Tag Archives: Condominium Act

Debbie Westerman v. Bridgewood Nine 30 Homeowners Association

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Case Summary

Case ID 25F-H029-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-03-12
Administrative Law Judge Samuel Fox
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Debbie Westerman Counsel —
Respondent Bridgewood Nine 30 Homeowners Association Counsel Mark Lines

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The ALJ found that the documents Petitioner requested—specifically bills issued by Respondent’s counsel—were privileged communications under A.R.S. § 33-1258(B)(1). Because these documents were subject to the statutory exception, the Petitioner failed to meet her burden of proof that the Respondent violated the records request statute. Respondent was deemed the prevailing party.

Why this result: Petitioner failed to establish a violation because the requested records fell under the attorney-client privilege exception defined in A.R.S. § 33-1258(B).

Key Issues & Findings

Alleged violation of member's right to examine financial records regarding legal fees.

Petitioner sought statements from the HOA's law firm (Shaw and Lines) from 2015 onward, specifically seeking the numerical amounts paid in legal fees. The HOA failed to respond within ten business days. The HOA argued the requested bills were privileged communications and therefore exempt from disclosure under A.R.S. § 33-1258(B)(1).

Orders: Respondent was deemed the prevailing party in this matter.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1258
  • A.R.S. § 33-1258(B)(1)

Analytics Highlights

Topics: records request, HOA records, condominium act, privileged communication, attorney-client privilege, legal fees
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1258(B)(1)

Audio Overview

Decision Documents

25F-H029-REL Decision – 1282218.pdf

Uploaded 2026-01-23T18:16:55 (95.6 KB)





Briefing Doc – 25F-H029-REL


Administrative Hearing Briefing: Westerman vs. Bridgewood 930 POA (Case No. 25F-H029-REL)

Executive Summary

This document synthesizes the proceedings and outcome of an administrative hearing (Case No. 25F-H029-REL) held on February 20, 2025, concerning a records request dispute between a homeowner and a condominium association. The petitioner, Debbie Westerman, alleged that the Bridgewood Nine 30 Homeowners Association (the Respondent) violated state law by failing to provide financial records, specifically ten years of legal billing statements from its counsel.

The petitioner’s position was that she made a simple, direct request for the total amount of legal fees paid by the association and did not receive a timely response as required by statute. The respondent countered that the request was procedurally deficient and, more critically, that the specific documents sought—attorney invoices—are explicitly exempt from disclosure under the attorney-client privilege exception within the governing statute.

The Administrative Law Judge (ALJ), Samuel Fox, ultimately ruled in favor of the Respondent. While acknowledging that the association’s initial response was outside the ten-day statutory window, the dispositive factor was the nature of the records requested. The ALJ accepted the respondent’s counsel’s representation that the documents were privileged. Based on this, the decision concluded that because the records were exempt from disclosure under the statute’s privilege exception, the ten-day requirement to produce them did not apply. The petitioner therefore failed to meet her burden of proof that a violation had occurred, and the association was deemed the prevailing party.

I. Case Overview

Case Number

25F-H029-REL

Hearing Date

February 20, 2025

Decision Date

March 12, 2025

Presiding Judge

Administrative Law Judge Samuel Fox

Petitioner

Debbie Westerman

Respondent

Bridgewood Nine 30 Homeowners Association

Respondent’s Counsel

Mark Lines, Shaw & Lines, LLC

Respondent’s Witnesses

Michael Brubaker (Board President)

Core Issue

Alleged violation of Arizona Revised Statutes (A.R.S.) § 33-1258, concerning a member’s right to access and examine association records.

II. The Initial Request and Petition

The dispute originated from a discussion at an association annual meeting regarding a $50,000 legal expenditure in 2018. Following this, the petitioner initiated a formal request for records.

• November 26, 2024: Ms. Westerman sent an email to the association with the following request:

• December 16, 2024: Having received no substantive response, Ms. Westerman filed a petition with the Arizona Department of Real Estate. The petition stated:

• Statutory Discrepancy: The initial petition incorrectly cited A.R.S. § 33-1805 (Planned Community statutes). During the hearing, both parties and the ALJ agreed that the correct governing statute was A.R.S. § 33-1258 (Condominium Act). The ALJ ruled to proceed under the correct statute, stating, “I don’t think that there’s any undue prejudice in just referring to the correct statute.”

III. Petitioner’s Position and Testimony

Ms. Westerman framed her action as a straightforward attempt to gain financial transparency from the association’s board.

• Stated Goal: The primary objective was to ascertain the total amount of money the association had paid in legal fees over the preceding decade.

◦ “Basically, your honor, I would just like to know how much money our association has paid in legal fees in the last decade.”

◦ “The only thing I am looking for are numbers… I don’t care who it’s for. I don’t care what it was about. I just want the figures because I want to make sure that our community Our board at that time okay these expenditures.”

• Primary Complaint: The association violated the statutory ten-day requirement to fulfill a request for examination of records.

• Admissions Under Cross-Examination:

◦ Ms. Westerman confirmed her November 26 email did not specifically request a time to physically “inspect and copy records.”

◦ She acknowledged the email did not cite a specific statute granting her the right to the records.

◦ She admitted to not reviewing documents that were eventually sent by the respondent on January 18, 2025, stating that the email did not describe the contents of its attachments.

• Additional Grievances: During her testimony, Ms. Westerman raised several other issues beyond the records request, including financial reports being prepared by board members instead of an accountant, a lack of electronic voting options, and being invited and then “uninvited” by Board President Michael Brubaker to a January 9th board meeting due to her “litigation against the association.”

IV. Respondent’s Position and Arguments

The association, through its counsel Mark Lines and witness Michael Brubaker, presented a multi-faceted defense centered on procedural flaws in the request and a substantive right to withhold the specific documents sought.

• Procedural Deficiencies: The respondent argued that the petitioner’s initial email was “both procedurally and substantively flawed and deficient.” The key deficiencies cited were:

◦ Failure to cite the correct statute.

◦ Failure to give notice that a statutory ten-day deadline was being invoked.

◦ Failure to request a time to come in, inspect records, identify specific documents, and then purchase copies.

• Substantive Defense (Attorney-Client Privilege): This was the central pillar of the respondent’s case. Mr. Lines argued that legal invoices and communications with counsel are explicitly protected from disclosure under the law.

• Timeline of “Substantial Compliance”: The respondent provided a timeline of its actions to demonstrate it had made good-faith efforts to engage with the petitioner.

◦ December 30, 2024: Invited Ms. Westerman to a board meeting scheduled for January 9, 2025.

◦ January 9, 2025: The board met, but Ms. Westerman did not attend.

◦ January 10, 2025: Responded to the November 26th questions.

◦ January 18 & 23, 2025: Sent emails with attached documents, including financial flowcharts and meeting minutes.

• Overburdensome Request: Counsel argued that the request for ten years of records was “overburdensome and beyond the statutory requirements,” stating that associations are only required to maintain records for three years.

• Context of Litigation: The respondent asserted that the petitioner’s request was part of a larger pattern of legal conflict. Counsel claimed that Ms. Westerman’s own history of litigation against the association was the primary driver of the legal fees she was now investigating.

V. Administrative Law Judge’s Findings and Decision

The ALJ’s final decision focused narrowly on the application of A.R.S. § 33-1258 to the specific facts of the case.

• Key Factual Finding: The decision noted it was “undisputed” that the respondent’s first reply to the November 26, 2024 email was on December 30, 2024, which is outside the ten-business-day window mandated by the statute.

• Key Legal Finding (The Deciding Factor): The judge accepted the representation from the respondent’s counsel that the requested documents—bills from the association’s law firm—were privileged.

• Application of Law: The decision hinged on the introductory clause of the statute, A.R.S. § 33-1258(A), which states: “Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available…” The judge reasoned that since the documents fell under the attorney-client privilege exception in subsection B, the ten-day production requirement from subsection A did not apply to them.

• Final Ruling:






Study Guide – 25F-H029-REL


{ “case”: { “docket_no”: “25F-H029-REL”, “case_title”: “Debbie Westerman v. Bridgewood Nine 30 Homeowners Association”, “decision_date”: “2025-03-12”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA withhold legal bills and attorney communications from a records request?”, “short_answer”: “Yes, the HOA may withhold records related to privileged attorney-client communications.”, “detailed_answer”: “Under Arizona law, an HOA is permitted to withhold books and records from disclosure if they relate to privileged communication between the association and its attorney. In this case, legal bills were deemed privileged.”, “alj_quote”: “Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: 1. Privileged communication between an attorney for the association and the association.”, “legal_basis”: “A.R.S. § 33-1258(B)(1)”, “topic_tags”: [ “records request”, “attorney-client privilege”, “financial records” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination.”, “detailed_answer”: “Statute requires that the association must make financial and other records reasonably available for examination within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “procedural requirements” ] }, { “question”: “Does the 10-day deadline apply if the documents I requested are privileged?”, “short_answer”: “No, the 10-day requirement does not apply to documents that are properly withheld under the privilege exception.”, “detailed_answer”: “The ALJ determined that the statutory requirement to produce documents within ten days applies to all documents except those that are privileged. Therefore, failing to produce privileged documents within ten days is not a violation.”, “alj_quote”: “The production and ten-day requirements apply to all documents ‘[e]xcept as provided in subsection B.'”, “legal_basis”: “Conclusion of Law 8”, “topic_tags”: [ “records request”, “deadlines”, “privilege” ] }, { “question”: “Who has the burden of proof in an administrative hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) has the burden to prove the violation.”, “detailed_answer”: “The homeowner filing the petition must prove that the HOA violated the statutes or governing documents by a preponderance of the evidence.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”, “legal_basis”: “Conclusion of Law 4”, “topic_tags”: [ “legal standards”, “burden of proof”, “hearing procedures” ] }, { “question”: “Can the HOA charge me a fee just to look at the records?”, “short_answer”: “No, the HOA cannot charge a fee for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies, they are statistically prohibited from charging a member for the act of making the material available for review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “fees”, “homeowner rights” ] }, { “question”: “How much can the HOA charge if I ask for copies of the records?”, “short_answer”: “The HOA may charge up to fifteen cents per page.”, “detailed_answer”: “If a homeowner requests actual copies of the records rather than just examining them, the association is allowed to charge a specific maximum fee per page.”, “alj_quote”: “An association may charge a fee for making copies of not more than fifteen cents per page.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “fees”, “copies” ] }, { “question”: “Is a statement from the HOA’s lawyer enough to prove documents are privileged?”, “short_answer”: “Yes, the ALJ may accept the attorney’s representation as sufficient evidence.”, “detailed_answer”: “In this decision, the judge accepted the representation of the HOA’s counsel that the requested documents were privileged as sufficient to meet the preponderance of evidence standard.”, “alj_quote”: “Based upon counsel’s representation that the requested documents were privileged, the Tribunal finds that the preponderance of the evidence supports the requested documents were privileged.”, “legal_basis”: “Conclusion of Law 7”, “topic_tags”: [ “evidence”, “privilege”, “legal representation” ] } ] }






Blog Post – 25F-H029-REL


{ “case”: { “docket_no”: “25F-H029-REL”, “case_title”: “Debbie Westerman v. Bridgewood Nine 30 Homeowners Association”, “decision_date”: “2025-03-12”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA withhold legal bills and attorney communications from a records request?”, “short_answer”: “Yes, the HOA may withhold records related to privileged attorney-client communications.”, “detailed_answer”: “Under Arizona law, an HOA is permitted to withhold books and records from disclosure if they relate to privileged communication between the association and its attorney. In this case, legal bills were deemed privileged.”, “alj_quote”: “Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: 1. Privileged communication between an attorney for the association and the association.”, “legal_basis”: “A.R.S. § 33-1258(B)(1)”, “topic_tags”: [ “records request”, “attorney-client privilege”, “financial records” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination.”, “detailed_answer”: “Statute requires that the association must make financial and other records reasonably available for examination within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “procedural requirements” ] }, { “question”: “Does the 10-day deadline apply if the documents I requested are privileged?”, “short_answer”: “No, the 10-day requirement does not apply to documents that are properly withheld under the privilege exception.”, “detailed_answer”: “The ALJ determined that the statutory requirement to produce documents within ten days applies to all documents except those that are privileged. Therefore, failing to produce privileged documents within ten days is not a violation.”, “alj_quote”: “The production and ten-day requirements apply to all documents ‘[e]xcept as provided in subsection B.'”, “legal_basis”: “Conclusion of Law 8”, “topic_tags”: [ “records request”, “deadlines”, “privilege” ] }, { “question”: “Who has the burden of proof in an administrative hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) has the burden to prove the violation.”, “detailed_answer”: “The homeowner filing the petition must prove that the HOA violated the statutes or governing documents by a preponderance of the evidence.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”, “legal_basis”: “Conclusion of Law 4”, “topic_tags”: [ “legal standards”, “burden of proof”, “hearing procedures” ] }, { “question”: “Can the HOA charge me a fee just to look at the records?”, “short_answer”: “No, the HOA cannot charge a fee for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies, they are statistically prohibited from charging a member for the act of making the material available for review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “fees”, “homeowner rights” ] }, { “question”: “How much can the HOA charge if I ask for copies of the records?”, “short_answer”: “The HOA may charge up to fifteen cents per page.”, “detailed_answer”: “If a homeowner requests actual copies of the records rather than just examining them, the association is allowed to charge a specific maximum fee per page.”, “alj_quote”: “An association may charge a fee for making copies of not more than fifteen cents per page.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “fees”, “copies” ] }, { “question”: “Is a statement from the HOA’s lawyer enough to prove documents are privileged?”, “short_answer”: “Yes, the ALJ may accept the attorney’s representation as sufficient evidence.”, “detailed_answer”: “In this decision, the judge accepted the representation of the HOA’s counsel that the requested documents were privileged as sufficient to meet the preponderance of evidence standard.”, “alj_quote”: “Based upon counsel’s representation that the requested documents were privileged, the Tribunal finds that the preponderance of the evidence supports the requested documents were privileged.”, “legal_basis”: “Conclusion of Law 7”, “topic_tags”: [ “evidence”, “privilege”, “legal representation” ] } ] }


Case Participants

Petitioner Side

  • Debbie Westerman (petitioner)
    Bridgewood Nine 30 Homeowners Association
    Member and party; testified on her own behalf.

