Tag Archives: Easement

Susan E Abbass v. 10000 North Central Homeowners Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 20F-H2020057-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-08-17
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susan E Abbass Counsel —
Respondent 10000 North Central Homeowners Association Counsel Blake Johnson, Esq.

Alleged Violations

CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4

Outcome Summary

The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.

Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.

Key Issues & Findings

Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.

Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.

Orders: Petitioner's petition in this matter was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • 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. § 41-1092
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Analytics Highlights

Topics: HOA, CC&R, Easement, Maintenance, Drainage, Property Access, Burden of Proof
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. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Video Overview

Audio Overview

Decision Documents

20F-H2020057-REL-RHG Decision – 839845.pdf

Uploaded 2026-01-23T17:33:10 (108.6 KB)

20F-H2020057-REL-RHG Decision – ../20F-H2020057-REL/815490.pdf

Uploaded 2026-01-23T17:33:15 (135.6 KB)





Briefing Doc – 20F-H2020057-REL-RHG


Briefing Document: Abbass v. 10000 North Central Homeowners Association

Executive Summary

This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the Association to exercise its authority under the community’s Covenants, Conditions, and Restrictions (CC&Rs) to enter a neighboring property to inspect the source of a persistent water leak affecting the Petitioner’s home.

The ALJ ultimately denied the Petitioner’s petition and subsequent appeal. The central conclusion across both hearings was that while the Association’s CC&Rs grant it the right to enter a member’s property under specific circumstances (such as for inspections or emergencies), they do not impose an obligation or duty to do so. The Petitioner failed to meet the burden of proof required to demonstrate that the Association violated any provision of the CC&Rs. The ALJ characterized the situation as a “neighbor versus neighbor dispute” and determined that the Association acted within its business judgment by requiring more definitive proof of the leak’s source before authorizing entry, citing concerns over potential liability.

Case Overview

This matter involves a single-issue petition filed by a homeowner against her Homeowners Association (HOA) with the Arizona Department of Real Estate. The case was referred to the Office of Administrative Hearings for adjudication.

Case Details

Information

Case Number

20F-H2020057-REL

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association

Administrative Law Judge

Adam D. Stone

Initial Hearing Date

July 28, 2020

Rehearing Date

November 24, 2020

Core Allegation

The Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) & 4 by failing to grant access to a neighbor’s property to investigate a water leak.

Chronology of Key Events

1. November 14, 2019: Ronald Pick, residing with the Petitioner, discovers the home office carpet is “completely soaked with water.” He determines the drainage issue originates from the neighboring property.

2. November 2019: After the neighbor refuses to cooperate, the Petitioner contacts Robert Kersten, the Association’s Community Manager. Kersten sends a violation notice to the neighbor.

3. January 2020: The Association’s Board of Directors informs Kersten that they will handle the matter directly, and he ceases interaction with the Petitioner.

4. May 5, 2020: The Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500.00 fee.

5. July 28, 2020: The initial evidentiary hearing is held before an Administrative Law Judge.

6. August 17, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding she failed to meet her burden of proof.

7. August 31, 2020: The Petitioner files a request for a rehearing.

8. October 14, 2020: The Commissioner of the Arizona Department of Real Estate grants the request for a rehearing.

9. November 24, 2020: The rehearing is conducted.

10. December 1, 2020: The ALJ issues a final decision, again finding for the Respondent and dismissing the Petitioner’s appeal.

Summary of Arguments

Petitioner’s Position (Susan E. Abbass)

• The Problem: A water leak originating from a neighboring property caused damage, with recurring water intrusion during rainfall.

• Attempted Resolution: The Petitioner and Mr. Pick attempted to work with the neighbor, who was uncooperative on the advice of her insurance company. They then sought the Association’s help to gain access for inspection.

• Core Argument: The Petitioner argued that the water leak constituted an “emergency situation” and that the Association had an obligation under the CC&Rs to grant access to the neighbor’s property for inspection.

• Evidence Provided: The Petitioner provided the Association with all available evidence, including a report from the City of Phoenix.

• Financial Responsibility: The Petitioner offered to pay for a geotechnical engineer and any associated costs for the inspection.

• Legal Basis: The Petitioner claimed the Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

Respondent’s Position (10000 North Central HOA)

• Actions Taken: The Association, through its manager Robert Kersten, acknowledged the complaint and sent a violation notice to the neighbor regarding improper vegetation. They also contacted the neighbor to request access.

• Core Argument: The Association contended that the CC&Rs do not allow its manager to authorize entry “whenever they feel like it.” Entry requires “reasonable justification” and “some type of proof,” which the Board determined had not been provided by the Petitioner.

• Business Judgment and Liability: Respondent’s counsel argued the Board was exercising its business judgment to avoid potential liability that could arise from granting third-party access to a member’s property without sufficient cause.

• Neighbor’s Actions: The Association stated that, to its knowledge, the neighbor’s insurance company inspected the water flow and determined the neighbor was not at fault.

• Evidence Provided: At the rehearing, the Association submitted photographs (Exhibits K, L, M) purportedly showing a fixed pipe and drainage flowing away from the Petitioner’s property.

Analysis of CC&R Provisions

The dispute centered on the interpretation of specific articles within the Association’s Covenants, Conditions, and Restrictions.

Article

Provision Summary

XII, Section 6

Easement in Favor of Association: Grants the Association and its agents the right to enter Lots for specific purposes, including: (a) inspection of owner maintenance, (c) correction of emergency conditions, and (d) exercising its powers and duties.

XIII, Section 1(d)

Drainage Flow: States that “nothing shall be erected, planted or maintained to impede or interrupt said or normal drainage flow” in patio or yard areas that have been graded for drainage.

XIII, Section 4

Owner Maintenance and Association’s Right to Enter: Requires owners to keep their Lot in good order and repair. If an owner fails, the Association “shall have the right to enter upon said Lot or Patio to correct drainage and to repair, maintain and restore the Lot…” after providing notice to the owner and receiving approval from the Board.

Administrative Law Judge’s Findings and Rulings

The ALJ’s conclusions were consistent across both the initial decision and the rehearing. The Petitioner bore the burden of proving by a “preponderance of the evidence” that the Association violated the CC&Rs.

Key Findings from the Initial Decision (August 17, 2020)

• Right vs. Obligation: The judge’s central finding was that the Petitioner was “incorrect that the Respondent has an ‘obligation’ to enter the property.” The CC&Rs grant the Association a right to enter but do not impose a duty or obligation to do so.

• Lack of “True Emergency”: While Mr. Pick testified about water damage during rain, the judge noted a lack of testimony on the extent of the damage. The fact that over eight months had passed since the initial leak discovery indicated there was “no true emergency situation.”

• Stalemate and Business Judgment: The judge acknowledged the “stalemate” where the Petitioner could not obtain more proof without access, and the Association would not grant access without more proof. The Association’s decision was framed as an exercise of business judgment based on its determination that the submitted proof did not meet its standard for entry.

• Nature of the Dispute: The matter was characterized as a “neighbor versus neighbor dispute,” implying the Association was not the proper party to compel action.

• Conclusion: The Petitioner failed to meet her burden of proof.

Key Findings from the Rehearing Decision (December 1, 2020)

• No New Evidence: The Petitioner “failed to provide new evidence or witness testimony” that would alter the original conclusion.

• Petitioner’s Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

• Respondent’s Compliance: The ALJ concluded that the Association “acted in compliance with the CC&Rs.” It was “receptive to the information provided by Petitioner and requested the neighboring property owners cooperation.” The lack of the neighbor’s full cooperation did not constitute a violation by the Association.

• Jurisdictional Limits: The judge stated that under statute A.R.S. § 32-2199.02(A), an ALJ can only order a party to abide by the community documents. The judge “cannot force the neighbor or the Respondent to grant access to the property.”

• Incorrect Venue: The decision noted that “it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”

Final Disposition

IT IS ORDERED that Petitioner’s petition in this matter be denied. The final decision from the rehearing on December 1, 2020, named the Respondent as the prevailing party and dismissed the Petitioner’s appeal. This order is binding on the parties, with any further appeal requiring judicial review in the superior court within thirty-five days of the order being served.






Study Guide – 20F-H2020057-REL-RHG


Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.

——————————————————————————–

Short-Answer Quiz

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

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

2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?

3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.

4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?

5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?

6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?

7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?

8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.

9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?

10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?

——————————————————————————–

Answer Key

1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.

2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.

3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.

4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.

5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.

6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.

7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.

9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.

2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”

3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?

4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.

5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.

Arizona Department of Real Estate

The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.

Burden of Proof

The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.

Easement

A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.

Jurisdiction

The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.

Petitioner

The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Prevailing Party

The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.

Rehearing

A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.






Blog Post – 20F-H2020057-REL-RHG


Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.

——————————————————————————–

Short-Answer Quiz

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

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

2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?

3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.

4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?

5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?

6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?

7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?

8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.

9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?

10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?

