David Y. Samuels v. The Concorde Condominium Home Owners Association

Case Summary

Case ID 24F-H025-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-04-18
Administrative Law Judge Amy M. Haley
Outcome The petition filed by David Y. Samuels against The Concorde Condominium Home Owners Association was dismissed. The Tribunal found that Samuels lacked standing to bring the action as an individual, and the cited statute, A.R.S. § 33-1803 (Planned Community Act), was improper for this condominium dispute.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David Y. Samuels Counsel
Respondent The Concorde Condominium Home Owners Association Counsel Ashley N. Turner

Alleged Violations

A.R.S. § 33-1803

Outcome Summary

The petition filed by David Y. Samuels against The Concorde Condominium Home Owners Association was dismissed. The Tribunal found that Samuels lacked standing to bring the action as an individual, and the cited statute, A.R.S. § 33-1803 (Planned Community Act), was improper for this condominium dispute.

Why this result: Petitioner lacked standing because the property was owned by Daso Properties, LLC, not by David Y. Samuels individually. Additionally, the Petitioner brought the action under the incorrect statute, A.R.S. § 33-1803, which governs planned communities, not condominiums.

Key Issues & Findings

Alleged violation concerning late fees, collection fees, and attorney fees for delinquent assessment payments

Petitioner alleged Respondent violated A.R.S. § 33-1803 by charging unwarranted late fees, collection fees, and attorney fees for delinquent assessments.

Orders: Petitioner's petition is dismissed because Petitioner lacked standing as an individual owner, and the cause of action was brought under the improper statute (Planned Community Act) for a condominium property.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1803
  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 33-1801(A)
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: standing, condominium, planned community act, statutory violation, late fees, collection fees, attorney fees, jurisdiction, dismissal
Additional Citations:

  • A.R.S. § 33-1803
  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 33-1801(A)
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-106(D)

Video Overview

Audio Overview

Decision Documents

24F-H025-REL Decision – 1124651.pdf

Uploaded 2026-04-24T12:17:37 (48.4 KB)

24F-H025-REL Decision – 1133120.pdf

Uploaded 2026-04-24T12:17:41 (39.9 KB)

24F-H025-REL Decision – 1134423.pdf

Uploaded 2026-04-24T12:17:45 (48.2 KB)

24F-H025-REL Decision – 1139633.pdf

Uploaded 2026-04-24T12:17:49 (55.7 KB)

24F-H025-REL Decision – 1139646.pdf

Uploaded 2026-04-24T12:17:53 (7.6 KB)

24F-H025-REL Decision – 1157271.pdf

Uploaded 2026-04-24T12:18:00 (47.1 KB)

24F-H025-REL Decision – 1168680.pdf

Uploaded 2026-04-24T12:18:06 (86.1 KB)

24F-H025-REL Decision – 1124651.pdf

Uploaded 2026-01-23T18:03:59 (48.4 KB)

24F-H025-REL Decision – 1133120.pdf

Uploaded 2026-01-23T18:04:01 (39.9 KB)

24F-H025-REL Decision – 1134423.pdf

Uploaded 2026-01-23T18:04:05 (48.2 KB)

24F-H025-REL Decision – 1139633.pdf

Uploaded 2026-01-23T18:04:08 (55.7 KB)

24F-H025-REL Decision – 1139646.pdf

Uploaded 2026-01-23T18:04:12 (7.6 KB)

24F-H025-REL Decision – 1157271.pdf

Uploaded 2026-01-23T18:04:17 (47.1 KB)

24F-H025-REL Decision – 1168680.pdf

Uploaded 2026-01-23T18:04:22 (86.1 KB)

This summary outlines the proceedings, arguments, and final decision in the matter of *David Y. Samuels vs The Concorde Condominium Home Owners Association*, Case No. 24F-H025-REL, heard before Administrative Law Judge (ALJ) Amy M. Haley of the Office of Administrative Hearings (OAH).

Key Facts and Background

The case concerned a dispute over fees, fines, and assessments related to a condominium unit located in Mesa, Arizona. The property owner is Daso Properties, LLC, and the Petitioner, David Y. Samuels, is the managing member who filed the petition on his own behalf. The Respondent is The Concorde Condominium Home Owners Association (HOA). Samuels filed the petition with the Arizona Department of Real Estate (Department) around November 1, 2023, alleging the HOA violated A.R.S. § 33-1803 by charging late fees, collection fees, and attorney fees without documentation demonstrating they were warranted.

Hearing Proceedings and Key Arguments (April 3, 2024)

The hearing focused heavily on the status of the homeowner ledger and procedural issues.

Petitioner's Argument: Mr. Samuels argued that the HOA’s collection efforts were unethical or illegal. He contended that many of the late fees, collection fees, and attorney fees stemmed from a prior balance of $931.95 that was later forgiven or waived because the HOA or prior management companies could not provide documentation to support the charge. He argued that if the unsupported prior balance was removed, he was current (or even ahead) on assessments until 2024, rendering the substantial collection fees unreasonable. Additionally, fines totaling $1,645 were waved, which Samuels asserted was due to the charges being erroneous, not a "good faith gesture".

Respondent's Argument: The HOA, represented by counsel Ashley Turner, denied any statutory violation and asserted that the association was authorized to collect late fees and collection charges due to a delinquency that existed when the matter was referred for collections. More critically, the HOA raised two procedural arguments:

  1. Improper Statute: The HOA is a condominium association, governed by A.R.S. Title 33, Chapter 9, yet the petition was brought under A.R.S. § 33-1803, which governs planned communities.
  2. Lack of Standing: Mr. Samuels, as an individual, was not the legal "owner" of the unit (Daso Properties, LLC), and therefore lacked standing to bring the petition under A.R.S. § 32-2199.01(A).

Legal Outcome and Final Decision

The ALJ issued a decision on April 18, 2024, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1803.

The petition was dismissed based on two fundamental legal flaws:

  1. Lack of Standing: The Tribunal found that David Y. Samuels, as an individual and not the property owner (Daso Properties, LLC), did not have standing to bring the action under A.R.S. § 32-2199.01(A).
  2. Improper Cause of Action: The Tribunal found that the statute cited, A.R.S. § 33-1803, was improper because the property is a condominium, not a planned community, meaning the Respondent was not subject to that chapter. Consequently, Petitioner stated no claim upon which relief could be granted under the cited statute.

The petition was ordered dismissed.

Questions

Question

If my property is owned by an LLC, can I file a petition against the HOA in my own name as the managing member?

Short Answer

No. The petition must be filed by the legal owner (the LLC), not an individual member, or it will be dismissed for lack of standing.

Detailed Answer

The ALJ determined that an individual managing member of an LLC does not have standing to bring an action on behalf of the property owned by the LLC. The dispute statute specifically applies to 'owners' and 'associations'.

Alj Quote

The Tribunal finds that, after taking testimony, Petitioner, as an individual, did not have standing to bring this action… The proper party to bring the action would have been Daso Properties, LLC.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • standing
  • LLC ownership
  • procedural requirements

Question

Can I use laws meant for Planned Communities (A.R.S. § 33-1803) to dispute charges if I live in a Condominium?

Short Answer

No. Condominiums are governed by a different set of statutes (Chapter 9) than Planned Communities (Chapter 16).

Detailed Answer

The ALJ dismissed the claim because the homeowner cited the Planned Community Act (A.R.S. § 33-1803) while the property was legally a condominium. Condominiums are not subject to the Planned Community Act.

Alj Quote

However, the Property is a condominium; therefore, Respondent is not subject to the Planned Community Act. … Chapter 9 governs condominiums.

Legal Basis

A.R.S. § 33-1801(A)

Topic Tags

  • jurisdiction
  • condominium vs planned community
  • statutory application

Question

Does the Department of Real Estate have jurisdiction to hear a dispute if I am not the legal owner of the property?

Short Answer

No. The Department's jurisdiction is limited to disputes specifically between an owner and an association.

Detailed Answer

The decision clarifies that the administrative hearing process is strictly for disputes involving an 'owner' or 'association'. If the petitioner is not the legal owner (even if they manage the LLC that owns it), the Department lacks jurisdiction.

Alj Quote

The department does not have jurisdiction to hear a dispute that does not involve an owner or an association.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • jurisdiction
  • standing
  • homeowner rights

Question

Who has the burden of proof when a homeowner claims an HOA violated state laws?

Short Answer

The homeowner (Petitioner) has the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In these administrative hearings, it is the responsibility of the person bringing the complaint to provide sufficient evidence to prove their claims.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803 as alleged in his petition.

Legal Basis

Preponderance of Evidence

Topic Tags

  • burden of proof
  • evidence
  • legal standards

Question

What happens if I base my entire petition on a statute that doesn't apply to my type of property?

Short Answer

The petition will be dismissed because you have stated no claim upon which relief can be granted.

Detailed Answer

Because the petitioner cited the wrong statute (Planned Community Act for a Condominium), the judge ruled that there was no valid legal claim to rule on, resulting in dismissal.

Alj Quote

As such, Petitioner has stated no claim upon which relief can be granted under A.R.S. § 33-1801.

Legal Basis

A.R.S. § 33-1801

Topic Tags

  • dismissal
  • legal procedure
  • condominium act

Case

Docket No
24F-H025-REL
Case Title
David Y. Samuels vs The Concorde Condominium Home Owners Association
Decision Date
2024-04-18
Alj Name
Amy M. Haley
Tribunal
OAH
Agency
ADRE

Questions

Question

If my property is owned by an LLC, can I file a petition against the HOA in my own name as the managing member?

Short Answer

No. The petition must be filed by the legal owner (the LLC), not an individual member, or it will be dismissed for lack of standing.

Detailed Answer

The ALJ determined that an individual managing member of an LLC does not have standing to bring an action on behalf of the property owned by the LLC. The dispute statute specifically applies to 'owners' and 'associations'.

Alj Quote

The Tribunal finds that, after taking testimony, Petitioner, as an individual, did not have standing to bring this action… The proper party to bring the action would have been Daso Properties, LLC.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • standing
  • LLC ownership
  • procedural requirements

Question

Can I use laws meant for Planned Communities (A.R.S. § 33-1803) to dispute charges if I live in a Condominium?

Short Answer

No. Condominiums are governed by a different set of statutes (Chapter 9) than Planned Communities (Chapter 16).

Detailed Answer

The ALJ dismissed the claim because the homeowner cited the Planned Community Act (A.R.S. § 33-1803) while the property was legally a condominium. Condominiums are not subject to the Planned Community Act.

Alj Quote

However, the Property is a condominium; therefore, Respondent is not subject to the Planned Community Act. … Chapter 9 governs condominiums.

Legal Basis

A.R.S. § 33-1801(A)

Topic Tags

  • jurisdiction
  • condominium vs planned community
  • statutory application

Question

Does the Department of Real Estate have jurisdiction to hear a dispute if I am not the legal owner of the property?

Short Answer

No. The Department's jurisdiction is limited to disputes specifically between an owner and an association.

Detailed Answer

The decision clarifies that the administrative hearing process is strictly for disputes involving an 'owner' or 'association'. If the petitioner is not the legal owner (even if they manage the LLC that owns it), the Department lacks jurisdiction.

Alj Quote

The department does not have jurisdiction to hear a dispute that does not involve an owner or an association.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • jurisdiction
  • standing
  • homeowner rights

Question

Who has the burden of proof when a homeowner claims an HOA violated state laws?

Short Answer

The homeowner (Petitioner) has the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In these administrative hearings, it is the responsibility of the person bringing the complaint to provide sufficient evidence to prove their claims.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803 as alleged in his petition.

Legal Basis

Preponderance of Evidence

Topic Tags

  • burden of proof
  • evidence
  • legal standards

Question

What happens if I base my entire petition on a statute that doesn't apply to my type of property?

Short Answer

The petition will be dismissed because you have stated no claim upon which relief can be granted.

Detailed Answer

Because the petitioner cited the wrong statute (Planned Community Act for a Condominium), the judge ruled that there was no valid legal claim to rule on, resulting in dismissal.

Alj Quote

As such, Petitioner has stated no claim upon which relief can be granted under A.R.S. § 33-1801.

Legal Basis

A.R.S. § 33-1801

Topic Tags

  • dismissal
  • legal procedure
  • condominium act

Case

Docket No
24F-H025-REL
Case Title
David Y. Samuels vs The Concorde Condominium Home Owners Association
Decision Date
2024-04-18
Alj Name
Amy M. Haley
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • David Y. Samuels (petitioner)
    Daso Properties, LLC
    Managing member of the property owner (Daso Properties, LLC); Appeared on his own behalf.

Respondent Side

  • Ashley N. Turner (HOA attorney)
    Goodman Law Group
    Council for respondent; Also appeared as Ashley N. Moscarello in earlier filings.
  • Alyssa Butler (community manager)
    The Management Trust (TMT)
    Witness for the association.
  • Stephanie Beck (HOA staff)
    Involved in prior HOA correspondence regarding fines.
  • Catherine Green (HOA staff)
    Involved in prior HOA correspondence regarding fines.

Neutral Parties

  • Amy M. Haley (ALJ)
    OAH
    Conducted the hearing and issued the final decision.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Tammy L. Eigenheer (ALJ)
    OAH
    Issued an order on March 19, 2024.
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • M. Neat (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • A. Kowaleski (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].
  • G. Osborn (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission via email [email protected].

Keith W. Cunningham v. The Residences at 2211 Camelback Condominium

Case Summary

Case ID 24F-H008-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-01-11
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner's petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner's $1,000.00 filing fee and comply with the statute and CC&Rs going forward.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Keith W. Cunningham Counsel
Respondent The Residences at 2211 Camelback Condominium Association, INC Counsel Allison Preston

Alleged Violations

A.R.S. § 33-1258
CC&Rs Section 8.1.1

Outcome Summary

Petitioner's petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner's $1,000.00 filing fee and comply with the statute and CC&Rs going forward.

Key Issues & Findings

Records Request

Petitioner alleged Respondent failed to provide financial records and vendor contracts (Epic Valet, FirstService Residential, landscaping) within the statutory timeframe. The ALJ found Respondent failed to provide the documents within 10 business days of the July 10, 2023 request and subsequent July 24, 2023 request.

Orders: Respondent shall comply with A.R.S. § 33-1258 going forward.

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

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258

Insurance Coverage

Petitioner alleged Respondent failed to maintain required insurance coverage. The ALJ found Respondent's property insurance coverage ($59M) was below the appraised replacement cost ($73M) and the general liability limits did not strictly comply with CC&Rs requirements despite an umbrella policy.