Respondent Side

  • Michael Brubaker (board president)
    Bridgewood Nine 30 Homeowners Association
    Also identified as Community Manager; testified as a witness.
  • Roy Shot (board member)
    Bridgewood Nine 30 Homeowners Association
  • Danny Hudro (secretary)
    Bridgewood Nine 30 Homeowners Association
    Prepared minutes of the January 9th meeting.
  • Mark Lines (HOA attorney)
    Shaw & Lines, LLC
    Represented the Respondent; also identified as Mark Blind in early transcript.

Neutral Parties

  • Samuel Fox (ALJ)
    OAH
    Administrative Law Judge for the matter,.
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate

R.L. Whitmer v. Hilton Casitas Council of Homeowners

Posted on by

Case Summary

Case ID 25F-H001-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-11-12
Administrative Law Judge Samuel Fox
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner R.L. Whitmer Counsel —
Respondent Hilton Casitas Council of Homeowners Counsel Emily H. Mann

Alleged Violations

A.R.S. § 33-1215(A)(1)

Outcome Summary

The Administrative Law Judge found the Respondent HOA in violation of A.R.S. § 33-1215(A)(1) for failing to contain the name of the association in the Declaration. The Petitioner was deemed the prevailing party and awarded the $500.00 filing fee, but no civil penalty was imposed.

Key Issues & Findings

Declaration requirements for naming the condominium and association.

Petitioner claimed the Declaration failed to comply with A.R.S. § 33-1215(A)(1) because it lacked the formal name of the association. Respondent argued the existing reference to the 'Council of Co-owners' was sufficient because case law established the current association was the successor entity. The Tribunal found the Declaration did not contain the name of the association as required.

Orders: Respondent shall pay Petitioner the filing fee of $500.00 within thirty (30) days and shall comply with A.R.S. § 33-1215(A)(1) going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1215(A)(1)
  • A.R.S. § 12-550
  • A.R.S. § 33-1202(15)
  • A.R.S. § 33-1219(A)
  • London v Carrick
  • Schaefer v Pro Keanti AZ2 LP
  • Eli v Cro County A

Analytics Highlights

Topics: HOA, Condominium Act, Declaration, Statute of Limitations
Additional Citations:

  • A.R.S. § 33-1215(A)(1)
  • A.R.S. § 12-550
  • A.R.S. § 33-1202(15)
  • A.R.S. § 33-1219(A)
  • A.R.S. § 32-2199
  • A.R.S. § 41-1092
  • London v Carrick
  • Schaefer v Pro Keanti AZ2 LP
  • Eli v Cro County A

Audio Overview

Decision Documents

25F-H001-REL Decision – 1235116.pdf

Uploaded 2026-01-23T18:12:40 (44.0 KB)

25F-H001-REL Decision – 1241814.pdf

Uploaded 2026-01-23T18:12:47 (115.8 KB)





Briefing Doc – 25F-H001-REL


Briefing on Administrative Hearing Case No. 25F-H001-REL

Executive Summary

This briefing document synthesizes the proceedings and outcome of the administrative hearing case R.L. Whitmer v. Hilton Casitas Council of Homeowners (No. 25F-H001-REL). The central issue was whether the Respondent Homeowners Association’s (HOA) governing Declaration complied with Arizona Revised Statutes (A.R.S.) § 33-1215(A)(1), which mandates that the Declaration contain both the name of the condominium (with the word “condominium”) and the specific name of the association.

In a decision issued on November 12, 2024, Administrative Law Judge (ALJ) Samuel Fox ruled in favor of the Petitioner, R.L. Whitmer. The ALJ found that while the Declaration’s associated plat satisfied the requirement for the condominium’s name, the Declaration failed to contain the association’s actual, current legal name, “Hilton Casitas Council of Homeowners.”

The Respondent HOA advanced three primary defenses, all of which were rejected by the tribunal:

1. Constructive Compliance: The HOA argued that the Declaration’s reference to its predecessor entity (“Council of Co-owners”), combined with numerous court rulings affirming the current HOA as its legal successor, constituted compliance. The ALJ dismissed this, stating the statute requires the actual name to be present and that “constructive compliance” is not sufficient.

2. Statute of Limitations: The HOA claimed the petition was barred by a four-year statute of limitations (A.R.S. § 12-550), as the Petitioner had notice of the Declaration’s contents since 2014. The ALJ ruled that this statute applies only to “actions” in a “court,” and that proceedings before the Office of Administrative Hearings (OAH), an executive branch agency, do not qualify.

3. Impossibility of Unilateral Action: The HOA contended that it could not be ordered to amend the Declaration because such an action requires a membership vote and is not unilaterally achievable. The ALJ found this was not a valid legal defense, as the procedural requirements for achieving statutory compliance do not excuse non-compliance.

The final order declared the Petitioner the prevailing party, ordered the Respondent to pay the Petitioner’s $500 filing fee, and mandated that the Respondent comply with A.R.S. § 33-1215(A)(1). No civil penalty was imposed.

Case Overview

• Case Number: 25F-H001-REL

• Forum: Office of Administrative Hearings (OAH), State of Arizona

• Petitioner: R.L. Whitmer

• Respondent: Hilton Casitas Council of Homeowners

• Presiding Judge: Administrative Law Judge Samuel Fox

• Respondent’s Counsel: Emily H. Mann

• Core Legal Issue: Whether the Respondent’s Declaration of Horizontal Property Regime for Hilton Casitas violates A.R.S. § 33-1215(A)(1), which states:

Procedural History

• Petition Filed: On or about June 27, 2024, R.L. Whitmer filed a petition with the Arizona Department of Real Estate alleging the violation.

• Motion to Dismiss: On October 1, 2024, the Respondent filed a motion for summary judgment (or to dismiss), which was denied by the OAH on October 18, 2024.

• Evidentiary Hearing: A hearing was held on October 25, 2024, though the hearing transcript is dated October 26, 2024.

• ALJ Decision Issued: The final Administrative Law Judge Decision was issued on November 12, 2024.

Analysis of Key Arguments and Rulings

The case centered on three distinct legal arguments presented by the Respondent HOA and the subsequent rulings by the ALJ.

1. Statutory Compliance of the Declaration

The fundamental dispute was whether the Declaration, as written, satisfied the plain language of A.R.S. § 33-1215(A)(1).

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The Declaration is non-compliant because the legal name “Hilton Casitas Council of Homeowners” is not present anywhere in the document.

The Declaration refers to the “Council of Co-owners,” an unincorporated association created in 1972. The current non-profit corporation, formed in 1994, is not named. The Petitioner argued, “It’s just not there.”

Respondent (HOA)

The Declaration is compliant when its constituent parts are read together with established case law.

1. Condominium Name: The plat, which is legally part of the Declaration per A.R.S. § 33-1219(A), contains the phrase “HILTON CASITAS A CONDOMINIUM DEVELOPMENT.”
2. Association Name: Section 1.4 of the Declaration defines “Council” as the “Council of Co-owners.” Multiple Arizona Court of Appeals decisions have held that the “Hilton Casitas Council of Homeowners” is the legal successor entity to the “Council of Co-owners.” Therefore, a reference to the old name legally constitutes a reference to the current name.

ALJ Ruling

Violation Established. The Declaration does not contain the name of the association as required.

The ALJ agreed with the Respondent that the plat satisfied the condominium name requirement. However, the judge rejected the “successor entity” argument for the association’s name, concluding: > “The statute requires ‘the name of the association,’ not merely a reference to it. Even if the current association was the entity with standing, its name was not present in the Declaration. Assuming that there is some purpose for the statutory requirement, a reader should be able to identify the association from the declaration. Accordingly, the Tribunal is not willing to accept constructive compliance.”

2. The Statute of Limitations Defense

The Respondent argued that even if a violation existed, the Petitioner’s claim was filed too late.

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The statute of limitations does not apply because the violation is a continuous act.

The Petitioner framed the non-compliant Declaration as a “cloud on the title,” a type of defect to which a statute of limitations is never a bar.

Respondent (HOA)

The claim is time-barred by the four-year default statute of limitations under A.R.S. § 12-550.

The Petitioner acquired his property in August 2014 and thus had constructive notice of the Declaration’s contents. The four-year period to file a claim expired in August 2018, making the 2024 petition six years too late.

ALJ Ruling

Defense Rejected. The statute of limitations does not apply to OAH proceedings.

The ALJ performed a statutory analysis, noting that A.R.S. § 12-550 applies to an “action” which is defined as “any matter or proceeding in a court.” Because the OAH is an agency of the executive branch and not a court, its proceedings are not “actions” under the statute. Therefore, the general statute of limitations is inapplicable.

3. The “Impossibility” of Unilateral Compliance

The Respondent argued that the relief sought by the Petitioner—an order to amend the Declaration—was not something the tribunal could grant because the HOA Board could not comply on its own.

Argument / Position

Supporting Evidence / Rationale

Petitioner (Whitmer)

The HOA has a clear path to compliance.

The Petitioner stated that the HOA simply needs to “call the election, amend the… or propose an amendment that cures this problem and ask the membership to approve it.” He offered to stipulate that he would not seek a contempt order if the HOA made a good-faith effort.

Respondent (HOA)

An order to amend would be inappropriate because the HOA cannot unilaterally amend the Declaration.

Amending the Declaration requires a vote of the membership (either 51% or 67%) and consent from an entity referred to as “the corporation.” If a vote failed, the HOA could not comply with the order, exposing it to further litigation from the Petitioner seeking to hold it in contempt.

ALJ Ruling

Defense Rejected. Procedural requirements for compliance do not constitute a legal defense against non-compliance.

The ALJ noted that it is ordinary for an HOA board or membership to have to vote to enact compliance with a statute. The ruling states: > “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.” The tribunal’s role is to determine compliance and order it where it is lacking.

Final Order

The Administrative Law Judge Decision concluded with the following orders:

1. Prevailing Party: The Petitioner, R.L. Whitmer, is deemed the prevailing party.

2. Filing Fee: The Respondent must pay the Petitioner the filing fee of $500.00 within thirty days of the order.

3. Compliance: The Respondent shall comply with A.R.S. § 33-1215(A)(1) going forward.

4. Civil Penalty: No civil penalty was found to be appropriate in the matter.

The decision is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days.






Study Guide – 25F-H001-REL


{ “case”: { “docket_no”: “25F-H001-REL”, “case_title”: “R.L. Whitmer v. Hilton Casitas Council of Homeowners”, “decision_date”: “2024-11-12”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?”, “short_answer”: “No. The general statute of limitations applies to court ‘actions,’ and administrative hearings are not considered court actions.”, “detailed_answer”: “The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as ‘actions’ by the legislature.”, “alj_quote”: “Accordingly, proceedings before OAH are not ‘actions’ as defined by the legislature, and the general statute of limitations does not apply.”, “legal_basis”: “A.R.S. § 12-550; A.R.S. § 1-215”, “topic_tags”: [ “statute of limitations”, “jurisdiction”, “filing deadlines” ] }, { “question”: “Must the HOA’s Declaration explicitly state the full legal name of the Association?”, “short_answer”: “Yes. The Declaration must contain the actual name of the association, not just a definition or reference like ‘The Council’.”, “detailed_answer”: “State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like ‘Council’ to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.”, “alj_quote”: “The statute requires ‘the name of the association,’ not merely a reference to it. The name of the association as stated in the defined term ‘Council’ is not the name of the association.”, “legal_basis”: “A.R.S. § 33-1215(A)(1)”, “topic_tags”: [ “CC&Rs”, “governing documents”, “HOA name” ] }, { “question”: “Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?”, “short_answer”: “No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.”, “detailed_answer”: “An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.”, “alj_quote”: “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.”, “legal_basis”: “Administrative Authority”, “topic_tags”: [ “amendments”, “voting”, “defenses” ] }, { “question”: “If I win my case against the HOA, will I be reimbursed for the filing fee?”, “short_answer”: “Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.”, “detailed_answer”: “When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Administrative Remedy”, “topic_tags”: [ “fees”, “remedies”, “costs” ] }, { “question”: “Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?”, “short_answer”: “No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.”, “detailed_answer”: “Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “fines”, “civil penalties”, “enforcement” ] }, { “question”: “What is the burden of proof for a homeowner filing a petition against their HOA?”, “short_answer”: “The homeowner must prove the violation by a ‘preponderance of the evidence’.”, “detailed_answer”: “The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is ‘more probably true than not.'”, “alj_quote”: “Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “evidence”, “burden of proof”, “legal standards” ] } ] }






Blog Post – 25F-H001-REL


{ “case”: { “docket_no”: “25F-H001-REL”, “case_title”: “R.L. Whitmer v. Hilton Casitas Council of Homeowners”, “decision_date”: “2024-11-12”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?”, “short_answer”: “No. The general statute of limitations applies to court ‘actions,’ and administrative hearings are not considered court actions.”, “detailed_answer”: “The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as ‘actions’ by the legislature.”, “alj_quote”: “Accordingly, proceedings before OAH are not ‘actions’ as defined by the legislature, and the general statute of limitations does not apply.”, “legal_basis”: “A.R.S. § 12-550; A.R.S. § 1-215”, “topic_tags”: [ “statute of limitations”, “jurisdiction”, “filing deadlines” ] }, { “question”: “Must the HOA’s Declaration explicitly state the full legal name of the Association?”, “short_answer”: “Yes. The Declaration must contain the actual name of the association, not just a definition or reference like ‘The Council’.”, “detailed_answer”: “State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like ‘Council’ to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.”, “alj_quote”: “The statute requires ‘the name of the association,’ not merely a reference to it. The name of the association as stated in the defined term ‘Council’ is not the name of the association.”, “legal_basis”: “A.R.S. § 33-1215(A)(1)”, “topic_tags”: [ “CC&Rs”, “governing documents”, “HOA name” ] }, { “question”: “Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?”, “short_answer”: “No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.”, “detailed_answer”: “An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.”, “alj_quote”: “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.”, “legal_basis”: “Administrative Authority”, “topic_tags”: [ “amendments”, “voting”, “defenses” ] }, { “question”: “If I win my case against the HOA, will I be reimbursed for the filing fee?”, “short_answer”: “Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.”, “detailed_answer”: “When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Administrative Remedy”, “topic_tags”: [ “fees”, “remedies”, “costs” ] }, { “question”: “Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?”, “short_answer”: “No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.”, “detailed_answer”: “Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “fines”, “civil penalties”, “enforcement” ] }, { “question”: “What is the burden of proof for a homeowner filing a petition against their HOA?”, “short_answer”: “The homeowner must prove the violation by a ‘preponderance of the evidence’.”, “detailed_answer”: “The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is ‘more probably true than not.'”, “alj_quote”: “Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “evidence”, “burden of proof”, “legal standards” ] } ] }


Case Participants

Petitioner Side

  • R.L. Whitmer (petitioner)
    fulcrumgroup.biz

Respondent Side

  • Emily H. Mann Phillips (HOA attorney)
    Phillips, Maceyko & Battock, PLLC
  • Robert Westbrook (HOA president)
    Hilton Casitas Council of Homeowners

Neutral Parties

  • Samuel Fox (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate (ADRE)

Susannah Sabnekar v. Four Peaks Vista Owners Association

Posted on by

Case Summary

Case ID 24F-H006-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-10-26
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susannah Sabnekar Counsel —
Respondent Four Peaks Vista Owners Association Counsel Maria McKee

Alleged Violations

A.R.S. §§ 33-1252 and 33-1217

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the statutes cited by the petitioner regarding conveyance of common elements (A.R.S. §§ 33-1252 and 33-1217) do not apply to the leasing of common elements, which was the action taken by the Respondent HOA.

