Tag Archives: Document Request

George Wolchko v. Victoria Manor Management & Property Owners Association

Posted on by

Case Summary

Case ID 25F-H025-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-05-05
Administrative Law Judge Samuel Fox
Outcome partial
Filing Fees Refunded $2,000.00
Civil Penalties $150.00

Parties & Counsel

Petitioner George Wolchko Counsel —
Respondent Victoria Manor Management & Property Owners Association Counsel Christopher Duren

Alleged Violations

A.R.S. § 33-1805
Bylaws, Article III, Section 4
CC&Rs, Section 4.04
Bylaws, Article IV, Section 1

Outcome Summary

The Petitioner prevailed on three of the four issues: Violation of AZ Law on Delivery of Community Documents (A.R.S. § 33-1805), Failure to Uphold CCRs Regarding Common Wall Repairs (Bylaws/CC&R violation), and operating with fewer than the minimum required number of board members (Bylaws violation). The Petitioner did not prevail on the issue regarding the Failure to Hold a Special HOA Meeting.

Why this result: Petitioner's request for an “emergency meeting” regarding the wall repair was deemed technically insufficient to qualify as a formal 'special meeting' petition under the Bylaws.

Key Issues & Findings

Violation of AZ Law on Delivery of Community Documents

The HOA failed to provide the Kachina Management contract within the required ten business days for examination or copies, despite numerous requests.

Orders: Respondent failed to comply with A.R.S. § 33-1805 by not making documents available for examination within ten business days of request.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • Bylaws, Article X
  • CC&Rs, Section 9.07

Failure to Hold a Special HOA Meeting

The HOA failed to hold a special meeting requested by a valid petition signed by 25% of members, concerning common wall damage.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804(A)
  • Bylaws, Article III, Section 4

Failure to Uphold CCRs Regarding Common Wall Repairs

The HOA refused to repair a common wall designated as a Common Element after damage was caused by an HOA-sanctioned electrician, failing their maintenance obligation.

Orders: The Board failed to maintain a Common Element (electrical conduit/wall area) in good repair after its hired contractor caused damage, violating Bylaws and CC&R obligations.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • CC&Rs, Section 4.04
  • Bylaws, Article IV, Section 3
  • A.R.S. § 33-1803(A)

Violations of HOA Elections Procedures and Community Documents (Failure to seat required number of board members)

The HOA Board violated governing documents by operating with only two members, failing to maintain the minimum required number of three directors.

Orders: Respondent violated Bylaws Article IV, Section 1 by not maintaining a Board of Directors composed of no fewer than three persons.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • Bylaws, Article IV, Section 1
  • CC&Rs, Section 5.03

Analytics Highlights

Topics: HOA governance, Document request, Board composition, Common elements maintenance, Filing fee refund, Civil penalty
Additional Citations:

  • A.R.S. § 33-1805
  • Bylaws, Article IV, Section 1
  • CC&Rs, Section 4.04
  • Bylaws, Article IV, Section 3
  • A.R.S. § 33-1804(A)




Briefing Doc – 25F-H025-REL


Briefing Document: Wolchko v. Victoria Manor Management & Property Owners Association

Executive Summary

This document synthesizes the key proceedings, arguments, and outcomes of the administrative case George Wolchko v. Victoria Manor Management & Property Owners Association, Case No. 25F-H025-REL, adjudicated by the Arizona Office of Administrative Hearings. The Petitioner, George Wolchko, a homeowner, filed a four-issue petition against the Respondent, his Homeowners Association (HOA), alleging violations of Arizona statutes and the community’s governing documents.

The hearing, held on April 14, 2025, resulted in a mixed but largely favorable outcome for the Petitioner. The Administrative Law Judge (ALJ) found the HOA in violation on three of the four claims:

1. Failure to Provide Documents: The HOA violated A.R.S. § 33-1805 by not making its management contract with Kachina Management available within the legally mandated ten-business-day period.

2. Failure to Repair Common Wall: The HOA violated its own Bylaws and CC&Rs by failing its duty to maintain and repair a common element (an exterior wall and electrical conduit) after its hired contractor performed improper work, leaving a hole that was not weatherproof.

3. Failure to Fill Board Vacancy: The HOA violated its Bylaws, which mandate a board of no fewer than three members, by operating with only two directors since October 2024.

The HOA prevailed on one claim, Failure to Hold a Special Meeting, as the ALJ determined the Petitioner’s request, while clear in intent, was technically deficient under the Bylaws. The final order deemed Mr. Wolchko the prevailing party on three issues, ordering the HOA to reimburse him $1,500.00 in filing fees, to comply with community documents going forward, and levying a civil penalty of $150.00 against the Association.

Case Overview

Case Number

25F-H025-REL

Jurisdiction

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Samuel Fox

Hearing Date

April 14, 2025

Petitioner

George Wolchko

Respondent

Victoria Manor Management & Property Owners Association

Respondent’s Counsel

Christopher Duren (of Gottlieb Law, PLC)

Key Parties and Witnesses

• George Wolchko: The Petitioner, owner of a home in the Victoria Manor community since 2018 and a former board member (2018-2023). Testified on his own behalf.

• Victoria Manor Management & Property Owners Association: The Respondent, a planned community in Mesa, Arizona, consisting of eight units and seven owners.

• Joseph Kidd: A current HOA board member, serving since November 2022. Testified for the Respondent.

• Michael Mott: A current HOA board member. Was present at the hearing but did not testify.

• Kachina Management, Inc.: The HOA’s management company, contracted in April 2024.

• Chris Jones: Elected to the board in September 2024 but resigned shortly thereafter, creating the board vacancy at the heart of Claim 4.

Analysis of Claims, Evidence, and Findings

Claim 1: Violation of AZ Law on Delivery of Community Documents

• Petitioner’s Allegation: The HOA violated A.R.S. § 33-1805 and its governing documents by failing to provide a copy of the Kachina Management contract despite numerous requests beginning in May 2024.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Made his first formal email request for the contract on May 6, 2024. He followed up on May 12 and May 26.

◦ The management company, Kachina, responded on May 29, offering an in-person review on June 3 or 4.

◦ Wolchko testified that driving 45 minutes each way was not a “reasonably available” means of access, especially when a digital copy existed and he travels internationally. He noted the CC&Rs explicitly allow for delivery by mail.

◦ After canceling an in-person appointment due to an emergency, his repeated requests for a digital or mailed copy were met with insistence on in-person review.

◦ The contract was finally produced in February 2025, nearly a year after the initial request and only after the petition was filed.

• Respondent’s Position:

◦ Argued that by offering in-person inspection at their office, they fulfilled their statutory obligation to make records “reasonably available for examination.”

◦ Emails from Kachina Management to Wolchko confirmed they had prepared the documents for his review on the dates offered. They stated Wolchko canceled the appointment and never rescheduled.

• ALJ’s Finding: Violation Found. The ALJ concluded that more than ten business days passed between the initial request on May 6, 2024, and the date the documents were made available for examination on June 3, 2024. This delay constituted a failure to comply with A.R.S. § 33-1805.

Claim 2: Failure to Hold a Special HOA Meeting

• Petitioner’s Allegation: The HOA violated A.R.S. § 33-1804(A) and its Bylaws by failing to hold a special meeting requested via a valid petition signed by 25% of the members (Wolchko and Terrance Greer).

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Submitted a formal, signed request on June 19, 2024, to hold an “emergency HOA meeting to address repairs on a community common wall.”

◦ He argued this was a valid petition for a special meeting and that the Board ignored it.

◦ The Respondent falsely claimed the meeting was held during the September annual meeting, but the annual meeting notice and minutes contained no mention of the special meeting’s purpose.

• Respondent’s Position:

◦ Argued the request was for an “emergency meeting,” which, under statute, can only be called by the Board of Directors, not by member petition.

◦ Contended there is no provision in the governing documents for 25% of members to call an emergency meeting.

◦ Noted that at the annual meeting in September, Wolchko was explicitly asked if he had any issues to discuss and he declined.

• ALJ’s Finding: No Violation. The ALJ found that although the intent was clearly to request a special meeting, the petition was technically deficient. It used the term “emergency meeting,” did not include a place for the meeting, and did not use the phrase “special meeting.” While a “mere technicality,” this was sufficient to deem the petition ineffective. The Respondent was deemed the prevailing party on this issue.

Claim 3: Failure to Uphold CCRs Regarding Common Wall Repairs

• Petitioner’s Allegation: The HOA failed its duty to repair a common wall damaged by its own electrician in February 2024.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ In February 2024, an HOA-hired contractor, Blue State Electric, performed work on an electrical conduit on his building’s exterior wall, which the board had previously designated a “true common area” with shared 50/50 maintenance costs.

◦ The work left a hole filled with foam that was not watertight. His immediate notification on March 15, 2024, was dismissed by board member Joseph Kidd, who claimed the hole was a pre-existing condition exposed by the work and therefore not the HOA’s responsibility.

◦ After months of the board refusing to act, he investigated the box himself, discovering an HOA wire running through his wall. He stated he only touched the box to prove it was an HOA issue after being told to “deal with it myself.”

◦ He disputed the validity of an $1,867 invoice from a second contractor (Canyon State), stating it was solicited by the board to blame him for damage he did not cause.

• Respondent’s Testimony & Evidence (Kidd):

◦ The electrical box and conduit are common elements that serve four buildings.

◦ Wolchko is not a licensed Arizona electrician and had no authorization to touch the common element.

◦ Kidd testified that after Wolchko sent a video of himself pulling the box out, the board hired Canyon State to inspect it.

◦ He acknowledged offering to help Wolchko patch the stucco but denied authorizing any electrical work.

• ALJ’s Finding: Violation Found. The ALJ determined that the preponderance of evidence supported that the “Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing.” Because the wall and electrical conduit were common elements, the board had a duty to maintain them in good repair. The board “declined to correct the problem its contractor caused,” thus violating the Bylaws and CC&Rs.

Claim 4: Failure to Maintain Required Number of Board Members

• Petitioner’s Allegation: The HOA violated its Bylaws (Article IV, Section 1), which require a board of “no less than three (3) persons,” by operating with only two members.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Following the September 19, 2024 election, three members were elected: Joseph Kidd, Michael Mott, and Chris Jones.

◦ Chris Jones resigned almost immediately, leaving the board with two members.