Orders: Respondent shall comply with Section 8.1.1 of the CC&Rs going forward.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_win

Cited:

  • CC&Rs Section 8.1.1

Analytics Highlights

Topics: Records Request, Insurance Coverage, Condominium, Contracts, Vendor Contracts, Replacement Cost
Additional Citations:

  • A.R.S. § 33-1258
  • CC&Rs Section 8.1.1

Video Overview

Audio Overview

Decision Documents

24F-H008-REL Decision – 1099767.pdf

Uploaded 2026-04-24T12:14:44 (46.1 KB)

24F-H008-REL Decision – 1101587.pdf

Uploaded 2026-04-24T12:14:47 (49.0 KB)

24F-H008-REL Decision – 1119643.pdf

Uploaded 2026-04-24T12:14:51 (47.5 KB)

24F-H008-REL Decision – 1121917.pdf

Uploaded 2026-04-24T12:14:55 (39.3 KB)

24F-H008-REL Decision – 1132963.pdf

Uploaded 2026-04-24T12:14:58 (188.5 KB)

24F-H008-REL Decision – 1149691.pdf

Uploaded 2026-04-24T12:15:04 (39.1 KB)

24F-H008-REL Decision – 1099767.pdf

Uploaded 2026-02-12T19:18:01 (46.1 KB)

24F-H008-REL Decision – 1101587.pdf

Uploaded 2026-02-12T19:18:03 (49.0 KB)

24F-H008-REL Decision – 1119643.pdf

Uploaded 2026-02-12T19:18:04 (47.5 KB)

24F-H008-REL Decision – 1121917.pdf

Uploaded 2026-02-12T19:18:06 (39.3 KB)

24F-H008-REL Decision – 1132963.pdf

Uploaded 2026-02-12T19:18:07 (188.5 KB)

24F-H008-REL Decision – 1149691.pdf

Uploaded 2026-02-12T19:18:08 (39.1 KB)

{
“case”: {
“docket_no”: “24F-H008-REL”,
“case_title”: “In the Matter of Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”,
“decision_date”: “2024-01-11”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Keith W. Cunningham”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: null
},
{
“name”: “Allison Preston”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Carpenter Hazlewood Delgado & Bolen LLP”,
“notes”: “Represented The Residences at 2211 Camelback Condominium Association, INC”
},
{
“name”: “Kyle von Johnson”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: null,
“notes”: “Represented The Residences at 2211 Camelback Condominium Association, INC”
},
{
“name”: “Mark Teman”,
“role”: “board member”,
“side”: “respondent”,
“affiliation”: null,
“notes”: “Association President, witness”
},
{
“name”: “Allison Renow”,
“role”: “property manager”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: “General Manager (GM) on site”
},
{
“name”: “Frank Durso”,
“role”: “regional manager”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: null
},
{
“name”: “Jamie George”,
“role”: “VP of Insurance”,
“side”: “respondent”,
“affiliation”: “First Service Financial”,
“notes”: “Assists with association insurance policies”
},
{
“name”: “Holly McNelte”,
“role”: “management staff”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: “FSR team member who managed documents/files”
},
{
“name”: “Jonathan Henley”,
“role”: “insurance broker”,
“side”: “neutral”,
“affiliation”: “Gallagher”,
“notes”: null
},
{
“name”: “Brian Del Vecchio”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “OAH”,
“notes”: “Administrative Law Judge who conducted the hearing (12/8/23)”
},
{
“name”: “Tammy L. Eigenheer”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “OAH”,
“notes”: “Administrative Law Judge who wrote the decision”
},
{
“name”: “Susan Nicolson”,
“role”: “Commissioner”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: null
},
{
“name”: “AHansen”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “vnunez”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “djones”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “labril”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “mneat”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “akowaleski”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “gosborn”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
}
]
}

{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “24F-H008-REL”, “case_title”: “In the Matter of Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Keith W. Cunningham”, “party_type”: “homeowner”, “email”: “[email protected]”, “phone”: null, “attorney_name”: null, “attorney_firm”: null, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “The Residences at 2211 Camelback Condominium Association, INC”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Allison Preston”, “attorney_firm”: “Carpenter Hazlewood Delgado & Bolen LLP”, “attorney_email”: “[email protected]”, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute”, “citation”: “A.R.S. § 33-1258”, “caption”: “Records Request”, “violation(s)”: “Failure to provide requested financial records and contracts within 10 business days”, “summary”: “Petitioner alleged Respondent failed to provide financial records and vendor contracts (Epic Valet, FirstService Residential, landscaping) within the statutory timeframe. The ALJ found Respondent failed to provide the documents within 10 business days of the July 10, 2023 request and subsequent July 24, 2023 request.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 1000.0, “filing_fee_refunded”: true, “civil_penalty_amount”: 0.0, “orders_summary”: “Respondent shall comply with A.R.S. § 33-1258 going forward.”, “why_the_loss”: null, “cited”: [“A.R.S. § 33-1258”] }, { “issue_id”: “ISS-002”, “type”: “governing_documents”, “citation”: “CC&Rs Section 8.1.1”, “caption”: “Insurance Coverage”, “violation(s)”: “Failure to maintain property insurance equal to 100% of replacement cost and general liability insurance limits as required”, “summary”: “Petitioner alleged Respondent failed to maintain required insurance coverage. The ALJ found Respondent’s property insurance coverage (59M)wasbelowtheappraisedreplacementcost(73M) and the general liability limits did not strictly comply with CC&Rs requirements despite an umbrella policy.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 0.0, “filing_fee_refunded”: false, “civil_penalty_amount”: 0.0, “orders_summary”: “Respondent shall comply with Section 8.1.1 of the CC&Rs going forward.”, “why_the_loss”: null, “cited”: [“CC&Rs Section 8.1.1”] } ], “money_summary”: { “issues_count”: 2, “total_filing_fees_paid”: 1000.0, “total_filing_fees_refunded”: 1000.0, “total_civil_penalties”: 0.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “yes”, “summarize_judgement”: “Petitioner’s petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner’s $1,000.00 filing fee and comply with the statute and CC&Rs going forward.”, “why_the_loss”: null }, “analytics”: { “cited”: [“A.R.S. § 33-1258”, “CC&Rs Section 8.1.1”], “tags”: [“Records Request”, “Insurance Coverage”, “Condominium”, “Contracts”, “Vendor Contracts”, “Replacement Cost”] } }

{ “case”: { “docket_no”: “24F-H008-REL”, “case_title”: “Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How many days does my HOA have to provide records after I request them?”, “short_answer”: “The HOA has 10 business days to fulfill a request for examination of records.”, “detailed_answer”: “According to Arizona law cited in the decision, an association must make financial and other records reasonably available for examination within ten business days of a member’s request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “A.R.S. § 33-1258” ] }, { “question”: “Can my HOA claim they don’t have to provide specific contracts if they are not uploaded to the web portal?”, “short_answer”: “No. If the records exist and aren’t privileged, the HOA must make them available for examination, regardless of whether they are on a portal.”, “detailed_answer”: “In this case, the HOA failed to provide signed vendor contracts that existed, claiming they provided what was on the portal. The ALJ found that failing to provide these specific requested documents constituted a violation.”, “alj_quote”: “Respondent did not assert or establish that any of the requested documents were subject to any of the exceptions provided for in statute. Accordingly, Petitioner was entitled to examine those documents.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “contracts”, “online portal” ] }, { “question”: “If my CC&Rs require specific insurance liability limits, does an umbrella policy count towards meeting them?”, “short_answer”: “Not necessarily. The ALJ ruled that a base policy lower than the CC&R requirement was non-compliant, even with a large umbrella policy.”, “detailed_answer”: “The CC&Rs required $3,000,000 per occurrence. The HOA had $1,000,000 coverage plus a $50,000,000 umbrella. The ALJ ruled the general liability insurance was not in compliance because the specific base limit was not met.”, “alj_quote”: “While Respondent had an umbrella policy in addition to the general liability insurance, Respondent’s general liability insurance was not in compliance with the applicable CC&Rs.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “compliance”, “CC&Rs” ] }, { “question”: “Must the HOA insure the building for its full replacement cost?”, “short_answer”: “Yes, if the CC&Rs state the insurance must equal 100% of the current replacement cost.”, “detailed_answer”: “The HOA obtained an appraisal showing a replacement cost of $73 million but maintained coverage of only $59 million. The ALJ found this violated the CC&Rs requirement for 100% replacement cost coverage.”, “alj_quote”: “Accordingly, Respondent’s property insurance was not in compliance with the applicable CC&Rs at the time the petition was filed.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “property value”, “CC&Rs” ] }, { “question”: “Will I get my filing fee back if I win the hearing?”, “short_answer”: “The ALJ has the authority to order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “After granting the petition and finding the HOA in violation, the judge specifically ordered the respondent to pay back the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $1,000.00 filing fee.”, “legal_basis”: “Order”, “topic_tags”: [ “remedies”, “filing fees”, “costs” ] }, { “question”: “What happens if I accidentally cite the wrong statute number in my complaint?”, “short_answer”: “It may not be dismissed if the context of your complaint makes it clear what you are disputing.”, “detailed_answer”: “The HOA tried to dismiss the case because the homeowner cited the Planned Community statute instead of the Condominium statute. The judge denied this because the checkboxes and narrative provided sufficient notice of the claim.”, “alj_quote”: “While it may be true Petitioner hand wrote A.R.S. §33-1805… the context surrounding Petitioner’s hand written statute provides adequate notice.”, “legal_basis”: “Due Process / Notice”, “topic_tags”: [ “procedure”, “complaint forms”, “legal error” ] }, { “question”: “What is the standard of proof I need to meet to win against my HOA?”, “short_answer”: “You must prove your case by a “preponderance of the evidence.””, “detailed_answer”: “The homeowner bears the burden of proof. This standard means showing that the fact sought to be proved is more probable than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258 and the Association’s governing documents.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “evidence” ] }, { “question”: “Will the HOA be fined a civil penalty if I prove they violated the law?”, “short_answer”: “Not automatically. The ALJ decides if a penalty is appropriate based on the facts.”, “detailed_answer”: “Even though the HOA was found to have violated record laws and insurance requirements, the judge decided not to assess a civil penalty in this specific instance.”, “alj_quote”: “Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.”, “legal_basis”: “Judicial Discretion”, “topic_tags”: [ “penalties”, “fines”, “enforcement” ] } ] }

{ “case”: { “docket_no”: “24F-H008-REL”, “case_title”: “Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How many days does my HOA have to provide records after I request them?”, “short_answer”: “The HOA has 10 business days to fulfill a request for examination of records.”, “detailed_answer”: “According to Arizona law cited in the decision, an association must make financial and other records reasonably available for examination within ten business days of a member’s request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “A.R.S. § 33-1258” ] }, { “question”: “Can my HOA claim they don’t have to provide specific contracts if they are not uploaded to the web portal?”, “short_answer”: “No. If the records exist and aren’t privileged, the HOA must make them available for examination, regardless of whether they are on a portal.”, “detailed_answer”: “In this case, the HOA failed to provide signed vendor contracts that existed, claiming they provided what was on the portal. The ALJ found that failing to provide these specific requested documents constituted a violation.”, “alj_quote”: “Respondent did not assert or establish that any of the requested documents were subject to any of the exceptions provided for in statute. Accordingly, Petitioner was entitled to examine those documents.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “contracts”, “online portal” ] }, { “question”: “If my CC&Rs require specific insurance liability limits, does an umbrella policy count towards meeting them?”, “short_answer”: “Not necessarily. The ALJ ruled that a base policy lower than the CC&R requirement was non-compliant, even with a large umbrella policy.”, “detailed_answer”: “The CC&Rs required $3,000,000 per occurrence. The HOA had $1,000,000 coverage plus a $50,000,000 umbrella. The ALJ ruled the general liability insurance was not in compliance because the specific base limit was not met.”, “alj_quote”: “While Respondent had an umbrella policy in addition to the general liability insurance, Respondent’s general liability insurance was not in compliance with the applicable CC&Rs.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “compliance”, “CC&Rs” ] }, { “question”: “Must the HOA insure the building for its full replacement cost?”, “short_answer”: “Yes, if the CC&Rs state the insurance must equal 100% of the current replacement cost.”, “detailed_answer”: “The HOA obtained an appraisal showing a replacement cost of $73 million but maintained coverage of only $59 million. The ALJ found this violated the CC&Rs requirement for 100% replacement cost coverage.”, “alj_quote”: “Accordingly, Respondent’s property insurance was not in compliance with the applicable CC&Rs at the time the petition was filed.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “property value”, “CC&Rs” ] }, { “question”: “Will I get my filing fee back if I win the hearing?”, “short_answer”: “The ALJ has the authority to order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “After granting the petition and finding the HOA in violation, the judge specifically ordered the respondent to pay back the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $1,000.00 filing fee.”, “legal_basis”: “Order”, “topic_tags”: [ “remedies”, “filing fees”, “costs” ] }, { “question”: “What happens if I accidentally cite the wrong statute number in my complaint?”, “short_answer”: “It may not be dismissed if the context of your complaint makes it clear what you are disputing.”, “detailed_answer”: “The HOA tried to dismiss the case because the homeowner cited the Planned Community statute instead of the Condominium statute. The judge denied this because the checkboxes and narrative provided sufficient notice of the claim.”, “alj_quote”: “While it may be true Petitioner hand wrote A.R.S. §33-1805… the context surrounding Petitioner’s hand written statute provides adequate notice.”, “legal_basis”: “Due Process / Notice”, “topic_tags”: [ “procedure”, “complaint forms”, “legal error” ] }, { “question”: “What is the standard of proof I need to meet to win against my HOA?”, “short_answer”: “You must prove your case by a “preponderance of the evidence.””, “detailed_answer”: “The homeowner bears the burden of proof. This standard means showing that the fact sought to be proved is more probable than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258 and the Association’s governing documents.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “evidence” ] }, { “question”: “Will the HOA be fined a civil penalty if I prove they violated the law?”, “short_answer”: “Not automatically. The ALJ decides if a penalty is appropriate based on the facts.”, “detailed_answer”: “Even though the HOA was found to have violated record laws and insurance requirements, the judge decided not to assess a civil penalty in this specific instance.”, “alj_quote”: “Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.”, “legal_basis”: “Judicial Discretion”, “topic_tags”: [ “penalties”, “fines”, “enforcement” ] } ] }

Case Participants

Petitioner Side

  • Keith W. Cunningham (petitioner)

Respondent Side

  • Allison Preston (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen LLP
    Represented The Residences at 2211 Camelback Condominium Association, INC
  • Kyle von Johnson (HOA attorney)
    Represented The Residences at 2211 Camelback Condominium Association, INC
  • Mark Teman (board member)
    Association President, witness
  • Allison Renow (property manager)
    First Service Residential
    General Manager (GM) on site
  • Frank Durso (regional manager)
    First Service Residential
  • Jamie George (VP of Insurance)
    First Service Financial
    Assists with association insurance policies
  • Holly McNelte (management staff)
    First Service Residential
    FSR team member who managed documents/files

Neutral Parties

  • Jonathan Henley (insurance broker)
    Gallagher
  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge who conducted the hearing (12/8/23)
  • Tammy L. Eigenheer (ALJ)
    OAH
    Administrative Law Judge who wrote the decision
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • mneat (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • akowaleski (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient
  • gosborn (ADRE staff)
    Arizona Department of Real Estate
    Transmission recipient

Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners

Case Summary

Case ID 23F-H053-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-10
Administrative Law Judge Brian Del Vecchio
Outcome The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah L. Masear Counsel
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello

Alleged Violations

Article II Section 3 of Respondent’s bylaws

Outcome Summary

The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.

Key Issues & Findings

Failure to hold an annual meeting as required by bylaws

The HOA failed to hold the mandatory annual meeting on March 13, 2023, as explicitly required by the amended bylaws (Article II Section 3). The meeting was subsequently scheduled for May 8, 2023, 56 days late, constituting a violation, even though the later meeting failed to meet quorum.

Orders: Petitioner’s petition is affirmed. Respondent shall reimburse Petitioner’s filing fee of $500.00. Petitioner’s request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.

Analytics Highlights

Topics: HOA, Condominium, Annual Meeting, Bylaw Violation, Filing Fee Refund
Additional Citations:

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

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-04-24T12:09:36 (115.3 KB)

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-01-23T17:57:32 (115.3 KB)

This summary addresses the legal case hearing concerning Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association (HOA), docket number 23F-H053-REL, which was heard by Administrative Law Judge (ALJ) Brian Del Vecchio on June 19, 2023. The case was referred by the Arizona Department of Real Estate.

Key Facts and Main Issue

The main issue was whether the HOA violated Article II Section 3 of its governing bylaws by failing to hold its 2023 annual meeting as required. The HOA’s bylaws, as amended in 1996, explicitly mandate that the Annual Meeting of Members "shall be held" on the second Monday in March each year. For 2023, the required date was March 13. The Petitioner, Deborah Masear, filed her complaint around April 10, 2023, after the mandated March date had passed without a meeting being scheduled.

Key Arguments and Proceedings

The Petitioner argued that the HOA had been out of compliance regarding the annual meeting schedule for both 2022 and 2023, and that the 2023 meeting was only scheduled *after* she filed her complaint.

The Respondent (HOA) admitted that the meeting was not held on the required March date. However, the HOA argued that the petition should be dismissed because they eventually noticed and held a meeting on May 8, 2023. The HOA further argued that while an election was attempted, no business or election could take place because the members failed to meet the required quorum of 25% (35 members needed), as only 29 members participated. The HOA asserted that the failure to conduct business was due to member non-participation, not a failure of the association itself.

Most Important Legal Points

The ALJ’s determination centered on the interpretation of the HOA’s bylaws. The ALJ emphasized that the phrase "shall be held" within the bylaws is not permissive. Therefore, the HOA was obligated to hold the meeting on the designated March date. The ALJ noted that the May 8, 2023, meeting was 56 days late.