Why this result: The statutes cited by the Petitioner apply to conveyances, but the disputed action was determined to be a lease, which is treated separately under Arizona's Condominium Act.

Key Issues & Findings

Whether the Board violated statute by conveying a portion of common elements without a vote from all homeowners.

Petitioner alleged the HOA violated A.R.S. §§ 33-1252 and 33-1217 by approving a lease agreement granting the Declarant (Four Peaks) the right to use a portion of the clubhouse as a management office, arguing this action constituted a conveyance requiring an 80% homeowner vote. The ALJ ruled that the statutes apply only to conveyances, not leases, and found no violation.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • 33-1252
  • 33-1217
  • 33-1242
  • 33-1225

Analytics Highlights

Topics: Condominium Act, Lease vs Conveyance, Common Elements, Declarant Rights, Motion to Dismiss
Additional Citations:

  • 33-1252
  • 33-1217
  • 33-1242
  • 33-1225
  • 33-1226

Video Overview

Audio Overview

Decision Documents

24F-H006-REL Decision – 1097274.pdf

Uploaded 2026-01-23T18:00:57 (52.7 KB)

24F-H006-REL Decision – 1099296.pdf

Uploaded 2026-01-23T18:01:00 (50.8 KB)

24F-H006-REL Decision – 1099320.pdf

Uploaded 2026-01-23T18:01:04 (48.2 KB)

24F-H006-REL Decision – 1106232.pdf

Uploaded 2026-01-23T18:01:09 (118.8 KB)

Questions

Question

Does leasing a common area count as 'conveying' it, requiring a supermajority vote?

Short Answer

No. Leasing and conveying are separate legal concepts in Arizona, and leasing does not trigger the voting requirements of a conveyance.

Detailed Answer

The ALJ determined that Arizona law distinguishes between leasing real property and conveying it. While a conveyance (transfer of title) of common elements often requires an 80% vote under A.R.S. § 33-1252, granting a lease does not. The Association has the specific statutory right to grant leases over common elements without meeting the stricter requirements for a conveyance.

Alj Quote

Plainly, Arizona law distinguishes between leasing real property and conveying it. These are two separate legal concepts. … The Administrative Law Judge concludes that A.R.S. §§ 33-1252 and A.R.S. 33-1217 do not apply to leases, but rather conveyances.

Legal Basis

A.R.S. § 33-1242(A)(9); A.R.S. § 33-1252

Topic Tags

  • common elements
  • leasing
  • voting requirements

Question

Can the HOA board authorize a lease of common elements without a vote of all homeowners?

Short Answer

Yes. The Board generally has the authority to grant leases, whereas conveying the property would require a homeowner vote.

Detailed Answer

The decision highlights that A.R.S. § 33-1242(A)(9) expressly gives the Association the right to lease common elements. This section does not reference the voting requirements found in A.R.S. § 33-1252, which applies only when the Association conveys or encumbers the property (like a mortgage).

Alj Quote

Notably, subsection (A)(9) expressly provides the Association the right to enter into the Lease, without any mention of A.R.S. § 33-1252, while the right to 'convey' Common Elements is subject to the requirements imposed in A.R.S. § 33-1252.

Legal Basis

A.R.S. § 33-1242(A)(9)

Topic Tags

  • board authority
  • leasing
  • common elements

Question

Is a Declarant allowed to use common elements for management offices?

Short Answer

Yes, a Declarant may maintain offices on common elements unless the Declaration specifically prohibits it.

Detailed Answer

The ALJ cited A.R.S. § 33-1225, which explicitly permits a declarant to maintain sales and management offices on common elements unless the community's declaration says otherwise or another law prohibits it.

Alj Quote

A declarant may maintain sales offices, management offices and models in units or on common elements in the condominium unless: 1. The declaration provides otherwise. 2. Such use is prohibited by another provision of law or local ordinances.

Legal Basis

A.R.S. § 33-1225

Topic Tags

  • declarant rights
  • common elements
  • offices

Question

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

Short Answer

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

Detailed Answer

The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard is 'preponderance of the evidence,' meaning they must show it is more probable than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. §§ 33-1252 and A.R.S. 33-1217 by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal procedure
  • burden of proof

Question

What qualifies as a 'conveyance' of HOA property?

Short Answer

A conveyance is generally interpreted as a total transfer of fee title, usually evidenced by a recorded deed.

Detailed Answer

The decision clarifies that a conveyance involves a permanent transfer of interest, such as through a deed, and must be recorded. A lease, which is for a set period and does not transfer title, does not qualify as a conveyance.

Alj Quote

The Legislature… made clear its intent that a conveyance is a total transfer of fee title. … Furthermore, once any such 'conveyance' occurs, it must be evidenced by the execution and recording of the document in the same manner as a deed.

Legal Basis

A.R.S. § 33-1252(A); A.R.S. § 33-1252(B)

Topic Tags

  • definitions
  • conveyance
  • property rights

Question

How are ambiguous restrictive covenants in CC&Rs interpreted?

Short Answer

If they are unambiguous, they are enforced according to the intent of the parties.

Detailed Answer

The ALJ noted that restrictive covenants must be viewed as a whole and interpreted based on their underlying purpose. If the text is clear (unambiguous), it is enforced to uphold the parties' intent.

Alj Quote

In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. 'Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.'

Legal Basis

Case Law (Powell v. Washburn)

Topic Tags

  • CC&Rs
  • interpretation
  • legal standards

Case

Docket No
24F-H006-REL
Case Title
Susannah Sabnekar vs. Four Peaks Vista Owners Association
Decision Date
2023-10-26
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Does leasing a common area count as 'conveying' it, requiring a supermajority vote?

Short Answer

No. Leasing and conveying are separate legal concepts in Arizona, and leasing does not trigger the voting requirements of a conveyance.

Detailed Answer

The ALJ determined that Arizona law distinguishes between leasing real property and conveying it. While a conveyance (transfer of title) of common elements often requires an 80% vote under A.R.S. § 33-1252, granting a lease does not. The Association has the specific statutory right to grant leases over common elements without meeting the stricter requirements for a conveyance.

Alj Quote

Plainly, Arizona law distinguishes between leasing real property and conveying it. These are two separate legal concepts. … The Administrative Law Judge concludes that A.R.S. §§ 33-1252 and A.R.S. 33-1217 do not apply to leases, but rather conveyances.

Legal Basis

A.R.S. § 33-1242(A)(9); A.R.S. § 33-1252

Topic Tags

  • common elements
  • leasing
  • voting requirements

Question

Can the HOA board authorize a lease of common elements without a vote of all homeowners?

Short Answer

Yes. The Board generally has the authority to grant leases, whereas conveying the property would require a homeowner vote.

Detailed Answer

The decision highlights that A.R.S. § 33-1242(A)(9) expressly gives the Association the right to lease common elements. This section does not reference the voting requirements found in A.R.S. § 33-1252, which applies only when the Association conveys or encumbers the property (like a mortgage).

Alj Quote

Notably, subsection (A)(9) expressly provides the Association the right to enter into the Lease, without any mention of A.R.S. § 33-1252, while the right to 'convey' Common Elements is subject to the requirements imposed in A.R.S. § 33-1252.

Legal Basis

A.R.S. § 33-1242(A)(9)

Topic Tags

  • board authority
  • leasing
  • common elements

Question

Is a Declarant allowed to use common elements for management offices?

Short Answer

Yes, a Declarant may maintain offices on common elements unless the Declaration specifically prohibits it.

Detailed Answer

The ALJ cited A.R.S. § 33-1225, which explicitly permits a declarant to maintain sales and management offices on common elements unless the community's declaration says otherwise or another law prohibits it.

Alj Quote

A declarant may maintain sales offices, management offices and models in units or on common elements in the condominium unless: 1. The declaration provides otherwise. 2. Such use is prohibited by another provision of law or local ordinances.

Legal Basis

A.R.S. § 33-1225

Topic Tags

  • declarant rights
  • common elements
  • offices

Question

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

Short Answer

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

Detailed Answer

The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard is 'preponderance of the evidence,' meaning they must show it is more probable than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. §§ 33-1252 and A.R.S. 33-1217 by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal procedure
  • burden of proof

Question

What qualifies as a 'conveyance' of HOA property?

Short Answer

A conveyance is generally interpreted as a total transfer of fee title, usually evidenced by a recorded deed.

Detailed Answer

The decision clarifies that a conveyance involves a permanent transfer of interest, such as through a deed, and must be recorded. A lease, which is for a set period and does not transfer title, does not qualify as a conveyance.

Alj Quote

The Legislature… made clear its intent that a conveyance is a total transfer of fee title. … Furthermore, once any such 'conveyance' occurs, it must be evidenced by the execution and recording of the document in the same manner as a deed.

Legal Basis

A.R.S. § 33-1252(A); A.R.S. § 33-1252(B)

Topic Tags

  • definitions
  • conveyance
  • property rights

Question

How are ambiguous restrictive covenants in CC&Rs interpreted?

Short Answer

If they are unambiguous, they are enforced according to the intent of the parties.

Detailed Answer

The ALJ noted that restrictive covenants must be viewed as a whole and interpreted based on their underlying purpose. If the text is clear (unambiguous), it is enforced to uphold the parties' intent.

Alj Quote

In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. 'Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.'

Legal Basis

Case Law (Powell v. Washburn)

Topic Tags

  • CC&Rs
  • interpretation
  • legal standards

Case

Docket No
24F-H006-REL
Case Title
Susannah Sabnekar vs. Four Peaks Vista Owners Association
Decision Date
2023-10-26
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Susannah Sabnekar (petitioner)
    Homeowner
  • Amy Watier (witness)
    Homeowner, current board member, and previous board member

Respondent Side

  • Maria McKee (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen, PLC
    Council for Respondent
  • Chad P. Miesen (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen, PLC
    Council for Respondent
  • Charlie Markle (HOA attorney)
    Council for the Association
  • Kathy Gower (property manager)
    Four Peaks Vista Owners Association
    Community manager
  • Shelley Kobat (board member)
    Four Peaks Vista Owners Association
    Associate board president

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list

Donald F. Molley v. Verde Meadows Crest Homeowners Association

Posted on by

Case Summary

Case ID 23F-H007-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-01-20
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Donald F. Molley Counsel —
Respondent Verde Meadows Crest Homeowners Association Counsel Sean K. Moynihan, Esq.

Alleged Violations

Declaration Section 12.B
ARIZ. REV. STAT. § 33-1805

Outcome Summary

Petitioner's entire petition was denied because the Department of Real Estate/OAH lacked statutory jurisdiction over the Association. The Association was found not to meet the statutory definitions of a condominium association or a planned community association because it does not own common areas or real property.

Why this result: OAH determined it lacked jurisdiction pursuant to ARIZ. REV. STAT. §§ 32-2199 et seq., because the Respondent Association is neither a condominium association nor a planned community association (ARIZ. REV. STAT. §§ 33-1202(10) and 33-1802(4)).

Key Issues & Findings

Alleged use of Association funds for maintenance on private property.

Petitioner alleged that the Association used HOA funds for maintenance on private property in violation of Section 12.B of the CC&Rs.

Orders: Petition denied due to lack of OAH jurisdiction.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1202(10)
  • ARIZ. REV. STAT. § 33-1802(4)
  • Declaration Section 12.B

Alleged failure to provide requested financial documents and meeting minutes.

Petitioner requested monthly bank statements and financial reports for 2022, and financial books for 2021, which Respondent allegedly failed to provide in violation of ARS § 33-1805.

Orders: Petition denied due to lack of OAH jurisdiction.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 33-1202(10)
  • ARIZ. REV. STAT. § 33-1802(4)

Analytics Highlights

Topics: jurisdiction, planned_community_act, condominium_act, denial, document_request, maintenance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 33-1202(10)
  • ARIZ. REV. STAT. § 33-1802(4)
  • Declaration Section 12.B

Video Overview

Audio Overview

https://open.spotify.com/episode/34nyQuUBJcHHi8GYbfWjqN

Decision Documents

23F-H007-REL Decision – 1006960.pdf

Uploaded 2026-01-23T17:50:47 (46.0 KB)

23F-H007-REL Decision – 1008524.pdf

Uploaded 2026-01-23T17:50:49 (61.8 KB)

23F-H007-REL Decision – 1008675.pdf

Uploaded 2026-01-23T17:50:52 (8.7 KB)

23F-H007-REL Decision – 1010876.pdf

Uploaded 2026-01-23T17:50:55 (51.8 KB)

23F-H007-REL Decision – 1020898.pdf

Uploaded 2026-01-23T17:50:58 (44.8 KB)

23F-H007-REL Decision – 1027131.pdf

Uploaded 2026-01-23T17:51:02 (146.3 KB)

Questions

Question

If my HOA doesn't own any common areas or real property, can I still file a dispute with the Department of Real Estate?

Short Answer

No. If the association does not own real property, it may not meet the statutory definition of a 'planned community,' meaning the Department lacks jurisdiction to hear the dispute.

Detailed Answer

The ALJ determined that because the Association did not own any real property or common areas, it did not qualify as a 'planned community' under Arizona statutes. Consequently, the Department of Real Estate had no authority to enforce the Planned Communities Act against it.