◦ He argued that while the bylaws state a vacancy “may be filled” by the remaining directors, this grants authority, it does not waive the fundamental requirement of having at least three members.

◦ He noted that two other owners (himself and Terrance Greer), representing 25% of the HOA, were willing to serve, so the vacancy could be filled.

• Respondent’s Testimony & Evidence (Kidd):

◦ Confirmed Jones resigned by early October 2024.

◦ Stated the board reached out to other members who expressed no interest in serving.

◦ Testified that Kachina Management advised them that filling the seat was at their discretion.

◦ The Respondent’s legal argument was that the Bylaw’s use of the word “may” (“may be filled”) makes filling the vacancy optional, not mandatory.

• ALJ’s Finding: Violation Found. The ALJ was “not persuasive” by the Respondent’s argument. The decision states: “This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.” The preponderance of evidence established that the HOA violated its Bylaws by not having enough Board members.

Final Decision and Order

• Prevailing Party: George Wolchko was deemed the prevailing party on Petition Issues 1, 3, and 4. Victoria Manor was deemed the prevailing party on Issue 2.

• Reimbursement: The Respondent was ordered to pay the Petitioner $1,500.00 for filing fees within thirty days.

• Compliance: The Respondent was directed to “comply with the requirements of its Community Documents going forward.”

• Civil Penalty: A civil penalty of $150.00 was levied against the Respondent.

• Decision Date: May 5, 2025.


Questions

Question

How long does the HOA have to provide records after I request them?

Short Answer

The HOA has ten business days to fulfill a request to examine or provide copies of records.

Detailed Answer

Under A.R.S. § 33-1805, an association must strictly adhere to a ten-business-day timeframe. In this case, providing access nearly a month after the initial request was found to be a violation of state law.

Alj Quote

A.R.S. § 33-1805 provides an association 'ten business days to fulfill a request for examination' or 'to provide copies of the requested records.' … More than ten business days passed between May 6, 2024, and June 3, 2024. Petitioner demonstrated by a preponderance of the evidence that Respondent, through Kachina, failed to comply with A.R.S. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • deadlines
  • HOA obligations

Question

Can homeowners call an 'emergency meeting' regarding repairs?

Short Answer

Generally, no. Homeowners should request a 'special meeting' instead, as 'emergency meetings' are typically reserved for the Board.

Detailed Answer

While homeowners may petition for a meeting, using the correct terminology is critical. In this case, a petition for an 'emergency meeting' was deemed ineffective because that specific type of meeting is a Board function, whereas homeowners are authorized to request 'special meetings'.

Alj Quote

In the context of the communications about this meeting, it is clear that Petitioner was requesting a 'special meeting' not an 'emergency meeting,' which can only be called by the Board.

Legal Basis

Bylaws

Topic Tags

  • meetings
  • procedure
  • homeowner rights

Question

What specific details must be included in a petition for a special meeting?

Short Answer

The petition must usually include the date, hour, place of the meeting, and the specific purpose or topic.

Detailed Answer

Failure to include all technical details required by the Bylaws—such as the specific place of the meeting or the correct label ('special meeting')—can render a petition invalid, even if it has the required number of signatures.

Alj Quote

The petition did not include a place for the meeting, the topic to be discussed, or the phrase 'special meeting.' … Petitioner’s special meeting request did not fully comply with the requirements of the Bylaws. Although it is a mere technicality, it is sufficient to deem the petition for a special meeting ineffective.

Legal Basis

Bylaws Article III, Section 4

Topic Tags

  • meetings
  • petitions
  • technicalities

Question

Is the HOA responsible if a contractor they hired does poor work on a common element?

Short Answer

Yes. The HOA has a duty to maintain common elements and correct problems caused by their contractors.

Detailed Answer

If an HOA-hired contractor installs incorrect equipment or leaves a common element exposed to damage (like weather), the Board cannot decline to fix it. They retain the obligation to maintain the area in good repair.

Alj Quote

The preponderance of the evidence supports that the Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing… The Board declined to correct the problem its contractor caused… The preponderance of the evidence supports that the Board failed to maintain this area in good repair in violation of the Bylaws and CC&R.

Legal Basis

Bylaws Article IV, Section 3; CC&R Section 4.05(2)

Topic Tags

  • maintenance
  • common elements
  • contractors

Question

Can the HOA Board operate with fewer members than the Bylaws require?

Short Answer

No. If the Bylaws state a minimum number of directors, the Board must maintain that number.

Detailed Answer

The Board cannot choose to operate with fewer directors than mandated. In this case, operating with two directors when the Bylaws required a minimum of three was a violation.

Alj Quote

Article IV, section 1 of the Bylaws require a Board of no fewer than three people. The preponderance of the evidence established that the Board has consisted of two people for some time… The preponderance of the evidence supports that Respondent violated the Bylaws by not having enough Board members.

Legal Basis

Bylaws Article IV, Section 1

Topic Tags

  • board composition
  • bylaws
  • vacancies

Question

Does a Bylaw saying a vacancy 'may be filled' mean the Board can choose to leave a seat empty?

Short Answer

No. That language typically describes the method of filling the seat (appointment) rather than permission to leave it vacant below the required minimum.

Detailed Answer

HOAs cannot use the word 'may' in vacancy provisions to justify ignoring minimum board size requirements. The provision allows for appointment rather than election to fill the spot, but does not absolve the Board of the duty to have the required number of members.

Alj Quote

Respondent argued that Section 5, Vacancies does not require the Board to fill a vacant position… This argument was not persuasive. This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.

Legal Basis

Bylaws

Topic Tags

  • legal interpretation
  • board vacancies
  • bylaws

Question

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

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the petitioner for the filing fee.

Detailed Answer

In this decision, the HOA was ordered to pay the $1,500.00 filing fee directly to the homeowners within 30 days because the homeowners prevailed on the majority of their issues.

Alj Quote

IT IS ORDERED that Respondent pay Petitioners the filing fee of $1,500.00, to be paid directly to Petitioners within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • reimbursement
  • fees
  • penalties

Question

Can the HOA be fined for these violations?

Short Answer

Yes, a civil penalty may be levied, though it may be a nominal amount compared to the filing fees.

Detailed Answer

The ALJ has the authority to levy civil penalties for violations of statutes or community documents. In this specific case, a penalty of $150.00 was deemed appropriate.

Alj Quote

A Civil Penalty of $150.00 is found to be appropriate in this matter.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • fines
  • civil penalty
  • enforcement

Case

Docket No

25F-H025-REL

Case Title

George Wolchko v. Victoria Manor Management & Property Owners Association

Decision Date

2025-05-05

Alj Name

Samuel Fox

Tribunal

OAH

Agency

ADRE

Questions

Question

How long does the HOA have to provide records after I request them?

Short Answer

The HOA has ten business days to fulfill a request to examine or provide copies of records.

Detailed Answer

Under A.R.S. § 33-1805, an association must strictly adhere to a ten-business-day timeframe. In this case, providing access nearly a month after the initial request was found to be a violation of state law.

Alj Quote

A.R.S. § 33-1805 provides an association 'ten business days to fulfill a request for examination' or 'to provide copies of the requested records.' … More than ten business days passed between May 6, 2024, and June 3, 2024. Petitioner demonstrated by a preponderance of the evidence that Respondent, through Kachina, failed to comply with A.R.S. § 33-1805.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • deadlines
  • HOA obligations

Question

Can homeowners call an 'emergency meeting' regarding repairs?

Short Answer

Generally, no. Homeowners should request a 'special meeting' instead, as 'emergency meetings' are typically reserved for the Board.

Detailed Answer

While homeowners may petition for a meeting, using the correct terminology is critical. In this case, a petition for an 'emergency meeting' was deemed ineffective because that specific type of meeting is a Board function, whereas homeowners are authorized to request 'special meetings'.

Alj Quote

In the context of the communications about this meeting, it is clear that Petitioner was requesting a 'special meeting' not an 'emergency meeting,' which can only be called by the Board.

Legal Basis

Bylaws

Topic Tags

  • meetings
  • procedure
  • homeowner rights

Question

What specific details must be included in a petition for a special meeting?

Short Answer

The petition must usually include the date, hour, place of the meeting, and the specific purpose or topic.

Detailed Answer

Failure to include all technical details required by the Bylaws—such as the specific place of the meeting or the correct label ('special meeting')—can render a petition invalid, even if it has the required number of signatures.

Alj Quote

The petition did not include a place for the meeting, the topic to be discussed, or the phrase 'special meeting.' … Petitioner’s special meeting request did not fully comply with the requirements of the Bylaws. Although it is a mere technicality, it is sufficient to deem the petition for a special meeting ineffective.

Legal Basis

Bylaws Article III, Section 4

Topic Tags

  • meetings
  • petitions
  • technicalities

Question

Is the HOA responsible if a contractor they hired does poor work on a common element?

Short Answer

Yes. The HOA has a duty to maintain common elements and correct problems caused by their contractors.

Detailed Answer

If an HOA-hired contractor installs incorrect equipment or leaves a common element exposed to damage (like weather), the Board cannot decline to fix it. They retain the obligation to maintain the area in good repair.

Alj Quote

The preponderance of the evidence supports that the Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing… The Board declined to correct the problem its contractor caused… The preponderance of the evidence supports that the Board failed to maintain this area in good repair in violation of the Bylaws and CC&R.

Legal Basis

Bylaws Article IV, Section 3; CC&R Section 4.05(2)

Topic Tags

  • maintenance
  • common elements
  • contractors

Question

Can the HOA Board operate with fewer members than the Bylaws require?

Short Answer

No. If the Bylaws state a minimum number of directors, the Board must maintain that number.

Detailed Answer

The Board cannot choose to operate with fewer directors than mandated. In this case, operating with two directors when the Bylaws required a minimum of three was a violation.

Alj Quote

Article IV, section 1 of the Bylaws require a Board of no fewer than three people. The preponderance of the evidence established that the Board has consisted of two people for some time… The preponderance of the evidence supports that Respondent violated the Bylaws by not having enough Board members.

Legal Basis

Bylaws Article IV, Section 1

Topic Tags

  • board composition
  • bylaws
  • vacancies

Question

Does a Bylaw saying a vacancy 'may be filled' mean the Board can choose to leave a seat empty?

Short Answer

No. That language typically describes the method of filling the seat (appointment) rather than permission to leave it vacant below the required minimum.

