Tag Archives: CC&R Violation

Rodney F Kirby v. Dove Cove Estates Homeowners Association

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Case Summary

Case ID 21F-H2121049-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-10-12
Administrative Law Judge Jenna Clark
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rodney & Patricia Kirby Counsel —
Respondent Dove Cove Estates Homeowners Association Counsel Lydia Peirce Linsmeier and Kaylee Ivy

Alleged Violations

CC&Rs Article IV, Section 4.1.1

Outcome Summary

The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.

Key Issues & Findings

Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.

Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.

Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • 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. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2121049-REL Decision – 940829.pdf

Uploaded 2026-04-24T11:35:22 (47.0 KB)

21F-H2121049-REL Decision – 950132.pdf

Uploaded 2026-04-24T11:35:29 (41.0 KB)

21F-H2121049-REL Decision – 916848.pdf

Uploaded 2026-04-24T11:35:33 (118.5 KB)

21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-04-24T11:35:36 (124.9 KB)

21F-H2121049-REL Decision – 916848.pdf

Uploaded 2026-01-23T17:37:48 (118.5 KB)

21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-01-23T17:37:51 (124.9 KB)

This summary details the hearing before Administrative Law Judge Jenna Clark at the Office of Administrative Hearings (OAH) on September 22, 2021, concerning a dispute between homeowners and their association.

Key Facts and Parties

The Petitioners, Rodney and Patricia Kirby, are property owners and members of the Dove Cove Estates Homeowners Association (HOA/Respondent). The Petitioners, who are retired and use their pool daily for exercise, filed a petition alleging the Association violated its Covenants, Conditions, and Restrictions (CC&Rs). The dispute centered on the Association's refusal to remove two sissoo trees, approximately 35 feet high, located on Common Area property just behind the Petitioners’ residence.

The Petitioners testified that since around 2017, the trees caused substantial problems: debris, including leaves and small dead animals, fell into their pool, clogging the pump, which had to be replaced multiple times. Furthermore, roots from the trees caused damage to their retaining wall and back patio slab.

Main Issue and Arguments

The core issue was whether the Association was in violation of CC&Rs Article IV, Sections 4.1 and 4.1.1 for failing to remove the two sissoo trees. CC&R Article IV required the Association to maintain and keep in good condition and repair the Common Area, including the maintenance, repair, and replacement of all landscaping and structures situated upon it.

The Respondent (HOA) denied the complaint, arguing that its duty of maintenance was fulfilled through its landscaping contractor, ProQual Landscaping. The HOA contended that it reasonably relied on ProQual's expert advice; ProQual had inspected the trees in April 2021 and advised that removal was unnecessary, instead leaving them on a regular trimming schedule.

The Petitioners argued that the Association’s inadequate maintenance endangered their health and welfare due to the debris and financial burdens incurred from pool and pump repairs and increased cleaning costs. They asserted that the Association had not given their request proper consideration.

Legal Points and Outcome

The OAH determined it had jurisdiction to hear the dispute and interpret the CC&Rs, which form an enforceable contract between the Association and property owners. Petitioners bore the burden of proof by a preponderance of the evidence.

The ALJ concluded that Petitioners sustained their burden of proof. The decision emphasized that the Association's duty to maintain the Common Area does not end at the boundary line. The evidence established that *but for* the sissoo trees being situated and maintained in their current state, the degree of debris causing damage or harm to Petitioners’ property would not exist.

Final Decision

The ALJ concluded that the Association had violated Article IV section 4.1.1 of the CC&Rs.

IT IS ORDERED that Petitioners’ petition is granted. The Respondent was FURTHER ORDERED to pay Petitioners their filing fee of $500.00 within thirty days. The OAH clarified that while it lacked statutory authority to grant declaratory or injunctive relief, the decision acts to "Order Respondent to abide by the section of the planned community specified".

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

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

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden_of_proof
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

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

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Rodney Kirby (petitioner)
  • Patricia Kirby (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Kaylee Ivy (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Regis Salazar (witness)

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

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

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-442, A.R.S. § 33-1806

Outcome Summary

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

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

Key Issues & Findings

Challenge to unauthorized/unlawful transfer fees charged by HOA

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

Orders: Petitioner’s petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

21F-H2120024-REL Decision – 855401.pdf

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

21F-H2120024-REL Decision – 855401.pdf

Uploaded 2026-01-23T17:36:12 (95.8 KB)

This is a concise summary of the Administrative Law Judge Decision in the matter of *Aaron Ricks (Somerstone Properties, LLC) v. Montelena Master Community Association*.

Concise Summary of Administrative Hearing

Key Facts and Parties

The hearing took place on January 27, 2021, before Administrative Law Judge Tammy L. Eigenheer. Petitioner, Aaron Ricks, filed a Homeowners Association (HOA) Dispute Process Petition on or about October 27, 2020, alleging violations of community documents and statute. The dispute centered on alleged "unlawful fees ($5,000 in total)" that Petitioner claimed he was forced to pay to sell his home. The specific fee at issue was a $2500.00 transfer fee charged to the purchaser each time a parcel was sold.

Main Issues and Legal Basis

The core issue for the hearing was whether the Respondent, Montelena Master Community Association, violated A.R.S. § 33-1806, A.R.S. § 33-442, and the Association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) Article 6.9.2/6.9.2.9, specifically regarding the imposition of the transfer fee.

The legal focus was A.R.S. § 33-442, which generally prohibits transfer fees but provides exceptions. The key exception cited was A.R.S. § 33-442(C)(3), which allows fees if they are used exclusively for a purpose authorized in the document, touch and concern the land, and are not passed through to a specific third party or declarant (unless authorized to manage property or part of an approved development plan).

Key Arguments

  1. Respondent’s Position (Motion for Summary Judgment): Respondent filed a Motion for Summary Judgment arguing the Petition should be dismissed because the CC&Rs (Sections 7.15 and 6.6) authorized the fee, which touched and concerned the land. A 2010 Board Resolution specified the Transfer Fee was "to be used exclusively to fund the Master Association’s operating expenses and/or the Master Association’s reserves". Counsel argued this usage was sufficient to meet A.R.S. § 33-442(C) requirements. Respondent also asserted that the CC&R sections cited by the Petitioner (6.9.2 and 6.9.2.9) addressed a "Contribution to Reserves," not the specific Transfer Fee being contested.
  2. Petitioner’s Position: Petitioner acknowledged the statutory exception but argued that the transfer fee must be used for a very specific limited purpose (e.g., a swimming pool or landscaping project), rather than a general purpose like operating expenses or reserves, for the fee to be compliant with A.R.S. § 33-442. Petitioner also asserted that specific CC&R sections precluded the fee. (Petitioner offered no argument regarding A.R.S. § 33-1806).

Legal Points and Outcome

The Administrative Law Judge (ALJ) noted that the Petitioner bore the burden of proof to establish violations by a preponderance of the evidence.

The ALJ determined that Petitioner failed to establish a violation of the community documents and A.R.S. § 33-442. Crucially, Petitioner offered no legal authority to support his interpretation that A.R.S. § 33-442 required the transfer fee to be designated for a more specific purpose than the association’s operating expenses and/or reserves identified in the governing documents.

The final decision was that Petitioner’s petition is dismissed. This decision was done on February 16, 2021.

Questions

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-442(C)

Topic Tags

  • transfer fees
  • operating expenses
  • financial management

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 6.6; CC&Rs Section 7.15

Topic Tags

  • board authority
  • CC&Rs
  • fees

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Board Resolution (Recorded July 23, 2010)

Topic Tags

  • reserve contribution
  • transfer fees
  • closing costs

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Arizona Law of Evidence § 5

Topic Tags

  • legal definitions
  • evidence
  • standard of proof

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 7.15

Topic Tags

  • bankruptcy
  • property transfer
  • exemptions

Case

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

Questions

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-442(C)

Topic Tags

  • transfer fees
  • operating expenses
  • financial management

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 6.6; CC&Rs Section 7.15

Topic Tags

  • board authority
  • CC&Rs
  • fees

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Board Resolution (Recorded July 23, 2010)

Topic Tags

  • reserve contribution
  • transfer fees
  • closing costs

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Arizona Law of Evidence § 5

Topic Tags

  • legal definitions
  • evidence
  • standard of proof

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 7.15

Topic Tags

  • bankruptcy
  • property transfer
  • exemptions

Case

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

Case Participants

Petitioner Side

  • Aaron Ricks (petitioner)
    Somerstone Properties, LLC

Respondent Side

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

Neutral Parties

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

The Sun Groves Homeowners Association v. David L & Makenzie Lockhart

Posted on by

Case Summary

Case ID 21F-H2120019-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-02-10
Administrative Law Judge Adam D. Stone
Outcome The Petitioner (HOA) prevailed as the Respondents stipulated they violated the CC&R Article 10.11.1 concerning parking, and were ordered to pay the Petitioner's $500.00 filing fees.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sun Groves Homeowners Association Counsel Robert H. Willis, Esq.
Respondent David L. and Stephanie J. Lockhart Counsel Andrew Ellis, Esq.

Alleged Violations

Article 10.11.1 of the SGHA CC&R’s

Outcome Summary

The Petitioner (HOA) prevailed as the Respondents stipulated they violated the CC&R Article 10.11.1 concerning parking, and were ordered to pay the Petitioner's $500.00 filing fees.

Why this result: Respondents stipulated that they were in violation of Article 10.11.1 of the SGHA CC&R’s.

Key Issues & Findings

Violation of parking restrictions

Respondents stipulated that they were in violation of the SGHA CC&R’s regarding parking restrictions.

Orders: Petition granted; Respondents assessed the cost of Petitioner’s filing fees in the amount of $500.00.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199(B)

Analytics Highlights

Topics: Stipulation, CC&R Violation, Parking
Additional Citations:

  • A.R.S. § 32-2199(B)
  • Title 33, Chapter 16

Video Overview

Audio Overview

Decision Documents

21F-H2120019-REL Decision – 854057.pdf

Uploaded 2026-04-24T11:30:59 (84.7 KB)

21F-H2120019-REL Decision – 854057.pdf

Uploaded 2026-01-23T17:35:42 (84.7 KB)

The administrative legal case hearing, *The Sun Groves Homeowners Association (SGHA) v. David L. and Stephanie J. Lockhart*, was held on February 9, 2021, before the Office of Administrative Hearings (OAH). The proceeding was overseen by Administrative Law Judge Adam D. Stone.

Key Facts and Jurisdiction

The Petitioner, Sun Groves Homeowners Association, is a planned community organization. Respondents, David L. and Stephanie J. Lockhart, are homeowners and members of SGHA. The case was filed with the Arizona Department of Real Estate (ADRE), which, along with the OAH, is authorized by A.R.S. § 32-2199(B) to hear petitions regarding violations of planned community documents.

Main Issue and Legal Points

SGHA filed a complaint alleging that the Lockharts were in violation of Article 10.11.1 of the SGHA CC&R’s. This specific article restricts the parking of private passenger automobiles or pickup trucks, requiring them to be parked within a garage, in a private driveway, or in Board-designated areas. The most critical legal point of the hearing was that the Respondents stipulated (agreed) that they were in violation of Article 10.11.1 of the CC&R’s. The Respondents also stipulated that SGHA was the prevailing party in the matter.

Final Decision and Outcome

Pursuant to the stipulation of the parties, the tribunal issued a Conclusion of Law finding that the Respondents had violated Article 10.11.1 of the SGHA CC&R’s. The Administrative Law Judge granted the Petitioners’ petition. As the prevailing party, SGHA was awarded costs, and the Lockharts were ordered to pay Petitioner’s filing fees in the amount of $500.00. The Order became binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.

Questions

Question

Can my HOA restrict parking on the street or in front of my house?

Short Answer

Yes, if the CC&Rs specifically restrict parking to garages or driveways.

Detailed Answer

The ALJ upheld a CC&R provision that prohibited parking private passenger automobiles or pickup trucks anywhere on the property or adjacent roadways, except within a garage or private driveway.

Alj Quote

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.

Legal Basis

CC&R Article 10.11.1

Topic Tags

  • Parking
  • CC&Rs
  • Restrictions

Question

If I admit to a violation during a hearing, what happens?

Short Answer

The judge will accept the admission and issue a finding that the violation occurred.

Detailed Answer

When a homeowner stipulates (agrees) that they were in violation of a specific rule, the tribunal accepts this admission as fact and rules accordingly without needing further evidence.

Alj Quote

Pursuant to the stipulation of the parties, the tribunal finds that Respondents violated Article 10.11.1 of the SGHA CC&R’s.

Legal Basis

Stipulation of Parties

Topic Tags

  • Hearing Procedure
  • Stipulation
  • Evidence

Question

Can the HOA force me to pay their filing fees if they win?

Short Answer

Yes, the judge can order the homeowner to pay the HOA's filing fees.

Detailed Answer

In this case, the homeowners agreed to pay the HOA's $500.00 filing fee as part of the stipulation that the HOA was the prevailing party, and the judge ordered this assessment.

Alj Quote

IT IS FURTHER ORDERED assessing the cost of Petitioner’s filing fees in the amount of $500.00.

Legal Basis

Administrative Order

Topic Tags

  • Fines
  • Fees
  • Costs

Question

Does the Department of Real Estate have authority to hear HOA violation cases?

Short Answer

Yes, state law allows owners or HOAs to file petitions regarding violations of community documents.

Detailed Answer

Arizona statute permits planned community organizations (HOAs) or owners to file petitions with the Department regarding violations, which are then heard by the Office of Administrative Hearings.

Alj Quote

A.R.S. § 32-2199(B) permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents under the authority Title 33, Chapter 16.

Legal Basis

A.R.S. § 32-2199(B)

Topic Tags

  • Jurisdiction
  • ADRE
  • Process

Question

Is the Administrative Law Judge's decision final?

Short Answer

Yes, the order is binding unless a rehearing is granted.

Detailed Answer

The decision issued by the ALJ is legally binding on both the homeowner and the HOA unless a request for a rehearing is successfully granted.

Alj Quote

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.

Legal Basis

A.R.S. § 32-2199.02(B)

Topic Tags

  • Legal Status
  • Appeals
  • Binding Order

Question

How much time do I have to appeal or request a rehearing?

Short Answer

You must file a request for rehearing within 30 days of the service of the order.

Detailed Answer

If a party wishes to challenge the decision, they must file a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • Appeals
  • Deadlines
  • Procedure

Case

Docket No
21F-H2120019-REL
Case Title
The Sun Groves Homeowners Association vs. David L & Makenzie Lockhart
Decision Date
2021-02-10
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA restrict parking on the street or in front of my house?

Short Answer

Yes, if the CC&Rs specifically restrict parking to garages or driveways.

Detailed Answer

The ALJ upheld a CC&R provision that prohibited parking private passenger automobiles or pickup trucks anywhere on the property or adjacent roadways, except within a garage or private driveway.

Alj Quote

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.

Legal Basis

CC&R Article 10.11.1

Topic Tags

  • Parking
  • CC&Rs
  • Restrictions

Question

If I admit to a violation during a hearing, what happens?

Short Answer

The judge will accept the admission and issue a finding that the violation occurred.

Detailed Answer

When a homeowner stipulates (agrees) that they were in violation of a specific rule, the tribunal accepts this admission as fact and rules accordingly without needing further evidence.

Alj Quote

Pursuant to the stipulation of the parties, the tribunal finds that Respondents violated Article 10.11.1 of the SGHA CC&R’s.

Legal Basis

Stipulation of Parties

Topic Tags

  • Hearing Procedure
  • Stipulation
  • Evidence

Question

Can the HOA force me to pay their filing fees if they win?

Short Answer

Yes, the judge can order the homeowner to pay the HOA's filing fees.

Detailed Answer

In this case, the homeowners agreed to pay the HOA's $500.00 filing fee as part of the stipulation that the HOA was the prevailing party, and the judge ordered this assessment.

Alj Quote

IT IS FURTHER ORDERED assessing the cost of Petitioner’s filing fees in the amount of $500.00.

Legal Basis

Administrative Order

Topic Tags

  • Fines
  • Fees
  • Costs

Question

Does the Department of Real Estate have authority to hear HOA violation cases?

Short Answer

Yes, state law allows owners or HOAs to file petitions regarding violations of community documents.

Detailed Answer

Arizona statute permits planned community organizations (HOAs) or owners to file petitions with the Department regarding violations, which are then heard by the Office of Administrative Hearings.

Alj Quote

A.R.S. § 32-2199(B) permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents under the authority Title 33, Chapter 16.

Legal Basis

A.R.S. § 32-2199(B)

Topic Tags

  • Jurisdiction
  • ADRE
  • Process

Question

Is the Administrative Law Judge's decision final?

Short Answer

Yes, the order is binding unless a rehearing is granted.

Detailed Answer

The decision issued by the ALJ is legally binding on both the homeowner and the HOA unless a request for a rehearing is successfully granted.

Alj Quote

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.

Legal Basis

A.R.S. § 32-2199.02(B)

Topic Tags

  • Legal Status
  • Appeals
  • Binding Order

Question

How much time do I have to appeal or request a rehearing?

Short Answer

You must file a request for rehearing within 30 days of the service of the order.