Alj Quote

The record also reflects that the Association is also not a planned community association because it does not own any real property. As a result, neither the Condominium Act nor the Planned Communities Act governs the Association and neither Act can be enforced against it.

Legal Basis

A.R.S. § 33-1802(4); A.R.S. § 32-2199 et seq.

Topic Tags

  • jurisdiction
  • common areas
  • planned community definition

Question

What evidence do I need to provide if I claim the HOA is spending money on maintenance in violation of the CC&Rs?

Short Answer

You must provide specific details such as the exact amounts spent, who performed the work, the specific locations (lots), and the dates/duration of the work.

Detailed Answer

The ALJ noted that the homeowner failed to support his claim because he could not provide specific facts regarding the alleged improper expenditures. General testimony without specific data (amounts, dates, locations) is insufficient.

Alj Quote

Petitioner, however, could not identify the amount Respondent allegedly spent on said landscaping, by whom the maintenance was performed, on which lots the maintenance was performed, or when and for what duration the alleged maintenance took place.

Legal Basis

Burden of Proof

Topic Tags

  • evidence
  • maintenance
  • misuse of funds

Question

Is a verbal request enough to prove the HOA failed to provide financial documents?

Short Answer

Likely not. To succeed in a hearing, you must be able to prove the specific date of the request and the identity of the person to whom the request was made.

Detailed Answer

The ALJ found the homeowner's testimony insufficient because he claimed to have made verbal requests but could not recall when they happened or who he asked.

Alj Quote

Petitioner testified that he verbally requested 'financials' and 'meeting minutes' from Respondent, but could not provide the date(s) of the request(s) and/or name the person(s) to whom the request(s) were made.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • evidence
  • financials

Question

Are the CC&Rs considered a binding contract?

Short Answer

Yes. When a homeowner buys a property within the development, they agree to be bound by the terms of the Declaration, forming an enforceable contract.

Detailed Answer

The decision affirms that the Declaration acts as a contract between the Association and the property owner upon purchase.

Alj Quote

Thus, the Declaration forms an enforceable contract between the Association and each property owner.

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • contract
  • enforceability

Question

What is the legal definition of a 'condominium' in Arizona regarding HOA disputes?

Short Answer

Real estate is only a condominium if the unit owners are vested with undivided interests in the common elements.

Detailed Answer

The ALJ clarified that if owners do not have undivided interests in common elements, the development is not a condominium under the law.

Alj Quote

Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.

Legal Basis

A.R.S. § 33-1202(10)

Topic Tags

  • condominium definition
  • common elements

Question

Can the HOA be excused from providing financial records if a former board member failed to hand them over?

Short Answer

Potentially yes. The ALJ noted testimony that the HOA could not provide certain records because the Petitioner (a former Treasurer) had failed to return them after leaving the board.

Detailed Answer

While the case was decided on jurisdiction, the decision recorded the HOA's defense that the 2022 financial statement was incomplete because the former Treasurer (the Petitioner) did not remit the necessary documentation.

Alj Quote

Ms. Wickenheiser testified that Respondent was unable to comply with Petitioner’s request for the Association’s 2022 financial statement… in large part, because Petitioner had served as the Association’s Treasurer for that fiscal year and had failed to remit the Association’s financial documentation

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records
  • board member duties
  • treasurer

Case

Docket No
23F-H007-REL
Case Title
Donald F. Molley v. Verde Meadows Crest Homeowners Association
Decision Date
2023-01-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA doesn't own any common areas or real property, can I still file a dispute with the Department of Real Estate?

Short Answer

No. If the association does not own real property, it may not meet the statutory definition of a 'planned community,' meaning the Department lacks jurisdiction to hear the dispute.

Detailed Answer

The ALJ determined that because the Association did not own any real property or common areas, it did not qualify as a 'planned community' under Arizona statutes. Consequently, the Department of Real Estate had no authority to enforce the Planned Communities Act against it.

Alj Quote

The record also reflects that the Association is also not a planned community association because it does not own any real property. As a result, neither the Condominium Act nor the Planned Communities Act governs the Association and neither Act can be enforced against it.

Legal Basis

A.R.S. § 33-1802(4); A.R.S. § 32-2199 et seq.

Topic Tags

  • jurisdiction
  • common areas
  • planned community definition

Question

What evidence do I need to provide if I claim the HOA is spending money on maintenance in violation of the CC&Rs?

Short Answer

You must provide specific details such as the exact amounts spent, who performed the work, the specific locations (lots), and the dates/duration of the work.

Detailed Answer

The ALJ noted that the homeowner failed to support his claim because he could not provide specific facts regarding the alleged improper expenditures. General testimony without specific data (amounts, dates, locations) is insufficient.

Alj Quote

Petitioner, however, could not identify the amount Respondent allegedly spent on said landscaping, by whom the maintenance was performed, on which lots the maintenance was performed, or when and for what duration the alleged maintenance took place.

Legal Basis

Burden of Proof

Topic Tags

  • evidence
  • maintenance
  • misuse of funds

Question

Is a verbal request enough to prove the HOA failed to provide financial documents?

Short Answer

Likely not. To succeed in a hearing, you must be able to prove the specific date of the request and the identity of the person to whom the request was made.

Detailed Answer

The ALJ found the homeowner's testimony insufficient because he claimed to have made verbal requests but could not recall when they happened or who he asked.

Alj Quote

Petitioner testified that he verbally requested 'financials' and 'meeting minutes' from Respondent, but could not provide the date(s) of the request(s) and/or name the person(s) to whom the request(s) were made.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • evidence
  • financials

Question

Are the CC&Rs considered a binding contract?

Short Answer

Yes. When a homeowner buys a property within the development, they agree to be bound by the terms of the Declaration, forming an enforceable contract.

Detailed Answer

The decision affirms that the Declaration acts as a contract between the Association and the property owner upon purchase.

Alj Quote

Thus, the Declaration forms an enforceable contract between the Association and each property owner.

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • contract
  • enforceability

Question

What is the legal definition of a 'condominium' in Arizona regarding HOA disputes?

Short Answer

Real estate is only a condominium if the unit owners are vested with undivided interests in the common elements.

Detailed Answer

The ALJ clarified that if owners do not have undivided interests in common elements, the development is not a condominium under the law.

Alj Quote

Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.

Legal Basis

A.R.S. § 33-1202(10)

Topic Tags

  • condominium definition
  • common elements

Question

Can the HOA be excused from providing financial records if a former board member failed to hand them over?

Short Answer

Potentially yes. The ALJ noted testimony that the HOA could not provide certain records because the Petitioner (a former Treasurer) had failed to return them after leaving the board.

Detailed Answer

While the case was decided on jurisdiction, the decision recorded the HOA's defense that the 2022 financial statement was incomplete because the former Treasurer (the Petitioner) did not remit the necessary documentation.

Alj Quote

Ms. Wickenheiser testified that Respondent was unable to comply with Petitioner’s request for the Association’s 2022 financial statement… in large part, because Petitioner had served as the Association’s Treasurer for that fiscal year and had failed to remit the Association’s financial documentation

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records
  • board member duties
  • treasurer

Case

Docket No
23F-H007-REL
Case Title
Donald F. Molley v. Verde Meadows Crest Homeowners Association
Decision Date
2023-01-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Donald F. Molley (petitioner)
    Appeared on his own behalf; also referred to as Donald Molley or Mr. Molly; previously served as Association board member and treasurer

Respondent Side

  • Kari Wickenheiser (board president)
    Verde Meadows Crest Homeowners Association
    Testified on behalf of Respondent; also referred to as Miss Wizer/Wenheiser
  • Sean K. Moynihan (HOA attorney)
    Smith & Wamsley, PLLC
    Counsel for Respondent
  • Sue Antonio (board member)
    Verde Meadows Crest Homeowners Association
    Former President, Treasurer, and Secretary of the HOA, mentioned in testimony

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (OAH staff)
    Office of Administrative Hearings
    Transmitted documents
  • Miranda Alvarez (legal secretary)
    Office of Administrative Hearings
    Transmitted documents
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal

Deborah Masear v. Paradise Park Condominiums Phase II Homeowners

Posted on by

Case Summary

Case ID 22F-H2222057-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-05
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah Mesear Counsel —
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello, Esq.

Alleged Violations

A.R.S. § 33-1243(J)

Outcome Summary

The petition filed by the homeowner against the HOA was dismissed because the homeowner failed to prove the HOA violated A.R.S. § 33-1243(J) regarding financial reporting.

Why this result: The Petitioner failed to establish that the Association violated the applicable statute by a preponderance of the evidence, resulting in the dismissal of the petition.

Key Issues & Findings

Violation of HOA statutory duty to provide annual financial reports (audit, review, or compilation)

Petitioner alleged the HOA failed to share an annual audit/compilation for 2017-2021. The ALJ found the HOA provided financial compilations for 2017-2020 after the petition was filed. The claim regarding 2021 was found to be premature because the financial compilation was not yet due when the petition was filed on May 29, 2022.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1243(J)
  • A.R.S. § 33-1810

Analytics Highlights

Topics: Condominium Act, Financial Records, Compilation, Statutory Compliance, HOA Management
Additional Citations:

  • A.R.S. § 33-1243(J)
  • A.R.S. § 33-1810
  • A.R.S. § 32-2199(1)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222057-REL Decision – 1003891.pdf

Uploaded 2026-01-23T17:48:33 (95.1 KB)

22F-H2222057-REL Decision – 988206.pdf

Uploaded 2026-01-23T17:48:37 (57.1 KB)

22F-H2222057-REL Decision – 989133.pdf

Uploaded 2026-01-23T17:48:39 (50.1 KB)

22F-H2222057-REL Decision – 994978.pdf

Uploaded 2026-01-23T17:48:42 (50.8 KB)

Questions

Question

Is my condo HOA legally required to perform a full financial audit every year?

Short Answer

Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.

Detailed Answer

Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.

Alj Quote

Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Financial Reports
  • Audits
  • HOA Obligations

Question

What is the deadline for the HOA to complete the annual financial report?

Short Answer

The report must be completed no later than 180 days after the end of the fiscal year.

Detailed Answer

The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Deadlines
  • Financial Reports
  • Procedural Requirements

Question

Once the financial report is finished, how soon must the HOA provide it to me?

Short Answer

The HOA must make it available within 30 days of its completion upon request.

Detailed Answer

After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.

Alj Quote

and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Homeowner Rights
  • Transparency
  • Financial Reports

Question

Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?

Short Answer

No, a complaint filed before the deadline is considered premature (not ripe).

Detailed Answer

If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.

Alj Quote

Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.

Legal Basis

Ripeness Doctrine

Topic Tags

  • Legal Procedures
  • Filing Disputes
  • Deadlines

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Hearing Procedures

Question

What standard of proof is used in these administrative hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention more probably true than not.

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

Evidentiary Standard

Topic Tags

  • Legal Standards
  • Evidence

Question

If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?

Short Answer

No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.

Detailed Answer

While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.

Alj Quote

A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Jurisdiction
  • Statutes
  • Condominiums

Case

Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Is my condo HOA legally required to perform a full financial audit every year?

Short Answer

Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.

Detailed Answer

Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.

Alj Quote

Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Financial Reports
  • Audits
  • HOA Obligations

Question

What is the deadline for the HOA to complete the annual financial report?

Short Answer

The report must be completed no later than 180 days after the end of the fiscal year.

Detailed Answer

The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Deadlines
  • Financial Reports
  • Procedural Requirements

Question

Once the financial report is finished, how soon must the HOA provide it to me?

Short Answer

The HOA must make it available within 30 days of its completion upon request.

Detailed Answer

After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.

Alj Quote

and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Homeowner Rights
  • Transparency
  • Financial Reports

Question

Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?

Short Answer

No, a complaint filed before the deadline is considered premature (not ripe).

Detailed Answer

If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.

Alj Quote

Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.

Legal Basis

Ripeness Doctrine

Topic Tags

  • Legal Procedures
  • Filing Disputes
  • Deadlines

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Hearing Procedures

Question

What standard of proof is used in these administrative hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention more probably true than not.

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

Evidentiary Standard

Topic Tags

  • Legal Standards
  • Evidence

Question

If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?

Short Answer

No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.

Detailed Answer

While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.

Alj Quote

A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Jurisdiction
  • Statutes
  • Condominiums

Case

Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Deborah Mesear (petitioner, witness)
    Also appears as Deborah Masear and Deborah Mesier in the sources.

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Holmgren Law Group
    Also appears as Ashley Moscarello, Esq. and Ashley Carillo.
  • Carl Westlund (property manager, witness)
    The Management Trust
    Community manager for Paradise Park Condominiums Phase II Homeowners Association.
  • Mark A. Holmgren (HOA attorney)
    Goodman Holmgren Law Group

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).

Other Participants

  • Miranda Alvarez (legal secretary)
    Signed transmission notice.
  • c. serrano (legal secretary)
    Signed transmission notice.

Roberta J Stevenson-McDemott v. Four Palms Homeowners

Posted on by

Case Summary

Case ID 22F-H2222033-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-07-08
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Roberta J Stevenson-McDermott Counsel —
Respondent Four Palms Homeowners Counsel Araceli Rodriguez

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The petition was denied because the Petitioner failed to meet her burden of proving a violation of A.R.S. § 33-1258, as she had not made a proper written request for the documents since 2019, as required by the statute.

Why this result: Petitioner failed to make a request for records in writing as required by A.R.S. § 33-1258.

Key Issues & Findings

Access to Association Financial and Other Records

Petitioner alleged the HOA violated A.R.S. § 33-1258 by denying her access and copies of various financial records dating back to 2016. The HOA argued they provided financial summaries and offered in-person review, noting Petitioner failed to make a proper written request.

Orders: Petition denied. Respondent is directed to comply with A.R.S. § 33-1258 going forward upon a proper written request from Petitioner.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1248
  • A.A.C. R2-19-119
  • A.R.S. § 32-2199 et seq.

Analytics Highlights

Topics: Financial Records, Written Request Requirement, HOA Governance, Condominium Act
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1248
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

22F-H2222033-REL Decision – 967350.pdf

Uploaded 2026-01-23T17:45:19 (46.5 KB)

22F-H2222033-REL Decision – 982397.pdf

Uploaded 2026-01-23T17:45:21 (99.3 KB)

Questions

Question

Must I submit my request for HOA financial records in writing?