Outcome and Final Decision

The ALJ concluded that the Petitioner sustained her burden of proof. The ALJ found that the Respondent’s conduct violated Article II Section 3 of its bylaws.

The ALJ affirmed the Petitioner’s petition. As relief, the HOA was ordered to reimburse the Petitioner’s filing fee of $500.00. The Petitioner's request to levy a civil penalty against the Respondent was denied. The ALJ's recommendation was set to become the final administrative order unless modified or rejected by the Department of Real Estate within 30 days.

{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }

{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }

Case Participants

Petitioner Side

  • Deborah Masear (petitioner)
    Paradise Park Condominiums Phase II HOA Member
    Also referred to as Deborah Maer

Respondent Side

  • Ashley Moscarello (HOA attorney)
    Goodman Law Group
    Appeared on behalf of Respondent
  • Carl Westlund (witness)
    Management Trust
    Community Manager for the HOA

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Also referred to as Judge Delio
  • Susan Nicolson (Commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Recipient of decision
  • vnunez (ADRE staff)
    ADRE
    Recipient of decision
  • djones (ADRE staff)
    ADRE
    Recipient of decision
  • labril (ADRE staff)
    ADRE
    Recipient of decision

Robert C. Ochs v. The Camelview Greens Homeowners Association

Case Summary

Case ID 22F-H2222048-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-04
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1805, concluding that the requested materials lists and specifications were not 'financial and other records of the association' that the HOA was legally required to possess and provide within 10 business days.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert C. Ochs Counsel
Respondent The Camelview Greens Homeowners Association Counsel Ashley Moscarello, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805 A

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1805, concluding that the requested materials lists and specifications were not 'financial and other records of the association' that the HOA was legally required to possess and provide within 10 business days.

Why this result: Petitioner failed to sustain the burden of proof that the Respondent violated the records request statute.

Key Issues & Findings

Alleged violation of records request statute (failure to timely provide materials lists/specifications related to roof replacement/repairs).

Petitioner requested materials lists and specifications regarding recent (Sept 2021) and past (since 1986) roof work on February 27, 2022. The Association provided a scope of work document from the vendor on May 11, 2022, after the petition was filed. The ALJ determined the requested documents were not established to be 'financial and other records of the association' as contemplated by the statute, and TMT was not in possession of them at the time of the request.

Orders: Petitioner's petition and request for a civil penalty were denied. Respondent was not ordered to reimburse Petitioner's filing fee.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805 A
  • ARIZ. REV. STAT. § 32-2199.02 A
  • ARIZ. REV. STAT. § 32-2199.05

Analytics Highlights

Topics: HOA records request, Planned Community Act, Roof Repair/Replacement, Condominium, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222048-REL Decision – 1003691.pdf

Uploaded 2026-01-23T17:48:15 (160.6 KB)

22F-H2222048-REL Decision – 979940.pdf

Uploaded 2026-01-23T17:48:17 (49.4 KB)

22F-H2222048-REL Decision – 979959.pdf

Uploaded 2026-01-23T17:48:18 (7.1 KB)

22F-H2222048-REL Decision – 985762.pdf

Uploaded 2026-01-23T17:48:20 (52.8 KB)

22F-H2222048-REL Decision – 986375.pdf

Uploaded 2026-01-23T17:48:22 (52.8 KB)

This summary focuses on the hearing held on September 19, 2022, before Administrative Law Judge Jenna Clark, regarding Petitioner Robert C. Ochs versus the Camel View Green Homeowners Association (HOA), concerning an alleged violation of Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1805 subsection A.

Key Facts and Underlying Dispute

The dispute arose after Petitioner Ochs' investment property sustained over $30,000 in interior damage following a severe storm in July 2021, necessitating roof replacement by the HOA's vendor around September/October 2021. When the roof leaked again in February 2022, Petitioner sought documentation regarding the repairs.

On February 27, 2022, Petitioner submitted a two-part records request to the HOA's management company (TMT), seeking: (1) materials lists and specifications for the most recent roof replacement, and (2) materials lists and specifications for all past replacements/repairs since 1986. The HOA manager replied on March 3, 2022, indicating she was "working on" the request. Petitioner filed a petition on or about April 24, 2022, after receiving no further documentation or substantive response. The HOA's legal counsel finally provided a "scope of work" document from the roofing vendor (dated September 7, 2021) on May 11, 2022, after the petition was filed.

Main Issues and Legal Arguments

The central issue was whether the HOA violated ARIZ. REV. STAT. § 33-1805A, which requires an association to make "all financial and other records of the association" reasonably available for examination within ten business days of a request.

  1. Petitioner's Argument: Petitioner argued the HOA violated the 10-day requirement. He contended that the materials lists and specifications related to the recent repair were "other records of the association" because the HOA (Camel View Greens) would have received and retained this documentation (like the "scope of work") to verify and pay the vendor's invoice by the end of 2021.
  2. Respondent's Argument: The HOA denied the violation. They argued that the materials lists and specifications requested are not "association records" contemplated by the statute, nor are they records the nonprofit corporation keeps in the ordinary course of business (unlike meeting minutes or financial records). These records belong to the vendor, who is not subject to the 10-day statutory requirement. Furthermore, the witness (Carl Westlund) testified that the management company (TMT, which started managing in 2018) did not possess the specific documents requested at the time of the request.

Legal Points and Findings

The Administrative Law Judge (ALJ) concluded that the Petitioner did not meet the burden of proof.

  • The ALJ found that the request for 35 years of prior records (since 1986) was unreasonable because the current management company (TMT) confirmed it did not obtain those records from its predecessor.
  • Regarding the records for the recent replacement, the request was not unreasonable, but the documents sought were not records kept in the ordinary course of business.
  • The record did not establish *when* the HOA or TMT received the "scope of work" from the vendor (Ideal Roofing), so it could not be proven that the document should have been supplied within the 10-day statutory window (March 11, 2022).
  • The Petitioner failed to establish that the documents were "financial" or constituted "other records of the association" as required by ARIZ. REV. STAT. § 33-1805.

Outcome

The Administrative Law Judge issued a decision on October 4, 2022, concluding that the Association's conduct was not in violation of ARIZ. REV. STAT. § 33-1805. Petitioner's petition and the request for a civil penalty were denied, and the Respondent was not required to reimburse the Petitioner's filing fee.

{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }

{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }

Case Participants

Petitioner Side

  • Robert C. Ochs (petitioner)
    Appeared on his own behalf

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Holmgren
    Appeared on behalf of respondent
  • Carl Westlund (witness)
    The Management Trust
    Division Vice President of Community Management at TMT
  • Shauna Carr (property manager)
    The Management Trust
    Former executive community manager for Camel View Greens
  • Dameon Cons (HOA attorney)
    Goodman Holmgren
    Sent response letter to Petitioner
  • Mark A. Holmgren (HOA attorney)
    Goodman Holmgren
    Counsel for Respondent listed on transmittals

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Miranda Alvarez (Legal Secretary)
    OAH
    Transmitted orders/minute entries
  • AHansen (ADRE Staff)
    ADRE
    Recipient of official documents
  • vnunez (ADRE Staff)
    ADRE
    Recipient of official documents
  • djones (ADRE Staff)
    ADRE
    Recipient of official documents
  • labril (ADRE Staff)
    ADRE
    Recipient of official documents

Other Participants

  • Jeff Centers (vendor/project manager)
    Vendor
    Contractor hired by the community

Brian D Sopatyk v. Xanadu Lake Resort Condominium, Inc.

Case Summary

Case ID 21F-H2121065-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-01
Administrative Law Judge Velva Moses-Thompson
Outcome Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian D. Sopatyk Counsel Jacob A. Kubert, Esq.
Respondent Xanadu Lake Resort Condominium, Inc. Counsel Penny L. Koepke, Esq.

Alleged Violations

CC&R Article 2 § 3(a)(2)
CC&R Article 3 § 3(d)(1)
CC&R Article 6 § 2(a)

Outcome Summary

Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.

Why this result: Petitioner lost Issue 2 because he failed to prove the Respondent's no-pet policy was arbitrarily or unreasonably applied.

Key Issues & Findings

Alleged violation of CC&R Article 2 § 3(a)(2)

The Administrative Law Judge (ALJ) concluded that screen doors are not permitted in Xanadu under CC&R Article 2 § 3(a)(2), and CC&R Article 7 (Architectural Committee authority) does not override this explicit prohibition.

Orders: Respondent is directed to comply with the requirements of CC&R Article 2 § 3(a)(2) going forward.

Filing fee: $0.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 2 § 3(a)(2)
  • CC&R Article 7

Alleged violation of CC&R Article 3 § 3(d)(1)

Petitioner alleged violation concerning the 'no-pet' policy. The ALJ concluded that Respondent is not required to allow pets, but may allow them with Board approval, and the Petitioner did not establish that the policy was arbitrarily or unreasonably applied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&R Article 3 § 3(d)(1)
  • A.R.S. § 12-548

Alleged violation of CC&R Article 6 § 2(a)

The ALJ concluded that the marquee is common area, and the Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence the $50 assessment complied with CC&R Article 6 § 5 (special assessment requirements).

Orders: Respondent is directed to comply with the requirements of CC&R Article 6 § 2(a) going forward.

Filing fee: $0.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 6 § 2(a)
  • CC&R Article 6 § 5
  • A.R.S. § 12-548

Analytics Highlights

Topics: HOA Governance, Condominium, CC&R Violation, Assessment Dispute, Architectural Control, Pet Policy, Statute of Limitations Defense
Additional Citations:

  • A.R.S. § 32-2199(1)
  • A.R.S. § 12-548
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R Article 2 § 3(a)(2)
  • CC&R Article 3 § 3(d)(1)
  • CC&R Article 6 § 2(a)
  • CC&R Article 6 § 5
  • CC&R Article 7

Video Overview

Audio Overview

Decision Documents

21F-H2121065-REL Decision – 913797.pdf

Uploaded 2026-04-24T11:37:41 (41.8 KB)

21F-H2121065-REL Decision – 913859.pdf

Uploaded 2026-04-24T11:37:47 (5.9 KB)

21F-H2121065-REL Decision – 921820.pdf

Uploaded 2026-04-24T11:37:55 (100.1 KB)

21F-H2121065-REL Decision – 921823.pdf

Uploaded 2026-04-24T11:38:00 (112.8 KB)

21F-H2121065-REL Decision – 913797.pdf

Uploaded 2026-01-23T17:39:10 (41.8 KB)

21F-H2121065-REL Decision – 913859.pdf

Uploaded 2026-01-23T17:39:13 (5.9 KB)

21F-H2121065-REL Decision – 921820.pdf

Uploaded 2026-01-23T17:39:16 (100.1 KB)

21F-H2121065-REL Decision – 921823.pdf

Uploaded 2026-01-23T17:39:19 (112.8 KB)

This summary outlines the proceedings, arguments, and final decision in the matter of *Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.*, heard before the Office of Administrative Hearings (OAH).

Key Facts and Proceedings

The Petitioner, Brian D. Sopatyk, a unit owner and member of the Respondent condominium association (Xanadu Lake Resort Condominium, Inc.), filed a triple-issue petition on or about June 29, 2021, alleging violations of the Covenants, Conditions, and Restrictions (CC&Rs). The matter was referred to the OAH for an evidentiary hearing. The hearing took place on September 21, 2021, with Administrative Law Judge (ALJ) Velva Moses-Thompson presiding. The record was held open until October 12, 2021, solely for receiving post-hearing briefs concerning the application of the affirmative defense of the Statute of Limitations. The Arizona Department of Real Estate has jurisdiction over these types of petitions regarding alleged condominium association violations.

Main Issues and Arguments

Petitioner Sopatyk brought three claims, asserting the Respondent violated specific CC&R articles:

  1. Issue 1 (Screen Doors): Whether Respondent violated CC&R Article 2 § 3(a)(2) by directing and authorizing the installation of security screen doors, which are external items generally prohibited. Respondent argued the Architectural Committee had the authority to allow the installations under CC&R Article 7.
  2. Issue 2 (Pets): Whether Respondent violated CC&R Article 3 § 3(d)(1) by barring pets without guidelines. Respondent contended that this CC&R article does not require them to allow pets.
  3. Issue 3 (Marquee Assessment): Whether Respondent violated CC&R Article 6 § 2(a) by levying a $50 monthly fee on commercial units for marquee repair costs. Petitioner argued repairs must be paid out of the reserve fund derived from regular common expenses. Respondent countered that the $50 charge was a rental fee for unit owners advertising on the marquee, not an unauthorized assessment.

The Respondent also raised the affirmative defense that A.R.S. § 12-548 (Statute of Limitations) barred Issues 2 and 3.

Key Legal Points and Final Decision

The ALJ issued a decision on November 1, 2021, relying on the principle that unambiguous restrictive covenants must be enforced to give effect to the intent of the parties.

  1. Statute of Limitations: The ALJ rejected the defense, concluding that A.R.S. § 12-548 is inapplicable because that statute pertains to actions for debt evidenced by a written contract, which the petition was not.
  2. Issue 1 (Screen Doors): Petitioner prevailed. The ALJ concluded that screen doors are absolutely not permitted under CC&R Article 2 § 3(a)(2). CC&R Article 7 granting authority to the Architectural Committee cannot override the clear bar established by Article 2 § 3(a)(2), as doing so would render the prohibition meaningless.
  3. Issue 2 (Pets): Respondent prevailed. The CC&R permits, but does not require, the Board to allow pets. The Petitioner failed to prove by a preponderance of the evidence that the consistent prohibition of pets was arbitrarily or unreasonably applied.
  4. Issue 3 (Marquee Assessment): Petitioner prevailed. The ALJ concluded the marquee is part of the common area. The Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence that the $50 charge complied with the requirements for imposing a special assessment under CC&R Article 6 § 5.

Outcome: The Petitioner was deemed the prevailing party regarding Issues 1 and 3, and the Respondent prevailed regarding Issue 2. The Respondent was ordered to comply with CC&R Article 2 § 3(a)(2) and Article 6 § 2(a) going forward. Respondent was further ordered to pay Petitioner his filing fee of $1,000.00 within thirty days. No civil penalty was imposed.

Questions

Question

Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?

Short Answer

No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.

Detailed Answer

Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.

Alj Quote

If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.

Legal Basis

Contract Interpretation

Topic Tags

  • Architectural Control
  • Board Authority
  • CC&R Interpretation

Question

If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?

Short Answer

No. The Board has discretion to deny permission.

Detailed Answer

If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.

Alj Quote

The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).

Legal Basis

Board Discretion

Topic Tags

  • Pets
  • Rules Enforcement

Question

Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?

Short Answer

Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.

Detailed Answer

The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.

Alj Quote

The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.

Legal Basis

CC&R Article 6 § 2(a)

Topic Tags

  • Assessments
  • Common Areas
  • Financials

Question

Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?

Short Answer

No.

Detailed Answer

The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.

Alj Quote

A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.

Legal Basis

A.R.S. § 12-548 (distinguished)

Topic Tags

  • Procedure
  • Statute of Limitations

Question

Can the HOA levy a special assessment for repairs without a vote of the members?

Short Answer

No, not if the CC&Rs require a member vote.

Detailed Answer

If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.

Alj Quote

Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.

Legal Basis

CC&R Article 6 § 5

Topic Tags

  • Special Assessments
  • Voting

Question

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

Short Answer

Yes.

Detailed Answer

The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Fees

Question

How are conflicts or ambiguities in the CC&Rs interpreted by the judge?

Short Answer

They are construed as a whole to determine the underlying purpose.

Detailed Answer

Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Common Law Interpretation

Topic Tags

  • Legal Standards
  • CC&R Interpretation

Case

Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?

Short Answer

No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.

Detailed Answer

Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.

Alj Quote

If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.

Legal Basis

Contract Interpretation

Topic Tags

  • Architectural Control
  • Board Authority
  • CC&R Interpretation

Question

If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?

Short Answer

No. The Board has discretion to deny permission.

Detailed Answer

If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.

Alj Quote

The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).

Legal Basis

Board Discretion

Topic Tags

  • Pets
  • Rules Enforcement

Question

Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?

Short Answer

Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.

Detailed Answer

The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.

Alj Quote

The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.