——————————————————————————–

Answer Key

1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.

2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.

3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.

4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.

5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.

6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.

7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.

9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.

2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”

3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?

4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.

5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.

Arizona Department of Real Estate

The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.

Burden of Proof

The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.

Easement

A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.

Jurisdiction

The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.

Petitioner

The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Prevailing Party

The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.

Rehearing

A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.


Case Participants

Petitioner Side

  • Susan E Abbass (petitioner)
  • Ronald Pick (witness)
    witness for Petitioner

Respondent Side

  • Blake Johnson (HOA attorney)
    Brown Olcott, PLLC
  • Robert Kersten (property manager)
    witness for Respondent
  • Kelly Oetinger (HOA attorney)
    Brown Olcott, PLLC

Neutral Parties

  • Adam D. Stone (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (staff)
    electronic transmission staff

Susan E Abbass v. 10000 North Central Homeowners Assocciation

Posted on by

Case Summary

Case ID 20F-H2020057-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-08-17
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susan E Abbass Counsel —
Respondent 10000 North Central Homeowners Association Counsel Blake Johnson, Esq.

Alleged Violations

CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4

Outcome Summary

The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.

Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.

Key Issues & Findings

Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.

Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.

Orders: Petitioner's petition in this matter was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • 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. § 41-1092
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Analytics Highlights

Topics: HOA, CC&R, Easement, Maintenance, Drainage, Property Access, Burden of Proof
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. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Video Overview

Audio Overview

Decision Documents

20F-H2020057-REL Decision – 839845.pdf

Uploaded 2026-01-23T17:32:59 (108.6 KB)

20F-H2020057-REL Decision – ../20F-H2020057-REL/815490.pdf

Uploaded 2026-01-23T17:33:02 (135.6 KB)





Briefing Doc – 20F-H2020057-REL


Briefing Document: Abbass vs. 10000 North Central Homeowners Association

Executive Summary

This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.

The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.

Case Overview

Case Name

Susan E Abbass vs. 10000 North Central Homeowners Association

Case Number

20F-H2020057-REL-RHG

Jurisdiction

In the Office of Administrative Hearings (Arizona)

Administrative Law Judge

Adam D. Stone

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)

Hearing Date

November 24, 2020 (Rehearing)

Decision Date

December 1, 2020

Core Dispute and Allegations

Petitioner’s Central Claim

The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.

• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.

Petitioner’s Position and Evidence

• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”

• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.

• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.

• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

Respondent’s Defense and Actions

Respondent’s Position

The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.

• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.

• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”

Actions Taken by the HOA

Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:

• It reached out to the neighboring property owner to request access.

• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.

• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.

• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.

Procedural History and Rehearing

1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.

2. Initial Hearing (July 28, 2020): The first hearing was conducted.

3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.

4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”

5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.

6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.

Administrative Law Judge’s Findings and Conclusions

Burden of Proof

The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”

Key Judicial Determinations

• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.

• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”

• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”

• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”

Final Order and Implications

• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”

• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.






Study Guide – 20F-H2020057-REL


Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 20F-H2020057-REL-RHG, involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It includes a short-answer quiz with an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.

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Short Answer Quiz

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

1. Who were the primary parties in this case, and what was the central dispute?

2. What specific articles of the community documents did the Petitioner allege the Respondent had violated?

3. What was the outcome of the initial administrative hearing held on July 28, 2020?

4. On what legal grounds did the Petitioner successfully request a rehearing of the case?

5. What was the Respondent’s main argument for not forcing an inspection of the neighboring property?

6. What key point regarding the Respondent’s authority did the Petitioner concede during the rehearing?

7. According to the decision, who bears the burden of proof, and what is the evidentiary standard required to meet it?

8. What evidence did the Respondent introduce during the rehearing on November 24, 2020?

9. What was the final ruling of the Administrative Law Judge, and what did the order state?

10. What specific limitation on the Administrative Law Judge’s power is cited in the Conclusions of Law?

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Answer Key

1. The primary parties were the Petitioner, Susan E. Abbass, and the Respondent, 10000 North Central Homeowners Association. The central dispute was the Petitioner’s claim that the Respondent failed to fulfill its duty by not allowing an inspection on a neighboring property to find the source of a water leak affecting the Petitioner’s home.

2. The Petitioner alleged that the Respondent had violated Article XII, Section 6 and Article XIII, Sections 1(d) and 4 of the Covenants, Conditions, and Restrictions (CCR’s).

3. Following the July 28, 2020 hearing, the Administrative Law Judge issued a decision on August 17, 2020, concluding that the Petitioner had failed to meet her burden of proof. The judge found that the Respondent only had the right to enter the neighboring property, not an obligation to do so.

4. The Petitioner’s request for rehearing was granted based on her claims that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

5. The Respondent argued that the Petitioner had not provided sufficient proof of the neighbor’s fault to justify forcing access. The Respondent was also concerned that overstepping its authority could expose the association to other legal actions.

6. During the rehearing, the Petitioner agreed with the Respondent’s position that the association does not have an obligation to enter the neighboring property, only the right to do so.

7. The Petitioner bears the burden of proof. The evidentiary standard is “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not.

8. At the rehearing, the Respondent introduced Exhibits K, L, and M. These were photographs that purportedly showed where a pipe was fixed and how drainage moves away from the Petitioner’s property.

9. The final ruling concluded that the Respondent had not violated the CCR’s and was the prevailing party. The order dismissed the Petitioner’s appeal.

10. The decision cites A.R.S. § 32-2199.02(A), which states that an Administrative Law Judge may only order a party to abide by the statutes, community documents, or contract provisions at issue. The judge cannot force the Respondent or the neighbor to grant access to the property.

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Suggested Essay Questions

Instructions: The following questions are designed for a more in-depth, essay-format response. Answers are not provided.

1. Analyze the legal distinction between a “right” and an “obligation” as it pertains to the Homeowners Association’s authority under the CCR’s in this case. How was this distinction central to the Administrative Law Judge’s final decision?

2. Discuss the concept of “preponderance of the evidence” as defined in the legal decision. Detail the evidence and arguments presented by both the Petitioner and Respondent, and explain why the judge ultimately concluded that the Petitioner failed to meet this standard.

3. Trace the complete procedural history of this case, from the filing of the initial petition to the final order. Identify the key dates, actions taken by each party, and the rulings made at each stage of the administrative process.

4. Evaluate the actions taken by the Respondent (10000 North Central Homeowners Association) in response to the Petitioner’s complaint. Based on the Findings of Fact, did the association act reasonably and in compliance with the CCR’s?

5. Explain the jurisdiction and statutory limitations of the Office of Administrative Hearings in resolving disputes between homeowners and their associations, as outlined in the decision. What remedies were available to the Petitioner through this venue, and why was the specific relief she sought beyond the judge’s power to grant?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, considers evidence, and issues a legal decision. In this case, the ALJ was Adam D. Stone.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Arizona Department of Real Estate

The state agency authorized by statute to receive and decide petitions for hearings involving homeowners’ associations in Arizona.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.

An abbreviation for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or subdivision.

Office of Administrative Hearings

The government office where administrative law judges hear disputes concerning state agencies.

Order Granting Rehearing

A formal order issued by the Commissioner of the Arizona Department of Real Estate that approved the Petitioner’s request for a second hearing.

Petitioner

The party who initiates a legal action or files a petition. In this case, the Petitioner was Susan E. Abbass.

Planned Community

A real estate development that includes common property and is governed by a homeowners’ association.

Preponderance of the Evidence

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

Prevailing Party

The party who wins a legal case or dispute. In the final decision, the Respondent was named the prevailing party.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the 10000 North Central Homeowners Association.

Tribunal

A body established to settle certain types of disputes. In this context, it refers to the Office of Administrative Hearings where the case was heard.






Blog Post – 20F-H2020057-REL


Briefing Document: Abbass vs. 10000 North Central Homeowners Association

Executive Summary

This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.

The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.

Case Overview

Case Name

Susan E Abbass vs. 10000 North Central Homeowners Association

Case Number

20F-H2020057-REL-RHG

Jurisdiction

In the Office of Administrative Hearings (Arizona)

Administrative Law Judge

Adam D. Stone

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)

Hearing Date

November 24, 2020 (Rehearing)

Decision Date

December 1, 2020

Core Dispute and Allegations

Petitioner’s Central Claim

The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.

• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.

Petitioner’s Position and Evidence

• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”

• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.

• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.

• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

Respondent’s Defense and Actions

Respondent’s Position

The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.

• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.

• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”

Actions Taken by the HOA

Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:

• It reached out to the neighboring property owner to request access.

• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.

• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.

• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.

Procedural History and Rehearing

1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.

2. Initial Hearing (July 28, 2020): The first hearing was conducted.

3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.

4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”

5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.

6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.

Administrative Law Judge’s Findings and Conclusions

Burden of Proof

The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”

Key Judicial Determinations

• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.

• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”

• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”

• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”

Final Order and Implications

• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”

• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.


