrew Issue #1 during the May 20, 2020 hearing.
Issue #2: Failure to Maintain Common Areas
• Allegation: Solera, its Board, and Premier “are not providing oversight to the General Manager in maintaining all Areas of Association Responsibility … in good condition and repair at all times.” Specific complaints included “uncontrolled weeds” and poor maintenance of the Community Center and other AREAS.
• Core Argument: The Petitioner’s central thesis was that the HOA must be held to the identical maintenance standard it imposes on homeowners. She argued that just as homeowners are required to maintain their lots “in a weed free condition 365 days a year,” the HOA has no discretion for delays in addressing maintenance issues in common areas.
• Requested Relief:
1. A public admission by the Board of its failures to follow governing documents.
2. The establishment of “direct communication rules” for reporting management deficiencies.
3. Compliance monitoring by the “Real Estate Board.”
Evidence and Specific Complaints
The Petitioner presented over 80 photographs at the initial hearing (growing to 310 by the rehearing) and multiple emails to document a wide range of perceived maintenance failures.
Maintenance Issue
Petitioner’s Specific Complaint
Uncontrolled weeds in granite rock locations throughout the community.
Community Center
Poor exterior condition.
Streets & Curbs
Deteriorating asphalt, cracking, and issues with sealing.
Sidewalks
Trip hazards and disintegrating cool-decking.
Drainage
Clogged storm drains and water pooling issues.
Landscaping
Exposed wiring for lights, exposed drip irrigation lines, and unremoved tree stumps.
Disrepair of boundary walls.
A key piece of evidence was a February 21, 2020 email exchange regarding weeds, which the ALJ found “representative of the overall situation.”
Petitioner’s Complaint: “This is NOT being done and our HOA looks disgusting with the continued presence of unchecked weeds inside and outside our community! No excuses, you cannot hold homeowners to a higher standard than you are willing to do for our HOA. You are on notice to rectify this violation immediately!”
General Manager’s Response: “…the landscape crew hula hoes and sprays daily, based on routine maintenance cycle and location of site work… Considering that we have 1,143,550 square feet of granite and 270,933 square feet of turf, the maintenance of weeds is a continuous and ongoing concern that is constantly being addressed.”
Petitioner’s Rebuttal: “YOUR response is just more excuses!… It appears that since it is not your personal money being spent, it is ok to have substandard work performance.”
Respondent’s Position and Defense
Solera HOA moved to dismiss the petition, arguing the issues were outside the Department’s jurisdiction and the requested relief could not be granted. While the motion was effectively denied after Issue #1 was withdrawn, Solera’s core defense remained consistent throughout the proceedings.
• Central Legal Argument: Solera contended that its Board of Directors is vested with the ultimate authority on maintenance matters by the community’s governing documents. It repeatedly cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation Authority: The HOA also pointed to CC&R Article 9, Section 9.5, which gives it the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with such interpretations being “final, conclusive and binding.”
• Operational Defense: Denise Frazier, Solera’s on-site general manager, testified that the HOA has established processes for maintenance.
◦ Committee Structure: A Building and Grounds Committee (B&G) reviews projects, which are then assessed by a Finance Committee before going to the Board for approval.
◦ Reserves Schedule: Solera maintains a Reserves schedule for large projects, such as sidewalk repairs (every 4 years), street repairs (every 8 years), and sealing cracks (every 2 years).
◦ Vendor Management: The Board relies on licensed contractors for specialized work, including landscaping, tree trimming (by two different companies for different heights), and stump grinding.
• Response to Specific Issues:
◦ Weeds: Frazier attributed the prevalence of weeds in early 2020 to an unusual amount of rain, creating “optimal” conditions. She noted that Solera had instructed landscapers to use dye in the weed spray to demonstrate to residents that spraying was occurring.
◦ Sidewalks: Frazier acknowledged a several-month delay in repairing a specific sidewalk area but stated that warning cones had been placed in the interim. Solera uses a ¼ inch standard for review but the City of Chandler’s ½ inch trip-hazard guideline for repairs.
◦ Exposed Wiring: This was explained as a temporary measure by landscapers to avoid cutting electrical and irrigation lines during tree and granite replacement projects.
Rulings and Legal Conclusions
The Administrative Law Judge dismissed the Petitioner’s case after the initial hearing and reaffirmed this dismissal after a rehearing, finding that the Petitioner failed to meet her legal burden of proof.
Key Legal Principles Applied
• Burden of Proof: The ALJ established that the Petitioner “bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions.”
• Supremacy of Governing Documents: The case was decided on the interpretation of the HOA’s CC&Rs, which function as the binding contract between the association and its members.
• Board’s Discretionary Authority: The central and decisive legal conclusion was that the HOA’s governing documents explicitly grant the Board superior authority over maintenance decisions.
◦ CC&R Article 7, Section 7.1 (“sole judge”) was interpreted to mean that only Solera is charged with determining when and how to perform maintenance, repair, and replacement in common areas.
◦ The ALJ concluded this provision “lifts the Board’s authority above that of a homeowner.” The Petitioner failed to provide legal support for her argument that the same maintenance standard must be applied to the Board as is applied to homeowners.
• Jurisdictional Limits: The Tribunal’s role is limited to adjudicating alleged violations of governing documents or statutes. The ALJ noted that a “homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
Final Order
The ALJ concluded that Solera was in compliance with its governing documents, including the critical CC&R Article 7, Section 7.1. The Petitioner’s subjective opinions about the timeliness or quality of repairs were deemed irrelevant in the face of the Board’s contractual authority to be the “sole judge.”
Initial Order (August 19, 2020): “IT IS ORDERED Petitioner’s Petition is dismissed and Solera is deemed the prevailing party.”
Rehearing Order (January 8, 2021): “IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.” The order was declared binding on the parties.
Study Guide – 20F-H2020051-REL-RHG
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in the Administrative Law Judge Decision of August 19, 2020, and the subsequent Rehearing Decision of January 8, 2021.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What were the two main issues the petitioner, Debra K. Morin, raised in her initial petition filed on March 12, 2020?
3. Why was the petitioner’s first issue, regarding direct communication, withdrawn during the initial hearing?
4. What was the petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. According to the CC&Rs, what specific authority does the Solera Board have regarding maintenance, which formed the core of its defense?
6. What type of evidence did the petitioner primarily use to document her claims of poor maintenance in the Areas of Association Responsibility (AREAS)?
7. Who is Denise Frazier, and what role did she play in the proceedings?
8. What was the Administrative Law Judge’s final decision in the initial hearing on August 19, 2020?
9. On what grounds did the Commissioner of the Arizona Department of Real Estate grant the petitioner’s request for a rehearing?
10. What was the final outcome of the case after the rehearing decision was issued on January 8, 2021?
Answer Key
1. The primary parties were Debra K. Morin, the Petitioner and a homeowner, and the Solera Chandler Homeowners’ Association, Inc. (Solera), the Respondent. The case was heard by Administrative Law Judge Kay Abramsohn, and Solera was represented by Premier Management Company and its on-site general manager.
2. The petitioner’s Issue #1 alleged that Solera, its Board, and its management company “do not allow direct communication from homeowners.” Issue #2 alleged they were not providing oversight to the General Manager in maintaining all Areas of Association Responsibility in good condition and repair at all times.
3. The petitioner withdrew Issue #1 after it was determined that the Tribunal’s jurisdiction does not include interpreting or applying non-governing documents. Her complaint was based on the Solera Code of Ethics, which the Tribunal could not consider.
4. The petitioner argued that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that if homeowners are required by the governing documents to maintain their lots “in good condition and repair at all times,” then the HOA must be held to the identical standard for common areas (AREAS).
5. Solera’s defense centered on CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Additionally, CC&R Article 9, Section 9.5 gives Solera the exclusive right to construe and interpret the CC&Rs.
6. The petitioner presented a large volume of photographic evidence, including over eighty photos for the initial hearing and more for the rehearing. These photographs were intended to document weeds, issues with sidewalks, exposed wiring, storm drains, and other maintenance problems in the common areas.
7. Denise Frazier is the on-site general manager for Solera and an employee of Premier Management Company. She testified on behalf of Solera regarding its maintenance schedules, procedures, reserve studies, and responses to the specific issues raised by the petitioner.
8. In the initial hearing, the Administrative Law Judge dismissed the petitioner’s petition and deemed Solera the prevailing party. The judge concluded that the petitioner had not demonstrated a violation of the governing documents, as the CC&Rs grant the Board sole judgment on maintenance matters.
9. The request for a rehearing was granted because the petitioner claimed there were irregularities in the proceedings, misconduct by the prevailing party, and that the decision was arbitrary, capricious, an abuse of discretion, and not supported by the evidence or contrary to law.
10. The rehearing affirmed the original decision. The Administrative Law Judge again concluded that the petitioner failed to sustain her burden of proof and that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1. The appeal was dismissed, and Solera was again named the prevailing party.
Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the central legal conflict in this case by contrasting the petitioner’s interpretation of CC&R Article 7, Section 7.2 with the respondent’s defense based on CC&R Article 7, Section 7.1 and Article 9, Section 9.5. How did the Administrative Law Judge resolve this interpretive dispute?
2. Discuss the concept of jurisdiction as it applied to this case. Explain why certain arguments and evidence presented by the petitioner—such as the Board’s Code of Ethics, Premier Management Company standards, and City of Chandler ordinances—were deemed outside the Tribunal’s authority to consider.
3. Evaluate the petitioner’s strategy and use of evidence. Discuss the strengths and weaknesses of relying heavily on photographic evidence and detailed email complaints. Why did this “enormity” of evidence ultimately fail to meet the “preponderance of the evidence” standard?
4. Explain the significance of the phrase “sole judge” in CC&R Article 7, Section 7.1. How does this clause grant discretionary authority to the HOA Board, and how did it function as the key element in defeating the petitioner’s claim?