Legal Basis

CC&R Article 6 § 2(a)

Topic Tags

  • Assessments
  • Common Areas
  • Financials

Question

Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?

Short Answer

No.

Detailed Answer

The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.

Alj Quote

A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.

Legal Basis

A.R.S. § 12-548 (distinguished)

Topic Tags

  • Procedure
  • Statute of Limitations

Question

Can the HOA levy a special assessment for repairs without a vote of the members?

Short Answer

No, not if the CC&Rs require a member vote.

Detailed Answer

If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.

Alj Quote

Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.

Legal Basis

CC&R Article 6 § 5

Topic Tags

  • Special Assessments
  • Voting

Question

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

Short Answer

Yes.

Detailed Answer

The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Fees

Question

How are conflicts or ambiguities in the CC&Rs interpreted by the judge?

Short Answer

They are construed as a whole to determine the underlying purpose.

Detailed Answer

Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Common Law Interpretation

Topic Tags

  • Legal Standards
  • CC&R Interpretation

Case

Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brian D. Sopatyk (petitioner)
    Unit Owner
  • Jacob A. Kubert (petitioner attorney)
    Dessaules Law Group

Respondent Side

  • Penny L. Koepke (respondent attorney)
    Maxwell Morgan PC

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (clerk/staff)
    Transmitting agent mentioned in distribution list

Lee & Kim Edwards v. Scottsdale Embassy Condominium Association

Case Summary

Case ID 21F-H2120028-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-07-28
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lee & Kim Edwards Counsel Terry Foster, Esq.
Respondent Scottsdale Embassy Condominium Association Counsel

Alleged Violations

A.R.S. § 33-1255

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or A.R.S. § 33-1255, ruling that the statute was inapplicable due to the specific provisions in the Declaration regarding the 1/26 assessment calculation.

Why this result: Petitioner failed to meet the burden of proof, and the ALJ determined A.R.S. § 33-1255 was superseded by the Declaration, which mandated assessments based on the undivided 1/26 interest in the common elements.

Key Issues & Findings

Assessment calculation based on undivided interest in common areas

Petitioner challenged the Association's decision to change assessments from a historical square footage basis to a 1/26 interest calculation, arguing that this method violates A.R.S. § 33-1255 by charging for limited common elements (patios/parking).

Orders: The petition of Lee & Kim Edwards is dismissed; Respondent is deemed the prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1255
  • Declaration Article I, Section 5
  • Declaration Article II, Section 5
  • Declaration Article II, Section 7
  • Declaration Article IV, Section 4
  • Declaration Article VI, Section 9

Analytics Highlights

Topics: condominium, assessment, cc&r, statutory interpretation, common elements, limited common elements
Additional Citations:

  • A.R.S. § 32-2199(1)
  • A.R.S. § 33-1255
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369
  • Powell v. Washburn, 211 Ariz. 553
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70

Video Overview

Audio Overview

Decision Documents

21F-H2120028-REL Decision – 899379.pdf

Uploaded 2026-04-24T11:32:11 (123.6 KB)

21F-H2120028-REL Decision – 856603.pdf

Uploaded 2026-04-24T11:32:19 (98.1 KB)

Assessment Methodology Dispute: Edwards v. Scottsdale Embassy Condominium Association

Executive Summary

This document provides a comprehensive analysis of the legal dispute between homeowners Lee & Kim Edwards (Petitioners) and the Scottsdale Embassy Condominium Association (Respondent) concerning a change in the methodology for calculating homeowner assessments. The core of the conflict was the Association’s decision to shift from a historical practice of assessments based on unit square footage to a uniform rate where each of the 26 units pays an equal 1/26 share of the common expenses.

The dispute was adjudicated by an Administrative Law Judge (ALJ) in two separate hearings. In both instances, the ALJ ruled in favor of the Association, dismissing the petitions filed by the Edwards.

Key Takeaways:

Change in Methodology: The Association’s Board, acting on legal advice received in January 2020, concluded that its 40-year practice of using a square-footage-based assessment violated the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Board subsequently implemented a 1/26 equal-share assessment method after a majority of homeowners selected this option.

Initial Ruling on “Uniform Rate”: In the first hearing in February 2021, the Petitioners argued that the historical square footage method was a “uniform rate” and that the Association had waived its right to change the long-standing practice. The ALJ rejected this, finding that the new 1/26 rate complied with the CC&Rs’ requirement for a “uniform rate” (Article VI, Section 9) and aligned with each unit’s specified 1/26 undivided interest in the common elements (Article VI, Section 4(d)).

Rehearing Ruling on State Statute: The Petitioners were granted a rehearing in July 2021, where they argued that the 1/26 method violated Arizona statute A.R.S. § 33-1255 by improperly charging all owners for “limited common elements” like patios and parking spaces. The ALJ again ruled against the Petitioners, concluding that the state statute did not apply. The ruling was based on a key provision in the statute: “Unless otherwise provided for in the declaration.” The judge found that the Association’s Declaration did provide otherwise by defining patios and parking as general common elements and explicitly mandating that costs be shared based on each unit’s 1/26 interest.

Final Outcome: The petition was definitively dismissed after the rehearing, making the ALJ’s order binding. The Association’s adoption of the 1/26 assessment rate was upheld as compliant with its governing documents.

——————————————————————————–

Background of the Dispute

The legal conflict originated from a single-issue petition filed on November 20, 2020, by Lee and Kim Edwards, owners of unit 6937 in the Scottsdale Embassy Condominium development. The petition, filed with the Arizona Department of Real Estate, alleged that the Scottsdale Embassy Condominium Association had violated its CC&Rs, specifically Article VI, Section 9, and Article IV, Section 1.

The central issue was the Association Board’s decision to change the long-standing method of calculating homeowner assessments. For over 40 years, assessments had been based on the square footage of each unit. In 2020, the Board implemented a new system where the Association’s annual budget was divided equally among the 26 units, with each owner paying a 1/26 share. The Petitioners sought to enforce the historical calculation method unless and until the CC&Rs were properly amended.

Chronology of the Assessment Change

Historical Practice: For more than four decades, the Association calculated and charged member assessments based on the square footage of each condominium unit.

Legal Consultation (January 2020): Two members of the Association’s Board consulted with an attorney regarding the legality of the historical assessment method.

Attorney Recommendation (January 24, 2020): The attorney advised the Association that, to ensure compliance with the CC&Rs, it should calculate assessments based on each homeowner’s 1/26 interest in the common areas. The attorney’s letter stated:

Homeowner Consultation: Following the legal advice, the Board informed homeowners that the prior square-footage method violated the CC&Rs. The Board sought input on three potential assessment methods: the 1/26 rate, a variable blended rate, or continuing with the square footage rate. A majority of homeowners selected the 1/26 rate. The Board noted that any method other than the 1/26 rate would require a formal amendment to the CC&Rs.

Implementation (September 26, 2020): The Board officially notified homeowners that it would begin charging assessments based on the 1/26 rate and that an amendment to the CC&Rs was not necessary to implement this change.

Initial Hearing and Decision (February 2021)

An evidentiary hearing was held on February 9, 2021, before Administrative Law Judge Velva Moses-Thompson.

Arguments Presented

Petitioners (Edwards)

1. The historical square footage rate qualified as a “uniform rate” and was compliant with the CC&Rs.
2. By using the square footage rate for over 40 years, the Association had waived its right to enforce a different method like the 1/26 rate.

Respondent (Association)

1. The plain language of the CC&Rs requires that each homeowner pay an assessment based on the 1/26 rate.
2. It is not legally possible to waive a mandatory CC&R requirement through past practice.

On February 19, 2021, the ALJ issued a decision dismissing the petition. The judge’s conclusions of law were based on a direct interpretation of the CC&Rs:

Uniform Rate Compliance: The ALJ determined that the “preponderance of the evidence” showed that the Association’s 1/26 rate was a uniform rate that complied with Article VI, Section 9 of the CC&Rs.

Burden of Proof: The Petitioners failed to meet their burden to prove that the Association had violated its governing documents.

Outcome: The Association was deemed the prevailing party, and the petition was dismissed.

Rehearing and Final Decision (July 2021)

The Petitioners filed a request for a rehearing on March 30, 2021, which was granted. The rehearing was held on July 8, 2021. The Respondent did not appear at this hearing, as its counsel had withdrawn from representation without formally notifying the tribunal.

In the rehearing, the Petitioners introduced a new argument, alleging that the 1/26 assessment method violated Arizona state law, specifically A.R.S. § 33-1255.

• The core of this argument was that the 1/26 rate improperly included charges for “limited common elements,” such as patios and assigned parking spaces.

• The Petitioners contended that this forced all homeowners to pay for the maintenance of elements that were assigned to and benefited fewer than all units, in direct violation of the statute.

On July 28, 2021, the ALJ issued a final decision, once again dismissing the petition. The ruling hinged on the precise wording of both the state statute and the Association’s Declaration.

Applicability of A.R.S. § 33-1255: The judge found that the statute did not apply to this matter. The relevant section of the law, A.R.S. § 33-1255(C), begins with the critical phrase: “Unless otherwise provided for in the declaration…”

Supremacy of the Declaration: The ALJ concluded that the Association’s Declaration did provide otherwise. The CC&Rs explicitly:

◦ Define “Common Elements” broadly to include patios and parking areas (Article I, Section 3).

◦ Establish that each unit has an “undivided interest in the general common areas” of 1/26 (Article I, Section 5).

◦ Mandate that each unit’s share of costs for repair and maintenance of common areas is the “same as its undivided interest in the common elements” (Article IV, Section 4(d)).

Final Outcome: Because the Declaration’s specific provisions overrode the general terms of the state statute, the Association was found to be in compliance. The petition was dismissed, and the order was deemed binding on the parties.

Key Legal Principles and Definitions

Concept

Definition / Application in Case

Burden of Proof

The Petitioners were required to establish their claim by a “preponderance of the evidence.”

Preponderance of the Evidence

Defined as “proof as convinces the trier of fact that the contention is more probably true than not.” The ALJ found the Petitioners failed to meet this standard in both hearings.

Restrictive Covenants

Arizona law requires that unambiguous restrictive covenants be enforced to give effect to the parties’ intent and be interpreted as a whole. The ALJ’s decisions were based on a direct interpretation of the CC&Rs’ language.

Common Elements (per CC&Rs)

A broad definition including multifamily structures, land, roofs, ceilings, foundations, storage spaces, patios, parking areas, recreational facilities, lawns, pipes, and conduits.

Unit (per CC&Rs)

A freehold estate consisting of the interior space of an apartment. The definition explicitly states that common elements are not part of the unit.

Undivided Interest (per CC&Rs)

Article I, Section 5 clearly establishes that “The undivided interest in the general common areas… which shall be conveyed with each respective units shall be 1/26.” This provision was central to the final ruling.

Study Guide: Edwards v. Scottsdale Embassy Condominium Association

This study guide provides a comprehensive review of the administrative case between Lee & Kim Edwards and the Scottsdale Embassy Condominium Association, based on the provided legal decisions. It includes a short-answer quiz, an answer key, suggested essay questions, and a detailed glossary of key terms.

Short-Answer Quiz

Answer the following questions in two to three sentences each, based on the information provided in the case documents.

1. What was the central conflict between the Petitioners (Lee & Kim Edwards) and the Respondent (Scottsdale Embassy Condominium Association)?

2. For over 40 years, how did the Association historically calculate assessments for homeowners?

3. What specific event in January 2020 prompted the Association’s Board to change the assessment method?

4. In the first hearing on February 9, 2021, what were the two main arguments presented by Mr. Edwards?

5. What was the Administrative Law Judge’s conclusion regarding the “uniform rate” requirement from CC&Rs Article VI, Section 9 in the initial decision?

6. Upon what new legal grounds did the Petitioners base their March 30, 2021, request for a re-hearing?

7. According to the CC&Rs, what is the defined undivided interest in the general common areas for each unit?

8. Why did the Administrative Law Judge ultimately conclude that Arizona Revised Statutes (A.R.S.) § 33-1255 did not apply in this case?

9. What legal standard of proof did the Petitioners need to meet to successfully prove their case?

10. What was the final, binding outcome of the re-hearing held on July 8, 2021?

——————————————————————————–

Answer Key

1. The central conflict concerned the method for calculating homeowner assessments. The Petitioners argued for the historical method based on unit square footage, while the Respondent implemented a new method where each of the 26 units paid an equal share (1/26 rate) of the Association’s costs.

2. For over 40 years, the Association historically calculated assessments based on the square footage of each condominium unit. This practice was changed by the Board in 2020.

3. In January 2020, two Board members met with an attorney who advised that to comply with the CC&Rs, the Association should charge assessments based on each homeowner’s 1/26 interest in the common areas, not on square footage.

4. Mr. Edwards argued that the historical square footage rate was a “uniform rate” that complied with the CC&Rs. He also contended that by using this method for 40 years, the Association had waived its right to enforce a different assessment method like the 1/26 rate.

5. The Judge concluded that the Respondent’s assessment method, based on a uniform rate of 1/26 of the Association’s costs for each unit, did comply with Article VI, Section 9. Therefore, the Petitioners failed to prove the Association had violated the CC&Rs.

6. The Petitioners based their request for a re-hearing on the new allegation that the Respondent had violated Arizona Revised Statutes (A.R.S.) § 33-1255. They argued the 1/26 rate improperly required members to pay for limited common elements, such as patios and parking spaces, not assigned to them.

7. According to Article I, Section 5 of the Declaration (CC&Rs), the undivided interest in the general common areas established and conveyed with each respective unit is 1/26.

8. The Judge concluded that A.R.S. § 33-1255 did not apply because the statute itself contains an exception: “Unless otherwise provided for in the declaration.” In this case, the Association’s Declaration explicitly required that each member be charged an assessment equivalent to their 1/26 interest in the total costs, which included patios and parking areas.

9. The Petitioners bore the burden of proof to establish their claims by a “preponderance of the evidence.” This standard requires proof that convinces the trier of fact that a contention is more probably true than not.

10. Following the re-hearing, the Administrative Law Judge again ordered that the petition of Lee & Kim Edwards be dismissed. The Respondent was deemed the prevailing party, and the order was declared binding on the parties.

——————————————————————————–

Essay Questions

The following questions are designed for longer, essay-style responses. Answers are not provided.

1. Trace the evolution of the Petitioners’ legal strategy from the initial petition filed on November 20, 2020, to the arguments made during the re-hearing on July 8, 2021. How did their core arguments change, and what new evidence or legal statutes were introduced?

2. Analyze the concept of a “uniform rate” as required by Article VI, Section 9 of the CC&Rs. Discuss how both the Petitioners and the Respondent interpreted this phrase to support their respective assessment methods (square footage vs. 1/26 rate).

3. Explain in detail the role of A.R.S. § 33-1255 in the re-hearing. Why did the Petitioners believe it supported their case, and what specific language in both the statute and the Association’s Declaration led the Administrative Law Judge to rule that it did not apply?

4. Evaluate the actions taken by the Association’s Board of Directors in 2020. Consider their consultation with an attorney, their communication with homeowners, and their final decision to implement the 1/26 rate. Discuss whether these actions were consistent with the powers and obligations outlined in the CC&Rs.

5. Discuss the legal argument of “waiver” raised by Mr. Edwards in the first hearing. Explain what he meant by this and why the Association’s 40-year history of using a square-footage-based assessment was central to this claim. Why did this argument ultimately fail?

——————————————————————————–

Glossary of Key Terms

Definition

1/26 Rate

The assessment method where the Association’s annual budget is divided 26 ways, with each unit responsible for paying an equal portion. This is based on each unit’s 1/26 undivided interest in the common areas as specified in the CC&Rs.

Administrative Law Judge (ALJ)

The independent judicial officer who presides over administrative hearings, hears evidence, and issues a decision. In this case, the ALJ was Velva Moses-Thompson.

A.R.S. § 32-2199(1)

The Arizona Revised Statute that permits a condominium unit owner to file a petition with the Department of Real Estate for a hearing regarding alleged violations of the Condominium Act.

A.R.S. § 33-1255

The Arizona Revised Statute concerning common expenses. It states that unless the declaration provides otherwise, expenses for a limited common element shall be assessed against the units to which it is assigned, and expenses benefitting fewer than all units shall be assessed exclusively against the units benefitted.