Detailed Answer

HOAs cannot use the word 'may' in vacancy provisions to justify ignoring minimum board size requirements. The provision allows for appointment rather than election to fill the spot, but does not absolve the Board of the duty to have the required number of members.

Alj Quote

Respondent argued that Section 5, Vacancies does not require the Board to fill a vacant position… This argument was not persuasive. This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.

Legal Basis

Bylaws

Topic Tags

  • legal interpretation
  • board vacancies
  • bylaws

Question

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

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the petitioner for the filing fee.

Detailed Answer

In this decision, the HOA was ordered to pay the $1,500.00 filing fee directly to the homeowners within 30 days because the homeowners prevailed on the majority of their issues.

Alj Quote

IT IS ORDERED that Respondent pay Petitioners the filing fee of $1,500.00, to be paid directly to Petitioners within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • reimbursement
  • fees
  • penalties

Question

Can the HOA be fined for these violations?

Short Answer

Yes, a civil penalty may be levied, though it may be a nominal amount compared to the filing fees.

Detailed Answer

The ALJ has the authority to levy civil penalties for violations of statutes or community documents. In this specific case, a penalty of $150.00 was deemed appropriate.

Alj Quote

A Civil Penalty of $150.00 is found to be appropriate in this matter.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • fines
  • civil penalty
  • enforcement

Case

Docket No

25F-H025-REL

Case Title

George Wolchko v. Victoria Manor Management & Property Owners Association

Decision Date

2025-05-05

Alj Name

Samuel Fox

Tribunal

OAH

Agency

ADRE

George Wolchko v. Victoria Manor Management & Property Owners

Posted on by

Case Summary

Case ID 25F-H025-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-05-05
Administrative Law Judge Samuel Fox
Outcome partial
Filing Fees Refunded $2,000.00
Civil Penalties $150.00

Parties & Counsel

Petitioner George Wolchko Counsel —
Respondent Victoria Manor Management & Property Owners Association Counsel Christopher Duren

Alleged Violations

A.R.S. § 33-1805
Bylaws, Article III, Section 4
CC&Rs, Section 4.04
Bylaws, Article IV, Section 1

Outcome Summary

The Petitioner prevailed on three of the four issues: Violation of AZ Law on Delivery of Community Documents (A.R.S. § 33-1805), Failure to Uphold CCRs Regarding Common Wall Repairs (Bylaws/CC&R violation), and operating with fewer than the minimum required number of board members (Bylaws violation). The Petitioner did not prevail on the issue regarding the Failure to Hold a Special HOA Meeting.

Why this result: Petitioner's request for an “emergency meeting” regarding the wall repair was deemed technically insufficient to qualify as a formal 'special meeting' petition under the Bylaws.

Key Issues & Findings

Violation of AZ Law on Delivery of Community Documents

The HOA failed to provide the Kachina Management contract within the required ten business days for examination or copies, despite numerous requests.

Orders: Respondent failed to comply with A.R.S. § 33-1805 by not making documents available for examination within ten business days of request.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • Bylaws, Article X
  • CC&Rs, Section 9.07

Failure to Hold a Special HOA Meeting

The HOA failed to hold a special meeting requested by a valid petition signed by 25% of members, concerning common wall damage.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804(A)
  • Bylaws, Article III, Section 4

Failure to Uphold CCRs Regarding Common Wall Repairs

The HOA refused to repair a common wall designated as a Common Element after damage was caused by an HOA-sanctioned electrician, failing their maintenance obligation.

Orders: The Board failed to maintain a Common Element (electrical conduit/wall area) in good repair after its hired contractor caused damage, violating Bylaws and CC&R obligations.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • CC&Rs, Section 4.04
  • Bylaws, Article IV, Section 3
  • A.R.S. § 33-1803(A)

Violations of HOA Elections Procedures and Community Documents (Failure to seat required number of board members)

The HOA Board violated governing documents by operating with only two members, failing to maintain the minimum required number of three directors.

Orders: Respondent violated Bylaws Article IV, Section 1 by not maintaining a Board of Directors composed of no fewer than three persons.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $50.00

Disposition: petitioner_win

Cited:

  • Bylaws, Article IV, Section 1
  • CC&Rs, Section 5.03

Analytics Highlights

Topics: HOA governance, Document request, Board composition, Common elements maintenance, Filing fee refund, Civil penalty
Additional Citations:

  • A.R.S. § 33-1805
  • Bylaws, Article IV, Section 1
  • CC&Rs, Section 4.04
  • Bylaws, Article IV, Section 3
  • A.R.S. § 33-1804(A)

Audio Overview

Decision Documents

25F-H025-REL Decision – 1268559.pdf

Uploaded 2026-01-23T18:15:49 (55.5 KB)

25F-H025-REL Decision – 1276022.pdf

Uploaded 2026-01-23T18:15:55 (57.0 KB)

25F-H025-REL Decision – 1276027.pdf

Uploaded 2026-01-23T18:16:00 (7.3 KB)

25F-H025-REL Decision – 1282178.pdf

Uploaded 2026-01-23T18:16:05 (49.3 KB)

25F-H025-REL Decision – 1288973.pdf

Uploaded 2026-01-23T18:16:09 (52.0 KB)

25F-H025-REL Decision – 1290761.pdf

Uploaded 2026-01-23T18:16:13 (50.5 KB)

25F-H025-REL Decision – 1301417.pdf

Uploaded 2026-01-23T18:16:17 (224.5 KB)





Briefing Doc – 25F-H025-REL


Briefing Document: Wolchko v. Victoria Manor Management & Property Owners Association

Executive Summary

This document synthesizes the key proceedings, arguments, and outcomes of the administrative case George Wolchko v. Victoria Manor Management & Property Owners Association, Case No. 25F-H025-REL, adjudicated by the Arizona Office of Administrative Hearings. The Petitioner, George Wolchko, a homeowner, filed a four-issue petition against the Respondent, his Homeowners Association (HOA), alleging violations of Arizona statutes and the community’s governing documents.

The hearing, held on April 14, 2025, resulted in a mixed but largely favorable outcome for the Petitioner. The Administrative Law Judge (ALJ) found the HOA in violation on three of the four claims:

1. Failure to Provide Documents: The HOA violated A.R.S. § 33-1805 by not making its management contract with Kachina Management available within the legally mandated ten-business-day period.

2. Failure to Repair Common Wall: The HOA violated its own Bylaws and CC&Rs by failing its duty to maintain and repair a common element (an exterior wall and electrical conduit) after its hired contractor performed improper work, leaving a hole that was not weatherproof.

3. Failure to Fill Board Vacancy: The HOA violated its Bylaws, which mandate a board of no fewer than three members, by operating with only two directors since October 2024.

The HOA prevailed on one claim, Failure to Hold a Special Meeting, as the ALJ determined the Petitioner’s request, while clear in intent, was technically deficient under the Bylaws. The final order deemed Mr. Wolchko the prevailing party on three issues, ordering the HOA to reimburse him $1,500.00 in filing fees, to comply with community documents going forward, and levying a civil penalty of $150.00 against the Association.

Case Overview

Case Number

25F-H025-REL

Jurisdiction

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Samuel Fox

Hearing Date

April 14, 2025

Petitioner

George Wolchko

Respondent

Victoria Manor Management & Property Owners Association

Respondent’s Counsel

Christopher Duren (of Gottlieb Law, PLC)

Key Parties and Witnesses

• George Wolchko: The Petitioner, owner of a home in the Victoria Manor community since 2018 and a former board member (2018-2023). Testified on his own behalf.

• Victoria Manor Management & Property Owners Association: The Respondent, a planned community in Mesa, Arizona, consisting of eight units and seven owners.

• Joseph Kidd: A current HOA board member, serving since November 2022. Testified for the Respondent.

• Michael Mott: A current HOA board member. Was present at the hearing but did not testify.

• Kachina Management, Inc.: The HOA’s management company, contracted in April 2024.

• Chris Jones: Elected to the board in September 2024 but resigned shortly thereafter, creating the board vacancy at the heart of Claim 4.

Analysis of Claims, Evidence, and Findings

Claim 1: Violation of AZ Law on Delivery of Community Documents

• Petitioner’s Allegation: The HOA violated A.R.S. § 33-1805 and its governing documents by failing to provide a copy of the Kachina Management contract despite numerous requests beginning in May 2024.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Made his first formal email request for the contract on May 6, 2024. He followed up on May 12 and May 26.

◦ The management company, Kachina, responded on May 29, offering an in-person review on June 3 or 4.

◦ Wolchko testified that driving 45 minutes each way was not a “reasonably available” means of access, especially when a digital copy existed and he travels internationally. He noted the CC&Rs explicitly allow for delivery by mail.

◦ After canceling an in-person appointment due to an emergency, his repeated requests for a digital or mailed copy were met with insistence on in-person review.

◦ The contract was finally produced in February 2025, nearly a year after the initial request and only after the petition was filed.

• Respondent’s Position:

◦ Argued that by offering in-person inspection at their office, they fulfilled their statutory obligation to make records “reasonably available for examination.”

◦ Emails from Kachina Management to Wolchko confirmed they had prepared the documents for his review on the dates offered. They stated Wolchko canceled the appointment and never rescheduled.

• ALJ’s Finding: Violation Found. The ALJ concluded that more than ten business days passed between the initial request on May 6, 2024, and the date the documents were made available for examination on June 3, 2024. This delay constituted a failure to comply with A.R.S. § 33-1805.

Claim 2: Failure to Hold a Special HOA Meeting

• Petitioner’s Allegation: The HOA violated A.R.S. § 33-1804(A) and its Bylaws by failing to hold a special meeting requested via a valid petition signed by 25% of the members (Wolchko and Terrance Greer).

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Submitted a formal, signed request on June 19, 2024, to hold an “emergency HOA meeting to address repairs on a community common wall.”

◦ He argued this was a valid petition for a special meeting and that the Board ignored it.

◦ The Respondent falsely claimed the meeting was held during the September annual meeting, but the annual meeting notice and minutes contained no mention of the special meeting’s purpose.

• Respondent’s Position:

◦ Argued the request was for an “emergency meeting,” which, under statute, can only be called by the Board of Directors, not by member petition.

◦ Contended there is no provision in the governing documents for 25% of members to call an emergency meeting.

◦ Noted that at the annual meeting in September, Wolchko was explicitly asked if he had any issues to discuss and he declined.