Detailed Answer

If a party wishes to challenge the decision, they must file a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

  • Appeals
  • Deadlines
  • Procedure

Case

Docket No
21F-H2120019-REL
Case Title
The Sun Groves Homeowners Association vs. David L & Makenzie Lockhart
Decision Date
2021-02-10
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Robert H. Willis (attorney)
    Burdman Willis, PLLC

Respondent Side

  • David L. Lockhart (respondent)
  • Stephanie J. Lockhart (respondent)
    Proper co-Respondent in this matter
  • Makenzie Lockhart (listed respondent)
    Respondent’s daughter
  • Andrew Ellis (attorney)

Neutral Parties

  • Adam D. Stone (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

John D Klemmer v. Caribbean Gardens Association

Posted on by

Case Summary

Case ID 21F-H2120009-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-12-17
Administrative Law Judge Kay A. Abramsohn
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John D Klemmer Counsel —
Respondent Caribbean Gardens Association Counsel Nicole D. Payne, Esq., Lydia A. Pierce Linsmeier, Esq.

Alleged Violations

CC&Rs Article 1, Sections 1.5 and 1.8; Article 3, Section 3.4; Article 4, Section 4.1; Article 8, Section 8.1; and, Article 12, Section 12.4

Outcome Summary

The Petition was dismissed because the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent Association violated the cited CC&R provisions by refusing to manage the disputed area, which the ALJ determined was a limited common element.

Why this result: The Petitioner lost because the area in dispute was determined to be a 'limited common element' (a balcony serving Unit 207) under Arizona statute (A.R.S. § 33-1212(A)), not a 'common area' the Association was required to manage under the referenced CC&Rs.

Key Issues & Findings

Refusal to manage, operate, maintain and administer common area

Petitioner alleged the HOA violated multiple CC&Rs by refusing to maintain an area between Unit 206 and Unit 207, which he claimed was a common area. The HOA argued the area was a limited common element. The ALJ concluded, relying on A.R.S. § 33-1212(A), that the disputed area was a limited common element (a balcony) allocated exclusively to Unit 207, thus Petitioner failed to establish a CC&R violation.

Orders: Petitioner's Petition is dismissed. Petitioner bears his $500.00 filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1212(A)
  • CC&Rs Article 1, Section 1.5
  • CC&Rs Article 1, Section 1.6
  • CC&Rs Article 3, Section 3.4
  • CC&Rs Article 4, Section 4.1
  • CC&Rs Article 8, Section 8.1
  • CC&Rs Article 12, Section 12.4

Analytics Highlights

Topics: condominium, common elements, limited common elements, balcony dispute, CC&R violation, A.R.S. 33-1212
Additional Citations:

  • A.R.S. § 33-1212
  • A.R.S. § 33-1218
  • A.R.S. Title 33, Chapter 16
  • A.A.C. R2-19-119
  • CC&Rs Article 1, Sections 1.5, 1.8
  • CC&Rs Article 3, Section 3.4
  • CC&Rs Article 4, Section 4.1
  • CC&Rs Article 8, Section 8.1
  • CC&Rs Article 12, Section 12.4

Video Overview

Audio Overview

Decision Documents

21F-H2120009-REL Decision – 876384.pdf

Uploaded 2026-04-24T11:29:57 (124.8 KB)

21F-H2120009-REL Decision – 843358.pdf

Uploaded 2026-04-24T11:30:03 (129.8 KB)

21F-H2120009-REL Decision – 843358.pdf

Uploaded 2026-01-23T17:35:00 (129.8 KB)

Briefing Document: Klemmer v. Caribbean Gardens Association

Executive Summary

This document synthesizes the findings and decision in the administrative case of John D. Klemmer v. Caribbean Gardens Association (No. 21F-H2120009-REL). The core of the dispute was the legal classification of an outdoor space located between two condominium units. The Petitioner, a unit owner, argued the space was a “common area” that the Association was legally obligated to manage under its governing documents (CC&Rs). The Respondent Association countered that the space was a “balcony” or “limited common element” for the exclusive use of the adjacent unit owner.

The Administrative Law Judge (ALJ) ultimately dismissed the petition. While the Association’s 1973 CC&Rs and the official Plat document were ambiguous regarding the space, the decision hinged on the application of a later state statute, Arizona Revised Statutes (A.R.S.) § 33-1212. This statute defines balconies designed to serve a single unit as “limited common elements” allocated exclusively to that unit. Because the disputed area was only accessible from a single unit (Unit 207), the ALJ concluded it met this statutory definition. Consequently, the Petitioner failed to prove by a preponderance of the evidence that the Association had violated its CC&Rs by not treating the space as a general common area.

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Case Overview

Case Name

John D Klemmer v. Caribbean Gardens Association

Case Number

21F-H2120009-REL

Jurisdiction

Arizona Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Kay A. Abramsohn

Hearing Date

November 6, 2020

Decision Date

December 17, 2020

Petitioner

John D. Klemmer (Unit 101 Owner), representing himself

Respondent

Caribbean Gardens Association, represented by Nicole D. Payne, Esq.

Fundamental Dispute: The case centered on whether the Caribbean Gardens Association violated its Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by refusing to manage, operate, and maintain an outdoor area located on the second level between Units 206 and 207, which the Petitioner claimed was a common area belonging to all 40 unit owners.

Petitioner’s Position (John D. Klemmer)

The Petitioner’s case rested on the argument that the disputed area was a “common area” or “common element” as defined by the Association’s governing documents.

• Core Allegation: On April 15, 2020, the Caribbean Board violated multiple sections of its CC&Rs by refusing to administer a common area.

• Basis of Claim: The Petitioner argued that all space not explicitly delineated on the official Plat document as an “Apartment,” “patio,” or “balcony” must be considered a common area. The area in question is blank on the Plat.

• Ownership Argument: Each of the 40 unit owners possesses an “undivided ownership interest in the common areas and [common] elements.” He contended that if the Board did not acknowledge ownership, this common area would be lost to its rightful owners.

• Evidence of Misuse: The Petitioner presented photographic evidence showing that the owners of Unit 207 were exclusively occupying the space as if it were another room, adding furniture, walls, and making improvements to the exterior walls of Unit 206.

• Cited CC&R Violations: The petition alleged violations of the following articles:

◦ Article 1, Sections 1.5 and 1.8: Definitions of “Apartment” and “Plat.”

◦ Article 3, Section 3.4: Requirement for the Association to manage Common Elements.

◦ Article 4, Section 4.1: Vests title of Common Elements in the owners.

◦ Article 8, Section 8.1: Pertains to encroachments.

◦ Article 12, Section 12.4: Binds all owners to the Declaration.

Respondent’s Position (Caribbean Gardens Association)

The Association denied the allegations, arguing that the space was not a common area under its purview.

• Core Defense: The disputed area is not a common area but is instead a “balcony” attached to Unit 207, or alternatively, a “limited common element” for the exclusive use of the Unit 207 owners.

• Testimony: Board Member Alex Gomez testified that the Board’s position is that the area is a balcony. He further stated that the Association has never maintained any balconies within the community, including the one in question.

• Procedural Motions: The Association initially filed a Motion to Dismiss and a Motion for Summary Judgment, arguing that the tribunal lacked jurisdiction, the Petitioner was seeking relief that couldn’t be granted (declaratory and injunctive), and that other procedural and constitutional issues existed. These motions were denied by the tribunal.

Findings of Fact and Evidence

The ALJ established the following key facts based on the hearing record:

• Description of Disputed Area: The space is a concrete slab on the second level, located between the exterior walls of Unit 206 and Unit 207. It includes outside iron railings that fence it off.

• Exclusive Access: The area is not a staircase landing and can only be accessed through a door from a room within Unit 207. This access is an original feature of the building’s construction.

• Status on the Plat: The official Plat document, which defines the boundaries of apartments and their associated balconies and patios, is blank in the location of the disputed area. It is not specifically delineated in any way.

• Current Use: Photographic evidence confirmed the space contains furniture and other decorative items, indicating exclusive use by the occupants of Unit 207.

Legal Analysis and Conclusion of the Administrative Law Judge

The ALJ’s decision was based on an interpretation of both the community’s CC&Rs and overriding state law.

• Burden of Proof: The Petitioner, Mr. Klemmer, bore the burden of proving by a preponderance of the evidence that the Association had violated the specified CC&R provisions.

• Ambiguity in Governing Documents: The judge acknowledged a conflict in the 1973 CC&Rs.

◦ Article 1.5 defines an “Apartment” by its depiction on the Plat, which does not include the disputed area.

◦ Article 1.6 defines “Common Elements” as “all other portions of the Property except the Apartments.” This definition would logically include the undelineated disputed area.

• Application of State Statute: The decisive factor was the application of A.R.S. § 33-1212, a statute enacted in 1985, after the CC&Rs were recorded. The judge focused on subsection 4:

• Final Conclusion: The ALJ concluded that the disputed area fits the statutory description of a balcony “designed to serve a single unit,” as it is only accessible from Unit 207. Therefore, under Arizona law, it is classified as a “limited common element” allocated exclusively to that unit. Because it is not a general common area, the Association had no obligation to manage it as such. The Petitioner thus failed to establish a violation of the CC&Rs.

Final Order

Based on the analysis, the Administrative Law Judge issued the following orders on December 17, 2020:

1. IT IS ORDERED that Petitioner’s Petition is dismissed.

2. IT IS FURTHER ORDERED that Petitioner bears his $500.00 filing fee.

Study Guide: Klemmer v. Caribbean Gardens Association

This guide provides a detailed review of the Administrative Law Judge Decision in the case of John D. Klemmer v. Caribbean Gardens Association, No. 21F-H2120009-REL. It includes a quiz with an answer key to test comprehension, a set of essay questions for deeper analysis, and a comprehensive glossary of key legal and case-specific terms.

Quiz: Short-Answer Questions

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

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

2. What was the central allegation made by the Petitioner, John D. Klemmer, in his petition filed on August 21, 2020?

3. Describe the specific physical location and characteristics of the disputed area at the heart of this case.

4. On what grounds did the Petitioner argue that the disputed area should be considered a “common area”?

5. What was the initial position of the Caribbean Gardens Association Board regarding the status of the disputed area, as testified by Board Member Alex Gomez?

6. Before the hearing, what arguments did the Respondent make in its Motion for Summary Judgment?

7. How do the CC&Rs define an “Apartment” versus “Common Elements”?

8. Which specific Arizona Revised Statute (A.R.S.) did the Administrative Law Judge ultimately rely upon to classify the disputed area?

9. What was the final conclusion of the Administrative Law Judge regarding the nature of the disputed area?

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

——————————————————————————–

Answer Key

1. The primary parties are John D. Klemmer, the Petitioner who brought the complaint, and the Caribbean Gardens Association, the Respondent and condominium community association. Mr. Klemmer represented himself, while the Association was represented by counsel, Nicole D. Payne, Esq.

2. The Petitioner alleged that on April 15, 2020, the Caribbean Board violated its CC&Rs by refusing to manage, operate, maintain, and administer a specific “common area.” He claimed this refusal would lead to the loss of the area to its rightful owners, the 40 unit owners of Caribbean Gardens.

3. The disputed area is located on the second level of the building, between the exterior walls of Unit 206 and Unit 207. It consists of a concrete slab with attached iron railings and can only be accessed through a door from Unit 207.

4. The Petitioner argued the area was a “common area” because it was not specifically delineated on the Plat document as part of an apartment, patio, or balcony. He contended that any space not explicitly designated as part of a unit on the Plat must therefore be a common element belonging to all 40 unit owners.

5. Board Member Alex Gomez testified that the Board’s position was that the disputed area is not a common area but is a “balcony” attached to Unit 207. He stated that the Association has never maintained any balconies, including the one in question.

6. In its Motion for Summary Judgment, the Respondent argued that the Petitioner was seeking relief that the Tribunal could not grant, that he should have filed a derivative action, and that he had not paid sufficient filing fees for multiple issues. The Respondent also challenged the constitutionality of the Enabling Statutes and the jurisdiction of the Department and the Tribunal.

7. Article 1, Section 1.5 of the CC&Rs defines an “Apartment” as the space enclosed by the planes shown on the Plat, including any patio or balcony areas identified on said Plat. In contrast, Article 1, Section 1.6 defines “Common Elements” as all other portions of the Property except the Apartments, including specific items like pools and landscaping.

8. The Judge relied on A.R.S. § 33-1212, which states that balconies and other fixtures designed to serve a single unit but located outside its boundaries are “limited common elements allocated exclusively to that unit.”

9. The Administrative Law Judge concluded that the disputed area must be a balcony “designed to serve a single unit, but located outside the unit’s boundaries.” Therefore, it is considered a limited common element, and the Petitioner did not establish that the Caribbean Gardens Association had violated any CC&R provisions.

10. The recommended order was that the Petitioner’s Petition be dismissed. It was further ordered that the Petitioner bear his own $500.00 filing fee.

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Essay Questions

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

1. Analyze the conflicting interpretations of the disputed area presented by the Petitioner and the Respondent. How did their respective readings of the CC&Rs and the Plat document lead to their opposing conclusions?

2. Discuss the critical role of the Plat document in this dispute. Explain how the blank space on the Plat between Units 206 and 207 created an ambiguity that was central to the arguments of both parties.

3. Trace the legal reasoning employed by Administrative Law Judge Kay A. Abramsohn. Detail her process of weighing the definitions in the 1973 CC&Rs against the provisions of the 1985 Arizona Revised Statutes to reach a final decision.

4. Evaluate the arguments raised by the Caribbean Gardens Association in its Motion for Summary Judgment. Although the motion was not granted, what significant legal and jurisdictional challenges did it present against the Petitioner’s case and the hearing body’s authority?

5. This case highlights a tension between a condominium’s original governing documents (the 1973 Declaration) and subsequent state law (the 1985 Condominium statutes). Discuss how this dynamic influenced the outcome and what it reveals about the hierarchy of legal authority in condominium governance.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over an administrative hearing and issues a written decision. In this case, the ALJ was Kay A. Abramsohn.

Apartment

As defined by Article 1, Section 1.5 of the CC&Rs, it is a part of the Property intended for independent use as a dwelling unit, consisting of the space enclosed by the planes shown on the Plat, including any patio and balcony areas identified on that Plat.

An abbreviation for the Declaration of Covenants, Conditions and Restrictions, the governing legal documents for the Caribbean Gardens community. These were originally recorded in 1973.

Common Elements

As defined by Article 1, Section 1.6 of the CC&Rs, this term includes “general common elements” as defined in the former A.R.S. § 33-551, along with specific areas like parking, yards, the swimming pool, and “all other portions of the Property except the Apartments.”

Horizontal Property Regime

The legal framework governing the property, established under A.R.S. § 33-551 through § 33-561 at the time of the 1973 Declaration. These statutes were later repealed and replaced by the current Condominium laws.

Limited Common Elements

A legal classification defined in A.R.S. § 33-1212. It refers to fixtures like porches, balconies, patios, and entryways that are designed to serve a single unit but are located outside that unit’s boundaries, and are therefore allocated exclusively to that unit.

Petition

The formal, single-issue legal document filed by John D. Klemmer with the Department to initiate the dispute, alleging that the Caribbean Board violated its CC&Rs.

Petitioner

The party initiating a legal action by filing a petition. In this case, John D. Klemmer, a resident of Unit 101.

The official two-page survey map of the Property and all Apartments, attached to the Declaration as Exhibit “B.” It delineates the boundaries of individual units and other areas within the community.

Preponderance of the Evidence

The standard of proof the Petitioner was required to meet. It means the evidence presented must be more convincing than the opposing evidence, showing the fact in question is more probable than not.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Caribbean Gardens Association.

Tribunal

A term used in the decision to refer to the Arizona Office of Administrative Hearings (OAH), the state agency authorized to hear and decide the contested matter.

Questions

Question

If a balcony or patio serves only my unit but isn't explicitly drawn on the community Plat map, is it considered general common area?

Short Answer

Likely not. Under Arizona law, fixtures designed to serve a single unit located outside its boundaries are considered 'limited common elements' allocated exclusively to that unit, even if the Plat is ambiguous.

Detailed Answer

In this decision, the ALJ determined that an area not drawn on the Plat was a limited common element because it was physically accessible only from one unit. The judge cited A.R.S. § 33-1212(4), which defines features like balconies and patios designed to serve a single unit as limited common elements.

Alj Quote

Accordingly, the Administrative Law Judge concludes that the disputed area must be a balcony 'designed to serve a single unit, but located outside the unit’s boundaries.'

Legal Basis

A.R.S. § 33-1212(4)

Topic Tags

  • Common Elements
  • Plat Maps
  • Property Boundaries

Question

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

Short Answer

The homeowner (Petitioner) must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner must demonstrate that their claims are more probable than not. It is not the HOA's job to disprove the allegations; the homeowner must provide evidence of greater weight.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that, as alleged, Caribbean has violated CC&Rs…

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Procedure
  • Burden of Proof
  • Evidence

Question

Does the Department of Real Estate have jurisdiction to hear disputes about CC&R violations and maintenance issues?

Short Answer

Yes, the Department has jurisdiction to receive petitions and hear disputes regarding property owners and condominium associations.

Detailed Answer

The decision affirms that the Tribunal has the authority to hear contested matters between owners and associations regarding alleged violations of the CC&Rs and statutes.

Alj Quote

The Department has jurisdiction to receive petitions, hear disputes between a property owner and a condominium community association, and take other actions pursuant to Arizona Revised Statutes (A.R.S.), Title 33, Chapter 16.

