The Petitioner's petition was dismissed because he failed to appear or provide an authorized representative at the scheduled hearing, resulting in the Respondent being deemed the prevailing party.
Why this result: Petitioner failed to appear at the hearing scheduled at his request and failed to provide an authorized representative (as appearances are considered the practice of law under Arizona Supreme Court Rule 31).
Key Issues & Findings
Violation of CC&Rs
Petitioner Jeff Lion alleged that the Respondent violated Article 8 of the CC&Rs.
Orders: Petitioner Jeff Lion’s petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
Arizona Supreme Court Rule 31
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. section 41-1092.09
Analytics Highlights
Topics: Dismissal, Failure to Appear, Unauthorized Representation, HOA, CC&R
Additional Citations:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
Arizona Supreme Court Rule 31
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. section 41-1092.09
Video Overview
Audio Overview
Decision Documents
18F-H1817009-REL Decision – 611264.pdf
Uploaded 2025-10-09T03:32:07 (69.6 KB)
Briefing Doc – 18F-H1817009-REL
Briefing Document: Lion v. Riggs Ranch Meadows HOA (Case No. 18F-H1817009-REL)
Executive Summary
This document summarizes the Administrative Law Judge Decision in the case of Jeff Lion (Petitioner) versus Riggs Ranch Meadows Homeowners Association (Respondent). The Petitioner’s case, which alleged a violation of the Respondent’s CC&Rs, was dismissed due to the Petitioner’s failure to appear at the scheduled hearing on January 9, 2018.
The hearing had been rescheduled to this date at the Petitioner’s own request. On the day of the hearing, two witnesses for Mr. Lion appeared but were informed by the tribunal that they could not legally represent him as they were not licensed attorneys, a requirement under Arizona Supreme Court Rule 31. Because no authorized representative for the Petitioner was present, no evidence could be presented to support the claim. Consequently, Administrative Law Judge Thomas Shedden dismissed the petition and designated the Riggs Ranch Meadows Homeowners Association as the prevailing party.
Case Background and Procedural History
The matter originated from a petition filed by Jeff Lion against the Riggs Ranch Meadows Homeowners Association.
• Initial Allegation: Mr. Lion alleged that the Respondent violated Article 8 of its Covenants, Conditions, and Restrictions (CC&Rs).
• Notice of Hearing: On October 2, 2017, the Arizona Department of Real Estate issued a Notice of Hearing, initially scheduling the matter for November 29, 2017, at the Office of Administrative Hearings in Phoenix.
• Continuance: Mr. Lion filed a Motion to Continue the hearing, which was rescheduled for 9:00 a.m. on January 9, 2018, without objection from the Respondent.
Analysis of the January 9, 2018 Hearing
The proceedings on the rescheduled hearing date were pivotal to the case’s outcome.
• Petitioner’s Failure to Appear: Mr. Jeff Lion, the Petitioner, did not appear at the hearing at its scheduled time.
• Attempted Representation by Non-Attorneys: Two witnesses named by Mr. Lion were present. They informed the tribunal that Mr. Lion would not be appearing and that they intended to represent him.
• Tribunal’s Ruling on Representation: The tribunal advised the witnesses that they were legally prohibited from representing Mr. Lion. Citing Arizona Supreme Court Rule 31, the judge clarified that appearances at the Office of Administrative Hearings constitute the practice of law and require representation by an attorney licensed in Arizona. The witnesses confirmed they did not hold such licenses.
• Consequences of Non-Appearance: As there was no authorized representative present for the Petitioner, no evidence was taken. The judge noted that the hearing had been continued to that specific date at Mr. Lion’s request and proceeded to vacate the matter based on his failure to appear.
Legal Findings and Conclusions of Law
The Administrative Law Judge’s decision was grounded in established legal principles and procedural rules.
• Jurisdiction: The Arizona Department of Real Estate was confirmed to have authority over the matter pursuant to ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.
• Burden of Proof: The decision reiterated that the party asserting a claim—in this case, Mr. Lion—carries the burden of proof. The standard required was a “preponderance of the evidence,” which is defined as evidence with “the most convincing force” sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
• Core Rationale for Dismissal: The central conclusion of law was that Mr. Lion failed to meet his burden of proof. By not appearing at the hearing he had requested, and by not securing authorized legal representation, he “failed to present any evidence in support of his petition.”
Final Order and Implications
The decision, issued on January 10, 2018, formally concluded the administrative hearing process with a definitive outcome.
• Dismissal of Petition: The Administrative Law Judge ordered that “Petitioner Jeff Lion’s petition is dismissed.”
• Prevailing Party: The Respondent, Riggs Ranch Meadows Homeowners Association, was officially deemed the prevailing party in the matter.
• Post-Decision Options: The order is binding on the parties unless a rehearing is granted. A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order, as stipulated by ARIZ. REV. STAT. § 32-2199.04 and § 41-1092.09.
Key Parties and Representatives
Name/Entity
Contact/Representation Information
Petitioner
Jeff Lion
PO Box 1350, Selma, CA 93662
Respondent
Riggs Ranch Meadows Homeowners Association
Represented by Nathan Tennyson, Esq.
Respondent’s Counsel
Nathan Tennyson, Esq.
BROWN/OLCOTT, PLLC, 373 S. Main Ave., Tucson, AZ 85701
Administrative Law Judge
Thomas Shedden
Office of Administrative Hearings
Overseeing Body
Arizona Department of Real Estate
Commissioner: Judy Lowe
Study Guide – 18F-H1817009-REL
Study Guide for Administrative Law Judge Decision: Lion v. Riggs Ranch Meadows HOA
This study guide provides a review of the Administrative Law Judge Decision in the case of Jeff Lion v. Riggs Ranch Meadows Homeowners Association, Case No. 18F-H1817009-REL. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms found within the document.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based entirely on the provided legal decision.
1. Who were the petitioner and respondent in this matter, and what was the petitioner’s central allegation?
2. Why was the administrative hearing held on January 9, 2018, instead of the originally scheduled date?
3. Describe the events that occurred at the scheduled hearing time on January 9, 2018.
4. What specific rule was cited by the tribunal to prevent the petitioner’s witnesses from representing him?
5. What is the standard of proof for this matter, and which party had the burden of proof?
6. According to the decision, what was the direct consequence of the petitioner’s failure to have an authorized representative present at the hearing?
7. How does the legal document define the term “preponderance of the evidence”?
8. What was the final order issued by the Administrative Law Judge?
9. Who was identified as the “prevailing party” and why?
10. What option was available to the parties if they disagreed with the judge’s order?
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Answer Key
1. The petitioner was Jeff Lion, and the respondent was the Riggs Ranch Meadows Homeowners Association. Mr. Lion alleged that the respondent had violated Article 8 of its CC&Rs.
2. The hearing was originally set for November 29, 2017. It was rescheduled to January 9, 2018, because the petitioner, Mr. Lion, filed a Motion to Continue, to which the respondent did not object.
3. On January 9, 2018, the petitioner, Jeff Lion, did not appear for the hearing. Two witnesses appeared on his behalf and stated their intention to represent him, but they were not permitted to do so.
4. The tribunal cited Arizona Supreme Court Rule 31, which governs the practice of law. Since the witnesses were not licensed attorneys in Arizona, they were not legally permitted to represent Mr. Lion at the hearing.
5. The standard of proof is a “preponderance of the evidence.” The party asserting the claim, in this case, the petitioner Jeff Lion, had the burden of proof.
6. Because no authorized representative was present for Mr. Lion, no evidence was taken in support of his petition. This failure to present evidence was a key factor in the case’s dismissal.
7. The document defines “preponderance of the evidence” by quoting Black’s Law Dictionary as: “The greater weight of the 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.”
8. The final order was that Petitioner Jeff Lion’s petition is dismissed. The decision was issued on January 10, 2018.
9. The Respondent, Riggs Ranch Meadows Homeowners Association, was deemed the prevailing party. This was because Mr. Lion failed to present any evidence in support of his petition, leading to its dismissal.
10. The parties could request a rehearing pursuant to ARIZ. REV. STAT. section 32-2199.04. The request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
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Suggested Essay Questions
Instructions: The following questions are designed for longer, essay-style responses to explore the procedural and legal principles of the case more deeply.
1. Analyze the significance of Arizona Supreme Court Rule 31 in the outcome of this case. How does the principle that appearances at administrative hearings constitute the “practice of law” affect how individuals can pursue claims?
2. Discuss the interrelated concepts of “burden of proof” and “standard of proof” as they apply to this case. Explain why Jeff Lion’s failure to appear made it legally impossible for him to meet the standard of a “preponderance of the evidence.”
3. Evaluate the procedural fairness of the Administrative Law Judge’s decision to dismiss the petition. Consider the timeline of events, including the petitioner’s own request to reschedule the hearing, in your analysis.
4. Based on the “Conclusions of Law” section, construct an argument explaining the logical steps Administrative Law Judge Thomas Shedden took to arrive at the final order of dismissal.
5. Examine the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings as outlined in the document. How do these two entities interact in resolving a dispute initiated by a homeowner against a Homeowners Association?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (Thomas Shedden in this case) who presides over hearings at an administrative agency to resolve disputes.
ARIZ. ADMIN. CODE
The Arizona Administrative Code, a compilation of rules and regulations of Arizona state agencies. Section R2-19-119 is cited as establishing the standard of proof.
ARIZ. REV. STAT.
The Arizona Revised Statutes, which are the laws passed by the Arizona state legislature. Title 32, Chapter 20, Article 11 is cited as giving the Department of Real Estate authority.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to support their claim. In this case, the petitioner (Mr. Lion) had the burden of proof.
Covenants, Conditions, and Restrictions. These are rules governing a planned community or homeowners association. Mr. Lion alleged a violation of Article 8 of the Respondent’s CC&Rs.
Motion to Continue
A formal request made by a party to an administrative tribunal or court to postpone a scheduled hearing to a later date.
Office of Administrative Hearings (OAH)
The state agency where the hearing took place, which conducts hearings for other state agencies.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Jeff Lion.
Practice of Law
The act of representing others in legal proceedings. The decision states that appearances at the OAH are considered the practice of law and are restricted to licensed attorneys under Arizona Supreme Court Rule 31.
Preponderance of the Evidence
The standard of proof in this case. It is met when the evidence presented is more convincing and has greater weight than the evidence offered in opposition, inclining a fair mind to one side of the issue.
Prevailing Party
The party who wins a legal case or dispute. The Riggs Ranch Meadows Homeowners Association was deemed the prevailing party.
Rehearing
A second hearing of a case to re-examine the issues and the decision. The parties had 30 days to file a request for a rehearing.
Respondent
The party against whom a petition is filed. In this case, the Riggs Ranch Meadows Homeowners Association.
Tribunal
A body established to settle certain types of dispute. In this context, it refers to the Administrative Law Judge presiding over the hearing.
Blog Post – 18F-H1817009-REL
How One Homeowner Lost His Case Against His HOA Before It Even Began
Introduction: The David vs. Goliath Story You Haven’t Heard
Disputes with a Homeowners Association (HOA) are a common source of frustration. It often feels like a David vs. Goliath battle, pitting an individual against a structured organization with rules and resources. When faced with what they believe is an unfair application of those rules, some homeowners decide to fight back.
This was the situation for Jeff Lion, who filed a petition against his HOA, Riggs Ranch Meadows, alleging a violation of Article 8 of its Covenants, Conditions, and Restrictions (CC&Rs). But this story didn’t end with a dramatic debate over property rights. Instead, it was over before it started, derailed by a simple but fatal procedural misstep. This case offers three critical lessons for anyone considering a formal dispute, revealing how understanding the basic rules of the game is far more important than just believing you have a good argument.
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1. The Most Important Step is Showing Up
The central, decisive event of the case was a stunning failure in participation: the petitioner, Jeff Lion, did not appear at the hearing on January 9, 2018. The ultimate procedural irony? This was the exact hearing date that he himself had requested.
The contrast on that day could not have been starker. While Mr. Lion was a no-show for the fight he started, the HOA—the “Goliath” in this story—arrived fully prepared, represented by its attorney, Nathan Tennyson, Esq. The judge’s decision was swift and absolute. Because Mr. Lion did not appear, no evidence was taken, and his petition was dismissed entirely.
