Tag Archives: Condominium Association

Victoria J Whitaker v. Villas at Sunland Condominium Association

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Case Summary

Case ID 23F-H021-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-02-22
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Victoria J Whitaker Counsel —
Respondent Villas at Sunland Condominium Association Counsel Austin Baillio

Alleged Violations

ARIZ. REV. STAT. § 33-1242

Outcome Summary

The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.

Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242. Petitioner did not follow the statutory requirement of sending a response via certified mail (ARIZ. REV. STAT. § 33-1242(B)).

Key Issues & Findings

Alleged failure to follow due process concerning violation enforcement

Petitioner alleged the Association failed to follow due process when enforcing community documents regarding damage to a semi-common element (carport) before her purchase, leading to a violation notice and subsequent enforcement.

Orders: Petition denied. Respondent shall not reimburse Petitioner's filing fee as required by ARIZ. REV. STAT. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 33-1242(B)
  • ARIZ. REV. STAT. § 33-1242(C)
  • ARIZ. REV. STAT. § 33-1242(D)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Condominium Association, Due Process, Violation Enforcement, Carport Damage, Statutory Compliance, Filing Fee Denial
Additional Citations:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 33-1242(B)
  • ARIZ. REV. STAT. § 33-1242(C)
  • ARIZ. REV. STAT. § 33-1242(D)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 33-1260(A)(3)(e)
  • ARIZ. REV. STAT. § 33-1243
  • Declaration Article 5.3
  • Declaration Article 5.1
  • Declaration Article 5.2

Video Overview

Audio Overview

Decision Documents

23F-H021-REL Decision – 1036088.pdf

Uploaded 2026-05-02T11:03:57 (224.9 KB)

23F-H021-REL Decision – 1036088.pdf

Uploaded 2026-01-23T17:53:06 (224.9 KB)

This summary details the hearing proceedings, key arguments, and final decision in the matter of Victoria Whitaker (Petitioner) versus Villas at Sunland Condominium Association (Respondent). The hearing took place on February 3, 2023, before Administrative Law Judge (ALJ) Jenna Clark.

Key Facts and Procedural History

The case centered on a dispute over damage to a semi-common element: a carport shared by Petitioner's unit (Unit 16) and an adjacent unit. The damage was observed prior to the Petitioner's purchase of the unit on June 13, 2022. Although the Petitioner received a $20,000 reduction in the purchase price due to the outstanding issue, she denied accepting responsibility for the repair.

On July 18, 2022, after the sale, the Association issued a Notice of Violation to the Petitioner, requiring her to repair the carport ceiling.

A key procedural point addressed at the start of the hearing was the deficient Notice of Hearing, which incorrectly cited the Planned Communities Act (ARS § 33-1803) instead of the correct statute for condominiums. All parties stipulated to amend the governing statute for the dispute to ARS § 33-1242(D), which regulates due process in condominium enforcement actions.

Main Issues and Arguments

Petitioner's Argument:

The Petitioner alleged that the Association failed to follow due process under ARS § 33-1242. She argued that the violation should not have been enforced against her, as the damage occurred before her purchase and the violation was not properly investigated by management. The Association's claim that the damage was caused by the prior owner's tenant relied solely on "hearsay" (a neighbor's phone call), and no further investigation or expert assessment was conducted. She also claimed that the subsequent hearing held by the Board on October 5, 2022, was unfair because the Board had already made its decision.

Respondent's Argument:

The Association contended that they fully complied with ARS § 33-1242, providing notice and affording the Petitioner a hearing before the Board prior to taking any enforcement action (such as imposing fines). The core legal argument focused on the Petitioner’s failure to adhere to statutory requirements: ARS § 33-1242(B) requires a unit owner to provide a written response to a violation notice by certified mail within 21 days to "trigger" the subsequent due process provisions. The Petitioner admitted sending her contestation via email, not certified mail. The Association argued that because the Petitioner did not follow the statutory procedure, they cannot be found in violation of the statute's subsequent timing requirements.

Final Decision and Outcome

The ALJ concluded that the Tribunal’s jurisdiction was narrowly limited to determining whether the Association violated ARS § 33-1242, not to decide who was responsible for the damage or whether the Board's determination was correct.

The ALJ found that Petitioner bore the burden of proving the statutory violation by a preponderance of the evidence. The record established that Petitioner did not follow the statutory requirements of ARS § 33-1242 (certified mail) necessary to "trigger" any protected due process rights. Despite this procedural failure, the Association still apprised her of her rights and afforded her a hearing.

Based on the evidence, the ALJ concluded that no violation of ARS § 33-1242 was established.

Outcome: Petitioner’s petition was denied. The Association was not required to reimburse the Petitioner’s filing fee.

Questions

Question

Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?

Short Answer

No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.

Detailed Answer

The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).

Alj Quote

The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • jurisdiction
  • scope of hearing
  • violation responsibility

Question

Is it required to send my violation dispute response by certified mail?

Short Answer

Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.

Detailed Answer

The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.

Alj Quote

The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.

Legal Basis

ARIZ. REV. STAT. § 33-1242(B)

Topic Tags

  • certified mail
  • procedural requirements
  • contesting violations

Question

What constitutes 'due process' for an HOA violation?

Short Answer

Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.

Detailed Answer

Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.

Alj Quote

Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • due process
  • notice
  • board hearing

Question

Who is responsible for repairing 'Limited Common Elements' like a designated carport?

Short Answer

Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.

Detailed Answer

In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.

Alj Quote

[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.

Legal Basis

Declaration Article 5.2

Topic Tags

  • maintenance
  • limited common elements
  • carport

Question

Am I financially liable for damage caused by my tenants?

Short Answer

Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.

Detailed Answer

The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.

Alj Quote

Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.

Legal Basis

Declaration Article 5.3

Topic Tags

  • tenant liability
  • rental property
  • damages

Question

Who has the burden of proof in an administrative hearing against the HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • evidence
  • legal standard

Question

Can I get my filing fee reimbursed if my petition is denied?

Short Answer

No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.

Detailed Answer

The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • filing fees
  • costs
  • reimbursement

Case

Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?

Short Answer

No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.

Detailed Answer

The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).

Alj Quote

The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • jurisdiction
  • scope of hearing
  • violation responsibility

Question

Is it required to send my violation dispute response by certified mail?

Short Answer

Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.

Detailed Answer

The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.

Alj Quote

The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.

Legal Basis

ARIZ. REV. STAT. § 33-1242(B)

Topic Tags

  • certified mail
  • procedural requirements
  • contesting violations

Question

What constitutes 'due process' for an HOA violation?

Short Answer

Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.

Detailed Answer

Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.

Alj Quote

Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • due process
  • notice
  • board hearing

Question

Who is responsible for repairing 'Limited Common Elements' like a designated carport?

Short Answer

Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.

Detailed Answer

In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.

Alj Quote

[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.

Legal Basis

Declaration Article 5.2

Topic Tags

  • maintenance
  • limited common elements
  • carport

Question

Am I financially liable for damage caused by my tenants?

Short Answer

Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.

Detailed Answer

The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.

Alj Quote

Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.

Legal Basis

Declaration Article 5.3

Topic Tags

  • tenant liability
  • rental property
  • damages

Question

Who has the burden of proof in an administrative hearing against the HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • evidence
  • legal standard

Question

Can I get my filing fee reimbursed if my petition is denied?

Short Answer

No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.

Detailed Answer

The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • filing fees
  • costs
  • reimbursement

Case

Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Victoria Whitaker (petitioner)
    Appeared on her own behalf without counsel
  • Kimball Whitaker (observer)
    Observed hearing; potential witness for petitioner
  • Realtor (realtor)
    Petitioner's realtor (name not provided)

Respondent Side

  • Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
  • Joseph Milin (board member)
    Villas at Sunland Condominium Association
    Board President; Witness
  • Steven Cheff (property manager)
    Haywood Community Management (HMC)
    Community Manager and Compliance Inspector; Witness
  • Carly Collins (property management admin)
    Haywood Community Management (HMC)
    Admin responsible for correspondence
  • Harvey Colin (property management admin)
    Haywood Community Management (HMC)
    Signed resale disclosure statement
  • Neighbor (Unit 15) (witness)
    Unit 15 resident
    Provided alleged eyewitness testimony regarding the damage

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Presiding Administrative Law Judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate (ADRE)

Other Participants

  • Chad and Ida Carpenter (prior owners/sellers)
    Unit 16 (prior owners)
    The sellers of the property at issue
  • Kevin Finley (contractor)
    Signature
    Provided repair estimate

Jeffrey D Points v. Olive 66 Condominium Association

Posted on by

Case Summary

Case ID 21F-H2121059-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-08
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner’s petition was affirmed in part (violation of A.R.S. § 33-1258 regarding documents) and denied in part (no violation of A.R.S. § 33-1248 regarding open meetings). Respondent was ordered to reimburse $500.00 of the filing fee and comply with A.R.S. § 33-1258.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jeffrey D Points Counsel —
Respondent Olive 66 Condominium Association Counsel MacKenzie Hill

Alleged Violations

A.R.S. § 33-1258
A.R.S. § 33-1248

Outcome Summary

The Petitioner’s petition was affirmed in part (violation of A.R.S. § 33-1258 regarding documents) and denied in part (no violation of A.R.S. § 33-1248 regarding open meetings). Respondent was ordered to reimburse $500.00 of the filing fee and comply with A.R.S. § 33-1258.