Legal Basis

A.R.S. Title 33, Chapter 16

Topic Tags

  • Jurisdiction
  • ADRE Authority
  • Dispute Resolution

Question

Who is responsible for paying the filing fee if the homeowner loses the hearing?

Short Answer

The homeowner (Petitioner) typically bears the cost of the filing fee if the petition is dismissed.

Detailed Answer

In this case, after dismissing the homeowner's petition, the judge ordered the homeowner to bear the cost of the $500 filing fee.

Alj Quote

IT IS FURTHER ORDERED that Petitioner bears his $500.00 filing fee.

Legal Basis

Administrative Order

Topic Tags

  • Fees
  • Penalties
  • Hearing Costs

Question

What specifically counts as a 'limited common element' under Arizona law?

Short Answer

Fixtures like shutters, awnings, balconies, and patios that are outside a unit's boundaries but designed to serve that single unit.

Detailed Answer

State statute specifically lists items such as doorsteps, stoops, porches, balconies, and exterior doors as limited common elements if they are designed for the exclusive use of one unit.

Alj Quote

Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, entryways or patios, and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit's boundaries, are limited common elements allocated exclusively to that unit.

Legal Basis

A.R.S. § 33-1212

Topic Tags

  • Definitions
  • Limited Common Elements
  • Statutes

Question

Can the HOA Board make rules regarding the use of common elements without a vote of the owners?

Short Answer

Yes, if the CC&Rs grant the Board the exclusive right to manage and regulate common elements.

Detailed Answer

The CC&Rs in this case provided the Board with the exclusive power to establish rules governing the use and maintenance of common elements.

Alj Quote

The Board shall have the exclusive right and power to establish and impose rules and regulations governing the use, maintenance and development of all and any part of the Common Elements…

Legal Basis

CC&Rs Article 3, Section 3.4

Topic Tags

  • Board Authority
  • Rules and Regulations
  • Common Elements

Case

Docket No
21F-H2120009-REL
Case Title
John D Klemmer v. Caribbean Gardens Association
Decision Date
2020-12-17
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • John D. Klemmer (petitioner)
    represented himself

Respondent Side

  • Nicole D. Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Alex Gomez (board member)
    Caribbean Board
    testified at hearing
  • Lydia A. Pierce Linsmeier (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP

Neutral Parties

  • Kay A. Abramsohn (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Foothills Club West Homeowners Association v. Subrahmanyam & Sheila

Posted on by

Case Summary

Case ID 21F-H2120004-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-11-27
Administrative Law Judge Kay Abramsohn
Outcome The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Foothills Club West Homeowners Association Counsel John Halk, Esq.
Respondent Subrahmanyam & Sudhakar Living Trust Counsel Mary T. Hone, Esq.

Alleged Violations

CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5

Outcome Summary

The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.

Key Issues & Findings

Unauthorized 2nd story addition

Respondents constructed a second-story Addition to their property without first obtaining approval from the Foothills Architectural Committee, violating the community governing documents.

Orders: Respondents’ appeal is dismissed, and Foothills is deemed the prevailing party with regard to its Petition.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_win

Cited:

  • CC&Rs Article 7, Section 7.3
  • CC&R Article 9, Section 9.3
  • CC&R Article 9, Section 9.4
  • CC&R Article 9, Section 9.5

Analytics Highlights

Topics: architectural review, cc&r violation, unapproved construction, second story addition, prevailing party
Additional Citations:

  • A.R.S. §§ 32-2102
  • A.R.S. §§ 32-2199 et al.
  • A.R.S. §§ 32-2199(2)
  • A.R.S. §§ 32-2199.01(D)
  • A.R.S. §§ 32-2199.02
  • A.R.S. § 32-2199.05
  • A.R.S. § 41-1092
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

21F-H2120004-REL Decision – 839537.pdf

Uploaded 2026-04-28T10:53:36 (135.4 KB)

21F-H2120004-REL Decision – 839537.pdf

Uploaded 2026-01-23T17:34:43 (135.4 KB)

Briefing Document: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust

Executive Summary

This document synthesizes the findings and decision in the case of Foothills Club West Homeowners Association v. Subrahmanyam & Sudhakar Living Trust (No. 21F-H2120004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core dispute involved the construction of a second-story addition by homeowners (Respondents) without the prior approval of the Homeowners Association (Petitioner), a direct violation of the community’s governing documents.

The Administrative Law Judge (ALJ) found conclusively in favor of the Foothills Club West HOA. The evidence demonstrated that the Respondents not only began construction without seeking approval but continued the project even after receiving a formal denial from the HOA’s Architectural Committee. A subsequent agreement between the parties, wherein the Respondents would demolish the addition in exchange for a waiver of fines, was not honored by the Respondents. The ALJ dismissed the Respondents’ appeal and declared the HOA the prevailing party, validating its authority to enforce the community’s architectural standards as outlined in its Covenants, Conditions, and Restrictions (CC&Rs).

I. Case Overview

• Case Name: Foothills Club West Homeowners Association, Petitioner, v. Subrahmanyam & Sudhakar Living Trust, Respondent.

• Case Number: 21F-H2120004-REL

• Jurisdiction: Arizona Office of Administrative Hearings

• Administrative Law Judge: Kay Abramsohn

• Hearing Date: October 5, 2020

• Decision Date: November 27, 2020

• Central Issue: The petition filed by Foothills HOA on July 24, 2020, alleged that the Respondents constructed an unauthorized and unapproved second-story addition to their property. This action was alleged to be in violation of CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5.

II. Chronology of Key Events

The hearing record established the following undisputed sequence of events:

Oct. 2018

Respondents begin construction of the second-story addition.

Nov. 7, 2018

The City of Phoenix issues a stop-work order, noting a permit is required.

Nov. 7, 2018

Foothills HOA issues a violation notice to the Respondents.

Dec. 17, 2018

Respondents obtain a permit from the City of Phoenix.

Jan. 18, 2019 (approx.)

Respondents submit a request for approval to the Foothills Architectural Committee.

Jan. 18, 2019

Foothills HOA issues a penalty notice to the Respondents, with further notices issued monthly.

Feb. 22, 2019

Foothills HOA issues a formal denial of the application.

Mar. 15, 2019

The City of Phoenix gives final approval to the construction and issues a Certificate of Occupancy.

Post Feb. 2019

The parties reach an agreement for Respondents to demolish the addition in exchange for a waiver of fines.

July 24, 2020

Foothills HOA files its petition, noting Respondents have not complied with the demolition agreement.

Oct. 5, 2020

The administrative hearing is held.

Nov. 27, 2020

The Administrative Law Judge issues the final decision.

III. Arguments of the Parties

A. Petitioner: Foothills Club West HOA

• Violation of CC&Rs: The HOA argued that the Respondents violated CC&R Article 9, Section 9.3 by commencing construction without first obtaining approval from the Architectural Committee.

• Disregard for Denial: The HOA asserted that the Respondents completed the addition after receiving a formal denial of their application.

• Breach of Agreement: The HOA noted that the parties had reached a settlement agreement for demolition, which the Respondents failed to honor. The HOA requested that the Tribunal enforce this agreement.

• Jurisdictional Distinction: The HOA maintained that approval from the City of Phoenix was a separate matter and did not negate the requirement to obtain approval from the HOA as mandated by the governing documents.

B. Respondents: Subrahmanyam & Sudhakar Living Trust

• Initial Ignorance: Respondents claimed they were initially unaware of the HOA approval requirements.

• Attempted Compliance: They argued that once notified, they followed the association’s guidance, met with the Board, and sought approval.

• Vague Denial: Respondents stated they did not understand the meaning of the denial reason, “Fails aesthetics of surrounding community,” or how the addition specifically violated community rules.

• Lack of Due Process: They argued they did not receive a letter indicating an appeal process was available and therefore felt they had not received a final “denial.”

• Demolition Delay: While not disputing the existence of the demolition agreement, Respondents cited COVID-19 issues and safety concerns for their at-risk family as reasons for requesting more time.

• Final Appeal: At the hearing, Respondents reversed their position on the agreement and requested to be allowed to keep the addition.

IV. Analysis of Governing Documents

The decision centered on specific provisions within the Foothills Club West governing documents, which constitute the contract between the HOA and the homeowners.

• CC&R Article 9, Section 9.3 (Architectural Approval): This section was central to the case. It states in pertinent part:

• CC&R Article 9, Section 9.4 (Obligation to Obtain Approval): This provision explicitly sets forth a homeowner’s obligation to secure approval from the Architectural Committee.

• CC&R Article 9, Section 9.5 (Exterior Appearance): This section clarifies that while the HOA cannot limit interior remodeling, it retains jurisdiction over any changes that are “visible from outside such [home] … or affects the exterior appearance of such [home].”

• Amended Architectural Guidelines (2013): These guidelines reinforce the CC&Rs, specifying that a homeowner’s plans must be submitted for approval through the Architectural Committee on a case-by-case basis.

V. Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions of law provided a clear framework for the final order.

A. Burden of Proof

The ALJ established that in this proceeding, the petitioner (Foothills HOA) bore the burden of proving by a “preponderance of the evidence” that the Respondents had violated the governing documents. A preponderance of the evidence is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”

B. Core Conclusion on Violations

The ALJ found that the HOA had successfully met its burden of proof. The central conclusion of law states:

“The Administrative Law Judge concludes that Foothills has demonstrated Respondents’ violation of the community governing documents, as stated in CC&R Article 9, Sections 9.3, 9.4, and 9.5, because Respondents began to construct a modification, the Addition, to their existing home prior to obtaining approval from Foothills Architectural Committee and, further, Respondents continued to construct the Addition despite receiving a denial of approval from Foothills Architectural Committee.”

This finding affirmed that the Respondents committed two distinct violations: starting work without approval and continuing work after being explicitly denied approval.

VI. Final Order and Implications

Based on the findings of fact and conclusions of law, the ALJ issued a decisive order.

• Order:

• Binding Nature: The decision notes that the order is binding on both parties unless a rehearing is requested. Pursuant to A.R.S. § 41-1092.09, a request for rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order.

Study Guide: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust

This guide provides a detailed review of the Administrative Law Judge Decision in case No. 21F-H2120004-REL. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a comprehensive glossary of key terms found within the document.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.

1. Who are the Petitioner and Respondent in this case, and what is their relationship?

2. What was the single issue raised in the petition filed by Foothills Club West Homeowners Association?

3. According to the Petition, which specific articles and sections of the governing documents did the Respondents allegedly violate?

4. What action did the City of Phoenix take on November 7, 2018, regarding the Respondents’ construction project?

5. What reasons did the Foothills Architectural Committee provide for denying the Respondents’ application on February 22, 2019?

6. Prior to the hearing, what agreement did the parties reach in an attempt to resolve the dispute?

7. What was the Respondents’ primary argument for their actions and for their failure to comply with the association’s denial?

8. What is the legal standard of proof required in this case, and which party bore the burden of meeting it?

9. Explain the difference between the City of Phoenix’s approval and the Foothills Architectural Committee’s approval, as argued by the Petitioner.

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

——————————————————————————–

Answer Key

1. The Petitioner is the Foothills Club West Homeowners Association (“Foothills”). The Respondent is the Subrahmanyam & Sheila Sudhakar Living Trust. Their relationship is that of a homeowners’ association and a member homeowner residing within the planned community for 22 years.

2. The single issue raised was that the Respondents constructed an unauthorized and unapproved second-story addition to their property. The construction was completed even after the Foothills Architectural Committee had issued a denial of the project.

3. Foothills alleged that the Respondents violated the CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5. These articles pertain to the rights and obligations of the association and the architectural standards requiring prior approval for modifications.

4. On November 7, 2018, the City of Phoenix issued a stop-work order for the Respondents’ construction project. The order noted that the work being performed required a permit, which had not yet been obtained.

5. The Foothills Architectural Committee denied the application because it needed copies of the City permit, the plans were incomplete, and there was no documentation on the roof line or roofing materials. Furthermore, the denial stated that the project “Fails aesthetics of surrounding community.”

6. The parties came to an agreement wherein the Respondents would complete the demolition of the second-story addition. In exchange, Foothills agreed to waive the penalties that had been imposed on the Respondents for the violation.

7. The Respondents argued that they initially did not know what was required and that they cooperated with the association’s Board once notified. They claimed they did not understand what “Fails aesthetics” meant, did not receive a letter about an appeal process, and therefore did not feel they had received a final “denial.”

8. The legal standard of proof is a “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not. The Petitioner, Foothills, bore the burden of proving the Respondents’ violation by this standard.

9. Foothills argued that approval from the City of Phoenix and approval from the association’s Architectural Committee were two different and separate matters. Even though the Respondents eventually received a City permit and a Certificate of Occupancy, this did not override the CC&R requirement to first obtain approval from Foothills.

10. The Administrative Law Judge ordered that the Respondents’ appeal be dismissed. The Judge deemed Foothills the prevailing party with regard to its petition, finding that Foothills had demonstrated the Respondents’ violation of the community’s governing documents.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing evidence and support directly from the provided legal decision.

1. Analyze the arguments presented by both the Petitioner (Foothills) and the Respondents at the hearing. Discuss the key evidence and claims each party used to support their position and explain why the Administrative Law Judge ultimately found the Petitioner’s case more persuasive.

2. Explain the distinct roles and jurisdictions of the Homeowners Association’s Architectural Committee and the City of Phoenix regarding the Respondents’ construction project. Why was obtaining a City permit and a Certificate of Occupancy insufficient for the Respondents to proceed without violating the community’s governing documents?

3. Trace the procedural history of case No. 21F-H2120004-REL, from the filing of the initial petition to the final order. Discuss key filings, motions, and deadlines mentioned in the document, including the Respondents’ attempt to consolidate another case.

4. Discuss the significance of the “contract” between the parties, as defined in footnote 15. How do the CC&Rs and the amended Architectural Guidelines function as this contract, and which specific sections were central to the judge’s conclusion that a violation occurred?

5. Evaluate the Respondents’ attempt to justify their failure to demolish the addition as per their agreement with Foothills, citing COVID-19 issues. How did their request at the hearing to keep the addition conflict with their prior agreement, and what does this reveal about their position in the dispute?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Kay Abramsohn, who presides over administrative hearings at the Office of Administrative Hearings and issues decisions.

Architectural Committee

A committee appointed by the Foothills HOA, as established by CC&R Article 9, with the authority to review, approve, or disapprove plans for construction, modifications, and additions to properties within the community.

An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These are the governing documents that form a binding contract between the homeowners association and the property owners, outlining their rights and obligations.

Disclosure

The formal process by which parties in a legal case provide evidence, exhibits, and information to each other before a hearing. The deadline for disclosure in this case was September 29, 2020.

Governing Documents

The set of rules for the planned community, including the CC&Rs and the amended Architectural Guidelines, which have the same force and effect as association rules.

Petitioner

The party who initiates a legal proceeding by filing a petition. In this case, the Foothills Club West Homeowners Association.

Petition

The formal document filed with the Arizona Department of Real Estate to initiate a hearing concerning violations of community governing documents. In this case, it was a “single-issue petition.”

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”

Respondent

The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Subrahmanyam & Sheila Sudhakar Living Trust.

Tribunal

The Arizona Office of Administrative Hearings, the state agency authorized by statute to hear and decide contested matters referred to it, such as this dispute.

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21F-H2120004-REL

1 source

This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings concerning a dispute between the Foothills Club West Homeowners Association and the Subrahmanyam & Sudhakar Living Trust. The Petitioner, the Foothills Club West Homeowners Association, filed a petition alleging that the Respondents constructed an unauthorized second-story addition to their property in violation of the association’s governing documents, specifically the CC&Rs Article 9, Sections 9.3, 9.4, and 9.5. The Administrative Law Judge determined that the Respondents violated these community documents by beginning construction prior to obtaining approval from the Foothills Architectural Committee and continuing the work despite receiving a denial. The judge ultimately concluded that Foothills was the prevailing party and dismissed the Respondents’ appeal, effectively upholding the violation finding.

1 source

What are the specific governing document violations alleged and proven against the homeowners?
How did the legal and administrative process address the unauthorized construction dispute?
What was the final resolution ordered regarding the unapproved second-story home addition?

Based on 1 source

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00:00

Case Participants

Petitioner Side

  • John Halk (HOA attorney)
    BROWN/OLCOTT, PLLC
    Represented Petitioner Foothills Club West Homeowners Association
  • Nathan Tennyson (HOA attorney)
    BROWN/OLCOTT, PLLC
    Counsel for Petitioner

Respondent Side

  • Mary T. Hone (Respondent attorney)
    Mary T. Hone, PLLC
    Counsel for Respondent Trustees Subrahmanyam & Sheila Sudhakar
  • Subrahmanyam Sudhakar (respondent)
    Subrahmanyam & Sheila Sudhakar Living Trust
    Trustee of the Respondent Living Trust
  • Sheila Sudhakar (respondent)
    Subrahmanyam & Sheila Sudhakar Living Trust
    Trustee of the Respondent Living Trust

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • AHansen (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • djones (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • DGardner (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • ncano (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order

Donald S Fern & Judith A. Hedges vs.