Short Answer

Yes, the statute explicitly requires that requests for examination of records be made in writing.

Detailed Answer

The Administrative Law Judge ruled against the homeowner partly because she failed to provide evidence of a written request. The decision emphasizes that the governing statute requires requests for examination to be in writing to be valid and enforceable.

Alj Quote

A.R.S. § 33-1258 requires that association documents, with certain identified exceptions, 'shall be made reasonably available for examination by any member…in writing'.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • records request
  • procedural requirements

Question

Do I have the right to look through all HOA documents whenever I want?

Short Answer

No, homeowners do not have an unlimited right to peruse all association documents at will.

Detailed Answer

While the law requires records to be reasonably available, it does not grant an unfettered right to browse all documents. Specific procedures must be followed, and certain documents may be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • homeowner rights
  • limitations

Question

What happens if I cannot prove I sent a written request for records?

Short Answer

Your petition may be denied for failing to meet the burden of proof.

Detailed Answer

In this case, the homeowner claimed she was denied access, but the judge found she failed to establish a denial because the preponderance of the evidence showed she had not made the required written request.

Alj Quote

Further, the preponderance of the evidence showed that she has failed to make any such request in writing as the statute requires. … Therefore, at this time, Petitioner failed to establish that she was denied access to the financial records.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • evidence

Question

Can the HOA charge me for copies of records?

Short Answer

Yes, the HOA is allowed to charge a fee for copies.

Detailed Answer

The statute permits the association to charge a fee per page for making copies of requested records, provided the request is for the purchase of copies.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as personal or privileged information, may be withheld.

Detailed Answer

The decision outlines statutory exceptions where books and records can be withheld, including privileged attorney communications, pending litigation, and personal financial or health records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: … Personal, health or financial records of an individual member of the association…

Legal Basis

A.R.S. § 33-1258(B)

Topic Tags

  • privacy
  • exemptions

Question

How long does the HOA have to fulfill my request for records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute mandates a ten-business-day timeframe for the association to comply with a written request for either examining records or purchasing copies.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies … the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • timelines
  • deadlines

Question

Who is responsible for proving that the HOA violated the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, it is the petitioner's responsibility to prove by a preponderance of the evidence that the HOA violated the specific statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Case

Docket No
22F-H2222033-REL
Case Title
Roberta J Stevenson-McDermott vs. Four Palms Homeowners
Decision Date
2022-07-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Must I submit my request for HOA financial records in writing?

Short Answer

Yes, the statute explicitly requires that requests for examination of records be made in writing.

Detailed Answer

The Administrative Law Judge ruled against the homeowner partly because she failed to provide evidence of a written request. The decision emphasizes that the governing statute requires requests for examination to be in writing to be valid and enforceable.

Alj Quote

A.R.S. § 33-1258 requires that association documents, with certain identified exceptions, 'shall be made reasonably available for examination by any member…in writing'.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • records request
  • procedural requirements

Question

Do I have the right to look through all HOA documents whenever I want?

Short Answer

No, homeowners do not have an unlimited right to peruse all association documents at will.

Detailed Answer

While the law requires records to be reasonably available, it does not grant an unfettered right to browse all documents. Specific procedures must be followed, and certain documents may be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • homeowner rights
  • limitations

Question

What happens if I cannot prove I sent a written request for records?

Short Answer

Your petition may be denied for failing to meet the burden of proof.

Detailed Answer

In this case, the homeowner claimed she was denied access, but the judge found she failed to establish a denial because the preponderance of the evidence showed she had not made the required written request.

Alj Quote

Further, the preponderance of the evidence showed that she has failed to make any such request in writing as the statute requires. … Therefore, at this time, Petitioner failed to establish that she was denied access to the financial records.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • evidence

Question

Can the HOA charge me for copies of records?

Short Answer

Yes, the HOA is allowed to charge a fee for copies.

Detailed Answer

The statute permits the association to charge a fee per page for making copies of requested records, provided the request is for the purchase of copies.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • fees
  • copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as personal or privileged information, may be withheld.

Detailed Answer

The decision outlines statutory exceptions where books and records can be withheld, including privileged attorney communications, pending litigation, and personal financial or health records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: … Personal, health or financial records of an individual member of the association…

Legal Basis

A.R.S. § 33-1258(B)

Topic Tags

  • privacy
  • exemptions

Question

How long does the HOA have to fulfill my request for records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute mandates a ten-business-day timeframe for the association to comply with a written request for either examining records or purchasing copies.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies … the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

  • timelines
  • deadlines

Question

Who is responsible for proving that the HOA violated the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, it is the petitioner's responsibility to prove by a preponderance of the evidence that the HOA violated the specific statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • burden of proof
  • legal standards

Case

Docket No
22F-H2222033-REL
Case Title
Roberta J Stevenson-McDermott vs. Four Palms Homeowners
Decision Date
2022-07-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Roberta J Stevenson-McDermott (petitioner)
  • Sean Embry (owner/witness)
    Provided letter of support (not admitted as evidence)
  • Lenor Embry (owner/witness)
    Provided letter of support (not admitted as evidence)
  • Philip Smith (owner/witness)
    Provided letter of support (not admitted as evidence)
  • c. serrano (clerical staff)
    Transmitted document for Petitioner

Respondent Side

  • Araceli Rodriguez (HOA attorney)
    Yuma Law Firm (inferred)
    Represented Four Palms Homeowners Association
  • Faye Burson (board member)
    Four Palms Homeowners HOA
    Vice President and witness (also listed as FA Buren)
  • Mario Salinas (board member)
    Four Palms Homeowners HOA
    Treasurer and witness (also listed as Mario Selenus)
  • Gilbert Sto (board member)
    Four Palms Homeowners HOA
    President
  • Lesie Blessing (board member)
    Four Palms Homeowners HOA
    Vice President (2016 board) and Secretary (current board)
  • Gail Hall (board member)
    Four Palms Homeowners HOA
    Fifth member
  • Linia Ohn (former board member)
    Four Palms Homeowners HOA
    Received payments in 2018 (also listed as Lenia own)
  • Scott Hoser (former board member)
    Four Palms Homeowners HOA
    Fifth member (2016 board)

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Louis Dettorre (ADRE Commissioner)
    ADRE
  • Miranda Alvarez (Legal Secretary)
    ADRE
    Transmitted decision

Other Participants

  • Lisa Bon (former board member/owner)
    Secretary (2016 board); provided letter of support to Petitioner

John Sellers vs. Rancho Madera Condominium Association

Posted on by

Case Summary

Case ID 17F-H1716021-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-03-30
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Lydia Peirce Linsmeier, Esq.

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The Administrative Law Judge denied the Petitioner's request, finding that the Respondent HOA complied with A.R.S. § 33-1258 by providing documents related to expenditures, and was not required to provide bank signature cards or read-only online access credentials.

Why this result: Petitioner failed to meet the burden of proof that Respondent violated A.R.S. § 33-1258 because the statute does not require the association to provide records (like signature cards or usernames/passwords) which are not financial records showing actual expenditures and are often held by the financial institution.

Key Issues & Findings

Association financial and other records; applicability

Petitioner, a member of the HOA, alleged the HOA violated A.R.S. § 33-1258 by refusing access to bank account signature cards and read-only user names/passwords. The ALJ found that these items were not 'financial and other records' that the association was statutorily required to provide, as they related to mechanisms for disbursement rather than actual expenditure, and would be maintained by the bank, not the association.

Orders: Petitioner's petition was denied and dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 41-2198.01

Analytics Highlights

Topics: Records Request, Condominium Act, Access to Records, Financial Records, Bank Records
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.08

Video Overview

Audio Overview

Decision Documents

17F-H1716021-REL Decision – 549566.pdf

Uploaded 2026-01-23T17:18:59 (60.9 KB)

17F-H1716021-REL Decision – 554490.pdf

Uploaded 2026-01-23T17:19:02 (88.6 KB)

17F-H1716021-REL Decision – 558591.pdf

Uploaded 2026-01-23T17:19:05 (757.3 KB)





Briefing Doc – 17F-H1716021-REL


Administrative Hearing Briefing: Sellers v. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the proceedings and outcome of the administrative case John Sellers v. Rancho Madera Condominium Association. The core of the dispute was Petitioner John Sellers’s allegation that the Respondent, Rancho Madera Condominium Association, violated Arizona Revised Statute (A.R.S.) § 33-1258 by refusing to produce specific records: bank account signature cards and read-only online banking credentials for the association’s account with Mutual of Omaha.

The Administrative Law Judge (ALJ) ultimately recommended the petition be denied, a decision that was formally adopted by the Commissioner of the Arizona Department of Real Estate. The ruling hinged on a narrow interpretation of the statute. The ALJ concluded that the requested items were not “financial and other records of the association” as required by law. Key findings supporting this conclusion were:

• Custody: The signature cards, if they exist, are records held by the bank (Mutual of Omaha), not the association.

• Nature of Request: Online user names and passwords constitute “information,” not a “document” or “record” in the statutory sense.

• Sufficient Disclosure: The association had already provided a comprehensive set of financial documents (bank statements, contracts, resolutions, etc.) sufficient for a member to ascertain whether the association was prudently managing its funds, thereby satisfying the plain-meaning purpose of A.R.S. § 33-1258.

The petitioner’s arguments that such records must exist under federal banking regulations and that electronic access is superior to paper records were deemed policy arguments to be addressed to the legislature, not grounds for finding a statutory violation.

Case Overview

Case Name

John Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent

Case Number

No. 17F-H1716021-REL (also listed as DOCKET NO. 17F-H1716021-REL and CASE NO. HO 17-16/021)

Petitioner

John Sellers (Appeared on his own behalf)

Respondent

Rancho Madera Condominium Association

Respondent’s Counsel

Lydia Peirce Linsmeier, Esq., Carpenter, Hazlewood, Delgado & Bolen, PLC

Adjudicating Body

Arizona Office of Administrative Hearings

Reviewing Body

Arizona Department of Real Estate

Administrative Law Judge

Diane Mihalsky

Commissioner

Judy Lowe, Arizona Department of Real Estate

Core Allegation and Legal Framework

Petitioner’s Claim

On or about December 20, 2016, John Sellers, a condominium owner and member of the Rancho Madera Condominium Association, filed a petition with the Arizona Department of Real Estate. The petition alleged that the association had violated A.R.S. § 33-1258 by refusing to provide two specific items related to its bank account at Mutual of Omaha:

1. Bank account signature cards.

2. Read-only user names and passwords for online access to the account.

Sellers argued that these documents must exist, citing federal banking statutes and regulations intended to combat terrorism.

Governing Statute: A.R.S. § 33-1258

The case revolved around the interpretation of A.R.S. § 33-1258, “Association financial and other records.” The key provisions of this statute state:

• A. Right to Examine: “Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member…”

• Timeline: An association has ten business days to fulfill a request for examination and ten business days to provide copies upon request.

• Fees: An association may charge a fee of not more than fifteen cents per page for copies.

• B. Withholdable Records: The statute allows an association to withhold records related to:

1. Privileged attorney-client communication.

2. Pending litigation.

3. Records of board meetings not required to be open to all members.

4. Personal, health, or financial records of individual members or employees.

5. Records related to job performance or complaints against employees.

• C. Legal Prohibitions: An association is not required to disclose records if doing so would violate state or federal law.

The Uniform Condominium Act, of which this statute is a part, does not provide a more specific definition of “financial and other records.”

Factual Findings and Evidence Presented

Records Provided by the Association

Prior to the hearing, the Respondent had already provided the Petitioner with a substantial volume of financial records. Emails attached to the initial petition indicated that the following documents were furnished:

• All bank statements

• Account opening documentation

• Forms for members’ direct debit authorizations

• The Board’s resolution authorizing the opening of the bank account

• Agreements between the property management company, Trestle Management Group, and Mutual of Omaha regarding fees, indemnities, and netting

• The association’s insurance certificate

• The association’s management contract with Trestle Management Group

Witness Testimony

A hearing was held on March 7, 2017, where testimony was presented by both parties.

• Petitioner’s Testimony: John Sellers testified on his own behalf and submitted ten exhibits.

• Respondent’s Witnesses:

◦ Marc Vasquez (Vice President of Trestle Management Group): Testified that all signature cards for the association’s bank accounts were held by the bank at which the accounts were opened. He stated that Mutual of Omaha was the custodian of those cards.

◦ Alan Simpson (Vice President of Respondent’s Board) & Marc Kaplan (President of Respondent’s Board): Both testified that they did not have user names and passwords for the association’s Mutual of Omaha account. They believed, however, that the association’s treasurer may have had such credentials to access the account online.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision, issued on March 29, 2017, denied the Petitioner’s petition. The reasoning was based on a direct interpretation of A.R.S. § 33-1258 and the evidence presented.

• Burden of Proof: The decision established that the Petitioner bore the burden of proving by a “preponderance of the evidence” that the Respondent had violated the statute. A preponderance of the evidence is defined as proof that “convinces the trier of fact that the contention is more probably true than not.”

• Statutory Interpretation: The ALJ determined that the “plain meaning” of A.R.S. § 33-1258 is to provide members with access to documents that allow them to “ascertain whether the association is prudently managing its members’ assessments.” The decision explicitly states that the numerous documents already provided by the Respondent fulfilled this purpose.

• Custody and Control: A central finding was that the requested items were not “records of the association.” The signature cards were records held and maintained by a third party, Mutual of Omaha. The statute does not compel an association to produce records that are not in its possession or under its control.

• Information vs. Documents: The decision drew a distinction between records and information, stating, “The user names and passwords are information, not a document.” Furthermore, it noted that these items “do not relate to Respondent’s actual expenditure of members’ assessments” but rather to the mechanisms for disbursing funds.

• Scope of the Statute: The ALJ concluded that A.R.S. § 33-1258 does not require an association to “create, maintain, or provide this information or documentation to Petitioner, either to serve his convenience or to allow him to ascertain Respondent’s or Mutual of Omaha’s compliance with federal banking statutes that are not incorporated in the Uniform Condominium Act.”

• Policy Arguments: The Petitioner’s contention that “paper access to the account information is inferior to electronic access” was dismissed as “a policy argument that should be addressed to the Legislature.” The statute only requires that records be made “reasonably available,” which the Respondent had done.