5. Trace the procedural history of the case, from the initial Petition and Motion to Dismiss through the original hearing, the Decision, the Rehearing Request, and the final Rehearing Decision. Identify the key rulings and turning points that determined the ultimate outcome.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge presiding over the administrative hearing at the Arizona Office of Administrative Hearings. In this case, Judge Kay Abramsohn.
AREAS (Areas of Association Responsibility)
The common areas within the Solera development that the Homeowners’ Association is responsible for managing, maintaining, repairing, and replacing.
By-Laws
One of the governing documents for the Solera Chandler Homeowners’ Association.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera development, specifically the “Solera Declaration of Covenants, Conditions, and Restrictions for Springfield Lakes.” It outlines the rights and responsibilities of the homeowners and the association.
Denise Frazier
The on-site general manager for Solera, employed by Premier Management Company, who testified on behalf of the association regarding its maintenance operations.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by Solera asking the Department of Real Estate to dismiss the petition on the grounds that the issues were outside the Department’s jurisdiction and the requested relief could not be granted.
Petitioner
The party who filed the petition initiating the legal action. In this case, Debra K. Morin, a homeowner in Solera.
Preponderance of the evidence
The burden of proof in this administrative proceeding. It is defined as proof that convinces the trier of fact that a contention is more probably true than not.
Premier Management Company
The management company hired by Solera to handle day-to-day operations of the community.
Project Documents
The set of governing documents for the community, defined as the CC&Rs, any supplemental declarations, the By-Laws, the R&Rs, and the Design Guidelines.
Respondent
The party against whom the petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents for the Solera Chandler Homeowners’ Association.
Tribunal
A term used in the documents to refer to the Arizona Office of Administrative Hearings (OAH), where the hearing was conducted.
Blog Post – 20F-H2020051-REL-RHG
A Homeowner Took on Her HOA with Over 300 Photos of Evidence. The Reason She Lost Is a Warning for Everyone.
Introduction: The Familiar Fight
It’s a scenario familiar to millions of Americans living in planned communities. You receive a violation notice for a minor infraction on your property, yet when you look at the common areas your HOA is responsible for, you see overgrown weeds, cracked sidewalks, and general disrepair. It feels deeply unfair. Why are homeowners held to a strict standard while the association itself seems to neglect its duties?
This exact frustration drove Debra K. Morin to take on her Solera Chandler Homeowners’ Association. Armed with over 300 photographs documenting every weed and crack, she was certain her case was airtight. But she lost. The reasons why her case failed are a stark warning for any homeowner, revealing a legal battle that hinged entirely on the community’s binding contract: the Covenants, Conditions, and Restrictions (CC&Rs).
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The 5 Surprising Lessons from One Homeowner’s HOA Lawsuit
1. The “Sole Judge” Clause: Your HOA’s Ultimate Defense
The single most critical factor in this case was a single clause buried in the HOA’s governing documents. Ms. Morin argued that the HOA must “maintain in good condition and repair at all times” the common areas, believing this was the same standard applied to homeowners. However, the HOA pointed to CC&R Article 7, Section 7.1, which designates the HOA Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
This clause proved to be an almost impenetrable defense. In essence, the legal standard for maintenance was not what a “reasonable person” would consider good repair, but whatever the Board, in its exclusive judgment, decided was appropriate. Even with extensive photo evidence, the case failed because the contract Ms. Morin agreed to when she bought her home gave the Board the ultimate discretion. The Administrative Law Judge’s decision made this crystal clear:
“While the CC&Rs allow an owner to bring to the Board a complaint, the CC&Rs specify that the Board is the sole judge regarding appropriate maintenance, repair and replacement of all AREAS.”
This “sole judge” clause is the cornerstone of a much broader power imbalance, one that is codified throughout the governing documents.
2. A Power Imbalance Is Written into the Rules
While Ms. Morin argued for an equal standard of responsibility, the legal documents revealed a clear and intentional power imbalance. CC&R Article 9, Section 9.5, granted the HOA the “exclusive right to construe and interpret the provisions of the [CC&Rs],” and stated that its interpretation is “final, conclusive and binding.”
This structure legally transforms the relationship from a partnership of equals into one of administrator and subject, where one party holds the power of final interpretation. The governing documents describe in detail how the HOA can levy penalties against an owner for violations, but they provide no equivalent process for an owner to penalize the HOA for its failures. The judge in the rehearing decision explicitly summarized this built-in hierarchy:
“Thus, it is clear, that pursuant to the governing documents, the Board’s authority is lifted above that of a homeowner.”
With the Board’s authority so clearly established, Ms. Morin’s mountain of evidence was about to run into a contractual brick wall.
3. An “Enormity of Evidence” Isn’t Always the Right Evidence
Ms. Morin presented a significant volume of evidence, starting with over 80 photographs in the first hearing and later referencing what she called an “enormity” of evidence totaling over 300 pictures of weeds, damaged sidewalks, and other maintenance issues.
The critical legal distinction the judge made was that the photographs documented the condition of the common areas, but they did not prove a violation of the governing documents. The legal question was not, “Are there weeds?” The question was, “Did the Board violate a contract that explicitly makes it the sole judge of maintenance?” This demonstrates that in a contract dispute, the quality of evidence is defined by its relevance to the specific contractual terms, not its sheer volume.
4. “At All Times” Doesn’t Mean “Instantly”
A key part of the homeowner’s argument was that the HOA was failing to “maintain in good condition and repair at all times” by allowing maintenance issues to persist for months. In response, the HOA detailed its operational reality. The HOA provided evidence of long-term capital plans, such as sealing street cracks every two years and major sidewalk repairs on a four-year cycle. Daily tasks, like weed control, were handled by landscape crews operating on a continuous, rotating schedule across the large community.
From a legal perspective, “at all times” is interpreted through the lens of operational reasonableness for a large entity, not as a guarantee of immediate perfection. For an organization managing a vast property, this standard is met through consistent processes and schedules, not by fixing every issue the moment it is reported.
5. Your Dissatisfaction Is Not a Lawsuit
At its heart, the case was driven by Ms. Morin’s deep frustration. The judge recognized that her petition stemmed from a core belief that the Board and its General Manager were unresponsive and providing poor oversight. While these feelings may have been valid, they were not legally actionable on their own. The judge’s decision in the rehearing drew a firm line between a homeowner’s frustration and a legal claim:
“However, a homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
This highlights a common misconception: while feelings of poor customer service are valid, they are legally irrelevant unless they can be tied to a specific, provable breach of the governing documents or a violation of state law.
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Conclusion: Read Before You Sign
The primary lesson from this case is the absolute authority of a community’s governing documents. In any dispute, the specific, written words of the CC&Rs—the contract you sign when you buy your home—will almost always outweigh a homeowner’s subjective standards, sense of fairness, or even a mountain of photographic evidence.
This case serves as a powerful reminder that from a contractual standpoint, the rules are not always designed to be “fair,” but to be enforceable. It leaves every homeowner with a critical question:
Before you complain about your HOA, have you read the rulebook they’re playing by—and that you agreed to?
The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.
Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.
Key Issues & Findings
Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.
Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.
Orders: Petitioner's petition in this matter was denied.
Briefing Document: Abbass v. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the Association to exercise its authority under the community’s Covenants, Conditions, and Restrictions (CC&Rs) to enter a neighboring property to inspect the source of a persistent water leak affecting the Petitioner’s home.
The ALJ ultimately denied the Petitioner’s petition and subsequent appeal. The central conclusion across both hearings was that while the Association’s CC&Rs grant it the right to enter a member’s property under specific circumstances (such as for inspections or emergencies), they do not impose an obligation or duty to do so. The Petitioner failed to meet the burden of proof required to demonstrate that the Association violated any provision of the CC&Rs. The ALJ characterized the situation as a “neighbor versus neighbor dispute” and determined that the Association acted within its business judgment by requiring more definitive proof of the leak’s source before authorizing entry, citing concerns over potential liability.
Case Overview
This matter involves a single-issue petition filed by a homeowner against her Homeowners Association (HOA) with the Arizona Department of Real Estate. The case was referred to the Office of Administrative Hearings for adjudication.
Case Details
Information
Case Number
20F-H2020057-REL
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association
Administrative Law Judge
Adam D. Stone
Initial Hearing Date
July 28, 2020
Rehearing Date
November 24, 2020
Core Allegation
The Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) & 4 by failing to grant access to a neighbor’s property to investigate a water leak.
Chronology of Key Events
1. November 14, 2019: Ronald Pick, residing with the Petitioner, discovers the home office carpet is “completely soaked with water.” He determines the drainage issue originates from the neighboring property.
2. November 2019: After the neighbor refuses to cooperate, the Petitioner contacts Robert Kersten, the Association’s Community Manager. Kersten sends a violation notice to the neighbor.
3. January 2020: The Association’s Board of Directors informs Kersten that they will handle the matter directly, and he ceases interaction with the Petitioner.
4. May 5, 2020: The Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500.00 fee.
5. July 28, 2020: The initial evidentiary hearing is held before an Administrative Law Judge.
6. August 17, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding she failed to meet her burden of proof.
7. August 31, 2020: The Petitioner files a request for a rehearing.
8. October 14, 2020: The Commissioner of the Arizona Department of Real Estate grants the request for a rehearing.
9. November 24, 2020: The rehearing is conducted.
10. December 1, 2020: The ALJ issues a final decision, again finding for the Respondent and dismissing the Petitioner’s appeal.
Summary of Arguments
Petitioner’s Position (Susan E. Abbass)
• The Problem: A water leak originating from a neighboring property caused damage, with recurring water intrusion during rainfall.
• Attempted Resolution: The Petitioner and Mr. Pick attempted to work with the neighbor, who was uncooperative on the advice of her insurance company. They then sought the Association’s help to gain access for inspection.
• Core Argument: The Petitioner argued that the water leak constituted an “emergency situation” and that the Association had an obligation under the CC&Rs to grant access to the neighbor’s property for inspection.
• Evidence Provided: The Petitioner provided the Association with all available evidence, including a report from the City of Phoenix.