Case Participants

Petitioner Side

  • Susan E Abbass (petitioner)
  • Ronald Pick (witness)
    Witness for Petitioner

Respondent Side

  • Blake Johnson (attorney)
    Brown Olcott, PLLC
    Represented Respondent
  • Robert Kersten (property manager)
    Property manager, appeared as a witness for Respondent
  • Kelly Oetinger (attorney)
    Brown Olcott, PLLC

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
  • c. serrano (staff)
    Electronic transmission sender

Michael and Nancy Berent vs, Bell West Ranch Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1818047-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-09-11
Administrative Law Judge Tammy L. Eigenheer
Outcome total_loss
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael and Nancy Berent Counsel —
Respondent Bell West Ranch Homeowners Association Counsel Maria Kupillas

Alleged Violations

A.R.S. § 33-1803(B); CC&Rs Sections 8.02, 8.06, 6.02

Outcome Summary

The Petition was dismissed in its entirety because the Petitioners failed to establish by a preponderance of the evidence that the Bell West Ranch Homeowners Association violated the cited CC&Rs provisions (Sections 8.02, 8.06, 6.02) or A.R.S. § 33-1803(B).

Why this result: Petitioners failed to meet the burden of proof required to establish the alleged violations.

Key Issues & Findings

Alleged violations regarding failure to enforce city fire and municipal codes, failure to procure adequate insurance, and violations of specific CC&R provisions (8.02, 8.06, 6.02)

Petitioners alleged the HOA violated governing documents and statute by approving a neighbor's driveway extension which allegedly violated municipal codes and an easement, and by failing to maintain a properly constituted Architectural Committee. Petitioners failed to establish these violations by a preponderance of the evidence.

Orders: The Petition was dismissed in its entirety.

Filing fee: $2,000.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803(B)
  • CC&Rs Section 8.02
  • CC&Rs Section 8.06
  • CC&Rs Section 6.02

Analytics Highlights

Topics: HOA enforcement, CC&R violation, Architectural Committee, driveway extension, easement, municipal codes
Additional Citations:

  • A.R.S. § 33-1803(B)
  • A.R.S. § 41-2198.01
  • CC&Rs Section 8.02
  • CC&Rs Section 8.06
  • CC&Rs Section 6.02

Video Overview

Audio Overview

Decision Documents

18F-H1818047-REL Decision – 659285.pdf

Uploaded 2025-10-09T03:32:56 (142.7 KB)

18F-H1818047-REL Decision – 659287.pdf

Uploaded 2025-10-09T03:32:56 (193.9 KB)

18F-H1818047-REL Decision – 679550.pdf

Uploaded 2025-10-09T03:32:56 (133.6 KB)

18F-H1818047-REL Decision – 952813.pdf

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18F-H1818047-REL Decision – 952828.pdf

Uploaded 2025-10-09T03:32:56 (30.5 KB)





Briefing Doc – 18F-H1818047-REL


Administrative Hearing Briefing: Berent v. Bell West Ranch Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the administrative hearing decision in case number 18F-H1818047-REL, involving petitioners Michael and Nancy Berent and the respondent, Bell West Ranch Homeowners Association (HOA). The core of the dispute was the HOA’s 2015 approval of a driveway extension for the Berents’ neighbors, which the Berents alleged violated multiple HOA Covenants, Conditions, and Restrictions (CC&Rs) as well as Arizona state law.

On September 11, 2018, Administrative Law Judge (ALJ) Tammy L. Eigenheer issued a decision dismissing the Berents’ petition in its entirety. The judge concluded that the petitioners failed to meet their burden of proof—to establish their claims by a preponderance of the evidence—on all four of their central allegations. Specifically, the ALJ found no violation regarding the composition of the HOA’s Architectural Review Committee (ARC), the interpretation of CC&Rs concerning structures and easements, or the HOA’s discretionary authority to enforce its rules.

Notably, a subsequent “Minute Entry” filed on March 8, 2022, indicates that the Office of Administrative Hearings (OAH) had been receiving further documents from the petitioners years after the case was closed. The OAH clarified that it no longer had jurisdiction and would take no further action on the matter.

1. Case Overview

The dispute was adjudicated by the Arizona Office of Administrative Hearings after the petitioners filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate on April 26, 2018.

Case Detail

Information

Case Number

18F-H1818047-REL

Petitioners

Michael and Nancy Berent

Respondent

Bell West Ranch Homeowners Association

Office of Administrative Hearings (Phoenix, Arizona)

Tammy L. Eigenheer

Hearing Dates

August 15, 2018, and August 22, 2018

Decision Date

September 11, 2018

2. Central Allegations and Rulings

At the hearing, the petitioners’ claims were clarified into four distinct allegations of violation by the HOA. The ALJ ruled against the petitioners on every count, finding they failed to provide sufficient evidence.

2.1. Allegation 1: Violation of CC&R Section 6.02 (ARC Membership)

• Petitioner’s Claim: Ms. Berent argued that the Architectural Review Committee (ARC) was not properly composed of the required three members when it approved the neighbor’s driveway application. Her evidence consisted of Board of Directors meeting minutes from 2015 and 2016 that listed only a single individual (Ken Hawkins or Larry Bolton) as presenting the ARC report. She contended this proved the ARC had only one member at those times.

• Respondent’s Position: Regis Salazar of VISION Community Management testified that the ARC consisted of three members at all relevant times. She explained that the meeting minutes cited by the petitioner merely identified the individual presenting the committee’s report to the board, not the entire committee’s membership.

• ALJ’s Conclusion: No violation found. The petitioners failed to establish a violation. The respondent’s testimony provided a credible explanation for the format of the meeting minutes, which was the petitioners’ only evidence for this claim.

2.2. Allegation 2: Violation of CC&R Section 8.02 (Structures & Municipal Codes)

• Petitioner’s Claim: Ms. Berent testified that the ARC should not have approved the driveway application because it demonstrated a clear violation of City of Surprise municipal codes on its face, specifically asserting the 10-foot extension caused the driveway to exceed 50 percent of the front lot line. The CC&Rs require structures to comply with municipal regulations.

• Respondent’s Position: Ms. Salazar stated that the HOA places the responsibility on each homeowner to ensure their projects comply with all applicable municipal codes. The ARC does not independently verify compliance. The approval notice sent to the neighbor explicitly stated, “You also must follow all local building codes and setback requirements, if applicable.“

• ALJ’s Conclusion: No violation found. The petitioners failed to establish that the driveway qualified as a “structure” under the definition relevant to Section 8.02. Furthermore, the judge noted that even if it were considered a structure, the HOA did not have a duty or responsibility under this CC&R section to pre-emptively enforce municipal codes.

2.3. Allegation 3: Violation of CC&R Section 8.06 (Obstruction of Easements)

• Petitioner’s Claim: Ms. Berent testified that a fire hydrant located near the property line constituted a “public utility easement” and that the neighbor’s driveway extension was a structure placed upon it, interfering with its use in violation of the CC&Rs.

• Respondent’s Position: Ms. Salazar testified she was not aware of any public utility easement associated with the fire hydrant.

• ALJ’s Conclusion: No violation found. The petitioners failed on two points. First, they presented “no evidence to establish that the fire hydrant at issue constituted a public utility easement.” Second, even assuming it was an easement, they failed to prove the driveway obstructed it. This conclusion was decisively supported by Ms. Berent’s own testimony, in which she “acknowledged… that a residential fire occurred two houses away from her and the fire department had to use the fire hydrant… the fire hose was running across Neighbors’ driveway during that time.” This demonstrated the hydrant remained fully accessible and usable.

2.4. Allegation 4: Violation of A.R.S. § 33-1803(B) (Failure to Enforce)

• Petitioner’s Claim: Ms. Berent argued that “common sense” required the HOA to enforce its CC&Rs and penalize the neighbors for the violations, drawing a comparison to the HOA sending her notices for weeds in her yard.

• Respondent’s Position: The HOA argued that it chose not to pursue enforcement action against the neighbors because the City of Surprise, after issuing an initial Notice of Ordinance Violation, had itself “declined to pursue any further enforcement action.”

• ALJ’s Conclusion: No violation found. The judge pointed to the “plain language” of the statute, which states the board of directors may impose penalties, establishing this as a discretionary power, not a mandatory duty. Nothing in the statute required the HOA to take enforcement action. The HOA’s decision not to act, mirroring the city’s own lack of follow-up, was a valid exercise of its authority.

3. Key Chronology of Events

• July 7, 2015: The petitioners’ neighbors submit an “Application for Design Review” to install a 10-foot by 35-foot concrete driveway extension.

• July 15, 2015: The HOA’s Architectural Review Committee (ARC) approves the application.

• July 17, 2015: VISION Community Management sends an approval notice to the neighbors with conditions, including adherence to a 13-inch property line setback and all local building codes.

• August 2015: The neighbors begin construction. The petitioners email the HOA board to complain about the project, questioning city approval and raising concerns about a nearby fire hydrant.