Procedural History and Final Outcome

c. Dec. 20, 2016

John Sellers files a petition with the Arizona Department of Real Estate.

Mar. 7, 2017

An evidentiary hearing is held before ALJ Diane Mihalsky. An order is issued holding the record open for the parties to submit legal memoranda regarding the scope of A.R.S. § 33-1258.

Mar. 21, 2017

The deadline for submitting legal memoranda passes, and the record on the matter is closed.

Mar. 29, 2017

ALJ Diane Mihalsky issues the “Administrative Law Judge Decision,” which includes Findings of Fact, Conclusions of Law, and a Recommended Order to deny the Petitioner’s petition.

Mar. 30, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a “Final Order.” This order formally accepts and adopts the ALJ’s decision, and the petition is denied.

The Final Order, effective immediately upon service, represented the final administrative action in the matter. The order noted that parties could file a motion for rehearing within 30 days or appeal the final administrative decision through judicial review.






Study Guide – 17F-H1716021-REL


Study Guide:Sellers v. Rancho Madera Condominium Association

This study guide provides a comprehensive review of the administrative case John Sellers v. Rancho Madera Condominium Association, Case No. 17F-H1716021-REL. It covers the key parties, legal arguments, statutory interpretations, and the ultimate decision rendered by the Office of Administrative Hearings and the Arizona Department of Real Estate.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences each, based on the information provided in the case documents.

1. What was the central allegation made by the Petitioner, John Sellers, against the Rancho Madera Condominium Association?

2. Identify the specific Arizona Revised Statute (A.R.S.) that formed the basis of the legal dispute and summarize its primary requirement for homeowners’ associations.

3. What specific documents or information did John Sellers request that the association refused to provide?

4. In its defense, what was the association’s stated reason for not producing the requested items?

5. List the documents that the association did provide to the Petitioner prior to the hearing.

6. Who testified on behalf of the Respondent association at the March 7, 2017 hearing?

7. How did the Administrative Law Judge (ALJ) distinguish between “information” and “documents” in her legal conclusions?

8. What is the “burden of proof” in this case, and which party was responsible for meeting it?

9. What was the final outcome of the petition as determined by the Administrative Law Judge and subsequently adopted by the Commissioner of the Department of Real Estate?

10. According to the ALJ’s decision, what is the plain meaning and purpose of A.R.S. § 33-1258?

——————————————————————————–

Answer Key

1. The Petitioner, John Sellers, alleged that the Respondent, Rancho Madera Condominium Association, had violated A.R.S. § 33-1258. The specific violation was the association’s refusal to provide him with certain records related to its bank account at Mutual of Omaha.

2. The statute at the center of the dispute was A.R.S. § 33-1258, titled “Association financial and other records.” This statute generally requires that all financial and other records of a homeowners’ association be made reasonably available for examination by any member within ten business days of a request.

3. John Sellers requested bank account signature cards for the association’s Mutual of Omaha account. He also requested read-only user names and passwords for online access to that same account.

4. The association denied the request because it asserted that the requested documents and information either did not exist or were not included in the association’s records. It was testified that the signature cards were held by the bank, Mutual of Omaha, as their custodian.

5. The association provided copies of all bank statements, account opening documentation, direct debit authorization forms, the Board’s resolution to open the account, agreements between its management company (Trestle) and the bank, its insurance certificate, and its management contract with Trestle.

6. Three witnesses testified for the Respondent: Alan Simpson (Vice President of the Board), Marc Kaplan (President of the Board), and Marc Vasquez (Vice President of Trestle Management Group).

7. The ALJ concluded that the requested user names and passwords constituted “information,” not a “document” as covered by the statute. She further reasoned that neither the signature cards nor the online credentials related to the actual expenditure of funds, but rather to the mechanisms for disbursement, and were maintained by the bank, not the association.

8. The burden of proof rested on the Petitioner, John Sellers, to establish by a “preponderance of the evidence” that the Respondent had violated the statute. A preponderance of the evidence is proof that convinces the trier of fact that a contention is more probably true than not.

9. The Administrative Law Judge issued a recommended order denying the Petitioner’s petition. This decision was then adopted by the Commissioner of the Department of Real Estate in a Final Order, formally denying the petition and making the decision binding on the parties.

10. The ALJ determined the plain meaning of A.R.S. § 33-1258 is that associations must provide members with access to documents that allow them to ascertain whether the association is prudently managing its members’ assessments. The judge noted that arguments for different types of access (e.g., electronic vs. paper) are policy arguments that should be addressed to the Legislature.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate comprehensive responses based on the facts, legal reasoning, and conclusions presented in the source documents.

1. Analyze the Administrative Law Judge’s interpretation of “financial and other records” under A.R.S. § 33-1258. How did this interpretation, particularly the distinction between disbursement mechanisms and actual expenditures, lead to the denial of John Sellers’ petition?

2. Discuss the concept of “burden of proof” as it applied in this case. Explain what “preponderance of the evidence” means and detail why the Petitioner, according to the ALJ’s findings, failed to meet this standard.

3. Trace the procedural timeline of the case from the initial petition filed around December 20, 2016, to the Final Order dated March 30, 2017. Identify the key legal bodies involved (Office of Administrative Hearings, Department of Real Estate) and their respective roles in the process.

4. Evaluate the Petitioner’s argument that federal banking statutes and regulations intended to fight terrorism necessitated the existence and disclosure of the requested records. Why was this argument ultimately unpersuasive to the court?

5. Examine the exceptions to disclosure outlined in A.R.S. § 33-1258(B). Although not the central issue in the final decision, explain how these exceptions frame the limits of a homeowner’s right to association records.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions or recommended orders. In this case, Diane Mihalsky served as the ALJ.

A.R.S. § 33-1258

The specific Arizona Revised Statute at the heart of the case, part of the Uniform Condominium Act. It governs a homeowner association’s duty to make its “financial and other records” available for examination by members.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof.

Commissioner

The head of a government department. In this case, Judy Lowe, the Commissioner of the Arizona Department of Real Estate, adopted the ALJ’s decision and issued the Final Order.

Evidentiary Hearing

A formal proceeding where parties present evidence (such as documents and testimony) before a judge or hearing officer. The hearing in this case was held on March 7, 2017.

Final Order

A binding decision issued by an administrative agency that concludes a case. In this matter, the Final Order was issued by the Commissioner of the Department of Real Estate on March 30, 2017, denying the petition.

Homeowners’ Association

An organization in a subdivision, planned community, or condominium development that makes and enforces rules for the properties and its residents. In this case, the Rancho Madera Condominium Association.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, John Sellers.

Preponderance of the Evidence

The standard of proof in most civil and administrative cases. It means that the evidence presented is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, establishing that a claim is “more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the Rancho Madera Condominium Association.

Trestle Management Group (“Trestle”)

The property management company for the Rancho Madera Condominium Association. The Vice President of Trestle, Marc Vasquez, testified at the hearing.

Uniform Condominium Act

The section of Arizona law (Chapter 9 of Title 33, Arizona Revised Statutes) that governs condominiums. A.R.S. § 33-1258 is part of this act.






Blog Post – 17F-H1716021-REL



⚖️

17F-H1716021-REL

3 sources

These sources document the administrative legal proceedings of a dispute between John Sellers (Petitioner) and the Rancho Madera Condominium Association (Respondent) before the Arizona Office of Administrative Hearings. The core issue of the case, No. 17F-H1716021-REL, was the Association’s alleged violation of A.R.S. § 33-1258 by refusing to provide bank account signature cards and read-only user credentials for online access to their bank account. The initial order, dated March 7, 2017, held the record open to allow both parties to submit legal memoranda concerning the scope of corporate records required under the statute. The subsequent Administrative Law Judge Decision, dated March 29, 2017, denied the Petitioner’s petition, concluding that the requested items were not considered financial records the association was legally required to create, maintain, or disclose. Finally, the Commissioner of the Department of Real Estate adopted the ALJ Decision as a Final Order on March 30, 2017.



Case Participants

Petitioner Side

  • John Sellers (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
  • Alan Simpson (board member/witness)
    Rancho Madera Condominium Association
    Vice President of Respondent's board
  • Marc Kaplan (board member/witness)
    Rancho Madera Condominium Association
    President of Respondent's Board
  • Marc Vasquez (property manager/witness)
    Trestle Management Group
    Vice President of Trestle
  • Annette Graham (attorney staff)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Derived from email address (Annette.graham)

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (HOA Coordinator)
    Arizona Department of Real Estate
    Also listed as AHansen

Other Participants

  • M. Johnson (clerical staff)
    Signatory on document transmission
  • LDettorre (ADRE Staff)
    ADRE
    Email recipient
  • djones (ADRE Staff)
    ADRE
    Email recipient
  • jmarshall (ADRE Staff)
    ADRE
    Email recipient
  • ncano (ADRE Staff)
    ADRE
    Email recipient

John Sellers vs. Rancho Madera Condominium Association

Posted on by

Case Summary

Case ID 17F-H1716021-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-03-30
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Lydia Peirce Linsmeier, Esq.

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The Administrative Law Judge denied the Petitioner's request, finding that the Respondent HOA complied with A.R.S. § 33-1258 by providing documents related to expenditures, and was not required to provide bank signature cards or read-only online access credentials.

Why this result: Petitioner failed to meet the burden of proof that Respondent violated A.R.S. § 33-1258 because the statute does not require the association to provide records (like signature cards or usernames/passwords) which are not financial records showing actual expenditures and are often held by the financial institution.

Key Issues & Findings

Association financial and other records; applicability

Petitioner, a member of the HOA, alleged the HOA violated A.R.S. § 33-1258 by refusing access to bank account signature cards and read-only user names/passwords. The ALJ found that these items were not 'financial and other records' that the association was statutorily required to provide, as they related to mechanisms for disbursement rather than actual expenditure, and would be maintained by the bank, not the association.

Orders: Petitioner's petition was denied and dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 41-2198.01

Analytics Highlights

Topics: Records Request, Condominium Act, Access to Records, Financial Records, Bank Records
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.08

Audio Overview

Decision Documents

17F-H1716021-REL Decision – 549566.pdf

Uploaded 2025-10-08T06:57:15 (60.9 KB)

17F-H1716021-REL Decision – 554490.pdf

Uploaded 2025-10-08T06:57:16 (88.6 KB)

17F-H1716021-REL Decision – 558591.pdf

Uploaded 2025-10-08T06:57:17 (757.3 KB)





Briefing Doc – 17F-H1716021-REL


Administrative Hearing Briefing: Sellers v. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the proceedings and outcome of the administrative case John Sellers v. Rancho Madera Condominium Association. The core of the dispute was Petitioner John Sellers’s allegation that the Respondent, Rancho Madera Condominium Association, violated Arizona Revised Statute (A.R.S.) § 33-1258 by refusing to produce specific records: bank account signature cards and read-only online banking credentials for the association’s account with Mutual of Omaha.

The Administrative Law Judge (ALJ) ultimately recommended the petition be denied, a decision that was formally adopted by the Commissioner of the Arizona Department of Real Estate. The ruling hinged on a narrow interpretation of the statute. The ALJ concluded that the requested items were not “financial and other records of the association” as required by law. Key findings supporting this conclusion were:

• Custody: The signature cards, if they exist, are records held by the bank (Mutual of Omaha), not the association.

• Nature of Request: Online user names and passwords constitute “information,” not a “document” or “record” in the statutory sense.

• Sufficient Disclosure: The association had already provided a comprehensive set of financial documents (bank statements, contracts, resolutions, etc.) sufficient for a member to ascertain whether the association was prudently managing its funds, thereby satisfying the plain-meaning purpose of A.R.S. § 33-1258.

The petitioner’s arguments that such records must exist under federal banking regulations and that electronic access is superior to paper records were deemed policy arguments to be addressed to the legislature, not grounds for finding a statutory violation.

Case Overview

Case Name

John Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent

Case Number

No. 17F-H1716021-REL (also listed as DOCKET NO. 17F-H1716021-REL and CASE NO. HO 17-16/021)

Petitioner

John Sellers (Appeared on his own behalf)

Respondent

Rancho Madera Condominium Association

Respondent’s Counsel

Lydia Peirce Linsmeier, Esq., Carpenter, Hazlewood, Delgado & Bolen, PLC

Adjudicating Body

Arizona Office of Administrative Hearings

Reviewing Body

Arizona Department of Real Estate

Administrative Law Judge

Diane Mihalsky

Commissioner

Judy Lowe, Arizona Department of Real Estate

Core Allegation and Legal Framework

Petitioner’s Claim

On or about December 20, 2016, John Sellers, a condominium owner and member of the Rancho Madera Condominium Association, filed a petition with the Arizona Department of Real Estate. The petition alleged that the association had violated A.R.S. § 33-1258 by refusing to provide two specific items related to its bank account at Mutual of Omaha:

1. Bank account signature cards.

2. Read-only user names and passwords for online access to the account.

Sellers argued that these documents must exist, citing federal banking statutes and regulations intended to combat terrorism.

Governing Statute: A.R.S. § 33-1258

The case revolved around the interpretation of A.R.S. § 33-1258, “Association financial and other records.” The key provisions of this statute state:

• A. Right to Examine: “Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member…”

• Timeline: An association has ten business days to fulfill a request for examination and ten business days to provide copies upon request.

• Fees: An association may charge a fee of not more than fifteen cents per page for copies.

• B. Withholdable Records: The statute allows an association to withhold records related to:

1. Privileged attorney-client communication.

2. Pending litigation.

3. Records of board meetings not required to be open to all members.

4. Personal, health, or financial records of individual members or employees.

5. Records related to job performance or complaints against employees.

• C. Legal Prohibitions: An association is not required to disclose records if doing so would violate state or federal law.

The Uniform Condominium Act, of which this statute is a part, does not provide a more specific definition of “financial and other records.”

Factual Findings and Evidence Presented

Records Provided by the Association

Prior to the hearing, the Respondent had already provided the Petitioner with a substantial volume of financial records. Emails attached to the initial petition indicated that the following documents were furnished:

• All bank statements

• Account opening documentation

• Forms for members’ direct debit authorizations

• The Board’s resolution authorizing the opening of the bank account

• Agreements between the property management company, Trestle Management Group, and Mutual of Omaha regarding fees, indemnities, and netting

• The association’s insurance certificate

• The association’s management contract with Trestle Management Group

Witness Testimony

A hearing was held on March 7, 2017, where testimony was presented by both parties.