• Financial Responsibility: The Petitioner offered to pay for a geotechnical engineer and any associated costs for the inspection.
• Legal Basis: The Petitioner claimed the Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
Respondent’s Position (10000 North Central HOA)
• Actions Taken: The Association, through its manager Robert Kersten, acknowledged the complaint and sent a violation notice to the neighbor regarding improper vegetation. They also contacted the neighbor to request access.
• Core Argument: The Association contended that the CC&Rs do not allow its manager to authorize entry “whenever they feel like it.” Entry requires “reasonable justification” and “some type of proof,” which the Board determined had not been provided by the Petitioner.
• Business Judgment and Liability: Respondent’s counsel argued the Board was exercising its business judgment to avoid potential liability that could arise from granting third-party access to a member’s property without sufficient cause.
• Neighbor’s Actions: The Association stated that, to its knowledge, the neighbor’s insurance company inspected the water flow and determined the neighbor was not at fault.
• Evidence Provided: At the rehearing, the Association submitted photographs (Exhibits K, L, M) purportedly showing a fixed pipe and drainage flowing away from the Petitioner’s property.
Analysis of CC&R Provisions
The dispute centered on the interpretation of specific articles within the Association’s Covenants, Conditions, and Restrictions.
Article
Provision Summary
XII, Section 6
Easement in Favor of Association: Grants the Association and its agents the right to enter Lots for specific purposes, including: (a) inspection of owner maintenance, (c) correction of emergency conditions, and (d) exercising its powers and duties.
XIII, Section 1(d)
Drainage Flow: States that “nothing shall be erected, planted or maintained to impede or interrupt said or normal drainage flow” in patio or yard areas that have been graded for drainage.
XIII, Section 4
Owner Maintenance and Association’s Right to Enter: Requires owners to keep their Lot in good order and repair. If an owner fails, the Association “shall have the right to enter upon said Lot or Patio to correct drainage and to repair, maintain and restore the Lot…” after providing notice to the owner and receiving approval from the Board.
Administrative Law Judge’s Findings and Rulings
The ALJ’s conclusions were consistent across both the initial decision and the rehearing. The Petitioner bore the burden of proving by a “preponderance of the evidence” that the Association violated the CC&Rs.
Key Findings from the Initial Decision (August 17, 2020)
• Right vs. Obligation: The judge’s central finding was that the Petitioner was “incorrect that the Respondent has an ‘obligation’ to enter the property.” The CC&Rs grant the Association a right to enter but do not impose a duty or obligation to do so.
• Lack of “True Emergency”: While Mr. Pick testified about water damage during rain, the judge noted a lack of testimony on the extent of the damage. The fact that over eight months had passed since the initial leak discovery indicated there was “no true emergency situation.”
• Stalemate and Business Judgment: The judge acknowledged the “stalemate” where the Petitioner could not obtain more proof without access, and the Association would not grant access without more proof. The Association’s decision was framed as an exercise of business judgment based on its determination that the submitted proof did not meet its standard for entry.
• Nature of the Dispute: The matter was characterized as a “neighbor versus neighbor dispute,” implying the Association was not the proper party to compel action.
• Conclusion: The Petitioner failed to meet her burden of proof.
Key Findings from the Rehearing Decision (December 1, 2020)
• No New Evidence: The Petitioner “failed to provide new evidence or witness testimony” that would alter the original conclusion.
• Petitioner’s Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
• Respondent’s Compliance: The ALJ concluded that the Association “acted in compliance with the CC&Rs.” It was “receptive to the information provided by Petitioner and requested the neighboring property owners cooperation.” The lack of the neighbor’s full cooperation did not constitute a violation by the Association.
• Jurisdictional Limits: The judge stated that under statute A.R.S. § 32-2199.02(A), an ALJ can only order a party to abide by the community documents. The judge “cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision noted that “it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Disposition
IT IS ORDERED that Petitioner’s petition in this matter be denied. The final decision from the rehearing on December 1, 2020, named the Respondent as the prevailing party and dismissed the Petitioner’s appeal. This order is binding on the parties, with any further appeal requiring judicial review in the superior court within thirty-five days of the order being served.
Study Guide – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
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Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
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Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Blog Post – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
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Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Case Participants
Petitioner Side
Susan E Abbass(petitioner)
Ronald Pick(witness) witness for Petitioner
Respondent Side
Blake Johnson(HOA attorney) Brown Olcott, PLLC
Robert Kersten(property manager) witness for Respondent
Kelly Oetinger(HOA attorney) Brown Olcott, PLLC
Neutral Parties
Adam D. Stone(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge concluded that the Association's conduct did not violate ARIZ. REV. STAT. § 33-1805 because the Petitioner did not prove by a preponderance of the evidence that the requested records were in existence and subject to disclosure.
Why this result: Petitioner failed to establish that the requested records (communications) were in existence and subject to disclosure.
Key Issues & Findings
Failing to fulfill Petitioner’s records request
Petitioner claimed the HOA failed to provide copies of all communications (written/electronic) related to information requests, open meeting law compliance, and changes to bylaws, arguing they were not exempt from disclosure under ARIZ. REV. STAT. § 33-1805(B). The HOA asserted no disclosable records existed.
Orders: Petitioner's petition and request for civil penalty are denied. Respondent shall not reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.02(A)
Analytics Highlights
Topics: HOA Records Request, Records Disclosure, ARIZ. REV. STAT. 33-1805, Burden of Proof, Preponderance of Evidence
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092
Video Overview
Audio Overview
Decision Documents
21F-H2120006-REL Decision – 834142.pdf
Uploaded 2026-01-23T17:34:55 (147.6 KB)
Briefing Doc – 21F-H2120006-REL
Administrative Law Judge Decision: Kupel vs. Hidden Valley Association
Executive Summary
The Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings denied a petition filed by homeowner Douglas E. Kupel against the Hidden Valley Association (HVA). The core of the dispute was Kupel’s allegation that HVA violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill a comprehensive records request. While HVA provided its records retention policy and legal invoices, it withheld two categories of electronic and hard copy communications, claiming no such disclosable records existed.
Kupel argued that statements made in emails by HVA Board President Gary Freed—specifically that certain communications would be “filed as an HVA business record”—proved the existence of the requested records. HVA countered that this statement was a mistake on Freed’s part, resulting from an initial misunderstanding of retention requirements, and that no records subject to disclosure actually existed.
The ALJ ultimately concluded that Kupel failed to meet the “preponderance of the evidence” standard required to prove his claim. The judge found that the evidence presented was not sufficient to prove that the requested records existed and were being improperly withheld. Consequently, the petition was denied, and Kupel’s requests for reimbursement of his filing fee and the imposition of a civil penalty against HVA were also denied.
Case Overview
Case Name
Douglas E Kupel, Petitioner, vs. Hidden Valley Association, Respondent
Case Number
21F-H2120006-REL
Jurisdiction
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Administrative Law Judge Adam D. Stone
Hearing Date
October 22, 2020
Decision Date
October 30, 2020
Key Parties
Douglas E. Kupel (Petitioner), Hidden Valley Association (Respondent), Gary Freed (HVA Board President)
Core Dispute: The Records Request
The central issue of the hearing was whether the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to fully comply with a records request submitted by Kupel on June 22, 2020. HVA, through its community manager HOAMCO, provided a partial response on July 1, 2020.
Breakdown of the Records Request:
• Request 1 (Fulfilled): A copy of the HVA records retention policy adopted on January 15, 2020.
• Request 2 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding “information requests or open meeting law compliance” from July 2019 to the present.
• Request 3 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding any proposed, discussed, or adopted changes to the Association bylaws from January 2019 to the present.
• Request 4 (Fulfilled): Copies of invoices, billing statements, and payment records for legal services associated with revisions to the Association bylaws from January 2019 to the present.
HVA and its President, Gary Freed, asserted that the denied communications were not subject to disclosure under the exceptions outlined in ARIZ. REV. STAT. § 33-1805(B).
Petitioner’s Position and Evidence (Douglas E. Kupel)
• Allegation: Kupel accused HVA of willfully failing to fulfill his request, alleging that non-exempt records did exist and should have been disclosed.
• Primary Evidence: Kupel submitted several email messages from HVA President Gary Freed which contained the statement: “This communication has been received, and will be filed as an HVA business record in the files maintained by HOAMCO for the benefit of HVA” or substantially similar language.
• Argument: Kupel testified that these emails proved the existence of communications that did not meet the statutory exclusions and, therefore, HVA had failed to fully respond to his request.
• Requested Relief:
1. An order compelling HVA to abide by ARIZ. REV. STAT. § 33-1805.
2. Reimbursement of the $500 filing fee.
3. The levying of a civil penalty against HVA.
Respondent’s Position and Evidence (Hidden Valley Association)
• Witness Testimony: HVA Board President Gary Freed testified on behalf of the association.
• Core Defense: Freed testified that based on HVA’s records retention policy and his understanding of open meeting laws, “no records existed which were subject to disclosure.”
• Explanation of Contested Emails: Freed explained that his prior email statements about filing all communications were a mistake. He testified that he initially believed all communications needed to be retained but later learned this was incorrect.
• Search Process: Freed admitted that neither he nor other board members conducted a one-by-one search of every single email. However, he testified that he “may have scanned his personal e-mail” and did not dismiss the petitioner’s request “out-of-hand.”
• Association Practices: Freed asserted that HVA business was conducted via open meetings, with the exception of a single emergency situation, implying that no discoverable email correspondence regarding official business would exist.
Administrative Law Judge’s Analysis and Conclusion
The ALJ’s decision rested on the legal standard of “preponderance of the evidence,” defined as proof convincing the trier of fact that a contention is more probably true than not. The petitioner, Kupel, bore the burden of meeting this standard.
• Evaluation of Evidence: The judge found Kupel’s primary argument unpersuasive. The decision states, “Essentially, Petitioner is claiming that there must be other records in existence because of the language that Mr. Freed used… This is not persuasive as there was no evidence presented by Petitioner to prove that the records were in existence.”