This outcome is rooted in a core legal principle known as the “burden of proof.” Simply put, the person making a claim is responsible for presenting evidence to support it. As the one who filed the petition, it was Mr. Lion’s job to prove his case. By failing to appear, he presented zero evidence and could not possibly meet this fundamental burden. The merits of his specific complaint about Article 8 were never even heard, all because of a self-inflicted failure to participate in the process he initiated on the day he chose.
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2. Not Just Anyone Can Speak for You in Court
In a surprising turn, while Mr. Lion was absent, his two named witnesses did appear at the hearing. They informed the judge that the petitioner would not be attending and that they intended to represent him in his absence.
The Administrative Law Judge immediately shut down their attempt. The reason highlights a crucial rule that trips up many non-lawyers: the witnesses were not licensed attorneys, and the law strictly forbids such representation. Appearances at these administrative hearings are legally considered “the practice of law.”
The court’s decision was based on an unambiguous rule, which it cited in its legal conclusions:
Appearances at the Office of Administrative Hearings are considered to be the practice of law. See Arizona Supreme Court Rule 31.
This is a counter-intuitive lesson for many. You might assume a trusted friend, family member, or knowledgeable witness could speak on your behalf. This case demonstrates that the legal system has rigid rules about who is authorized to provide representation. Good intentions and a willingness to help are not enough to grant someone the legal authority to act as your advocate in a formal hearing.
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3. “Winning” is About Tipping the Scale of Evidence
In administrative hearings, the standard for winning is called “a preponderance of the evidence.” This doesn’t mean proving your case beyond all doubt. Think of it like a scale. “Preponderance of the evidence” simply means you have to provide enough evidence to make the scale tip, even just slightly, in your favor.
The formal definition clarifies this concept of relative weight:
The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Applying this standard to Mr. Lion’s case makes the outcome painfully clear. Since he failed to appear and no evidence was taken on his behalf, the “weight” of his evidence was zero. It was therefore impossible for him to tip the scale, no matter how strong his case might have been in theory. Because he presented nothing, Riggs Ranch Meadows was deemed the “prevailing party” by default. This demonstrates how the legal system is a structured process focused on evidence presented according to rules, not just on feelings or the theoretical rightness of a claim.
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Conclusion: The Rules of the Game Matter
The case of Jeff Lion provides a masterclass in legal procedure. The three key lessons are simple but absolute: you must show up to your own hearing, especially one you scheduled; only licensed attorneys can legally represent you; and you must present evidence to meet your burden of proof.
This case wasn’t ultimately about CC&Rs or neighborhood rules; it was about procedure. It serves as a stark reminder that before entering any formal dispute, the first question to ask isn’t “Am I right?” but “Do I understand the rules?”
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
17F-H1717038-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2017-12-11
Administrative Law Judge
Thomas Shedden
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
James and Shawna Larson
Counsel
Lisa M. Hanger
Respondent
Tempe Gardens Townhouse Corporation
Counsel
Nathan Tennyson
Alleged Violations
A.R.S. § 33-1255(C); CC&R sections 9 and 9(b)
Outcome Summary
The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).
Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.
Key Issues & Findings
Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.
Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).
Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Briefing on Larson v. Tempe Gardens Townhouse Corporation
Executive Summary
This briefing document synthesizes the legal dispute between homeowners James and Shawna Larson (Petitioners) and the Tempe Gardens Townhouse Corporation (Respondent). The core conflict centered on the Respondent’s requirement that Petitioners remove their patio cover at their own expense to facilitate a community-wide building repair and painting project. The case initially faced a jurisdictional challenge, with an Administrative Law Judge (ALJ) recommending dismissal due to the speculative nature of the Respondent’s threat to remove the cover. This recommendation was rejected by the Commissioner of the Department of Real Estate, who found the matter ripe for adjudication and ordered a new hearing.
The final Administrative Law Judge Decision ultimately ruled in favor of the Respondent. The decision found the HOA’s plan to remove the patio covers was reasonable, necessary for the safe and proper completion of the project, and authorized under the community’s CC&Rs. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona statute. Consequently, the financial responsibility for its removal and potential reinstallation rests solely with the Petitioners as the homeowners to whom the element is assigned. The Petitioners’ petition was dismissed, and the Respondent was deemed the prevailing party.
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Procedural History
The case progressed through several distinct legal phases, beginning with a petition and culminating in a final administrative decision after a rehearing.
Outcome/Significance
June 15-16, 2017
Petition Filed
James and Shawna Larson filed a petition with the Department of Real Estate alleging a violation of the Respondent’s CC&Rs.
August 25, 2017
Order Recommending Dismissal
Administrative Law Judge Suzanne Marwil recommended dismissing the petition, finding no “justiciable controversy” because the Respondent had not yet acted on its threat to remove the patio cover, rendering the issue speculative.
August 31, 2017
Order Rejecting Recommendation
Judy Lowe, Commissioner of the Department of Real Estate, rejected the ALJ’s recommendation. Citing a June 1, 2017 letter from the Respondent, the Commissioner determined the matter was “ripe for adjudication” and ordered the hearing to be rescheduled.
September 1, 2017
Notice of Re-Hearing Issued
The Arizona Department of Real Estate formally scheduled a new hearing in the matter.
November 20, 2017
Rehearing Conducted
A full hearing on the merits was conducted before Administrative Law Judge Thomas Shedden.
December 11, 2017
Final Administrative Law Judge Decision
ALJ Thomas Shedden issued a final decision, dismissing the Petitioners’ petition and finding in favor of the Respondent.
Core Dispute Analysis
The conflict arose from a maintenance project initiated by the Tempe Gardens Townhouse Corporation, which consists of 169 units. The project involved repairing and painting the exteriors of the community’s twenty-five two-story buildings.
Respondent’s (HOA’s) Mandate and Rationale
• Project Requirement: The HOA informed homeowners with patio covers that they were required to remove the covers at their own expense before repairs and painting could begin.
• Enforcement Threat: In a letter dated June 1, 2017, the HOA stated that if the Larsons’ patio cover was not removed within ten days, the HOA would remove it under the authority of CC&R section 10(a) and charge the homeowners for the cost.
• Legal Justification: The HOA asserted its authority based on:
◦ CC&R Section 9(b): Grants the Respondent responsibility for maintaining the building exteriors.
◦ CC&R Section 9: States, “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the … [building] exteriors … shall be taken by the [Respondent].”
• Practical Necessity: The HOA argued that removal was essential for the project’s proper and safe completion, a position supported by its project manager.
Petitioners’ (Larsons’) Objections and Counter-Arguments
• Initial Legal Position: In their brief, the Petitioners stated that “the true issues underlying this issue are not about whether Respondent’s current threatened actions are a violation of the CC&Rs. The true issues relate to Respondent Association’s actions and inactions that have lead up to the point where the Parties now find themselves addressing this administrative law panel.”
• Lack of Authority: In a May 19, 2017 letter, the Larsons’ counsel argued the HOA had no legal authority to support its request.
• Unreasonable Cost: The Petitioners asserted that the cost of removal and reinstallation would be “thousands of dollars” and provided bids ranging from $3,980 to $5,975.
• Historical Precedent: The patio cover was in place when the Larsons purchased their unit in 1999, and they argued the HOA did not disclose any violation at that time.
• Proposed Alternatives:
1. The Larsons offered to have the back of their unit painted at their own expense, which the HOA rejected over concerns about project warranty and management.
2. During the November 20 hearing, after hearing testimony, the Larsons offered not to reinstall their patio cover if the Respondent would pay for its removal.
Key Evidence and Testimony
The final decision heavily relied on the testimony of Wayne King, the project manager hired by the HOA, and an analysis of competing cost estimates.
Testimony of Wayne King (Project Manager)
• Project Scope: King testified that the project involved not only painting but also repairing damaged siding, much of which was caused by improperly flashed patio covers. To “do the job right,” the process required sanding, power washing, and patching before painting.
• Contractor Requirements: All five contractors who bid on the project required the patio covers to be removed.
• Safety and Logistics: King explained why working around the covers was not viable:
◦ Scaffolding: “Regular” scaffolding would not fit, and commercial scaffolding would not provide access to the entire building.
◦ Lifts: Using a “reach” or forklift was not an option due to overhead powerlines creating a safety hazard.
◦ Worker Safety: Allowing painters to walk on homeowners’ patio covers was not a safe option. He noted that changes in safety laws since the buildings were last painted necessitated different methods.
• Warranty: King testified that the paint company would not provide a warranty for the project if individual homeowners, like the Larsons, painted their own units.
Cost Estimates and Discrepancies
• Petitioners’ Estimates: The Larsons submitted two bids for their wooden patio cover:
◦ Bid 1: $1,250 to remove and dispose; $3,980 to remove and rebuild with new wood.
◦ Bid 2: $5,975 to remove and replace the structure.
• Respondent’s Estimates:
◦ The HOA’s initial letter offered a contractor who would remove aluminum covers for $150. The cost for the Larsons’ wood cover was stated as $225, though this was not a firm price.
◦ Wayne King testified that the Petitioners’ estimates were “very high” and opined that $1,000 should cover the cost of removing and rebuilding, assuming existing materials were reused. He acknowledged decking material would likely need replacement but estimated 80% of rafters could be reused.
Legal Findings and Final Decision
The Administrative Law Judge Decision of December 11, 2017, provided a comprehensive legal analysis that concluded in the Respondent’s favor.
Governing Authority and Reasonableness
• Deference to the HOA: Citing Tierra Ranchos Homeowners Ass’n v. Kitchukov, the decision established that the tribunal must accord the HOA deference in its decisions regarding maintenance and repair, provided it acts reasonably.
• Finding of Reasonableness: Based on the credible testimony of Wayne King, the judge found that the Respondent’s proposed plan for repairing and painting was reasonable, as the buildings could not be “properly and safely painted without the patio covers being removed.”
• Authorization under CC&Rs: The judge concluded that CC&R sections 9 and 9(b) were “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”
“Limited Common Element” Doctrine and Cost Allocation
The central legal issue of financial responsibility was resolved by applying Arizona state statutes.
1. Classification: The Petitioners’ patio cover was classified as a limited common element within the meaning of ARIZ. REV. STAT. section 33-1212(4).
2. Statutory Rule: The judge then applied ARIZ. REV. STAT. section 33-1255(C), which states:
3. Conclusion on Cost: Based on a “reasonable reading” of this statute, the decision concluded that the Petitioners must bear the cost of removing the patio cover and, should they choose to do so, the cost of reinstalling it.
Final Ruling
• The evidence supported the conclusion that the Respondent had the authority to require the removal of the patio cover at the Petitioners’ expense.
• IT IS ORDERED that the petition filed by James and Shawna Larson is dismissed.
• The Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.
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Key Parties and Representatives
Name(s)
Representation
Petitioners
James and Shawna Larson
Lisa M. Hanger, Esq.
Respondent
Tempe Gardens Townhouse Corporation
Nathan Tennyson, Esq. (Brown Alcott PLLC)
ALJ (Initial)
Suzanne Marwil
Office of Administrative Hearings
ALJ (Final)
Thomas Shedden
Office of Administrative Hearings
Commissioner
Judy Lowe
Arizona Department of Real Estate
Study Guide – 17F-H1717038-REL-RHG
Study Guide for Larson v. Tempe Gardens Townhouse Corporation
This study guide provides a comprehensive review of the administrative case between James and Shawna Larson and the Tempe Gardens Townhouse Corporation, culminating in the Administrative Law Judge Decision of December 11, 2017. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Instructions: Answer the following ten questions based on the provided source documents. Each answer should be two to three sentences long.
1. Who were the primary parties in this case, and what was their relationship?
2. What was the initial reason given by Administrative Law Judge (ALJ) Suzanne Marwil for recommending the dismissal of the Larsons’ petition?
3. Why did Commissioner of the Department of Real Estate Judy Lowe reject the initial recommendation for dismissal?
4. What was the central issue adjudicated at the November 20, 2017 hearing before ALJ Thomas Shedden?
5. According to the Respondent, Tempe Gardens Townhouse Corporation, which specific sections of the CC&Rs granted it the authority to require the removal of patio covers?
6. Who was Wayne King, and what was the substance of his testimony during the hearing?
7. How did the Arizona Revised Statutes (A.R.S.) classify the Petitioners’ patio cover, and why was this classification legally significant for the case’s outcome?