• Petitioner’s Testimony: John Sellers testified on his own behalf and submitted ten exhibits.

• Respondent’s Witnesses:

◦ Marc Vasquez (Vice President of Trestle Management Group): Testified that all signature cards for the association’s bank accounts were held by the bank at which the accounts were opened. He stated that Mutual of Omaha was the custodian of those cards.

◦ Alan Simpson (Vice President of Respondent’s Board) & Marc Kaplan (President of Respondent’s Board): Both testified that they did not have user names and passwords for the association’s Mutual of Omaha account. They believed, however, that the association’s treasurer may have had such credentials to access the account online.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision, issued on March 29, 2017, denied the Petitioner’s petition. The reasoning was based on a direct interpretation of A.R.S. § 33-1258 and the evidence presented.

• Burden of Proof: The decision established that the Petitioner bore the burden of proving by a “preponderance of the evidence” that the Respondent had violated the statute. A preponderance of the evidence is defined as proof that “convinces the trier of fact that the contention is more probably true than not.”

• Statutory Interpretation: The ALJ determined that the “plain meaning” of A.R.S. § 33-1258 is to provide members with access to documents that allow them to “ascertain whether the association is prudently managing its members’ assessments.” The decision explicitly states that the numerous documents already provided by the Respondent fulfilled this purpose.

• Custody and Control: A central finding was that the requested items were not “records of the association.” The signature cards were records held and maintained by a third party, Mutual of Omaha. The statute does not compel an association to produce records that are not in its possession or under its control.

• Information vs. Documents: The decision drew a distinction between records and information, stating, “The user names and passwords are information, not a document.” Furthermore, it noted that these items “do not relate to Respondent’s actual expenditure of members’ assessments” but rather to the mechanisms for disbursing funds.

• Scope of the Statute: The ALJ concluded that A.R.S. § 33-1258 does not require an association to “create, maintain, or provide this information or documentation to Petitioner, either to serve his convenience or to allow him to ascertain Respondent’s or Mutual of Omaha’s compliance with federal banking statutes that are not incorporated in the Uniform Condominium Act.”

• Policy Arguments: The Petitioner’s contention that “paper access to the account information is inferior to electronic access” was dismissed as “a policy argument that should be addressed to the Legislature.” The statute only requires that records be made “reasonably available,” which the Respondent had done.

Procedural History and Final Outcome

c. Dec. 20, 2016

John Sellers files a petition with the Arizona Department of Real Estate.

Mar. 7, 2017

An evidentiary hearing is held before ALJ Diane Mihalsky. An order is issued holding the record open for the parties to submit legal memoranda regarding the scope of A.R.S. § 33-1258.

Mar. 21, 2017

The deadline for submitting legal memoranda passes, and the record on the matter is closed.

Mar. 29, 2017

ALJ Diane Mihalsky issues the “Administrative Law Judge Decision,” which includes Findings of Fact, Conclusions of Law, and a Recommended Order to deny the Petitioner’s petition.

Mar. 30, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a “Final Order.” This order formally accepts and adopts the ALJ’s decision, and the petition is denied.

The Final Order, effective immediately upon service, represented the final administrative action in the matter. The order noted that parties could file a motion for rehearing within 30 days or appeal the final administrative decision through judicial review.


John Sellers vs. Rancho Madera Condominium Association

Posted on by

Case Summary

Case ID 17F-H1716021-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-03-30
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Lydia Peirce Linsmeier, Esq.

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The Administrative Law Judge denied the Petitioner's request, finding that the Respondent HOA complied with A.R.S. § 33-1258 by providing documents related to expenditures, and was not required to provide bank signature cards or read-only online access credentials.

Why this result: Petitioner failed to meet the burden of proof that Respondent violated A.R.S. § 33-1258 because the statute does not require the association to provide records (like signature cards or usernames/passwords) which are not financial records showing actual expenditures and are often held by the financial institution.

Key Issues & Findings

Association financial and other records; applicability

Petitioner, a member of the HOA, alleged the HOA violated A.R.S. § 33-1258 by refusing access to bank account signature cards and read-only user names/passwords. The ALJ found that these items were not 'financial and other records' that the association was statutorily required to provide, as they related to mechanisms for disbursement rather than actual expenditure, and would be maintained by the bank, not the association.

Orders: Petitioner's petition was denied and dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 41-2198.01

Analytics Highlights

Topics: Records Request, Condominium Act, Access to Records, Financial Records, Bank Records
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.08

Audio Overview

Decision Documents

17F-H1716021-REL Decision – 549566.pdf

Uploaded 2025-10-08T07:01:27 (60.9 KB)

17F-H1716021-REL Decision – 554490.pdf

Uploaded 2025-10-08T07:01:28 (88.6 KB)

17F-H1716021-REL Decision – 558591.pdf

Uploaded 2025-10-08T07:01:28 (757.3 KB)





Briefing Doc – 17F-H1716021-REL


Administrative Hearing Briefing: Sellers v. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the proceedings and outcome of the administrative case John Sellers v. Rancho Madera Condominium Association. The core of the dispute was Petitioner John Sellers’s allegation that the Respondent, Rancho Madera Condominium Association, violated Arizona Revised Statute (A.R.S.) § 33-1258 by refusing to produce specific records: bank account signature cards and read-only online banking credentials for the association’s account with Mutual of Omaha.

The Administrative Law Judge (ALJ) ultimately recommended the petition be denied, a decision that was formally adopted by the Commissioner of the Arizona Department of Real Estate. The ruling hinged on a narrow interpretation of the statute. The ALJ concluded that the requested items were not “financial and other records of the association” as required by law. Key findings supporting this conclusion were:

• Custody: The signature cards, if they exist, are records held by the bank (Mutual of Omaha), not the association.

• Nature of Request: Online user names and passwords constitute “information,” not a “document” or “record” in the statutory sense.

• Sufficient Disclosure: The association had already provided a comprehensive set of financial documents (bank statements, contracts, resolutions, etc.) sufficient for a member to ascertain whether the association was prudently managing its funds, thereby satisfying the plain-meaning purpose of A.R.S. § 33-1258.

The petitioner’s arguments that such records must exist under federal banking regulations and that electronic access is superior to paper records were deemed policy arguments to be addressed to the legislature, not grounds for finding a statutory violation.

Case Overview

Case Name

John Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent

Case Number

No. 17F-H1716021-REL (also listed as DOCKET NO. 17F-H1716021-REL and CASE NO. HO 17-16/021)

Petitioner

John Sellers (Appeared on his own behalf)

Respondent

Rancho Madera Condominium Association

Respondent’s Counsel

Lydia Peirce Linsmeier, Esq., Carpenter, Hazlewood, Delgado & Bolen, PLC

Adjudicating Body

Arizona Office of Administrative Hearings

Reviewing Body

Arizona Department of Real Estate

Administrative Law Judge

Diane Mihalsky

Commissioner

Judy Lowe, Arizona Department of Real Estate

Core Allegation and Legal Framework

Petitioner’s Claim

On or about December 20, 2016, John Sellers, a condominium owner and member of the Rancho Madera Condominium Association, filed a petition with the Arizona Department of Real Estate. The petition alleged that the association had violated A.R.S. § 33-1258 by refusing to provide two specific items related to its bank account at Mutual of Omaha:

1. Bank account signature cards.

2. Read-only user names and passwords for online access to the account.

Sellers argued that these documents must exist, citing federal banking statutes and regulations intended to combat terrorism.

Governing Statute: A.R.S. § 33-1258

The case revolved around the interpretation of A.R.S. § 33-1258, “Association financial and other records.” The key provisions of this statute state:

• A. Right to Examine: “Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member…”

• Timeline: An association has ten business days to fulfill a request for examination and ten business days to provide copies upon request.

• Fees: An association may charge a fee of not more than fifteen cents per page for copies.

• B. Withholdable Records: The statute allows an association to withhold records related to:

1. Privileged attorney-client communication.

2. Pending litigation.

3. Records of board meetings not required to be open to all members.

4. Personal, health, or financial records of individual members or employees.

5. Records related to job performance or complaints against employees.

• C. Legal Prohibitions: An association is not required to disclose records if doing so would violate state or federal law.

The Uniform Condominium Act, of which this statute is a part, does not provide a more specific definition of “financial and other records.”

Factual Findings and Evidence Presented

Records Provided by the Association

Prior to the hearing, the Respondent had already provided the Petitioner with a substantial volume of financial records. Emails attached to the initial petition indicated that the following documents were furnished:

• All bank statements

• Account opening documentation

• Forms for members’ direct debit authorizations

• The Board’s resolution authorizing the opening of the bank account

• Agreements between the property management company, Trestle Management Group, and Mutual of Omaha regarding fees, indemnities, and netting

• The association’s insurance certificate

• The association’s management contract with Trestle Management Group

Witness Testimony

A hearing was held on March 7, 2017, where testimony was presented by both parties.

• Petitioner’s Testimony: John Sellers testified on his own behalf and submitted ten exhibits.

• Respondent’s Witnesses:

◦ Marc Vasquez (Vice President of Trestle Management Group): Testified that all signature cards for the association’s bank accounts were held by the bank at which the accounts were opened. He stated that Mutual of Omaha was the custodian of those cards.

◦ Alan Simpson (Vice President of Respondent’s Board) & Marc Kaplan (President of Respondent’s Board): Both testified that they did not have user names and passwords for the association’s Mutual of Omaha account. They believed, however, that the association’s treasurer may have had such credentials to access the account online.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision, issued on March 29, 2017, denied the Petitioner’s petition. The reasoning was based on a direct interpretation of A.R.S. § 33-1258 and the evidence presented.

• Burden of Proof: The decision established that the Petitioner bore the burden of proving by a “preponderance of the evidence” that the Respondent had violated the statute. A preponderance of the evidence is defined as proof that “convinces the trier of fact that the contention is more probably true than not.”

• Statutory Interpretation: The ALJ determined that the “plain meaning” of A.R.S. § 33-1258 is to provide members with access to documents that allow them to “ascertain whether the association is prudently managing its members’ assessments.” The decision explicitly states that the numerous documents already provided by the Respondent fulfilled this purpose.

• Custody and Control: A central finding was that the requested items were not “records of the association.” The signature cards were records held and maintained by a third party, Mutual of Omaha. The statute does not compel an association to produce records that are not in its possession or under its control.

• Information vs. Documents: The decision drew a distinction between records and information, stating, “The user names and passwords are information, not a document.” Furthermore, it noted that these items “do not relate to Respondent’s actual expenditure of members’ assessments” but rather to the mechanisms for disbursing funds.

• Scope of the Statute: The ALJ concluded that A.R.S. § 33-1258 does not require an association to “create, maintain, or provide this information or documentation to Petitioner, either to serve his convenience or to allow him to ascertain Respondent’s or Mutual of Omaha’s compliance with federal banking statutes that are not incorporated in the Uniform Condominium Act.”

• Policy Arguments: The Petitioner’s contention that “paper access to the account information is inferior to electronic access” was dismissed as “a policy argument that should be addressed to the Legislature.” The statute only requires that records be made “reasonably available,” which the Respondent had done.

Procedural History and Final Outcome

c. Dec. 20, 2016

John Sellers files a petition with the Arizona Department of Real Estate.

Mar. 7, 2017

An evidentiary hearing is held before ALJ Diane Mihalsky. An order is issued holding the record open for the parties to submit legal memoranda regarding the scope of A.R.S. § 33-1258.

Mar. 21, 2017

The deadline for submitting legal memoranda passes, and the record on the matter is closed.

Mar. 29, 2017

ALJ Diane Mihalsky issues the “Administrative Law Judge Decision,” which includes Findings of Fact, Conclusions of Law, and a Recommended Order to deny the Petitioner’s petition.

Mar. 30, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a “Final Order.” This order formally accepts and adopts the ALJ’s decision, and the petition is denied.

The Final Order, effective immediately upon service, represented the final administrative action in the matter. The order noted that parties could file a motion for rehearing within 30 days or appeal the final administrative decision through judicial review.


John Sellers vs. Rancho Madera Condominium Association

Posted on by

Case Summary

Case ID 17F-H1716021-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-03-30
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Lydia Peirce Linsmeier, Esq.

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The Administrative Law Judge denied the Petitioner's request, finding that the Respondent HOA complied with A.R.S. § 33-1258 by providing documents related to expenditures, and was not required to provide bank signature cards or read-only online access credentials.

Why this result: Petitioner failed to meet the burden of proof that Respondent violated A.R.S. § 33-1258 because the statute does not require the association to provide records (like signature cards or usernames/passwords) which are not financial records showing actual expenditures and are often held by the financial institution.

Key Issues & Findings

Association financial and other records; applicability

Petitioner, a member of the HOA, alleged the HOA violated A.R.S. § 33-1258 by refusing access to bank account signature cards and read-only user names/passwords. The ALJ found that these items were not 'financial and other records' that the association was statutorily required to provide, as they related to mechanisms for disbursement rather than actual expenditure, and would be maintained by the bank, not the association.

Orders: Petitioner's petition was denied and dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 41-2198.01

Analytics Highlights

Topics: Records Request, Condominium Act, Access to Records, Financial Records, Bank Records
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.08

Video Overview

Audio Overview

Decision Documents

17F-H1716021-REL Decision – 549566.pdf

Uploaded 2025-10-09T03:31:16 (60.9 KB)

17F-H1716021-REL Decision – 554490.pdf

Uploaded 2025-10-09T03:31:16 (88.6 KB)

17F-H1716021-REL Decision – 558591.pdf

Uploaded 2025-10-09T03:31:16 (757.3 KB)





Briefing Doc – 17F-H1716021-REL


Administrative Hearing Briefing: Sellers v. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the proceedings and outcome of the administrative case John Sellers v. Rancho Madera Condominium Association. The core of the dispute was Petitioner John Sellers’s allegation that the Respondent, Rancho Madera Condominium Association, violated Arizona Revised Statute (A.R.S.) § 33-1258 by refusing to produce specific records: bank account signature cards and read-only online banking credentials for the association’s account with Mutual of Omaha.

The Administrative Law Judge (ALJ) ultimately recommended the petition be denied, a decision that was formally adopted by the Commissioner of the Arizona Department of Real Estate. The ruling hinged on a narrow interpretation of the statute. The ALJ concluded that the requested items were not “financial and other records of the association” as required by law. Key findings supporting this conclusion were:

• Custody: The signature cards, if they exist, are records held by the bank (Mutual of Omaha), not the association.