• Credibility of Testimony: The judge gave weight to Freed’s testimony that he had been mistaken about record-keeping protocols. The decision also noted that HVA’s official records retention policy, adopted six months prior to the request, specifically outlined which communications were to be kept.
• Lack of Proof: The judge concluded that Freed believed any documents that might have existed were subject to statutory exemptions and that all relevant business was conducted in open meetings. Ultimately, Kupel failed to provide sufficient proof that discoverable records actually existed.
• Final Ruling: The ALJ concluded that “the Association’s conduct, as outlined above, did not violate the charged provisions of ARIZ. REV. STAT. § 33-1805.”
Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:
Outcome
Petitioner’s Petition
Denied
Request for Civil Penalty
Denied
Reimbursement of Filing Fee
Denied (Respondent shall not reimburse Petitioner’s fee)
The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate within thirty days of the order’s service.
Study Guide – 21F-H2120006-REL
Study Guide: Kupel v. Hidden Valley Association, No. 21F-H2120006-REL
This study guide provides a review of the administrative hearing decision in the matter of Douglas E. Kupel versus the Hidden Valley Association. It includes a quiz with an answer key to test comprehension of the facts, a set of essay questions for deeper analysis, and a glossary of key terms.
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Quiz: Short-Answer Questions
Answer the following questions in 2-3 sentences based on the provided source document.
1. Who were the primary parties involved in this hearing, and what were their respective roles?
2. What was the specific violation alleged by the Petitioner in his petition to the Department of Real Estate?
3. What four categories of records did the Petitioner request from the Hidden Valley Association (HVA) on June 22, 2020?
4. Which parts of the Petitioner’s records request did the HVA fulfill, and which parts did it deny?
5. What was the Petitioner’s central piece of evidence to argue that the HVA was improperly withholding existing communications?
6. How did HVA Board President Gary Freed explain the discrepancy between his email statements and the association’s refusal to provide the requested communications?
7. What is the “preponderance of the evidence” standard, and which party was required to meet this standard?
8. According to Mr. Freed’s testimony, where was all official HVA business conducted?
9. What was the Administrative Law Judge’s final conclusion regarding the HVA’s conduct in this matter?
10. What three specific outcomes were mandated by the final ORDER issued on October 30, 2020?
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Answer Key
1. The primary parties were the Petitioner, Douglas E. Kupel, a property owner and member of the Hidden Valley Association, and the Respondent, the Hidden Valley Association (HVA). The Petitioner brought the complaint against the Respondent, alleging a violation of state law.
2. The Petitioner alleged that the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill his records request. Specifically, he claimed the association improperly withheld communications records.
3. The Petitioner requested: (1) the records retention policy; (2) communications regarding information requests or open meeting law compliance; (3) communications regarding proposed changes to the association bylaws; and (4) legal invoices and payment records related to bylaw revisions.
4. The HVA fulfilled the request for the records retention policy and the legal invoices. It denied the two requests for communications between board and committee members, claiming the requested records were not subject to disclosure.
5. The Petitioner’s central evidence consisted of several emails from HVA Board President Gary Freed in which Mr. Freed stated, “[t]his communication has been received, and will be filed as an HVA business record.” The Petitioner argued this proved that such communications existed and were official records.
6. Mr. Freed testified that he was initially mistaken in his belief that all communications needed to be retained and that this was why he included that language in his emails. He clarified that based on the HVA’s records retention policy and open meeting laws, no disclosable records of the type requested existed.
7. “Preponderance of the evidence” is the standard of proof requiring the evidence to convince the trier of fact that a contention is more probably true than not. The Petitioner, Douglas E. Kupel, bore the burden of proving his case by this standard.
8. Mr. Freed testified that all HVA business was conducted via open meetings. He stated that there were no meetings conducted solely by email, with the exception of a single emergency situation.
9. The Administrative Law Judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the HVA was in violation of ARIZ. REV. STAT. § 33-1805. The judge found the HVA’s conduct did not violate the charged statute.
10. The final ORDER (1) denied the Petitioner’s petition, (2) denied the Petitioner’s request for a civil penalty against the Respondent, and (3) ordered that the Respondent shall not be required to reimburse the Petitioner’s $500.00 filing fee.
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Essay Questions
The following questions are designed for in-depth analysis and discussion. Answers are not provided.
1. Analyze the legal arguments presented by both the Petitioner, Douglas E. Kupel, and the Respondent, Hidden Valley Association. How did each party use the evidence and ARIZ. REV. STAT. § 33-1805 to support their position?
2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain how the Administrative Law Judge determined that the Petitioner failed to meet this burden of proof.
3. Evaluate the testimony of HVA Board President Gary Freed. How did his explanations regarding his email statements and the association’s record-keeping practices influence the judge’s final decision?
4. Examine ARIZ. REV. STAT. § 33-1805(B), which outlines the exceptions for withholding records. Based on the case details, explain why the communications requested by the Petitioner were ultimately deemed non-disclosable or non-existent under this statute.
5. Describe the complete procedural history of the case, from the initial filing of the petition to the final order. Include key dates, entities involved (such as the Department of Real Estate and the Office of Administrative Hearings), and the final remedies sought by the Petitioner versus the actual outcome.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings and makes decisions on behalf of a government agency. In this case, the ALJ was Adam D. Stone.
ARIZ. REV. STAT. § 33-1805
The Arizona Revised Statute that governs the examination and disclosure of a homeowners’ association’s financial and other records by its members. It outlines the process for requests, a ten-business-day fulfillment window, and specific exemptions allowing an association to withhold certain records.
ARIZ. REV. STAT. § 32-2199.01(A)
The Arizona Revised Statute cited by the Petitioner that allows an administrative law judge to levy a civil penalty against a party found to be in violation of the law.
Burden of Proof
The obligation on a party in a legal case to provide sufficient evidence to prove their allegations. In this case, the Petitioner bore the burden of proof.
Covenants, Conditions, and Restrictions (CC&Rs)
The official governing documents that establish the rules and obligations for a homeowners’ association and its members.
Department of Real Estate (“Department”)
The Arizona state agency authorized to receive and decide petitions for hearings involving disputes between homeowners and their associations.
Hidden Valley Association (HVA)
The Respondent in the case; a homeowners’ association for the Hidden Valley Ranch subdivision in Prescott, Arizona, governed by CC&Rs and a Board of Directors.
HOAMCO
The company that served as the Community Manager for the Hidden Valley Association and initially responded to the Petitioner’s records request.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona to which the Department of Real Estate referred this matter for an evidentiary hearing.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, the Petitioner was Douglas E. Kupel, a homeowner and member of the HVA.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, making the contention more probably true than not.
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Hidden Valley Association.
Blog Post – 21F-H2120006-REL
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21F-H2120006-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings in Arizona, concerning a dispute between Petitioner Douglas E. Kupel and the Hidden Valley Association (HVA), a homeowners’ association. The core issue of the hearing, held on October 22, 2020, was whether the HVA violated ARIZ. REV. STAT. § 33-1805 by failing to fulfill Kupel’s records request for communications regarding open meeting law compliance and bylaw changes. Petitioner Kupel argued that undisclosed records existed based on emails sent by HVA Board President Gary Freed, while Freed testified that no disclosable records existed due to statutory exceptions and a mistaken belief about record retention. Ultimately, the Administrative Law Judge denied the Petitioner’s claim, concluding that Kupel failed to prove by a preponderance of the evidence that the Association violated the statute, thereby also denying his request for reimbursement and civil penalties.
What are the legal requirements governing homeowner association record disclosure in Arizona?
What was the core dispute between the petitioner and the homeowner association?
How did the Administrative Law Judge decide the outcome of this specific case?
Audio Overview
Video Overview Video Overview
Mind Map Mind Map
Reports Reports
Flashcards Flashcards
Quiz Quiz
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Case Participants
Petitioner Side
Douglas E. Kupel(petitioner) Appeared on his own behalf
Respondent Side
Timothy Butterfield(HOA attorney) Hidden Valley Association Represented Respondent
Gary Freed(board member) Hidden Valley Association Hidden Valley Ranch Association Board President and witness for HVA
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Received service of the Order
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of the Administrative Law Judge Decision
The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.
Key Issues & Findings
Challenge to new HOA parking policy adoption
Petitioner alleged the VHA's new parking policy was unreasonable and improperly adopted without an amendment, violating specific CC&R sections.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 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)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Briefing Document: Ganer v. Vincenz Homeowners Association (Case No. 20F-H2020060-REL)
Executive Summary
This document provides an analysis of the Administrative Law Judge Decision in the case of Laura B. Ganer vs. the Vincenz Homeowners Association (VHA), case number 20F-H2020060-REL. The central dispute concerned a new on-street parking policy adopted by the VHA Board in 2020. The petitioner, Ms. Ganer, alleged this policy violated multiple articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs).
The Administrative Law Judge, Velva Moses-Thompson, ultimately dismissed the petition. The court concluded that the VHA Board acted within the explicit authority granted to it by the community’s governing documents, specifically CC&R Article 10, § 10.11.1, which empowers the Board to designate parking areas. The judge found that the petitioner failed to meet the burden of proof—a “preponderance of the evidence”—to establish that the VHA had violated its CC&Rs. The decision affirmed the Board’s right to establish rules and regulations for parking as outlined in the CC&Rs without requiring a full membership vote for an amendment.
Background of the Dispute
The case originated from a single-issue petition filed by homeowner Laura B. Ganer with the Arizona Department of Real Estate on or about May 20, 2020. The petition alleged that the Vincenz Homeowners Association violated its governing documents by adopting a new parking policy.
• Parties:
◦ Petitioner: Laura B. Ganer, a property owner within the VHA.
◦ Respondent: Vincenz Homeowners Association (VHA).
• Catalyst: The VHA Board of Directors adopted a new on-street parking policy in 2020.
• Alleged Violations: The petition claimed the new policy violated VHA CC&R Article 10, Section 11; Article 7, Section 3; and Article 12, Section 2.