8. What safety and logistical reasons were provided to justify the necessity of removing the patio covers for the painting project?
9. What was the final decision issued by ALJ Thomas Shedden on December 11, 2017?
10. According to the final ruling, who is financially responsible for the removal and potential reinstallation of the Petitioners’ patio cover, and what was the legal basis for this conclusion?
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Answer Key
1. The primary parties were the Petitioners, homeowners James and Shawna Larson, and the Respondent, their homeowner’s association, Tempe Gardens Townhouse Corporation. The dispute arose from the Respondent’s requirement that the Petitioners remove a patio cover at their unit.
2. ALJ Suzanne Marwil recommended dismissal on August 25, 2017, for a lack of a “justiciable controversy.” She reasoned that the Respondent’s threat to take down the patio cover had not yet been undertaken, making the issue speculative and more appropriate for a declaratory judgment action in superior court.
3. Commissioner Judy Lowe rejected the recommendation on August 31, 2017, stating the matter was “ripe for adjudication.” Her decision was based on a letter from June 1, 2017, in which the Respondent alleged a violation of the governing documents, thus creating a tangible controversy for the administrative tribunal to rule upon.
4. The central issue was whether the Respondent had the authority to mandate the removal of the Petitioners’ patio cover to facilitate a large-scale building repair and painting project. A secondary issue was determining who was financially responsible for the cost of removal and reinstallation.
5. The Respondent cited CC&R sections 9 and 9(b) as the source of its authority. Section 9(b) makes the Respondent responsible for maintaining building exteriors, and section 9 grants it the power to take “any cooperative action necessary or appropriate” for that maintenance.
6. Wayne King was the project manager hired by the Respondent for the painting project. He provided expert testimony that removing the patio covers was necessary to properly and safely repair and paint the buildings, noting that all five bidding contractors required their removal and that alternative methods were not viable or safe.
7. The patio cover was classified as a “limited common element” under A.R.S. § 33-1212(4). This was significant because A.R.S. § 33-1255(C) states that common expenses associated with the maintenance or repair of a limited common element shall be assessed against the units to which it is assigned, placing the financial burden on the Petitioners.
8. Project manager Wayne King testified that removal was necessary to accommodate the 14-foot by 8-foot area required for scaffolding. He explained that using a forklift was unsafe due to overhead powerlines, and allowing painters to walk on the covers was also a safety hazard, especially given changes in safety laws since the last painting project.
9. ALJ Thomas Shedden dismissed the Petitioners’ petition and deemed the Respondent, Tempe Gardens Townhouse Corporation, to be the prevailing party. The order found that the Respondent’s plan was reasonable and that it had the authority to require the patio cover’s removal.
10. The final ruling concluded that the Petitioners, James and Shawna Larson, were responsible for the cost to remove the patio cover and the cost to reinstall it if they chose to do so. The legal basis was A.R.S. § 33-1255(C), which assigns expenses related to a “limited common element” (the patio cover) exclusively to the unit owner it benefits.
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Essay Questions
Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a comprehensive response for each, drawing evidence from the provided source documents.
1. Trace the procedural history of case No. 17F-H1717038-REL from the initial petition to the final decision. Explain the reasoning behind each major procedural step, including the initial recommendation for dismissal, its rejection by the Commissioner, and the final order.
2. Analyze the legal arguments presented by both the Petitioners (James and Shawna Larson) and the Respondent (Tempe Gardens Townhouse Corporation) at the November 20, 2017 hearing. Discuss the key pieces of evidence, including witness testimony, cost estimates, and CC&R provisions, that each side used to support its position.
3. Explain the concept of “justiciable controversy” as it was applied by ALJ Suzanne Marwil in her recommendation for dismissal. Contrast her interpretation with Commissioner Judy Lowe’s reasoning for why the matter was “ripe for adjudication.”
4. Discuss the legal significance of classifying the patio cover as a “limited common element.” How did this classification, in conjunction with Arizona Revised Statutes and the community’s CC&Rs, ultimately determine the outcome of the case regarding financial responsibility?
5. Evaluate the role of expert testimony in the final administrative hearing. How did the testimony of Wayne King influence ALJ Thomas Shedden’s findings of fact and conclusions of law regarding the reasonableness and necessity of the Respondent’s actions?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge who presides over administrative hearings at a government agency, such as the Office of Administrative Hearings. In this case, Suzanne Marwil and Thomas Shedden served as ALJs.
A.R.S. (Arizona Revised Statutes)
The official compilation of the laws of the state of Arizona. Key statutes cited include A.R.S. § 32-2199, § 33-1212(4), and § 33-1255(C).
CC&Rs (Covenants, Conditions & Restrictions)
The governing documents for a planned community or condominium association that outline the rights and obligations of the homeowners and the association. In this case, sections 9, 9(b), and 10(a) were specifically mentioned.
Declaratory Judgment Action
A legal action filed in superior court where a party asks the court to provide a binding ruling on the rights and obligations of the parties before an actual injury has occurred.
Justiciable Controversy
A real, substantial legal dispute that is appropriate for a court or tribunal to resolve. It cannot be a hypothetical, speculative, or advisory matter.
Limited Common Element
As defined in A.R.S. § 33-1212(4), a common element of a condominium assigned for the exclusive use of one or more units, but fewer than all of them. The Larsons’ patio cover was classified as such.
Petition
The formal written request filed by a party to initiate a case with an administrative body. The Larsons filed their petition with the Department of Real Estate on June 15/16, 2017.
Petitioner
The party who initiates a legal action by filing a petition. In this case, James and Shawna Larson were the Petitioners.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It means the greater weight of the evidence is sufficient to incline a fair and impartial mind to one side of an issue over the other.
Respondent
The party against whom a petition is filed. In this case, Tempe Gardens Townhouse Corporation was the Respondent.
Tribunal
A body, such as the Office of Administrative Hearings, with the authority to judge, adjudicate on, or determine claims or disputes.
Blog Post – 17F-H1717038-REL-RHG
They Fought the HOA Over a Patio and Lost: 3 Shocking Legal Lessons for Every HOA Member
It’s the letter every homeowner dreads. An official-looking envelope from the Homeowner’s Association (HOA) lands in your mailbox, and the message inside is not a friendly neighborhood greeting. It’s a demand.
This is exactly what happened to Arizona couple James and Shawna Larson. Their HOA, Tempe Gardens Townhouse Corporation, was planning a large-scale project to repair and paint the building exteriors. To do the job properly, the HOA demanded that the Larsons remove their wooden patio cover—at their own expense. The Larsons, believing this was an unreasonable overreach, refused. That refusal kicked off a legal battle that serves as a masterclass in the often-shocking realities of HOA power.
This post distills the most important lessons from their fight. These are the legal realities that every homeowner should understand before they find themselves on the receiving end of a similar notice.
You Can Win the First Round and Still Lose the Case
In the first stage of the dispute, the Administrative Law Judge actually recommended that the Larsons’ petition be dismissed. The judge’s reasoning was based on a crucial legal doctrine: ripeness. Because the HOA had only threatened to remove the patio cover and hadn’t physically done it yet, the judge found the issue “speculative.” In the court’s view, there was no “justiciable controversy” to rule on yet.
The initial ruling contained a powerful statement highlighting the confusion:
Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.
But this initial victory was short-lived. In a surprising twist, the Commissioner of the Department of Real Estate rejected the judge’s recommendation. The Commissioner found that the core question—whether the patio cover violated the association’s rules—was “ripe for adjudication” and ordered the case back to court for a full hearing. This highlights a key principle: administrative bodies often prefer to rule on the substance of a dispute rather than dismiss it on procedural grounds, ensuring that core community conflicts are actually resolved.
A case isn’t over until it’s over. An initial procedural win (or loss) can be overturned, shifting the entire battlefield. With the case now officially back on, the court turned to the central question of the dispute: who was financially responsible for the patio cover?
It’s Your Patio, So It’s Your Bill—Even When the HOA Forces the Work
The central conflict boiled down to one question: who should pay? The Larsons believed that since the HOA required the patio cover to be removed for its maintenance project, the HOA should bear the associated costs. This seems like common sense, but HOA law operates on a different logic.
The case was decided by a key legal concept: the patio cover was legally classified as a “limited common element.” For most homeowners, this is where their jaw hits the floor. A limited common element is part of the common area (like exterior walls or roofs) but is assigned for the exclusive use of a single unit owner. The logic behind this law is that while the HOA maintains general common areas, elements that provide an exclusive benefit to one owner—like their personal patio, balcony, or assigned parking spot—carry an exclusive financial responsibility, even for HOA-mandated work.
This classification has a devastating financial consequence spelled out in Arizona statute A.R.S. § 33-1255(C). The law states that common expenses associated with a limited common element are assessed against the unit it’s assigned to. The judge’s final conclusion was direct and absolute:
Because the patio cover is a limited common element, under a reasonable reading of ARIZ. REV. STAT. section 33-1255(C), Petitioners must bear the cost of removing the patio cover and, if they choose to do so, the cost of reinstalling it.
Under the law, because the patio exclusively benefitted the Larsons, they were solely responsible for all costs associated with it, even when the work was demanded by the HOA for its own project.
Deference is Given to a Well-Prepared HOA
The HOA didn’t win just because of a legal statute; it won because it built a sound, well-documented case for its demand. They didn’t just issue an order; they presented extensive evidence that their plan was “reasonable.”
The testimony of their project manager, Wayne King, was particularly compelling. He laid out a series of facts that were difficult to dispute:
• The project involved necessary repairs to siding and flashing, not just cosmetic painting.
• All five painting contractors who bid on the project required the patio covers to be removed.
• Removal was essential to comply with modern safety laws for scaffolding and to allow for proper work, including sanding and power washing.
• Safety laws had changed since the buildings were last painted, making old methods unsafe and illegal.
• Allowing individual homeowners to paint their own sections would void the painter’s warranty for the entire project.
Faced with this mountain of meticulously documented evidence, the judge ruled that the HOA’s plan was “reasonable.” Because of this, the court was legally bound to “accord Respondent deference in decisions regarding maintenance and repair of the common areas.” In other words, when an HOA acts logically, documents its process, and prioritizes safety and proper procedure, courts will give it significant authority to enforce its decisions.
Conclusion: Knowledge is Power in an HOA
The Larsons’ case is a stark reminder that in an HOA, what feels fair is irrelevant. The only things that matter are procedural correctness (even a ‘win’ can be temporary), the fine print of legal definitions (you can be forced to pay to remove your own property), and an HOA’s documented reasonableness (a well-prepared board is nearly unbeatable). These principles are found not in a sense of fairness, but in the specific, often surprising language of state law and a community’s own CC&Rs.
This case was about a patio cover, but the principles apply to fences, doors, and windows—do you truly know what you own and what you’re responsible for?
Case Participants
Petitioner Side
James Larson(petitioner)
Shawna Larson(petitioner)
Lisa M. Hanger(petitioner attorney)
Respondent Side
Nathan Tennyson(respondent attorney) Brown Alcott PLLC
Wayne King(witness) Project Manager for painting project hired by Respondent
Neutral Parties
Suzanne Marwil(ALJ) Issued initial Recommended Order of Dismissal (August 25, 2017)
Thomas Shedden(ALJ) Issued Administrative Law Judge Decision (December 11, 2017)
Judy Lowe(Commissioner) Arizona Department of Real Estate Rejected initial recommendation of dismissal
Dan Gardner(HOA Coordinator) Transmitted Commissioner's order
The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).
Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.
Key Issues & Findings
Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.
Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).
Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Additional Citations:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
A.R.S. § 32-2199
A.R.S. § 32-2199.02
A.R.S. § 41-1092.09
ARIZ. ADMIN. CODE § R2-19-119
Gutierrez v. Industrial Commission of Arizona
Video Overview
Audio Overview
Decision Documents
17F-H1717038-REL Decision – 583987.pdf
Uploaded 2025-10-09T03:31:46 (53.0 KB)
17F-H1717038-REL Decision – 585505.pdf
Uploaded 2025-10-09T03:31:46 (385.9 KB)
Briefing Doc – 17F-H1717038-REL
Briefing on Larson v. Tempe Gardens Townhouse Corporation
Executive Summary
This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.
The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.
In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.