Posted on by

Case Summary

Case ID 21F-H2120005-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-11-20
Administrative Law Judge Thomas Shedden
Outcome Petitioners were the prevailing party because the Respondent acknowledged violating the CC&Rs by approving the pergola. Respondent was ordered to refund the $500.00 filing fee, but the request for a civil penalty was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Donald S Fern & Judith A. Hedges Counsel Lance Leslie
Respondent San Ignacio Heights, Inc. Counsel Michael S. Shupe

Alleged Violations

CC&R Article VI(D)

Outcome Summary

Petitioners were the prevailing party because the Respondent acknowledged violating the CC&Rs by approving the pergola. Respondent was ordered to refund the $500.00 filing fee, but the request for a civil penalty was denied.

Key Issues & Findings

View Obstruction by Pergola Approval

Petitioners alleged that Respondent, by granting approval in February 2018 for the construction of a pergola on lot 47, violated the CC&Rs requirement that an unobstructed view of the Santa Rita Mountains be maintained for owners of View Lots (Lot 46) and sought a civil penalty.

Orders: Respondent acknowledged the violation, rescinded the pergola approval prior to the Notice of Hearing, and was ordered to pay Petitioners the $500.00 filing fee. A civil penalty was sought but denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: CC&R Violation, View Obstruction, Architectural Review Committee, Filing Fee Refund, Civil Penalty Denial
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)

Video Overview

Audio Overview

Decision Documents

21F-H2120005-REL Decision – 838563.pdf

Uploaded 2026-04-24T11:29:42 (90.6 KB)

21F-H2120005-REL Decision – 838563.pdf

Uploaded 2026-01-23T17:34:50 (90.6 KB)

Administrative Hearing Briefing: Fern & Hedges v. San Ignacio Heights, Inc.

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) Decision in the case of Donald S. Fern & Judith A. Hedges v. San Ignacio Heights, Inc. (No. 21F-H2120005-REL). The central conflict involved an allegation by Petitioners that the Respondent, their homeowners’ association, violated its own Covenants, Conditions, and Restrictions (CC&Rs) by approving a pergola on an adjacent property that obstructed their mountain view.

The Respondent initially defended its approval but, after the Petitioners filed a formal complaint, reversed its position, admitted the approval was an error, and rescinded it. Despite this corrective action, the hearing proceeded. The ALJ’s final decision declared the Petitioners the “prevailing party,” as their legal action prompted the resolution. Consequently, the Respondent was ordered to reimburse the Petitioners’ $500 filing fee. However, the ALJ denied the Petitioners’ request for an additional civil penalty, stating they had not met the burden of proof for such an assessment. The decision effectively resolved the core dispute in the Petitioners’ favor while limiting the financial penalty on the Respondent.

——————————————————————————–

Case Overview

This matter was brought before the Arizona Office of Administrative Hearings concerning a dispute over view obstruction within a planned community.

Case Detail

Information

Case Name

Donald S. Fern & Judith A. Hedges, Petitioner, vs. San Ignacio Heights, Inc., Respondent.

Case Number

21F-H2120005-REL

Presiding Judge

Administrative Law Judge Thomas Shedden

Hearing Date

November 3, 2020

Decision Date

November 20, 2020

Core Allegation

Respondent violated its own CC&Rs, specifically Article VI (D) “View Obstructions,” which mandates that “An unobstructed view of the Santa Rita Mountains shall be maintained for Owners of View Lots.”

Petitioners’ Property

Lot 46, located at 1546 West Acala Street in Green Valley, a designated “view lot.”

Disputed Structure

A pergola constructed on the neighboring Lot 47.

The hearing was conducted without testimony, with the decision based on the administrative record and closing arguments from both parties.

Chronology of Key Events

The dispute unfolded over a period of more than two years, marked by the Respondent’s significant change in position after formal legal action was initiated.

• February 2018: The Respondent’s Architectural Review Committee (ARC) grants approval to the owners of Lot 47 to construct a pergola.

• On or Before July 30, 2018: Petitioners purchase Lot 46. They contend the pergola was built after the previous owners of their lot had moved but before their purchase was finalized.

• December 2019: Petitioners attempt to resolve the issue directly with the owners of Lot 47 but are unsuccessful.

• January 15, 2020: In a letter, the Respondent’s Board informs the Petitioners that it is standing by its February 2018 decision to approve the pergola.

• July 24, 2020: Petitioners file a formal petition with the Arizona Department of Real Estate.

• August 20, 2020: The Respondent’s Board holds a special executive session and determines that the approval of the pergola was “made in error.” The Board rescinds the approval.

• August 25, 2020: The Respondent files its answer to the petition, stating the approval has been rescinded and requesting the Department dismiss the matter.

• October 5, 2020: The Department does not dismiss the matter and issues a Notice of Hearing.

• November 3, 2020: At the hearing, the Respondent’s counsel informs the tribunal that a contractor is scheduled to remove the pergola on the following day.

Central Arguments and Positions

Petitioners (Donald S. Fern & Judith A. Hedges)

• Violation: The pergola on Lot 47 constitutes a view obstruction in direct violation of CC&R Article VI(D).

• Relief Sought: The Petitioners initially sought the removal of the structure. After the Respondent rescinded its approval, the Petitioners argued that the Respondent should be assessed a civil penalty for the violation.

Respondent (San Ignacio Heights, Inc.)

• Initial Defense (Pre-Litigation): The Respondent offered two primary reasons for upholding its initial approval:

1. The previous owners of the Petitioners’ lot (Lot 46) were given notice of the pergola request and did not object at the time of its approval in February 2018.

2. The configuration of the nine lots on West Acala Street makes a “truly unobstructed view” impossible, and for the Petitioners, achieving such a view would require removing eight other houses.

• Post-Petition Position: After the formal petition was filed, the Respondent’s position shifted entirely.

1. Admission of Error: The Respondent formally acknowledged that the approval of the pergola was a mistake and rescinded it.

2. Mootness: The Respondent argued that because it had provided the relief the Petitioners requested (rescission of approval), the matter was resolved and should be dismissed.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision addressed the acknowledged violation, the status of the parties, and the appropriateness of financial penalties.

Findings on the Violation

• The Respondent explicitly acknowledged its violation of CC&R Article VI(D) by granting approval for the pergola.

• Because the Respondent had already rescinded its approval and the structure was scheduled for removal, the ALJ determined that an order compelling the Respondent to abide by the CC&Rs was unnecessary.

Prevailing Party Status

• Despite the Respondent’s admission of error and corrective actions occurring before the formal hearing, the ALJ designated the Petitioners as the prevailing party.

• The rationale is that the Petitioners’ legal action was the catalyst for the Respondent’s decision to rescind its approval and resolve the violation.

Financial Orders and Penalties

• Filing Fee: Pursuant to ARIZ. REV. STAT. § 32-2199.02(A), the ALJ is required to order the respondent to pay the petitioner’s filing fee if the petitioner prevails. Consequently, the Respondent was ordered to pay the Petitioners’ $500.00 filing fee.

• Civil Penalty: The Petitioners argued for the assessment of a civil penalty against the Respondent. The ALJ denied this request, stating in the Conclusions of Law that “Petitioners have not proven that the Respondent should be assessed a civil penalty.” The decision does not provide further detail on the reasoning for this conclusion.

Legal Framework

• Jurisdiction: The Arizona Department of Real Estate has authority over the matter under ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11, as the case involves alleged violations of community documents.

• Standard of Proof: The Petitioners bore the burden of proof, which is a “preponderance of the evidence” as defined in ARIZ. ADMIN. CODE § R2-19-119.

Final Order

The decision, issued on November 20, 2020, concluded with the following binding orders:

1. IT IS ORDERED that Petitioners Donald S. Fern and Judith A. Hedges are the prevailing party in this matter.

2. IT IS FURTHER ORDERED that Respondent San Ignacio Heights Inc. must pay to Petitioners their filing fee of $500.00 within thirty days of receipt of the Order.

The order is final unless a party files for a rehearing with the Commissioner of the Department of Real Estate within 30 days of service.

Study Guide: Fern & Hedges v. San Ignacio Heights, Inc. (Case No. 21F-H2120005-REL)

This study guide provides a detailed review of the Administrative Law Judge Decision in the matter between Donald S. Fern & Judith A. Hedges (Petitioners) and San Ignacio Heights, Inc. (Respondent). It includes a quiz to test comprehension, essay questions for deeper analysis, and a comprehensive glossary of key terms.

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Short Answer Quiz

Answer the following questions in 2-3 sentences based on the provided source document.

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

2. What specific rule from the community’s governing documents was at the center of the dispute?

3. What physical structure caused the dispute, and where was it located relative to the Petitioners’ property?

4. What two arguments did the Respondent initially use to defend its decision to approve the structure?

5. At what point did the Respondent’s Board change its position, and what action did it take?

6. What is the legal standard of proof required in this case, and which party had the burden of meeting it?

7. Despite the Respondent admitting its error before the hearing, why were the Petitioners declared the “prevailing party”?

8. What specific financial penalty was ordered against the Respondent in the final decision?

9. Why did the Administrative Law Judge decide not to levy a civil penalty against the Respondent?

10. What did the Respondent’s counsel state at the hearing regarding the future of the structure in question?

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Answer Key

1. The primary parties were the Petitioners, homeowners Donald S. Fern and Judith A. Hedges, and the Respondent, their homeowners’ association, San Ignacio Heights, Inc. The Petitioners filed a complaint against the homeowners’ association for allegedly violating community rules.

2. The dispute centered on Article VI (D) of the “Second Amended and Restated Declaration of CC&Rs,” titled “View Obstructions.” This rule states that “An unobstructed view of the Santa Rita Mountains shall be maintained for Owners of View Lots.”

3. The dispute was caused by a pergola that the Respondent’s Architectural Review Committee (ARC) approved for construction on lot 47. This lot was adjacent to the Petitioners’ property, lot 46, which is designated as a “view lot” under the CC&Rs.

4. The Respondent initially argued that the approval was valid because (1) the previous owners of lot 46 were notified but did not object, and (2) the configuration of the lots meant a truly unobstructed view was impossible and would require removing eight other houses.

5. The Board changed its position on August 20, 2020, after the Petitioners had already filed their complaint. In a special executive session, the Board determined its February 2018 approval of the pergola was an error and officially rescinded that approval.

6. The standard of proof is a “preponderance of the evidence,” defined as evidence with the most convincing force. The Petitioners bore the burden of proof to show that the alleged violation occurred.

7. The Petitioners were declared the “prevailing party” because their legal action was the cause of the Respondent’s decision to rescind the erroneous approval. Under Arizona statute, a tribunal is required to order the respondent to pay the filing fee to the prevailing party.

8. The Judge ordered the Respondent, San Ignacio Heights Inc., to pay the Petitioners their filing fee of $500.00. The payment was to be made within thirty days of receipt of the order.

9. The Judge did not levy a civil penalty because the decision explicitly states, “Petitioners have not proven that the Respondent should be assessed a civil penalty.”

10. At the November 3, 2020 hearing, the Respondent’s counsel informed the tribunal that the owners of lot 47 had a contractor scheduled to remove the pergola the very next day.

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Essay Questions for Further Study

The following questions are designed for a more in-depth analysis of the case. Answers are not provided.

1. Analyze the timeline of events from the initial approval of the pergola in February 2018 to the final order in November 2020. How did the Respondent’s actions and communications contribute to the escalation of the dispute, and at what points could it have potentially been resolved before reaching a formal hearing?

2. Discuss the legal concept of the “prevailing party” as it applies to this case. Explain why the Petitioners were granted this status and what financial remedy it entitled them to, even though the Respondent had already conceded the central issue before the hearing.

3. Examine the two initial arguments made by the Respondent to justify its approval of the pergola. Based on the case outcome, why were these arguments ultimately insufficient to defend its position, leading the Board to rescind its approval?

4. Based on the “Conclusions of Law” section, explain the role and authority of the Administrative Law Judge in this type of dispute. What specific powers did the judge have according to Arizona statutes, and how were they applied or not applied in the final order?

5. The decision notes that no testimony was taken and the ruling was based on the administrative record. Discuss the potential advantages and disadvantages of this approach for both the Petitioners and the Respondent in this specific case.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Thomas Shedden) who presides over hearings at the Office of Administrative Hearings and renders a binding legal decision and order.

ARIZ. ADMIN. CODE § R2-19-119

The section of Arizona’s administrative rules cited in the decision that establishes the “preponderance of the evidence” as the standard of proof for the matter.

ARIZ. REV. STAT. § 32-2199.02(A)

The Arizona state law that grants the ALJ the authority to order parties to abide by community documents, levy civil penalties, and order a losing respondent to pay the prevailing petitioner’s filing fee.

Burden of Proof

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

An acronym for Covenants, Conditions, and Restrictions. In this case, it refers to the “Second Amended and Restated Declaration of CC&Rs,” the official governing documents for the San Ignacio Heights community.

Civil Penalty

A monetary fine that an ALJ may levy for each violation of a statute or community document. A civil penalty was considered but not assessed in this case.

Department of Real Estate

The Arizona state agency with legal authority over disputes concerning alleged violations of a community’s CC&Rs.

Filing Fee

The fee ($500.00 in this case) required by Arizona statute to file a petition with the Department of Real Estate. The Judge ordered the Respondent to repay this fee to the Petitioners.

Petitioner

The party that initiates a legal proceeding by filing a petition. In this case, homeowners Donald S. Fern and Judith A. Hedges.

Preponderance of the Evidence

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

Prevailing Party

The party that wins a legal case. The Petitioners were declared the prevailing party, which legally entitled them to have their filing fee reimbursed by the Respondent.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the homeowners’ association, San Ignacio Heights, Inc.

View Lot

A specific property designation defined in the CC&Rs, such as the Petitioners’ lot 46, which is guaranteed an unobstructed view of the Santa Rita Mountains.

View Obstructions

The title of Article VI (D) of the CC&Rs, the specific rule that the Petitioners alleged the Respondent violated by approving the construction of the pergola.

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21F-H2120005-REL

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This administrative law judge decision details a dispute between Petitioners Donald S. Fern and Judith A. Hedges and Respondent San Ignacio Heights, Inc. regarding a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). The petitioners alleged that a pergola approved by the Respondent’s Architectural Review Committee was a view obstruction in violation of Article VI(D) of the CC&Rs. Although the Respondent acknowledged its error and rescinded the approval for the pergola before the hearing, the matter was not dismissed. The Administrative Law Judge ultimately found the Petitioners to be the prevailing party and ordered the Respondent to pay the petitioners’ $500 filing fee, though no additional civil penalty was assessed.

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What are the core legal and procedural issues decided in this administrative hearing?
How did the Respondent’s actions impact the Petitioners’ prevailing party status and remedy?
What is the significance of the CC&Rs and view obstruction clause in this dispute?

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Case Participants

Petitioner Side

  • Donald S Fern (petitioner)
  • Judith A. Hedges (petitioner)
  • Lance Leslie (petitioner attorney)
    Law Office of Susan A Siwek

Respondent Side

  • Michael S. Shupe (respondent attorney)
    Goldschmidt | Shupe, PLLC

Neutral Parties

  • Thomas Shedden (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Listed as recipient of transmission
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Listed as recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Listed as recipient of transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Listed as recipient of transmission
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Listed as recipient of transmission

Wendy Ellsworth v. Vincenz Homeowners’ Association

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Case Summary

Case ID 20F-H2020043-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-08
Administrative Law Judge Velva Moses-Thompson
Outcome The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wendy Ellsworth Counsel Brian Hatch
Respondent Vincenz Homeowners' Association Counsel Mark K. Sahl

Alleged Violations

VHA CC&R Article 10 § 10.11.1

Outcome Summary

The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.

Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.

Key Issues & Findings

Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver

Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • 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)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199(B)
  • 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)
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

20F-H2020043-REL Decision – 820839.pdf

Uploaded 2026-04-24T11:25:22 (95.4 KB)

20F-H2020043-REL Decision – 820839.pdf

Uploaded 2026-01-23T17:31:39 (95.4 KB)

Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)

Executive Summary

This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.

The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.

Case Background

• Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.

• Respondent: Vincenz Homeowners’ Association (VHA).

• Tribunal: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge Velva Moses-Thompson.

• Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.

• Hearing Date: An evidentiary hearing was held on August 19, 2020.

• Decision Date: The final decision was issued on September 8, 2020.

The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.

Central Dispute: CC&R Article 10, Section 10.11.1

The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.

Article 10 § 10.11.1 provides:

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.

This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.

Positions of the Parties

Petitioner’s Position (Wendy Ellsworth)

Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.

• Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.

• Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”

• Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.

Respondent’s Position (Vincenz Homeowners’ Association)

The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.

• Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.

• Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.

• Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.

Administrative Law Judge’s Findings and Conclusions

The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.

Legal Standards Applied

Standard

Description

Burden of Proof

The Petitioner bears the burden to prove a violation by a preponderance of the evidence.

Preponderance of the Evidence

Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”

Covenant Interpretation

In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.

Conclusion 1: Failure to Establish a Violation

The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:

• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.

Conclusion 2: Lack of Jurisdiction

The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.

• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.

Final Order and Implications

Based on the findings, the final order was unambiguous:

“IT IS ORDERED, the petition is dismissed.”

The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).

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Review 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 were their respective roles?

2. What specific rule, or covenant, was at the center of the dispute?

3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?

4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?

5. What change occurred in Ms. Ellsworth’s testimony during the hearing?

6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?

7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?