• Legal Forum: The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing, which took place on August 27, 2020.
The Contested 2020 Parking Policy
The policy adopted by the VHA Board resolved to allow on-street parking for specific vehicles in designated areas, provided the parking complied with associated rules.
• Allowed Vehicles: Private passenger automobiles and pickup trucks that do not exceed one ton in capacity.
• Designated Parking Areas:
1. Immediately in front of a Lot, for vehicles associated with the owner, resident, or their guests, or with the lot owner’s consent.
2. Immediately in front of any Common Area park within the Association.
3. Along any public street within the Association that does not border a Lot (e.g., in front of a Common Area tract).
Core Legal Arguments and Cited CC&Rs
The dispute centered on whether the VHA Board had the authority to enact the new parking policy or if doing so violated the foundational CC&Rs.
Petitioner’s Position (Laura B. Ganer)
Ms. Ganer argued that the new policy fundamentally contradicted the intent and letter of the CC&Rs.
• Violation of Article 10: She asserted that the original intention of CC&R Article 10, Section 10.11.1 was to limit parking within the VHA.
• Violation of Article 7: She contended the policy violates Article 7, Section 3, because it is “unreasonable” by allowing parking “virtually everywhere” within the community.
• Implicit Amendment: The new policy was so expansive that it effectively constituted an amendment to the CC&Rs, which would require the procedure outlined in Article 12, Section 2 (a 67% member vote), not just a Board resolution.
Respondent’s Position (Vincenz HOA)
The VHA argued that its actions were a proper exercise of the authority explicitly granted to the Board in the CC&Rs.
• Authority from Article 10: VHA contended that CC&R Article 10, § 10.11.1 expressly allows the Board to create parking rules by permitting parking “within areas designated for such purpose by the Board.”
• Inapplicability of Article 7: The Association argued that Article 7, Section 3, which governs general “Association Rules,” did not apply because the parking policy was adopted under the specific authority of Article 10.
• No Amendment Required: VHA maintained that since Article 10 grants the Board the power to adopt parking rules and regulations, an amendment to the CC&Rs under Article 12, Section 2 was not necessary.
• Jurisdictional Argument: VHA also argued that the petition should be dismissed because Ms. Ganer failed to allege or provide facts that the VHA itself had improperly parked a vehicle in violation of the CC&Rs.
Relevant Articles from VHA CC&Rs
Article
Section
Provision Text
Article 10
§ 10.11.1
“Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.”
Article 10
§ 10.11.2
Governs restrictions on other vehicles like RVs, boats, and commercial vehicles, but allows the Board to designate areas and rules for them.
Article 7
“By a majority vote of the Board, the Association may… adopt, amend and repeal the Association Rules. The Association Rules shall be reasonable… and shall not be inconsistent with this Declaration…”
Article 12
“Except as otherwise provided in this Declaration, this Declaration may be amended only by the affirmative vote (in person or by proxy) or written consent of: (a) Members holding not less than sixty-seven percent (67%) of all Class A votes…”
Administrative Law Judge’s Findings and Decision
The Administrative Law Judge’s decision, issued on September 16, 2020, was based on a direct interpretation of the VHA’s governing documents and the evidence presented.
Legal Standard and Burden of Proof
• The petitioner, Ms. Ganer, bore the burden of proving her allegations by a “preponderance of the evidence,” defined as evidence that is more probably true than not.
• In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties, and they must be construed as a whole.
Conclusions of Law
1. Interpretation of Article 10: The judge found that CC&R Article 10, Section 10.11.1 unambiguously forbids parking except in specified locations, including “in an area that has… been designated for parking by the Board.”
2. Board Authority: The court concluded that the VHA’s adoption of the parking policy was a valid exercise of the authority explicitly granted to the Board by Article 10.11.1 to designate such parking areas.
3. Failure to Meet Burden of Proof: Ms. Ganer failed to establish that the VHA violated any of the cited articles. The judge noted that Ganer did not even allege that the VHA itself had improperly parked a vehicle.
4. Overall Finding: The decision states, “Upon consideration of all of the evidence presented in this matter, the Administrative Law Judge concludes that VHA did not violate CC&R Article 7 § 3, Article 10 § 10.11, and CC&R Article 12 § 2 when it adopted the parking policy.”
Final Order
“IT IS ORDERED, the petition is dismissed.”
The decision 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 – 20F-H2020060-REL
Study Guide: Ganer v. Vincenz Homeowners Association
This guide provides a detailed review of the administrative law case Laura B. Ganer v. Vincenz Homeowners Association, Case No. 20F-H2020060-REL. It is designed to test comprehension of the facts, legal arguments, and final decision as presented in the source documents.
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Quiz: Short-Answer Questions
Instructions: Please answer the following questions in two to three complete sentences, using only information provided in the case decision.
1. Who were the petitioner and the respondent in this case, and what was their relationship within the community?
2. What specific action did the Vincenz Homeowners Association (VHA) take in 2020 that initiated this legal dispute?
3. List the three specific articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs) that petitioner Laura Ganer alleged were violated.
4. According to VHA’s CC&R Article 10 § 10.11.1, under what three conditions are private passenger automobiles and pickup trucks permitted to be parked?
5. What was Ms. Ganer’s primary argument for why the VHA’s new parking policy was “unreasonable” as defined under Article 7 § 3?
6. Upon what grounds did the VHA argue that the petition should be dismissed, relating to the petitioner’s specific allegations?
7. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision.
8. How did the VHA defend its adoption of the new parking policy without obtaining the 67% member vote required for amendments under Article 12 § 2?
9. What was the core reason the Administrative Law Judge concluded that Ms. Ganer failed to prove a violation of CC&R Article 10 § 10.11.1?
10. What was the final order issued by the Administrative Law Judge in this case?
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Answer Key
1. The petitioner was Laura B. Ganer, a property owner. The respondent was the Vincenz Homeowners Association (VHA). Ganer owned property within the planned community governed by the VHA.
2. In 2020, the VHA’s Board of Directors adopted a new parking policy that formally allowed on-street parking for certain vehicles in designated areas, such as in front of lots and common areas. This new policy prompted Ms. Ganer to file her petition.
3. Ms. Ganer alleged that the VHA violated Article 10, section 11; Article 7, section 3; and Article 12, section 2 of its Covenants, Conditions, and Restrictions.
4. CC&R Article 10 § 10.11.1 permits these vehicles to be parked within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.
5. Ms. Ganer argued that the new policy was unreasonable because it allows for parking virtually everywhere within the VHA. She asserted that the original intention of the CC&Rs was to limit parking, not expand it so broadly.
6. The VHA argued for dismissal because Ms. Ganer did not contend, nor provide facts to establish, that the VHA had actually parked an automobile or pickup truck in any prohibited area. The VHA stated the Office of Administrative Hearings only had jurisdiction over alleged violations, not the mere adoption of a policy.
7. “Preponderance of the evidence” is 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 evidence that is sufficient to incline a fair and impartial mind to one side of an issue over the other.
8. The VHA contended that an amendment was not required to adopt the parking policy. It argued that CC&R Article 10 § 10.11.1 already granted the Board the specific authority to designate parking rules and regulations.
9. The Judge concluded that Ms. Ganer failed to prove a violation because she did not allege that the VHA had actually parked a vehicle in a prohibited area. The Judge noted that the covenant forbids parking in a roadway or garage unless it is in an area designated by the Board.
10. The final order was that the petition is dismissed. This means the judge ruled in favor of the respondent, Vincenz Homeowners Association, and against the petitioner, Laura Ganer.
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Essay Questions
Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a detailed essay response for each prompt, drawing evidence and arguments directly from the provided legal decision.
1. Analyze the conflicting interpretations of CC&R Article 10 § 10.11.1 presented by Laura Ganer and the Vincenz Homeowners Association. How did the Administrative Law Judge resolve this conflict, and what does this reveal about the judicial interpretation of restrictive covenants?
2. Discuss the legal concept of “burden of proof” as it applied in this case. Explain who held the burden, what the standard was, and why the petitioner ultimately failed to meet it according to the Judge’s findings.
3. Examine the VHA’s argument that CC&R Article 7 § 3 (regarding the adoption of “Association Rules”) was not applicable to its creation of the new parking policy. Based on the text, what is the distinction between a board-designated rule under Article 10 and a formal “Association Rule” under Article 7?
4. Evaluate the petitioner’s claim that the new parking policy constituted an amendment to the Declaration, thereby violating CC&R Article 12 § 2, which requires a 67% member vote. Why was this argument unsuccessful, and what does the decision imply about the scope of a homeowner association board’s power?
5. Using the facts of the case, explain the procedural journey of a homeowner’s dispute within a planned community in Arizona, from the initial filing to the final administrative order.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes legal decisions. The ALJ in this matter was Velva Moses-Thompson.
Allowed Vehicles
A term from the VHA’s 2020 parking policy defining the types of vehicles permitted for on-street parking: private passenger automobiles and pickup trucks not exceeding one ton in capacity.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the petitioner bore the burden of proof.
An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or homeowners association.
Common Area
Land within a planned community owned by the association for the shared use and enjoyment of its members, such as a park.
Department
Refers to the Arizona Department of Real Estate, the state agency that received the initial petition from Ms. Ganer.
Notice of Hearing
A formal document issued by a legal body that sets the date, time, and location for a hearing and outlines the issues to be discussed. In this case, it was issued on July 1, 2020.
An acronym for the Office of Administrative Hearings, the state office where the evidentiary hearing for this case was held.
Petition
The formal written application filed by a party (the petitioner) to a legal body, initiating a case. Ms. Ganer filed her petition with the Department on or about May 20, 2020.
Petitioner
The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, Laura B. Ganer.
Planned Community
A real estate development that includes common property and is governed by a homeowners’ association, with rules established by CC&Rs.
Preponderance of the Evidence
The evidentiary standard required to win a civil case, defined as proof that a contention is “more probably true than not.” It is a lower standard than “beyond a reasonable doubt.”