Procedural History and Jurisdictional Rulings
Initial Petition and Dismissal Recommendation
On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.
Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.
This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:
• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”
• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.
• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.
• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.
Rejection of Dismissal and Re-Hearing
On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”
• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.
• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”
• This question was deemed sufficient to make the matter “ripe for adjudication.”
• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.
Analysis of the Merits of the Dispute
The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.
Respondent’s (HOA) Case
The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:
• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”
• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.
◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).
◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.
◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.
◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.
Petitioners’ (Larsons’) Case
The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.
• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.
• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:
◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.
◦ A second bid quoted $5,975 to remove and then replace the structure.
• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.
• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.
Final Administrative Law Judge Decision
On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.
Key Findings and Conclusions of Law
Finding/Conclusion
Details
Standard of Review
The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.
Reasonableness of HOA Action
Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.
HOA Authority
CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”
Patio Cover Classification
The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).
Cost Responsibility
The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”
Final Order
Based on these findings, the Administrative Law Judge ordered the following:
“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”
The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.
Study Guide – 17F-H1717038-REL
Study Guide: Larson v. Tempe Gardens Townhouse Corporation
This study guide provides a comprehensive review of the administrative case between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.
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Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the information in the provided source documents.
1. Who were the primary parties involved in this case, and what was their relationship?
2. What was the initial reason given by Administrative Law Judge (ALJ) Suzanne Marwil for recommending the dismissal of the Larsons’ petition?
3. Why did the Commissioner of the Department of Real Estate, Judy Lowe, reject the initial recommendation for dismissal?
4. What was the central dispute that was ultimately decided in the November 20, 2017, hearing?
5. According to the final Administrative Law Judge Decision, what is the legal classification of the petitioners’ patio cover?
6. Which specific sections of the CC&Rs did the Respondent, Tempe Gardens Townhouse Corporation, cite as the basis for its authority?
7. What key reasons did project manager Wayne King provide to justify the necessity of removing the patio covers for the painting project?
8. Describe the significant difference in the cost estimates for removing and replacing the patio cover as presented by the Petitioners versus the Respondent’s project manager.
9. What was the final ruling regarding who was financially responsible for the removal and potential reinstallation of the patio cover?
10. What was the ultimate outcome of the Larsons’ petition following the final hearing, and which party was deemed the “prevailing party”?
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Answer Key
1. The primary parties were the Petitioners, homeowners James and Shawna Larson, and the Respondent, the Tempe Gardens Townhouse Corporation, which is their homeowner’s association (HOA). The dispute arose from the HOA’s plan to repair and paint the building exteriors.
2. ALJ Marwil initially recommended dismissal due to a “lack of justiciable controversy.” She found that the Petitioners had failed to cite any provision of the CC&Rs that the Respondent had currently violated, as the threatened action to remove the patio cover was speculative and had not yet occurred.
3. Commissioner Lowe rejected the dismissal because she found the matter was “ripe for adjudication.” Her decision was based on a June 1, 2017 letter from the Respondent that questioned whether “the presence of the awning [is] a violation of the Association’s governing documents,” which she interpreted as the Respondent alleging a violation.
4. The central dispute was whether the Tempe Gardens Townhouse Corporation had the authority to mandate that homeowners, specifically the Larsons, remove their patio covers at their own expense to facilitate a building repair and painting project.
5. The final decision classifies the Petitioners’ patio cover as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4). This classification was crucial to determining financial responsibility.
6. The Respondent cited sections 9 and 9(b) of the CC&Rs. Section 9(b) makes the Respondent responsible for maintaining building exteriors, and section 9 grants it the authority to take “Any cooperative action necessary or appropriate to the proper maintenance and upkeep” of those exteriors.
7. Wayne King testified that removal was necessary to properly and safely complete the work using scaffolding, as required by modern safety laws. He also stated that removal was needed to repair improperly flashed areas behind the covers and to ensure the painting contractor would provide a warranty for the project.
8. The Petitioners presented bids showing the cost to remove and rebuild the cover would be between $3,980 and $5,975. In contrast, Mr. King opined these estimates were very high and that the cost should be closer to $1,000 if existing materials were reused.
9. The final ruling, based on ARIZ. REV. STAT. section 33-1255(C), was that the Petitioners must bear the cost of removing the patio cover and, if they choose, the cost of reinstalling it. This is because the patio cover is a limited common element assigned specifically to their unit.
10. The final outcome was the dismissal of the Larsons’ petition. The Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party in the matter.
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Essay Questions
The following questions are designed for a more in-depth analysis. Use the provided documents to construct a detailed, evidence-based response.
1. Trace the procedural history of this case from the initial filing to the final decision. Discuss the key turning points, including the initial recommendation for dismissal, its rejection by the Commissioner, and the reasoning behind the final judgment.
2. Analyze the legal arguments presented by both the Petitioners and the Respondent in the November 2017 hearing. On what specific statutes and CC&R provisions did each side rely, and how did the Administrative Law Judge ultimately interpret these documents?
3. Evaluate the role of expert testimony in this case, specifically focusing on the evidence provided by project manager Wayne King. How did his testimony regarding safety, project requirements, and cost estimates influence the Administrative Law Judge’s findings on the reasonableness of the Respondent’s actions?
4. Discuss the legal concept of a “limited common element” as defined and applied in the source documents. Explain how this classification was central to the final decision regarding financial responsibility for the patio cover’s removal and reinstallation.
5. The initial Administrative Law Judge found no “justiciable controversy,” while the Commissioner later found the matter “ripe for adjudication.” Based on the details in all three documents, explain the arguments for both positions and analyze why the case ultimately proceeded to a full hearing.
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
An official in the Office of Administrative Hearings who adjudicates complaints regarding condominium and planned community documents and ensures compliance with relevant statutes.
Covenants, Conditions, and Restrictions. The documents that govern the community and are described as a contract between the homeowner’s association and the homeowners.
Justiciable Controversy
A real dispute that a tribunal has the authority to resolve. The initial petition was recommended for dismissal for a lack of a justiciable controversy because the Respondent’s threatened actions were deemed speculative.
Limited Common Element
A legal classification for property defined under ARIZ. REV. STAT. section 33-1212(4). In this case, the Petitioners’ patio cover was classified as such, meaning any common expense associated with its maintenance, repair, or replacement is assessed against the unit to which it is assigned.
Petition
The formal document filed with the Department of Real Estate to initiate a complaint against a homeowner’s association.
Petitioner
The party that files a petition initiating a legal action. In this case, the homeowners James and Shawna Larson.
Preponderance of the Evidence
The standard of proof required in this matter, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Prevailing Party
The party that is successful in a legal dispute. In the final order, the Respondent was deemed the prevailing party.
Respondent
The party against whom a petition is filed. In this case, the Tempe Gardens Townhouse Corporation.
Ripe for Adjudication
A term used by the Commissioner of the Department of Real Estate to indicate that a dispute is ready to be formally heard and decided by the Administrative Law Judge.
Blog Post – 17F-H1717038-REL
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17F-H1717038-REL-RHG
3 sources
These documents chronicle the legal dispute between James and Shawna Larson (Petitioners) and the Tempe Gardens Townhouse Corporation (Respondent) concerning the removal of the Larsons’ patio cover for building maintenance. Initially, an Administrative Law Judge (ALJ) recommended dismissal because the Petitioners did not allege a current violation of the governing documents, thus lacking a justiciable controversy since the association had only threatened action. However, the Department of Real Estate Commissioner rejected this recommendation, asserting that a violation of the governing documents was alleged by the Respondent, making the matter ripe for adjudication. Following a rehearing, a different ALJ issued a final decision finding that the Respondent acted reasonably in requiring the patio cover removal for safe and proper painting and repairs, concluding that the Petitioners must bear the cost of removal and reinstallation as the cover is a limited common element.
Based on 3 sources
Case Participants
Petitioner Side
James Larson(petitioner)
Shawna Larson(petitioner)
Lisa M. Hanger(attorney) Counsel for Petitioners
Respondent Side
Nathan Tennyson(attorney) Brown Alcott PLLC Counsel for Respondent Tempe Gardens Townhouse Corporation
Wayne King(witness) Project manager hired by Respondent for the painting project; provided testimony
Neutral Parties
Suzanne Marwil(ALJ) Office of Administrative Hearings Authored Recommended Order Dismissal dated August 25, 2017
Thomas Shedden(ALJ) Office of Administrative Hearings Authored Administrative Law Judge Decision dated December 11, 2017
Judy Lowe(Commissioner) Arizona Department of Real Estate Rejected Recommendation of Dismissal
Dan Gardner(HOA coordinator) Transmitted documents (Order Rejecting Recommendation of Dismissal)
Other Participants
Chris Morga(contractor) Jacob and Co. Mentioned as a vendor who could remove patio covers
The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).
Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.
Key Issues & Findings
Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.
Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).
Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Additional Citations:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
A.R.S. § 32-2199
A.R.S. § 32-2199.02
A.R.S. § 41-1092.09
ARIZ. ADMIN. CODE § R2-19-119
Gutierrez v. Industrial Commission of Arizona
Audio Overview
Decision Documents
17F-H1717038-REL Decision – 583987.pdf
Uploaded 2025-10-08T06:51:36 (53.0 KB)
17F-H1717038-REL Decision – 585505.pdf
Uploaded 2025-10-08T06:51:37 (385.9 KB)
Briefing Doc – 17F-H1717038-REL
Briefing on Larson v. Tempe Gardens Townhouse Corporation
Executive Summary
This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.
The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.
In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.
Procedural History and Jurisdictional Rulings
Initial Petition and Dismissal Recommendation
On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.
Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.
This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:
• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”
• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.
• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.
• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.
Rejection of Dismissal and Re-Hearing
On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”
• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.
• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”
• This question was deemed sufficient to make the matter “ripe for adjudication.”
• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.
Analysis of the Merits of the Dispute
The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.
Respondent’s (HOA) Case
The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:
• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”
• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.
◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).
◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.
◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.
◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.
Petitioners’ (Larsons’) Case
The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.
• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.
• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:
◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.
◦ A second bid quoted $5,975 to remove and then replace the structure.
• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.
• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.
Final Administrative Law Judge Decision
On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.
Key Findings and Conclusions of Law
Finding/Conclusion
Details
Standard of Review
The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.
Reasonableness of HOA Action
Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.
HOA Authority
CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”
Patio Cover Classification
The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).
Cost Responsibility
The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”
Final Order
Based on these findings, the Administrative Law Judge ordered the following:
“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”
The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.
The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).
Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.
Key Issues & Findings
Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.
Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).
Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Additional Citations:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
A.R.S. § 32-2199
A.R.S. § 32-2199.02
A.R.S. § 41-1092.09
ARIZ. ADMIN. CODE § R2-19-119
Gutierrez v. Industrial Commission of Arizona
Audio Overview
Decision Documents
17F-H1717038-REL Decision – 583987.pdf
Uploaded 2025-10-08T06:58:14 (53.0 KB)
17F-H1717038-REL Decision – 585505.pdf
Uploaded 2025-10-08T06:58:15 (385.9 KB)
Briefing Doc – 17F-H1717038-REL
Briefing on Larson v. Tempe Gardens Townhouse Corporation
Executive Summary
This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.
The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.
In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.
Procedural History and Jurisdictional Rulings
Initial Petition and Dismissal Recommendation
On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.
Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.
This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:
• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”
• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.
• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.
• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.
Rejection of Dismissal and Re-Hearing
On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”
• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.
• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”
• This question was deemed sufficient to make the matter “ripe for adjudication.”
• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.
Analysis of the Merits of the Dispute
The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.
Respondent’s (HOA) Case
The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:
• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”
• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.
◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).
◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.
◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.
◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.
Petitioners’ (Larsons’) Case
The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.
• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.
• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:
◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.
◦ A second bid quoted $5,975 to remove and then replace the structure.
• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.
• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.
Final Administrative Law Judge Decision
On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.
Key Findings and Conclusions of Law
Finding/Conclusion
Details
Standard of Review
The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.
Reasonableness of HOA Action
Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.
HOA Authority
CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”
Patio Cover Classification
The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).
Cost Responsibility
The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”
Final Order
Based on these findings, the Administrative Law Judge ordered the following:
“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”
The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.
The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).
Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.
Key Issues & Findings
Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.
Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).
Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Additional Citations:
A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
A.R.S. § 32-2199
A.R.S. § 32-2199.02
A.R.S. § 41-1092.09
ARIZ. ADMIN. CODE § R2-19-119
Gutierrez v. Industrial Commission of Arizona
Audio Overview
Decision Documents
17F-H1717038-REL Decision – 583987.pdf
Uploaded 2025-10-08T07:02:29 (53.0 KB)
17F-H1717038-REL Decision – 585505.pdf
Uploaded 2025-10-08T07:02:30 (385.9 KB)
Briefing Doc – 17F-H1717038-REL
Briefing on Larson v. Tempe Gardens Townhouse Corporation
Executive Summary
This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.
The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.
In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.
Procedural History and Jurisdictional Rulings
Initial Petition and Dismissal Recommendation
On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.
Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.
This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:
• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”
• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.
• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.
• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.
Rejection of Dismissal and Re-Hearing
On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”
• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.
• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”
• This question was deemed sufficient to make the matter “ripe for adjudication.”
• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.
Analysis of the Merits of the Dispute
The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.
Respondent’s (HOA) Case
The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:
• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”
• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.
◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).
◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.
◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.
◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.
Petitioners’ (Larsons’) Case
The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.
• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.
• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:
◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.
◦ A second bid quoted $5,975 to remove and then replace the structure.
• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.
• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.
Final Administrative Law Judge Decision
On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.
Key Findings and Conclusions of Law
Finding/Conclusion
Details
Standard of Review
The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.
Reasonableness of HOA Action
Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.
HOA Authority
CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”
Patio Cover Classification
The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).
Cost Responsibility
The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”
Final Order
Based on these findings, the Administrative Law Judge ordered the following:
“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”
The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.
The Commissioner of the Department of Real Estate accepted the ALJ Decision, ordering the petition be dismissed because the governing documents require the claim be handled through internal dispute resolution prior to administrative action.
Why this result: Petitioner failed to use the mandatory dispute resolution procedures set forth in the Declaration before filing the administrative action.
Key Issues & Findings
Requirement for mandatory dispute resolution procedures
The Petition was dismissed because the Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II requires that all covered claims must be resolved using internal dispute resolution procedures in lieu of initiating administrative proceedings.
Orders: The ALJ recommended that the Petition be dismissed, and the Commissioner accepted the ALJ decision.
Briefing on Case No. 17F-H1716023-REL: Saxion vs. Silverton II HOA
Executive Summary
This briefing details the administrative proceedings and final disposition of the case involving petitioners Barry and Sandra Saxion and respondent Silverton II Homeowners Association, Inc. The petition was ultimately dismissed by the Arizona Department of Real Estate, which adopted the recommendation of an Administrative Law Judge (ALJ). The dismissal was based on a procedural failure by the petitioners to adhere to the mandatory dispute resolution process outlined in the HOA’s governing documents before initiating administrative action.
The respondent’s motion for dismissal presented two primary arguments. The first, challenging petitioner Barry Saxion’s standing due to non-ownership of property, was denied by the ALJ, who found that co-petitioner Sandra Saxion did own property and had standing. The second, and decisive, argument was that the HOA’s Declaration explicitly requires all “covered claims” to be resolved through its internal dispute resolution procedures in lieu of administrative proceedings. The ALJ agreed with this argument, leading to a recommendation for dismissal, the vacating of a scheduled hearing, and the issuance of a final order confirming the dismissal.
Case Overview
This section outlines the primary participants, key identifiers, and procedural timeline of the administrative action.
Affiliation
Petitioner
Barry Saxion
Petitioner
Sandra Saxion
Property owner within the Association
Respondent
Silverton II Homeowners Association, Inc.
Adjudicator
Tammy L. Eigenheer
Administrative Law Judge, Office of Administrative Hearings
Final Authority
Judy Lowe
Commissioner, Arizona Department of Real Estate
Respondent’s Counsel
Troy B. Stratman, Esq.
Stratman Law Firm, PLC
Identifier
Case Number
HO 17-16/023
Docket Number
17F-H1716023-REL
Jurisdiction
Office of Administrative Hearings (OAH), Phoenix, Arizona
Referring Body
Arizona Department of Real Estate (Department)
• Petition Filed: Both Barry and Sandra Saxion signed a Homeowners Association (HOA) Dispute Process Petition.
• Referral to OAH: The Department of Real Estate referred the matter to the Office of Administrative Hearings, creating the caption Barry Saxion v. Silverton II Homeowners Association, Inc.
• Motion for Summary Judgment: The Respondent HOA filed a motion to dismiss the petition.
• May 16, 2017: Administrative Law Judge Tammy L. Eigenheer issued a decision recommending the petition be dismissed.
• May 16, 2017: A Minute Entry was issued, vacating the hearing scheduled for May 22, 2017, based on the dismissal recommendation.
• May 30, 2017: The Commissioner of the Department of Real Estate, Judy Lowe, issued a Final Order adopting the ALJ’s decision and officially dismissing the petition.
Analysis of the Motion for Summary Judgment
The Silverton II HOA’s Motion for Summary Judgment was the pivotal filing in this case. It presented two distinct arguments for dismissal, which were addressed separately by the Administrative Law Judge.
Respondent’s Arguments
1. Lack of Standing: The initial argument was that the petitioner, identified in the case caption as Barry Saxion, did not own property within the Association and therefore lacked the legal standing necessary to pursue the action.
2. Failure to Adhere to Governing Documents: The second argument was that the petition must be dismissed because it violated the procedural requirements set forth in the HOA’s governing documents. Specifically, Section 12.1 of the Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II (the “Declaration”) mandates a specific internal dispute resolution process for all “covered claims.”
Administrative Law Judge’s Decision
The ALJ’s decision, issued on May 16, 2017, analyzed both of the respondent’s arguments and made distinct recommendations for each.
• The ALJ recommended that the motion to dismiss be denied on the grounds of standing.
• The judge acknowledged the fact, undisputed by the petitioner, that Barry Saxion does not own property within the association.
• However, the judge’s review of the original HOA Dispute Process Petition revealed that Sandra Saxion, who does own property, had also signed the petition as a petitioner. The judge concluded that the case caption, which named only Barry Saxion, was an administrative creation by the Department of Real Estate upon referral.
• The finding was that Sandra Saxion clearly “has standing to pursue this action,” thereby nullifying the argument for dismissal based on a lack of standing.
• The ALJ recommended that the petition be dismissed for failing to follow the mandatory dispute resolution procedures outlined in the HOA’s Declaration.
• The judge cited Section 12.1 of the Declaration, which defines “covered claims” as “all claims, grievances, controversies, disagreements, or disputes that arise in whole or part out of . . . the interpretation, application, or enforcement of the Declaration or the other Project Documents.”
• The judge found that the current dispute fell squarely within this definition.
• The decision states that the “plain language of the Declaration prevents this dispute… to be brought in the Office of Administrative Hearings and mandates that the dispute must be handled through the dispute resolution process set forth in the Declaration and Bylaws.”
• The conclusion was that the petition was improperly filed, as the internal remedies had not been pursued first.
Final Disposition and Subsequent Actions
The ALJ’s recommendation to dismiss directly led to the final resolution of the case.
Vacating of Hearing
A Minute Entry dated May 16, 2017, formally vacated the hearing that was scheduled for May 22, 2017. The order was a direct result of the ALJ’s decision recommending the complaint be dismissed.
Final Order from the Department of Real Estate
On May 30, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued a Final Order that officially concluded the matter.
• Adoption of ALJ Decision: The Order explicitly states, “The Commissioner accepts the ALJ decision that the petition in this matter be dismissed as the applicable governing documents require that the claim must be handled through the dispute resolution process prior to administrative proceedings being brought.”
• Effective Date: The Order was designated a “final administrative action” and was effective immediately from the date of service.
• Appellate Rights: The parties were informed of their right to file for a rehearing or review within 30 days of the order. They were also advised of their right to appeal for a judicial review by filing a complaint pursuant to Arizona Revised Statutes Title 12, Chapter 7, Article 6. A court-obtained stay would be required to delay the order during a judicial review.
Official Communications
The Final Order and related documents were formally transmitted to all parties of record via certified mail or electronic means on May 30, 2017. Recipients included:
• Barry Saxion
• Troy B. Stratman, Esq. (counsel for the HOA)
• The Office of Administrative Hearings
• Judy Lowe and other staff at the Arizona Department of Real Estate
Study Guide – 17F-H1716023-REL
Study Guide: Saxion v. Silverton II Homeowners Association, Inc.
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, based on the information provided in the case documents.
1. Identify the primary parties involved in case number 17F-H1716023-REL and their respective roles.
2. What was the initial argument made by the Respondent, Silverton II HOA, in its Motion for Summary Judgement?
3. How did the Administrative Law Judge (ALJ) resolve the issue of Barry Saxion’s standing to pursue the action?
4. What was the second, and ultimately successful, argument presented by the Respondent for the case’s dismissal?
5. According to the HOA’s governing documents, what is the definition of a “covered claim”?
6. What was the final recommendation made by Administrative Law Judge Tammy L. Eigenheer in her decision dated May 16, 2017?
7. What immediate procedural action was taken as a result of the ALJ’s recommended decision on May 16, 2017?
8. Who formally accepted the ALJ’s decision, and what was the title of the document that finalized this acceptance?
9. What process must the petitioners now follow to resolve their dispute with the HOA, according to the final ruling?
10. Following the issuance of the Final Order on May 30, 2017, what right did the parties have if they disagreed with the decision?
——————————————————————————–
Answer Key
1. The primary parties were the Petitioners, Barry and Sandra Saxion, and the Respondent, Silverton II Homeowners Association, Inc. The Saxions initiated the dispute process, and the Homeowners Association was the entity against which the claim was filed.
2. The Respondent initially argued that the case should be dismissed because Petitioner Barry Saxion did not own property within the Association. This lack of ownership, they claimed, meant he did not possess the legal standing required to pursue the action.
3. The ALJ found that although Barry Saxion did not own property, Sandra Saxion did own property and had also signed the petition. Therefore, Sandra Saxion had standing to pursue the action, and the ALJ recommended denying the motion to dismiss on these grounds.
4. The Respondent’s successful argument was that Section 12.1 of the HOA’s Declaration required all covered claims to be resolved using the internal dispute resolution procedures set forth in the Declaration and Bylaws. They argued this must be done in lieu of initiating administrative proceedings.
5. A “covered claim” is defined as “all claims, grievances, controversies, disagreements, or disputes that arise in whole or part out of . . . the interpretation, application, or enforcement of the Declaration or the other Project Documents.”
6. On May 16, 2017, the ALJ recommended that the Petition be dismissed. She concluded that the plain language of the HOA’s governing documents required the claim to be handled through the internal dispute resolution process before any administrative proceedings could be brought.
7. As a result of the ALJ’s recommendation, an order was issued vacating the hearing that was scheduled for May 22, 2017. The parties were advised of this through a Minute Entry.
8. Judy Lowe, the Commissioner of the Department of Real Estate, formally accepted the ALJ’s decision. This was finalized in a document titled “Final Order,” dated May 30, 2017.
9. The petitioners must handle their claim through the dispute resolution process set forth in the Silverton II Declaration and Bylaws. The Final Order mandates that this internal process must be used prior to bringing administrative proceedings.
10. After the Final Order, pursuant to A.R.S. § 41-1092.09, a party had the right to file a motion for rehearing or review within thirty (30) days. They also had the right to appeal the final administrative decision by filing a complaint for judicial review.
——————————————————————————–
Essay Questions
Instructions: The following questions require a more detailed analysis of the case. Formulate a comprehensive response for each, drawing connections between the different documents and legal concepts presented.
1. Analyze the concept of “standing” as it was presented and resolved in this case. Discuss why Barry Saxion’s lack of property ownership did not result in the case’s dismissal on those grounds, and explain the role of the original Petition in the ALJ’s finding.
2. Explain the legal hierarchy and procedural flow of this dispute. Trace the case from the initial petition to the Final Order, identifying the specific roles and actions of the Department of Real Estate, the Office of Administrative Hearings, the Administrative Law Judge, and the Commissioner.
3. Discuss the significance of Section 12.1 of the “Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II.” How did the “plain language” of this specific clause determine the ultimate outcome of the administrative proceeding?
4. Evaluate the two distinct arguments made by the Respondent in their Motion for Summary Judgement. Compare the legal reasoning used by the Administrative Law Judge in her recommendations for each argument and explain why one argument failed while the other succeeded.
5. Describe the post-decision options available to the parties following the issuance of the Final Order on May 30, 2017. What specific steps could a party take if they disagreed with the outcome, what were the associated deadlines, and to whom would a request for rehearing be addressed?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, reviews evidence, and issues a recommended decision. In this case, the ALJ was Tammy L. Eigenheer.
Administrative Law Judge Decision
The formal written recommendation of the ALJ. In this matter, the decision recommended that the petition be dismissed based on the HOA’s governing documents.
Commissioner
The head of the Arizona Department of Real Estate. In this case, Commissioner Judy Lowe adopted the ALJ’s decision and issued the Final Order.
Covered Claims
A specific category of disputes defined in the HOA’s Declaration. It includes all claims, grievances, or disputes related to the interpretation, application, or enforcement of the HOA’s governing documents.
Declaration
The short name for the “Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II.” This is a core governing document for the HOA that dictates required procedures, such as dispute resolution.
Department of Real Estate (Department)
The Arizona state agency that referred the HOA dispute to the Office of Administrative Hearings and whose Commissioner issued the Final Order.
Final Order
A binding order issued by the Commissioner of the Department of Real Estate that accepts the ALJ’s decision. This order made the dismissal of the petition official and effective immediately.
Homeowners Association (HOA)
The governing body for the Silverton II community, which was the Respondent in this case.
Minute Entry
A brief entry on the case record noting a court or judge’s order or action. In this case, a Minute Entry was issued to vacate the scheduled May 22, 2017 hearing.
Motion for Summary Judgement
A formal request made by a party (in this case, the Respondent) asking the judge to rule in their favor without a full hearing, based on the argument that there are no disputed facts and the law is on their side.
Office of Administrative Hearings
The state office where the case was heard. It provides a neutral forum for resolving disputes involving state agencies.
Petitioner
The party who initiates a legal action or files a petition. In this case, the petitioners were Barry and Sandra Saxion.
Respondent
The party against whom a petition is filed. In this case, the respondent was the Silverton II Homeowners Association, Inc.
Standing
The legal right to bring a lawsuit or administrative action. In this context, standing was initially questioned based on property ownership within the HOA.
Blog Post – 17F-H1716023-REL
Why This Homeowner’s Complaint Against Their HOA Was Dismissed Before It Began
Dealing with a Homeowners Association (HOA) can be one of the most frustrating aspects of homeownership. When you feel the association is overstepping its bounds or failing to enforce the rules fairly, the natural impulse is to seek a formal resolution. Homeowners have rights, and there are official channels, like administrative hearings, designed to address these disputes.
But what if the path to justice has a mandatory detour you didn’t know about? The case of Saxion vs. Silverton II HOA is a powerful cautionary tale for any homeowner who believes they have a legitimate grievance. A close look at the official documents reveals surprising lessons, and it’s a stark reminder that in an HOA dispute, being right is not enough; you must also be procedurally perfect.
1. The Fine Print Is Your First Hurdle
The primary reason the homeowners’ petition was dismissed had nothing to do with the merits of their actual complaint. The Administrative Law Judge (ALJ) never weighed in on whether the homeowners were right or the HOA was wrong. Instead, the case was dismissed because the homeowners failed to follow the mandatory dispute resolution process required by their own HOA’s governing documents before they filed for an administrative hearing.
The association’s own rules legally required an internal process to be completed first. By going straight to an administrative filing, the homeowners had unintentionally bypassed a mandatory first step outlined in their governing documents. The ALJ pointed to the specific language in the HOA’s Declaration, which was the ultimate authority on the matter.
all covered claims “must be resolved using the dispute resolution procedures set forth . . . in [the] Declaration and the Bylaws in lieu of filing a lawsuit or initiating administrative proceedings.”
2. A Simple Clerical Error Can Jeopardize Your Entire Case
Before even getting to the core procedural issue, the HOA made another challenge that could have ended the case immediately. They argued that the petitioner officially named in the case caption, Barry Saxion, didn’t actually own property in the association and therefore had no legal standing.
This error, however, wasn’t made by the homeowners. The case documents reveal a critical lesson: when the Arizona Department of Real Estate referred the matter for a hearing, it was the agency that created the incorrect caption. This bureaucratic mistake could have been fatal, but the petition was saved because the ALJ noted that the original paperwork was signed by both Barry Saxion and Sandra Saxion, who did own property. Because both their names and signatures were on the petition, the ALJ could overlook the agency’s error. This highlights the need for homeowners to be vigilant, double-checking all official documents—even those prepared by a state agency.
3. A “Win” Doesn’t Always Mean Justice Was Served
The final outcome was not a judgment on the underlying disagreement. The petition was simply “dismissed.” This means the core issues the homeowners wanted to resolve were never actually heard or ruled on by the Administrative Law Judge.
The process itself is revealing. On May 16, 2017, the ALJ, Tammy L. Eigenheer, issued a recommendation that the complaint be dismissed. This recommendation was then reviewed by the Commissioner of the Department of Real Estate, Judy Lowe, who accepted it and issued a FINAL ORDER making the dismissal official on May 30, 2017. For the HOA, this was a victory won on a technicality. For the homeowners, it was a procedural dead end, preventing their core complaints from being heard in the administrative hearing. This shows how a legal victory can be won entirely on procedure, preventing the central conflict from ever being addressed.
Conclusion
The core lesson from the Saxion vs. Silverton II HOA case is clear: in a dispute with your HOA, understanding the procedural rules in your governing documents is just as important as the substance of your complaint. Failing to read and follow these rules can render your entire effort, no matter how justified, completely invalid. It can cost you time, money, and the opportunity to have your case heard at all. Before you take on your HOA, have you read the rulebook they require you to play by?
Case Participants
Petitioner Side
Barry Saxion(petitioner)
Sandra Saxion(petitioner)
Respondent Side
Troy B. Stratman(Respondent attorney) Stratman Law Firm, PLC
Neutral Parties
Tammy L. Eigenheer(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
Abby Hansen(HOA Coordinator) Arizona Department of Real Estate
L. Dettorre(ADRE Staff) Arizona Department of Real Estate
D. Jones(ADRE Staff) Arizona Department of Real Estate
J. Marshall(ADRE Staff) Arizona Department of Real Estate
N. Cano(ADRE Staff) Arizona Department of Real Estate
The Commissioner of the Department of Real Estate accepted the ALJ Decision, ordering the petition be dismissed because the governing documents require the claim be handled through internal dispute resolution prior to administrative action.
Why this result: Petitioner failed to use the mandatory dispute resolution procedures set forth in the Declaration before filing the administrative action.
Key Issues & Findings
Requirement for mandatory dispute resolution procedures
The Petition was dismissed because the Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II requires that all covered claims must be resolved using internal dispute resolution procedures in lieu of initiating administrative proceedings.
Orders: The ALJ recommended that the Petition be dismissed, and the Commissioner accepted the ALJ decision.
Briefing on Case No. 17F-H1716023-REL: Saxion vs. Silverton II HOA
Executive Summary
This briefing details the administrative proceedings and final disposition of the case involving petitioners Barry and Sandra Saxion and respondent Silverton II Homeowners Association, Inc. The petition was ultimately dismissed by the Arizona Department of Real Estate, which adopted the recommendation of an Administrative Law Judge (ALJ). The dismissal was based on a procedural failure by the petitioners to adhere to the mandatory dispute resolution process outlined in the HOA’s governing documents before initiating administrative action.
The respondent’s motion for dismissal presented two primary arguments. The first, challenging petitioner Barry Saxion’s standing due to non-ownership of property, was denied by the ALJ, who found that co-petitioner Sandra Saxion did own property and had standing. The second, and decisive, argument was that the HOA’s Declaration explicitly requires all “covered claims” to be resolved through its internal dispute resolution procedures in lieu of administrative proceedings. The ALJ agreed with this argument, leading to a recommendation for dismissal, the vacating of a scheduled hearing, and the issuance of a final order confirming the dismissal.
Case Overview
This section outlines the primary participants, key identifiers, and procedural timeline of the administrative action.
Affiliation
Petitioner
Barry Saxion
Petitioner
Sandra Saxion
Property owner within the Association
Respondent
Silverton II Homeowners Association, Inc.
Adjudicator
Tammy L. Eigenheer
Administrative Law Judge, Office of Administrative Hearings
Final Authority
Judy Lowe
Commissioner, Arizona Department of Real Estate
Respondent’s Counsel
Troy B. Stratman, Esq.
Stratman Law Firm, PLC
Identifier
Case Number
HO 17-16/023
Docket Number
17F-H1716023-REL
Jurisdiction
Office of Administrative Hearings (OAH), Phoenix, Arizona
Referring Body
Arizona Department of Real Estate (Department)
• Petition Filed: Both Barry and Sandra Saxion signed a Homeowners Association (HOA) Dispute Process Petition.
• Referral to OAH: The Department of Real Estate referred the matter to the Office of Administrative Hearings, creating the caption Barry Saxion v. Silverton II Homeowners Association, Inc.
• Motion for Summary Judgment: The Respondent HOA filed a motion to dismiss the petition.
• May 16, 2017: Administrative Law Judge Tammy L. Eigenheer issued a decision recommending the petition be dismissed.
• May 16, 2017: A Minute Entry was issued, vacating the hearing scheduled for May 22, 2017, based on the dismissal recommendation.
• May 30, 2017: The Commissioner of the Department of Real Estate, Judy Lowe, issued a Final Order adopting the ALJ’s decision and officially dismissing the petition.
Analysis of the Motion for Summary Judgment
The Silverton II HOA’s Motion for Summary Judgment was the pivotal filing in this case. It presented two distinct arguments for dismissal, which were addressed separately by the Administrative Law Judge.
Respondent’s Arguments
1. Lack of Standing: The initial argument was that the petitioner, identified in the case caption as Barry Saxion, did not own property within the Association and therefore lacked the legal standing necessary to pursue the action.
2. Failure to Adhere to Governing Documents: The second argument was that the petition must be dismissed because it violated the procedural requirements set forth in the HOA’s governing documents. Specifically, Section 12.1 of the Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II (the “Declaration”) mandates a specific internal dispute resolution process for all “covered claims.”
Administrative Law Judge’s Decision
The ALJ’s decision, issued on May 16, 2017, analyzed both of the respondent’s arguments and made distinct recommendations for each.
• The ALJ recommended that the motion to dismiss be denied on the grounds of standing.
• The judge acknowledged the fact, undisputed by the petitioner, that Barry Saxion does not own property within the association.
• However, the judge’s review of the original HOA Dispute Process Petition revealed that Sandra Saxion, who does own property, had also signed the petition as a petitioner. The judge concluded that the case caption, which named only Barry Saxion, was an administrative creation by the Department of Real Estate upon referral.
• The finding was that Sandra Saxion clearly “has standing to pursue this action,” thereby nullifying the argument for dismissal based on a lack of standing.
• The ALJ recommended that the petition be dismissed for failing to follow the mandatory dispute resolution procedures outlined in the HOA’s Declaration.
• The judge cited Section 12.1 of the Declaration, which defines “covered claims” as “all claims, grievances, controversies, disagreements, or disputes that arise in whole or part out of . . . the interpretation, application, or enforcement of the Declaration or the other Project Documents.”
• The judge found that the current dispute fell squarely within this definition.
• The decision states that the “plain language of the Declaration prevents this dispute… to be brought in the Office of Administrative Hearings and mandates that the dispute must be handled through the dispute resolution process set forth in the Declaration and Bylaws.”
• The conclusion was that the petition was improperly filed, as the internal remedies had not been pursued first.
Final Disposition and Subsequent Actions
The ALJ’s recommendation to dismiss directly led to the final resolution of the case.
Vacating of Hearing
A Minute Entry dated May 16, 2017, formally vacated the hearing that was scheduled for May 22, 2017. The order was a direct result of the ALJ’s decision recommending the complaint be dismissed.
Final Order from the Department of Real Estate
On May 30, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued a Final Order that officially concluded the matter.
• Adoption of ALJ Decision: The Order explicitly states, “The Commissioner accepts the ALJ decision that the petition in this matter be dismissed as the applicable governing documents require that the claim must be handled through the dispute resolution process prior to administrative proceedings being brought.”