8. What two key reasons did the Administrative Law Judge give for dismissing the petition?

9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?

10. What action could the parties take after the order was issued, and within what timeframe?

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Answer Key

1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.

2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.

3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.

4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.

5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.

6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.

7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.

8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.

9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).

10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.

1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?

2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.

3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.

4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?

5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.

Affirmative Defense

A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.

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

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

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.

Declaratory Judgment

A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.

Jurisdiction

The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.

Office of Administrative Hearings (OAH)

The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.

Petitioner

The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.

Preponderance of the Evidence

The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”

Respondent

The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.

Restrictive Covenant

A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.

Waiver

The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.

Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons

The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).

Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.

Lesson 1: You Must Accuse the Right Party of the Right Violation

Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.

This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:

“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”

A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.

Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase

In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”

The court defined this standard as:

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

Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”

The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.

Lesson 3: You Have to Knock on the Right Legal Door

The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.

The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.

The Administrative Law Judge made this point unequivocally:

“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”

Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.

Conclusion: Thinking Like a Lawyer, Not Just a Homeowner

Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.

While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?

Case Participants

Petitioner Side

  • Wendy Ellsworth (petitioner)
    Testified at hearing
  • Brian Hatch (petitioner attorney)
    Brian A. Hatch PLLC

Respondent Side

  • Mark K. Sahl (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

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

Posted on by

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 ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.

Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.

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 maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.

Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. 33-1801 et seq.
  • A.R.S. §§ 32-2102
  • A.R.S. §§ 32-2199 et al.
  • A.R.S. § 32-2199.05
  • A.R.S. §§ 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • CC&R Article 7, Section 7.1
  • CC&R Article 7, Section 7.2
  • CC&R Article 9, Section 9.5
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. ADMIN. CODE R2-19-116

Analytics Highlights

Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Additional Citations:

  • A.R.S. 33-1801 et seq.
  • A.R.S. §§ 32-2102
  • A.R.S. §§ 32-2199 et al.
  • A.R.S. § 32-2199.05
  • A.R.S. §§ 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • CC&R Article 7, Section 7.1
  • CC&R Article 7, Section 7.2
  • CC&R Article 9, Section 9.5
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. ADMIN. CODE R2-19-116

Video Overview

Audio Overview

Decision Documents

20F-H2020051-REL Decision – 816310.pdf

Uploaded 2026-04-24T11:26:18 (199.6 KB)

20F-H2020051-REL Decision – 847175.pdf

Uploaded 2026-04-24T11:26:21 (246.5 KB)

Briefing Document: Morin v. Solera Chandler Homeowners’ Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Rehearing Decision in the case of Debra K. Morin versus the Solera Chandler Homeowners’ Association, Inc. (Solera), dated January 8, 2021. The central dispute involved a homeowner’s allegation that the association failed to maintain its common areas in good condition and repair.

The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case, finding conclusively in favor of the Solera HOA. The decision rested on a critical provision within the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which designates the Solera Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas. This clause grants the Board exclusive discretion, superseding an individual homeowner’s opinion on the timing or quality of maintenance.

Despite the petitioner presenting extensive photographic evidence documenting various maintenance issues, the ALJ concluded that this evidence failed to prove a violation of the governing documents. The petitioner did not meet her burden of proving by a preponderance of the evidence that the Board had acted outside its granted authority. The ruling affirms that the authority of the Board is explicitly elevated above that of an individual homeowner in matters of common area maintenance under the controlling legal documents.

——————————————————————————–

I. Case Background and Procedural History

The case originates from a petition filed by Debra K. Morin, a four-year resident of the Solera community, against the Solera Chandler Homeowners’ Association. The matter was adjudicated by the Arizona Office of Administrative Hearings (Tribunal).

A. Initial Petition

On March 12, 2020, Ms. Morin filed a two-issue petition with the Arizona Department of Real Estate, alleging that Solera, its Board of Directors, and its management company (Premier) had violated numerous governing documents, including the Articles of Incorporation, By-Laws, CC&Rs, and Rules & Regulations (R&Rs).

• Issue #1: Alleged that Solera did not permit “direct communication from homeowners” and sought to have this “policy” rescinded.

• Issue #2: Alleged that Solera was not providing oversight to the General Manager in maintaining the “Areas of Association Responsibility” (AREAS) in “good condition and repair at all times.” Specific complaints included uncontrolled weeds and poor maintenance of the Community Center and other common areas.

B. Procedural Developments

• Motion to Dismiss: Solera filed a Motion to Dismiss, arguing the issues were outside the Department of Real Estate’s jurisdiction.

• Withdrawal of Issue #1: At a May 20, 2020 hearing, the Tribunal noted its jurisdiction did not extend to non-governing documents like the Board’s Code of Ethics. Consequently, Ms. Morin withdrew Issue #1. The Tribunal denied the Motion to Dismiss for the remaining “bare-bones” maintenance allegation in Issue #2.

• Initial Decision (August 19, 2020): Following the original hearing, the ALJ issued a decision concluding that Solera was the “sole judge” regarding maintenance of the AREAS and had not violated its governing documents. The petition was dismissed.

• Rehearing Request (September 24, 2020): Ms. Morin filed a request for rehearing, citing irregularities in the proceedings, misconduct by the prevailing party, and arguing the decision was arbitrary and capricious, particularly in its interpretation of CC&R Article 7, Section 7.1.

• Rehearing Granted and Conducted: The Commissioner of the Arizona Department of Real Estate granted the rehearing, which was conducted telephonically on December 16, 2020.

——————————————————————————–

II. Core Arguments of the Parties

The fundamental conflict centered on the interpretation of the maintenance standards outlined in the community’s CC&Rs.

A. Petitioner’s Position (Debra K. Morin)

Ms. Morin’s case was built on the principle of equal application of maintenance standards.

• Central Argument: The same maintenance standard requiring homeowners to keep their lots “in good condition and repair at all times” (per CC&R Article 7, Section 7.2) must be applied equally to Solera’s responsibility for the common AREAS (per CC&R Article 7, Section 7.1).

• Core Belief: Because homeowners are given no discretion regarding delays in maintenance, Solera should not be able to take months to address reported issues.

• Evidence Presented: The petitioner submitted extensive documentation, including over 80 photographs (referenced in the rehearing as “310 pictures”), emails, and other documents. This evidence was intended to show persistent maintenance failures, including:

◦ Uncontrolled weeds in granite rock locations

◦ Poor exterior condition of the Community Center

◦ Deficiencies in street asphalt, storm drains, sidewalks, and curbing

◦ Water pooling and intrusion issues

◦ Exposed landscaping lights and irrigation lines

◦ Unremoved tree stumps

B. Respondent’s Position (Solera HOA)

Solera’s defense relied entirely on the specific authority granted to its Board by the governing documents.

• Central Argument: The association met its responsibilities, and the petitioner’s subjective opinions about what, when, or how maintenance should be done are irrelevant.

• Dispositive Legal Provision: Solera consistently 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: This provision grants the Board exclusive discretion and authority to determine the nature and timing of maintenance, insulating its decisions from a single homeowner’s critique.

——————————————————————————–

III. Analysis and Key Findings of the Administrative Law Judge

The Rehearing Decision provided a thorough review of the evidence and legal arguments, ultimately reinforcing the original ruling in favor of Solera.

A. The “Sole Judge” Clause and Board Authority

The ALJ’s conclusion hinged on the unambiguous language of the CC&Rs, which establishes a clear hierarchy of authority.

• CC&R Article 7, Section 7.1: This article was identified as the dispositive text. It states, in pertinent part: “the Board ‘shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS], but all [AREAS], and the Improvements located thereon, shall be maintained in good condition and repair at all times.'” The ALJ found that the “sole judge” provision grants the Board exclusive authority to determine how the “good condition and repair” standard is met.

• CC&R Article 9, Section 9.5: This section further strengthens the Board’s position by granting Solera the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with its interpretation being “final, conclusive and binding.”

• Conclusion on Authority: The ALJ concluded that these provisions clearly lift the Board’s authority above that of an individual homeowner in determining appropriate maintenance.

B. Rejection of the “Equal Standard” Argument

The petitioner’s primary argument for an equal, non-discretionary standard for both the HOA and homeowners was explicitly rejected.

• The ALJ found that the petitioner “failed to provide legal support for her argument that the same maintenance standard is required to be applied to the Board as it is applied to a homeowner.”

• The governing documents themselves create different levels of authority and obligation for the Board versus individual owners.

C. Evaluation of Evidence and Burden of Proof

• Burden of Proof: The decision reiterates that the petitioner bears the burden of proving a violation by a “preponderance of the evidence.”

• Photographic Evidence: The ALJ acknowledged reviewing all photographs from both hearings. The decision states that this evidence successfully documented “the existence, at those dates embedded in the photographs, of items that deal with maintenance and repairs in various locations of Solera AREAS.”

• Failure to Prove a Violation: Crucially, while the photos proved maintenance issues existed, they did not prove a violation of the CC&Rs. Because the Board is the “sole judge,” the existence of a weed or a cracked curb does not automatically constitute a breach of its duties, as the Board retains discretion over the timeline and method of repair.

D. Jurisdictional Limitations

The decision affirmed the Tribunal’s limited jurisdiction, noting that many of the petitioner’s underlying frustrations were not legally actionable in this venue.

• Not Actionable: A homeowner’s dissatisfaction with the Board, its management company, or the General Manager is “not within the purview of this process or the jurisdiction of the Tribunal.”

• Irrelevant Documents: Arguments based on City of Chandler standards, the landscaping contract with Integrated Landscape Management (ILM), or Premier’s General Manager job description were deemed irrelevant, as the Tribunal’s review is limited to the association’s governing documents and applicable state statutes.

——————————————————————————–

IV. Final Order and Conclusion

Based on an exhaustive review of the record from both the original hearing and the rehearing, the Administrative Law Judge reached a definitive conclusion.

• Final Finding: The petitioner failed to sustain her burden of proof to establish a violation by Solera of the governing documents. The ALJ concluded that Solera is in compliance with its governing documents, including CC&R Article 7, Section 7.1.

• Order:

◦ IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.

◦ The order was issued on January 8, 2021.

◦ As a decision issued after a rehearing, the order is binding on the parties. Any further appeal must be filed with the Superior Court within 35 days from the date of service.

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

This guide provides a comprehensive review of the administrative rehearing case No. 20F-H2020051-REL-RHG, between Petitioner Debra K. Morin and Respondent Solera Chandler Homeowners’ Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms derived from the case documents.

Short-Answer Quiz

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

1. Who were the primary parties in this case, and who represented them at the telephonic hearing on December 16, 2020?

2. What were the two initial issues Petitioner Debra K. Morin raised in her petition filed on March 12, 2020?

3. Why did the Petitioner withdraw Issue #1 from her petition during the May 20, 2020 hearing?

4. What was the Petitioner’s central argument regarding the maintenance standard that Solera should be held to?

5. What type of evidence did the Petitioner primarily present to document the alleged maintenance failures in the Areas of Association Responsibility (AREAS)?

6. What specific clause in the CC&Rs did Solera (the Respondent) rely on to defend its actions and decisions regarding maintenance?

7. What were the primary reasons the Commissioner of the Arizona Department of Real Estate granted the Petitioner’s request for a rehearing?

8. How did the Administrative Law Judge rule on the relevance of non-governing documents, such as the City of Chandler ordinances and the Premier Management Company job description?

9. What is the legal standard of proof that a petitioner must meet in these proceedings, and how is it defined in the decision?

10. What was the final conclusion and order of the Administrative Law Judge in the Rehearing Decision issued on January 8, 2021?

——————————————————————————–

Answer Key

1. The primary parties were the Petitioner, Debra K. Morin, who represented herself, and the Respondent, Solera Chandler Homeowners’ Association (Solera). Solera was represented by Lydia Linsmeier, Esq.

2. Issue #1 alleged that Solera did not allow direct communication from homeowners. Issue #2 alleged that Solera, its Board, and its management company were not providing proper oversight to maintain the Areas of Association Responsibility (AREAS) in good condition and repair.

3. The Petitioner withdrew Issue #1 after the Tribunal ruled that the statutory parameters of its jurisdiction did not include the interpretation or application of a non-governing document like the Board’s Code of Ethics. The allegations regarding ethics and mismanagement based on this code were therefore removed from consideration.

4. The Petitioner’s central argument was that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that just as homeowners are required by CC&R Article 7, Section 7.2 to maintain their lots in good condition at all times, Solera must be held to the same standard for common AREAS under CC&R Article 7, Section 7.1.

5. The Petitioner presented an “enormity” of photographic evidence to document the maintenance issues. The decision notes she presented over eighty photographs at the original hearing and an additional “310 pictures” were mentioned in the rehearing, showing weeds, debris, exposed wiring, and other issues at various dates.

6. Solera relied on CC&R Article 7, Section 7.1, which states that the Solera Board of Directors “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Solera argued that the Petitioner’s subjective opinions on maintenance were therefore not relevant.

7. The rehearing was granted for reasons outlined in the Petitioner’s request, which claimed: irregularities in the proceedings, misconduct by the prevailing party, and that the original decision was arbitrary, capricious, an abuse of discretion, not supported by evidence, or contrary to law.

8. The Judge ruled that such documents were not relevant or justiciable. City standards were not under review, and the management company’s job description and landscape contract were not Solera governing documents, so they could not be used to prove a violation of the association’s governing documents.

9. The petitioner bears the burden of proving their case by a “preponderance of the evidence.” This is defined as proof that convinces the trier of fact that the contention is more probably true than not, and it represents the greater weight of evidence.

10. The Administrative Law Judge concluded that the Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents. The Judge found Solera to be the prevailing party, in compliance with CC&R Article 7, Section 7.1, and ordered that the Petitioner’s appeal be dismissed.

——————————————————————————–

Suggested Essay Questions

The following questions are designed to encourage deeper analysis of the case. No answers are provided.

1. Analyze the balance of power between a homeowner and an HOA as depicted in this case. Discuss how specific clauses in the CC&Rs, particularly Article 7 (Section 7.1) and Article 9 (Sections 9.5 and 9.9), grant authority to the Board and limit the recourse available to an individual owner within the association’s own framework.

2. Examine the role and limitations of evidence in this administrative hearing. Why was the Petitioner’s photographic evidence, despite its volume, ultimately insufficient to meet the burden of proof? Discuss the distinction made by the Tribunal between evidence of a maintenance issue and evidence of a violation of the governing documents.

3. The Petitioner argued for an equal application of the “maintenance standard” to both homeowners and the HOA, stating “[t]here must be equal consideration to have a valid contract.” Evaluate this argument in the context of the specific language found in the Solera CC&Rs. Is the concept of “equal consideration” legally applicable in the way the Petitioner suggests?

4. Discuss the jurisdiction of the Arizona Office of Administrative Hearings (the Tribunal) in HOA disputes as described in the decision. Explain why the Tribunal could rule on the maintenance of common areas but had to dismiss claims related to the Solera Code of Ethics, City of Chandler ordinances, and Premier Management’s internal documents.

5. Based on the findings of fact, trace the procedural journey of this case from the initial petition to the final rehearing order. Identify the key turning points, such as the Motion to Dismiss and the Order Granting Rehearing, and explain their impact on the scope and outcome of the dispute.

——————————————————————————–

Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

The judicial authority, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings, makes findings of fact, issues decisions, and conducts rehearings.

Areas of Association Responsibility (AREAS)

The common areas within the Solera community that the homeowners’ association is responsible for managing and maintaining. This includes landscaping, the Community Center exterior, street conditions, storm drains, sidewalks, walls, and curbing.

Articles of Incorporation

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit A.

By-Laws

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit B.

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

A primary governing document for the Solera at Springfield Lakes community. It outlines the rights and responsibilities of both the homeowners and the association.

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 a party (in this case, Solera) asking for a petition or case to be dismissed on the grounds that the issues are outside the Department’s jurisdiction or that the requested relief cannot be granted as a matter of law.

Petitioner

The party who initiates a legal action or petition. In this case, Debra K. Morin, a homeowner in the Solera community.

Preponderance of the Evidence

The standard of proof required for a petitioner to win in these proceedings. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Premier Management Company (Premier)

The management company hired by the Solera Board of Directors to handle duties including the oversight of a General Manager.

Project Documents

Defined in CC&R Article 1, Section 1.37 as the CC&Rs, any supplements to the CC&Rs, the By-Laws, the Rules and Regulations (R&Rs), and the Design Guidelines.

Respondent

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

R&Rs (Rules and Regulations)

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit D.

Tribunal

A term used to refer to the Arizona Office of Administrative Hearings (OAH), the body responsible for conducting administrative hearings for disputes referred by the Arizona Department of Real Estate.

🧑‍⚖️

20F-H2020051-REL-RHG

1 source

This document presents an Administrative Law Judge Rehearing Decision regarding a dispute between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The Petitioner initially filed a two-issue complaint with the Arizona Department of Real Estate alleging that the HOA had violated various governing documents, primarily concerning lack of direct homeowner communication and a failure to maintain Association Responsibility Areas (AREAS) in good condition. After the first issue was withdrawn due to jurisdictional limitations, the initial decision dismissed the petition, finding the HOA was the sole judge of appropriate maintenance under the Covenants, Conditions, and Restrictions (CC&Rs). This rehearing decision, granted due to claims of procedural irregularities and arbitrary findings, ultimately reaffirms the original dismissal, concluding that the Petitioner failed to meet the burden of proof to establish a violation of the governing documents.