Restrictive Covenant
A provision in a deed or CC&R that limits the use of real property. In Arizona, if unambiguous, such covenants are enforced to give effect to the intent of the parties.
Respondent
The party against whom a petition is filed or who is responding to a lawsuit. In this case, the Vincenz Homeowners Association.
Blog Post – 20F-H2020060-REL
3 Surprising Lessons from One Homeowner’s Fight Against Her HOA’s New Parking Rules
For millions of homeowners, the relationship with their Homeowners Association (HOA) is often defined by a single, persistent source of frustration: parking rules. Whether it’s restrictions on street parking, rules about commercial vehicles, or limits on guest parking, these regulations are a frequent flashpoint for community disputes. We tend to think of these fights as homeowners pushing back against ever-tightening restrictions.
But what happens when the script is flipped? In a fascinating legal case from Arizona, a homeowner named Laura Ganer took her HOA to court not because the rules were too strict, but because the board enacted a new, more permissive parking policy. She believed the board had overstepped its authority by allowing on-street parking that had previously been forbidden.
The resulting decision from the Administrative Law Judge provides a masterclass in HOA governance. It peels back the layers of community documents to reveal how power is delegated and exercised. The outcome holds several surprising lessons for any homeowner who thinks they understand the rules of their community.
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1. The Devil in the Details: How a “Restriction” Became a Permission Slip
At the heart of Ms. Ganer’s case was her belief that the community’s founding documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were written to severely limit on-street parking. She pointed to what seemed like a clear and unambiguous rule in the Vincenz Homeowners Association (VHA) governing documents.
The rule, found in VHA CC&R Article 10 § 10.11.1, begins with a strong prohibition:
“No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.”
For many residents, the rule’s intent seemed clear: keep cars in garages and driveways. The critical turn, however, lay not in the prohibition but in the exceptions that followed. The power was vested in a single, potent phrase authorizing the Board to act: “…or within areas designated for such purpose by the Board.” This clause, tucked at the end of the sentence, transformed a restrictive rule into a grant of discretionary power. The judge found this language gave the VHA Board explicit authority to create its new policy. This is a classic example of how governing documents are drafted to provide operational flexibility, allowing a future board to adapt to changing community needs without undergoing the arduous process of a full membership vote to amend the CC&Rs. The Board wasn’t breaking the rules; it was using a specific power granted to it all along.
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2. A Board Rule Isn’t a Bylaw Amendment (And Why It Matters)
Ms. Ganer raised two additional legal arguments. First, she contended that such a fundamental change to the community’s parking landscape was effectively an amendment to the CC&Rs. If it were an amendment, it would have required a community-wide vote and approval of “not less than sixty-seven percent (67%) of all Class A votes,” as stipulated in Article 12 § 2.
The VHA countered, and the judge agreed, that the Board was not amending the CC&Rs. Instead, it was exercising a power the document had already granted it in Article 10: the power to “designate” parking areas. Because the mechanism for the board to act was already in the foundational document, no amendment—and therefore no membership vote—was necessary.
Critically, Ms. Ganer also alleged a violation of Article 7 § 3 of the CC&Rs, which states that any “Association Rules shall be reasonable.” The VHA’s response to this claim was a deft legal maneuver. It argued that Article 7 § 3 did not apply because the Board didn’t adopt the parking policy under its general authority to make rules; it acted under the specific authority granted in Article 10. This distinction is vital in HOA governance, as it illustrates how a specific grant of power can sometimes bypass the general requirements that apply to other board actions.
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3. An Opinion Isn’t Proof: The Heavy Burden on the Homeowner
Ms. Ganer’s claim that the new policy was “unreasonable” because it allowed “parking virtually everywhere” was her attempt to prove a violation of Article 7 § 3. To an outside observer, this might seem like a fair point. But in a legal setting, a personal feeling of unreasonableness is not evidence.
The Administrative Law Judge noted that as the petitioner, Ms. Ganer had the “burden of proof” to show the HOA violated the CC&Rs “by a preponderance of the evidence.” This legal standard requires convincing proof, not just a strong opinion. The court document provides a clear definition:
“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ultimately, the judge concluded that Ms. Ganer failed to meet this burden. Her assertion that the rule was unreasonable could not overcome the VHA’s argument that it had acted within the specific authority granted by Article 10. She did not provide convincing evidence of a violation, and the judge found in favor of the HOA, dismissing her petition entirely.
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Conclusion: The Ultimate Authority Is in the Fine Print
This case serves as a powerful lesson in HOA law, illustrating a key principle of document hierarchy. The ultimate authority is not what seems fair or what was historically done, but the exact wording in the community’s governing documents. A specific grant of authority will almost always override arguments based on general principles.
Here, the specific power to “designate” parking areas in Article 10 trumped both the general procedural requirement for a 67% vote for amendments in Article 12 and the general principle that rules must be “reasonable” under Article 7. Ms. Ganer’s challenge failed because the Board’s actions, while contrary to her expectations, were perfectly aligned with the powers the CC&Rs had given it from the start.
This case is a powerful reminder to read the fine print. When was the last time you read your community’s governing documents, and what powers might you be surprised to find your board already has?
Case Participants
Petitioner Side
Laura B Ganer(petitioner) Appeared on behalf of herself.
Respondent Side
Mark B. Sahl(HOA attorney) Vincenz Homeowners Association
Neutral Parties
Velva Moses-Thompson(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Nicole Payne(recipient) Received transmission of the decision via US Mail.
The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.
Key Issues & Findings
Challenge to new HOA parking policy adoption
Petitioner alleged the VHA's new parking policy was unreasonable and improperly adopted without an amendment, violating specific CC&R sections.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 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)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Briefing Document: Ganer v. Vincenz Homeowners Association (Case No. 20F-H2020060-REL)
Executive Summary
This document provides an analysis of the Administrative Law Judge Decision in the case of Laura B. Ganer vs. the Vincenz Homeowners Association (VHA), case number 20F-H2020060-REL. The central dispute concerned a new on-street parking policy adopted by the VHA Board in 2020. The petitioner, Ms. Ganer, alleged this policy violated multiple articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs).
The Administrative Law Judge, Velva Moses-Thompson, ultimately dismissed the petition. The court concluded that the VHA Board acted within the explicit authority granted to it by the community’s governing documents, specifically CC&R Article 10, § 10.11.1, which empowers the Board to designate parking areas. The judge found that the petitioner failed to meet the burden of proof—a “preponderance of the evidence”—to establish that the VHA had violated its CC&Rs. The decision affirmed the Board’s right to establish rules and regulations for parking as outlined in the CC&Rs without requiring a full membership vote for an amendment.
Background of the Dispute
The case originated from a single-issue petition filed by homeowner Laura B. Ganer with the Arizona Department of Real Estate on or about May 20, 2020. The petition alleged that the Vincenz Homeowners Association violated its governing documents by adopting a new parking policy.
• Parties:
◦ Petitioner: Laura B. Ganer, a property owner within the VHA.
◦ Respondent: Vincenz Homeowners Association (VHA).
• Catalyst: The VHA Board of Directors adopted a new on-street parking policy in 2020.
• Alleged Violations: The petition claimed the new policy violated VHA CC&R Article 10, Section 11; Article 7, Section 3; and Article 12, Section 2.
• Legal Forum: The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing, which took place on August 27, 2020.
The Contested 2020 Parking Policy
The policy adopted by the VHA Board resolved to allow on-street parking for specific vehicles in designated areas, provided the parking complied with associated rules.
• Allowed Vehicles: Private passenger automobiles and pickup trucks that do not exceed one ton in capacity.
• Designated Parking Areas:
1. Immediately in front of a Lot, for vehicles associated with the owner, resident, or their guests, or with the lot owner’s consent.
2. Immediately in front of any Common Area park within the Association.
3. Along any public street within the Association that does not border a Lot (e.g., in front of a Common Area tract).
Core Legal Arguments and Cited CC&Rs
The dispute centered on whether the VHA Board had the authority to enact the new parking policy or if doing so violated the foundational CC&Rs.
Petitioner’s Position (Laura B. Ganer)
Ms. Ganer argued that the new policy fundamentally contradicted the intent and letter of the CC&Rs.
• Violation of Article 10: She asserted that the original intention of CC&R Article 10, Section 10.11.1 was to limit parking within the VHA.
• Violation of Article 7: She contended the policy violates Article 7, Section 3, because it is “unreasonable” by allowing parking “virtually everywhere” within the community.
• Implicit Amendment: The new policy was so expansive that it effectively constituted an amendment to the CC&Rs, which would require the procedure outlined in Article 12, Section 2 (a 67% member vote), not just a Board resolution.
Respondent’s Position (Vincenz HOA)
The VHA argued that its actions were a proper exercise of the authority explicitly granted to the Board in the CC&Rs.
• Authority from Article 10: VHA contended that CC&R Article 10, § 10.11.1 expressly allows the Board to create parking rules by permitting parking “within areas designated for such purpose by the Board.”
• Inapplicability of Article 7: The Association argued that Article 7, Section 3, which governs general “Association Rules,” did not apply because the parking policy was adopted under the specific authority of Article 10.
• No Amendment Required: VHA maintained that since Article 10 grants the Board the power to adopt parking rules and regulations, an amendment to the CC&Rs under Article 12, Section 2 was not necessary.
• Jurisdictional Argument: VHA also argued that the petition should be dismissed because Ms. Ganer failed to allege or provide facts that the VHA itself had improperly parked a vehicle in violation of the CC&Rs.
Relevant Articles from VHA CC&Rs
Article
Section
Provision Text
Article 10
§ 10.11.1
“Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.”
Article 10
§ 10.11.2
Governs restrictions on other vehicles like RVs, boats, and commercial vehicles, but allows the Board to designate areas and rules for them.