Why this result: Petitioner failed to prove the violation of A.R.S. § 33-1248 because evidence of improper notice was lacking and the topic discussed in executive session was likely covered by a statutory exemption.

Key Issues & Findings

Access to Association Records

Respondent violated A.R.S. § 33-1258 by failing to provide certain requested 2021 invoices that were in existence at the time of the request within the statutory 10-day period.

Orders: Respondent must comply with A.R.S. § 33-1258 going forward. Petitioner reimbursed $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1805

Open Board Meetings

Petitioner failed to establish a violation of A.R.S. § 33-1248 regarding the March 25, 2021, board meeting, as the issue regarding notice was not established and the topic discussed (Landscaping Bid Review) likely fell under a statutory exemption.

Orders: Petitioner failed to establish the alleged violation of A.R.S. § 33-1248.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1248
  • A.R.S. § 33-1804

Analytics Highlights

Topics: condominium association, document request, open meeting, executive session, invoices, filing fee refund
Additional Citations:

  • A.R.S. § 33-1248
  • A.R.S. § 33-1258
  • A.R.S. § 33-1804
  • A.R.S. § 33-1805
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

21F-H2121059-REL Decision – 909631.pdf

Uploaded 2026-04-24T11:37:01 (47.7 KB)

21F-H2121059-REL Decision – 909633.pdf

Uploaded 2026-04-24T11:37:11 (117.7 KB)

21F-H2121059-REL Decision – 909631.pdf

Uploaded 2026-01-23T17:38:43 (47.7 KB)

21F-H2121059-REL Decision – 909633.pdf

Uploaded 2026-01-23T17:38:48 (117.7 KB)

This decision arises from the administrative hearing in the matter of *Jeffrey D Points v. Olive 66 Condominium Association*. The hearing, held on August 19, 2021, before Administrative Law Judge Tammy L. Eigenheer, addressed allegations that the Olive 66 Condominium Association (Respondent) violated Arizona statutes concerning document availability and open meetings.

Key Facts and Legal Framework

The Respondent is a condominium unit owners’ association located in Phoenix, Arizona. The Petitioner, Jeffrey D. Points, alleged violations, initially citing homeowner association (HOA) statutes (A.R.S. §§ 33-1804 and 33-1805). Due to the Respondent’s status, the legal focus shifted to the corresponding condominium statutes: A.R.S. § 33-1248 (meetings) and A.R.S. § 33-1258 (records). Petitioner bore the burden of proving violations by a preponderance of the evidence.

Main Issues and Arguments

The dispute centered on two key issues:

  1. Improper Executive Session (A.R.S. § 33-1248): Petitioner challenged the use of a closed session during the March 25, 2021, Board Meeting, specifically regarding the Landscaping Bid Review. The statute allows meetings to be closed for matters relating to the job performance of or specific complaints against an individual employee of a contractor. Respondent’s witness testified that the review addressed specific performance issues with a landscaping company employee.
  2. Failure to Produce Documents (A.R.S. § 33-1258): Petitioner made numerous requests for association records, including invoices and 1099s. The statute requires financial and other non-privileged records to be made reasonably available within ten business days of a request. Petitioner also asserted a right to examine *all* association documents in person at the office. Respondent argued that allowing unlimited in-person review was unduly burdensome due to the need to remove confidential documents and ongoing COVID-19 concerns.

Legal Conclusions and Outcome

The Administrative Law Judge (ALJ) reached the following conclusions of law:

  • Closed Session (A.R.S. § 33-1248): The ALJ found that the Respondent properly considered the landscaping issue in executive session because it fell under the statutory exception concerning the job performance of an individual contractor employee. Petitioner failed to establish that the meeting notice was improper or that the executive session violated A.R.S. § 33-1248.
  • Document Production (A.R.S. § 33-1258): The ALJ rejected Petitioner’s assertion of a right to examine all documents in person. However, Respondent’s counsel acknowledged that certain requested 2021 invoices were in existence at the time of the request but were not provided to the Petitioner within the required 10-day statutory period. This failure constituted a violation of A.R.S. § 33-1258.

The Final Decision

The Petitioner’s petition was affirmed in part and denied in part. Although a violation of the document production statute (A.R.S. § 33-1258) was established, the ALJ found that no civil penalty was appropriate.

The Order required the following remedy:

  1. Respondent must reimburse Petitioner $500.00 of the filing fee for the issue on which the Petitioner prevailed.
  2. Respondent is directed to comply with the requirements of A.R.S. § 33-1258 going forward.

Questions

Question

Can I demand to inspect every single HOA document in person at the management office?

Short Answer

No. While records must be reasonably available, you do not have the right to peruse all documents at will.

Detailed Answer

The Administrative Law Judge ruled that the statute requiring records be 'reasonably available' does not grant an unlimited right to inspect all documents in person. The HOA can withhold certain confidential documents, and sorting through everything to remove them may be considered unduly burdensome.

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

  • Records Request
  • Inspection Rights

Question

Is it a violation if the HOA fails to provide requested invoices within 10 days?

Short Answer

Yes. If the documents exist and are not provided within the statutory timeframe, it is a violation.

Detailed Answer

The ALJ found the Association in violation of the law because they acknowledged that requested invoices existed at the time of the request but were not provided to the homeowner.

Alj Quote

Respondent’s witness acknowledged that certain invoices requested by Petitioner were in existence at the time of the request, but were not provided to Petitioner. Such a failure to provide the documents requested was a violation of A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Invoices
  • Timeliness

Question

Can the HOA Board discuss vendor contracts or issues in a closed executive session?

Short Answer

Yes, if the discussion involves specific complaints or performance issues regarding an individual employee of the contractor.

Detailed Answer

The ALJ ruled that a 'Landscaping Bid Review' was properly held in executive session because the testimony indicated it involved specific performance issues with an employee of the landscaping company.

Alj Quote

Respondent’s witness asserted that the issue regarding the landscaping bid review was a specific performance issue with an employee of the landscaping company. As that topic falls under the exception listed in A.R.S. § 33-1248(A)(4), Respondent properly considered the issue in an executive session closed to its members.

Legal Basis

A.R.S. § 33-1248(A)(4)

Topic Tags

  • Open Meetings
  • Executive Session
  • Vendors

Question

Will the HOA be fined if they are found to have violated records request laws?

Short Answer

Not necessarily. The ALJ has discretion regarding civil penalties.

Detailed Answer

In this case, even though a violation was found regarding the failure to provide invoices, the judge decided that no civil penalty was appropriate based on the facts presented.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • Penalties
  • Enforcement

Question

Who has the burden of proof in a dispute with the HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a preponderance of the evidence.

Detailed Answer

The homeowner is responsible for providing evidence that outweighs the evidence offered by the HOA. If the homeowner fails to provide sufficient evidence (such as proof of when a meeting agenda was issued), the claim will likely fail.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Burden of Proof

Question

Can I get my filing fee reimbursed if I win?

Short Answer

Yes, typically for the portion of the case on which you prevail.

Detailed Answer

The ALJ ordered the Association to reimburse the homeowner $500.00, which represented the filing fee for the specific issue (records request) where the homeowner won.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner their $500.00 filing fee for the issue on which they prevailed.

Legal Basis

Order

Topic Tags

  • Remedies
  • Fees

Question

What if I suspect the HOA altered a document they sent me?

Short Answer

You must provide proof. Mere assertion is not enough.

Detailed Answer

The homeowner claimed a landscaping contract was altered but provided no evidence. The ALJ ruled that an assertion without merit cannot be the basis for finding a violation.

Alj Quote

Petitioner’s assertion that the landscaping contract was altered in some way is completely without merit and cannot be the basis for a finding that Respondent violated A.R.S. § 33-1258.

Legal Basis

Evidence

Topic Tags

  • Evidence
  • Fraud Allegations

Question

Do Open Meeting laws apply to Condominium Associations?

Short Answer

Yes, under A.R.S. § 33-1248.

Detailed Answer

Although the homeowner originally cited the Planned Community statutes (A.R.S. § 33-1804), the hearing proceeded under the correct Condominium statutes (A.R.S. § 33-1248), which contain similar open meeting requirements.

Alj Quote

After discussion, the hearing proceeded with the understanding that the statutes applicable to the instant matter were A.R.S. § 33-1248… and A.R.S. § 33-1258…

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • Jurisdiction
  • Condos vs HOAs

Case

Docket No
21F-H2121059-REL
Case Title
Jeffrey D Points vs. Olive 66 Condominium Association
Decision Date
2021-09-08
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I demand to inspect every single HOA document in person at the management office?

Short Answer

No. While records must be reasonably available, you do not have the right to peruse all documents at will.

Detailed Answer

The Administrative Law Judge ruled that the statute requiring records be 'reasonably available' does not grant an unlimited right to inspect all documents in person. The HOA can withhold certain confidential documents, and sorting through everything to remove them may be considered unduly burdensome.

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

  • Records Request
  • Inspection Rights

Question

Is it a violation if the HOA fails to provide requested invoices within 10 days?

Short Answer

Yes. If the documents exist and are not provided within the statutory timeframe, it is a violation.