Arizona Department of Real Estate

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

Burden of Proof

The obligation on a party in a legal proceeding to establish its claims by a required standard of evidence. In this case, the Petitioners bore the burden of proof.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set up the guidelines for a planned community or condominium. Also referred to as the “Declaration” in the provided documents.

Common Area / Common Elements

As defined in Article I, Section 3 of the CC&Rs, this includes the multifamily structure (except for the units), land, air space, bearing walls, roofs, storage spaces, patios, recreational facilities, lawns, pipes, and other premises designed for common use.

Declaration

Another term for the Covenants, Conditions, and Restrictions (CC&Rs).

Lee & Kim Edwards

The Petitioners in the case and owners of unit 6937 in the Scottsdale Embassy Condominium development.

Office of Administrative Hearings

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

Petitioners

The party that initiates a legal action or petition. In this case, Lee & Kim Edwards.

Preponderance of the Evidence

The evidentiary standard required to be met by the Petitioners. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Respondent

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

Restricted Common Area

As defined in Article I, Section 3(b) of the CC&Rs, this refers to a separately designed and exclusive parking area for each unit as assigned by the Board of Directors.

Scottsdale Embassy Condominium Association

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

Square Footage Rate

The historical method of calculating assessments for over 40 years, where each unit’s assessment was based on its square footage.

Uniform Rate

A requirement from Article VI, Section 9 of the CC&Rs that states both regular and special assessments must be fixed at a uniform rate for all units. The interpretation of this term was central to the dispute.

As defined in Article I, Section 4 of the CC&Rs, a separately designated freehold estate consisting of the space bounded by the interior surfaces of the perimeter walls, floors, ceilings, windows, and floors of each apartment. It does not include common elements.

Waiver

A legal argument made by the Petitioners that because the Association had charged assessments based on square footage for 40 years, it had relinquished or “waived” its right to enforce a different method.

4 Shocking Lessons from an HOA Lawsuit That Could Upend How You See Your Fees

Introduction: The 40-Year Mistake

If you live in a condominium or a community governed by a Homeowners Association (HOA), you likely operate under a simple assumption: the way things have always been done is the correct and legal way. Monthly fees, maintenance schedules, and community rules that have been in place for decades feel permanent and unassailable. But what if they aren’t?

This was the central question in the case of Lee & Kim Edwards versus the Scottsdale Embassy Condominium Association. For over 40 years, the Association calculated homeowner fees based on the square footage of each unit—a practice that seemed fair and logical, and one that was never questioned by residents.

Then came the twist. In January 2020, after consulting with an attorney, the HOA board announced a shocking revelation: their 40-year-old assessment method was a direct violation of the community’s own governing documents. The board presented the legal findings to the community and sought their input on how to proceed. After being given the choice between the old method, a blended rate, or a new flat-rate fee that complied with the rules, most homeowners voted for the compliant flat-rate system for every single unit, regardless of its size.

Homeowners sued to keep the old method, sparking a legal battle that went all the way to an administrative court. The resulting decisions offer surprising and crucial lessons for every homeowner paying HOA dues. Here are the four most impactful takeaways from the case that could change how you view your own community’s rules.

1. “Past Practice” Means Nothing if It Violates the Rules

The primary argument made by the petitioners, Mr. and Mrs. Edwards, was that the Association had “waived its right” to change the assessment method. After all, by using the square-footage calculation for four decades, hadn’t they established an unbreakable precedent? It seemed like a common-sense argument rooted in history and consistency.

The court, however, completely rejected this line of reasoning. The Administrative Law Judge’s decision was not based on historical practice but on the clear, written rules found in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Association argued that it’s “not possible to waive the CC&R requirement,” and the court agreed.

The Lesson: This case powerfully demonstrates that tradition or “how things have always been done” cannot override the explicit language of an HOA’s governing documents. The CC&Rs are a contract. The lesson is clear: if your HOA’s practice contradicts its documents, the practice is invalid. The board has a fiduciary duty to follow the written rules, not a 40-year-old mistake.

2. Your CC&Rs Are a Binding Contract—Read Them

Throughout the legal proceedings, the Administrative Law Judge consistently referred back to the specific text of the CC&Rs to make a final decision. The entire case ultimately hinged on the interpretation of a few key sentences written decades ago.

The most critical passage, which decided the outcome, was from Article VI, Section 4(d) of the community’s governing documents:

“Each unit’s share shall be the same as its undivided interest in the common elements of the total amount determined under the subparagraphs (a), (b), (c), and (d) above.” —Scottsdale Embassy Condominium Association CC&Rs, Article VI, Section 4(d)

This single sentence was the linchpin. It explicitly linked each unit’s assessment share to its “undivided interest in the common elements.” Another section of the document, Article I, Section 5, had already established that interest as an equal 1/26 for all 26 units.

The Lesson: This is a classic example of legal cross-referencing in a contract. Section 4(d) provided the instruction (base fees on “undivided interest”), while Article I, Section 5 provided the specific value (1/26). With both parts present and unambiguous, the court had no choice but to enforce them exactly as written, leaving no room for interpretations based on fairness or history. The contract was the contract.

3. A “Uniform Rate” Might Not Mean What You Think

One of the central points of contention was the term “uniform rate.” Article VI, Section 9 of the CC&Rs required that all assessments “must be fixed at a uniform rate for all units.”

The homeowners argued that the square footage rate was, in fact, a “uniform rate”—a consistent price per square foot applied to every unit. It’s an interpretation many of us might find reasonable.

However, the HOA Board and the court had a different interpretation. The judge found that the flat 1/26 rate was the correct interpretation of a “uniform rate” because it was uniformly applied to every unit’s established 1/26 interest in the common areas. In the court’s view, the “rate” being applied uniformly was the 1/26 fraction of the total budget. The fact that this resulted in different dollar amounts for square-footage fees was irrelevant; the legal share was what had to be uniform.

The Lesson: Common-sense terms like “uniform” can have very specific legal meanings within the context of your governing documents. The true definition is found not in a dictionary, but in how the term is defined and applied by the rest of the document’s provisions.

4. Your HOA’s Rules Can Sometimes Override State Law

In a final attempt to overturn the decision, the petitioners filed for a re-hearing. This time, they cited a specific Arizona state law, A.R.S. 33-1255. This statute says that expenses for “limited common elements”—things like assigned patios or parking spaces that only benefit specific units—should be assessed only against those units that benefit from them. The homeowners argued that the new 1/26 flat fee unfairly forced them to pay for their neighbors’ patios and parking spots, a direct violation of state law.

Surprisingly, this argument also failed. The reason is found in the crucial introductory clause of the state law itself: “Unless otherwise provided for in the declaration…”

Because the Scottsdale Embassy’s Declaration did provide otherwise—by explicitly rolling all general and restricted common area costs into the total budget before calculating each unit’s 1/26 share—the community’s own rules legally superseded the default state statute. The judge concluded that the state law “does not apply to this matter because the Declaration requires” a different method.

The Lesson: This is perhaps the most counter-intuitive lesson of all. This demonstrates a key principle of contract law and planned community governance: state statutes often provide a “default” rule for situations a community’s documents don’t address. However, they also grant communities the power to create their own specific rules, which, if legally permissible, will take precedence. Homeowners cannot assume that a state law automatically protects them if their community’s own governing documents have a more specific rule in place.

Conclusion: Are You Sure You Know What You Agreed To?

The central message from the Scottsdale Embassy case is undeniable: in an HOA, the written word is law. The CC&Rs and other governing documents are a binding contract that dictates the rules, regardless of 40 years of history, common-sense assumptions, or even some default state laws. What you believe is fair or standard practice is irrelevant if the document you agreed to upon purchase says otherwise.

This case was decided by a few sentences written decades ago. When was the last time you read your community’s governing documents from cover to cover?

Case Participants

Petitioner Side

  • Lee Edwards (petitioner, witness)
  • Kim Edwards (petitioner)
  • Teresa H. Foster (petitioner attorney)
    Ellis & Baker, P.C.
    Also referred to as Terri Foster and Terry Foster

Respondent Side

  • Lauren Vie (respondent attorney)
    Appeared for initial hearing; later noted as withdrawn
  • Caleb Koch (board president, witness)
    Scottsdale Embassy Condominium Association
  • Mary Edinburgh (board member, witness)
    Scottsdale Embassy Condominium Association
  • Beth Mulcahy (respondent attorney)
    Mulcahy Law Firm, PC
    Recipient of transmission; noted as withdrawn counsel prior to rehearing

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient

Other Participants

  • Miranda Alvarez (unknown)
    Associated with transmission for petitioner's attorney

John D Klemmer v. Caribbean Gardens Association

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

Refusal to manage, operate, maintain and administer common area

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

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

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

21F-H2120009-REL Decision – 876384.pdf

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

21F-H2120009-REL Decision – 843358.pdf

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

21F-H2120009-REL Decision – 843358.pdf

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

Briefing Document: Klemmer v. Caribbean Gardens Association

Executive Summary

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

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

——————————————————————————–

Case Overview

Case Name

John D Klemmer v. Caribbean Gardens Association

Case Number

21F-H2120009-REL

Jurisdiction

Arizona Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Kay A. Abramsohn

Hearing Date

November 6, 2020

Decision Date

December 17, 2020

Petitioner

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

Respondent

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

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

Petitioner’s Position (John D. Klemmer)

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

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

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

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

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

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

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

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

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

Article 8, Section 8.1: Pertains to encroachments.

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

Respondent’s Position (Caribbean Gardens Association)

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

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

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

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

Findings of Fact and Evidence

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

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

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

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

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

Legal Analysis and Conclusion of the Administrative Law Judge

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

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

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

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

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

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

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

Final Order

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

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

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

Study Guide: Klemmer v. Caribbean Gardens Association

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

Quiz: Short-Answer Questions

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

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Answer Key

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Essay Questions

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

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

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

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

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

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

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

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

Apartment

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

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

Common Elements

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

Horizontal Property Regime

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

Limited Common Elements

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

Petition

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

Petitioner

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

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

Preponderance of the Evidence

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

Respondent

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

Tribunal

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1212(4)

Topic Tags

  • Common Elements
  • Plat Maps
  • Property Boundaries

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Procedure
  • Burden of Proof
  • Evidence

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. Title 33, Chapter 16

Topic Tags

  • Jurisdiction
  • ADRE Authority
  • Dispute Resolution

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Order

Topic Tags

  • Fees
  • Penalties
  • Hearing Costs

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1212

Topic Tags

  • Definitions
  • Limited Common Elements
  • Statutes

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Article 3, Section 3.4

Topic Tags

  • Board Authority
  • Rules and Regulations
  • Common Elements

Case

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

Case Participants

Petitioner Side

  • John D. Klemmer (petitioner)
    represented himself

Respondent Side

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

Neutral Parties

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

Keith D Smith v. Sierra Foothills Condominium Association

Case Summary

Case ID 21F-H2120003-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-06-03
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Keith D Smith Counsel
Respondent Sierra Foothills Condominium Association Counsel Stuart Rayburn

Alleged Violations

CC&R section 7.1(C)
ARIZ. REV. STAT. section 33-1248

Outcome Summary

The petition was dismissed as the Petitioner failed to prove by a preponderance of the evidence that the Association violated CC&R section 7.1(C) or ARIZ. REV. STAT. section 33-1248. The rule limiting sign use was deemed reasonable.

Why this result: Petitioner failed to meet the burden of proof on both issues.

Key Issues & Findings

Alleged unreasonable discrimination in adopting rules regarding common elements (monument sign)

Petitioner alleged the Association violated CC&R 7.1(C) by adopting a rule limiting the use of the common element monument sign to only owners in Building B, arguing this was unreasonable discrimination against Building A owners.

Orders: Petition dismissed for this issue.

Filing fee: $250.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&R section 7.1(C)
  • CC&R section 6.26(a)
  • ARIZ. REV. STAT. section 33-1217

Alleged open meeting law violation at the June 10, 2020 Board meeting

Petitioner alleged the Board violated open meeting laws by communicating via email and reaching a decision prior to the June 10, 2020 meeting, claiming the President called for a vote without discussion.

Orders: Petition dismissed for this issue.

Filing fee: $250.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. section 33-1248

Analytics Highlights

Topics: Condominium, Commercial HOA, Signage rules, Open meeting law, Discrimination
Additional Citations:

  • ARIZ. REV. STAT. section 33-1248
  • CC&R section 7.1(C)
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 41-1092.07(F)(6)

Video Overview

Audio Overview

Decision Documents

21F-H2120003-REL Decision – 885949.pdf

Uploaded 2026-04-24T11:29:16 (143.3 KB)

21F-H2120003-REL Decision – 837073.pdf

Uploaded 2026-04-24T11:29:19 (103.9 KB)

21F-H2120003-REL Decision – 837073.pdf

Uploaded 2026-01-23T17:34:29 (103.9 KB)

Smith v. Sierra Foothills Condominium Association: A Briefing on the Monument Sign Dispute

Executive Summary

This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a dispute between Keith D. Smith, a commercial condominium unit owner, and the Sierra Foothills Condominium Association. The core of the dispute is a rule enacted by the Association on June 10, 2020, which restricts the use of a common element monument sign exclusively to unit owners in one of the property’s two buildings.

Mr. Smith filed a petition alleging two primary violations:

1. Unreasonable Discrimination: The sign rule violated the Association’s Covenants, Conditions, and Restrictions (CC&Rs) by unfairly discriminating against owners in his building.

2. Open Meeting Law Violation: The Association’s Board violated state open meeting laws by allegedly deciding on the rule via email before the public meeting and calling for a vote without discussion.

The Administrative Law Judge dismissed Mr. Smith’s petition in an initial decision on November 16, 2020, and again after a rehearing in a final decision on June 3, 2021. The judge concluded that Mr. Smith failed to meet his burden of proof on both claims. The sign rule was deemed a reasonable measure to address the differing visibility and street frontage of the two buildings. The allegation of an open meeting law violation was dismissed due to a lack of substantial evidence from the petitioner and credible contradictory testimony from the Association’s representatives.

——————————————————————————–

Case Overview

This matter was adjudicated by the Office of Administrative Hearings for the Arizona Department of Real Estate. The case involves a petition filed by a unit owner against his condominium association regarding rules governing common elements.

Detail

Description

Case Numbers

21F-H2120003-REL (Original)
21F-H2120003-REL-RHG (Rehearing)

Petitioner

Keith D. Smith (Owner in Building A)

Respondent

Sierra Foothills Condominium Association

Presiding Judge

Administrative Law Judge Thomas Shedden

Key Dates

July 24, 2020: Petition filed by Keith D. Smith.
October 26, 2020: Original hearing conducted.
November 16, 2020: Initial decision issued, dismissing the petition.
June 3, 2021: Rehearing decision issued, reaffirming dismissal.

Central Issues and Allegations

The dispute centered on a monument sign with space for only five businesses at a commercial condominium property consisting of two buildings, Building A and Building B.

1. The Monument Sign Rule (CC&R Violation)

At a meeting on June 10, 2020, the Association’s Board adopted a rule limiting the use of the monument sign to unit owners in Building B. Mr. Smith, an owner in Building A, alleged this violated the Association’s governing documents.

Petitioner’s Allegations:

◦ The rule violates CC&R Section 7.1(C), which states that rules “shall not unreasonably discriminate among Owners and Occupants.”

◦ The rule violates the principle of CC&R Section 6.26(a), which requires use restrictions within Article 6 of the CC&Rs to be applicable to all occupants.

◦ As an owner, Mr. Smith holds an undivided interest in the common elements, meaning no owner should have exclusive use of the sign. He argued the rule amounted to an improper “partition” of a common element.

Respondent’s Position:

◦ The rule is reasonable and non-discriminatory because it addresses a fundamental inequity in property layout: Building A has street frontage for signage, while Building B does not.

◦ The limited space on the monument sign (five slots) necessitates a managed approach to its use.

◦ While initially questioning if the sign was a common element, the Association waived this argument by acknowledging it as such in its official answer.

2. The June 10, 2020 Board Meeting (Open Meeting Law Violation)

Mr. Smith alleged that the Board’s conduct during the meeting at which the rule was passed violated Arizona’s open meeting law, specifically ARIZ. REV. STAT. section 33-1248.