• Effective Date: The Order was designated a “final administrative action” and was effective immediately from the date of service.
• Appellate Rights: The parties were informed of their right to file for a rehearing or review within 30 days of the order. They were also advised of their right to appeal for a judicial review by filing a complaint pursuant to Arizona Revised Statutes Title 12, Chapter 7, Article 6. A court-obtained stay would be required to delay the order during a judicial review.
Official Communications
The Final Order and related documents were formally transmitted to all parties of record via certified mail or electronic means on May 30, 2017. Recipients included:
• Barry Saxion
• Troy B. Stratman, Esq. (counsel for the HOA)
• The Office of Administrative Hearings
• Judy Lowe and other staff at the Arizona Department of Real Estate
Study Guide – 17F-H1716023-REL
Study Guide: Saxion v. Silverton II Homeowners Association, Inc.
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, based on the information provided in the case documents.
1. Identify the primary parties involved in case number 17F-H1716023-REL and their respective roles.
2. What was the initial argument made by the Respondent, Silverton II HOA, in its Motion for Summary Judgement?
3. How did the Administrative Law Judge (ALJ) resolve the issue of Barry Saxion’s standing to pursue the action?
4. What was the second, and ultimately successful, argument presented by the Respondent for the case’s dismissal?
5. According to the HOA’s governing documents, what is the definition of a “covered claim”?
6. What was the final recommendation made by Administrative Law Judge Tammy L. Eigenheer in her decision dated May 16, 2017?
7. What immediate procedural action was taken as a result of the ALJ’s recommended decision on May 16, 2017?
8. Who formally accepted the ALJ’s decision, and what was the title of the document that finalized this acceptance?
9. What process must the petitioners now follow to resolve their dispute with the HOA, according to the final ruling?
10. Following the issuance of the Final Order on May 30, 2017, what right did the parties have if they disagreed with the decision?
——————————————————————————–
Answer Key
1. The primary parties were the Petitioners, Barry and Sandra Saxion, and the Respondent, Silverton II Homeowners Association, Inc. The Saxions initiated the dispute process, and the Homeowners Association was the entity against which the claim was filed.
2. The Respondent initially argued that the case should be dismissed because Petitioner Barry Saxion did not own property within the Association. This lack of ownership, they claimed, meant he did not possess the legal standing required to pursue the action.
3. The ALJ found that although Barry Saxion did not own property, Sandra Saxion did own property and had also signed the petition. Therefore, Sandra Saxion had standing to pursue the action, and the ALJ recommended denying the motion to dismiss on these grounds.
4. The Respondent’s successful argument was that Section 12.1 of the HOA’s Declaration required all covered claims to be resolved using the internal dispute resolution procedures set forth in the Declaration and Bylaws. They argued this must be done in lieu of initiating administrative proceedings.
5. A “covered claim” is defined as “all claims, grievances, controversies, disagreements, or disputes that arise in whole or part out of . . . the interpretation, application, or enforcement of the Declaration or the other Project Documents.”
6. On May 16, 2017, the ALJ recommended that the Petition be dismissed. She concluded that the plain language of the HOA’s governing documents required the claim to be handled through the internal dispute resolution process before any administrative proceedings could be brought.
7. As a result of the ALJ’s recommendation, an order was issued vacating the hearing that was scheduled for May 22, 2017. The parties were advised of this through a Minute Entry.
8. Judy Lowe, the Commissioner of the Department of Real Estate, formally accepted the ALJ’s decision. This was finalized in a document titled “Final Order,” dated May 30, 2017.
9. The petitioners must handle their claim through the dispute resolution process set forth in the Silverton II Declaration and Bylaws. The Final Order mandates that this internal process must be used prior to bringing administrative proceedings.
10. After the Final Order, pursuant to A.R.S. § 41-1092.09, a party had the right to file a motion for rehearing or review within thirty (30) days. They also had the right to appeal the final administrative decision by filing a complaint for judicial review.
——————————————————————————–
Essay Questions
Instructions: The following questions require a more detailed analysis of the case. Formulate a comprehensive response for each, drawing connections between the different documents and legal concepts presented.
1. Analyze the concept of “standing” as it was presented and resolved in this case. Discuss why Barry Saxion’s lack of property ownership did not result in the case’s dismissal on those grounds, and explain the role of the original Petition in the ALJ’s finding.
2. Explain the legal hierarchy and procedural flow of this dispute. Trace the case from the initial petition to the Final Order, identifying the specific roles and actions of the Department of Real Estate, the Office of Administrative Hearings, the Administrative Law Judge, and the Commissioner.
3. Discuss the significance of Section 12.1 of the “Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II.” How did the “plain language” of this specific clause determine the ultimate outcome of the administrative proceeding?
4. Evaluate the two distinct arguments made by the Respondent in their Motion for Summary Judgement. Compare the legal reasoning used by the Administrative Law Judge in her recommendations for each argument and explain why one argument failed while the other succeeded.
5. Describe the post-decision options available to the parties following the issuance of the Final Order on May 30, 2017. What specific steps could a party take if they disagreed with the outcome, what were the associated deadlines, and to whom would a request for rehearing be addressed?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, reviews evidence, and issues a recommended decision. In this case, the ALJ was Tammy L. Eigenheer.
Administrative Law Judge Decision
The formal written recommendation of the ALJ. In this matter, the decision recommended that the petition be dismissed based on the HOA’s governing documents.
Commissioner
The head of the Arizona Department of Real Estate. In this case, Commissioner Judy Lowe adopted the ALJ’s decision and issued the Final Order.
Covered Claims
A specific category of disputes defined in the HOA’s Declaration. It includes all claims, grievances, or disputes related to the interpretation, application, or enforcement of the HOA’s governing documents.
Declaration
The short name for the “Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II.” This is a core governing document for the HOA that dictates required procedures, such as dispute resolution.
Department of Real Estate (Department)
The Arizona state agency that referred the HOA dispute to the Office of Administrative Hearings and whose Commissioner issued the Final Order.
Final Order
A binding order issued by the Commissioner of the Department of Real Estate that accepts the ALJ’s decision. This order made the dismissal of the petition official and effective immediately.
Homeowners Association (HOA)
The governing body for the Silverton II community, which was the Respondent in this case.
Minute Entry
A brief entry on the case record noting a court or judge’s order or action. In this case, a Minute Entry was issued to vacate the scheduled May 22, 2017 hearing.
Motion for Summary Judgement
A formal request made by a party (in this case, the Respondent) asking the judge to rule in their favor without a full hearing, based on the argument that there are no disputed facts and the law is on their side.
Office of Administrative Hearings
The state office where the case was heard. It provides a neutral forum for resolving disputes involving state agencies.
Petitioner
The party who initiates a legal action or files a petition. In this case, the petitioners were Barry and Sandra Saxion.
Respondent
The party against whom a petition is filed. In this case, the respondent was the Silverton II Homeowners Association, Inc.
Standing
The legal right to bring a lawsuit or administrative action. In this context, standing was initially questioned based on property ownership within the HOA.
Blog Post – 17F-H1716023-REL
Why This Homeowner’s Complaint Against Their HOA Was Dismissed Before It Began
Dealing with a Homeowners Association (HOA) can be one of the most frustrating aspects of homeownership. When you feel the association is overstepping its bounds or failing to enforce the rules fairly, the natural impulse is to seek a formal resolution. Homeowners have rights, and there are official channels, like administrative hearings, designed to address these disputes.
But what if the path to justice has a mandatory detour you didn’t know about? The case of Saxion vs. Silverton II HOA is a powerful cautionary tale for any homeowner who believes they have a legitimate grievance. A close look at the official documents reveals surprising lessons, and it’s a stark reminder that in an HOA dispute, being right is not enough; you must also be procedurally perfect.
1. The Fine Print Is Your First Hurdle
The primary reason the homeowners’ petition was dismissed had nothing to do with the merits of their actual complaint. The Administrative Law Judge (ALJ) never weighed in on whether the homeowners were right or the HOA was wrong. Instead, the case was dismissed because the homeowners failed to follow the mandatory dispute resolution process required by their own HOA’s governing documents before they filed for an administrative hearing.
The association’s own rules legally required an internal process to be completed first. By going straight to an administrative filing, the homeowners had unintentionally bypassed a mandatory first step outlined in their governing documents. The ALJ pointed to the specific language in the HOA’s Declaration, which was the ultimate authority on the matter.
all covered claims “must be resolved using the dispute resolution procedures set forth . . . in [the] Declaration and the Bylaws in lieu of filing a lawsuit or initiating administrative proceedings.”
2. A Simple Clerical Error Can Jeopardize Your Entire Case
Before even getting to the core procedural issue, the HOA made another challenge that could have ended the case immediately. They argued that the petitioner officially named in the case caption, Barry Saxion, didn’t actually own property in the association and therefore had no legal standing.
This error, however, wasn’t made by the homeowners. The case documents reveal a critical lesson: when the Arizona Department of Real Estate referred the matter for a hearing, it was the agency that created the incorrect caption. This bureaucratic mistake could have been fatal, but the petition was saved because the ALJ noted that the original paperwork was signed by both Barry Saxion and Sandra Saxion, who did own property. Because both their names and signatures were on the petition, the ALJ could overlook the agency’s error. This highlights the need for homeowners to be vigilant, double-checking all official documents—even those prepared by a state agency.
3. A “Win” Doesn’t Always Mean Justice Was Served
The final outcome was not a judgment on the underlying disagreement. The petition was simply “dismissed.” This means the core issues the homeowners wanted to resolve were never actually heard or ruled on by the Administrative Law Judge.
The process itself is revealing. On May 16, 2017, the ALJ, Tammy L. Eigenheer, issued a recommendation that the complaint be dismissed. This recommendation was then reviewed by the Commissioner of the Department of Real Estate, Judy Lowe, who accepted it and issued a FINAL ORDER making the dismissal official on May 30, 2017. For the HOA, this was a victory won on a technicality. For the homeowners, it was a procedural dead end, preventing their core complaints from being heard in the administrative hearing. This shows how a legal victory can be won entirely on procedure, preventing the central conflict from ever being addressed.
Conclusion
The core lesson from the Saxion vs. Silverton II HOA case is clear: in a dispute with your HOA, understanding the procedural rules in your governing documents is just as important as the substance of your complaint. Failing to read and follow these rules can render your entire effort, no matter how justified, completely invalid. It can cost you time, money, and the opportunity to have your case heard at all. Before you take on your HOA, have you read the rulebook they require you to play by?
Case Participants
Petitioner Side
Barry Saxion(petitioner)
Sandra Saxion(petitioner)
Respondent Side
Troy B. Stratman(Respondent attorney) Stratman Law Firm, PLC
Neutral Parties
Tammy L. Eigenheer(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
Abby Hansen(HOA Coordinator) Arizona Department of Real Estate
L. Dettorre(ADRE Staff) Arizona Department of Real Estate
D. Jones(ADRE Staff) Arizona Department of Real Estate
J. Marshall(ADRE Staff) Arizona Department of Real Estate
N. Cano(ADRE Staff) Arizona Department of Real Estate
The Commissioner of the Department of Real Estate accepted the ALJ Decision, ordering the petition be dismissed because the governing documents require the claim be handled through internal dispute resolution prior to administrative action.
Why this result: Petitioner failed to use the mandatory dispute resolution procedures set forth in the Declaration before filing the administrative action.
Key Issues & Findings
Requirement for mandatory dispute resolution procedures
The Petition was dismissed because the Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II requires that all covered claims must be resolved using internal dispute resolution procedures in lieu of initiating administrative proceedings.
Orders: The ALJ recommended that the Petition be dismissed, and the Commissioner accepted the ALJ decision.
Briefing on Case No. 17F-H1716023-REL: Saxion vs. Silverton II HOA
Executive Summary
This briefing details the administrative proceedings and final disposition of the case involving petitioners Barry and Sandra Saxion and respondent Silverton II Homeowners Association, Inc. The petition was ultimately dismissed by the Arizona Department of Real Estate, which adopted the recommendation of an Administrative Law Judge (ALJ). The dismissal was based on a procedural failure by the petitioners to adhere to the mandatory dispute resolution process outlined in the HOA’s governing documents before initiating administrative action.