Detailed Answer

The ALJ found the Association in violation of the law because they acknowledged that requested invoices existed at the time of the request but were not provided to the homeowner.

Alj Quote

Respondent’s witness acknowledged that certain invoices requested by Petitioner were in existence at the time of the request, but were not provided to Petitioner. Such a failure to provide the documents requested was a violation of A.R.S. § 33-1258.

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Invoices
  • Timeliness

Question

Can the HOA Board discuss vendor contracts or issues in a closed executive session?

Short Answer

Yes, if the discussion involves specific complaints or performance issues regarding an individual employee of the contractor.

Detailed Answer

The ALJ ruled that a 'Landscaping Bid Review' was properly held in executive session because the testimony indicated it involved specific performance issues with an employee of the landscaping company.

Alj Quote

Respondent’s witness asserted that the issue regarding the landscaping bid review was a specific performance issue with an employee of the landscaping company. As that topic falls under the exception listed in A.R.S. § 33-1248(A)(4), Respondent properly considered the issue in an executive session closed to its members.

Legal Basis

A.R.S. § 33-1248(A)(4)

Topic Tags

  • Open Meetings
  • Executive Session
  • Vendors

Question

Will the HOA be fined if they are found to have violated records request laws?

Short Answer

Not necessarily. The ALJ has discretion regarding civil penalties.

Detailed Answer

In this case, even though a violation was found regarding the failure to provide invoices, the judge decided that no civil penalty was appropriate based on the facts presented.

Alj Quote

Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.

Legal Basis

Administrative Discretion

Topic Tags

  • Penalties
  • Enforcement

Question

Who has the burden of proof in a dispute with the HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a preponderance of the evidence.

Detailed Answer

The homeowner is responsible for providing evidence that outweighs the evidence offered by the HOA. If the homeowner fails to provide sufficient evidence (such as proof of when a meeting agenda was issued), the claim will likely fail.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Burden of Proof

Question

Can I get my filing fee reimbursed if I win?

Short Answer

Yes, typically for the portion of the case on which you prevail.

Detailed Answer

The ALJ ordered the Association to reimburse the homeowner $500.00, which represented the filing fee for the specific issue (records request) where the homeowner won.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner their $500.00 filing fee for the issue on which they prevailed.

Legal Basis

Order

Topic Tags

  • Remedies
  • Fees

Question

What if I suspect the HOA altered a document they sent me?

Short Answer

You must provide proof. Mere assertion is not enough.

Detailed Answer

The homeowner claimed a landscaping contract was altered but provided no evidence. The ALJ ruled that an assertion without merit cannot be the basis for finding a violation.

Alj Quote

Petitioner’s assertion that the landscaping contract was altered in some way is completely without merit and cannot be the basis for a finding that Respondent violated A.R.S. § 33-1258.

Legal Basis

Evidence

Topic Tags

  • Evidence
  • Fraud Allegations

Question

Do Open Meeting laws apply to Condominium Associations?

Short Answer

Yes, under A.R.S. § 33-1248.

Detailed Answer

Although the homeowner originally cited the Planned Community statutes (A.R.S. § 33-1804), the hearing proceeded under the correct Condominium statutes (A.R.S. § 33-1248), which contain similar open meeting requirements.

Alj Quote

After discussion, the hearing proceeded with the understanding that the statutes applicable to the instant matter were A.R.S. § 33-1248… and A.R.S. § 33-1258…

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • Jurisdiction
  • Condos vs HOAs

Case

Docket No
21F-H2121059-REL
Case Title
Jeffrey D Points vs. Olive 66 Condominium Association
Decision Date
2021-09-08
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jeffrey D Points (petitioner)
    Appeared on their own behalf

Respondent Side

  • MacKenzie Hill (respondent attorney)
    The Brown Law Group, PLLC
    Represented Olive 66 Condominium Association
  • Nathan Tennyson (respondent attorney)
    Represented Olive 66 Condominium Association
  • Cathy Hacker (association manager)
    Olive 66 Condominium Association
    Provided testimony as Association Manager,
  • Musa (individual/contractor)
    Mentioned regarding 1099s and invoices; referred to as 'Musa', and 'M. Sayegh'
  • Lorinda Brown (individual/contractor)
    Mentioned regarding 1099s and invoices

Neutral Parties

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

Other Participants

  • Tim (individual)
    Mentioned regarding 1099s/invoices; reportedly 'has not done any work on the property',

Thomas A & Jade Bossert v. Silverbell West Association, Inc.

Posted on by

Case Summary

Case ID 21F-H2120011-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-04-16
Administrative Law Judge Adam D. Stone
Outcome Petitioner was deemed the prevailing party after Respondent was found in violation of A.R.S. § 33-1258(A) for failing to provide specific financial records (bank statements, check copies) and A.R.S. § 33-1243(J) for failing to complete the 2019 financial compilation. The ALJ declined to impose a civil penalty but ordered Respondent to reimburse the Petitioner's filing fees of $1,000.00.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas A & Jade Bossert Counsel Anthony Tsontakis
Respondent Silverbell West Association, Inc. Counsel Nicholas C Nogami & Timothy D Butterfield

Alleged Violations

ARIZ. REV. STAT. § 33-1258(A) & ARIZ. REV. STAT. § 33-1243(J)

Outcome Summary

Petitioner was deemed the prevailing party after Respondent was found in violation of A.R.S. § 33-1258(A) for failing to provide specific financial records (bank statements, check copies) and A.R.S. § 33-1243(J) for failing to complete the 2019 financial compilation. The ALJ declined to impose a civil penalty but ordered Respondent to reimburse the Petitioner's filing fees of $1,000.00.

Key Issues & Findings

Failure to disclose records and complete annual financial compilation

Respondent violated A.R.S. § 33-1258(A) by failing to provide bank account statements and check copies, and violated A.R.S. § 33-1243(J) by failing to complete the 2019 financial compilation. Petitioner did not meet the burden regarding the 2018 financial report.

Orders: Respondent was ordered to reimburse Petitioner's filing fees of $1,000.00 within 30 days.

Filing fee: $1,000.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1258(A)
  • ARIZ. REV. STAT. § 33-1243(J)

Analytics Highlights

Topics: Homeowners Association, Records Access, Financial Compilation, Statutory Violation, Condominium Association
Additional Citations:

  • ARIZ. REV. STAT. § 33-1258(A)
  • ARIZ. REV. STAT. § 33-1243(J)
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.05
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2120011-REL Decision – 865401.pdf

Uploaded 2026-04-27T09:41:32 (42.0 KB)

21F-H2120011-REL Decision – 872606.pdf

Uploaded 2026-04-27T09:41:35 (153.6 KB)

21F-H2120011-REL Decision – 865401.pdf

Uploaded 2026-01-23T17:35:06 (42.0 KB)

21F-H2120011-REL Decision – 872606.pdf

Uploaded 2026-01-23T17:35:09 (153.6 KB)

This summary details the administrative hearing proceedings in the matter of *Thomas A & Jade Bossert vs. Silverbell West Association, Inc.*

Case Summary: Bossert v. Silverbell West Association, Inc.

Key Facts and Parties

The Petitioner, Thomas A. and Jade Bossert, are owners of a condominium unit and members of the Silverbell West Association, Inc. (Respondent). The dispute was heard by Administrative Law Judge Adam D. Stone in the Office of Administrative Hearings (OAH). The evidentiary hearing took place on March 18, 2021.

Main Issues

The Petitioner filed a two-issue petition alleging the Association committed statutory violations:

  1. Failure to Disclose Records: Violating ARIZ. REV. STAT. § 33-1258(A) by failing to make financial and other records reasonably available for examination.
  2. Failure to Complete Financials: Violating ARIZ. REV. STAT. § 33-1243(J) by failing to complete an annual financial audit, review, or compilation within 180 days after the end of the 2018 and 2019 fiscal years.

Hearing Proceedings and Key Arguments

Petitioner testified that initial documents received following a June 2020 request were disorganized and incomplete. A subsequent request in July 2020 for specific missing items, including bank statements and cash journals, was never fulfilled. A bookkeeping expert testified that the records presented were disorganized, likely missing documents, and insufficient for making accurate 2018 and 2019 reports.

The Board President testified that they believed the initial request was met based on records held by the former Treasurer, Mr. Molley, but admitted the follow-up request was likely ignored. The tribunal found that Mr. Molley was "largely the one to blame" for unacceptable record-keeping, but also criticized the current Board President for failing to take a more active role in obtaining easily available bank statements.

Legal Conclusions and Outcome

The Administrative Law Judge found that the Petitioner had sustained the burden of proving that the Association committed two specific violations:

  1. Violation of ARIZ. REV. STAT. § 33-1258(A) (Records Disclosure): The Respondent violated the statute insofar as they failed to produce bank account statements and check copies. The fact that these records had still not been turned over was deemed "inexcusable".
  2. Violation of ARIZ. REV. STAT. § 33-1243(J) (Financial Compilation): The Respondent violated the statute by failing to complete the 2019 financial compilation.
  • *Note:* The tribunal found Petitioner did *not* meet the burden of proof regarding the 2018 financial report, as Petitioner (who was Board President at the time) could have taken more aggressive measures to secure the necessary documentation.

Final Decision

The Administrative Law Judge declined to impose a civil penalty, noting that the Board had subsequently taken steps to ensure better future record keeping.