Petitioner’s Allegations:

◦ The Association’s president called for a vote on the new rule “without discussion,” implying a decision had already been made.

◦ Mr. Smith asserted that Board members must have “Obviously communicated with each other via email and reached their decision without ever hearing my argument.”

Respondent’s Position:

◦ Association President Stuart Rayburn and witness Harold Bordelon provided “credible testimony” that a “protracted discussion lasting about an hour and a half” occurred before the vote.

◦ They testified that Mr. Smith himself spoke for approximately twenty minutes during this discussion.

Evidence and Proposed Solutions

Petitioner’s Evidence: Mr. Smith testified on his own behalf and submitted an email from the City of Phoenix regarding signage rules. He also presented two estimates for altering the monument sign to accommodate more businesses—one by reducing the size of existing signs (which he offered to fund) and another by enlarging the monument itself.

Respondent’s Evidence: The Association presented testimony from its president, Stuart Rayburn, and Harold Bordelon. They submitted Section 705 of the City of Phoenix’s Zoning Ordinance, which they argued showed flexibility in the sign code. Mr. Bordelon testified that some of Mr. Smith’s proposed alterations to the sign did not comply with the city code.

Administrative Law Judge’s Rulings and Rationale

The ALJ’s decisions in both the original hearing and the rehearing were consistent, leading to the dismissal of Mr. Smith’s petition. The core rationale rested on the petitioner’s failure to meet the required burden of proof.

Original Decision (November 16, 2020)

The initial ruling found decisively in favor of the Association.

On the CC&R Violation: The ALJ concluded that Mr. Smith did not prove a violation of CC&R Section 7.1(C) for two primary reasons:

1. The rule was not unreasonable, as it rationally addressed the physical disadvantage of Building B, which “does not have street frontage,” compared to Building A, which does.

2. Mr. Smith’s reliance on CC&R Section 6.26(a) was misplaced, as “by its express terms, CC&R section 6.26 applies only to CC&R Article 6, and not Article 7,” where the Board’s authority to make rules resides.

On the Open Meeting Law Violation: The ALJ found the allegation unsupported.

◦ Mr. Smith “offered no substantial evidence” for his claim of pre-meeting communication.

◦ His testimony that the Board called for a vote “without discussion is proven to be in error” based on credible opposing testimony.

Rehearing Decision (June 3, 2021)

Mr. Smith requested a rehearing on several grounds, including alleged irregularities, errors of law, and claims that the findings were arbitrary or not supported by evidence. The ALJ granted the rehearing but ultimately reaffirmed the original decision.

Scope of the Rehearing: The judge clarified that the rehearing was limited to the two original issues and could not consider new evidence or allegations not raised in the initial petition.

◦ Evidence that Mr. Smith claimed to have (an email supporting the open meeting violation) was not considered because it was not offered at the original hearing.

◦ Arguments related to new statutes (e.g., ARIZ. REV. STAT. section 33-1217 on partitioning common elements) were dismissed as they were not part of the original petition.

Reaffirmation of Rulings:

◦ The judge reiterated that CC&R Section 6.26(a) explicitly limits its effect to Article 6. He noted that Mr. Smith himself had argued the CC&Rs “should be read and applied as one continuous document unless the document clearly states otherwise,” which it did in this case.

◦ The conclusion that the sign rule was reasonable was upheld.

◦ The dismissal of the open meeting law claim was reaffirmed, as Mr. Smith still presented no substantial evidence, instead relying on a “rhetorical question” about how a vote could be called without prior communication.

Key Legal Standards Applied

The ALJ’s decisions were guided by specific legal principles and administrative codes.

Standard

Application in the Case

Burden of Proof

The Petitioner, Keith D. Smith, bore the burden to prove his allegations by a “preponderance of the evidence.” The ALJ concluded this standard was not met.

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.”

Substantial Evidence

The standard required for an ALJ’s decision, defined as evidence a “reasonable mind would use to reach a conclusion.”

Scope of Adjudication

The hearing and subsequent decisions were strictly limited to the issues formally raised and paid for in the original petition, pursuant to ARIZ. REV. STAT. § 41-1092.07(F)(6).

Admissibility of Evidence

Evidence not presented at the original hearing cannot be considered in a rehearing, as established by ARIZ. ADMIN. CODE § R2-19-115.

Study Guide: Smith v. Sierra Foothills Condominium Association

This guide provides a comprehensive review of the administrative case Keith D. Smith v. Sierra Foothills Condominium Association, based on the initial Administrative Law Judge Decision and the subsequent Decision on Rehearing. It is designed to test and deepen understanding of the facts, legal arguments, and outcomes of the proceedings.

Quiz: Short Answer Questions

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

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

2. What were the two central allegations Keith D. Smith made against the Sierra Foothills Condominium Association in his petition?

3. What specific action did the Association’s Board take on June 10, 2020, that initiated this dispute?

4. What justification did the Association provide for creating a rule that exclusively benefited the owners of units in Building B?

5. On what grounds did the Administrative Law Judge (ALJ) reject Mr. Smith’s argument that the sign rule violated CC&R section 6.26(a)?

6. What was the “preponderance of the evidence” standard, and who bore the burden of meeting it in this case?

7. Why was Mr. Smith’s allegation of an open meeting law violation dismissed in the original hearing?

8. What were the primary grounds Mr. Smith cited when requesting a rehearing of the initial decision?

9. In the rehearing, Mr. Smith mentioned having an email that supported his open meeting law claim. Why did the ALJ refuse to consider this evidence?

10. What was the final outcome of both the original hearing on October 26, 2020, and the subsequent rehearing decision on June 3, 2021?

——————————————————————————–

Quiz Answer Key

1. The primary parties were Keith D. Smith, the Petitioner, and the Sierra Foothills Condominium Association, the Respondent. Mr. Smith, an owner of a unit in Building A, filed a petition alleging violations by the Association, which manages the common elements of the condominium complex.

2. Mr. Smith alleged that the Association had violated CC&R section 7.1(C) by creating an unreasonable and discriminatory rule. He also alleged a violation of the open meeting law, ARIZ. REV. STAT. section 33-1248, claiming the Board made its decision before the public meeting.

3. On June 10, 2020, the Association’s Board adopted a new rule regarding the monument sign, a common element. This rule limited the use of the sign, which had space for only five businesses, to the owners of units located in Building B.

4. The Association argued the rule was reasonable because Building A has street frontage where signs can be hung, providing visibility. In contrast, Building B lacks street frontage, making the monument sign a critical advertising tool for its occupants.

5. The ALJ rejected the argument because the text of CC&R section 6.26(a) explicitly states its applicability is limited to the restrictions “contained in this Article 6.” The disputed rule was created under the authority of Article 7, so the non-discrimination clause of Article 6 did not apply.

6. The “preponderance of the evidence” is the standard of proof requiring that the evidence be of greater weight and more convincing force, inclining a fair mind to one side of the issue. In this administrative hearing, the Petitioner, Keith D. Smith, bore the burden of proof to show the alleged violations occurred by this standard.

7. The allegation was dismissed due to a lack of substantial evidence. Mr. Smith acknowledged he had no emails to support his claim of prior communication, and the credible testimony of Stuart Rayburn and Harold Bordelon established that a lengthy discussion did occur at the meeting before the vote was taken.

8. Mr. Smith requested a rehearing on several grounds, including alleged irregularity in the proceedings, abuse of discretion by the ALJ, errors of law (such as in the admission or rejection of evidence), and that the decision was arbitrary, capricious, and not supported by the evidence.

9. The ALJ refused to consider the email because evidence must be presented during the original hearing. Since Mr. Smith did not offer the document at the October 26, 2020 hearing, it could not be introduced for the first time in a request for a rehearing.

10. In both the original hearing decision (November 16, 2020) and the rehearing decision (June 3, 2021), Keith D. Smith’s petition was dismissed. The ALJ consistently found that Mr. Smith had failed to meet his burden of proof for both the CC&R violation and the open meeting law violation.

——————————————————————————–

Essay Questions

Instructions: Formulate detailed responses to the following prompts, synthesizing evidence and arguments from both administrative decisions.

1. Analyze the legal reasoning employed by Administrative Law Judge Thomas Shedden to conclude that the monument sign rule was not an “unreasonable” discrimination among owners under CC&R section 7.1(c).

2. Trace the evolution of Keith D. Smith’s open meeting law allegation from his initial petition through his request for rehearing. Discuss the specific evidence presented (or lack thereof) and explain why the ALJ found his claims unconvincing at every stage.

3. Explain the concept of procedural limitations in administrative hearings, using Mr. Smith’s case as an example. Focus on why the ALJ could only consider two issues, why new evidence was rejected on rehearing, and why other “perceived deficiencies” were not addressed.

4. Discuss the significance of the “common elements” in this dispute. How did Mr. Smith’s claim of an “undivided interest” in the monument sign contrast with the Association’s right to regulate its use, and how was this conflict ultimately resolved by the ALJ?

5. Evaluate the arguments presented regarding CC&R section 6.26(a). Explain Mr. Smith’s interpretation of the clause and the ALJ’s contrary interpretation based on the explicit text of the document.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Thomas Shedden.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. Sections 33-1248 (open meeting law) and 33-1217 (partition of common elements) were cited.

Burden of Proof

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

CC&Rs (Covenants, Conditions & Restrictions)

The governing legal documents that set up the guidelines for a planned community or condominium. The key sections in this case were 6.10, 6.24, 6.26(a), and 7.1(c).

Common Elements

Parts of a condominium property that are owned in common by all unit owners and managed by the association. The monument sign was acknowledged by the Association as a common element.

Monument Sign

A freestanding sign at the property entrance that was the central subject of the dispute. It had space for only five businesses to advertise.

Office of Administrative Hearings (OAH)

The state agency where the hearings for this case were conducted.

Open Meeting Law

A state statute (ARIZ. REV. STAT. section 33-1248) requiring that meetings of governing bodies, like an HOA board, be conducted in public with proper notice and opportunity for member input.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, Keith D. Smith.

Preponderance of the Evidence

The standard of proof in this case, defined as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of an issue over the other.

Rehearing

A second hearing of a case to reconsider the initial decision, typically granted on specific grounds such as procedural error or a decision contrary to evidence. Mr. Smith’s request for rehearing was granted but the original decision was upheld.

Respondent

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

Substantial Evidence

Evidence that a reasonable mind would use to reach a conclusion. The ALJ found that Mr. Smith offered no substantial evidence for his open meeting law claim.

Waived

The voluntary relinquishment of a known right or argument. The Association waived its argument that the monument sign was not a common element by acknowledging that it was in its official Answer.

I Read a 17-Page HOA Lawsuit Over a Sign. Here Are 5 Surprising Lessons for Every Homeowner.

Introduction: The Signpost to a Bigger Story

For anyone living in a community with a Homeowner or Condominium Association, the rulebook can feel like a source of endless frustration. The rules often seem complex, arbitrary, and difficult to challenge. But what really happens when an owner decides to fight back?

I recently analyzed the initial ruling and final rehearing decision—17 pages in all—from just such a fight: a formal petition filed by Keith D. Smith against the Sierra Foothills Condominium Association. This wasn’t a residential dispute over lawn ornaments or paint colors; it was a commercial conflict over who was allowed to use a single monument sign. But within this seemingly small micro-drama are universal lessons that are shockingly relevant to any owner navigating a dispute with their association.

Here are five surprising lessons from Mr. Smith’s legal battle that every owner should understand.

1. Read the Fine Print. No,ReallyRead It.

Mr. Smith’s primary argument was one of unfair discrimination. He owned a unit in Building A and was prohibited from using the monument sign, a common element, while owners in Building B were allowed to use it. He pointed to a specific rule in the governing documents, CC&R section 6.26(a), which stated that use restrictions must be applicable to all owners. This seemed like a clear-cut case of the board violating its own rules.

He lost. The reason was a tiny but critical detail in the fine print. The judge found that the non-discrimination clause Mr. Smith cited explicitly stated it only applied to rules “contained in this Article 6.” The board’s authority to create the sign rule came from a different section entirely, “Article 7,” specifically section 7.1(c), which did not contain the same mandate for equal application.

The judge’s finding on the rehearing was conclusive:

“Section 6.26(a) provides that the use restrictions ‘contained in this Article 6’ are applicable to all owners. Consequently, section 6.26(a) cannot be read to require that rules promulgated under section 7.1(c) must apply to all owners.”

The specific structure and wording of your governing documents are paramount. An assumption about a rule’s general intent is not enough. A single phrase—like “in this Article 6″—can make or break an entire legal argument.

2. What Feels Unfair Isn’t Always Legally “Unreasonable”

From Mr. Smith’s perspective, the situation was fundamentally unfair. As a property owner, he had an undivided interest in all common elements, including the monument sign. To be completely excluded from using it felt like a violation of his ownership rights.

However, the Association and the judge saw it differently. The rule was deemed legally “reasonable” for two logical and practical reasons:

1. The sign had a very limited number of spaces—only five businesses could be advertised.

2. Building A, where Mr. Smith’s unit was located, had valuable street frontage where businesses could place their own signs. Building B, in contrast, had no street frontage, making the monument sign the primary and essential tool for visibility for those businesses.

This is where the fine print from the first lesson comes roaring back. The judge noted that the board’s authority under section 7.1(c) “on its face allows discrimination among owners” as long as it wasn’t unreasonable. The specific language of the documents gave the board the explicit power to treat owners differently, provided there was a rational basis—which, in this case, there was. In association disputes, the legal standard is often “reasonableness,” which is evaluated based on context and logic, not just an individual’s feeling of fairness.

3. Suspecting a “Secret Meeting” Isn’t Enough to Prove It

Mr. Smith also alleged that the board violated the open meeting law. He claimed that when the sign issue came up at the board meeting, the president immediately called for a vote without any discussion. This led him to believe the decision had already been made in secret via email.

In his petition, he stated his certainty in plain terms:

“Obviously, the board members communicated with each other via email and reached their decision without ever hearing my argument.”

This claim failed completely. At the hearing, Mr. Smith acknowledged that he had no emails or other documents to support his allegation. Furthermore, the Association’s president and another member presented “credible testimony” that, contrary to Mr. Smith’s recollection, a “protracted” discussion lasting about an hour and a half had, in fact, taken place before the vote was called.

An accusation, no matter how “obvious” it seems to you, is not evidence. To successfully challenge an association’s procedure, you must provide proof. Suspicion and personal interpretation of events are not enough to win a legal claim.

4. Your First Shot Is Often Your Only Shot

After the judge dismissed his initial petition, Mr. Smith filed for a rehearing. In this new request, he tried to introduce new arguments and evidence to bolster his case. Specifically, he raised:

• A brand-new claim that the sign rule violated a state statute (ARIZ. REV. STAT. section 33-1217) concerning the partitioning of common elements.

• A reference to an email he now claimed to possess that would support his open meeting law violation argument.

The judge flatly rejected these new points. The reason was purely procedural: the rules of the legal process require all claims and evidence to be presented in the initial petition and at the original hearing. You cannot hold arguments in reserve to see how the first ruling goes.

The judge’s decision was unequivocal:

“Consequently, evidence that Mr. Smith did not present at the original hearing cannot be considered in this rehearing.”

The legal process is not flexible. You must build your entire case and present all your evidence from the very beginning. Your first shot is often your only shot.

5. The Burden of Proof Is on the Accuser

This may be the most crucial lesson of all. In a dispute like this, the legal responsibility, or “burden of proof,” was on Mr. Smith to prove that the Association had acted improperly. It was not the Association’s job to prove its innocence.

The standard he had to meet was “a preponderance of the evidence.” The judge’s decision included a formal definition of this standard, which clearly explains the high bar an accuser must clear:

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

Ultimately, the judge concluded that Mr. Smith “did not prove” that either of his claims met this standard. His feelings of unfairness and his suspicions of improper procedure were not supported by superior evidentiary weight, and his petition was dismissed. If you decide to formally challenge your association, you are the accuser, and you carry the burden of proof.

Conclusion: Know the Rules of the Game

A seemingly minor dispute over a commercial sign reveals fundamental truths about navigating any rule-based organization, especially an HOA or Condo Association. The outcome hinged on the precise language of the documents, the legal definition of “reasonable,” the high bar for proving misconduct, and the rigid procedures of the hearing process. Mr. Smith’s case serves as a powerful reminder that to successfully challenge the rules, you must first master the rules of the game.