• ALJ’s Finding: No Violation. The ALJ found that although the intent was clearly to request a special meeting, the petition was technically deficient. It used the term “emergency meeting,” did not include a place for the meeting, and did not use the phrase “special meeting.” While a “mere technicality,” this was sufficient to deem the petition ineffective. The Respondent was deemed the prevailing party on this issue.

Claim 3: Failure to Uphold CCRs Regarding Common Wall Repairs

• Petitioner’s Allegation: The HOA failed its duty to repair a common wall damaged by its own electrician in February 2024.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ In February 2024, an HOA-hired contractor, Blue State Electric, performed work on an electrical conduit on his building’s exterior wall, which the board had previously designated a “true common area” with shared 50/50 maintenance costs.

◦ The work left a hole filled with foam that was not watertight. His immediate notification on March 15, 2024, was dismissed by board member Joseph Kidd, who claimed the hole was a pre-existing condition exposed by the work and therefore not the HOA’s responsibility.

◦ After months of the board refusing to act, he investigated the box himself, discovering an HOA wire running through his wall. He stated he only touched the box to prove it was an HOA issue after being told to “deal with it myself.”

◦ He disputed the validity of an $1,867 invoice from a second contractor (Canyon State), stating it was solicited by the board to blame him for damage he did not cause.

• Respondent’s Testimony & Evidence (Kidd):

◦ The electrical box and conduit are common elements that serve four buildings.

◦ Wolchko is not a licensed Arizona electrician and had no authorization to touch the common element.

◦ Kidd testified that after Wolchko sent a video of himself pulling the box out, the board hired Canyon State to inspect it.

◦ He acknowledged offering to help Wolchko patch the stucco but denied authorizing any electrical work.

• ALJ’s Finding: Violation Found. The ALJ determined that the preponderance of evidence supported that the “Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing.” Because the wall and electrical conduit were common elements, the board had a duty to maintain them in good repair. The board “declined to correct the problem its contractor caused,” thus violating the Bylaws and CC&Rs.

Claim 4: Failure to Maintain Required Number of Board Members

• Petitioner’s Allegation: The HOA violated its Bylaws (Article IV, Section 1), which require a board of “no less than three (3) persons,” by operating with only two members.

• Petitioner’s Testimony & Evidence (Wolchko):

◦ Following the September 19, 2024 election, three members were elected: Joseph Kidd, Michael Mott, and Chris Jones.

◦ Chris Jones resigned almost immediately, leaving the board with two members.

◦ He argued that while the bylaws state a vacancy “may be filled” by the remaining directors, this grants authority, it does not waive the fundamental requirement of having at least three members.

◦ He noted that two other owners (himself and Terrance Greer), representing 25% of the HOA, were willing to serve, so the vacancy could be filled.

• Respondent’s Testimony & Evidence (Kidd):

◦ Confirmed Jones resigned by early October 2024.

◦ Stated the board reached out to other members who expressed no interest in serving.

◦ Testified that Kachina Management advised them that filling the seat was at their discretion.

◦ The Respondent’s legal argument was that the Bylaw’s use of the word “may” (“may be filled”) makes filling the vacancy optional, not mandatory.

• ALJ’s Finding: Violation Found. The ALJ was “not persuasive” by the Respondent’s argument. The decision states: “This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.” The preponderance of evidence established that the HOA violated its Bylaws by not having enough Board members.

Final Decision and Order

• Prevailing Party: George Wolchko was deemed the prevailing party on Petition Issues 1, 3, and 4. Victoria Manor was deemed the prevailing party on Issue 2.

• Reimbursement: The Respondent was ordered to pay the Petitioner $1,500.00 for filing fees within thirty days.

• Compliance: The Respondent was directed to “comply with the requirements of its Community Documents going forward.”

• Civil Penalty: A civil penalty of $150.00 was levied against the Respondent.

• Decision Date: May 5, 2025.






Study Guide – 25F-H025-REL


{ “case”: { “docket_no”: “25F-H025-REL”, “case_title”: “George Wolchko v. Victoria Manor Management & Property Owners Association”, “decision_date”: “2025-05-05”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How long does the HOA have to provide records after I request them?”, “short_answer”: “The HOA has ten business days to fulfill a request to examine or provide copies of records.”, “detailed_answer”: “Under A.R.S. § 33-1805, an association must strictly adhere to a ten-business-day timeframe. In this case, providing access nearly a month after the initial request was found to be a violation of state law.”, “alj_quote”: “A.R.S. § 33-1805 provides an association ‘ten business days to fulfill a request for examination’ or ‘to provide copies of the requested records.’ … More than ten business days passed between May 6, 2024, and June 3, 2024. Petitioner demonstrated by a preponderance of the evidence that Respondent, through Kachina, failed to comply with A.R.S. § 33-1805.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “deadlines”, “HOA obligations” ] }, { “question”: “Can homeowners call an ’emergency meeting’ regarding repairs?”, “short_answer”: “Generally, no. Homeowners should request a ‘special meeting’ instead, as ’emergency meetings’ are typically reserved for the Board.”, “detailed_answer”: “While homeowners may petition for a meeting, using the correct terminology is critical. In this case, a petition for an ’emergency meeting’ was deemed ineffective because that specific type of meeting is a Board function, whereas homeowners are authorized to request ‘special meetings’.”, “alj_quote”: “In the context of the communications about this meeting, it is clear that Petitioner was requesting a ‘special meeting’ not an ’emergency meeting,’ which can only be called by the Board.”, “legal_basis”: “Bylaws”, “topic_tags”: [ “meetings”, “procedure”, “homeowner rights” ] }, { “question”: “What specific details must be included in a petition for a special meeting?”, “short_answer”: “The petition must usually include the date, hour, place of the meeting, and the specific purpose or topic.”, “detailed_answer”: “Failure to include all technical details required by the Bylaws—such as the specific place of the meeting or the correct label (‘special meeting’)—can render a petition invalid, even if it has the required number of signatures.”, “alj_quote”: “The petition did not include a place for the meeting, the topic to be discussed, or the phrase ‘special meeting.’ … Petitioner’s special meeting request did not fully comply with the requirements of the Bylaws. Although it is a mere technicality, it is sufficient to deem the petition for a special meeting ineffective.”, “legal_basis”: “Bylaws Article III, Section 4”, “topic_tags”: [ “meetings”, “petitions”, “technicalities” ] }, { “question”: “Is the HOA responsible if a contractor they hired does poor work on a common element?”, “short_answer”: “Yes. The HOA has a duty to maintain common elements and correct problems caused by their contractors.”, “detailed_answer”: “If an HOA-hired contractor installs incorrect equipment or leaves a common element exposed to damage (like weather), the Board cannot decline to fix it. They retain the obligation to maintain the area in good repair.”, “alj_quote”: “The preponderance of the evidence supports that the Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing… The Board declined to correct the problem its contractor caused… The preponderance of the evidence supports that the Board failed to maintain this area in good repair in violation of the Bylaws and CC&R.”, “legal_basis”: “Bylaws Article IV, Section 3; CC&R Section 4.05(2)”, “topic_tags”: [ “maintenance”, “common elements”, “contractors” ] }, { “question”: “Can the HOA Board operate with fewer members than the Bylaws require?”, “short_answer”: “No. If the Bylaws state a minimum number of directors, the Board must maintain that number.”, “detailed_answer”: “The Board cannot choose to operate with fewer directors than mandated. In this case, operating with two directors when the Bylaws required a minimum of three was a violation.”, “alj_quote”: “Article IV, section 1 of the Bylaws require a Board of no fewer than three people. The preponderance of the evidence established that the Board has consisted of two people for some time… The preponderance of the evidence supports that Respondent violated the Bylaws by not having enough Board members.”, “legal_basis”: “Bylaws Article IV, Section 1”, “topic_tags”: [ “board composition”, “bylaws”, “vacancies” ] }, { “question”: “Does a Bylaw saying a vacancy ‘may be filled’ mean the Board can choose to leave a seat empty?”, “short_answer”: “No. That language typically describes the method of filling the seat (appointment) rather than permission to leave it vacant below the required minimum.”, “detailed_answer”: “HOAs cannot use the word ‘may’ in vacancy provisions to justify ignoring minimum board size requirements. The provision allows for appointment rather than election to fill the spot, but does not absolve the Board of the duty to have the required number of members.”, “alj_quote”: “Respondent argued that Section 5, Vacancies does not require the Board to fill a vacant position… This argument was not persuasive. This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.”, “legal_basis”: “Bylaws”, “topic_tags”: [ “legal interpretation”, “board vacancies”, “bylaws” ] }, { “question”: “If I win my hearing against the HOA, can I get my filing fee back?”, “short_answer”: “Yes, the Administrative Law Judge can order the HOA to reimburse the petitioner for the filing fee.”, “detailed_answer”: “In this decision, the HOA was ordered to pay the $1,500.00 filing fee directly to the homeowners within 30 days because the homeowners prevailed on the majority of their issues.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioners the filing fee of $1,500.00, to be paid directly to Petitioners within thirty (30) days of this Order.”, “legal_basis”: “Administrative Order”, “topic_tags”: [ “reimbursement”, “fees”, “penalties” ] }, { “question”: “Can the HOA be fined for these violations?”, “short_answer”: “Yes, a civil penalty may be levied, though it may be a nominal amount compared to the filing fees.”, “detailed_answer”: “The ALJ has the authority to levy civil penalties for violations of statutes or community documents. In this specific case, a penalty of $150.00 was deemed appropriate.”, “alj_quote”: “A Civil Penalty of $150.00 is found to be appropriate in this matter.”, “legal_basis”: “A.R.S. § 32-2199.02”, “topic_tags”: [ “fines”, “civil penalty”, “enforcement” ] } ] }