The Petitioner was deemed the prevailing party and the Association (Respondent) was ordered to reimburse the Petitioner's filing fees of $1,000.00 within 30 days.

Questions

Question

Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?

Short Answer

No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.

Detailed Answer

The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.

Alj Quote

Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • records request
  • board duties
  • bank statements

Question

What is the deadline for the HOA to complete its annual financial compilation?

Short Answer

The compilation must be completed within 180 days after the fiscal year ends.

Detailed Answer

Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.

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

Legal Basis

ARIZ. REV. STAT. § 33-1243(J)

Topic Tags

  • financials
  • deadlines
  • compilation

Question

Will the judge always fine the HOA if they violate record-keeping laws?

Short Answer

Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.

Detailed Answer

Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.

Alj Quote

That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

What happens if I request specific accounting records (like ledgers) that the HOA simply never created?

Short Answer

The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.

Detailed Answer

If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.

Alj Quote

With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • missing records
  • record keeping

Question

If I win my case against the HOA regarding records, can I get my filing fees back?

Short Answer

Yes, the prevailing party is typically entitled to reimbursement of filing fees.

Detailed Answer

If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.

Legal Basis

Order based on prevailing party status

Topic Tags

  • reimbursement
  • fees
  • prevailing party

Question

Does a former Board President have a claim regarding missing financials from their own term?

Short Answer

It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.

Detailed Answer

If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.

Alj Quote

Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.

Legal Basis

Burden of proof standard

Topic Tags

  • board member rights
  • fiduciary duty

Case

Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?

Short Answer

No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.

Detailed Answer

The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.

Alj Quote

Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • records request
  • board duties
  • bank statements

Question

What is the deadline for the HOA to complete its annual financial compilation?

Short Answer

The compilation must be completed within 180 days after the fiscal year ends.

Detailed Answer

Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.

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

Legal Basis

ARIZ. REV. STAT. § 33-1243(J)

Topic Tags

  • financials
  • deadlines
  • compilation

Question

Will the judge always fine the HOA if they violate record-keeping laws?

Short Answer

Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.

Detailed Answer

Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.

Alj Quote

That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

What happens if I request specific accounting records (like ledgers) that the HOA simply never created?

Short Answer

The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.

Detailed Answer

If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.

Alj Quote

With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • missing records
  • record keeping

Question

If I win my case against the HOA regarding records, can I get my filing fees back?

Short Answer

Yes, the prevailing party is typically entitled to reimbursement of filing fees.

Detailed Answer

If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.

Legal Basis

Order based on prevailing party status

Topic Tags

  • reimbursement
  • fees
  • prevailing party

Question

Does a former Board President have a claim regarding missing financials from their own term?

Short Answer

It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.

Detailed Answer

If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.

Alj Quote

Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.

Legal Basis

Burden of proof standard

Topic Tags

  • board member rights
  • fiduciary duty

Case

Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Thomas A Bossert (petitioner)
    Former Board President; testified on own behalf
  • Jade Bossert (petitioner)
  • Anthony Tsontakis (petitioner attorney)
    Tsontakis Law
  • Barbara Schoneck (witness)
    Digit & Docs LLC
    Called by Petitioner

Respondent Side

  • Nicholas C Nogami (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Timothy D Butterfield (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Rex Warnix, III (board member; witness)
    Silverbell West Association, Inc.
    Current Board President; testified for Respondent/Association
  • Linda Garner (property manager; witness)
    Adam LLC
    Property manager for the Association
  • Donald Molley (board member; treasurer)
    Silverbell West Association, Inc.
    Board Treasurer responsible for financial records

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Lynda Meadows (accountant)
    Prepared 2018 financial compilation
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Email recipient

Other Participants

  • c. serrano (ADRE staff)
    Individual listed on transmission details

Donna M Bischoff v. Country Hills West Condominium Association, Inc.

Posted on by

Case Summary

Case ID 20F-H2019033-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-03-30
Administrative Law Judge Antara Nath Rivera
Outcome The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Donna M Bischoff Counsel —
Respondent Country Hills West Condominium Association, Inc. Counsel —

Alleged Violations

A.R.S. § 33-1250(C)
A.R.S. § 33-1248(B)
Bylaws Article 3, Section 2

Outcome Summary

The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.

Key Issues & Findings

Voting; proxies; absentee ballots; applicability; definition

Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.

Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1250(C)

Open meetings; exceptions

Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.

Orders: Petition upheld on this issue.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1248(B)

Selection

Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.

Orders: Petition upheld on this issue.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • Article 3, Section 2 of the Bylaws

Analytics Highlights

Topics: HOA Dispute, Condominium Association, Election Procedures, Annual Meeting, Statutory Violation, Bylaw Interpretation
Additional Citations:

  • A.R.S. § 33-1250(C)
  • A.R.S. § 33-1248(B)
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Bylaws Article 3, Section 2
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Audio Overview

Decision Documents

20F-H2019033-REL Decision – 778923.pdf

Uploaded 2026-04-24T11:24:42 (108.5 KB)

20F-H2019033-REL Decision – 778923.pdf

Uploaded 2026-01-23T17:31:15 (108.5 KB)

Briefing Document: Bischoff v. Country Hills West Condominium Association

Executive Summary

This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.

The core violations upheld by the court are:

1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.

2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.

3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.

As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.

——————————————————————————–

I. Case Overview

The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.

Case Detail

Information

Case Name

Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent

Case Number

20F-H2019033-REL

Adjudicator

Administrative Law Judge Antara Nath Rivera

Hearing Date

March 10, 2020

Decision Date

March 30, 2020

Petitioner Representative

Donna M. Bischoff (on her own behalf)

Respondent Representative

Doug Meyer, President and Director

II. Petitioner’s Allegations

The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:

• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.

• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.

• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.

The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

III. Core Issues and Factual Findings

The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.

A. Failure to Hold the 2019 Annual Meeting

• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.

• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”

• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”

B. Denial of Access to Election Records

• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.

• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.

• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.

• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.

• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.

C. Improper Prohibition of Write-In Ballots

• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”

• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.

• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.

• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.

IV. Legal Conclusions and Final Order

The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.

Final Order:

Based on the foregoing conclusions, IT IS ORDERED that:

1. The Petition filed by Donna M. Bischoff is upheld on all issues.

2. The Petitioner is deemed the prevailing party in the matter.

3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.

4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.

5. No Civil Penalty is found to be appropriate in this matter.

The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.

This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.

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Short-Answer Quiz

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

1. Who were the primary parties in the legal dispute, and what were their roles?

2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?

3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?

4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?

5. What information did the Petitioner request from the October 2018 election, and what was the initial response?

6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?

7. What is the legal standard of proof the Petitioner was required to meet in this hearing?

8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?

9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?

10. What were the key components of the final Order issued by the Administrative Law Judge?

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Answer Key

1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.

2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.

3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.

4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.

5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.

6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.

7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.

8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.

9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.

10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.

1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.

2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?

3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.

4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.

5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.

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Glossary of Key Terms

Definition

Administrative Law Judge

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.

Arizona Department of Real Estate (Department)

The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.

Arizona Revised Statutes (A.R.S.)

The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).

Bylaws

The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.

Homeowners Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.

Office of Administrative Hearings

The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.

Petitioner

The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.

Preponderance of the evidence

The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Quorum

The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.

Respondent

The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.

Select all sources
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20F-H2019033-REL

1 source

This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.

1 source

What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?

Based on 1 source

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NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Donna M Bischoff (petitioner)
    Appeared on her own behalf

Respondent Side

  • Doug Meyer (president, director, witness)
    Country Hills West Condominium Association, Inc.
    Appeared and testified on behalf of Respondent

Neutral Parties

  • Antara Nath Rivera (ALJ)
    OAH
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Decision transmitted electronically to Commissioner

Tom Pyron vs Cliffs at North Mountain Condominium Association, Inc.

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Case Summary

Case ID 17F-H1717026-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-06-19
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the petition, concluding that the HOA correctly identified only one Board position (the one-year term) was up for election in 2017 based on the Bylaws' staggered term provisions.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Pyron Counsel —
Respondent Cliffs at North Mountain Condominium Association, Inc. Counsel B. Austin Baillio

Alleged Violations

Bylaws, Article III, §§ 3.02 and 3.06, and Article IV, § 4.06

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA correctly identified only one Board position (the one-year term) was up for election in 2017 based on the Bylaws' staggered term provisions.

Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated its Bylaws.

Key Issues & Findings

Dispute over the number of Board of Director positions available for the 2017 election.

Petitioner alleged Respondent HOA violated Bylaws by stating only one Board position was up for election for a one-year term in 2017, when Petitioner contended two positions (one-year and two-year terms) were open.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Analytics Highlights

Topics: HOA Election, Bylaw Violation, Board Term, Staggered Terms, Condominium Association
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

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Decision Documents

17F-H1717026-REL Decision – 570560.pdf

Uploaded 2026-04-24T11:04:17 (120.2 KB)

17F-H1717026-REL Decision – 570560.pdf

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17F-H1717026-REL Decision – 576045.pdf

Uploaded 2026-01-23T17:19:41 (959.2 KB)

  • 2016

Study Guide: Pyron v. Cliffs at North Mountain Condominium Association, Inc.