Case Participants

Petitioner Side

  • Debra K. Morin (petitioner)
    Represented herself

Respondent Side

  • Lydia A. Perce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Represented Solera Chandler Homeowners' Association
  • Denise Frazier (general manager/witness)
    Premier Management Company / Solera Chandler Homeowners' Association
    Solera's onsite general manager who testified

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge for both original and rehearing decisions
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner of the Arizona Department of Real Estate
  • Felicia Del Sol (administrative)
    Transmitted the original August 19, 2020 Decision

Steven D. Stienstra v. Cedar Ridge Homeowners Association

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

Case Summary

Case ID 19F-H1918033-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-04-01
Administrative Law Judge Kay Abramsohn
Outcome The Petitioner was the prevailing party. The ALJ affirmed that the HOA violated its CC&Rs regarding enforcement procedures, particularly by failing to adhere to Section 18 requirements and incorrectly applying Section 1.1 against the owner, rendering the legal fee demands improper. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Steven D. Stienstra Counsel —
Respondent Cedar Ridge Homeowners Association Counsel Michelle Molinario, Diana J. Elston, Keith D. Collett

Alleged Violations

A.R.S. § 33-1806.01; CC&Rs Section 1.1; CC&Rs Section 18

Outcome Summary

The Petitioner was the prevailing party. The ALJ affirmed that the HOA violated its CC&Rs regarding enforcement procedures, particularly by failing to adhere to Section 18 requirements and incorrectly applying Section 1.1 against the owner, rendering the legal fee demands improper. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,.

Why this result: The HOA failed to follow the explicit due process requirements (written notice and 30 days to appear) mandated by CC&Rs Section 18 for enforcement against the owner, and incorrectly relied on Section 1.1 to justify its demand for unauthorized flat fees,,,,.

Key Issues & Findings

HOA enforcement action regarding CC&R violations and asserted legal fees

Petitioner challenged the HOA's enforcement actions regarding short-term rentals and leasing less than the entire lot. The ALJ found the HOA proceeded inappropriately under Section 1.1 (intended for action against occupants on the owner's behalf) and failed to follow the mandatory enforcement requirements of Section 18, thus violating its own CC&Rs. Consequently, the asserted legal fees were not assigned to Petitioner,,,.

Orders: The Petition was granted. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,. The asserted legal fees of $1,500 and $2,600 sought by the HOA were determined not to be assignable to the Petitioner,.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1806.01
  • CC&Rs Section 1.1
  • CC&Rs Section 18

Analytics Highlights

Topics: HOA Enforcement, CC&R Violation, Legal Fees, Due Process, Rental Restriction
Additional Citations:

  • A.R.S. § 33-1806.01
  • CC&Rs Section 1.1
  • CC&Rs Section 18
  • A.R.S. § 10-3830

Video Overview

Audio Overview

Decision Documents

19F-H1918033-REL-RHG Decision – 779896.pdf

Uploaded 2026-01-23T17:27:52 (210.6 KB)

19F-H1918033-REL-RHG Decision – ../19F-H1918033-REL/753362.pdf

Uploaded 2026-01-23T17:27:56 (169.0 KB)

Briefing Document: Stienstra v. Cedar Ridge Homeowners Association

Executive Summary

This document synthesizes two Administrative Law Judge (ALJ) decisions concerning a dispute between homeowner Steven D. Stienstra (Petitioner) and the Cedar Ridge Homeowners Association (HOA/Respondent). The core conflict centered on the HOA’s enforcement actions and subsequent demand for attorney’s fees related to alleged violations of Covenants, Conditions, and Restrictions (CC&Rs) prohibiting short-term rentals.

The ALJ ultimately ruled in favor of the Petitioner in both the initial hearing and a subsequent rehearing. The decisions established that the HOA violated its own CC&Rs by employing an incorrect and unreasonable enforcement procedure. Specifically, the HOA misapplied Section 1.1 of the CC&Rs, which governs an owner’s failure to take action against a non-compliant tenant, instead of following the prescribed due process for owner violations outlined in Section 18. Consequently, the ALJ concluded that the attorney’s fees demanded by the HOA were not assignable to the Petitioner. The final order required the HOA to reimburse the Petitioner’s $500 filing fee, affirming that the HOA’s actions, including a series of escalating cease and desist letters, were procedurally flawed and unreasonable given the circumstances.

Case Overview and Core Dispute

The case, No. 19F-H1918033-REL, involved a petition filed by Steven D. Stienstra in November 2018 with the Arizona Department of Real Estate. Mr. Stienstra alleged that the Cedar Ridge Homeowners Association, a voluntary board in Sedona, Arizona, violated A.R.S. § 33-1806.01 and Sections 1.1 and 18 of its own CC&Rs.

The dispute originated from short-term rental activity at Mr. Stienstra’s property, which he purchased in August 2017. While the Petitioner admitted to the initial violations, he contended that he ceased the activity immediately after a phone call from the HOA President in April 2018. Despite his assurances, the HOA, acting on legal advice, pursued enforcement through a series of cease and desist letters, culminating in a demand for $2,600 in attorney’s fees.

The central issue before the Office of Administrative Hearings was whether the HOA’s enforcement process was proper under its governing documents and, consequently, whether Mr. Stienstra was liable for the legal fees incurred by the HOA.

Chronology of the Dispute

Details

Aug 2017

Property Purchase

Steven D. Stienstra purchases the residence. He acknowledges the CC&R restrictions on short-term rentals.

Jan-Apr 2018

Rental Activity

Stienstra’s son uses VRBO to manage stays for friends and family, which expands to produce some revenue from rentals of less than 30 days.

Apr 3, 2018

Motor Home Incident

HOA Secretary Vic Burolla calls Stienstra about a motor home parked in the driveway, a separate CC&R violation.

April 2018

Ferguson’s Phone Call

HOA President Bill Ferguson calls Stienstra about the short-term rentals. Recollections vary, but Stienstra claims he agreed to cease the activity. Ferguson’s impression was that Stienstra was not going to stop.

Apr 26, 2018

HOA Retains Counsel

The first noted contact between the HOA and its law firm occurs after the phone call with Stienstra.

May 11, 2018

First Cease & Desist Letter

The HOA’s attorney sends a letter demanding Stienstra cease all rentals of less than 30 days and rentals of less than the entire property within ten days, threatening a lawsuit under Section 1.1 of the CC&Rs.

June 1, 2018

Second Cease & Desist Letter

The HOA rejects Stienstra’s explanation of compliance. The letter demands payment of $1,500.00 by July 2, 2018, described as a “flat amount to resolve the matter.”

June 17, 2018

Third Cease & Desist Letter

Citing a new Facebook Marketplace post by Stienstra’s son (offering to lease bedrooms separately), the HOA sends another letter. The demand for attorney’s fees increases to $2,600.00.

Sep 4, 2018

Informal Meeting

At Stienstra’s request, three HOA board members meet with him in an unofficial capacity to discuss the dispute. The meeting transcript reflects a tense relationship.

Nov 2018

Petition Filed

Stienstra files his petition with the Arizona Department of Real Estate.

Oct 7, 2019

Initial Hearing

The Office of Administrative Hearings conducts a hearing on the matter.

Nov 15, 2019

Initial Decision

ALJ Kay Abramsohn issues a decision finding the HOA violated its CC&Rs and grants Stienstra’s petition.

Dec 19, 2019

Rehearing Request

The HOA requests a rehearing, arguing the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion.”

Mar 12, 2020

Rehearing

A rehearing is conducted where the HOA introduces new arguments, including that its board acted in good faith on legal advice.

Apr 1, 2020

Rehearing Decision

The ALJ issues a final decision affirming the original order, finding Stienstra to be the prevailing party and ordering the HOA to reimburse his $500 filing fee.

Analysis of Arguments and Evidence

Petitioner’s Position (Steven D. Stienstra)

• Compliance: Stienstra argued that he and his son ceased all short-term rental activity immediately following the April 2018 phone call from HOA President Bill Ferguson.

• Improper Procedure: The core of his argument was that the HOA failed to follow the enforcement procedures mandated by Section 18 of the CC&Rs. This section requires the Board to provide written notice of a breach, a 30-day period for the owner to appear before the Board, and a reasonable time (up to 60 days) to remedy the breach before levying fines.

• Misapplication of CC&Rs: Stienstra contended the HOA incorrectly proceeded under Section 1.1, which he argued applies to an owner’s failure to take legal action against a non-compliant tenant, not direct violations by the owner themselves.

• Unjustified Fees: Because the HOA did not provide due process and followed an improper enforcement path, Stienstra argued he should be released from any liability for the attorney’s fees the HOA incurred.

Respondent’s Position (Cedar Ridge HOA)

• Reasonable Belief of Violation: The HOA argued it had reason to believe violations were ongoing. It cited the continued presence of a VRBO listing (which Stienstra’s son claimed was inactive for booking) and observations of “multiple cars parked there daily” as evidence.

• Reliance on Legal Counsel: The HOA maintained that its actions were reasonable because it sought and followed the advice of its attorney. At the rehearing, it cited A.R.S. § 10-3830, arguing it discharged its duties in good faith.

• Discretion in Enforcement: The Board believed it had the discretion to enforce the CC&Rs under either Section 1.1 or Section 18. Board Secretary Vic Burolla testified at the rehearing that Section 1.1 was chosen because it “seemed more expeditious, to be able to collect” legal fees.

• “Unclean Hands” Doctrine: At the rehearing, the HOA argued for the first time that because Stienstra had admittedly violated the CC&Rs initially, he had “unclean hands” and was not entitled to seek relief regarding the HOA’s subsequent actions.

Key Evidence Presented

• CC&Rs: The text of Section 1.1 (“Leasing”) and Section 18 (“Enforcement of Covenants”) were central to the case.

• Cease & Desist Letters: The series of three letters from the HOA’s attorney documented the escalating demands and the HOA’s legal strategy.

• Testimony of Board Members: Testimony from Bill Ferguson and Vic Burolla provided insight into the Board’s decision-making process, including their impression of the April 2018 phone call and their justification for hiring an attorney. Vic Burolla provided conflicting testimony, stating in the initial hearing he was “not aware of any specific instructions in the CC&Rs” for notifications, but stating in the rehearing that the Board had discussed the benefits of proceeding under either Section 1.1 or Section 18.

• VRBO and Facebook Listings: Printouts of the online rental listings were used as evidence by the HOA to demonstrate ongoing or attempted violations.

• Meeting Transcript: A transcript of the informal September 4, 2018 meeting revealed the “tense relationship” and communication breakdown between the parties. When asked who was in the house if not tenants, Stienstra replied, “It’s not anybody’s business who’s in our house, really.”

Administrative Law Judge’s Findings and Rulings

The ALJ’s conclusions were consistent across both the initial decision and the rehearing decision, ultimately finding that the Petitioner had proven his case by a preponderance of the evidence.

Interpretation of Governing CC&Rs

• Section 1.1 vs. Section 18: The ALJ decisively concluded that the two sections govern different circumstances.

◦ Section 1.1 applies when an occupant or lessee violates the CC&Rs. It requires the owner to take legal action against that occupant within 10 days of a written demand from the Board. If the owner fails, the Board may act “on behalf of such owner against owner’s occupant.” The ALJ found these were “not the circumstances in this case.”

◦ Section 1.8 is the proper procedure for violations committed directly by the owner. It provides a clear due process framework: written notice, an opportunity to be heard by the Board, and a period to cure the breach.

• Conclusion: The ALJ ruled that the “appropriate action that was required to be taken by Respondent was set forth in Section 18 of the CC&Rs.” By using Section 1.1, the HOA committed a procedural violation.

Assessment of HOA Enforcement Actions

• Verbal Warning: The ALJ characterized the April 2018 phone call from Mr. Ferguson as “appropriate in the nature of education” but clarified it “is not an ‘enforcement’ action under the CC&Rs.”

• Unreasonable Continuation: The Judge found the HOA’s continued actions after the May 11 letter to be unreasonable. The decision notes that the HOA’s characterization of Stienstra “intentionally” continuing to violate the CC&Rs “simply demonstrates that the Board members did not and were not going to believe Petitioner or his son no matter what information they provided.”

• Distrust: The decision highlights the Board’s fundamental distrust, quoting Mr. Burolla’s testimony that even if the HOA had called to clarify the situation, “there’s no reason to suspect we would have been told the truth.”

Ruling on Attorney’s Fees

• Not Assignable to Petitioner: Because the HOA violated its own CC&Rs by following an improper enforcement procedure, the ALJ ruled that the “asserted legal fees are not assigned to Petitioner.”

• Improper Demand: The ALJ specifically analyzed the demand in the June 1, 2018 letter for “$1,500.00… authorized by the Board as a flat amount to resolve the matter.” The ruling states this amount “could only be looked at as either a settlement offer or as some sort of fine, which is not authorized under Section 1.1 but only under Section 18.” It was not a legitimate accounting of actual fees incurred as permitted by the CC&Rs.

• No Expenses Incurred Under Section 1.1: The Judge found that since Stienstra took action to stop the leasing, no legal action by the HOA “on behalf of the owner against the occupant” was required. Therefore, no expenses were actually incurred pursuant to the parameters of Section 1.1.

Final Decisions and Order

• Initial Decision (Nov 15, 2019): The petition was granted, and the HOA was ordered to reimburse Mr. Stienstra the $500.00 filing fee.

• Rehearing Decision (Apr 1, 2020): The ALJ affirmed the original order. The HOA’s new arguments regarding “good faith” and “unclean hands” did not alter the core finding of procedural failure. The final order declared the Petitioner the prevailing party and re-stated the requirement for the HOA to reimburse the filing fee.

Study Guide: Stienstra v. Cedar Ridge Homeowners Association

This study guide provides a comprehensive review of the administrative hearing and rehearing decisions in the case between petitioner Steven D. Stienstra and respondent Cedar Ridge Homeowners Association. It includes a short-answer quiz with an answer key, a series of essay questions for deeper analysis, and a glossary of key terms found in the legal decisions.

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the information provided in the case documents.

1. Who were the primary parties in this case, and what was the central issue that prompted the administrative hearing?

2. What specific violations of the CC&Rs did the homeowner, Steven Stienstra, or his son commit that initiated the dispute?

3. Describe the initial action taken by HOA President Bill Ferguson in April 2018 and explain why the Administrative Law Judge did not consider it a formal enforcement action.

4. The HOA’s attorneys sent three Cease & Desist letters. What was the primary demand of the first letter, and what financial demands were added in the second and third letters?

5. What were the two key sections of the CC&Rs at the center of the dispute, and what did each section generally govern?

6. Why did the Administrative Law Judge (ALJ) conclude that the HOA’s decision to proceed under Section 1.1 of the CC&Rs was inappropriate for the violations committed by the owner?

7. According to the ALJ’s decision, what specific procedural steps should the HOA have followed under Section 18 of the CC&Rs to properly enforce the covenants against an owner?

8. On what grounds did the Cedar Ridge HOA request a rehearing after the initial decision was issued in favor of the petitioner?

9. During the rehearing, the HOA introduced an “unclean hands” argument. What did this argument claim, and how did the ALJ respond to it?

10. What was the final, binding outcome of this case after the rehearing, including the ruling on attorney’s fees and the petitioner’s filing fee?

——————————————————————————–

Quiz Answer Key

1. The primary parties were the Petitioner, homeowner Steven D. Stienstra, and the Respondent, Cedar Ridge Homeowners Association (HOA). While the dispute began over rental violations, the central issue at the hearing was the liability for legal fees the HOA incurred and asserted were owed by the Petitioner.

2. The Petitioner’s son violated Section 1.1 of the CC&Rs by listing the property on VRBO for short-term rentals (less than 30 consecutive days) and producing revenue from January to April 2018. He also later posted on Facebook Marketplace offering to rent separate units within the home, which violated the rule requiring the lease of an “owner’s entire lot.”

3. HOA President Bill Ferguson made a phone call to Mr. Stienstra in April 2018 to bring the short-term rental violations to his attention. The ALJ characterized this as a “courtesy or informational call” and not a formal enforcement action because it did not comply with the written notice procedures required by either Section 1.1 or Section 18 of the CC&Rs.

4. The first letter (May 11, 2018) demanded that Stienstra cease all rentals of less than 30 days. The second letter (June 1, 2018) added a demand for $1,500 in attorney’s fees, and the third letter (June 17, 2018) increased this demand to $2,600.

5. The key sections were Section 1.1 and Section 18. Section 1.1 governed leasing requirements (e.g., minimum 30-day term) and detailed a process for an owner to take action against a non-compliant tenant (occupant). Section 18, titled “Enforcement of Covenants,” provided the formal process for the HOA Board to take action against a non-compliant owner.

6. The ALJ concluded that Section 1.1 was inappropriate because its enforcement mechanism empowers the HOA to act “on behalf of such owner against owner’s occupant” if the owner fails to do so. In this case, the HOA was taking direct action against the owner (Stienstra) for his own violations, a scenario that the ALJ determined was governed by Section 18.

7. Under Section 18, the HOA was required to notify the owner “in writing of the breach,” provide the owner 30 days to appear before the Board to respond, and then grant a reasonable time period (not to exceed 60 days) to remedy the breach before it could levy a fine.