This entire conflict hinged on the specific wording of a few sentences in a thick rulebook. When was the last time you truly read the documents that govern your own community, and what crucial details might be hiding in plain sight?

Case Participants

Petitioner Side

  • Keith D Smith (petitioner)
    Appeared on his own behalf; Unit Owner

Respondent Side

  • Stuart Rayburn (association president)
    Sierra Foothills Condominium Association
    Representative for Respondent
  • Harold Bordelon (witness)
    Sierra Foothills Condominium Association
    Testified for the Association

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Recipient of transmission
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission (email handle)
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission (email handle)
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission (email handle)
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission (email handle)
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission (email handle)

Ronna Biesecker, v. 6100 Fifth Condominium Homeowners Association,

Case Summary

Case ID 20F-H2020050-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-06-25
Administrative Law Judge Tammy L. Eigenheer
Outcome The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ronna Biesecker Counsel
Respondent 6100 Fifth Condominium Homeowners Association Counsel

Alleged Violations

A.R.S. § 33-1247 and CC&Rs § 10(c)

Outcome Summary

The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.

Why this result: Petitioner failed to meet the burden of proof, as evidence suggested the water leak was caused by the sliding glass door of the unit above, not a flaw in the common elements.

Key Issues & Findings

Failure to maintain all Common Elements (Water Leak Dispute)

Petitioner alleged the Respondent HOA failed to maintain Common Elements, leading to water leaks in her unit. Respondent denied the violation, asserting the leak originated from the upstairs unit’s sliding doors or track assemblies, which are the responsibility of that unit owner.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1247
  • CC&Rs § 10(c)
  • Article II.E, Section 1 of the Bylaws
  • Article C of the CC&Rs

Analytics Highlights

Topics: condominium, maintenance dispute, common elements, water damage, burden of proof
Additional Citations:

  • A.R.S. § 33-1247
  • CC&Rs § 10(c)
  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
  • Vazanno v. Superior Court

Video Overview

Audio Overview

Decision Documents

20F-H2020050-REL Decision – 802352.pdf

Uploaded 2026-04-24T11:26:08 (103.2 KB)

20F-H2020050-REL Decision – 802352.pdf

Uploaded 2026-01-23T17:32:09 (103.2 KB)

Administrative Hearing Brief: Biesecker v. 6100 Fifth Condominium HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 20F-H2020050-REL, wherein Petitioner Ronna Biesecker alleged that the 6100 Fifth Condominium Homeowners Association (HOA) failed to fulfill its maintenance responsibilities. The Administrative Law Judge (ALJ) ultimately dismissed the petition, ruling that the Petitioner did not meet the burden of proof required to substantiate her claim.

The central conflict involved recurring water leaks in Ms. Biesecker’s condominium unit (A113). The Petitioner contended that the leaks originated from cracks in the building’s exterior stucco, which are defined as “Common Elements” and are therefore the HOA’s responsibility to repair under its governing documents and Arizona state law. In contrast, the HOA argued that the source of the water was the sliding door assembly of the upstairs unit, making its maintenance the responsibility of that unit’s owner.

The final decision rested on the weight of evidence presented. Multiple expert inspections, conducted by Olander’s and another inspector retained by the HOA, concluded that the leaks were attributable to the upstairs unit’s sliding doors. This evidence was deemed more convincing than the Petitioner’s own assessment regarding the stucco. The ALJ concluded that Ms. Biesecker failed to prove by a “preponderance of the evidence” that the damage was caused by a flaw in the common elements, leading to the dismissal of her case.

Case Overview

Case Name

Ronna Biesecker, Petitioner, vs. 6100 Fifth Condominium Homeowners Association, Respondent.

Case Number

20F-H2020050-REL

Office of Administrative Hearings (Arizona)

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

June 5, 2020

Decision Date

June 25, 2020

Petitioner

Ronna Biesecker, owner of unit A113

Respondent

6100 Fifth Condominium Homeowners Association, represented by Robert Eric Struse, Statutory Agent

Core Allegations and Defenses

Petitioner’s Claim (Ronna Biesecker)

Core Allegation: The Petitioner filed a petition on March 10, 2020, alleging that the Respondent (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) § 10(c) and Arizona Revised Statutes (A.R.S.) § 33-1247 by failing to maintain the common elements of the condominium community.

Specifics of Claim: Ms. Biesecker asserted that persistent water leaks into her unit were caused by cracks in the exterior stucco surrounding the sliding doors.

Basis of Responsibility: She argued that because the exterior stucco is a “common element,” the HOA was legally responsible for its repair and any subsequent damage to her unit.

Requested Action: The Petitioner had previously requested that the HOA repair the exterior leaks and had attempted to have the HOA mediate the issue with the owner of the upstairs unit.

Respondent’s Position (6100 Fifth Condominium HOA)

Core Defense: The HOA denied any violation of its CC&Rs or state statutes.

Specifics of Defense: The HOA maintained that the source of the water leaks was not a common element. Instead, it attributed the leaks to the sliding doors or track assemblies of the condominium unit located directly above the Petitioner’s.

Basis of Responsibility: According to the HOA’s governing documents and state law, the maintenance of elements belonging to an individual unit (such as a sliding door) is the responsibility of that unit’s owner, not the association.

Actions Taken: The HOA declined to “arbitrate, mediate, or serve as a third party” in the dispute between the Petitioner and the owner of the upstairs unit. It also conducted an inspection which supported its position.

Evidentiary Timeline and Key Findings

The decision was based on a sequence of events and expert assessments presented as evidence.

January 5, 2019: Petitioner experiences the first water leak in her unit (A113) near the sliding glass door.

January 18, 2019: An employee from Olander’s, a door installation company contacted by the Petitioner, inspects the unit. The employee’s opinion was that “the leak was coming from the unit above Petitioner and that the sliding door above Petitioner’s unit had large gaps under the threshold which allowed water to get in.”

February 8, 2019: Nathan’s Handyman Service repairs plaster damage in the Petitioner’s unit and notes in a report that the damage was “the result of an old leak coming from above Petitioner’s unit.” The report also identified rusted wire mesh, indicating previous repairs to the area.

March/April 2019: The HOA’s Property Manager formally refuses the Petitioner’s request to mediate the dispute with the owner of the upstairs unit.

May 1, 2019: Petitioner emails the HOA, proposing that new cracks in the stucco pop-out at the roof level could be the source of the leak.

October 28, 2019: A “Roof Opinion Report” from Roof Savers Locke Roofing states that no roof repairs are needed but notes the presence of “server [sic] cracking at the stucco.” The report recommends contacting a stucco or window contractor.

November 27, 2019: Another leak occurs in the same area of the Petitioner’s unit.

December 9, 2019: The HOA’s Property Manager and an inspector assess the water damage in the Petitioner’s unit.

December 23, 2019: An invoice from the inspector states: “After inspecting the shared roof and building interior/exterior it appears the water damage to the lower unit is coming from the upstairs unit sliding doors or their track assemblies.”

June 5, 2020 (Hearing Testimony):

◦ The Petitioner stated it was “obvious” the leak originated from the stucco crack.

◦ The HOA’s Statutory Agent, Robert Eric Struse, testified that the December 2019 inspection included the interior of the upstairs unit. He argued that if the stucco crack were the cause, the upstairs unit would also show internal water damage, which it did not.

Governing Documents and Statutes

The case revolved around the interpretation of responsibility as defined by the following legal framework:

Bylaws (Article II.E, Section 1) & CC&Rs (Article C): These documents obligate the HOA to collect assessments to meet common expenses, including the “maintenance, upkeep, care, repair, [and] reconstruction… for the common elements.”

A.R.S. § 33-1247: This Arizona statute codifies the division of maintenance responsibility. It states that “the association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit.”

Conclusions of Law and Final Order

The Administrative Law Judge’s decision was based on the application of the legal standard of proof to the evidence presented.

Burden of Proof: The ALJ established that the Petitioner bore the burden of proof to demonstrate, by a “preponderance of the evidence,” that the HOA violated the applicable statutes or CC&Rs. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Central Legal Finding: The judge determined that if the water damage was caused by a flaw in the common elements, the HOA would be responsible. However, the Petitioner failed to meet her burden of proof in establishing this causal link.

Reasoning for Decision: The ruling states: “Petitioner failed to establish by a preponderance of the evidence that the water leak and damage was attributable to the condition of the common elements. Rather, the opinions of the companies that inspected the area concluded that the leak was coming from the sliding glass door of the unit above Petitioner’s.” The collective weight of the expert opinions from Olander’s and the HOA’s inspector outweighed the Petitioner’s personal theory about the stucco cracks.

Final Order: Based on these findings, the judge issued a final order: “IT IS ORDERED that Petitioner’s petition is dismissed.” This order is binding unless a rehearing is granted.

Study Guide: Biesecker v. 6100 Fifth Condominium Homeowners Association

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 20F-H2020050-REL, concerning a dispute between condominium owner Ronna Biesecker and the 6100 Fifth Condominium Homeowners Association. The case centers on determining responsibility for water leaks affecting the Petitioner’s unit. Use the following sections to test and deepen your understanding of the facts, legal arguments, and final outcome.

——————————————————————————–

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, using only information provided in the case document.

1. Who were the Petitioner and Respondent in this case, and what was their relationship?

2. What was the central claim made by the Petitioner against the Respondent?

3. According to the Respondent, what was the source of the water leaks and who was responsible for the repair?

4. What legal standard, or “burden of proof,” did the Petitioner need to meet to win her case?

5. What two key community documents, in addition to Arizona state law, define the Respondent’s responsibility for maintaining “common elements”?

6. Summarize the findings of the two inspection reports mentioned in the evidence (from Olander’s and the December 23, 2019 invoice).

7. What was the Petitioner’s theory about the source of the leak, as stated during the hearing?

8. How did Robert Eric Struse, the Respondent’s Statutory Agent, counter the Petitioner’s theory about the stucco crack?

9. What was the final ruling, or “Order,” issued by the Administrative Law Judge?

10. Why did the Administrative Law Judge conclude that the Petitioner failed to meet her burden of proof?

——————————————————————————–

Answer Key

1. The Petitioner was Ronna Biesecker, who owned condominium unit A113. The Respondent was the 6100 Fifth Condominium Homeowners Association, of which the Petitioner was a member.

2. The Petitioner filed a petition alleging the Respondent violated its CC&Rs (§ 10(c)) and Arizona statute A.R.S. § 33-1247 by failing to maintain the common elements, which she believed were the source of water leaks in her unit.

3. The Respondent argued that the source of the water leaks was the upstairs unit’s sliding doors or track assemblies. Therefore, the responsibility for maintenance and repair belonged to the owner of that specific unit, not the Homeowners Association.

4. The Petitioner had the burden of proof to establish her claim by a “preponderance of the evidence.” This legal standard requires providing proof that convinces the trier of fact that the contention is more probably true than not.

5. The Respondent’s responsibility is defined in Article II.E, Section 1 of the community Bylaws and Section C of the CC&Rs. Both documents state the association is responsible for the maintenance and repair of common elements using assessments paid by owners.

6. An employee from Olander’s opined that the leak was coming from the unit above Petitioner’s, specifically from large gaps under the sliding door’s threshold. Similarly, the inspector’s invoice from December 23, 2019, concluded that the water damage appeared to be coming from the upstairs unit’s sliding doors or their track assemblies.

7. During the hearing, the Petitioner stated that it was “obvious” the leak was coming from a crack in the stucco in the pop-out surrounding the sliding doors at the roof level. She posited this was a common element and therefore the Respondent’s responsibility to repair.

8. Mr. Struse testified that if water were leaking through the crack in the stucco, the upstairs unit would have also sustained internal damage. He confirmed that an inspection of the inside of the upstairs unit showed this was not happening, undermining the Petitioner’s theory.

9. The Administrative Law Judge ordered that the Petitioner’s petition be dismissed.

10. The judge concluded the Petitioner failed to meet her burden of proof because the credible evidence, particularly the opinions of the companies that inspected the area, concluded the leak was coming from the sliding glass door of the unit above. The Petitioner did not establish by a preponderance of the evidence that the leak was attributable to the condition of the common elements.

——————————————————————————–

Essay Questions

The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and legal principles from the case document to support your arguments.

1. Analyze the distinction between “common elements” and an individual “unit” as defined by A.R.S. § 33-1247 and the community’s governing documents. How was this distinction central to the judge’s final decision in this case?

2. Discuss the role and weight of evidence presented during the hearing. Compare the Petitioner’s testimony and personal observations with the professional opinions from Olander’s and the inspector. Why did the judge find the professional opinions more convincing in determining the outcome?

3. Explain the legal standard of “preponderance of the evidence” as defined in the case document’s Conclusions of Law. Using specific examples from the hearing evidence, detail why Ronna Biesecker failed to meet this standard.

4. Based on the referenced community documents, what are the primary maintenance responsibilities of the 6100 Fifth Condominium Homeowners Association? How did the Respondent’s stated refusal to “arbitrate, mediate, or serve as a third party” in the dispute between unit owners align with or diverge from these responsibilities?

5. Imagine you are advising the Petitioner before the hearing. What additional evidence or types of expert testimony could she have presented to potentially change the outcome of the case and successfully prove the leak was the Respondent’s responsibility?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Tammy L. Eigenheer) from the Office of Administrative Hearings who presides over the evidentiary hearing and issues a legally binding decision and order.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The statutes referenced (e.g., § 33-1247) govern the responsibilities of condominium associations and the legal procedures for disputes.

Bylaws

A set of rules governing the internal operations of an organization. In this case, Article II.E, Section 1 of the Bylaws obligates the Association to maintain the common elements using assessments paid by owners.

CC&Rs (Covenants, Conditions, and Restrictions)

A legal document that outlines the rights and obligations of property owners and the homeowners association. Section C of the CC&Rs required the Association to maintain, repair, and care for the common elements.

Common Elements

Areas of the condominium property for which the homeowners association is responsible for maintenance, upkeep, care, and repair, as distinguished from an individual owner’s unit.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Ronna Biesecker, the condominium owner who alleged the homeowners association violated its duties.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is established by evidence with the most convincing force.

Respondent

The party against whom a petition is filed. In this case, the 6100 Fifth Condominium Homeowners Association.

Statutory Agent

An individual designated to receive legal notices and appear on behalf of a business entity. In this case, Robert Eric Struse appeared and testified on behalf of the Respondent association.

Your HOA Isn’t Your Landlord: 3 Surprising Lessons from a Condo Water Leak Lawsuit

Introduction: The Dreaded Drip

It’s a scenario that strikes fear into the heart of any condo owner: the tell-tale stain on the ceiling, the damp spot on the wall, the dreaded drip of a mysterious water leak. The immediate anxiety is followed by a pressing question: “Who is responsible for fixing this, and who pays for the damage?” Many assume the answer is straightforward, but as a recent lawsuit involving the 6100 Fifth Condominium Homeowners Association demonstrates, the lines of responsibility in a condominium community are often more complicated than they appear.

This article explores a real-life court case between a condo owner and her HOA to uncover three surprising truths about condo ownership, liability, and the true role of your HOA.

——————————————————————————–

1. It’s Not Where the Damage Is, It’s Where the Leak Starts

In the case, condo owner Ronna Biesecker experienced persistent water leaks in her unit (A113) around her sliding glass door. On May 1, 2019, after observing new cracks in the exterior stucco, she “posited that the cracks could be a source of the leak.” This became the foundation of her claim: if the water was coming from the stucco—a “Common Element”—then the HOA was responsible for the repairs.

However, a year-long trail of evidence pointed in a different direction. As early as January 18, 2019, an employee from the door installation company opined that the leak was “coming from the unit above.” On February 8, 2019, a handyman repairing plaster damage stated the issue was from “an old leak coming from above.” Even a roofing report from October 28, 2019, which noted the stucco cracking, stopped short of blaming it, instead recommending the owner contact a “stucco contractor or Window Company.”