Blog Post – 25F-H025-REL


{ “case”: { “docket_no”: “25F-H025-REL”, “case_title”: “George Wolchko v. Victoria Manor Management & Property Owners Association”, “decision_date”: “2025-05-05”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How long does the HOA have to provide records after I request them?”, “short_answer”: “The HOA has ten business days to fulfill a request to examine or provide copies of records.”, “detailed_answer”: “Under A.R.S. § 33-1805, an association must strictly adhere to a ten-business-day timeframe. In this case, providing access nearly a month after the initial request was found to be a violation of state law.”, “alj_quote”: “A.R.S. § 33-1805 provides an association ‘ten business days to fulfill a request for examination’ or ‘to provide copies of the requested records.’ … More than ten business days passed between May 6, 2024, and June 3, 2024. Petitioner demonstrated by a preponderance of the evidence that Respondent, through Kachina, failed to comply with A.R.S. § 33-1805.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “deadlines”, “HOA obligations” ] }, { “question”: “Can homeowners call an ’emergency meeting’ regarding repairs?”, “short_answer”: “Generally, no. Homeowners should request a ‘special meeting’ instead, as ’emergency meetings’ are typically reserved for the Board.”, “detailed_answer”: “While homeowners may petition for a meeting, using the correct terminology is critical. In this case, a petition for an ’emergency meeting’ was deemed ineffective because that specific type of meeting is a Board function, whereas homeowners are authorized to request ‘special meetings’.”, “alj_quote”: “In the context of the communications about this meeting, it is clear that Petitioner was requesting a ‘special meeting’ not an ’emergency meeting,’ which can only be called by the Board.”, “legal_basis”: “Bylaws”, “topic_tags”: [ “meetings”, “procedure”, “homeowner rights” ] }, { “question”: “What specific details must be included in a petition for a special meeting?”, “short_answer”: “The petition must usually include the date, hour, place of the meeting, and the specific purpose or topic.”, “detailed_answer”: “Failure to include all technical details required by the Bylaws—such as the specific place of the meeting or the correct label (‘special meeting’)—can render a petition invalid, even if it has the required number of signatures.”, “alj_quote”: “The petition did not include a place for the meeting, the topic to be discussed, or the phrase ‘special meeting.’ … Petitioner’s special meeting request did not fully comply with the requirements of the Bylaws. Although it is a mere technicality, it is sufficient to deem the petition for a special meeting ineffective.”, “legal_basis”: “Bylaws Article III, Section 4”, “topic_tags”: [ “meetings”, “petitions”, “technicalities” ] }, { “question”: “Is the HOA responsible if a contractor they hired does poor work on a common element?”, “short_answer”: “Yes. The HOA has a duty to maintain common elements and correct problems caused by their contractors.”, “detailed_answer”: “If an HOA-hired contractor installs incorrect equipment or leaves a common element exposed to damage (like weather), the Board cannot decline to fix it. They retain the obligation to maintain the area in good repair.”, “alj_quote”: “The preponderance of the evidence supports that the Board-hired electrician installed the wrong kind of box and left a section of the wall exposed without proper weather proofing… The Board declined to correct the problem its contractor caused… The preponderance of the evidence supports that the Board failed to maintain this area in good repair in violation of the Bylaws and CC&R.”, “legal_basis”: “Bylaws Article IV, Section 3; CC&R Section 4.05(2)”, “topic_tags”: [ “maintenance”, “common elements”, “contractors” ] }, { “question”: “Can the HOA Board operate with fewer members than the Bylaws require?”, “short_answer”: “No. If the Bylaws state a minimum number of directors, the Board must maintain that number.”, “detailed_answer”: “The Board cannot choose to operate with fewer directors than mandated. In this case, operating with two directors when the Bylaws required a minimum of three was a violation.”, “alj_quote”: “Article IV, section 1 of the Bylaws require a Board of no fewer than three people. The preponderance of the evidence established that the Board has consisted of two people for some time… The preponderance of the evidence supports that Respondent violated the Bylaws by not having enough Board members.”, “legal_basis”: “Bylaws Article IV, Section 1”, “topic_tags”: [ “board composition”, “bylaws”, “vacancies” ] }, { “question”: “Does a Bylaw saying a vacancy ‘may be filled’ mean the Board can choose to leave a seat empty?”, “short_answer”: “No. That language typically describes the method of filling the seat (appointment) rather than permission to leave it vacant below the required minimum.”, “detailed_answer”: “HOAs cannot use the word ‘may’ in vacancy provisions to justify ignoring minimum board size requirements. The provision allows for appointment rather than election to fill the spot, but does not absolve the Board of the duty to have the required number of members.”, “alj_quote”: “Respondent argued that Section 5, Vacancies does not require the Board to fill a vacant position… This argument was not persuasive. This provision allows for the appointment, rather than the election, of a Director to a vacant seat. It does not absolve the Board from having the minimum number of Directors.”, “legal_basis”: “Bylaws”, “topic_tags”: [ “legal interpretation”, “board vacancies”, “bylaws” ] }, { “question”: “If I win my hearing against the HOA, can I get my filing fee back?”, “short_answer”: “Yes, the Administrative Law Judge can order the HOA to reimburse the petitioner for the filing fee.”, “detailed_answer”: “In this decision, the HOA was ordered to pay the $1,500.00 filing fee directly to the homeowners within 30 days because the homeowners prevailed on the majority of their issues.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioners the filing fee of $1,500.00, to be paid directly to Petitioners within thirty (30) days of this Order.”, “legal_basis”: “Administrative Order”, “topic_tags”: [ “reimbursement”, “fees”, “penalties” ] }, { “question”: “Can the HOA be fined for these violations?”, “short_answer”: “Yes, a civil penalty may be levied, though it may be a nominal amount compared to the filing fees.”, “detailed_answer”: “The ALJ has the authority to levy civil penalties for violations of statutes or community documents. In this specific case, a penalty of $150.00 was deemed appropriate.”, “alj_quote”: “A Civil Penalty of $150.00 is found to be appropriate in this matter.”, “legal_basis”: “A.R.S. § 32-2199.02”, “topic_tags”: [ “fines”, “civil penalty”, “enforcement” ] } ] }


Case Participants

Petitioner Side

  • George Wolchko (petitioner)
  • Terrance Greer (owner/petitioner supporter)
    Signed special meeting petition

Respondent Side

  • Christopher Duren (HOA attorney)
    GOTTLIEB LAW, PLC
    Appeared as counsel for Respondent; referenced as Mr. Duran/Durham
  • Joseph Kidd (board member/witness)
    Victoria Manor Management & Property Owners Association
  • Michael Mott (board member)
    Victoria Manor Management & Property Owners Association
  • Benjamin L. Gottlieb (HOA attorney)
    GOTTLIEB LAW, PLC
  • Mark Rounsaville (HOA representative)
    Kachina Management
    Also referred to as R. Mark Rounsaville; filed written answer for Respondent
  • Chris Jones (former board member)
    Victoria Manor Management & Property Owners Association
    Elected September 2024, resigned shortly thereafter
  • Ashley Love (property manager)
    Tri City Property Management
  • Deja Rabone (property manager)
    Tri City Property Management
  • Amy (law firm staff)
    GOTTLIEB LAW, PLC
  • Joshua (law firm staff)
    GOTTLIEB LAW, PLC
  • Chris (law firm staff)
    GOTTLIEB LAW, PLC
    Distinct from Christopher Duren
  • Karen F. (law firm staff)
    GOTTLIEB LAW, PLC

Neutral Parties

  • Samuel Fox (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Alexis Madrid (ALJ)
    OAH

Other Participants

  • Ron Owen (former board member)
    Victoria Manor Management & Property Owners Association
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
  • M. Neat (ADRE staff)
    Arizona Department of Real Estate
  • L. Recchia (ADRE staff)
    Arizona Department of Real Estate
  • G. Osborn (ADRE staff)
    Arizona Department of Real Estate

Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s

Posted on by

Case Summary

Case ID 24F-H015-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-01-03
Administrative Law Judge Adam D. Stone
Outcome total
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Teri S. Morcomb & J. Ted Morcomb Counsel Jeffrey Brie, Esq.
Respondent Sierra Tortuga Homeowner’s Association Counsel Phillip Brown, Esq. and Kelly Oetinger, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

Petitioner met the burden of proof for both alleged violations: violation of the Declaration (not enforcing the 25ft setback) and violation of A.R.S. § 33-1805 (failing to provide documents). The petition was granted, and Respondent was ordered to reimburse the $1,000.00 filing fee.

Key Issues & Findings

Failure to provide documents

Respondent failed to produce documents requested by Petitioner, specifically meeting minutes discussing the investigative report, within the statutory timeframe, violating A.R.S. § 33-1805.

Orders: Respondent was found in violation of A.R.S. § 33-1805 and Declaration Section F. Respondent shall reimburse Petitioner’s filing fee of $1,000.00.

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

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Declaration Section F

Analytics Highlights

Topics: setback enforcement, document request, HOA governance, filing fee refund, A.R.S. 33-1805
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 33-1804
  • Declaration Section F

Video Overview

Audio Overview

Decision Documents

24F-H015-REL Decision – 1102948.pdf

Uploaded 2026-01-23T18:02:19 (53.9 KB)

24F-H015-REL Decision – 1116083.pdf

Uploaded 2026-01-23T18:02:23 (50.5 KB)

24F-H015-REL Decision – 1129495.pdf

Uploaded 2026-01-23T18:02:26 (148.2 KB)





Study Guide – 24F-H015-REL


{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }






Blog Post – 24F-H015-REL


{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }


Case Participants

Petitioner Side

  • Teri S. Morcomb (petitioner)
    Lot 8 owner, testified
  • J. Ted Morcomb (petitioner)
    Lot 8 owner
  • Jeffrey T. Brei (petitioner attorney)
  • Tracy Allen Bogardis (witness)
    Civil Engineer
    Testified regarding drainage/hydrology

Respondent Side

  • Phillip Brown (HOA attorney)
  • Kelly Oetinger (HOA attorney)
  • Robert Leuen (board president)
    Sierra Tortuga HOA
    Testified
  • Marcella Bernadette Aguilar (witness)
    Sierra Tortuga HOA
    Lot 9 owner, testified
  • Abel Sodto (lot owner)
    Sierra Tortuga HOA
    Lot 9 owner, former Board/ARC member, subject of violation
  • Clint Stoddard (board member)
    Sierra Tortuga HOA
    Investigator
  • Benny Medina (board member)
    Sierra Tortuga HOA
    Investigator, former president
  • Joseph D. Martino (ARC member)
    Sierra Tortuga HOA
    Former Architectural Committee Head
  • Chris Stler (board member)
    Sierra Tortuga HOA
    Vice President of HOA
  • Yvon Posche (board member)
    Sierra Tortuga HOA
    Secretary of HOA
  • Steve Brockam (board member)
    Sierra Tortuga HOA
    Board Director
  • Perry Terren (ARC chair)
    Sierra Tortuga HOA
    ARC Chairman and Board Director
  • Jeremy Thompson (law clerk)
    HOA Attorney's office
  • Mike Shupe (former HOA attorney)

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Tim Ross (board member)
    Sierra Tortuga HOA
    Former board/investigator, criticized current board actions
  • Susan Nicolson (Commissioner)
    ADRE
  • A. Hansen (ADRE staff)
    ADRE
  • V. Nunez (ADRE staff)
    ADRE
  • D. Jones (ADRE staff)
    ADRE
  • L. Abril (ADRE staff)
    ADRE

Donald F. Molley v. Verde Meadows Crest Homeowners Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

Alleged use of Association funds for maintenance on private property.