8. The HOA requested a rehearing on the grounds that the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion, and was not support by the evidence.” The HOA specifically alleged the ALJ had not considered evidence that it had reason to believe violations were continuing and had erred in interpreting the CC&Rs.

9. The HOA argued that because the Petitioner had admittedly violated the CC&Rs, he had “unclean hands” and therefore was not entitled to seek relief from the Department regarding the HOA’s actions. The ALJ noted that the remedy sought by the Petitioner was monetary (release from fees), not equitable, and the core issue remained whether the HOA’s enforcement actions were valid under its own governing documents.

10. The final outcome, upheld on rehearing, was that the Petitioner’s petition was granted. The HOA was ordered to reimburse Mr. Stienstra for his $500 filing fee, and the ALJ concluded that the asserted legal fees were not assignable to him due to the HOA’s failure to follow its own CC&R enforcement procedures.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response to each question using only the facts and arguments presented in the provided legal decisions.

1. Analyze the procedural missteps made by the Cedar Ridge HOA Board in its enforcement actions against Steven Stienstra. How did its choice to proceed under Section 1.1 instead of Section 18 fundamentally undermine its position, according to the Administrative Law Judge?

2. Discuss the role of communication and miscommunication in escalating the conflict between Stienstra and the HOA. Use specific examples from the text, such as the Ferguson phone call, the continued VRBO listing, the HOA’s internal distrust, and the unofficial board meeting, to illustrate your points.

3. Evaluate the HOA’s argument on rehearing that its actions were protected because they acted in good faith based on the advice of their attorney, as allowed under A.R.S. § 10-3830. Why was this argument ultimately unpersuasive to the Administrative Law Judge?

4. The central issue in this case evolved from CC&R violations to a dispute over attorney’s fees. Trace this evolution, explaining how each Cease & Desist letter escalated the financial stakes and why the ALJ ultimately determined the fees were not assignable to Stienstra.

5. Compare and contrast the enforcement mechanisms detailed in Section 1.1 and Section 18 of the Cedar Ridge CC&Rs. Explain the specific purpose of each section and why applying the correct one was critical to the outcome of this case.

——————————————————————————–

Glossary

Definition

A.R.S. § 33-1806.01

An Arizona Revised Statute providing that a planned community property owner may use their property as a rental unless prohibited in the declaration and must abide by the declaration’s rental time period restrictions.

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, hears evidence, and makes legal findings and rulings. In this case, the ALJ was Kay Abramsohn.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving the HOA’s violations by a preponderance of the evidence.

Covenants, Conditions, and Restrictions. The governing legal documents that set forth the rules for a planned community or homeowners association.

Cease & Desist Letter

A formal written demand from an attorney or party to stop (cease) and not restart (desist) an allegedly illegal or infringing activity.

Declaration

The legal document that creates a homeowners association and its CC&Rs.

Forcible Entry and Detainer

A legal action, often used for eviction, to recover possession of real property from someone who is in wrongful possession. Section 1.1 mentions this as an action an owner could take against a non-compliant tenant.

A legal claim or right against a property to secure the payment of a debt. Section 18 of the CC&Rs allows the HOA to place a lien on a property for an unpaid special assessment or fine.

Occupant

As used in Section 1.1, refers to a tenant or lessee under a lease agreement, distinct from the property owner.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, homeowner Steven D. Stienstra.

Preponderance of the Evidence

The standard of proof in this case, meaning that the evidence as a whole shows that the fact sought to be proved is more probable than not.

Respondent

The party against whom a petition is filed. In this case, the Cedar Ridge Homeowners Association.

Special Assessment

A charge levied by an HOA against an owner for a specific purpose, such as repaying attorney’s fees incurred by the HOA or as a fine, as described in Sections 1.1 and 18.

Unclean Hands

A legal doctrine arguing that a party who has acted unethically or in bad faith in relation to the subject of a complaint should not be entitled to seek relief. The HOA raised this argument against the Petitioner on rehearing.

An Expedia Group website containing listings for vacation property rentals, which the Petitioner’s son used to list the property.

Study Guide: Stienstra v. Cedar Ridge Homeowners Association

This study guide provides a comprehensive review of the administrative hearing and rehearing decisions in the case between petitioner Steven D. Stienstra and respondent Cedar Ridge Homeowners Association. It includes a short-answer quiz with an answer key, a series of essay questions for deeper analysis, and a glossary of key terms found in the legal decisions.

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the information provided in the case documents.

1. Who were the primary parties in this case, and what was the central issue that prompted the administrative hearing?

2. What specific violations of the CC&Rs did the homeowner, Steven Stienstra, or his son commit that initiated the dispute?

3. Describe the initial action taken by HOA President Bill Ferguson in April 2018 and explain why the Administrative Law Judge did not consider it a formal enforcement action.

4. The HOA’s attorneys sent three Cease & Desist letters. What was the primary demand of the first letter, and what financial demands were added in the second and third letters?

5. What were the two key sections of the CC&Rs at the center of the dispute, and what did each section generally govern?

6. Why did the Administrative Law Judge (ALJ) conclude that the HOA’s decision to proceed under Section 1.1 of the CC&Rs was inappropriate for the violations committed by the owner?

7. According to the ALJ’s decision, what specific procedural steps should the HOA have followed under Section 18 of the CC&Rs to properly enforce the covenants against an owner?

8. On what grounds did the Cedar Ridge HOA request a rehearing after the initial decision was issued in favor of the petitioner?

9. During the rehearing, the HOA introduced an “unclean hands” argument. What did this argument claim, and how did the ALJ respond to it?

10. What was the final, binding outcome of this case after the rehearing, including the ruling on attorney’s fees and the petitioner’s filing fee?

——————————————————————————–

Quiz Answer Key

1. The primary parties were the Petitioner, homeowner Steven D. Stienstra, and the Respondent, Cedar Ridge Homeowners Association (HOA). While the dispute began over rental violations, the central issue at the hearing was the liability for legal fees the HOA incurred and asserted were owed by the Petitioner.

2. The Petitioner’s son violated Section 1.1 of the CC&Rs by listing the property on VRBO for short-term rentals (less than 30 consecutive days) and producing revenue from January to April 2018. He also later posted on Facebook Marketplace offering to rent separate units within the home, which violated the rule requiring the lease of an “owner’s entire lot.”

3. HOA President Bill Ferguson made a phone call to Mr. Stienstra in April 2018 to bring the short-term rental violations to his attention. The ALJ characterized this as a “courtesy or informational call” and not a formal enforcement action because it did not comply with the written notice procedures required by either Section 1.1 or Section 18 of the CC&Rs.

4. The first letter (May 11, 2018) demanded that Stienstra cease all rentals of less than 30 days. The second letter (June 1, 2018) added a demand for $1,500 in attorney’s fees, and the third letter (June 17, 2018) increased this demand to $2,600.

5. The key sections were Section 1.1 and Section 18. Section 1.1 governed leasing requirements (e.g., minimum 30-day term) and detailed a process for an owner to take action against a non-compliant tenant (occupant). Section 18, titled “Enforcement of Covenants,” provided the formal process for the HOA Board to take action against a non-compliant owner.

6. The ALJ concluded that Section 1.1 was inappropriate because its enforcement mechanism empowers the HOA to act “on behalf of such owner against owner’s occupant” if the owner fails to do so. In this case, the HOA was taking direct action against the owner (Stienstra) for his own violations, a scenario that the ALJ determined was governed by Section 18.

7. Under Section 18, the HOA was required to notify the owner “in writing of the breach,” provide the owner 30 days to appear before the Board to respond, and then grant a reasonable time period (not to exceed 60 days) to remedy the breach before it could levy a fine.

8. The HOA requested a rehearing on the grounds that the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion, and was not support by the evidence.” The HOA specifically alleged the ALJ had not considered evidence that it had reason to believe violations were continuing and had erred in interpreting the CC&Rs.

9. The HOA argued that because the Petitioner had admittedly violated the CC&Rs, he had “unclean hands” and therefore was not entitled to seek relief from the Department regarding the HOA’s actions. The ALJ noted that the remedy sought by the Petitioner was monetary (release from fees), not equitable, and the core issue remained whether the HOA’s enforcement actions were valid under its own governing documents.

10. The final outcome, upheld on rehearing, was that the Petitioner’s petition was granted. The HOA was ordered to reimburse Mr. Stienstra for his $500 filing fee, and the ALJ concluded that the asserted legal fees were not assignable to him due to the HOA’s failure to follow its own CC&R enforcement procedures.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response to each question using only the facts and arguments presented in the provided legal decisions.

1. Analyze the procedural missteps made by the Cedar Ridge HOA Board in its enforcement actions against Steven Stienstra. How did its choice to proceed under Section 1.1 instead of Section 18 fundamentally undermine its position, according to the Administrative Law Judge?

2. Discuss the role of communication and miscommunication in escalating the conflict between Stienstra and the HOA. Use specific examples from the text, such as the Ferguson phone call, the continued VRBO listing, the HOA’s internal distrust, and the unofficial board meeting, to illustrate your points.

3. Evaluate the HOA’s argument on rehearing that its actions were protected because they acted in good faith based on the advice of their attorney, as allowed under A.R.S. § 10-3830. Why was this argument ultimately unpersuasive to the Administrative Law Judge?

4. The central issue in this case evolved from CC&R violations to a dispute over attorney’s fees. Trace this evolution, explaining how each Cease & Desist letter escalated the financial stakes and why the ALJ ultimately determined the fees were not assignable to Stienstra.

5. Compare and contrast the enforcement mechanisms detailed in Section 1.1 and Section 18 of the Cedar Ridge CC&Rs. Explain the specific purpose of each section and why applying the correct one was critical to the outcome of this case.

——————————————————————————–

Glossary

Definition

A.R.S. § 33-1806.01

An Arizona Revised Statute providing that a planned community property owner may use their property as a rental unless prohibited in the declaration and must abide by the declaration’s rental time period restrictions.

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, hears evidence, and makes legal findings and rulings. In this case, the ALJ was Kay Abramsohn.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving the HOA’s violations by a preponderance of the evidence.

Covenants, Conditions, and Restrictions. The governing legal documents that set forth the rules for a planned community or homeowners association.

Cease & Desist Letter

A formal written demand from an attorney or party to stop (cease) and not restart (desist) an allegedly illegal or infringing activity.

Declaration

The legal document that creates a homeowners association and its CC&Rs.

Forcible Entry and Detainer

A legal action, often used for eviction, to recover possession of real property from someone who is in wrongful possession. Section 1.1 mentions this as an action an owner could take against a non-compliant tenant.

A legal claim or right against a property to secure the payment of a debt. Section 18 of the CC&Rs allows the HOA to place a lien on a property for an unpaid special assessment or fine.

Occupant

As used in Section 1.1, refers to a tenant or lessee under a lease agreement, distinct from the property owner.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, homeowner Steven D. Stienstra.

Preponderance of the Evidence

The standard of proof in this case, meaning that the evidence as a whole shows that the fact sought to be proved is more probable than not.

Respondent

The party against whom a petition is filed. In this case, the Cedar Ridge Homeowners Association.

Special Assessment

A charge levied by an HOA against an owner for a specific purpose, such as repaying attorney’s fees incurred by the HOA or as a fine, as described in Sections 1.1 and 18.

Unclean Hands

A legal doctrine arguing that a party who has acted unethically or in bad faith in relation to the subject of a complaint should not be entitled to seek relief. The HOA raised this argument against the Petitioner on rehearing.

An Expedia Group website containing listings for vacation property rentals, which the Petitioner’s son used to list the property.

Case Participants

Petitioner Side

  • Steven D. Stienstra (petitioner)
    Appeared on his own behalf,.
  • Petitioner's son (witness)
    Related to Petitioner
    Managed rental property listings (referred to as 'Son'),,; testified at hearing,.

Respondent Side

  • Michelle Molinario (HOA attorney)
    Jones, Skelton & Hochuli, PLC.
    Represented Cedar Ridge Homeowners Association,.
  • Keith D. Collett (HOA attorney)
    Jones, Skelton & Hochuli, PLC.
    Represented Cedar Ridge Homeowners Association/HOA,,.
  • Diana J. Elston (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
    Represented Cedar Ridge Homeowners Association/HOA,.
  • Vic Burolla (board member)
    Cedar Ridge Homeowners Association
    HOA Board Secretary,,; witness at initial hearing,,; no longer Secretary by time of hearing,.
  • Bill Ferguson (board member)
    Cedar Ridge Homeowners Association
    HOA Board President,; no longer President by time of hearing,; witness at initial hearing.
  • Tucker (board member)
    Cedar Ridge Homeowners Association
    HOA Board Vice-president,; participated in September 4, 2018 meeting,.
  • Griffin (board member)
    Cedar Ridge Homeowners Association
    HOA Board Treasurer,; participated in September 4, 2018 meeting,.
  • Dick Ellis (board member)
    Cedar Ridge Homeowners Association
    May have attended portion of September 4, 2018 meeting,.

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge,,.
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Commissioner,,.

John W. Gray vs. Mesa Coronado III Condominium Association

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Case Summary

Case ID 19F-H1918004-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-11-30
Administrative Law Judge Kay Abramsohn
Outcome The Petitioner was deemed the prevailing party regarding the Respondent's violations of the CC&Rs and rules concerning parking enforcement. The Respondent was ordered to refund the Petitioner's $500.00 filing fee.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John W. Gray Counsel —
Respondent Mesa Coronado III Condominium Association Counsel Austin Baillio, Esq.

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The Petitioner was deemed the prevailing party regarding the Respondent's violations of the CC&Rs and rules concerning parking enforcement. The Respondent was ordered to refund the Petitioner's $500.00 filing fee.

Key Issues & Findings

Failure to enforce parking rules (vehicle limits, garage use, inoperable vehicles)

Petitioner alleged that the HOA refused to enforce parking rules regarding vehicle limits, requiring use of garages for first cars, and banning inoperable or commercial vehicles, despite written complaints. The ALJ found the HOA failed to enforce these rules or issue proper notices/fines.

Orders: MCIII ordered to pay Petitioner his filing fee of $500.00 within thirty days of the Order.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • MCIII Rules and Regulations #2 and #3
  • MCIII CC&Rs 4.12
  • MCIII CC&Rs 4.13
  • MCIII CC&Rs 4.14

Analytics Highlights

Topics: HOA Enforcement, Parking Rules, Filing Fee Refund, Inoperable Vehicle, CC&R Violation
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 32-2199(1)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

19F-H1918004-REL Decision – 674057.pdf

Uploaded 2026-04-24T11:15:17 (139.6 KB)

19F-H1918004-REL Decision – 674057.pdf

Uploaded 2026-01-23T17:25:52 (139.6 KB)

Briefing Document: Gray v. Mesa Coronado III Condominium Association (Case No. 19F-H1918004-REL)

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in the case of John W. Gray (Petitioner) versus the Mesa Coronado III Condominium Association (MCIII, Respondent). The central issue was MCIII’s failure to enforce its own Covenants, Conditions, and Restrictions (CC&Rs) and community rules regarding vehicle parking.

The Petitioner, Mr. Gray, presented credible and convincing evidence of widespread, ongoing parking violations by multiple residents, including exceeding vehicle limits, failing to use garages for primary parking, and the long-term storage of an inoperable vehicle in a common area parking space. The Respondent, MCIII, argued that the rules were difficult to enforce and that it had taken some action, including revising the rules shortly before the hearing.

The Administrative Law Judge (ALJ) ultimately rejected MCIII’s defense, concluding that the association had demonstrably failed to enforce its governing documents. The ALJ found that MCIII had viable enforcement options, such as issuing notices and fines, which it did not utilize. The final order deemed the Petitioner the prevailing party and required MCIII to reimburse his $500 filing fee.

Case Overview

• Parties Involved:

◦ Petitioner: John W. Gray, owner of Unit 122 in the Mesa Coronado III Condominium development.

◦ Respondent: Mesa Coronado III Condominium Association (MCIII), the unit owners’ association for the 33-unit development.

• Adjudicating Body: The Office of Administrative Hearings, following a referral from the Arizona Department of Real Estate.

• Hearing Date: October 29, 2018.

• Decision Date: November 30, 2018.

• Core Allegation: The Petitioner alleged that MCIII violated its own Rules, Regulations, and CC&Rs (specifically Articles 4.12, 4.13, and 4.14) by refusing to enforce parking rules despite receiving written complaints.

Background and Timeline of the Dispute

The conflict centered on parking within the MCIII development, which has 36 parking spaces for 33 units, with spaces being “open” and not assigned to specific units (with one exception).

• Pre-existing Rules (Adopted Jan. 2002):

◦ Owners were limited to two cars per unit.

◦ The garage was considered the “assigned” parking for the first car.

◦ Inoperable vehicles were banned from the property.

◦ A system of warnings and fines was in place for rule violations.

• May 17, 2018: Petitioner Gray submitted a formal written complaint to MCIII, identifying at least eight units in violation of parking rules. His complaint specified:

◦ Units with three cars were not using their garages for parking, instead using them for storage.

◦ An inoperable red truck had been stationary in the same parking spot for over a year.

◦ A commercial truck was present containing what he believed to be hazardous pool chemicals.

• MCIII’s Initial Response: The association acknowledged a “history” with the parking situation and stated the Board would review the rules for revision. MCIII noted it would investigate the red truck and also accused the Petitioner of regularly parking his own truck in a fire lane.