This evidence culminated in a formal inspector’s report on December 23, 2019, which concluded the water was “coming from the upstairs unit sliding doors or their track assemblies.” Because the source of the leak originated from a part of the neighbor’s private unit, the legal responsibility shifted. Based on Arizona statute A.R.S. § 33-1247, the HOA was not liable. The key lesson here is unambiguous: legal responsibility follows the source of the problem, not the location of the resulting damage.

——————————————————————————–

2. “More Probably True Than Not”: The Burden of Proof Is on You

In any lawsuit, the person bringing the complaint—in this case, the homeowner—carries the “burden of proof.” This means she had to provide enough evidence to meet a specific legal standard, which the court defined as “preponderance of the evidence.” The legal decision offers a clear definition of this standard:

“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 simple terms, Ms. Biesecker had to convince the judge that her theory—that the leak came from the common element stucco—was more likely to be true than the HOA’s theory that it came from the neighbor’s door.

Her claim was undone by simple logic. The HOA’s Statutory Agent, Mr. Struse, provided devastating testimony, arguing that “if water was leaking through the crack in the stucco, the upstairs unit would have also had internal damage, which was not happening.” This single point made the petitioner’s theory far less probable. The judge ultimately ruled that the petitioner “failed to establish by a preponderance of the evidence that Respondent violated the provisions of the CC&Rs or Arizona statutes,” proving that an owner’s belief isn’t enough without convincing evidence.

——————————————————————————–

3. Your HOA Won’t (and Often Can’t) Settle Neighbor-to-Neighbor Fights

Before filing the lawsuit, the petitioner attempted to resolve the issue directly. On or about February 11, 2019, she contacted the owner of the unit above hers to request repairs but “did not receive a response.” Frustrated, she turned to the HOA for help. In March or April 2019, she asked the Property Manager to “help mediate the issue” between her and her neighbor.

The HOA’s response was direct and legally sound: the Property Manager “responded that it would not arbitrate, mediate, or serve as a third party to the dispute.” This is a crucial and often misunderstood takeaway for condo owners. While an HOA’s role is to manage common elements and enforce community-wide rules, it is not legally obligated—and often not permitted—to intervene in private disputes between two homeowners over damage originating from private property. Your HOA is not a landlord or a mediator for personal conflicts; it’s an administrative body with a specific and legally defined scope of authority.

——————————————————————————–

Conclusion: Know Your Lines

The lessons from this case are clear: condo living involves a complex web of overlapping responsibilities. The line between what constitutes a common element, your private property, and your neighbor’s property is legally significant and determines who is ultimately responsible when things go wrong. Understanding these distinctions isn’t just helpful—it’s essential for protecting your investment and resolving issues effectively.

Before the next problem arises, have you read your community documents to know exactly where your responsibility ends and your neighbor’s begins?

Case Participants

Petitioner Side

  • Ronna Biesecker (petitioner)
    Appeared and testified on her own behalf.

Respondent Side

  • Robert Eric Struse (statutory agent)
    6100 Fifth Condominium Homeowners Association
    Appeared and presented testimony on behalf of Respondent.

Neutral Parties

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

John H. Kelly v. Cortez Canyon Unit Owners Association

Case Summary

Case ID 19F-H1919060-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-13
Administrative Law Judge Jenna Clark
Outcome The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John H. Kelly Counsel
Respondent Cortez Canyon Unit Owners Association Counsel Jonathan A. Dessaules

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.

Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.

Key Issues & Findings

Alleged violation of failure to call a special meeting to remove a board member.

Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2026-04-24T11:20:28 (142.6 KB)

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2026-01-23T17:29:30 (142.6 KB)

Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.

The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.

This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.

Case Overview

Parties Involved

Name / Entity

Details

Petitioner

John H. Kelly

A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.

Respondent

Cortez Canyon Unit Owners Association

The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.

Witness

Saundra Garcia

President of the Association’s Board of Directors.

Adjudicator

Jenna Clark

Administrative Law Judge, Arizona Office of Administrative Hearings.

Core Dispute

The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.

Legal and Governance Framework

The dispute was governed by Arizona state law and the Association’s own internal documents.

Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.

Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.

Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.

Petitioner’s Position and Evidence (John H. Kelly)

Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:

Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.

Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.

Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.

Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.

Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.

Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”

Respondent’s Position and Evidence (Cortez Canyon Association)

The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.

Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.

Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.

Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:

11 signatures were removed because they were from non-owner renters or occupants.

6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).

6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.

Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.

Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.

Administrative Law Judge’s Findings and Ruling

The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.

Conclusions of Law

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

Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.

Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”

Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”

Final Order

Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:

IT IS ORDERED that Petitioner’s petition be denied.

Study Guide: Kelly v. Cortez Canyon Unit Owners Association (Case No. 19F-H1919060-REL)

This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter between Petitioner John H. Kelly and Respondent Cortez Canyon Unit Owners Association. It is designed to test and reinforce understanding of the case’s facts, legal arguments, governing documents, and final outcome.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following ten questions in two to three complete sentences, based solely on the information provided in the case document.

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

2. What was the specific violation of Arizona law alleged by the Petitioner in his initial petition to the Department of Real Estate?

3. How many condominium units are in the Cortez Canyon development, and what number of valid signatures was consequently required to compel a special meeting?

4. According to the Association’s Bylaws, what circumstances would cause a Unit Owner to have their voting rights suspended?

5. List the three categories of invalid signatures that the Association identified in its review of the Petitioner’s submission.

6. Who was Jeffery Law, and why was his signature ultimately not counted by the Association?

7. What was the initial assessment given to the Petitioner by the property management group, Golden Valley, and how did it differ from the Association’s final determination?

8. In this type of legal proceeding, who bears the “burden of proof,” and what standard of proof must be met?

9. What was the Administrative Law Judge’s final conclusion regarding the Petitioner’s claim?

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

——————————————————————————–

Part II: Answer Key

1. The primary parties were John H. Kelly, the “Petitioner,” who appeared on his own behalf, and the Cortez Canyon Unit Owners Association, the “Respondent,” which was represented by Jonathan A. Dessaules, Esq. Administrative Law Judge Jenna Clark presided over the hearing. Saundra Garcia, the Association’s Board President, appeared as a witness for the Respondent.

2. The Petitioner alleged that the Association violated ARIZ. REV. STAT. § 33-1243 by failing to call a special meeting for the purpose of removing a board member. He claimed to have collected the required number of signatures from homeowners to compel such a meeting.

3. The Cortez Canyon development has 84 units. Based on the requirement for signatures from 25% of the votes in the Association, a total of 21 valid Unit Owner signatures were required to compel a special meeting.

4. According to Bylaws Article II, Section 7, a Unit Owner’s right to vote is automatically suspended if the owner is in arrears in the payment of any Assessment, monetary penalties, or other fees for a period of fifteen days. This suspension remains in effect until all payments are brought current.

5. The Association determined that of the 36 submitted signatures, 23 were invalid. The categories for invalidation were: eleven signatures from non-owner renters or occupants, six signatures from units where another signature had already been collected, and six signatures from Unit Owners who were ineligible to vote due to being delinquent on payments.

6. Jeffery Law was an Association member and owner of six condominium units. His signature was not counted because the Petitioner secured it after submitting the petition to the management company and never provided it to the Association as part of the formal submission.

7. The former property management group, Golden Valley, initially informed the Petitioner that he had secured enough valid signatures to compel a special meeting. However, after the Association directly reviewed the petition, it determined that only 13 of the signatures were valid, far short of the required 21.

8. In this proceeding, the Petitioner, John H. Kelly, bore the burden of proof. The standard of proof required was a “preponderance of the evidence,” which means providing evidence that is more convincing and has superior weight than the evidence presented by the opposing side.

9. The Administrative Law Judge concluded that the Petitioner failed to sustain his burden of proof. The credible evidence demonstrated that the Petitioner submitted only thirteen valid signatures, which was insufficient to compel the Association to call a special meeting under its Bylaws and state law.

10. The final ORDER, based on the Findings of Fact and Conclusions of Law, was that the Petitioner’s petition be denied.

——————————————————————————–

Part III: Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. They require a deeper analysis of the case’s themes, legal principles, and procedural elements. Do not provide answers.

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what “preponderance of the evidence” means in this context, who held the burden, and how the failure to meet this standard was the central reason for the judge’s final decision.

2. Discuss the critical importance of an association’s governing documents (CC&Rs and Bylaws) in resolving internal disputes. Use specific articles and sections from the Cortez Canyon Bylaws to illustrate how they definitively established the rules for calling a special meeting and determining voter eligibility, leaving little room for interpretation.

3. Evaluate the Petitioner’s strategy and execution in collecting signatures for his petition. Identify the critical errors he and his assistants made in the process, and outline the specific steps he could have taken to verify signatures and ensure his petition was valid before its submission.

4. Explain the legal and practical distinctions between a Unit Owner, an occupant/renter, and an “eligible voter” within the context of the Cortez Canyon Unit Owners Association. How did the Petitioner’s failure to understand these distinctions become the central point of failure for his petition?

5. Imagine you are advising the Cortez Canyon Board of Directors following this hearing. Based on the evidence and outcome of the case, what recommendations would you make regarding their procedures for validating petitions and their communication with Unit Owners about voting rights, petition requirements, and the consequences of financial delinquency?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Jenna Clark) who presides over hearings at the Office of Administrative Hearings, reviews evidence, and makes legal findings and conclusions.

Answer

The formal written response filed by the Respondent (the Association) on May 28, 2019, denying the Petitioner’s allegations.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The specific statute at issue was § 33-1243.

Association

The Cortez Canyon Unit Owners Association, the governing body for the condominium development, comprised of all unit owners.

Board of Directors (the Board)

The group of individuals that oversees the Association, as empowered by the CC&Rs. The petition sought to remove a member of this board.

Burden of Proof

The legal obligation on one party in a dispute (in this case, the Petitioner) to provide sufficient evidence to prove their claim.

Bylaws

The set of rules adopted by the Association on June 14, 2000, that govern its internal operations, including meetings and voting rights.

Covenants, Conditions, and Restrictions (CC&Rs)

The primary governing documents for the development, recorded on May 9, 2000, which form an enforceable contract between the Association and each property owner.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.

Eligible Votes

A term defined in the Bylaws as the total number of votes that can be lawfully cast, excluding those from members whose voting rights are suspended.

Findings of Fact

The section of the legal decision that outlines the established, undisputed facts of the case based on the hearing evidence.

OAH (Office of Administrative Hearings)

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

The final, legally binding command issued by the judge at the conclusion of the decision. In this case, the Order was to deny the petition.

Petitioner

The party who initiates a legal action by filing a petition. In this case, John H. Kelly.

Petition

The formal document filed by the Petitioner on April 29, 2019, with the Department to initiate the hearing process against the Association.

Preponderance of the Evidence

The standard of proof required in this case, meaning that the evidence must be sufficient to convince the judge that the contention is more probably true than not.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Cortez Canyon Unit Owners Association.

Special Meeting

A meeting of Association members called for a specific purpose outside of the regularly scheduled meetings. The petition sought to compel a special meeting to remove a board member.

Unit Owner

An individual who holds legal title to a condominium within the Cortez Canyon development and is a member of the Association.

He Gathered 36 Signatures to Oust His HOA Board. Here’s Why Only 13 Counted.

Introduction: The Power and Pitfalls of Community Action

Many homeowners have felt the frustration of trying to enact change within their community, especially when it involves challenging the decisions of a Homeowners Association (HOA) board. It can feel like an uphill battle, but the right to petition and call for special meetings is a cornerstone of community governance.

However, a real-world case involving homeowner John H. Kelly and the Cortez Canyon Unit Owners Association serves as a critical cautionary tale. Mr. Kelly gathered what he believed were more than enough signatures to force a special meeting to remove a board member. Despite his significant effort, his petition failed spectacularly. This article breaks down the key legal and procedural reasons why, offering essential lessons for every homeowner.

1. Not All Signatures Are Created Equal: The Validity Gauntlet

The core of the issue began with a simple numbers game. The Cortez Canyon HOA has 84 units, meaning a petition required signatures from 25%, or 21, of the unit owners to compel a special meeting. Mr. Kelly successfully collected 36 signatures—a number that seemed to guarantee his success.

In a moment of false victory, the association’s property management company at the time, Golden Valley, informed Mr. Kelly that he had indeed secured enough signatures. But this assurance was short-lived. A new management company took over, and after a formal review, the association delivered devastating news: only 13 of the 36 signatures were valid. The petition was dead on arrival.

The association disqualified 23 signatures for specific, documented reasons:

Non-Owners: Eleven signatures were from renters or other residential occupants who were not the legal owners of the unit.

Duplicate Units: Six signatures were removed because another signature had already been collected from the same unit, upholding the “one vote per unit” principle.

Ineligible Owners: Six signatures were from homeowners who were technically owners but were found to be ineligible to vote at the time they signed.

This reveals the petitioner’s first critical, and ultimately fatal, assumption: that the HOA would do the work of verifying his supporters. In reality, the burden of proof was his alone. The legal findings state it plainly: “Neither Petitioner nor his assistants verified if the signatures that were collected belonged to Unit Owners eligible to vote.” From a governance perspective, this initial culling of signatures is where most grassroots community efforts fail.

2. The Fine Print That Disenfranchises: “Good Standing” and Your Right to Vote

Here, we find the kind of boilerplate legal language that is often ignored by homeowners but wielded with immense power by boards. The ineligibility of six homeowners stemmed from a specific clause in the association’s bylaws related to financial standing.

The bylaw states:

“In the event any Unit Owner is in arrears in the payment of any Assessment, monetary penalties or other fees and charges due under the terms of the Condominium Documents for a period of fifteen (15) days, the Unit Owner’s right to vote as a member of the Association shall be automatically suspended…”

This single provision had a profound impact. Six of the signatures Mr. Kelly collected were from homeowners who were more than 15 days late on their dues or fines. Their voting rights were suspended, and their signatures were rendered invalid. This highlights a crucial preparatory step for any petitioner: confidentially requesting a list of members in good standing from the association before collecting signatures, if the governing documents allow, or at minimum, reminding potential signatories to ensure their accounts are current.

3. Process is Paramount: The Signature That Never Was

Facing a losing battle at the administrative hearing, the petitioner made a final argument to salvage his petition. He contended that he had also secured the signature of a member named Jeffrey Law, who owned six separate units. Mr. Kelly argued this single signature should count as six votes, which would have put him over the required threshold.

However, this argument failed due to a simple but fatal procedural error. According to the court’s findings, the signature from Mr. Law was never actually submitted with the petition to the association.

The Administrative Law Judge’s finding was unambiguous: “The signature Petitioner collected from the multiple unit owner, Jeffrey Law, was not a part of the petition received by the Association and therefore was not counted.” This procedural error, while seemingly minor, is an absolute bar to success in administrative law. Unlike a casual disagreement, there is no room for “I meant to” or “I thought I had.”

Conclusion: Knowledge is Power in an HOA

Because the petitioner could only provide 13 valid signatures instead of the required 21, the Administrative Law Judge denied his petition. The HOA was not required to call the special meeting, and the board member remained in place. Mr. Kelly’s story is a powerful reminder that enthusiasm and effort are not enough to navigate the complexities of community governance. The case provides three clear takeaways for any homeowner:

1. Quality Over Quantity: A short, verified list of eligible voters is infinitely more powerful than a long list of unverified names.

2. Bylaws are Your Battlefield: The governing documents contain the rules of engagement. Ignoring them—especially clauses on voter eligibility—is a unilateral surrender.

3. Documentation is Everything: If it wasn’t formally submitted to the correct party, it legally never happened. Your ability to prove submission is as important as the submission itself.

This case is a powerful reminder that enthusiasm and effort aren’t enough. The real question every homeowner should ask is: Do you truly know the rules that govern your rights in your own community?

Case Participants

Petitioner Side

  • John H. Kelly (petitioner)

Respondent Side

  • Jonathan A. Dessaules (attorney)
    Dessaules Law Group
    Appeared on behalf of Respondent
  • Saundra Garcia (board member)
    Cortez Canyon Unit Owners Association
    Called as a witness and testified as Board President
  • Jacob A. Kubert (attorney)
    Dessaules Law Group
    Counsel receiving notice of decision

Neutral Parties

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

Other Participants

  • Jeffery Law (owner)
    Cortez Canyon Unit Owners Association
    Unit owner whose signature Petitioner secured but was not submitted to the Association