Article 7
“By a majority vote of the Board, the Association may… adopt, amend and repeal the Association Rules. The Association Rules shall be reasonable… and shall not be inconsistent with this Declaration…”
Article 12
“Except as otherwise provided in this Declaration, this Declaration may be amended only by the affirmative vote (in person or by proxy) or written consent of: (a) Members holding not less than sixty-seven percent (67%) of all Class A votes…”
Administrative Law Judge’s Findings and Decision
The Administrative Law Judge’s decision, issued on September 16, 2020, was based on a direct interpretation of the VHA’s governing documents and the evidence presented.
Legal Standard and Burden of Proof
• The petitioner, Ms. Ganer, bore the burden of proving her allegations by a “preponderance of the evidence,” defined as evidence that is more probably true than not.
• In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties, and they must be construed as a whole.
Conclusions of Law
1. Interpretation of Article 10: The judge found that CC&R Article 10, Section 10.11.1 unambiguously forbids parking except in specified locations, including “in an area that has… been designated for parking by the Board.”
2. Board Authority: The court concluded that the VHA’s adoption of the parking policy was a valid exercise of the authority explicitly granted to the Board by Article 10.11.1 to designate such parking areas.
3. Failure to Meet Burden of Proof: Ms. Ganer failed to establish that the VHA violated any of the cited articles. The judge noted that Ganer did not even allege that the VHA itself had improperly parked a vehicle.
4. Overall Finding: The decision states, “Upon consideration of all of the evidence presented in this matter, the Administrative Law Judge concludes that VHA did not violate CC&R Article 7 § 3, Article 10 § 10.11, and CC&R Article 12 § 2 when it adopted the parking policy.”
Final Order
“IT IS ORDERED, the petition is dismissed.”
The decision 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 – 20F-H2020060-REL
Study Guide: Ganer v. Vincenz Homeowners Association
This guide provides a detailed review of the administrative law case Laura B. Ganer v. Vincenz Homeowners Association, Case No. 20F-H2020060-REL. It is designed to test comprehension of the facts, legal arguments, and final decision as presented in the source documents.
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Quiz: Short-Answer Questions
Instructions: Please answer the following questions in two to three complete sentences, using only information provided in the case decision.
1. Who were the petitioner and the respondent in this case, and what was their relationship within the community?
2. What specific action did the Vincenz Homeowners Association (VHA) take in 2020 that initiated this legal dispute?
3. List the three specific articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs) that petitioner Laura Ganer alleged were violated.
4. According to VHA’s CC&R Article 10 § 10.11.1, under what three conditions are private passenger automobiles and pickup trucks permitted to be parked?
5. What was Ms. Ganer’s primary argument for why the VHA’s new parking policy was “unreasonable” as defined under Article 7 § 3?
6. Upon what grounds did the VHA argue that the petition should be dismissed, relating to the petitioner’s specific allegations?
7. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision.
8. How did the VHA defend its adoption of the new parking policy without obtaining the 67% member vote required for amendments under Article 12 § 2?
9. What was the core reason the Administrative Law Judge concluded that Ms. Ganer failed to prove a violation of CC&R Article 10 § 10.11.1?
10. What was the final order issued by the Administrative Law Judge in this case?
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Answer Key
1. The petitioner was Laura B. Ganer, a property owner. The respondent was the Vincenz Homeowners Association (VHA). Ganer owned property within the planned community governed by the VHA.
2. In 2020, the VHA’s Board of Directors adopted a new parking policy that formally allowed on-street parking for certain vehicles in designated areas, such as in front of lots and common areas. This new policy prompted Ms. Ganer to file her petition.
3. Ms. Ganer alleged that the VHA violated Article 10, section 11; Article 7, section 3; and Article 12, section 2 of its Covenants, Conditions, and Restrictions.
4. CC&R Article 10 § 10.11.1 permits these vehicles to be parked within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.
5. Ms. Ganer argued that the new policy was unreasonable because it allows for parking virtually everywhere within the VHA. She asserted that the original intention of the CC&Rs was to limit parking, not expand it so broadly.
6. The VHA argued for dismissal because Ms. Ganer did not contend, nor provide facts to establish, that the VHA had actually parked an automobile or pickup truck in any prohibited area. The VHA stated the Office of Administrative Hearings only had jurisdiction over alleged violations, not the mere adoption of a policy.
7. “Preponderance of the evidence” is 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 evidence that is sufficient to incline a fair and impartial mind to one side of an issue over the other.
8. The VHA contended that an amendment was not required to adopt the parking policy. It argued that CC&R Article 10 § 10.11.1 already granted the Board the specific authority to designate parking rules and regulations.
9. The Judge concluded that Ms. Ganer failed to prove a violation because she did not allege that the VHA had actually parked a vehicle in a prohibited area. The Judge noted that the covenant forbids parking in a roadway or garage unless it is in an area designated by the Board.
10. The final order was that the petition is dismissed. This means the judge ruled in favor of the respondent, Vincenz Homeowners Association, and against the petitioner, Laura Ganer.
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Essay Questions
Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a detailed essay response for each prompt, drawing evidence and arguments directly from the provided legal decision.
1. Analyze the conflicting interpretations of CC&R Article 10 § 10.11.1 presented by Laura Ganer and the Vincenz Homeowners Association. How did the Administrative Law Judge resolve this conflict, and what does this reveal about the judicial interpretation of restrictive covenants?
2. Discuss the legal concept of “burden of proof” as it applied in this case. Explain who held the burden, what the standard was, and why the petitioner ultimately failed to meet it according to the Judge’s findings.
3. Examine the VHA’s argument that CC&R Article 7 § 3 (regarding the adoption of “Association Rules”) was not applicable to its creation of the new parking policy. Based on the text, what is the distinction between a board-designated rule under Article 10 and a formal “Association Rule” under Article 7?
4. Evaluate the petitioner’s claim that the new parking policy constituted an amendment to the Declaration, thereby violating CC&R Article 12 § 2, which requires a 67% member vote. Why was this argument unsuccessful, and what does the decision imply about the scope of a homeowner association board’s power?
5. Using the facts of the case, explain the procedural journey of a homeowner’s dispute within a planned community in Arizona, from the initial filing to the final administrative order.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes legal decisions. The ALJ in this matter was Velva Moses-Thompson.
Allowed Vehicles
A term from the VHA’s 2020 parking policy defining the types of vehicles permitted for on-street parking: private passenger automobiles and pickup trucks not exceeding one ton in capacity.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the petitioner bore the burden of proof.
An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or homeowners association.
Common Area
Land within a planned community owned by the association for the shared use and enjoyment of its members, such as a park.
Department
Refers to the Arizona Department of Real Estate, the state agency that received the initial petition from Ms. Ganer.
Notice of Hearing
A formal document issued by a legal body that sets the date, time, and location for a hearing and outlines the issues to be discussed. In this case, it was issued on July 1, 2020.
An acronym for the Office of Administrative Hearings, the state office where the evidentiary hearing for this case was held.
Petition
The formal written application filed by a party (the petitioner) to a legal body, initiating a case. Ms. Ganer filed her petition with the Department on or about May 20, 2020.
Petitioner
The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, Laura B. Ganer.
Planned Community
A real estate development that includes common property and is governed by a homeowners’ association, with rules established by CC&Rs.
Preponderance of the Evidence
The evidentiary standard required to win a civil case, defined as proof that a contention is “more probably true than not.” It is a lower standard than “beyond a reasonable doubt.”
Restrictive Covenant
A provision in a deed or CC&R that limits the use of real property. In Arizona, if unambiguous, such covenants are enforced to give effect to the intent of the parties.
Respondent
The party against whom a petition is filed or who is responding to a lawsuit. In this case, the Vincenz Homeowners Association.
Blog Post – 20F-H2020060-REL
3 Surprising Lessons from One Homeowner’s Fight Against Her HOA’s New Parking Rules
For millions of homeowners, the relationship with their Homeowners Association (HOA) is often defined by a single, persistent source of frustration: parking rules. Whether it’s restrictions on street parking, rules about commercial vehicles, or limits on guest parking, these regulations are a frequent flashpoint for community disputes. We tend to think of these fights as homeowners pushing back against ever-tightening restrictions.
But what happens when the script is flipped? In a fascinating legal case from Arizona, a homeowner named Laura Ganer took her HOA to court not because the rules were too strict, but because the board enacted a new, more permissive parking policy. She believed the board had overstepped its authority by allowing on-street parking that had previously been forbidden.
The resulting decision from the Administrative Law Judge provides a masterclass in HOA governance. It peels back the layers of community documents to reveal how power is delegated and exercised. The outcome holds several surprising lessons for any homeowner who thinks they understand the rules of their community.
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1. The Devil in the Details: How a “Restriction” Became a Permission Slip
At the heart of Ms. Ganer’s case was her belief that the community’s founding documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were written to severely limit on-street parking. She pointed to what seemed like a clear and unambiguous rule in the Vincenz Homeowners Association (VHA) governing documents.
The rule, found in VHA CC&R Article 10 § 10.11.1, begins with a strong prohibition:
“No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.”
For many residents, the rule’s intent seemed clear: keep cars in garages and driveways. The critical turn, however, lay not in the prohibition but in the exceptions that followed. The power was vested in a single, potent phrase authorizing the Board to act: “…or within areas designated for such purpose by the Board.” This clause, tucked at the end of the sentence, transformed a restrictive rule into a grant of discretionary power. The judge found this language gave the VHA Board explicit authority to create its new policy. This is a classic example of how governing documents are drafted to provide operational flexibility, allowing a future board to adapt to changing community needs without undergoing the arduous process of a full membership vote to amend the CC&Rs. The Board wasn’t breaking the rules; it was using a specific power granted to it all along.
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2. A Board Rule Isn’t a Bylaw Amendment (And Why It Matters)
Ms. Ganer raised two additional legal arguments. First, she contended that such a fundamental change to the community’s parking landscape was effectively an amendment to the CC&Rs. If it were an amendment, it would have required a community-wide vote and approval of “not less than sixty-seven percent (67%) of all Class A votes,” as stipulated in Article 12 § 2.