• May 16, 2016: The City of Surprise issues a “Notice of Ordinance Violation” to the neighbors, stating a “driveway extension was added contrary to code requirements.”

• Post-May 2016: The City of Surprise takes no further enforcement action against the neighbors.

• April 26, 2018: The Berents file their HOA Dispute Petition.

• August 15 & 22, 2018: The administrative hearing is held.

• September 11, 2018: The ALJ issues the final decision, ordering that the petition be dismissed in its entirety.

• March 8, 2022: The ALJ issues a “Minute Entry – Document Reject,” noting that the OAH has no jurisdiction and will not consider further documents submitted by the petitioners.

4. Post-Decision Developments

On March 8, 2022, nearly three and a half years after the case was closed, ALJ Tammy L. Eigenheer issued a “Minute Entry – Document Reject.” This entry states:

“It is unclear why the Office of Administrative Hearings was sent these documents as the decision in this matter was issued on September 11, 2018, and the Office of Administrative Hearings has had no jurisdiction in this matter since that time.”

The entry advises the petitioners that no documents sent after the decision would be considered and that “no further response will be provided from the Office of Administrative Hearings” for any future filings.

5. Quoted Provisions and Statutes

The case revolved around the interpretation of the following sections of the Bell West Ranch Homeowners Association CC&Rs and Arizona Revised Statutes.

• CC&R Section 6.02 (Membership):

• CC&R Section 8.02 (Restrictions Apply to All Structures):

• CC&R Section 8.06 (No Obstruction of Easements):

• A.R.S. § 33-1803(B):


Case Participants

Petitioner Side

  • Michael Berent (petitioner)
    Appeared on their own behalf
  • Nancy Berent (petitioner)
    Appeared on their own behalf; testified at hearing

Respondent Side

  • Maria Kupillas (HOA attorney)
    Represented Bell West Ranch Homeowners Association
  • Regis Salazar (witness)
    VISION Community Management
    Testified for Respondent
  • Ken Hawkins (ARC member)
    Presented Architectural Review Committee report at Board meeting
  • Larry Bolton (ARC member)
    Listed in ARC meeting minutes as committee member/presenter
  • Kelsey Dressen (HOA attorney)
    Copied on 2022 Minute Entry
  • Kristin Roebuck (HOA attorney)
    Bethell Horne Slaton, PLLC
    Copied on 2022 Minute Entry
  • M Alvarez (administrative staff)
    Signed transmittal for Bell West Ranch Homeowners Association

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Judy Lowe (ADRE Commissioner)
    ADRE
  • Louis Dettorre (ADRE staff)
    ADRE
  • AHansen (ADRE staff)
    ADRE
  • djones (ADRE staff)
    ADRE
  • DGardner (ADRE staff)
    ADRE
  • ncano (ADRE staff)
    ADRE
  • tandert (ADRE staff)
    ADRE
  • vnunez (ADRE staff)
    ADRE

Other Participants

  • Lana Collins (City staff)
    City of Surprise
    Development Service Specialist who spoke to Neighbors

Michael and Nancy Berent vs, Bell West Ranch Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1818047-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-09-11
Administrative Law Judge Tammy L. Eigenheer
Outcome total_loss
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael and Nancy Berent Counsel —
Respondent Bell West Ranch Homeowners Association Counsel Maria Kupillas

Alleged Violations

A.R.S. § 33-1803(B); CC&Rs Sections 8.02, 8.06, 6.02

Outcome Summary

The Petition was dismissed in its entirety because the Petitioners failed to establish by a preponderance of the evidence that the Bell West Ranch Homeowners Association violated the cited CC&Rs provisions (Sections 8.02, 8.06, 6.02) or A.R.S. § 33-1803(B).

Why this result: Petitioners failed to meet the burden of proof required to establish the alleged violations.

Key Issues & Findings

Alleged violations regarding failure to enforce city fire and municipal codes, failure to procure adequate insurance, and violations of specific CC&R provisions (8.02, 8.06, 6.02)

Petitioners alleged the HOA violated governing documents and statute by approving a neighbor's driveway extension which allegedly violated municipal codes and an easement, and by failing to maintain a properly constituted Architectural Committee. Petitioners failed to establish these violations by a preponderance of the evidence.

Orders: The Petition was dismissed in its entirety.

Filing fee: $2,000.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803(B)
  • CC&Rs Section 8.02
  • CC&Rs Section 8.06
  • CC&Rs Section 6.02

Analytics Highlights

Topics: HOA enforcement, CC&R violation, Architectural Committee, driveway extension, easement, municipal codes
Additional Citations:

  • A.R.S. § 33-1803(B)
  • A.R.S. § 41-2198.01
  • CC&Rs Section 8.02
  • CC&Rs Section 8.06
  • CC&Rs Section 6.02

Video Overview

Audio Overview

Decision Documents

18F-H1818047-REL Decision – 659285.pdf

Uploaded 2026-01-23T17:24:27 (142.7 KB)

18F-H1818047-REL Decision – 659287.pdf

Uploaded 2026-01-23T17:24:32 (193.9 KB)

18F-H1818047-REL Decision – 679550.pdf

Uploaded 2026-01-23T17:24:35 (133.6 KB)

18F-H1818047-REL Decision – 952813.pdf

Uploaded 2026-01-23T17:24:39 (42.6 KB)

18F-H1818047-REL Decision – 952828.pdf

Uploaded 2026-01-23T17:24:41 (30.5 KB)





Briefing Doc – 18F-H1818047-REL


Administrative Hearing Briefing: Berent v. Bell West Ranch Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the administrative hearing decision in case number 18F-H1818047-REL, involving petitioners Michael and Nancy Berent and the respondent, Bell West Ranch Homeowners Association (HOA). The core of the dispute was the HOA’s 2015 approval of a driveway extension for the Berents’ neighbors, which the Berents alleged violated multiple HOA Covenants, Conditions, and Restrictions (CC&Rs) as well as Arizona state law.

On September 11, 2018, Administrative Law Judge (ALJ) Tammy L. Eigenheer issued a decision dismissing the Berents’ petition in its entirety. The judge concluded that the petitioners failed to meet their burden of proof—to establish their claims by a preponderance of the evidence—on all four of their central allegations. Specifically, the ALJ found no violation regarding the composition of the HOA’s Architectural Review Committee (ARC), the interpretation of CC&Rs concerning structures and easements, or the HOA’s discretionary authority to enforce its rules.

Notably, a subsequent “Minute Entry” filed on March 8, 2022, indicates that the Office of Administrative Hearings (OAH) had been receiving further documents from the petitioners years after the case was closed. The OAH clarified that it no longer had jurisdiction and would take no further action on the matter.

1. Case Overview

The dispute was adjudicated by the Arizona Office of Administrative Hearings after the petitioners filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate on April 26, 2018.

Case Detail

Information

Case Number

18F-H1818047-REL

Petitioners

Michael and Nancy Berent

Respondent

Bell West Ranch Homeowners Association

Office of Administrative Hearings (Phoenix, Arizona)

Tammy L. Eigenheer

Hearing Dates

August 15, 2018, and August 22, 2018

Decision Date

September 11, 2018

2. Central Allegations and Rulings

At the hearing, the petitioners’ claims were clarified into four distinct allegations of violation by the HOA. The ALJ ruled against the petitioners on every count, finding they failed to provide sufficient evidence.

2.1. Allegation 1: Violation of CC&R Section 6.02 (ARC Membership)

• Petitioner’s Claim: Ms. Berent argued that the Architectural Review Committee (ARC) was not properly composed of the required three members when it approved the neighbor’s driveway application. Her evidence consisted of Board of Directors meeting minutes from 2015 and 2016 that listed only a single individual (Ken Hawkins or Larry Bolton) as presenting the ARC report. She contended this proved the ARC had only one member at those times.

• Respondent’s Position: Regis Salazar of VISION Community Management testified that the ARC consisted of three members at all relevant times. She explained that the meeting minutes cited by the petitioner merely identified the individual presenting the committee’s report to the board, not the entire committee’s membership.

• ALJ’s Conclusion: No violation found. The petitioners failed to establish a violation. The respondent’s testimony provided a credible explanation for the format of the meeting minutes, which was the petitioners’ only evidence for this claim.

2.2. Allegation 2: Violation of CC&R Section 8.02 (Structures & Municipal Codes)

• Petitioner’s Claim: Ms. Berent testified that the ARC should not have approved the driveway application because it demonstrated a clear violation of City of Surprise municipal codes on its face, specifically asserting the 10-foot extension caused the driveway to exceed 50 percent of the front lot line. The CC&Rs require structures to comply with municipal regulations.