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

Orders: Petition denied due to lack of OAH jurisdiction.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Alleged failure to provide requested financial documents and meeting minutes.

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

Orders: Petition denied due to lack of OAH jurisdiction.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

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

Decision Documents

23F-H007-REL Decision – 1006960.pdf

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

23F-H007-REL Decision – 1008524.pdf

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

23F-H007-REL Decision – 1008675.pdf

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

23F-H007-REL Decision – 1010876.pdf

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

23F-H007-REL Decision – 1020898.pdf

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

23F-H007-REL Decision – 1027131.pdf

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • jurisdiction
  • common areas
  • planned community definition

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Burden of Proof

Topic Tags

  • evidence
  • maintenance
  • misuse of funds

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • evidence
  • financials

Question

Are the CC&Rs considered a binding contract?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • contract
  • enforceability

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1202(10)

Topic Tags

  • condominium definition
  • common elements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records
  • board member duties
  • treasurer

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

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

Topic Tags

  • jurisdiction
  • common areas
  • planned community definition

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Burden of Proof

Topic Tags

  • evidence
  • maintenance
  • misuse of funds

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • evidence
  • financials

Question

Are the CC&Rs considered a binding contract?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • contract
  • enforceability

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1202(10)

Topic Tags

  • condominium definition
  • common elements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records
  • board member duties
  • treasurer

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Aaron J Gragg v. Anthem Parkside at Merrill Ranch Community

Posted on by

Case Summary

Case ID 21F-H2121042-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-01
Administrative Law Judge Sondra J. Vanella
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Aaron J. Gragg Counsel —
Respondent Anthem Parkside at Merrill Ranch Community Association, Inc. Counsel Curtis Ekmark, Esq.

Alleged Violations

CC&R Article 12.4(a)
A.R.S. § 33-1803
A.R.S. § 33-1805
CC&R 2.4(a)

Outcome Summary

The Petitioner's Petition, alleging four separate violations of Arizona statutes and CC&Rs (regarding ADR procedures, fraudulent violation assessment, failure to produce documents, and selective enforcement), was denied as the Petitioner failed to prove any of the alleged violations by a preponderance of the evidence.

Why this result: Petitioner failed to meet the burden of proving by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1803, A.R.S. § 33-1805, or CC&R sections 2.4(a) and 12.4(a).

Key Issues & Findings

Refusal to participate in Alternate Dispute Resolution (ADR)

Petitioner alleged Respondent failed to comply with CC&R Article 12.4(a) regarding ADR. The ALJ found that CC&R Article 12.4(a) excluded proceedings initiated by the Association to enforce architectural, design, and landscape controls from mandatory arbitration.

Orders: Petitioner’s Petition is denied

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs Section 12.4(a)

Fraudulent assessment of violations

Petitioner alleged Respondent assessed violations without observation. Evidence showed Petitioner’s landscape violations were observed during routine inspections by the Community Standards Administrator.

Orders: Petitioner’s Petition is denied

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803

Failure to produce documents

Petitioner requested documents establishing design review requirements and enforcement authority. The ALJ found Petitioner’s requests were actually legal questions posed to Respondent regarding the CC&Rs, not requests for specific documents or records.

Orders: Petitioner’s Petition is denied

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1805

Selective Enforcement / Similar Treatment

Petitioner alleged selective enforcement because he was required to provide a photograph to prove compliance. The ALJ found Respondent has required photographic verification from other similarly situated non-compliant homeowners since 2010.

Orders: Petitioner’s Petition is denied

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&R Section 2.4(a)

Analytics Highlights

Topics: HOA enforcement, Landscaping violation, Alternative Dispute Resolution, Selective Enforcement, Document Request
Additional Citations:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1805
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • CC&Rs Section 12.4(a)
  • CC&R Section 2.4(a)

Video Overview

Audio Overview

Decision Documents

21F-H2121042-REL Decision – 921903.pdf

Uploaded 2026-01-23T17:37:23 (123.1 KB)

Questions

Question

Can I use a records request to force the HOA to explain their legal authority or justification for fines?

Short Answer

No. A records request must be for existing documents, not a method to pose legal questions to the HOA.

Detailed Answer

The ALJ ruled that requests asking for 'evidence… supporting justification' or the 'location of explicit CC&Rs' are actually interrogatories (questions) rather than requests for existing records. The HOA is not required to create new documents to answer legal questions under the guise of a records request.

Alj Quote

Petitioner’s request was not for documents or records, but rather for answers to legal questions.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • legal authority
  • HOA obligations

Question

Can the HOA require me to submit photos proving I fixed a violation?

Short Answer

Yes, particularly if there is a history of non-compliance.

Detailed Answer

The decision found it reasonable for an HOA to require a homeowner to submit photographic evidence to close a violation file, especially when the homeowner had failed to comply for an extended period. This requirement does not necessarily constitute unequal treatment.

Alj Quote

Respondent has requested of homeowners that have not been in compliance with the Landscape Design Guidelines, to submit photographic evidence when in compliance, in order prove such compliance.

Legal Basis

CC&R Section 2.4(a)

Topic Tags

  • violations
  • compliance
  • evidence

Question

Is it discrimination if the HOA asks me for proof of compliance but doesn't ask my neighbors?

Short Answer

Not if you are in a different situation (e.g., non-compliant) than your neighbors.

Detailed Answer

The ALJ determined that homeowners who are not in compliance are not 'similarly situated' to those who completed their obligations on time. Therefore, the HOA can impose different requirements (like submitting photos) on non-compliant owners without violating equal treatment clauses.

Alj Quote

This request is no different than those requests made by Respondent in the past of similarly situated homeowners, i.e., those not in compliance.

Legal Basis

CC&R Section 2.4(a)

Topic Tags

  • discrimination
  • selective enforcement
  • equal treatment

Question

Who has the burden of proof in a hearing against the HOA?

Short Answer

The homeowner (Petitioner) must prove the HOA violated the law or CC&Rs.

Detailed Answer

The homeowner bears the burden of proving their allegations by a 'preponderance of the evidence,' which means showing that the fact sought to be proved is more probable than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803, A.R.S. § 33-1805, and CC&Rs sections 2.4(a) and 12.4(a).

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • hearing process
  • burden of proof
  • legal standards

Question

Does the HOA have to prove they physically saw a violation?

Short Answer

Yes, but testimony regarding routine inspections is sufficient proof.

Detailed Answer

The homeowner alleged the HOA assessed violations that were not observed. However, the ALJ accepted credible testimony from the Community Standards Administrator that the violations were observed during routine inspections as sufficient proof.

Alj Quote

The credible evidence of record established that Petitioner’s landscape violations were observed during routine inspections by the Community Standards Administrator.

Legal Basis

A.R.S. § 33-1803

Topic Tags

  • violations
  • inspections
  • evidence

Question

Can I sue the HOA for refusing Alternative Dispute Resolution (ADR) if I didn't try to arbitrate?

Short Answer

No. If you skip the arbitration process required by the CC&Rs, you cannot claim the HOA refused ADR.

Detailed Answer

The homeowner claimed the HOA refused ADR procedures. However, the ALJ found that because the homeowner filed a petition with the Department instead of submitting the dispute to binding arbitration as required by the CC&Rs, the claim was invalid.

Alj Quote

Petitioner did not submit the dispute to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, choosing instead to file a Petition with the Department.

Legal Basis

CC&R Section 12.4(a)

Topic Tags

  • ADR
  • arbitration
  • dispute resolution

Case

Docket No
21F-H2121042-REL
Case Title
Aaron J. Gragg v. Anthem Parkside at Merrill Ranch Community Association, Inc.
Decision Date
2021-11-01
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I use a records request to force the HOA to explain their legal authority or justification for fines?

Short Answer

No. A records request must be for existing documents, not a method to pose legal questions to the HOA.

Detailed Answer

The ALJ ruled that requests asking for 'evidence… supporting justification' or the 'location of explicit CC&Rs' are actually interrogatories (questions) rather than requests for existing records. The HOA is not required to create new documents to answer legal questions under the guise of a records request.

Alj Quote

Petitioner’s request was not for documents or records, but rather for answers to legal questions.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • legal authority
  • HOA obligations

Question

Can the HOA require me to submit photos proving I fixed a violation?

Short Answer

Yes, particularly if there is a history of non-compliance.

Detailed Answer

The decision found it reasonable for an HOA to require a homeowner to submit photographic evidence to close a violation file, especially when the homeowner had failed to comply for an extended period. This requirement does not necessarily constitute unequal treatment.

Alj Quote

Respondent has requested of homeowners that have not been in compliance with the Landscape Design Guidelines, to submit photographic evidence when in compliance, in order prove such compliance.

Legal Basis

CC&R Section 2.4(a)

Topic Tags

  • violations
  • compliance
  • evidence

Question

Is it discrimination if the HOA asks me for proof of compliance but doesn't ask my neighbors?

Short Answer

Not if you are in a different situation (e.g., non-compliant) than your neighbors.

Detailed Answer

The ALJ determined that homeowners who are not in compliance are not 'similarly situated' to those who completed their obligations on time. Therefore, the HOA can impose different requirements (like submitting photos) on non-compliant owners without violating equal treatment clauses.

Alj Quote

This request is no different than those requests made by Respondent in the past of similarly situated homeowners, i.e., those not in compliance.

Legal Basis

CC&R Section 2.4(a)

Topic Tags

  • discrimination
  • selective enforcement
  • equal treatment

Question

Who has the burden of proof in a hearing against the HOA?

Short Answer

The homeowner (Petitioner) must prove the HOA violated the law or CC&Rs.

Detailed Answer

The homeowner bears the burden of proving their allegations by a 'preponderance of the evidence,' which means showing that the fact sought to be proved is more probable than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803, A.R.S. § 33-1805, and CC&Rs sections 2.4(a) and 12.4(a).