This study guide provides a review of the administrative hearing case No. 17F-H1717026-REL between Tom Pyron (Petitioner) and the Cliffs at North Mountain Condominium Association, Inc. (Respondent). It covers the central arguments, key evidence, relevant bylaws, and the final legal decision.

Short Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences based on the provided source documents.

1. What was the single issue at the heart of Tom Pyron’s petition filed on March 16, 2017?

2. According to the Association’s bylaws, how are Board of Director terms structured when the board consists of three members?

3. What was the Petitioner’s argument regarding Jeff Oursland’s term on the Board of Directors?

4. What was the Respondent’s counter-argument regarding Barbara Ahlstrand’s 2015 election and, subsequently, Jeff Oursland’s term?

5. What actions did the Respondent take in an attempt to resolve the dispute with the Petitioner before the hearing?

6. Who was the key witness for the Respondent, and what was their role?

7. Explain the legal standard “preponderance of the evidence” as it is defined in the case documents.

8. What was the Administrative Law Judge’s core legal reasoning for concluding that only one board position was open in 2017?

9. What was the final outcome of the case as stated in the Recommended Order and adopted by the Commissioner of the Department of Real Estate?

10. Following the Final Order issued on July 12, 2017, what legal recourse was available to a party dissatisfied with the decision?

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Answer Key

1. Tom Pyron’s petition alleged that the Respondent violated its bylaws by announcing only one Board position was open for a one-year term in the 2017 election. Pyron contended that two positions—one for a one-year term and another for a two-year term—should have been up for election.

2. Bylaw Article III, § 3.02 specifies that for a three-person board, the directors hold staggered terms of one year, two years, and three years. The bylaw further dictates which terms end at which annual meetings (e.g., the two-year term ends at the second, fourth, sixth, etc., annual meetings).

3. The Petitioner argued that Barbara Ahlstrand was elected to a two-year term in 2015. Therefore, when Jeff Oursland was appointed to fill her vacancy, his term should have expired in 2017, meaning his two-year position should have been on the 2017 ballot.

4. The Respondent argued that under the plain language of Bylaw § 3.02, only the one-year and three-year terms were up for election in 2015. Since Sandra Singer received the most votes and secured the three-year term, Ms. Ahlstrand must have been elected to the one-year term, meaning Mr. Oursland’s appointed term expired in 2016.

5. In response to the petition, the Respondent twice rescheduled the 2017 annual meeting and re-issued ballots to include all candidates who had submitted an application. The Association also offered to pay the Petitioner’s $500 single-issue filing fee if he was satisfied with this resolution.

6. The key witness for the Respondent was Cynthia Quillen. She served as the Community Manager for the Association’s management company, Associated Property Management, and testified about the Board’s composition and her interpretation of the bylaws.

7. “A preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is described as the greater weight of evidence, which is sufficient to incline a fair and impartial mind to one side of an issue over the other.

8. The Judge’s decision was based on the “plain language” of Bylaw § 3.02. This bylaw dictated that only the one-year and three-year terms were up for election in 2015. Since the parties agreed Ms. Singer won the three-year term, the Judge concluded Ms. Ahlstrand must have been elected to the one-year term, making the Respondent’s subsequent actions and election notices correct.

9. The Administrative Law Judge’s Recommended Order was that the Petitioner’s petition be denied. This order was adopted by the Commissioner of the Department of Real Estate in a Final Order, making it binding on the parties.

10. According to the Final Order, a dissatisfied party could request a rehearing within thirty days by filing a petition setting forth the reasons. The document lists eight specific causes for a rehearing. A party could also appeal the final administrative decision by filing a complaint for judicial review.

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Essay Questions

Instructions: The following questions are designed to test a deeper understanding of the case. Formulate a comprehensive essay-style response for each.

1. Analyze the conflicting interpretations of the 2015 election presented by the Petitioner and the Respondent. How did the Administrative Law Judge use the “plain language” of Bylaw § 3.02 to resolve this conflict, and what does this reveal about the interpretation of governing documents in legal disputes?

2. Trace the chain of events from the 2012 election to the 2017 dispute. Explain how the board composition, terms of office, and specific actions (like Ms. Ahlstrand’s resignation) compounded to create the disagreement at the heart of this case.

3. Discuss the burden of proof in this administrative hearing. Define “preponderance of the evidence” and explain why the Petitioner, Tom Pyron, failed to meet this standard in the view of the Administrative Law Judge.

4. Examine the roles and authorities of the different entities involved: the homeowners’ association Board, the Arizona Department of Real Estate, the Office of Administrative Hearings, and the Administrative Law Judge. How do these bodies interact to resolve disputes within a planned community?

5. Based on the Final Order, outline the legal recourse available to Tom Pyron following the denial of his petition. What specific grounds for a rehearing are mentioned, and what is the process for further appeal?

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Glossary of Key Terms

Definition

Acclamation

A form of election where a candidate is declared elected without opposition, as when Sandra Singer’s election was “unanimously passed by acclamation” in 2014.

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, draws conclusions of law, and issues a recommended decision. In this case, the ALJ was Diane Mihalsky.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations. The Commissioner of the Department, Judy Lowe, issued the Final Order in this case.

Bylaws

The governing documents of the homeowners’ association that outline its rules and procedures, including the number of directors, terms of office, and process for filling vacancies.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which accepts and adopts the Administrative Law Judge’s decision. This order becomes effective and can only be changed by a successful rehearing or judicial appeal.

Office of Administrative Hearings (OAH)

An independent state agency to which the Department of Real Estate refers petitions for an evidentiary hearing.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner was Tom Pyron, a homeowner in the association.

Preponderance of the Evidence

The standard of proof required in this hearing, defined as “proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioner bore this burden to prove the Respondent violated its bylaws.

Recommended Order

The decision and order issued by the Administrative Law Judge following a hearing. In this case, it recommended that the Petitioner’s petition be denied.

Rehearing

A formal request to have a case heard again. The Final Order specifies that a petition for rehearing must be filed within thirty days and may be granted for specific causes, such as newly discovered evidence or an arbitrary decision.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Cliffs at North Mountain Condominium Association, Inc.

Staggered Terms

A system where not all board members are elected at the same time. As defined in Bylaw § 3.02, the three-person board had terms of one, two, and three years to ensure continuity.

Unexpired Portion of the Prior Director’s Term

The remainder of a board member’s term that an appointee serves after the original member resigns or is removed, as specified in Bylaw § 3.6.

We Read an HOA Lawsuit So You Don’t Have To: 3 Shocking Lessons Hidden in the Bylaws

1. Introduction: The Hidden Drama in Your Community’s Fine Print

If you live in a condominium association or a planned community, you’re familiar with the thick packet of governing documents you received at closing—the Covenants, Conditions & Restrictions (CC&Rs) and the Bylaws. For many, these documents are filed away and forgotten, seen as a collection of mundane rules about trash cans and paint colors. But hidden within that legalese is the complete operating manual for your community, and a simple misunderstanding of its contents can have significant consequences.

What happens when a homeowner’s interpretation of the rules clashes with the association’s? In a case from Arizona involving homeowner Tom Pyron and the Cliffs at North Mountain Condominium Association, the dispute escalated into a formal administrative hearing. The central question was simple: how many board seats were open for election in 2017? But this wasn’t just a procedural disagreement. Court documents reveal that before the hearing, the association offered to re-issue ballots to include all candidates and even “offered to pay Petitioner’s $500 single-issue filing fee if he was satisfied with the proposed resolution.” The homeowner refused.

This decision transforms the case from a simple rules dispute into a cautionary tale about how a deeply held belief can override a pragmatic, no-cost compromise. The official court documents offer a fascinating look at how community governance can go awry, revealing powerful, practical lessons for any homeowner or board member who believes they know what the rules should say.

2. Takeaway 1: Your Beliefs Don’t Overrule the Bylaws

What You Think the Rules Say Doesn’t Matter—Only What They Actually Say

The core of the dispute rested on a belief held by a former board member, Ms. Ahlstrand, who was elected in 2015. She testified that she believed she had been elected to a two-year term. Based on this belief, the petitioner argued that the director appointed to replace her after her resignation should have served until 2017, meaning a two-year position was open for election that year.

The Administrative Law Judge, however, looked not at what anyone believed, but at the “plain language” of the community’s governing documents. The judge’s conclusion was a matter of inescapable logic derived directly from the bylaws:

1. First, Bylaw § 3.02 clearly states that in an election with multiple open seats, “the person receiving the most votes will become the Director with the longest term.”

2. Next, the court record shows that “the parties agreed that… because she got the most votes, Ms. Singer was elected to a three-year term” in the 2015 election.

3. Finally, the judge determined that according to the same bylaw, only the one-year and three-year terms were available in 2015. Since Ms. Singer secured the three-year term, Ms. Ahlstrand, by definition, must have been elected to the only other available position: the one-year term.

The lesson is stark and unambiguous: an individual’s interpretation or assumption, however sincere, cannot change the written rules. The bylaws are the ultimate authority. As the judge stated in the final decision, the documents speak for themselves.

The Bylaws do not allow their plain language to be modified or amended by a member’s understanding.

3. Takeaway 2: The Domino Effect of a Single Resignation

A Single Resignation Can Create Years of Confusion

This entire legal conflict was set in motion by a single, routine event: a board member’s resignation. The timeline of events shows how one small action, when combined with a misunderstanding of the rules, can create a ripple effect with long-lasting consequences.