• Respondent’s Position: Ms. Salazar stated that the HOA places the responsibility on each homeowner to ensure their projects comply with all applicable municipal codes. The ARC does not independently verify compliance. The approval notice sent to the neighbor explicitly stated, “You also must follow all local building codes and setback requirements, if applicable.“

• ALJ’s Conclusion: No violation found. The petitioners failed to establish that the driveway qualified as a “structure” under the definition relevant to Section 8.02. Furthermore, the judge noted that even if it were considered a structure, the HOA did not have a duty or responsibility under this CC&R section to pre-emptively enforce municipal codes.

2.3. Allegation 3: Violation of CC&R Section 8.06 (Obstruction of Easements)

• Petitioner’s Claim: Ms. Berent testified that a fire hydrant located near the property line constituted a “public utility easement” and that the neighbor’s driveway extension was a structure placed upon it, interfering with its use in violation of the CC&Rs.

• Respondent’s Position: Ms. Salazar testified she was not aware of any public utility easement associated with the fire hydrant.

• ALJ’s Conclusion: No violation found. The petitioners failed on two points. First, they presented “no evidence to establish that the fire hydrant at issue constituted a public utility easement.” Second, even assuming it was an easement, they failed to prove the driveway obstructed it. This conclusion was decisively supported by Ms. Berent’s own testimony, in which she “acknowledged… that a residential fire occurred two houses away from her and the fire department had to use the fire hydrant… the fire hose was running across Neighbors’ driveway during that time.” This demonstrated the hydrant remained fully accessible and usable.

2.4. Allegation 4: Violation of A.R.S. § 33-1803(B) (Failure to Enforce)

• Petitioner’s Claim: Ms. Berent argued that “common sense” required the HOA to enforce its CC&Rs and penalize the neighbors for the violations, drawing a comparison to the HOA sending her notices for weeds in her yard.

• Respondent’s Position: The HOA argued that it chose not to pursue enforcement action against the neighbors because the City of Surprise, after issuing an initial Notice of Ordinance Violation, had itself “declined to pursue any further enforcement action.”

• ALJ’s Conclusion: No violation found. The judge pointed to the “plain language” of the statute, which states the board of directors may impose penalties, establishing this as a discretionary power, not a mandatory duty. Nothing in the statute required the HOA to take enforcement action. The HOA’s decision not to act, mirroring the city’s own lack of follow-up, was a valid exercise of its authority.

3. Key Chronology of Events

• July 7, 2015: The petitioners’ neighbors submit an “Application for Design Review” to install a 10-foot by 35-foot concrete driveway extension.

• July 15, 2015: The HOA’s Architectural Review Committee (ARC) approves the application.

• July 17, 2015: VISION Community Management sends an approval notice to the neighbors with conditions, including adherence to a 13-inch property line setback and all local building codes.

• August 2015: The neighbors begin construction. The petitioners email the HOA board to complain about the project, questioning city approval and raising concerns about a nearby fire hydrant.

• May 16, 2016: The City of Surprise issues a “Notice of Ordinance Violation” to the neighbors, stating a “driveway extension was added contrary to code requirements.”

• Post-May 2016: The City of Surprise takes no further enforcement action against the neighbors.

• April 26, 2018: The Berents file their HOA Dispute Petition.

• August 15 & 22, 2018: The administrative hearing is held.

• September 11, 2018: The ALJ issues the final decision, ordering that the petition be dismissed in its entirety.

• March 8, 2022: The ALJ issues a “Minute Entry – Document Reject,” noting that the OAH has no jurisdiction and will not consider further documents submitted by the petitioners.

4. Post-Decision Developments

On March 8, 2022, nearly three and a half years after the case was closed, ALJ Tammy L. Eigenheer issued a “Minute Entry – Document Reject.” This entry states:

“It is unclear why the Office of Administrative Hearings was sent these documents as the decision in this matter was issued on September 11, 2018, and the Office of Administrative Hearings has had no jurisdiction in this matter since that time.”

The entry advises the petitioners that no documents sent after the decision would be considered and that “no further response will be provided from the Office of Administrative Hearings” for any future filings.

5. Quoted Provisions and Statutes

The case revolved around the interpretation of the following sections of the Bell West Ranch Homeowners Association CC&Rs and Arizona Revised Statutes.

• CC&R Section 6.02 (Membership):

• CC&R Section 8.02 (Restrictions Apply to All Structures):

• CC&R Section 8.06 (No Obstruction of Easements):

• A.R.S. § 33-1803(B):


Case Participants

Petitioner Side

  • Michael Berent (petitioner)
    Appeared on their own behalf
  • Nancy Berent (petitioner)
    Appeared on their own behalf; testified at hearing

Respondent Side

  • Maria Kupillas (HOA attorney)
    Represented Bell West Ranch Homeowners Association
  • Regis Salazar (witness)
    VISION Community Management
    Testified for Respondent
  • Ken Hawkins (ARC member)
    Presented Architectural Review Committee report at Board meeting
  • Larry Bolton (ARC member)
    Listed in ARC meeting minutes as committee member/presenter
  • Kelsey Dressen (HOA attorney)
    Copied on 2022 Minute Entry
  • Kristin Roebuck (HOA attorney)
    Bethell Horne Slaton, PLLC
    Copied on 2022 Minute Entry
  • M Alvarez (administrative staff)
    Signed transmittal for Bell West Ranch Homeowners Association

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Judy Lowe (ADRE Commissioner)
    ADRE
  • Louis Dettorre (ADRE staff)
    ADRE
  • AHansen (ADRE staff)
    ADRE
  • djones (ADRE staff)
    ADRE
  • DGardner (ADRE staff)
    ADRE
  • ncano (ADRE staff)
    ADRE
  • tandert (ADRE staff)
    ADRE
  • vnunez (ADRE staff)
    ADRE

Other Participants

  • Lana Collins (City staff)
    City of Surprise
    Development Service Specialist who spoke to Neighbors

Michael J. Stoltenberg vs. Rancho Del Oro Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1818023-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-17
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J. Stoltenberg Counsel —
Respondent Rancho Del Oro Homeowners Association Counsel Lydia Linsmeier, Esq.

Alleged Violations

CC&R section 2.5

Outcome Summary

The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the alleged CC&R violation, and the claim was barred by the four-year statute of limitations.

Why this result: Petitioner failed to establish a violation of CC&R section 2.5, and the petition was filed after the four-year statute of limitations (A.R.S. § 12-550) expired.

Key Issues & Findings

Alleged violation of Community Governing Document regarding pipe installation

Petitioner alleged the HOA violated CC&R section 2.5 by installing pipes for a well. Respondent argued that CC&R section 2.5 was inapplicable as it governs additional easements conveyed to a third party, and that the claim was barred by the four-year statute of limitations (A.R.S. § 12-550).

Orders: Petitioner's petition is dismissed. Respondent deemed the prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 12-550
  • CC&R section 2.5
  • ARIZ. REV. STAT. § 32-2199.02

Analytics Highlights

Topics: Statute of Limitations, Easement, CC&R Violation, Well Installation
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 12-550
  • CC&R section 2.5

Video Overview

Audio Overview

Decision Documents

18F-H1818023-REL Decision – 629162.pdf

Uploaded 2025-10-09T03:32:26 (77.0 KB)





Briefing Doc – 18F-H1818023-REL


Administrative Law Judge Decision Briefing: Stoltenberg vs. Rancho Del Oro HOA

Executive Summary

This briefing analyzes the Administrative Law Judge (ALJ) Decision in case number 18F-H1818023-REL, concerning a dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). Mr. Stoltenberg alleged that the HOA violated community governing documents (CC&Rs) by installing pipes related to a well through his lot.

The ALJ, Velva Moses-Thompson, dismissed the petitioner’s case in its entirety. The decision was based on two independent and definitive grounds. First, Mr. Stoltenberg failed to meet his burden of proof on the merits of the case; the evidence demonstrated that the pipes were installed within a pre-existing easement and not improperly on his lot, and the specific CC&R section cited was inapplicable. Second, the petition was procedurally barred by Arizona’s four-year statute of limitations, as the installation occurred in the summer of 2013, and the action was filed after this period had expired. Consequently, the Rancho Del Oro HOA was deemed the prevailing party.

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I. Case Overview

This matter was brought before the Arizona Office of Administrative Hearings following a petition filed by Michael J. Stoltenberg against his HOA.

Case Detail

Information

Case Name

Michael J. Stoltenberg, Petitioner, vs. Rancho Del Oro Homeowners Association, Respondent

Case Number

18F-H1818023-REL

Hearing Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Velva Moses-Thompson

Hearing Date

March 28, 2018

Decision Date

April 17, 2018

II. Core Dispute and Allegations

A. Petitioner’s Claim

The central allegation from the petitioner, Mr. Stoltenberg, was that the Rancho Del Oro HOA violated the Community Governing Document CC&Rs.

• Specific Allegation: The HOA improperly installed pipes through his lot as part of a well installation project.

• Cited CC&R Violations: The petition focused on violations of CC&R sections 1.13, 1.19, and 2.5. The decision notes that sections 1.13 and 1.19 are definition sections, making section 2.5 the substantive focus of the dispute.