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • hearing process
  • burden of proof
  • legal standards

Question

Does the HOA have to prove they physically saw a violation?

Short Answer

Yes, but testimony regarding routine inspections is sufficient proof.

Detailed Answer

The homeowner alleged the HOA assessed violations that were not observed. However, the ALJ accepted credible testimony from the Community Standards Administrator that the violations were observed during routine inspections as sufficient proof.

Alj Quote

The credible evidence of record established that Petitioner’s landscape violations were observed during routine inspections by the Community Standards Administrator.

Legal Basis

A.R.S. § 33-1803

Topic Tags

  • violations
  • inspections
  • evidence

Question

Can I sue the HOA for refusing Alternative Dispute Resolution (ADR) if I didn't try to arbitrate?

Short Answer

No. If you skip the arbitration process required by the CC&Rs, you cannot claim the HOA refused ADR.

Detailed Answer

The homeowner claimed the HOA refused ADR procedures. However, the ALJ found that because the homeowner filed a petition with the Department instead of submitting the dispute to binding arbitration as required by the CC&Rs, the claim was invalid.

Alj Quote

Petitioner did not submit the dispute to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, choosing instead to file a Petition with the Department.

Legal Basis

CC&R Section 12.4(a)

Topic Tags

  • ADR
  • arbitration
  • dispute resolution

Case

Docket No
21F-H2121042-REL
Case Title
Aaron J. Gragg v. Anthem Parkside at Merrill Ranch Community Association, Inc.
Decision Date
2021-11-01
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Aaron J. Gragg (petitioner)
    Appeared on his own behalf

Respondent Side

  • Curtis Ekmark (HOA attorney)
    CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
    Represented Respondent
  • Michelle Haney (community manager)
    Appeared as witness for Respondent

Neutral Parties

  • Sondra J. Vanella (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal

Jeffrey D Points v. Olive 66 Condominium Association

Posted on by

Case Summary

Case ID 21F-H2121059-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-08
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1258
A.R.S. § 33-1248

Outcome Summary

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

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

Key Issues & Findings

Access to Association Records

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

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

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Open Board Meetings

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

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

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

21F-H2121059-REL Decision – 909631.pdf

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

21F-H2121059-REL Decision – 909633.pdf

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Inspection Rights

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Invoices
  • Timeliness

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1248(A)(4)

Topic Tags

  • Open Meetings
  • Executive Session
  • Vendors

Question

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

Short Answer

Not necessarily. The ALJ has discretion regarding civil penalties.

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Discretion

Topic Tags

  • Penalties
  • Enforcement

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Burden of Proof

Question

Can I get my filing fee reimbursed if I win?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Order

Topic Tags

  • Remedies
  • Fees

Question

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

Short Answer

You must provide proof. Mere assertion is not enough.

Detailed Answer

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

Alj Quote

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

Legal Basis

Evidence

Topic Tags

  • Evidence
  • Fraud Allegations

Question

Do Open Meeting laws apply to Condominium Associations?

Short Answer

Yes, under A.R.S. § 33-1248.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • Jurisdiction
  • Condos vs HOAs

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Inspection Rights

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1258

Topic Tags

  • Records Request
  • Invoices
  • Timeliness

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1248(A)(4)

Topic Tags

  • Open Meetings
  • Executive Session
  • Vendors

Question

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

Short Answer

Not necessarily. The ALJ has discretion regarding civil penalties.

Detailed Answer

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

Alj Quote

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

Legal Basis

Administrative Discretion

Topic Tags

  • Penalties
  • Enforcement

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Burden of Proof

Question

Can I get my filing fee reimbursed if I win?

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Order

Topic Tags

  • Remedies
  • Fees

Question

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

Short Answer

You must provide proof. Mere assertion is not enough.

Detailed Answer

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

Alj Quote

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

Legal Basis

Evidence

Topic Tags

  • Evidence
  • Fraud Allegations

Question

Do Open Meeting laws apply to Condominium Associations?

Short Answer

Yes, under A.R.S. § 33-1248.

Detailed Answer

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

Alj Quote

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

Legal Basis

A.R.S. § 33-1248

Topic Tags

  • Jurisdiction
  • Condos vs HOAs

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Rex E. Duffett vs. Suntech Patio Homes Homeowners Association (ROOT)

Posted on by

Case Summary

Case ID 18F-H1818025-REL / 18F-H1818027-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-24
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rex E. Duffett Counsel —
Respondent Suntech Patio Homes Homeowners Association Counsel Nathan Tennyson

Alleged Violations

CC&Rs
A.R.S. § 33-1805(A)

Outcome Summary

Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.

Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).

Key Issues & Findings

Failure to repair and maintain exterior walls

Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.

Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs
  • 5
  • 17

Failure to provide requested association records

Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.

Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805(A)
  • 19
  • 20
  • 21
  • 22

Analytics Highlights

Topics: HOA, Document Request, Records Disclosure, Maintenance, CC&Rs, Filing Fee Refund
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • A.R.S. § 33-1805(A)
  • CC&Rs

Audio Overview

Decision Documents

18F-H1818025-REL Decision – 630610.pdf

Uploaded 2025-10-08T07:04:34 (114.0 KB)





Briefing Doc – 18F-H1818025-REL


Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.

The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.

The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.

As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.

——————————————————————————–

Case Overview

Case Numbers

18F-H1818025-REL and 18F-H1818027-REL (Consolidated)

Petitioner

Rex E. Duffett

Respondent

Suntech Patio Homes Homeowners Association

Hearing Date

April 4, 2018

Decision Date

April 24, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:

1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.

2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.

Petition 1: Failure to Repair Exterior Walls (Denied)

Petitioner’s Allegations and Evidence

• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”

• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”

• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.

• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.

• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.

Respondent’s Position and Evidence

• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.

• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”

• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.

Conclusion of Law and Ruling

• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.

• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”

• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.

Petition 2: Failure to Provide Association Records (Upheld)

Petitioner’s Allegations and Evidence

• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.

• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:

◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.

◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.

◦ A copy of the notice for the last association rate increase.

Respondent’s Position and Evidence

• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.

• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”

• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”

Conclusion of Law and Ruling

• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.

• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”

• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.

Final Order and Implications

The Administrative Law Judge issued the following orders based on the conclusions of law:

Case Number

Subject

Ruling

18F-H1818025-REL

Exterior Wall Repairs

Petition Denied

18F-H1818027-REL

Document Request

Petitioner Deemed Prevailing Party

Directives to the Respondent (Suntech Patio Homes HOA):

1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.

2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.

This order is considered binding on the parties unless a rehearing is granted.


Rex E. Duffett vs. Suntech Patio Homes Homeowners Association (ROOT)

Posted on by

Case Summary

Case ID 18F-H1818025-REL / 18F-H1818027-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-24
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rex E. Duffett Counsel —
Respondent Suntech Patio Homes Homeowners Association Counsel Nathan Tennyson

Alleged Violations

CC&Rs
A.R.S. § 33-1805(A)

Outcome Summary

Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.

Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).

Key Issues & Findings

Failure to repair and maintain exterior walls

Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.

Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs
  • 5
  • 17

Failure to provide requested association records

Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.

Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805(A)
  • 19
  • 20
  • 21
  • 22

Analytics Highlights

Topics: HOA, Document Request, Records Disclosure, Maintenance, CC&Rs, Filing Fee Refund
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • A.R.S. § 33-1805(A)
  • CC&Rs

Video Overview

Audio Overview

Decision Documents

18F-H1818025-REL Decision – 630610.pdf

Uploaded 2025-10-09T03:32:28 (114.0 KB)





Briefing Doc – 18F-H1818025-REL


Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.

The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.

The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.

As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.

——————————————————————————–

Case Overview

Case Numbers

18F-H1818025-REL and 18F-H1818027-REL (Consolidated)

Petitioner

Rex E. Duffett

Respondent

Suntech Patio Homes Homeowners Association

Hearing Date

April 4, 2018

Decision Date

April 24, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:

1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.

2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.

Petition 1: Failure to Repair Exterior Walls (Denied)

Petitioner’s Allegations and Evidence

• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”

• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”

• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.

• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.

• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.

Respondent’s Position and Evidence

• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.

• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”

• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.

Conclusion of Law and Ruling

• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.

• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”

• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.

Petition 2: Failure to Provide Association Records (Upheld)

Petitioner’s Allegations and Evidence

• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.

• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:

◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.

◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.

◦ A copy of the notice for the last association rate increase.

Respondent’s Position and Evidence

• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.

• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”

• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”

Conclusion of Law and Ruling

• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.

• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”

• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.

Final Order and Implications

The Administrative Law Judge issued the following orders based on the conclusions of law:

Case Number

Subject

Ruling

18F-H1818025-REL

Exterior Wall Repairs

Petition Denied

18F-H1818027-REL

Document Request

Petitioner Deemed Prevailing Party

Directives to the Respondent (Suntech Patio Homes HOA):

1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.

2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.

This order is considered binding on the parties unless a rehearing is granted.






Study Guide – 18F-H1818025-REL


Study Guide: Duffett v. Suntech Patio Homes HOA

This guide provides a comprehensive review of the Administrative Law Judge Decision in the consolidated cases of Rex E. Duffett v. Suntech Patio Homes Homeowners Association, Case Numbers 18F-H1818025-REL and 18F-H1818027-REL. The decision, issued by the Arizona Office of Administrative Hearings, addresses two separate petitions filed by a homeowner against his Homeowners Association (HOA), one concerning property maintenance and the other concerning access to association records.

——————————————————————————–

Quiz: Short-Answer Questions

Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case decision.

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

2. What were the two distinct allegations made by the Petitioner in the petitions that were consolidated for this hearing?

3. According to the community’s governing documents (CC&Rs), what specific responsibility did the HOA have regarding the exterior of residential units?

4. On what grounds did the Administrative Law Judge rule against the Petitioner in his claim for wall repairs (Case No. 18F-H1818025-REL)?

5. What specific Arizona statute did the Petitioner claim the HOA violated in his second petition regarding access to records (Case No. 18F-H1818027-REL)?

6. Describe the roles and performance of the two management companies, The Management Trust and Pride Community Management, as detailed in the hearing evidence.

7. What was the final outcome of the petition concerning the HOA’s failure to provide documents, and who was named the prevailing party?

8. What specific types of documents did the Petitioner request from the HOA in his fax dated December 22, 2017?

9. What was the legal standard of proof the Petitioner was required to meet, and for which petition did he successfully meet it?

10. What financial penalty was imposed upon the Respondent as part of the final Order?

——————————————————————————–

Answer Key

1. The Petitioner was Rex E. Duffett, a homeowner who filed the petitions. The Respondent was the Suntech Patio Homes Homeowners Association, the entity Mr. Duffett alleged had violated community rules and state law.

2. The first petition alleged that the HOA violated the CC&Rs by failing to respond to repeated requests for repairs to the exterior walls of his unit. The second petition alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested association documents.

3. A March 1993 amendment to the CC&Rs states that the Suntech Patio Homeowners Association “shall be responsible for the painting and maintenance of the… Exterior walls of all units.”

4. The judge ruled against the Petitioner because he failed to establish his claim by a preponderance of the evidence. The black and white photographs submitted did not clearly show the alleged crack’s location or severity, so the judge could not conclude that a repair was immediately necessary.

5. The Petitioner claimed the HOA violated A.R.S. § 33-1805(A). This statute requires an association to make records reasonably available for examination and to provide copies of requested records within ten business days.

6. The Management Trust was the HOA’s management company when the incidents occurred and failed to properly respond to the Petitioner’s requests. Pride Community Management took over on February 1, 2018, and testified that the transition was difficult due to the sparse documentation initially provided by The Management Trust.

7. The judge ruled in favor of the Petitioner, deeming him the prevailing party in Case Number 18F-H1818027-REL. The judge ordered the HOA to comply with the applicable statute in the future.

8. The Petitioner requested copies of meeting notices and minutes for meetings where rules and regulations were discussed and where the last HOA dues increase was discussed. He also requested a copy of the notice of the last rate increase and any associated signed written consents.

9. The legal standard was “preponderance of the evidence,” defined as evidence with the most convincing force. The Petitioner failed to meet this standard for the wall repair petition but successfully met it for the document request petition.

10. The Respondent (HOA) was ordered to pay the Petitioner his filing fee of $500.00. The payment was to be made directly to the Petitioner within thirty days of the Order.

——————————————————————————–

Suggested Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a response using only the information and evidence presented in the provided decision.

1. Analyze the concept of “preponderance of the evidence” as it is defined and applied in this case. How did the quality of evidence submitted by the Petitioner lead to two different outcomes for his two petitions?

2. Discuss the role and responsibilities of a homeowners association’s management company, using the actions of The Management Trust and the subsequent challenges faced by Pride Community Management as primary examples. How did the transition between these two companies impact the case?

3. Evaluate the Respondent’s arguments and actions in both petitions. In the wall repair case, what was their stated plan, and why was it ultimately not considered by the judge? In the document request case, what was their defense, and why did it fail?

4. Based on the text of A.R.S. § 33-1805(A), explain the specific obligations of an HOA regarding member requests for records. Detail how the Suntech Patio Homes HOA, through its management, failed to meet these obligations, leading to the ruling against them.

5. Examine the communication breakdown between the Petitioner and the Respondent. Citing specific examples from the “Findings of Fact” and “Hearing Evidence” sections, explain how miscommunication and lack of timely response exacerbated the conflict.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, weighs evidence, and issues a legally binding decision. In this case, the ALJ was Tammy L. Eigenheer.

A.R.S. § 33-1805(A)

An Arizona Revised Statute that legally requires homeowners associations to make financial and other records available for member examination and to provide copies upon request within ten business days.

A.R.S. § 32-2199 et seq.

The section of the Arizona Revised Statutes that grants jurisdiction to the Arizona Department of Real Estate to hear disputes between homeowners and their associations.

Conditions, Covenants and Restrictions (CC&Rs)

The governing legal documents that establish the rules, obligations, and restrictions for a planned community and its homeowners association.

Consolidated for Hearing

A procedural step where two or more separate legal cases involving the same parties are combined into a single hearing for efficiency.

Department

Within the context of this case, refers to the Arizona Department of Real Estate, the state agency where the Petitioner initially filed his petitions.

The final, legally binding ruling issued by the Administrative Law Judge at the conclusion of the hearing.

Petitioner

The party who initiates a legal action by filing a petition. In this case, homeowner Rex E. Duffett.

Preponderance of the Evidence

The standard of proof required in this proceeding. It is met when the evidence presented has “the most convincing force” and is more likely true than not.

Prevailing Party

The party who is found to have won the legal dispute. The Petitioner was deemed the prevailing party in the document request case.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Suntech Patio Homes Homeowners Association.






Blog Post – 18F-H1818025-REL


A Homeowner Sued His HOA Over a Cracked Wall. He Lost Because of Bad Photocopies.

Introduction: The David vs. Goliath Battle Against Your HOA

For many homeowners, a dispute with their Homeowners Association (HOA) can feel like an uphill battle. It’s a common story of frustration, complex rules, and feeling unheard. The legal case of Rex E. Duffett versus the Suntech Patio Homes HOA is a perfect example, but with a twist. This isn’t just a story about winning or losing; it’s a fascinating cautionary tale filled with surprising lessons for any homeowner navigating a conflict with their association. This breakdown of the real-life administrative court decision reveals the unexpected details that can make or break a case.

——————————————————————————–

1. Takeaway #1: The Quality of Your Proof Matters More Than the Truth

The dispute began when Rex Duffett filed a petition alleging his HOA had failed to repair a crack in his exterior wall that he claimed was causing a water leak. According to the association’s own CC&Rs, maintaining exterior walls was the HOA’s responsibility. To document the problem, he diligently sent faxes and certified mail to the management company, including photographs of the damage.

Despite his efforts, the Administrative Law Judge denied his petition for repairs.

The reason was as surprising as it was simple: the evidence he submitted was not clear enough. The black and white copies of the photographs he provided at the hearing “did not clearly show any damage.” The judge’s finding was blunt and highlights a critical point for any legal dispute:

The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.

The lesson here is critical. In a legal dispute, having proof is not enough; the proof must be clear, convincing, and well-presented. Mr. Duffett’s primary case failed not because he was necessarily wrong, but because his evidence failed to persuade the judge. In an administrative hearing, a handful of high-resolution color photographs, or even a short video, would have provided irrefutable evidence and could have changed the entire outcome of his primary petition.

2. Takeaway #2: Your HOA is on the Hook for Its Management Company’s Failures

Mr. Duffett also filed a second petition against the HOA for failing to provide records he requested, such as meeting minutes. Under Arizona law (A.R.S. § 33-1805(A)), an association must fulfill such a request within ten business days. The HOA failed to do so.

The root of the problem was the HOA’s previous management company, “The Management Trust.” This company not only failed to respond to the homeowner’s request but also failed to notify the new management company about it. The relationship between the HOA and this vendor was so poor that the HOA had previously tried to terminate the contract, but the management company “refused to acknowledge the termination and held Respondent to the full two year contract.” The transition was chaotic; the old company initially provided only one box of information before later discovering “seven or eight more boxes” in storage.

Even though the management company was clearly at fault, the Judge ruled that the HOA violated the law. This provides a powerful insight for both boards and homeowners: an HOA cannot blame its vendors. Legally, the association is the responsible party. Hiring an incompetent or unresponsive management company creates significant legal and financial liability for the association and, by extension, every homeowner. This is not an abstract risk; in this case, the management company’s failure to forward a simple request directly led to a legal violation that cost the association—and thus, its members—the $500 filing fee ordered by the judge.

3. Takeaway #3: A “Win” Can Be More Complicated Than It Looks

When you look at the final outcome, Mr. Duffett’s case presents a nuanced picture of what a “win” really means in an HOA dispute. The judge issued a split decision:

• Petition for Repairs: Denied. The homeowner lost.

• Petition for Documents: The homeowner was deemed the “prevailing party.” He won.

As the prevailing party in the second petition, the homeowner received a clear victory. The judge ordered the HOA to comply with the document access law in the future and, crucially, to pay the homeowner back his $500 filing fee.

This highlights a common reality in legal disputes: a homeowner can secure a clear procedural victory (enforcing the right to documents and recovering fees) while simultaneously failing to achieve their core substantive goal (getting the wall repaired). The outcome shows that legal victories can be partial and may not address the real-world problem that initiated the dispute in the first place.

4. Takeaway #4: Vague Requests and Messy Records Create Chaos

This case is a masterclass in how poor communication from both sides can create a perfect storm of dysfunction.

First, the homeowner’s request for documents was “somewhat vague.” The new management company testified it was “unclear because rules and regulations are discussed in some form at virtually every meeting.” While the HOA still violated the law by failing to respond at all, this highlights a crucial lesson for homeowners: be as specific and clear as possible in all written communication to avoid ambiguity.

This vague request then ran headlong into the second problem: the HOA’s institutional chaos. The new Community Manager testified that the only relevant document they possessed was the minutes from a single meeting, and that “seven or eight more boxes” of records were missing after a disastrous transition between management companies. The homeowner’s ambiguous request met an organization that likely couldn’t have responded effectively even if it wanted to.

For both sides, meticulous documentation is a shield. For homeowners, a clear, specific, and undeniable paper trail strengthens their position. For HOA boards, organized records are essential for smooth operations, seamless transitions between management companies, and, most importantly, avoiding legal liability.

——————————————————————————–

Conclusion: The Devil is in the Details

The case of Duffett v. Suntech Patio Homes HOA is a powerful reminder that in legal disputes, the outcome often hinges on the small stuff. Small details—the quality of a photocopy, the precise wording of a request, the competence of a vendor, the location of a box of files—can have massive consequences. They can mean the difference between winning and losing, between getting a problem solved and walking away with only a partial victory.

This case shows how easily things can go wrong. The next time you’re in a dispute, what’s the one small detail you might be overlooking that could change everything?


Case Participants

Petitioner Side

  • Rex E. Duffett (petitioner)

Respondent Side

  • Nathan Tennyson (attorney)
    BROWN/OLCOTT, PLLC
  • Rebecca Stowers (property manager)
    Pride Community Management
    Community Manager
  • Frank Peake (property manager)
    Pride Community Management
    Owner of Pride
  • Shawn Mason (property manager)
    The Management Trust
    Former management company staff

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
  • ncano (ADRE staff)
    Arizona Department of Real Estate
  • F. Del Sol (staff)
    Signed transmission document