The VHA countered, and the judge agreed, that the Board was not amending the CC&Rs. Instead, it was exercising a power the document had already granted it in Article 10: the power to “designate” parking areas. Because the mechanism for the board to act was already in the foundational document, no amendment—and therefore no membership vote—was necessary.
Critically, Ms. Ganer also alleged a violation of Article 7 § 3 of the CC&Rs, which states that any “Association Rules shall be reasonable.” The VHA’s response to this claim was a deft legal maneuver. It argued that Article 7 § 3 did not apply because the Board didn’t adopt the parking policy under its general authority to make rules; it acted under the specific authority granted in Article 10. This distinction is vital in HOA governance, as it illustrates how a specific grant of power can sometimes bypass the general requirements that apply to other board actions.
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3. An Opinion Isn’t Proof: The Heavy Burden on the Homeowner
Ms. Ganer’s claim that the new policy was “unreasonable” because it allowed “parking virtually everywhere” was her attempt to prove a violation of Article 7 § 3. To an outside observer, this might seem like a fair point. But in a legal setting, a personal feeling of unreasonableness is not evidence.
The Administrative Law Judge noted that as the petitioner, Ms. Ganer had the “burden of proof” to show the HOA violated the CC&Rs “by a preponderance of the evidence.” This legal standard requires convincing proof, not just a strong opinion. The court document provides a clear definition:
“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ultimately, the judge concluded that Ms. Ganer failed to meet this burden. Her assertion that the rule was unreasonable could not overcome the VHA’s argument that it had acted within the specific authority granted by Article 10. She did not provide convincing evidence of a violation, and the judge found in favor of the HOA, dismissing her petition entirely.
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Conclusion: The Ultimate Authority Is in the Fine Print
This case serves as a powerful lesson in HOA law, illustrating a key principle of document hierarchy. The ultimate authority is not what seems fair or what was historically done, but the exact wording in the community’s governing documents. A specific grant of authority will almost always override arguments based on general principles.
Here, the specific power to “designate” parking areas in Article 10 trumped both the general procedural requirement for a 67% vote for amendments in Article 12 and the general principle that rules must be “reasonable” under Article 7. Ms. Ganer’s challenge failed because the Board’s actions, while contrary to her expectations, were perfectly aligned with the powers the CC&Rs had given it from the start.
This case is a powerful reminder to read the fine print. When was the last time you read your community’s governing documents, and what powers might you be surprised to find your board already has?
Case Participants
Petitioner Side
Laura B Ganer(petitioner) Appeared on behalf of herself.
Respondent Side
Mark B. Sahl(HOA attorney) Vincenz Homeowners Association
Neutral Parties
Velva Moses-Thompson(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Nicole Payne(recipient) Received transmission of the decision via US Mail.
The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.
Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.
Key Issues & Findings
Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.
Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.
Orders: Petitioner's petition in this matter was denied.
Briefing Document: Abbass vs. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.
The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.
Case Overview
Case Name
Susan E Abbass vs. 10000 North Central Homeowners Association
Case Number
20F-H2020057-REL-RHG
Jurisdiction
In the Office of Administrative Hearings (Arizona)
Administrative Law Judge
Adam D. Stone
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)
Hearing Date
November 24, 2020 (Rehearing)
Decision Date
December 1, 2020
Core Dispute and Allegations
Petitioner’s Central Claim
The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.
• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.
Petitioner’s Position and Evidence
• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”
• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.
• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.
• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
Respondent’s Defense and Actions
Respondent’s Position
The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.
• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.
• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”
Actions Taken by the HOA
Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:
• It reached out to the neighboring property owner to request access.
• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.
• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.
• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.
Procedural History and Rehearing
1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.
2. Initial Hearing (July 28, 2020): The first hearing was conducted.
3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.
4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”
5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.
6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.
Administrative Law Judge’s Findings and Conclusions
Burden of Proof
The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”
Key Judicial Determinations
• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.
• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”
• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Order and Implications
• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”
• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.
• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.
Study Guide – 20F-H2020057-REL
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 20F-H2020057-REL-RHG, involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It includes a short-answer quiz with an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case document.
1. Who were the primary parties in this case, and what was the central dispute?
2. What specific articles of the community documents did the Petitioner allege the Respondent had violated?
3. What was the outcome of the initial administrative hearing held on July 28, 2020?
4. On what legal grounds did the Petitioner successfully request a rehearing of the case?
5. What was the Respondent’s main argument for not forcing an inspection of the neighboring property?
6. What key point regarding the Respondent’s authority did the Petitioner concede during the rehearing?
7. According to the decision, who bears the burden of proof, and what is the evidentiary standard required to meet it?
8. What evidence did the Respondent introduce during the rehearing on November 24, 2020?
9. What was the final ruling of the Administrative Law Judge, and what did the order state?
10. What specific limitation on the Administrative Law Judge’s power is cited in the Conclusions of Law?
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Answer Key
1. The primary parties were the Petitioner, Susan E. Abbass, and the Respondent, 10000 North Central Homeowners Association. The central dispute was the Petitioner’s claim that the Respondent failed to fulfill its duty by not allowing an inspection on a neighboring property to find the source of a water leak affecting the Petitioner’s home.
2. The Petitioner alleged that the Respondent had violated Article XII, Section 6 and Article XIII, Sections 1(d) and 4 of the Covenants, Conditions, and Restrictions (CCR’s).
3. Following the July 28, 2020 hearing, the Administrative Law Judge issued a decision on August 17, 2020, concluding that the Petitioner had failed to meet her burden of proof. The judge found that the Respondent only had the right to enter the neighboring property, not an obligation to do so.
4. The Petitioner’s request for rehearing was granted based on her claims that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
5. The Respondent argued that the Petitioner had not provided sufficient proof of the neighbor’s fault to justify forcing access. The Respondent was also concerned that overstepping its authority could expose the association to other legal actions.
6. During the rehearing, the Petitioner agreed with the Respondent’s position that the association does not have an obligation to enter the neighboring property, only the right to do so.
7. The Petitioner bears the burden of proof. The evidentiary standard is “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. At the rehearing, the Respondent introduced Exhibits K, L, and M. These were photographs that purportedly showed where a pipe was fixed and how drainage moves away from the Petitioner’s property.
9. The final ruling concluded that the Respondent had not violated the CCR’s and was the prevailing party. The order dismissed the Petitioner’s appeal.
10. The decision cites A.R.S. § 32-2199.02(A), which states that an Administrative Law Judge may only order a party to abide by the statutes, community documents, or contract provisions at issue. The judge cannot force the Respondent or the neighbor to grant access to the property.
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Suggested Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-format response. Answers are not provided.
1. Analyze the legal distinction between a “right” and an “obligation” as it pertains to the Homeowners Association’s authority under the CCR’s in this case. How was this distinction central to the Administrative Law Judge’s final decision?
2. Discuss the concept of “preponderance of the evidence” as defined in the legal decision. Detail the evidence and arguments presented by both the Petitioner and Respondent, and explain why the judge ultimately concluded that the Petitioner failed to meet this standard.
3. Trace the complete procedural history of this case, from the filing of the initial petition to the final order. Identify the key dates, actions taken by each party, and the rulings made at each stage of the administrative process.
4. Evaluate the actions taken by the Respondent (10000 North Central Homeowners Association) in response to the Petitioner’s complaint. Based on the Findings of Fact, did the association act reasonably and in compliance with the CCR’s?
5. Explain the jurisdiction and statutory limitations of the Office of Administrative Hearings in resolving disputes between homeowners and their associations, as outlined in the decision. What remedies were available to the Petitioner through this venue, and why was the specific relief she sought beyond the judge’s power to grant?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, considers evidence, and issues a legal decision. In this case, the ALJ was Adam D. Stone.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Arizona Department of Real Estate
The state agency authorized by statute to receive and decide petitions for hearings involving homeowners’ associations in Arizona.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.
An abbreviation for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or subdivision.
Office of Administrative Hearings
The government office where administrative law judges hear disputes concerning state agencies.
Order Granting Rehearing
A formal order issued by the Commissioner of the Arizona Department of Real Estate that approved the Petitioner’s request for a second hearing.
Petitioner
The party who initiates a legal action or files a petition. In this case, the Petitioner was Susan E. Abbass.
Planned Community
A real estate development that includes common property and is governed by a homeowners’ association.
Preponderance of the Evidence
The standard of proof required in this case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Prevailing Party
The party who wins a legal case or dispute. In the final decision, the Respondent was named the prevailing party.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the 10000 North Central Homeowners Association.
Tribunal
A body established to settle certain types of disputes. In this context, it refers to the Office of Administrative Hearings where the case was heard.
Blog Post – 20F-H2020057-REL
Briefing Document: Abbass vs. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.
The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.
Case Overview
Case Name
Susan E Abbass vs. 10000 North Central Homeowners Association
Case Number
20F-H2020057-REL-RHG
Jurisdiction
In the Office of Administrative Hearings (Arizona)
Administrative Law Judge
Adam D. Stone
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)
Hearing Date
November 24, 2020 (Rehearing)
Decision Date
December 1, 2020
Core Dispute and Allegations
Petitioner’s Central Claim
The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.
• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.
Petitioner’s Position and Evidence
• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”
• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.
• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.
• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
Respondent’s Defense and Actions
Respondent’s Position
The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.
• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.
• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”
Actions Taken by the HOA
Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:
• It reached out to the neighboring property owner to request access.
• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.
• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.
• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.
Procedural History and Rehearing
1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.
2. Initial Hearing (July 28, 2020): The first hearing was conducted.
3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.
4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”
5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.
6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.
Administrative Law Judge’s Findings and Conclusions
Burden of Proof
The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”
Key Judicial Determinations
• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.
• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”
• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Order and Implications
• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”
• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.
• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.
Case Participants
Petitioner Side
Susan E Abbass(petitioner)
Ronald Pick(witness) Witness for Petitioner
Respondent Side
Blake Johnson(attorney) Brown Olcott, PLLC Represented Respondent
Robert Kersten(property manager) Property manager, appeared as a witness for Respondent