The respondent’s motion for dismissal presented two primary arguments. The first, challenging petitioner Barry Saxion’s standing due to non-ownership of property, was denied by the ALJ, who found that co-petitioner Sandra Saxion did own property and had standing. The second, and decisive, argument was that the HOA’s Declaration explicitly requires all “covered claims” to be resolved through its internal dispute resolution procedures in lieu of administrative proceedings. The ALJ agreed with this argument, leading to a recommendation for dismissal, the vacating of a scheduled hearing, and the issuance of a final order confirming the dismissal.
Case Overview
This section outlines the primary participants, key identifiers, and procedural timeline of the administrative action.
Affiliation
Petitioner
Barry Saxion
Petitioner
Sandra Saxion
Property owner within the Association
Respondent
Silverton II Homeowners Association, Inc.
Adjudicator
Tammy L. Eigenheer
Administrative Law Judge, Office of Administrative Hearings
Final Authority
Judy Lowe
Commissioner, Arizona Department of Real Estate
Respondent’s Counsel
Troy B. Stratman, Esq.
Stratman Law Firm, PLC
Identifier
Case Number
HO 17-16/023
Docket Number
17F-H1716023-REL
Jurisdiction
Office of Administrative Hearings (OAH), Phoenix, Arizona
Referring Body
Arizona Department of Real Estate (Department)
• Petition Filed: Both Barry and Sandra Saxion signed a Homeowners Association (HOA) Dispute Process Petition.
• Referral to OAH: The Department of Real Estate referred the matter to the Office of Administrative Hearings, creating the caption Barry Saxion v. Silverton II Homeowners Association, Inc.
• Motion for Summary Judgment: The Respondent HOA filed a motion to dismiss the petition.
• May 16, 2017: Administrative Law Judge Tammy L. Eigenheer issued a decision recommending the petition be dismissed.
• May 16, 2017: A Minute Entry was issued, vacating the hearing scheduled for May 22, 2017, based on the dismissal recommendation.
• May 30, 2017: The Commissioner of the Department of Real Estate, Judy Lowe, issued a Final Order adopting the ALJ’s decision and officially dismissing the petition.
Analysis of the Motion for Summary Judgment
The Silverton II HOA’s Motion for Summary Judgment was the pivotal filing in this case. It presented two distinct arguments for dismissal, which were addressed separately by the Administrative Law Judge.
Respondent’s Arguments
1. Lack of Standing: The initial argument was that the petitioner, identified in the case caption as Barry Saxion, did not own property within the Association and therefore lacked the legal standing necessary to pursue the action.
2. Failure to Adhere to Governing Documents: The second argument was that the petition must be dismissed because it violated the procedural requirements set forth in the HOA’s governing documents. Specifically, Section 12.1 of the Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II (the “Declaration”) mandates a specific internal dispute resolution process for all “covered claims.”
Administrative Law Judge’s Decision
The ALJ’s decision, issued on May 16, 2017, analyzed both of the respondent’s arguments and made distinct recommendations for each.
• The ALJ recommended that the motion to dismiss be denied on the grounds of standing.
• The judge acknowledged the fact, undisputed by the petitioner, that Barry Saxion does not own property within the association.
• However, the judge’s review of the original HOA Dispute Process Petition revealed that Sandra Saxion, who does own property, had also signed the petition as a petitioner. The judge concluded that the case caption, which named only Barry Saxion, was an administrative creation by the Department of Real Estate upon referral.
• The finding was that Sandra Saxion clearly “has standing to pursue this action,” thereby nullifying the argument for dismissal based on a lack of standing.
• The ALJ recommended that the petition be dismissed for failing to follow the mandatory dispute resolution procedures outlined in the HOA’s Declaration.
• The judge cited Section 12.1 of the Declaration, which defines “covered claims” as “all claims, grievances, controversies, disagreements, or disputes that arise in whole or part out of . . . the interpretation, application, or enforcement of the Declaration or the other Project Documents.”
• The judge found that the current dispute fell squarely within this definition.
• The decision states that the “plain language of the Declaration prevents this dispute… to be brought in the Office of Administrative Hearings and mandates that the dispute must be handled through the dispute resolution process set forth in the Declaration and Bylaws.”
• The conclusion was that the petition was improperly filed, as the internal remedies had not been pursued first.
Final Disposition and Subsequent Actions
The ALJ’s recommendation to dismiss directly led to the final resolution of the case.
Vacating of Hearing
A Minute Entry dated May 16, 2017, formally vacated the hearing that was scheduled for May 22, 2017. The order was a direct result of the ALJ’s decision recommending the complaint be dismissed.
Final Order from the Department of Real Estate
On May 30, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued a Final Order that officially concluded the matter.
• Adoption of ALJ Decision: The Order explicitly states, “The Commissioner accepts the ALJ decision that the petition in this matter be dismissed as the applicable governing documents require that the claim must be handled through the dispute resolution process prior to administrative proceedings being brought.”
• Effective Date: The Order was designated a “final administrative action” and was effective immediately from the date of service.
• Appellate Rights: The parties were informed of their right to file for a rehearing or review within 30 days of the order. They were also advised of their right to appeal for a judicial review by filing a complaint pursuant to Arizona Revised Statutes Title 12, Chapter 7, Article 6. A court-obtained stay would be required to delay the order during a judicial review.
Official Communications
The Final Order and related documents were formally transmitted to all parties of record via certified mail or electronic means on May 30, 2017. Recipients included:
• Barry Saxion
• Troy B. Stratman, Esq. (counsel for the HOA)
• The Office of Administrative Hearings
• Judy Lowe and other staff at the Arizona Department of Real Estate
The Commissioner of the Department of Real Estate accepted the ALJ Decision, ordering the petition be dismissed because the governing documents require the claim be handled through internal dispute resolution prior to administrative action.
Why this result: Petitioner failed to use the mandatory dispute resolution procedures set forth in the Declaration before filing the administrative action.
Key Issues & Findings
Requirement for mandatory dispute resolution procedures
The Petition was dismissed because the Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II requires that all covered claims must be resolved using internal dispute resolution procedures in lieu of initiating administrative proceedings.
Orders: The ALJ recommended that the Petition be dismissed, and the Commissioner accepted the ALJ decision.
Briefing on Case No. 17F-H1716023-REL: Saxion vs. Silverton II HOA
Executive Summary
This briefing details the administrative proceedings and final disposition of the case involving petitioners Barry and Sandra Saxion and respondent Silverton II Homeowners Association, Inc. The petition was ultimately dismissed by the Arizona Department of Real Estate, which adopted the recommendation of an Administrative Law Judge (ALJ). The dismissal was based on a procedural failure by the petitioners to adhere to the mandatory dispute resolution process outlined in the HOA’s governing documents before initiating administrative action.
The respondent’s motion for dismissal presented two primary arguments. The first, challenging petitioner Barry Saxion’s standing due to non-ownership of property, was denied by the ALJ, who found that co-petitioner Sandra Saxion did own property and had standing. The second, and decisive, argument was that the HOA’s Declaration explicitly requires all “covered claims” to be resolved through its internal dispute resolution procedures in lieu of administrative proceedings. The ALJ agreed with this argument, leading to a recommendation for dismissal, the vacating of a scheduled hearing, and the issuance of a final order confirming the dismissal.
Case Overview
This section outlines the primary participants, key identifiers, and procedural timeline of the administrative action.
Affiliation
Petitioner
Barry Saxion
Petitioner
Sandra Saxion
Property owner within the Association
Respondent
Silverton II Homeowners Association, Inc.
Adjudicator
Tammy L. Eigenheer
Administrative Law Judge, Office of Administrative Hearings
Final Authority
Judy Lowe
Commissioner, Arizona Department of Real Estate
Respondent’s Counsel
Troy B. Stratman, Esq.
Stratman Law Firm, PLC
Identifier
Case Number
HO 17-16/023
Docket Number
17F-H1716023-REL
Jurisdiction
Office of Administrative Hearings (OAH), Phoenix, Arizona
Referring Body
Arizona Department of Real Estate (Department)
• Petition Filed: Both Barry and Sandra Saxion signed a Homeowners Association (HOA) Dispute Process Petition.
• Referral to OAH: The Department of Real Estate referred the matter to the Office of Administrative Hearings, creating the caption Barry Saxion v. Silverton II Homeowners Association, Inc.
• Motion for Summary Judgment: The Respondent HOA filed a motion to dismiss the petition.
• May 16, 2017: Administrative Law Judge Tammy L. Eigenheer issued a decision recommending the petition be dismissed.
• May 16, 2017: A Minute Entry was issued, vacating the hearing scheduled for May 22, 2017, based on the dismissal recommendation.
• May 30, 2017: The Commissioner of the Department of Real Estate, Judy Lowe, issued a Final Order adopting the ALJ’s decision and officially dismissing the petition.
Analysis of the Motion for Summary Judgment
The Silverton II HOA’s Motion for Summary Judgment was the pivotal filing in this case. It presented two distinct arguments for dismissal, which were addressed separately by the Administrative Law Judge.
Respondent’s Arguments
1. Lack of Standing: The initial argument was that the petitioner, identified in the case caption as Barry Saxion, did not own property within the Association and therefore lacked the legal standing necessary to pursue the action.
2. Failure to Adhere to Governing Documents: The second argument was that the petition must be dismissed because it violated the procedural requirements set forth in the HOA’s governing documents. Specifically, Section 12.1 of the Declaration of Homeowners Benefits and Covenants, Conditions, and Restrictions for Silverton II (the “Declaration”) mandates a specific internal dispute resolution process for all “covered claims.”
Administrative Law Judge’s Decision
The ALJ’s decision, issued on May 16, 2017, analyzed both of the respondent’s arguments and made distinct recommendations for each.
• The ALJ recommended that the motion to dismiss be denied on the grounds of standing.
• The judge acknowledged the fact, undisputed by the petitioner, that Barry Saxion does not own property within the association.
• However, the judge’s review of the original HOA Dispute Process Petition revealed that Sandra Saxion, who does own property, had also signed the petition as a petitioner. The judge concluded that the case caption, which named only Barry Saxion, was an administrative creation by the Department of Real Estate upon referral.
• The finding was that Sandra Saxion clearly “has standing to pursue this action,” thereby nullifying the argument for dismissal based on a lack of standing.
• The ALJ recommended that the petition be dismissed for failing to follow the mandatory dispute resolution procedures outlined in the HOA’s Declaration.
• The judge cited Section 12.1 of the Declaration, which defines “covered claims” as “all claims, grievances, controversies, disagreements, or disputes that arise in whole or part out of . . . the interpretation, application, or enforcement of the Declaration or the other Project Documents.”
• The judge found that the current dispute fell squarely within this definition.
• The decision states that the “plain language of the Declaration prevents this dispute… to be brought in the Office of Administrative Hearings and mandates that the dispute must be handled through the dispute resolution process set forth in the Declaration and Bylaws.”
• The conclusion was that the petition was improperly filed, as the internal remedies had not been pursued first.
Final Disposition and Subsequent Actions
The ALJ’s recommendation to dismiss directly led to the final resolution of the case.
Vacating of Hearing
A Minute Entry dated May 16, 2017, formally vacated the hearing that was scheduled for May 22, 2017. The order was a direct result of the ALJ’s decision recommending the complaint be dismissed.
Final Order from the Department of Real Estate
On May 30, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued a Final Order that officially concluded the matter.
• Adoption of ALJ Decision: The Order explicitly states, “The Commissioner accepts the ALJ decision that the petition in this matter be dismissed as the applicable governing documents require that the claim must be handled through the dispute resolution process prior to administrative proceedings being brought.”
• Effective Date: The Order was designated a “final administrative action” and was effective immediately from the date of service.
• Appellate Rights: The parties were informed of their right to file for a rehearing or review within 30 days of the order. They were also advised of their right to appeal for a judicial review by filing a complaint pursuant to Arizona Revised Statutes Title 12, Chapter 7, Article 6. A court-obtained stay would be required to delay the order during a judicial review.
Official Communications
The Final Order and related documents were formally transmitted to all parties of record via certified mail or electronic means on May 30, 2017. Recipients included:
• Barry Saxion
• Troy B. Stratman, Esq. (counsel for the HOA)
• The Office of Administrative Hearings
• Judy Lowe and other staff at the Arizona Department of Real Estate