1. On August 3, 2015, the newly elected board member, Ms. Ahlstrand, resigned.

2. The Board then appointed another member, Jeff Oursland, to serve the remainder of her term, as permitted by the bylaws.

3. The critical point of contention became the length of that “remainder.” Was it the rest of a one-year term ending in 2016, or a two-year term ending in 2017?

4. The judge’s determination that Ahlstrand’s original term was only one year (as explained above) meant that Mr. Oursland’s appointed term correctly expired in 2016. He was then properly elected to a new two-year term at the 2016 meeting.

5. This sequence confirmed that the association was correct all along: only one board position (a one-year term) was actually open for election in 2017.

A single resignation created two years of confusion that ultimately required an administrative hearing to resolve. It’s a powerful reminder of how crucial it is for boards to precisely follow their own procedures, especially when handling vacancies and appointments, as one small error can cascade into years of conflict.

4. Takeaway 3: The Hidden Complexity of “Staggered Terms”

“Staggered Terms” Are Designed for Stability, But Can Cause Chaos

Many associations use staggered terms for their board of directors. The concept, outlined in Bylaw § 3.02 for the Cliffs at North Mountain, is simple: instead of all directors being elected at once, they serve terms of varying lengths (in this case, one, two, and three years). This is a common and effective practice designed to ensure leadership continuity and prevent the entire board from turning over in a single election.

However, this case reveals the hidden downside of that system: complexity. The staggered terms created an election cycle where the available term lengths changed every single year. The court documents show that in 2014, the one-year and two-year positions were on the ballot. In 2015, the one-year and three-year terms were available. This rotating schedule was difficult for members—and apparently even some board members—to track accurately.

This built-in complexity was the root cause of the entire disagreement. The system’s lack of intuitive clarity created the exact conditions necessary for a personal belief, like Ms. Ahlstrand’s, to seem plausible even when it was contrary to the bylaws. The very governance structure intended to create stability inadvertently created the fertile ground for confusion, allowing a misunderstanding to grow into a lawsuit.

5. Conclusion: The Power Is in the Paperwork

The overarching theme from this case is that in the world of community associations, the governing documents are the ultimate source of truth. They are not merely suggestions; they are the binding legal framework that dictates how the community must operate. A board’s actions and a homeowner’s rights are all defined within that paperwork.

In the end, the homeowner’s petition was denied, and the judge’s order affirmed the association’s position. The written rules, as found in the bylaws, prevailed over individual beliefs and interpretations. The case stands as a powerful testament to the importance of reading, understanding, and strictly adhering to your community’s foundational documents.

This entire conflict stemmed from a few lines in a legal document—when was the last time you read yours?

Case Participants

Petitioner Side

  • Tom Pyron (petitioner)

Respondent Side

  • B. Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
  • Cynthia Quillen (property manager)
    Associated Property Management
    Community Manager

Neutral Parties

  • Diane Mihalsky (ALJ)
  • Judy Lowe (ADRE commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (coordinator)
    HOA Coordinator/Admin Official listed for rehearing requests and transmission

Other Participants

  • Anne Fugate (witness)
    Elected to the Board in 2012
  • Barbara Ahlstrand (witness)
    Elected to the Board in 2015
  • Kevin Downey (witness)
    Candidate for 2017 election
  • John Haunschild (board member)
    Elected to the Board in 2012
  • Ron Cadaret (board member)
    Elected to the Board in 2012, re-elected 2013
  • Sandra Singer (board member)
    Elected to the Board in 2014 and 2015
  • Jeff Oursland (board member)
    Appointed to the Board in 2015, elected 2016
  • Steve Molever (board member)
    Elected to the Board in 2016

Brian Sopatk vs. The Lakeshore Village Condo. Assoc., Inc.

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Case Summary

Case ID 17F-H1716004-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2017-08-10
Administrative Law Judge Thomas Shedden
Outcome The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the HOA violated A.R.S. § 33-1260. The contested $660 fee was determined to be a working capital contribution authorized by the Association's CC&Rs (section 8.13), which is distinct from the resale disclosure fees limited by statute.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian Sopatyk Counsel Nathan Andrews, Esq. and Jill Kennedy, Esq.
Respondent The Lakeshore Village Condo. Association, Inc. Counsel Bradley R. Jardine, Esq.

Alleged Violations

ARIZ. REV. STAT. section 33-1260

Outcome Summary

The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the HOA violated A.R.S. § 33-1260. The contested $660 fee was determined to be a working capital contribution authorized by the Association's CC&Rs (section 8.13), which is distinct from the resale disclosure fees limited by statute.

Why this result: The Petitioner did not meet the burden of proof to show a statutory violation because the fee in question was a valid working capital fee collected under the CC&Rs, not an illegal transfer fee under A.R.S. § 33-1260.

Key Issues & Findings

Alleged violation of statutory maximum fee for resale disclosure/transfer documents.

Petitioner alleged the Association charged a $660 transfer fee, plus a $30 statement fee, violating A.R.S. § 33-1260, which limits aggregate fees for resale disclosure and transfer services to $400. The ALJ found the $660 fee was a working capital fee authorized by CC&R section 8.13, not a statutory disclosure fee, despite being mislabeled by the Association.

Orders: Petitioner Brian D. Sopatyk's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. section 33-1260
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 33-1242(A)(2)
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119

Analytics Highlights

Topics: HOA fees, transfer fee, working capital fund, statutory compliance, burden of proof, condominium association, resale disclosure
Additional Citations:

  • ARIZ. REV. STAT. section 33-1260
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 33-1242(A)(2)
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • A.R.S. § 41-1092.08
  • A.R.S. § 41-1092.09
  • A.R.S. § 1-243

Video Overview

Audio Overview

Decision Documents

17f-H1716004-REL Decision – 531040.pdf

Uploaded 2026-04-26T09:44:10 (67.9 KB)

17f-H1716004-REL Decision – 540004.pdf

Uploaded 2026-04-26T09:44:12 (154.0 KB)

17f-H1716004-REL Decision – 531040.pdf

Uploaded 2026-04-24T11:06:02 (67.9 KB)

17f-H1716004-REL Decision – 540004.pdf

Uploaded 2026-04-24T11:06:07 (154.0 KB)

Briefing Document: Sopatyk v. The Lakeshore Village Condominium Association, Inc.

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case Brian Sopatyk v. The Lakeshore Village Condominium Association, Inc. (Case No. 17F-H1716004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Brian Sopatyk’s allegation that the Respondent Condominium Association violated Arizona Revised Statute (A.R.S.) § 33-1260 by charging a $660 “transfer fee” upon the sale of a condominium unit, which exceeded the statutory maximum of $400 for resale disclosure services.

The Association’s defense centered on the argument that the $660 charge was not a disclosure fee but a separate “working capital fee” authorized by its Covenants, Conditions, and Restrictions (CC&Rs). The Association contended that this fee had been erroneously mislabeled as a “transfer fee” due to a clerical error inherited by its current manager. The actual statutory fee for disclosure documents, the Association argued, was a separate $30 charge paid by the seller.

After an initial hearing in November 2016 and a subsequent re-hearing in June 2017, the Administrative Law Judge consistently found that Mr. Sopatyk failed to prove the alleged violation by a preponderance of the evidence. The court concluded that the evidence supported the Association’s claim of a mislabeled working capital fee. Consequently, Mr. Sopatyk’s petition was dismissed on both occasions, and the Association was deemed the prevailing party.

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Case Overview

Parties and Jurisdiction

Representation

Petitioner

Brian Sopatyk

On his own behalf (Initial Hearing); Nathan Andrews, Esq. & Jill Kennedy, Esq. (Re-Hearing)

Respondent

The Lakeshore Village Condominium Association, Inc.

Bradley R. Jardine, Esq. (Both Hearings)

Jurisdiction

Arizona Department of Real Estate (ADRE)

Authority under A.R.S. Title 32, Ch. 20, Art. 11.

Adjudicator

Administrative Law Judge (ALJ) Thomas Shedden

Office of Administrative Hearings, Phoenix, AZ

Core Allegation and Governing Statute

• Allegation: Brian Sopatyk alleged that The Lakeshore Village Condominium Association violated A.R.S. § 33-1260 by charging fees exceeding the statutory maximum for resale disclosure services. Specifically, a $660 fee labeled as a “transfer fee” was charged when he purchased his unit.

• Petitioner’s Request: Mr. Sopatyk sought an order for the Association to comply with the statute, issue refunds to all who paid fees in excess of the maximum, and for a civil penalty to be imposed.

• Governing Statute: A.R.S. § 33-1260 stipulates that a condominium association “may charge the unit owner a fee of no more than an aggregate of four hundred dollars to compensate the association for the costs incurred in the preparation of a statement or other documents furnished… for purposes of resale disclosure, lien estoppel and any other services related to the transfer or use of the property.” The statute explicitly forbids charging any other fees for these services except as authorized.

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Chronology of Legal Proceedings

March 2, 2015

The Association issues a “Disclosure Form” for Mr. Sopatyk’s purchase, listing a $660 transfer fee and a $30 statement fee.

May 18, 2016

The Association’s Board of Directors meets to address Mr. Sopatyk’s claim. They conclude the $660 fee was a mislabeled working capital fee and direct corrective accounting.