B. Respondent’s Defense Strategy

The Rancho Del Oro HOA presented a multi-faceted defense against the petitioner’s claims, combining a procedural dismissal argument with a substantive rebuttal.

1. Statute of Limitations: The HOA contended the claim was barred by the four-year statute of limitations established in ARIZ. REV. STAT. § 12-550. They asserted that since the well and pipes were installed in the summer of 2013, the time frame for filing a petition had expired.

2. Inapplicability of CC&R Section 2.5: The HOA argued that this section was not relevant to the situation. They maintained that CC&R section 2.5 pertains specifically to instances where the HOA grants or conveys an additional easement to a third party, which had not occurred.

3. Factual Rebuttal: The HOA asserted that the pipes were installed within an easement that already existed at the time of installation, not on Mr. Stoltenberg’s lot outside of an easement.

III. Adjudicated Findings and Conclusions

The Administrative Law Judge made several key findings of fact and conclusions of law that formed the basis of the final order. The petitioner, Mr. Stoltenberg, bore the burden of proving the alleged violations by a “preponderance of the evidence.”

A. Findings of Fact

The ALJ’s decision was based on the testimony and evidence presented at the hearing. The key findings were:

• Witnesses: The court heard testimony from petitioner Michael J. Stoltenberg, HOA community manager Diana Crites, and HOA Board Chairman James Van Sickle.

• Location of Installation: Evidence showed the pipes were installed in an easement that was already in existence at the time of the 2013 installation.

• Failure of Evidentiary Support: The judge explicitly noted, “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.”

B. Conclusions of Law

Based on the evidence and statutes, the ALJ reached the following legal conclusions:

• Statute of Limitations is Applicable: The judge affirmed that ARIZ. REV. STAT. § 12-550 establishes a four-year statute of limitations for such actions. The installation occurred in 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, rendering the claim time-barred.

• Interpretation of CC&R 2.5: The judge agreed with the HOA’s interpretation, concluding that CC&R section 2.5 applies to easements granted to a third party by the HOA.

• No Violation Occurred: The “weight of the evidence” demonstrated that the pipes were in an existing easement and the HOA did not grant or convey a new easement to a third party. Therefore, Mr. Stoltenberg failed to establish a violation of CC&R section 2.5.

• Failure to Meet Burden of Proof: Due to the lack of evidence and the inapplicability of the cited CC&R section, the petitioner failed to prove the alleged violation by a preponderance of the evidence.

IV. Final Order and Implications

Based on the dual findings that the claim was both time-barred and without merit, the Administrative Law Judge issued a decisive order.

• Order: “IT IS ORDERED that Mr. Stoltenberg’s petition is dismissed.”

• Prevailing Party: The Respondent, Rancho Del Oro Homeowners Association, was deemed the prevailing party in the matter.

• Next Steps: The decision is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the order’s service, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.






Study Guide – 18F-H1818023-REL


Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association (Case No. 18F-H1818023-REL)

This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter of Michael J. Stoltenberg versus the Rancho Del Oro Homeowners Association, heard by the Office of Administrative Hearings in Arizona.

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Short-Answer Quiz

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

1. Who were the primary parties in case number 18F-H1818023-REL, and what were their respective roles?

2. What was the core allegation made by the Petitioner, Michael J. Stoltenberg, against the Respondent?

3. What two primary legal arguments did the Rancho Del Oro Homeowners Association present in its defense?

4. According to the judge’s findings, what crucial piece of evidence was not presented at the hearing regarding the location of the well and pipes?

5. What is the statute of limitations cited in this case, and why was it a critical factor in the judge’s decision?

6. How did the Administrative Law Judge interpret Community Governing Document CC&R section 2.5 in relation to the Respondent’s actions?

7. Who has the burden of proof in this type of hearing, and what is the specific standard of proof required to win the case?

8. What was the ultimate Order issued by the Administrative Law Judge, and who was named the prevailing party?

9. Aside from the statute of limitations, what was the other fundamental reason the Petitioner failed to prove his case?

10. After the judge’s Order was issued on April 17, 2018, what recourse was available to the parties involved?

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Answer Key

1. The primary parties were Petitioner Michael J. Stoltenberg, who brought the complaint, and Respondent Rancho Del Oro Homeowners Association, who was defending against the complaint. Mr. Stoltenberg represented himself, while the Homeowners Association was represented by its attorney, Lydia Linsmeier, Esq.

2. Mr. Stoltenberg alleged that the Homeowners Association violated sections 1.13, 1.19, and 2.5 of the Community Governing Document (CC&Rs). The basis of his petition was that the HOA had improperly installed pipes through his lot in connection with a new well.

3. The HOA argued that the claim was barred by the statute of limitations under ARIZ. REV. STAT. section 12-550, as the installation occurred in 2013, more than four years prior. The HOA also contended that CC&R section 2.5 did not apply because it refers to granting additional easements to a third party, which the HOA did not do.

4. The judge’s “Findings of Fact” state that “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.” This lack of evidence was a key failure in the Petitioner’s case.

5. The statute of limitations cited is ARIZ. REV. STAT. section 12-550, which requires actions to be brought within four years. This was critical because the well and pipes were installed in the summer of 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, making his claim untimely.

6. The judge concluded that CC&R section 2.5 specifically applies to easements that are granted or conveyed to a third party by the Respondent. Since the evidence showed the pipes were installed in an existing easement and the HOA did not grant a new one to a third party, the judge found that this section was not violated.

7. The Petitioner, Mr. Stoltenberg, bears the burden of proof. The standard of proof required is a “preponderance of the evidence,” which means the evidence must have the most convincing force and be sufficient to incline a fair and impartial mind to one side of the issue over the other.

8. The Administrative Law Judge ordered that Mr. Stoltenberg’s petition be dismissed. As a result of the dismissal, the Respondent (Rancho Del Oro Homeowners Association) was deemed the prevailing party in the matter.

9. The Petitioner failed to prove his case because the weight of the evidence showed the HOA did not violate CC&R section 2.5. The evidence indicated the pipes were installed in a pre-existing easement, and the HOA did not grant or convey a new easement to a third party as described in that section.

10. Pursuant to A.R.S. §32-2199.02(B) and A.R.S. § 41-1092.09, the parties had the right to request a rehearing. This request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive essay-style response for each.

1. Analyze the concept of “burden of proof” as it applied in this case. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard, particularly regarding the location of the pipes, contribute to the dismissal of his petition?

2. Discuss the significance of the statute of limitations (ARIZ. REV. STAT. section 12-550) in the judge’s decision. Why are such statutes important in legal proceedings, and how did it provide a separate and independent basis for dismissing the case?

3. Explain the legal reasoning behind the judge’s interpretation of CC&R section 2.5. Why was the distinction between an “existing easement” and granting a “new easement to a third party” a critical factor in the outcome?

4. Imagine you were legal counsel for the Petitioner. Based on the information in the decision, what kind of evidence would have been necessary to successfully prove a violation of the Community Governing Documents and overcome the Respondent’s defenses?

5. Examine the roles of the different entities involved in this dispute: the Petitioner, the Homeowners Association, the Office of Administrative Hearings, and the Arizona Department of Real Estate. How does the structure of this administrative hearing process provide a mechanism for resolving disputes between homeowners and HOAs?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (in this case, Velva Moses-Thompson) who presides over administrative hearings, weighs evidence, and makes legal rulings and decisions.

ARIZ. ADMIN. CODE

The Arizona Administrative Code, a set of state regulations. Section R2-19-119 is cited as establishing the standard of proof for the hearing.

ARIZ. REV. STAT.

Arizona Revised Statutes, the collection of laws passed by the Arizona state legislature. Several statutes are cited, including those governing real estate, HOA disputes, and the statute of limitations.

Burden of Proof

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

An abbreviation for Covenants, Conditions, and Restrictions, which are rules set forth in a Community Governing Document that property owners in a planned community or condominium must follow.

Easement

A legal right to use another person’s land for a specific, limited purpose. In this case, it refers to the area where pipes were installed, which the judge found was an “existing easement.”

Findings of Fact

The section of a legal decision that details the factual determinations made by the judge based on the evidence and testimony presented at a hearing.

Homeowners Association (HOA)

An organization in a planned community (like Rancho Del Oro) that creates and enforces rules for the properties and residents within its jurisdiction.

Notice of Hearing

A formal document issued to inform the parties of the date, time, location, and subject matter of a scheduled legal hearing.

Petitioner

The party who initiates a lawsuit or petition, seeking a legal remedy. In this case, Michael J. Stoltenberg.

Preponderance of the Evidence

The standard of proof in this case. Defined in the document as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party against whom a petition is filed; the party who must respond to the allegations. In this case, the Rancho Del Oro Homeowners Association.

Statute of Limitations

A law that sets the maximum amount of time that parties involved in a dispute have to initiate legal proceedings. In this case, ARIZ. REV. STAT. section 12-550 established a four-year limit.