• Nature of Request: Online user names and passwords constitute “information,” not a “document” or “record” in the statutory sense.

• Sufficient Disclosure: The association had already provided a comprehensive set of financial documents (bank statements, contracts, resolutions, etc.) sufficient for a member to ascertain whether the association was prudently managing its funds, thereby satisfying the plain-meaning purpose of A.R.S. § 33-1258.

The petitioner’s arguments that such records must exist under federal banking regulations and that electronic access is superior to paper records were deemed policy arguments to be addressed to the legislature, not grounds for finding a statutory violation.

Case Overview

Case Name

John Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent

Case Number

No. 17F-H1716021-REL (also listed as DOCKET NO. 17F-H1716021-REL and CASE NO. HO 17-16/021)

Petitioner

John Sellers (Appeared on his own behalf)

Respondent

Rancho Madera Condominium Association

Respondent’s Counsel

Lydia Peirce Linsmeier, Esq., Carpenter, Hazlewood, Delgado & Bolen, PLC

Adjudicating Body

Arizona Office of Administrative Hearings

Reviewing Body

Arizona Department of Real Estate

Administrative Law Judge

Diane Mihalsky

Commissioner

Judy Lowe, Arizona Department of Real Estate

Core Allegation and Legal Framework

Petitioner’s Claim

On or about December 20, 2016, John Sellers, a condominium owner and member of the Rancho Madera Condominium Association, filed a petition with the Arizona Department of Real Estate. The petition alleged that the association had violated A.R.S. § 33-1258 by refusing to provide two specific items related to its bank account at Mutual of Omaha:

1. Bank account signature cards.

2. Read-only user names and passwords for online access to the account.

Sellers argued that these documents must exist, citing federal banking statutes and regulations intended to combat terrorism.

Governing Statute: A.R.S. § 33-1258

The case revolved around the interpretation of A.R.S. § 33-1258, “Association financial and other records.” The key provisions of this statute state:

• A. Right to Examine: “Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member…”

• Timeline: An association has ten business days to fulfill a request for examination and ten business days to provide copies upon request.

• Fees: An association may charge a fee of not more than fifteen cents per page for copies.

• B. Withholdable Records: The statute allows an association to withhold records related to:

1. Privileged attorney-client communication.

2. Pending litigation.

3. Records of board meetings not required to be open to all members.

4. Personal, health, or financial records of individual members or employees.

5. Records related to job performance or complaints against employees.

• C. Legal Prohibitions: An association is not required to disclose records if doing so would violate state or federal law.

The Uniform Condominium Act, of which this statute is a part, does not provide a more specific definition of “financial and other records.”

Factual Findings and Evidence Presented

Records Provided by the Association

Prior to the hearing, the Respondent had already provided the Petitioner with a substantial volume of financial records. Emails attached to the initial petition indicated that the following documents were furnished:

• All bank statements

• Account opening documentation

• Forms for members’ direct debit authorizations

• The Board’s resolution authorizing the opening of the bank account

• Agreements between the property management company, Trestle Management Group, and Mutual of Omaha regarding fees, indemnities, and netting

• The association’s insurance certificate

• The association’s management contract with Trestle Management Group

Witness Testimony

A hearing was held on March 7, 2017, where testimony was presented by both parties.

• Petitioner’s Testimony: John Sellers testified on his own behalf and submitted ten exhibits.

• Respondent’s Witnesses:

◦ Marc Vasquez (Vice President of Trestle Management Group): Testified that all signature cards for the association’s bank accounts were held by the bank at which the accounts were opened. He stated that Mutual of Omaha was the custodian of those cards.

◦ Alan Simpson (Vice President of Respondent’s Board) & Marc Kaplan (President of Respondent’s Board): Both testified that they did not have user names and passwords for the association’s Mutual of Omaha account. They believed, however, that the association’s treasurer may have had such credentials to access the account online.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision, issued on March 29, 2017, denied the Petitioner’s petition. The reasoning was based on a direct interpretation of A.R.S. § 33-1258 and the evidence presented.

• Burden of Proof: The decision established that the Petitioner bore the burden of proving by a “preponderance of the evidence” that the Respondent had violated the statute. A preponderance of the evidence is defined as proof that “convinces the trier of fact that the contention is more probably true than not.”

• Statutory Interpretation: The ALJ determined that the “plain meaning” of A.R.S. § 33-1258 is to provide members with access to documents that allow them to “ascertain whether the association is prudently managing its members’ assessments.” The decision explicitly states that the numerous documents already provided by the Respondent fulfilled this purpose.

• Custody and Control: A central finding was that the requested items were not “records of the association.” The signature cards were records held and maintained by a third party, Mutual of Omaha. The statute does not compel an association to produce records that are not in its possession or under its control.

• Information vs. Documents: The decision drew a distinction between records and information, stating, “The user names and passwords are information, not a document.” Furthermore, it noted that these items “do not relate to Respondent’s actual expenditure of members’ assessments” but rather to the mechanisms for disbursing funds.

• Scope of the Statute: The ALJ concluded that A.R.S. § 33-1258 does not require an association to “create, maintain, or provide this information or documentation to Petitioner, either to serve his convenience or to allow him to ascertain Respondent’s or Mutual of Omaha’s compliance with federal banking statutes that are not incorporated in the Uniform Condominium Act.”

• Policy Arguments: The Petitioner’s contention that “paper access to the account information is inferior to electronic access” was dismissed as “a policy argument that should be addressed to the Legislature.” The statute only requires that records be made “reasonably available,” which the Respondent had done.

Procedural History and Final Outcome

c. Dec. 20, 2016

John Sellers files a petition with the Arizona Department of Real Estate.

Mar. 7, 2017

An evidentiary hearing is held before ALJ Diane Mihalsky. An order is issued holding the record open for the parties to submit legal memoranda regarding the scope of A.R.S. § 33-1258.

Mar. 21, 2017

The deadline for submitting legal memoranda passes, and the record on the matter is closed.

Mar. 29, 2017

ALJ Diane Mihalsky issues the “Administrative Law Judge Decision,” which includes Findings of Fact, Conclusions of Law, and a Recommended Order to deny the Petitioner’s petition.

Mar. 30, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a “Final Order.” This order formally accepts and adopts the ALJ’s decision, and the petition is denied.

The Final Order, effective immediately upon service, represented the final administrative action in the matter. The order noted that parties could file a motion for rehearing within 30 days or appeal the final administrative decision through judicial review.






Study Guide – 17F-H1716021-REL


Study Guide:Sellers v. Rancho Madera Condominium Association

This study guide provides a comprehensive review of the administrative case John Sellers v. Rancho Madera Condominium Association, Case No. 17F-H1716021-REL. It covers the key parties, legal arguments, statutory interpretations, and the ultimate decision rendered by the Office of Administrative Hearings and the Arizona Department of Real Estate.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences each, based on the information provided in the case documents.

1. What was the central allegation made by the Petitioner, John Sellers, against the Rancho Madera Condominium Association?

2. Identify the specific Arizona Revised Statute (A.R.S.) that formed the basis of the legal dispute and summarize its primary requirement for homeowners’ associations.

3. What specific documents or information did John Sellers request that the association refused to provide?

4. In its defense, what was the association’s stated reason for not producing the requested items?

5. List the documents that the association did provide to the Petitioner prior to the hearing.

6. Who testified on behalf of the Respondent association at the March 7, 2017 hearing?

7. How did the Administrative Law Judge (ALJ) distinguish between “information” and “documents” in her legal conclusions?

8. What is the “burden of proof” in this case, and which party was responsible for meeting it?

9. What was the final outcome of the petition as determined by the Administrative Law Judge and subsequently adopted by the Commissioner of the Department of Real Estate?

10. According to the ALJ’s decision, what is the plain meaning and purpose of A.R.S. § 33-1258?

——————————————————————————–

Answer Key

1. The Petitioner, John Sellers, alleged that the Respondent, Rancho Madera Condominium Association, had violated A.R.S. § 33-1258. The specific violation was the association’s refusal to provide him with certain records related to its bank account at Mutual of Omaha.

2. The statute at the center of the dispute was A.R.S. § 33-1258, titled “Association financial and other records.” This statute generally requires that all financial and other records of a homeowners’ association be made reasonably available for examination by any member within ten business days of a request.

3. John Sellers requested bank account signature cards for the association’s Mutual of Omaha account. He also requested read-only user names and passwords for online access to that same account.

4. The association denied the request because it asserted that the requested documents and information either did not exist or were not included in the association’s records. It was testified that the signature cards were held by the bank, Mutual of Omaha, as their custodian.

5. The association provided copies of all bank statements, account opening documentation, direct debit authorization forms, the Board’s resolution to open the account, agreements between its management company (Trestle) and the bank, its insurance certificate, and its management contract with Trestle.

6. Three witnesses testified for the Respondent: Alan Simpson (Vice President of the Board), Marc Kaplan (President of the Board), and Marc Vasquez (Vice President of Trestle Management Group).

7. The ALJ concluded that the requested user names and passwords constituted “information,” not a “document” as covered by the statute. She further reasoned that neither the signature cards nor the online credentials related to the actual expenditure of funds, but rather to the mechanisms for disbursement, and were maintained by the bank, not the association.

8. The burden of proof rested on the Petitioner, John Sellers, to establish by a “preponderance of the evidence” that the Respondent had violated the statute. A preponderance of the evidence is proof that convinces the trier of fact that a contention is more probably true than not.

9. The Administrative Law Judge issued a recommended order denying the Petitioner’s petition. This decision was then adopted by the Commissioner of the Department of Real Estate in a Final Order, formally denying the petition and making the decision binding on the parties.

10. The ALJ determined the plain meaning of A.R.S. § 33-1258 is that associations must provide members with access to documents that allow them to ascertain whether the association is prudently managing its members’ assessments. The judge noted that arguments for different types of access (e.g., electronic vs. paper) are policy arguments that should be addressed to the Legislature.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate comprehensive responses based on the facts, legal reasoning, and conclusions presented in the source documents.

1. Analyze the Administrative Law Judge’s interpretation of “financial and other records” under A.R.S. § 33-1258. How did this interpretation, particularly the distinction between disbursement mechanisms and actual expenditures, lead to the denial of John Sellers’ petition?

2. Discuss the concept of “burden of proof” as it applied in this case. Explain what “preponderance of the evidence” means and detail why the Petitioner, according to the ALJ’s findings, failed to meet this standard.

3. Trace the procedural timeline of the case from the initial petition filed around December 20, 2016, to the Final Order dated March 30, 2017. Identify the key legal bodies involved (Office of Administrative Hearings, Department of Real Estate) and their respective roles in the process.

4. Evaluate the Petitioner’s argument that federal banking statutes and regulations intended to fight terrorism necessitated the existence and disclosure of the requested records. Why was this argument ultimately unpersuasive to the court?

5. Examine the exceptions to disclosure outlined in A.R.S. § 33-1258(B). Although not the central issue in the final decision, explain how these exceptions frame the limits of a homeowner’s right to association records.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions or recommended orders. In this case, Diane Mihalsky served as the ALJ.

A.R.S. § 33-1258

The specific Arizona Revised Statute at the heart of the case, part of the Uniform Condominium Act. It governs a homeowner association’s duty to make its “financial and other records” available for examination by members.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof.

Commissioner

The head of a government department. In this case, Judy Lowe, the Commissioner of the Arizona Department of Real Estate, adopted the ALJ’s decision and issued the Final Order.

Evidentiary Hearing

A formal proceeding where parties present evidence (such as documents and testimony) before a judge or hearing officer. The hearing in this case was held on March 7, 2017.

Final Order

A binding decision issued by an administrative agency that concludes a case. In this matter, the Final Order was issued by the Commissioner of the Department of Real Estate on March 30, 2017, denying the petition.

Homeowners’ Association

An organization in a subdivision, planned community, or condominium development that makes and enforces rules for the properties and its residents. In this case, the Rancho Madera Condominium Association.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, John Sellers.

Preponderance of the Evidence

The standard of proof in most civil and administrative cases. It means that the evidence presented is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, establishing that a claim is “more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the Rancho Madera Condominium Association.

Trestle Management Group (“Trestle”)

The property management company for the Rancho Madera Condominium Association. The Vice President of Trestle, Marc Vasquez, testified at the hearing.

Uniform Condominium Act

The section of Arizona law (Chapter 9 of Title 33, Arizona Revised Statutes) that governs condominiums. A.R.S. § 33-1258 is part of this act.






Blog Post – 17F-H1716021-REL



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17F-H1716021-REL

3 sources

These sources document the administrative legal proceedings of a dispute between John Sellers (Petitioner) and the Rancho Madera Condominium Association (Respondent) before the Arizona Office of Administrative Hearings. The core issue of the case, No. 17F-H1716021-REL, was the Association’s alleged violation of A.R.S. § 33-1258 by refusing to provide bank account signature cards and read-only user credentials for online access to their bank account. The initial order, dated March 7, 2017, held the record open to allow both parties to submit legal memoranda concerning the scope of corporate records required under the statute. The subsequent Administrative Law Judge Decision, dated March 29, 2017, denied the Petitioner’s petition, concluding that the requested items were not considered financial records the association was legally required to create, maintain, or disclose. Finally, the Commissioner of the Department of Real Estate adopted the ALJ Decision as a Final Order on March 30, 2017.



Case Participants

Petitioner Side

  • John Sellers (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
  • Alan Simpson (board member/witness)
    Rancho Madera Condominium Association
    Vice President of Respondent's board
  • Marc Kaplan (board member/witness)
    Rancho Madera Condominium Association
    President of Respondent's Board
  • Marc Vasquez (property manager/witness)
    Trestle Management Group
    Vice President of Trestle
  • Annette Graham (attorney staff)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Derived from email address (Annette.graham)

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (HOA Coordinator)
    Arizona Department of Real Estate
    Also listed as AHansen

Other Participants

  • M. Johnson (clerical staff)
    Signatory on document transmission
  • LDettorre (ADRE Staff)
    ADRE
    Email recipient
  • djones (ADRE Staff)
    ADRE
    Email recipient
  • jmarshall (ADRE Staff)
    ADRE
    Email recipient
  • ncano (ADRE Staff)
    ADRE
    Email recipient