August 9, 2016

Mr. Sopatyk files a petition with the Arizona Department of Real Estate.

November 14, 2016

The initial hearing is conducted before ALJ Thomas Shedden.

November 29, 2016

ALJ Shedden issues a decision dismissing Mr. Sopatyk’s petition.

December 13, 2016

The ADRE Commissioner, Judy Lowe, adopts the ALJ’s decision, issuing a Final Order dismissing the case.

February 7, 2017

A Notice of Re-Hearing is issued after Mr. Sopatyk requests one.

June 9, 2017

A re-hearing is conducted before ALJ Thomas Shedden.

June 26, 2017

ALJ Shedden issues a new decision, again dismissing Mr. Sopatyk’s petition.

August 1, 2017

The deadline passes for the ADRE to accept, reject, or modify the ALJ’s re-hearing decision. No action is taken.

August 10, 2017

The Office of Administrative Hearings certifies the ALJ’s decision from the re-hearing as the final administrative decision in the matter.

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Analysis of Arguments and Evidence

Petitioner’s Position (Brian Sopatyk)

• Primary Argument: The Association’s own documents, specifically the Disclosure Form and the HUD-1 settlement statement, explicitly labeled the $660 charge as a “Transfer Fee.” This amount is a prima facie violation of the $400 statutory cap in A.R.S. § 33-1260.

• Evidence Presented:

◦ March 2, 2015 Disclosure Form: Showed a required payment of a $660 “transfer fee” and a $30 “statement fee.”

◦ HUD-1 Settlement Statement: Documented that the $660 Transfer Fee was paid to the Association, with $330 paid from the Borrower’s (Sopatyk’s) funds and $330 from the Seller’s funds. It also showed the Seller paid a separate $30 Resale Statement Fee.

• Contradictory Testimony: In his sworn petition, Mr. Sopatyk stated the $660 fee was “split between the seller and the buyer.” However, during the re-hearing, he testified that he had “in fact paid the entire $660 as part of the negotiated price of the unit.” The ALJ noted this discrepancy, stating “either Mr. Sopatyk’s sworn statement or his testimony must be false.”

Respondent’s Position (The Lakeshore Village Condo. Association)

• Primary Argument: The $660 fee was not for resale disclosure services but was a working capital fee authorized by the Association’s CC&Rs. The “transfer fee” label was a historical clerical error that the Board had since identified and corrected.

• Evidence and Testimony:

◦ CC&R Section 8.13 (“Transfer Fee and Working Capital Fund”): This provision authorizes the Association to assess each new owner a fee of “at least twice the average monthly assessment” to be deposited into the working capital fund (referred to as the Reserve Fund). The monthly assessment was $328.83, making the $660 fee consistent with this rule.

◦ Testimony of Amy Telnes (Association Manager): Ms. Telnes testified that when she became manager, she was incorrectly informed that the working capital fee was the transfer fee. She affirmed that the $660 fee was deposited into the Association’s reserve fund and that the separate $30 fee was the one charged pursuant to A.R.S. § 33-1260.

◦ May 18, 2016 Board Meeting Minutes: These minutes, entered into evidence, documented the Board’s conclusion that it was collecting a working capital contribution but “erroneously calling it a transfer fee.” The Board directed Ms. Telnes to perform an accounting and transfer all such fees collected after October 1, 2013, to the Reserve Account. The minutes also show the Board voted to change its fee structure moving forward to a single $400 fee to avoid future confusion.

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Judicial Findings and Final Disposition

Standard and Burden of Proof

Across both hearings, the ALJ established that the standard of proof was a preponderance of the evidence, defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” The burden of proof rested entirely on the petitioner, Mr. Sopatyk, to demonstrate that a violation had occurred.

Initial Hearing Decision (November 29, 2016)

• Findings of Fact: The ALJ found that the Association was charging a $660 working capital fee in accordance with its CC&Rs but had been mislabeling it. It was also charging a separate $30 document preparation fee.

• Conclusion of Law: Mr. Sopatyk did not show by a preponderance of the evidence that the Association violated A.R.S. § 33-1260.

• Order: The petition was dismissed, and the decision was adopted as final by the ADRE Commissioner on December 13, 2016.

Re-Hearing Decision (June 26, 2017)

• Findings of Fact: The re-hearing produced more detailed findings but led to the same conclusion. The ALJ found that the Association had authority under its CC&Rs to collect the $660 working capital fee and that the statutory disclosure statute did not apply to this charge. The fee applicable to the statute was the $30 charge paid by the seller.

• Conclusion of Law: The ALJ reiterated that Mr. Sopatyk failed to meet his burden of proof. The Association’s argument that the claim should fail because Sopatyk did not personally pay over $400 was deemed “not persuasive,” as the statute applies to all violations regardless of particularized harm.

• Order: The petition was again ordered to be dismissed.

Final Administrative Disposition

The ADRE took no action to modify or reject the ALJ’s re-hearing decision by the statutory deadline of August 1, 2017. As a result, the Office of Administrative Hearings certified the June 26, 2017 decision as the final administrative decision on August 10, 2017, concluding the matter in favor of the Respondent Association.

Study Guide: Sopatyk v. The Lakeshore Village Condo. Association, Inc.

Quiz: Short-Answer Questions

Instructions: Answer the following ten questions based on the provided case documents. Each answer should be two to three sentences in length.

1. What specific Arizona Revised Statute did petitioner Brian Sopatyk allege that The Lakeshore Village Condominium Association violated, and what is the core requirement of that statute?

2. Identify the two fees charged in connection with Mr. Sopatyk’s unit purchase, the amount of each fee, and how they were documented on the HUD-1 disclosure statement.

3. What was the Association’s central argument for why the $660 fee did not violate the statute in question?

4. Who was the Association’s manager, and what explanation did she provide for the labeling of the $660 fee?

5. According to the Association’s Declaration of Covenants, Conditions and Restrictions (CC&Rs), what is the purpose of the fee outlined in section 8.13?

6. What was the outcome of the initial administrative hearing held on November 14, 2016?

7. During the rehearing, a discrepancy was noted between Mr. Sopatyk’s sworn petition and his testimony regarding the payment of the $660 fee. What was this discrepancy?

8. What corrective actions did the Association’s Board vote to take during its meeting on May 18, 2016, after Mr. Sopatyk raised the issue?

9. What is the standard of proof the petitioner was required to meet in this case, and did the Administrative Law Judge find that he met it?

10. What was the final, certified administrative decision in this matter after the rehearing on June 9, 2017?

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Answer Key

1. Brian Sopatyk alleged a violation of ARIZ. REV. STAT. section 33-1260. This statute requires a condominium association to provide specific disclosure documents to a prospective purchaser and limits the aggregate fee for preparing these documents and other related services to no more than four hundred dollars.

2. The two fees were a $660 “Transfer Fee” and a $30 “Resale Statement Fee.” The HUD-1 disclosure statement shows the $660 fee was split, with $330 paid by the borrower (Sopatyk) and $330 paid by the seller, while the seller alone paid the $30 fee.

3. The Association’s central argument was that the $660 fee was not a transfer fee for disclosure services but was actually a “working capital fee” collected pursuant to section 8.13 of its CC&Rs. They contended that the fee had been incorrectly labeled as a “transfer fee” due to a clerical error.

4. The Association’s manager was Amy Telnes. She testified that when she became manager, she was incorrectly told the working capital fee was the transfer fee, and these fees had been mislabeled since that time.

5. According to CC&R section 8.13 (“Transfer Fee and Working Capital Fund”), each new unit owner is to be assessed a fee of at least twice the average monthly assessment. These fees are to be deposited into the working capital fund, which the Association refers to as its Reserve Fund.

6. Following the initial hearing, Administrative Law Judge Thomas Shedden found that Mr. Sopatyk had not shown by a preponderance of the evidence that the Association violated the statute. The Judge’s decision was to dismiss Mr. Sopatyk’s petition, and this decision was adopted by the Commissioner of the Department of Real Estate.

7. In his sworn petition, Mr. Sopatyk stated that the $660 fee was split between him and the seller. However, at the hearing, he testified that he had in fact paid the entire $660 as part of the negotiated price of the unit, meaning one of his statements had to be false.

8. The Board directed Ms. Telnes to account for all working capital fees and transfer them to the Reserve Account to correct the error. The Board also determined its system was confusing and voted to assess a single transfer fee of $400 (and no other fees) on all future transactions.

9. The petitioner, Mr. Sopatyk, bore the burden of proof and was required to meet the standard of a “preponderance of the evidence.” The Administrative Law Judge concluded in both hearings that Mr. Sopatyk did not meet this burden.

10. The final decision was that Mr. Sopatyk’s petition was dismissed again. On August 10, 2017, the Administrative Law Judge’s decision from the rehearing was certified as the final administrative decision of the Department of Real Estate because the Department took no action to reject or modify it.

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Suggested Essay Questions

1. Analyze the legal concept of “preponderance of the evidence” as it is defined and applied in this case. Explain in detail why the evidence presented by the Association was deemed to have greater convincing force than the evidence presented by the Petitioner, leading to the dismissal of his petition.

2. Discuss the critical role of the Association’s governing documents, specifically CC&R section 8.13, in its successful defense. How did the language of this section allow the Association to re-characterize the disputed $660 fee and differentiate it from the fees regulated by ARIZ. REV. STAT. § 33-1260?

3. Trace the procedural history of case No. 17F-H1716004-REL, from the filing of the petition to the final certified order. Identify the key dates, participants (judges, legal counsel, witnesses), and the function of the Office of Administrative Hearings and the Department of Real Estate in the process.

4. Examine the actions taken by the Association’s Board during its May 18, 2016, meeting. Evaluate whether these actions demonstrated good-faith governance and a proactive attempt to correct a procedural error, and discuss how the minutes from this meeting were used as evidence in the hearing.

5. Despite losing the case, Mr. Sopatyk’s petition prompted significant changes in the Association’s fee structure. Argue whether the petitioner’s actions ultimately served the public interest for future condominium purchasers in the Lakeshore Village community, even though he did not prevail in his specific legal claim.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Thomas Shedden, who presides over hearings at the Office of Administrative Hearings and issues a decision based on the evidence presented.

ARIZ. REV. STAT. § 33-1260

The Arizona statute that requires a condominium association to furnish a prospective purchaser with disclosure documents and other information. It explicitly limits the fee an association can charge for these services to “no more than an aggregate of four hundred dollars.”

Burden of Proof

The responsibility of a party in a legal case to prove their claims. In this matter, the burden of proof was on the petitioner, Brian Sopatyk.

The Declaration of Covenants, Conditions and Restrictions, which are the governing documents for the condominium association. Section 8.13 of the Lakeshore Village CC&Rs authorizes the collection of a fee for a working capital fund.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Brian Sopatyk.

Preponderance of the Evidence

The standard of proof required in this case, defined as “The greater weight of the evidence… by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party defending against a petition. In this case, The Lakeshore Village Condominium Association, Inc.

Reserve Fund

The account into which the Association deposits its working capital fees. It is also referred to as the Working Capital Fund.

Statement Fee / Resale Statement Fee

A $30 fee, separate from the disputed $660, that was paid by the seller to the Association for the preparation of the resale statement. This fee was considered part of the allowable charges under ARIZ. REV. STAT. § 33-1260.

Transfer Fee

The label erroneously applied to the $660 fee on the disclosure statement and HUD-1 form. The central dispute of the case was whether this was a true transfer fee subject to the statutory cap or a mislabeled working capital fee.

Working Capital Fee

A fee authorized by CC&R section 8.13 to be assessed from each new unit owner for the purpose of funding the Association’s working capital fund (Reserve Fund). The Association successfully argued the $660 charge was this type of fee.

How a $660 Fee Sparked a Legal Showdown: 5 Surprising Lessons from a Homeowner vs. HOA Dispute

We sign, we initial, we pay—assuming every line item on our closing documents is gospel. When buying a home in a condominium association, the stack of paperwork and list of fees can feel overwhelming. But what if one of those “standard” fees wasn’t standard at all?

For homeowner Brian Sopatyk, a single $660 charge from The Lakeshore Village Condominium Association wasn’t just a number; it was a thread he pulled that unraveled a surprising story of HOA governance, legal strategy, and the power of asking “why?” This post breaks down the five most impactful takeaways from a seemingly minor dispute that went all the way through a formal hearing and re-hearing.

1. A Simple Label Can Ignite a Legal Firestorm

A clerical error triggers a full-blown legal dispute.

The entire case hinged on a single, crucial mistake: the HOA mislabeled a “working capital fee” as a “transfer fee” on its disclosure forms.

Why was this one word so important? Because Mr. Sopatyk’s formal petition alleged that by charging a “$660 transfer fee,” the HOA violated Arizona statute 33-1260, which caps fees for resale disclosure services at a maximum of $400. On its face, the $660 charge looked like a clear violation of state law.

The Association’s manager, Amy Telnes, testified that when she took over her position, she was given erroneous information that the working capital fee was the transfer fee. As a result, the charge had been incorrectly labeled ever since. This simple administrative error was enough to trigger a formal petition to the Arizona Department of Real Estate, a full administrative hearing, and eventually, a re-hearing, proving how a small clerical mistake can escalate into a significant legal conflict.

2. In the Eyes of the Law, Substance Can Trump Form

Why the fee’s purpose mattered more than its name.

The Association’s core defense was that while the name of the fee was wrong, its purpose and authority were legitimate. The $660 charge, they argued, wasn’t for resale documents (the service capped by state law), but was a “working capital fee” authorized by an entirely different rule: the Association’s own Covenants, Conditions, and Restrictions (CC&Rs).

Specifically, Section 8.13 of the CC&Rs allowed for this assessment, with the funds designated for the Association’s reserve fund. This working capital fee, in contrast, was an assessment on the new owner as mandated by the CC&Rs to ensure the association’s financial health. The actual fee for the statutory disclosure documents was a separate, compliant $30 “Resale Statement Fee,” which was paid by the seller.

The Administrative Law Judge ultimately agreed. The fee’s underlying purpose and the HOA’s authority to collect it (its substance) were deemed more important than its incorrect name on the form (its form). This is a crucial lesson for any homeowner challenging an HOA: it’s not enough to find a mistake on a form. You must be prepared to argue against the underlying authority and purpose of the action itself.

3. You Can Lose the Battle but Win the War

How a dismissed case led to a major policy victory.

Perhaps the most counter-intuitive outcome is that although Mr. Sopatyk’s petition was dismissed, his actions were the direct catalyst for a significant and positive policy change by the HOA.

In a summary of the Association’s May 18, 2016, Board Meeting, which was entered as evidence, the judge noted that the Board reviewed the very issue Mr. Sopatyk had raised. Under the pressure of his legal challenge, they came to a powerful conclusion about their own system, determining it was “confusing and unfair.”

As a direct result of this internal review prompted by the dispute, the Board voted to simplify its process. It resolved to assess a single, clear transfer fee of $400 on all future transactions, eliminating the other confusing fees. This proves that even an unsuccessful legal challenge can be a powerful tool, forcing an organization to confront and correct its own problematic practices for the benefit of all future members.

4. The ‘Burden of Proof’ Is More Than Just a Phrase

What it really means to have to prove your case.

In both the original decision and the re-hearing, the judge repeatedly stated that Mr. Sopatyk, as the petitioner, bore the “burden of proof.” This legal standard was critical to the outcome. It meant he had to prove his claim by a “preponderance of the evidence,” which the court documents defined as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

In this case, it meant Mr. Sopatyk’s job was to prove that the $660 fee was, more likely than not, an illegal charge for resale documents. The HOA’s defense—that it was a legally separate “working capital fee” that was simply mislabeled—created enough doubt that he couldn’t clear this hurdle.

5. A Small Contradiction Can Damage Credibility

When every word you say (and write) is on the record.

A fascinating detail appeared in the re-hearing decision, highlighting how every word matters in a legal proceeding.

There was a discrepancy in Mr. Sopatyk’s statements. His sworn petition, filed on August 9, 2016, stated the $660 fee was “split between the seller and the buyer.” However, during the hearing, he testified that he had “in fact paid the entire $660.”

The judge noted this contradiction directly in footnote 3 of the re-hearing decision, stating: “either Mr. Sopatyk’s sworn statement or his testimony must be false.” While not the deciding factor, this kind of inconsistency can subtly erode a petitioner’s standing. Remember the “burden of proof” from Takeaway 4? It requires convincing a judge to “incline a fair and impartial mind” to your side. Contradictions, even small ones, make that inclination much harder to achieve.

Conclusion: The Devil Is in the Details

This case is the perfect microcosm of community association disputes. It began with a clerical error (form), was adjudicated on intent (substance), was lost on a technicality (the burden of proof), yet resulted in a victory for transparency. Mr. Sopatyk may not have won his case, but he won a better system for his neighbors.

The ultimate lesson? In an HOA, the most powerful tool isn’t always a lawsuit—sometimes, it’s a magnifying glass. It leaves us with a thought-provoking question: When is it worth challenging the system for clarity and fairness, even if the outcome isn’t a clear ‘win’ on paper?

Case Participants

Petitioner Side

  • Brian Sopatyk (petitioner)
  • Nathan Andrews (petitioner attorney)
    ASU Alumni Law Group
  • Jill M. Kennedy (petitioner attorney)
    ASU Alumni Law Group
  • Chance Peterson (petitioner attorney)
    ASU Alumni Law Group
  • Judy Sopatyk (party)
    Wife of petitioner and co-purchaser of the unit

Respondent Side

  • Bradley R. Jardine (HOA attorney)
    Jardine Baker Hickman & Houston
    Attorney for Respondent
  • Amy Telnes (property manager/witness)
    The Lakeshore Village Condo. Association, Inc.
    Association manager who testified
  • Michael Cibellis (association president/witness)
    The Lakeshore Village Condo. Association, Inc.
    Association president who testified at rehearing

Neutral Parties

  • Thomas Shedden (ALJ)
  • Judy Lowe (Commissioner)
    ADRE
    Arizona Department of Real Estate Commissioner
  • Greg Hanchett (Interim Director)
    OAH
    Signed Certification of Decision
  • Abby Hansen (HOA Coordinator)
    ADRE
    Administrative contact for rehearing requests
  • Rosella J. Rodriguez (administrative staff)
    Involved in copy mailing/distribution