Blog Post – 18F-H1818023-REL


4 Harsh Lessons from a Homeowner’s Failed Lawsuit Against Their HOA

For many homeowners, a dispute with their Homeowners Association (HOA) can feel like a classic David vs. Goliath story. We’re drawn to tales of the little guy winning against a powerful board, but the reality is that these battles are governed by unforgiving rules, and victory is never guaranteed. While stories of homeowner triumphs are inspiring, it is just as crucial—if not more so—to understand the anatomy of a failure.

This article serves as a cautionary tale, exploring the surprising and impactful lessons from a legal case where a homeowner’s petition against their HOA was decisively dismissed. By understanding the series of avoidable missteps that led to this loss, every homeowner can be better prepared to protect their rights and their property.

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1. Time is Not on Your Side: The Statute of Limitations

In the legal world, a “statute of limitations” is a strict deadline for filing a lawsuit. Think of it as a countdown clock that starts the moment a potential legal issue occurs. If you let that clock run out, you forfeit your right to take legal action, no matter how valid your complaint might be.

The first domino to fall in this case was the calendar. The homeowner’s complaint centered on pipes installed in the summer of 2013. The petition, however, wasn’t filed until early 2018, just a few months after the four-year deadline had expired. This wasn’t a case of extreme neglect; it was a critical error of a few months that proved instantly fatal. The lesson here is harsh and urgent: if you believe your HOA has wronged you, you must act promptly. Waiting too long can render your claim legally void before it ever gets a fair hearing.

The specific rule that was applied is a stark reminder of this unforgiving principle:

Actions other than for recovery of real property for which no limitation is otherwise prescribed shall be brought within four years after the cause of action accrues, and not afterward.

2. You Have to Prove It: The Burden of Proof

In any legal dispute, the person bringing the complaint—the petitioner—has the “burden of proof.” This means it is entirely your responsibility to present convincing evidence to support your claims. Simply believing something to be true is not enough; you must prove it with cold, hard facts. Here’s where every homeowner should pay close attention.

The case’s foundation crumbled under the simple question: “Where is the proof?” The core of the homeowner’s case was the allegation that the HOA had installed pipes through his lot. This was the central pillar of the entire petition. But when the time came to present evidence, the pillar collapsed. The judge’s decision contained this stunning finding:

There was no evidence presented at hearing that the well or the well pipe were installed on […] lot.

An entire lawsuit can be dismissed if a fundamental claim, no matter how strongly you believe it, cannot be factually proven. Your conviction that you are right means nothing in a hearing without evidence to back it up.

3. Read the Fine Print: The Rules Might Not Mean What You Think They Mean

The homeowner built his argument on a specific part of the Community Governing Documents (CC&Rs), section 2.5, believing it proved the HOA had acted improperly. But the devil is always in the details, and a misinterpretation of those details can be fatal to a case.

The HOA successfully argued that the rule the homeowner cited only applied to situations where the HOA granted a new easement to a third party. In reality, the HOA had simply used an existing easement and had not granted anything to an outside entity. This is a critical distinction. Think of it this way: the homeowner argued the HOA violated the rules for building a new road, but the HOA proved they were simply driving a car on a road that already existed. The homeowner’s argument, while possibly correct about new roads, was irrelevant to the actual situation.

Compounding the error, the homeowner’s initial petition also cited sections of the CC&Rs that were simply definitions, not enforceable rules—a fundamental misunderstanding of the legal documents at the heart of the case.

4. A Double Dismissal: Why the Case Failed on Two Fronts

This case didn’t just lose once; the court effectively ruled the homeowner would have lost twice, on two completely different grounds. This reveals a devastating legal reality: winning requires clearing multiple hurdles, while losing only requires failing at one.

The petition was dismissed for two independent and powerful reasons:

1. The Procedural Knockout: The case was filed too late, violating the four-year statute of limitations. This is a procedural bar, meaning the court couldn’t even consider the facts of the case. It was dead on arrival.

2. The Substantive Failure: The judge made it clear that even if the case had been filed on time, it would have failed on its merits. The homeowner failed to prove his central claim (the pipe location) and fundamentally misinterpreted the CC&Rs.

This “double loss” demonstrates that a successful case against an HOA must be both timely and legally sound. One without the other is a recipe for failure.

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Conclusion: Are You Ready for a Fight?

Being frustrated with your HOA is understandable, but that feeling is not enough to win a legal battle. As this case demonstrates, a successful challenge demands timely action, solid evidence, and a precise interpretation of your community’s governing documents. And a loss isn’t just a disappointment; it means your filing fees are lost, and you’ve spent significant time and energy for nothing, with the HOA’s position only becoming more entrenched. This is a financial and emotional trap you must avoid.

Before you decide to take on your HOA, ask yourself: Have you checked the calendar, your property survey, and the fine print?


Case Participants

Petitioner Side

  • Michael J. Stoltenberg (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Nicole Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Diana Crites (community manager)
    Rancho Del Oro Homeowners Association
    Testified for Respondent
  • James Van Sickle (board member)
    Rancho Del Oro Homeowners Association
    Chairman of the Board; testified for Respondent

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Michael J. Stoltenberg vs. Rancho Del Oro Homeowners Association

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Case Summary

Case ID 18F-H1818023-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-17
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J. Stoltenberg Counsel —
Respondent Rancho Del Oro Homeowners Association Counsel Lydia Linsmeier, Esq.

Alleged Violations

CC&R section 2.5

Outcome Summary

The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the alleged CC&R violation, and the claim was barred by the four-year statute of limitations.

Why this result: Petitioner failed to establish a violation of CC&R section 2.5, and the petition was filed after the four-year statute of limitations (A.R.S. § 12-550) expired.

Key Issues & Findings

Alleged violation of Community Governing Document regarding pipe installation

Petitioner alleged the HOA violated CC&R section 2.5 by installing pipes for a well. Respondent argued that CC&R section 2.5 was inapplicable as it governs additional easements conveyed to a third party, and that the claim was barred by the four-year statute of limitations (A.R.S. § 12-550).

Orders: Petitioner's petition is dismissed. Respondent deemed the prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 12-550
  • CC&R section 2.5
  • ARIZ. REV. STAT. § 32-2199.02

Analytics Highlights

Topics: Statute of Limitations, Easement, CC&R Violation, Well Installation
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 12-550
  • CC&R section 2.5

Video Overview

Audio Overview

Decision Documents

18F-H1818023-REL Decision – 629162.pdf

Uploaded 2026-01-23T17:23:08 (77.0 KB)





Briefing Doc – 18F-H1818023-REL


Administrative Law Judge Decision Briefing: Stoltenberg vs. Rancho Del Oro HOA

Executive Summary

This briefing analyzes the Administrative Law Judge (ALJ) Decision in case number 18F-H1818023-REL, concerning a dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). Mr. Stoltenberg alleged that the HOA violated community governing documents (CC&Rs) by installing pipes related to a well through his lot.

The ALJ, Velva Moses-Thompson, dismissed the petitioner’s case in its entirety. The decision was based on two independent and definitive grounds. First, Mr. Stoltenberg failed to meet his burden of proof on the merits of the case; the evidence demonstrated that the pipes were installed within a pre-existing easement and not improperly on his lot, and the specific CC&R section cited was inapplicable. Second, the petition was procedurally barred by Arizona’s four-year statute of limitations, as the installation occurred in the summer of 2013, and the action was filed after this period had expired. Consequently, the Rancho Del Oro HOA was deemed the prevailing party.

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I. Case Overview

This matter was brought before the Arizona Office of Administrative Hearings following a petition filed by Michael J. Stoltenberg against his HOA.

Case Detail

Information

Case Name

Michael J. Stoltenberg, Petitioner, vs. Rancho Del Oro Homeowners Association, Respondent

Case Number

18F-H1818023-REL

Hearing Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Velva Moses-Thompson

Hearing Date

March 28, 2018

Decision Date

April 17, 2018

II. Core Dispute and Allegations

A. Petitioner’s Claim

The central allegation from the petitioner, Mr. Stoltenberg, was that the Rancho Del Oro HOA violated the Community Governing Document CC&Rs.

• Specific Allegation: The HOA improperly installed pipes through his lot as part of a well installation project.

• Cited CC&R Violations: The petition focused on violations of CC&R sections 1.13, 1.19, and 2.5. The decision notes that sections 1.13 and 1.19 are definition sections, making section 2.5 the substantive focus of the dispute.

B. Respondent’s Defense Strategy

The Rancho Del Oro HOA presented a multi-faceted defense against the petitioner’s claims, combining a procedural dismissal argument with a substantive rebuttal.

1. Statute of Limitations: The HOA contended the claim was barred by the four-year statute of limitations established in ARIZ. REV. STAT. § 12-550. They asserted that since the well and pipes were installed in the summer of 2013, the time frame for filing a petition had expired.