• July 16, 2018: The Petitioner sent a follow-up notification regarding the continuing violations.

• MCIII’s Second Response: The association informed the Petitioner that the issue would be on the agenda for the July 24, 2018 Board meeting and again reminded him of his own alleged fire lane parking violations.

• July 23, 2018: MCIII sent a notice to the owner of the unit associated with the inoperable red truck, informing them of the rules violation.

• July 30, 2018: The Petitioner filed his formal petition with the Arizona Department of Real Estate.

• October 23, 2018: Days before the hearing, the MCIII Board adopted new parking rules.

Petitioner’s Case and Evidence (John W. Gray)

The Petitioner built a detailed case demonstrating a pattern of non-enforcement by MCIII. The ALJ found his evidence to be “credible and convincing.”

• Specific Violations Alleged:

◦ Excess Vehicles: Multiple units possessed more than the two-vehicle limit.

◦ Garage Misuse: Residents with multiple cars were using common area parking spaces while their garages were used for storage.

◦ Inoperable Vehicle: A red truck remained parked and inoperable in one space for over a year, in direct violation of CC&R 4.14.

• Evidence Presented at Hearing:

◦ Photographs: A series of exhibits (6 through 16) contained photographs documenting the various offending vehicles.

◦ Private Investigation: The Petitioner hired a private investigator to obtain vehicle registration information to link specific vehicles to their owners and units (Exhibit 17).

◦ Quantitative Analysis: The Petitioner calculated that just 12 units were occupying 27 common area parking spaces, leaving very few spaces for the remaining 21 units.

◦ Written Correspondence: Copies of his complaints to MCIII were submitted, demonstrating that the association was put on notice of the violations.

Respondent’s Defense and Actions (MCIII)

The association’s defense centered on the difficulty of enforcement and subsequent actions taken after the Petitioner’s complaint.

• Core Arguments:

◦ Unenforceability: MCIII asserted that it was “almost impossible” to enforce the existing restrictive rules, as it would require constant 24/7 monitoring.

◦ Lack of Prior Complaints: The Respondent claimed it had received no complaints about parking prior to Mr. Gray’s.

◦ Issue is Moot: MCIII argued that its recent revision of the parking rules rendered the Petitioner’s complaint moot.

• Actions Taken by MCIII:

◦ Rule Revision: At the October 23, 2018 Board meeting, MCIII adopted new rules that eliminated the two-car limit but maintained the requirement for residents to use their garage first before occupying common area spaces. The ban on inoperable and commercial vehicles was also kept.

◦ Enforcement Against Petitioner: The Respondent noted that it had previously taken enforcement action by having the Petitioner’s own truck towed for parking in a fire lane.

◦ Notice Regarding Red Truck: MCIII provided evidence that it sent one letter on July 23, 2018, regarding the inoperable red truck.

◦ Towing Contract: The association stated it had recently contracted with Shaffer Towing for towing services.

◦ Community Manager Patrols: The “Community Manager,” Andrea Lacombe, testified that she drove through the property approximately twice a month looking for violations.

Governing Rules and CC&Rs

The decision rested on the specific language of the association’s governing documents in effect at the time of the complaint.

Document

Article/Rule

Provision

Rules & Regulations (Jan 2002)

Rule 3

Limits owners to two cars per unit and “assigns” the garage as parking for the first car.

CC&Rs (Jan 1999)

Art. 4.12

Prohibits the parking of commercial vehicles, RVs, boats, trailers, etc., on any part of the condominium outside of an enclosed garage.

CC&Rs (Jan 1999)

Art. 4.13

States that no parking space may be used for storage or any purpose other than parking of Family Vehicles. Grants the Board the right to assign spaces.

CC&Rs (Jan 1999)

Art. 4.14

Prohibits the storage of inoperable vehicles on any portion of the condominium other than within enclosed garages. Grants the Board the right to have violating vehicles towed.

Administrative Law Judge’s Decision and Rationale

The ALJ sided with the Petitioner, finding that MCIII had failed in its duty to enforce its own rules.

• Rejection of MCIII’s Defense: The ALJ determined that MCIII’s argument that the rules were unenforceable was “not a viable defense.” The decision explicitly stated that the association could have used provisions for notification and fines to enforce the rules but failed to do so.

• Evidence of Non-Enforcement: The hearing record demonstrated a clear failure by MCIII to act.

◦ The evidence was “undisputed” that the inoperable red truck had been in violation for over a year, yet MCIII only sent a single notice long after the complaint was filed.

◦ The ALJ noted that clearing even that one space would have improved the “tenuous parking situation.”

◦ The record contained no indication that MCIII had ever enforced the rules regarding the number of vehicles or the mandatory use of garages for primary parking.

◦ The only enforcement action cited, other than the single letter, was the towing of the Petitioner’s own vehicle.

• Conclusion of Law: Based on the evidence, the ALJ concluded that “MCIII failed to enforce CC&Rs and rules and regulations regarding parking.” The revision of the rules just before the hearing did not negate the past failure to enforce the rules that were in effect at the time of the Petitioner’s complaint.

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a binding order with two key provisions:

1. Prevailing Party: The Petitioner, John W. Gray, is officially deemed the prevailing party in the matter.

2. Reimbursement: MCIII is ordered to pay the Petitioner his filing fee of $500.00 within thirty (30) days of the order.

Study Guide: Gray v. Mesa Coronado III Condominium Association

This guide provides a detailed review of the Administrative Law Judge Decision in case No. 19F-H1918004-REL, concerning a dispute over the enforcement of parking regulations. It includes a short-answer quiz, an answer key, essay questions for deeper analysis, and a glossary of key terms.

Quiz: Short-Answer Questions

Answer each of the following questions in 2-3 complete sentences, based entirely on the provided source document.

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

2. What were the two main issues John W. Gray alleged in his petition filed with the Department on July 30, 2018?

3. According to the MCIII rules in effect at the time of the complaint, what were the primary restrictions placed on vehicle ownership and parking for residents?

4. Describe the key evidence the Petitioner presented at the hearing to substantiate his claims of widespread parking rule violations.

5. What was the Respondent’s primary defense for not enforcing the more restrictive parking rules that were in place at the time of the complaint?

6. How did the new rules, adopted on October 23, 2018, change the association’s approach to vehicle limits and garage use?

7. Explain the significance of the inoperable red truck to the Administrative Law Judge’s final decision.

8. What was the required standard of proof for the Petitioner in this case, and did the judge determine that he met it?

9. Prior to the hearing, what specific enforcement actions did MCIII take in response to the Petitioner’s documented complaints?

10. What was the final order issued by the Administrative Law Judge, and what was MCIII required to do?

Answer Key

1. The primary parties were John W. Gray, the Petitioner, who was a condominium owner in the MCIII development, and the Mesa Coronado III Condominium Association (MCIII), the Respondent and the governing unit owners’ association for the development. Mr. Gray initiated the legal action against the association for allegedly failing to enforce its rules.

2. The Petitioner’s two main allegations were that the association had failed to provide him with a copy of its management company agreement and that it refused to enforce its parking rules. He specifically alleged multiple units were violating rules regarding the number of vehicles and the presence of inoperable vehicles.

3. The rules in effect at the time of the complaint limited owners to a maximum of two cars per unit. The rules also “assigned” the garage as the designated parking spot for the first car and explicitly banned “inoperable” vehicles from the property.

4. The Petitioner presented credible evidence including photographs from multiple exhibits (6-16) showing numerous violations. He also testified based on his personal observations, identified specific units with three cars using garages for storage, and provided vehicle registration information obtained through a private investigator.

5. The Respondent defended its lack of enforcement by arguing that the existing restrictive rules were “almost impossible” to enforce without constant surveillance. The Community Manager also testified that she had received no prior complaints about parking from other residents.

6. The new rules, adopted October 23, 2018, removed the limit on the number of cars permitted per unit. However, they instituted a new requirement that owners must park their vehicles in their respective garages before using any common area parking spaces.

7. The inoperable red truck was significant because it had been parked in the same spot for over a year, serving as undisputed evidence of a long-standing violation. The judge noted that MCIII’s single letter to the owner, sent long after the violation began, demonstrated a clear failure to enforce its rules regarding inoperable vehicles.

8. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that his contentions were more probably true than not. The judge concluded that the Petitioner successfully met this burden of proof.

9. MCIII’s primary enforcement actions were to place the issue on its July 24, 2018, Board meeting agenda and to send one letter on July 23, 2018, to the owner of the unit associated with the inoperable red truck. The record also shows MCIII had previously enforced parking rules against the Petitioner himself by having his truck towed from a fire lane.

10. The judge ordered that the Petitioner be deemed the prevailing party in the case. The judge further ordered that MCIII must pay the Petitioner his filing fee of $500.00 within thirty days of the order.

Essay Questions

The following questions are designed to promote deeper analysis of the case. Formulate comprehensive responses based on the facts and arguments presented in the source document.

1. Analyze the Respondent’s argument that revising the parking rules made the Petitioner’s complaints “moot.” Based on the judge’s decision, evaluate the strength of this defense and explain why it was ultimately unsuccessful.

2. Discuss the concept of a condominium association’s duty to enforce its own rules and CC&Rs, using the specific examples of MCIII’s actions (and inactions) from the case. How did the association’s selective enforcement—such as towing the Petitioner’s vehicle but not others—factor into the case’s context?

3. Evaluate the evidence presented by both the Petitioner and the Respondent. Which party presented a more compelling case, and why? Support your analysis by citing specific exhibits, testimony, and documented observations mentioned in the decision.

4. Explore the timeline of events from the Petitioner’s first complaint in May 2018 to the judge’s decision in November 2018. How does this timeline illustrate the dispute’s escalation and the association’s response strategy?

5. The Administrative Law Judge found that MCIII’s argument of the rules being “unenforceable” was not a viable defense. What practical enforcement actions, short of 24/7 surveillance, could the association have taken according to the information provided in the hearing record?

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 a decision. In this case, it was Kay Abramsohn.

Burden of Proof

The legal obligation of a party in a trial to produce evidence that proves the claims they have made against the other party.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the guidelines for a planned community like a condominium. MCIII’s CC&Rs were effective January 12, 1999.

Common Elements

Also referred to as the “Common Area,” these are parts of the condominium property, such as the parking lot, available for use by all unit owners.

Community Manager

An employee of the management company (Curtiss Management) hired by the association to handle its affairs. In this case, the manager was Andrea Lacombe.

Evidentiary Hearing

A formal legal proceeding where parties present evidence (exhibits) and testimony to prove their case before a judge or hearing officer.

Inoperable Vehicle

A vehicle that cannot be operated. Both the old and new MCIII rules, as well as CC&R 4.14, prohibited storing such vehicles on the property outside of an enclosed garage.

A term used to describe an issue that is no longer in dispute or of practical significance. MCIII argued that its new rules made the Petitioner’s issues moot.

Petitioner

The party who initiates a legal action or files a petition. In this case, John W. Gray.

A map, drawn to scale, showing the divisions of a piece of land. The plat for MCIII showed there were 36 parking spaces in the lot.

Preponderance of the Evidence

The standard of proof required in this case. It is met if the proposition is more likely to be true than not true; it is a superior evidentiary weight that inclines an impartial mind to one side.

Prevailing Party

The party who is found to have won the legal case. The judge deemed the Petitioner to be the prevailing party.

Respondent

The party against whom a petition is filed; the defending party. In this case, the Mesa Coronado III Condominium Association.

He Fought the HOA Over Parking—and Won. Here Are the 5 Surprising Lessons from His Battle.

Introduction: The Familiar Frustration of HOA Parking

For anyone living in a condo, townhome, or planned community, the daily dance of parking is a familiar routine. It’s a world of limited spaces, confusing rules about guest parking, and the constant fear of a warning sticker or, worse, a tow truck. This shared frustration often simmers just below the surface of community life, where the rules established by a Homeowners Association (HOA) can feel arbitrary and inconsistently applied.

This post breaks down a real-life administrative court case where one resident, John W. Gray, took on his Condominium Association for its complete failure to enforce its own parking rules. Without getting lost in legal jargon, we will explore how a single, determined individual was able to hold his HOA accountable. This wasn’t just a simple disagreement; it was a formal challenge that went before a judge.

The official court decision in Gray’s favor offers powerful and surprising lessons for any homeowner, renter, or board member. This David vs. Goliath story is more than just a victory for one resident; it’s a practical guide filled with takeaways on how to effectively address community disputes and understand the true responsibilities of an HOA.

1. The ‘It’s Too Hard to Enforce’ Excuse Doesn’t Work

The association (MCIII) built its primary defense on the argument that its own parking rules were “almost impossible” to enforce. They claimed that the two-car limit per unit was too restrictive and would require constant, 24/7 monitoring and picture-taking, which was simply not feasible.

The administrative law judge completely rejected this excuse. The core lesson from the ruling is that an HOA cannot simply choose to ignore its governing documents because enforcement is inconvenient. The judge pointed out that the association had simpler tools at its disposal, such as issuing violation notices and levying fines as outlined in their rules, but failed to take even these basic steps.

The judge’s finding offers a powerful reality check for any board that feels overwhelmed by its own regulations:

MCIII’s argument that the rules were unenforceable is not a viable defense in this instance, as the rules contained many provisions that could have been noticed to the units regarding parking rules and their enforcement.

2. Meticulous Data is Your Strongest Weapon

John W. Gray didn’t just complain; he built an airtight case. His methodical approach to proving the association’s failure was a key factor in his success. The court record details the specific actions he took:

• He conducted personal observations and took photographs of the offending vehicles.

• He identified the specific units that had too many cars and were using their garages for storage instead of parking.

• He hired a private investigator to obtain vehicle registration information to definitively link cars to specific units.

The judge found this evidence to be “credible and convincing.” Gray’s detailed documentation painted a clear picture of the problem’s scale. According to his calculations, just 12 of the community’s 33 units were monopolizing 27 parking spaces, leaving very few for the remaining 21 units. This takeaway is clear: a well-documented, fact-based complaint is infinitely more powerful than anecdotal grievances.

3. Changing the Rules Doesn’t Erase Past Failures

In response to Gray’s formal complaint, the HOA Board took a strategic but ultimately unsuccessful step. Just days before the scheduled hearing, the Board reviewed and adopted a new set of parking rules. These new rules conveniently removed the two-car limit that the association had claimed was unenforceable.

The association then argued that this rule change made the petitioner’s original complaint “moot,” or irrelevant. They essentially claimed that since the rule he was complaining about no longer existed, there was no longer a case to be heard.

This strategy failed because the judge ruled on the HOA’s past failure to enforce the rules that were in effect at the time of the complaint. This is a crucial lesson in accountability. An organization cannot escape responsibility for its prior negligence simply by changing the rules at the last minute. The failure to act had already occurred, and the consequences of that failure were the basis of the lawsuit.

4. Ignoring Small Violations Can Create a Major Crisis

Nowhere was the HOA’s failure more obvious than in the case of a single inoperable red truck. The vehicle had been parked in the same spot for over a year, in clear violation of the rules prohibiting the storage of inoperable vehicles on the property.

Despite this long-term, visible violation, the hearing record shows the HOA’s response was both delayed and minimal. They sent only one letter to the unit owner about the truck, and this action was taken “long after” the violation began and only after Gray had formally complained.

The judge’s observation on this single vehicle underscores the wider impact of the board’s inaction:

Even the clearing of just one more space would have made the tenuous parking situation better.

The red truck was a symptom of a much larger disease. The failure to address one obvious, easily-proven violation demonstrated a systemic failure to manage the community’s shared resources, which directly contributed to the parking crisis and the disproportionate use of spaces by a few residents.

5. Enforcement Must Be Fair, Not Just Convenient

Perhaps the most telling detail from the hearing record was the apparent double standard in the HOA’s enforcement actions. The record explicitly mentions only two enforcement actions the association had taken regarding parking:

• Towing the petitioner’s own truck on one occasion for parking in a fire lane.

• Sending a single, very late letter about the red truck that had been parked for over a year.

The hearing record is devastatingly clear on this point. The only enforcement actions the board could point to were punitive or reactive: towing the truck of the very resident demanding action, and sending a single, belated letter about a year-old violation after he had filed a formal complaint. This wasn’t just inconsistent enforcement; it was a textbook case of selective enforcement that targeted the complainant while ignoring the systemic problem.

For an HOA’s authority to be respected and legally defensible, its rules must be applied fairly and consistently to all residents, not just when it is convenient or aimed at a perceived nuisance.

Conclusion: A Win for the Power of One

The judge’s order was a decisive victory for resident rights, affirming that an HOA’s duty to enforce its own rules is not optional. While the association was ordered to repay his $500 filing fee, the real prize was the validation that one resident, armed with credible evidence, can successfully hold a board accountable to the entire community. This case proves that meticulous documentation, persistence, and a refusal to be ignored are the great equalizers in community governance. It makes you wonder: what ‘unenforceable’ rules in your community are just waiting for a champion to demand they be followed?

Case Participants

Petitioner Side

  • John W. Gray (petitioner)
    Appeared on his own behalf

Respondent Side

  • Austin Baillio (attorney)
    Maxwell & Morgan PC
    Represented Mesa Coronado III Condominium Association
  • Andrea Lacombe (community manager)
    Curtiss Management
    Testified for Respondent

Neutral Parties

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