2. Inapplicability of CC&R Section 2.5: The HOA argued that this section was not relevant to the situation. They maintained that CC&R section 2.5 pertains specifically to instances where the HOA grants or conveys an additional easement to a third party, which had not occurred.

3. Factual Rebuttal: The HOA asserted that the pipes were installed within an easement that already existed at the time of installation, not on Mr. Stoltenberg’s lot outside of an easement.

III. Adjudicated Findings and Conclusions

The Administrative Law Judge made several key findings of fact and conclusions of law that formed the basis of the final order. The petitioner, Mr. Stoltenberg, bore the burden of proving the alleged violations by a “preponderance of the evidence.”

A. Findings of Fact

The ALJ’s decision was based on the testimony and evidence presented at the hearing. The key findings were:

• Witnesses: The court heard testimony from petitioner Michael J. Stoltenberg, HOA community manager Diana Crites, and HOA Board Chairman James Van Sickle.

• Location of Installation: Evidence showed the pipes were installed in an easement that was already in existence at the time of the 2013 installation.

• Failure of Evidentiary Support: The judge explicitly noted, “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.”

B. Conclusions of Law

Based on the evidence and statutes, the ALJ reached the following legal conclusions:

• Statute of Limitations is Applicable: The judge affirmed that ARIZ. REV. STAT. § 12-550 establishes a four-year statute of limitations for such actions. The installation occurred in 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, rendering the claim time-barred.

• Interpretation of CC&R 2.5: The judge agreed with the HOA’s interpretation, concluding that CC&R section 2.5 applies to easements granted to a third party by the HOA.

• No Violation Occurred: The “weight of the evidence” demonstrated that the pipes were in an existing easement and the HOA did not grant or convey a new easement to a third party. Therefore, Mr. Stoltenberg failed to establish a violation of CC&R section 2.5.

• Failure to Meet Burden of Proof: Due to the lack of evidence and the inapplicability of the cited CC&R section, the petitioner failed to prove the alleged violation by a preponderance of the evidence.

IV. Final Order and Implications

Based on the dual findings that the claim was both time-barred and without merit, the Administrative Law Judge issued a decisive order.

• Order: “IT IS ORDERED that Mr. Stoltenberg’s petition is dismissed.”

• Prevailing Party: The Respondent, Rancho Del Oro Homeowners Association, was deemed the prevailing party in the matter.

• Next Steps: The decision is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the order’s service, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.






Study Guide – 18F-H1818023-REL


Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association (Case No. 18F-H1818023-REL)

This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter of Michael J. Stoltenberg versus the Rancho Del Oro Homeowners Association, heard by the Office of Administrative Hearings in Arizona.

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Short-Answer Quiz

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

1. Who were the primary parties in case number 18F-H1818023-REL, and what were their respective roles?

2. What was the core allegation made by the Petitioner, Michael J. Stoltenberg, against the Respondent?

3. What two primary legal arguments did the Rancho Del Oro Homeowners Association present in its defense?

4. According to the judge’s findings, what crucial piece of evidence was not presented at the hearing regarding the location of the well and pipes?

5. What is the statute of limitations cited in this case, and why was it a critical factor in the judge’s decision?

6. How did the Administrative Law Judge interpret Community Governing Document CC&R section 2.5 in relation to the Respondent’s actions?

7. Who has the burden of proof in this type of hearing, and what is the specific standard of proof required to win the case?

8. What was the ultimate Order issued by the Administrative Law Judge, and who was named the prevailing party?

9. Aside from the statute of limitations, what was the other fundamental reason the Petitioner failed to prove his case?

10. After the judge’s Order was issued on April 17, 2018, what recourse was available to the parties involved?

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Answer Key

1. The primary parties were Petitioner Michael J. Stoltenberg, who brought the complaint, and Respondent Rancho Del Oro Homeowners Association, who was defending against the complaint. Mr. Stoltenberg represented himself, while the Homeowners Association was represented by its attorney, Lydia Linsmeier, Esq.

2. Mr. Stoltenberg alleged that the Homeowners Association violated sections 1.13, 1.19, and 2.5 of the Community Governing Document (CC&Rs). The basis of his petition was that the HOA had improperly installed pipes through his lot in connection with a new well.

3. The HOA argued that the claim was barred by the statute of limitations under ARIZ. REV. STAT. section 12-550, as the installation occurred in 2013, more than four years prior. The HOA also contended that CC&R section 2.5 did not apply because it refers to granting additional easements to a third party, which the HOA did not do.

4. The judge’s “Findings of Fact” state that “There was no evidence presented at hearing that the well or the well pipe were installed on Mr. Stoltenberg’s lot.” This lack of evidence was a key failure in the Petitioner’s case.

5. The statute of limitations cited is ARIZ. REV. STAT. section 12-550, which requires actions to be brought within four years. This was critical because the well and pipes were installed in the summer of 2013, and Mr. Stoltenberg filed his petition after this four-year period had expired, making his claim untimely.

6. The judge concluded that CC&R section 2.5 specifically applies to easements that are granted or conveyed to a third party by the Respondent. Since the evidence showed the pipes were installed in an existing easement and the HOA did not grant a new one to a third party, the judge found that this section was not violated.

7. The Petitioner, Mr. Stoltenberg, bears the burden of proof. The standard of proof required is a “preponderance of the evidence,” which means the evidence must have the most convincing force and be sufficient to incline a fair and impartial mind to one side of the issue over the other.

8. The Administrative Law Judge ordered that Mr. Stoltenberg’s petition be dismissed. As a result of the dismissal, the Respondent (Rancho Del Oro Homeowners Association) was deemed the prevailing party in the matter.

9. The Petitioner failed to prove his case because the weight of the evidence showed the HOA did not violate CC&R section 2.5. The evidence indicated the pipes were installed in a pre-existing easement, and the HOA did not grant or convey a new easement to a third party as described in that section.

10. Pursuant to A.R.S. §32-2199.02(B) and A.R.S. § 41-1092.09, the parties had the right to request a rehearing. This request had to be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive essay-style response for each.

1. Analyze the concept of “burden of proof” as it applied in this case. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard, particularly regarding the location of the pipes, contribute to the dismissal of his petition?

2. Discuss the significance of the statute of limitations (ARIZ. REV. STAT. section 12-550) in the judge’s decision. Why are such statutes important in legal proceedings, and how did it provide a separate and independent basis for dismissing the case?

3. Explain the legal reasoning behind the judge’s interpretation of CC&R section 2.5. Why was the distinction between an “existing easement” and granting a “new easement to a third party” a critical factor in the outcome?

4. Imagine you were legal counsel for the Petitioner. Based on the information in the decision, what kind of evidence would have been necessary to successfully prove a violation of the Community Governing Documents and overcome the Respondent’s defenses?

5. Examine the roles of the different entities involved in this dispute: the Petitioner, the Homeowners Association, the Office of Administrative Hearings, and the Arizona Department of Real Estate. How does the structure of this administrative hearing process provide a mechanism for resolving disputes between homeowners and HOAs?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (in this case, Velva Moses-Thompson) who presides over administrative hearings, weighs evidence, and makes legal rulings and decisions.

ARIZ. ADMIN. CODE

The Arizona Administrative Code, a set of state regulations. Section R2-19-119 is cited as establishing the standard of proof for the hearing.

ARIZ. REV. STAT.

Arizona Revised Statutes, the collection of laws passed by the Arizona state legislature. Several statutes are cited, including those governing real estate, HOA disputes, and the statute of limitations.

Burden of Proof

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

An abbreviation for Covenants, Conditions, and Restrictions, which are rules set forth in a Community Governing Document that property owners in a planned community or condominium must follow.

Easement

A legal right to use another person’s land for a specific, limited purpose. In this case, it refers to the area where pipes were installed, which the judge found was an “existing easement.”

Findings of Fact

The section of a legal decision that details the factual determinations made by the judge based on the evidence and testimony presented at a hearing.

Homeowners Association (HOA)

An organization in a planned community (like Rancho Del Oro) that creates and enforces rules for the properties and residents within its jurisdiction.

Notice of Hearing

A formal document issued to inform the parties of the date, time, location, and subject matter of a scheduled legal hearing.

Petitioner

The party who initiates a lawsuit or petition, seeking a legal remedy. In this case, Michael J. Stoltenberg.

Preponderance of the Evidence

The standard of proof in this case. Defined in the document as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party against whom a petition is filed; the party who must respond to the allegations. In this case, the Rancho Del Oro Homeowners Association.

Statute of Limitations

A law that sets the maximum amount of time that parties involved in a dispute have to initiate legal proceedings. In this case, ARIZ. REV. STAT. section 12-550 established a four-year limit.


Ellipsis

Case Participants

Petitioner Side

  • Michael J. Stoltenberg (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Nicole Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Diana Crites (community manager)
    Rancho Del Oro Homeowners Association
    Testified for Respondent
  • James Van Sickle (board member)
    Rancho Del Oro Homeowners Association
    Chairman of the Board; testified for Respondent

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate