Petitioner sustained its burden of proof establishing that Respondents violated CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 by operating a cat rescue business (VKNR) from their residence, which involved unauthorized commercial activity, excessive non-pet animals, and creating a nuisance. Violation of 7.29 was not established. The petition was granted.
Key Issues & Findings
Violation of CC&Rs by operating an unauthorized business out of their home and housing dozens of cats in excess of a reasonable number of household pets, creating a nuisance.
Respondents operated a nonprofit cat rescue (VKNR) from their single-family residence, housing 50+ cats in a 3-car garage, which constituted an unauthorized commercial use, exceeded a reasonable number of pets, and created traffic and waste nuisances.
Orders: Petitioner's petition is granted. Respondents must henceforth abide by CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs section 7.2
CC&Rs section 7.3
CC&Rs section 7.25
CC&Rs section 7.26
CC&Rs section 7.28
CC&Rs section 7.31
Analytics Highlights
Topics: Home Business, Pets/Animals, Nuisance, CC&Rs, Enforcement, HOA
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H003-REL Decision – 1094853.pdf
Uploaded 2026-01-23T18:00:39 (51.0 KB)
24F-H003-REL Decision – 1113338.pdf
Uploaded 2026-01-23T18:00:44 (49.4 KB)
24F-H003-REL Decision – 1125372.pdf
Uploaded 2026-01-23T18:00:48 (65.5 KB)
24F-H003-REL Decision – 1147484.pdf
Uploaded 2026-01-23T18:00:51 (184.8 KB)
Study Guide – 24F-H003-REL
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1094853.pdf
1113338.pdf
1113415.aac
1113416.aac
1113417.aac
1125372.pdf
1147484.pdf
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24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
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Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 24F-H003-REL
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1094853.pdf
1113338.pdf
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1113417.aac
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24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Anthony Rossetti(petitioner attorney, property manager) Rossetti Management & Realty Services Represented Petitioner and owned the newly hired management company.
Douglas Karolak(witness, homeowner) VVE-Casa Grande HOA Member Testified on behalf of Petitioner.
Nicole Elliot(property manager) Norris Management Former HOA management committee/manager who issued warning letters.
CD Mai(homeowner/neighbor) VVE-Casa Grande HOA Member Mentioned by Karolak as a vocal opponent/adjacent neighbor to the Eitels.
Respondent Side
Duane Eitel(respondent, witness) VVE-Casa Grande HOA Member Referred to as Duane S Eitel in earlier documents; DE in the decision.
Mary Eitel(respondent) VVE-Casa Grande HOA Member, CEO/Director of Valley Kitten Nursery & Rescue Inc. Referred to as Mary L Eitel in earlier documents.
Kevin Harper(respondent attorney) Harper Law, PLC
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Susan Nicolson(commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
vnunez(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
labril(ADRE staff) Arizona Department of Real Estate
Christopher Sinco(code compliance officer) Pinal County Animal Control Involved in the 2017/2018 county inspection.
Other Participants
Scott Lenderman(property manager) HOA management administrator (prior to Rossetti) Mentioned as the first HOA management administrator.
The Administrative Law Judge denied the Petitioner’s petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1808(L) because the newsletter did not constitute an assembly using common areas as required by the statute.
Why this result: Petitioner failed to meet the burden of proof, specifically because the tribunal found the newsletter did not constitute “peacefully assemble and use common areas” as required by ARIZ. REV. STAT. § 33-1808(L).
Key Issues & Findings
Alleged violation of ARS § 33-1808(L) regarding the right to peacefully assemble and use common areas due to the issuance of a cease and desist letter concerning a newsletter.
Petitioner alleged the HOA violated ARS § 33-1808(L) by sending a cease and desist letter regarding statements in her community newsletter. Petitioner argued the newsletter constituted a 'meeting' or 'assembly' protected by the statute, while Respondent argued the statute requires physical assembly and use of common areas. The tribunal ultimately found that the newsletter did not satisfy the statutory requirement for assembly in common areas.
Orders: Petitioner’s petition was denied. Respondent shall not reimburse Petitioner’s filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1808(L)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.05
McCoy versus Johnson 1 CAD 2167
Analytics Highlights
Topics: HOA, Homeowner Dispute, Free Speech, Assembly Rights, Cease and Desist Letter, ARS 33-1808(L), Newsletter
Additional Citations:
ARIZ. REV. STAT. § 33-1808(L)
ARIZ. REV. STAT. § 32-2199.02(A)
McCoy versus Johnson 1 CAD 2167
Video Overview
Audio Overview
Decision Documents
24F-H018-REL Decision – 1117204.pdf
Uploaded 2026-01-23T18:02:30 (47.3 KB)
24F-H018-REL Decision – 1117206.pdf
Uploaded 2026-01-23T18:02:33 (5.6 KB)
24F-H018-REL Decision – 1130156.pdf
Uploaded 2026-01-23T18:02:37 (50.9 KB)
24F-H018-REL Decision – 1142847.pdf
Uploaded 2026-01-23T18:02:40 (114.9 KB)
Questions
Question
Does publishing a community newsletter count as 'peaceful assembly' protected by Arizona HOA laws?
Short Answer
No. The Administrative Law Judge ruled that a written newsletter does not satisfy the statutory definition of assembling in common areas.
Detailed Answer
The ALJ determined that A.R.S. § 33-1808(L), which protects the right to assemble in common areas, does not extend to written publications like newsletters. The judge noted that if the legislature intended to protect such mediums, they would have explicitly included them in the statute.
Alj Quote
Further, the tribunal disagrees that the newsletter can be read as satisfying the 'peacefully assemble and use common areas' of the community. If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
newsletters
freedom of assembly
legislative intent
Question
Can my HOA send me a 'cease and desist' letter regarding the content of my newsletter without violating my rights?
Short Answer
Yes, if the letter is a warning regarding specific content (like defamation) rather than a total prohibition on publishing.
Detailed Answer
The ALJ found no violation where an HOA sent a letter warning a homeowner about potential defamation claims regarding specific comments. Because the homeowner was not actually stopped from publishing future newsletters, the HOA did not 'prohibit or unreasonably restrict' the member's rights.
Alj Quote
Respondent sent the cease and desist letter as a warning to Petitioner that a claim may be made for defamation should those specific comments continue. There was no evidence presented that a court case was filed or that Petitioner had been fined as a result of her newsletter.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
cease and desist
defamation
HOA correspondence
Question
Does A.R.S. § 33-1808(L) protect social media posts or online communications?
Short Answer
No. The ruling explicitly states that this statute was not intended to cover social media posts.
Detailed Answer
The decision interprets the 'peaceful assembly' statute strictly. The judge reasoned that the legislature had multiple opportunities to include digital communications or social media in the text of the law but chose not to do so.
Alj Quote
If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
social media
electronic communication
statutory interpretation
Question
What standard of proof must a homeowner meet to win a hearing against their HOA?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) bears the burden of proof. They must demonstrate that their claims are 'more probably true than not'—a standard known as the preponderance of the evidence.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1808(L). … 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 33-1808(L); A.A.C. R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
If I lose my hearing against the HOA, will I get my $500 filing fee back?
Short Answer
No. If the petition is denied, the HOA is not required to reimburse the filing fee.
Detailed Answer
The ALJ ordered that because the Petitioner's petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.02(A)
Topic Tags
filing fees
costs
penalties
Case
Docket No
24F-H018-REL
Case Title
Lewis v. Florence Gardens Mobile Home Association
Decision Date
2024-02-09
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Does publishing a community newsletter count as 'peaceful assembly' protected by Arizona HOA laws?
Short Answer
No. The Administrative Law Judge ruled that a written newsletter does not satisfy the statutory definition of assembling in common areas.
Detailed Answer
The ALJ determined that A.R.S. § 33-1808(L), which protects the right to assemble in common areas, does not extend to written publications like newsletters. The judge noted that if the legislature intended to protect such mediums, they would have explicitly included them in the statute.
Alj Quote
Further, the tribunal disagrees that the newsletter can be read as satisfying the 'peacefully assemble and use common areas' of the community. If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
newsletters
freedom of assembly
legislative intent
Question
Can my HOA send me a 'cease and desist' letter regarding the content of my newsletter without violating my rights?
Short Answer
Yes, if the letter is a warning regarding specific content (like defamation) rather than a total prohibition on publishing.
Detailed Answer
The ALJ found no violation where an HOA sent a letter warning a homeowner about potential defamation claims regarding specific comments. Because the homeowner was not actually stopped from publishing future newsletters, the HOA did not 'prohibit or unreasonably restrict' the member's rights.
Alj Quote
Respondent sent the cease and desist letter as a warning to Petitioner that a claim may be made for defamation should those specific comments continue. There was no evidence presented that a court case was filed or that Petitioner had been fined as a result of her newsletter.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
cease and desist
defamation
HOA correspondence
Question
Does A.R.S. § 33-1808(L) protect social media posts or online communications?
Short Answer
No. The ruling explicitly states that this statute was not intended to cover social media posts.
Detailed Answer
The decision interprets the 'peaceful assembly' statute strictly. The judge reasoned that the legislature had multiple opportunities to include digital communications or social media in the text of the law but chose not to do so.
Alj Quote
If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
social media
electronic communication
statutory interpretation
Question
What standard of proof must a homeowner meet to win a hearing against their HOA?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) bears the burden of proof. They must demonstrate that their claims are 'more probably true than not'—a standard known as the preponderance of the evidence.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1808(L). … 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 33-1808(L); A.A.C. R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
If I lose my hearing against the HOA, will I get my $500 filing fee back?
Short Answer
No. If the petition is denied, the HOA is not required to reimburse the filing fee.
Detailed Answer
The ALJ ordered that because the Petitioner's petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.02(A)
Topic Tags
filing fees
costs
penalties
Case
Docket No
24F-H018-REL
Case Title
Lewis v. Florence Gardens Mobile Home Association
Decision Date
2024-02-09
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Margaret Lewis(petitioner) Appeared on her own behalf
Dennis Legere(witness) Testified regarding legislative intent; stated he is a lobbyist and volunteer
Respondent Side
Marcus Martinez(HOA attorney) Florence Gardens Mobile Home Association
Yasmin Rodriguez(community manager) Florence Gardens Mobile Home Association Testified as a witness for Respondent
Nicholas Nagami(HOA attorney) Florence Gardens Mobile Home Association Appeared on behalf of Respondent
The ALJ denied the petition, concluding that the Association's voting system constituted permissible delegate voting, which is not prohibited by the Planned Community Act. The prohibition in ARS § 33-1812 against proxy voting applies only when votes are “allocated to a unit,” which is not the case for Director elections where votes are allocated to the Neighborhood Voting Members as delegates.
Why this result: Petitioner did not sustain the burden of proving a violation of ARIZ. REV. STAT. § 33-1812.
Key Issues & Findings
Whether Respondent is in violation of ARIZ. REV. STAT. § 33-1812
Petitioner alleged that the Association's use of a voting delegate system, where Voting Members cast votes for unit owners who did not respond to neighborhood polls, constitutes proxy voting prohibited under ARS § 33-1812.
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 10-3708
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Analytics Highlights
Topics: HOA, Planned Community Act, Delegate Voting, Proxy Voting, Board Election, ARS 33-1812, Nonprofit Corporation Act
Additional Citations:
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 10-3708
ARIZ. REV. STAT. § 1-211(B)
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Video Overview
Audio Overview
Decision Documents
24F-H012-REL Decision – 1115010.pdf
Uploaded 2026-01-23T18:01:58 (162.7 KB)
Study Guide – 24F-H012-REL
{ “case”: { “docket_no”: “24F-H012-REL”, “case_title”: “Robert J. Garing v. Prescott Lakes Community Association, Inc.”, “decision_date”: “2023-11-20”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a delegate voting system considered the same as illegal proxy voting in Arizona HOAs?”, “short_answer”: “No. The ALJ determined that a delegate voting system is distinct from proxy voting and is not prohibited by the Planned Communities Act.”, “detailed_answer”: “While Arizona law (A.R.S. § 33-1812) explicitly prohibits proxy voting in planned communities after the period of declarant control, the Administrative Law Judge found that the legislature did not prohibit ‘delegate voting.’ In a delegate system, votes are allocated to the elected Voting Member (delegate) rather than directly to the individual unit for that specific election, meaning the prohibition on casting unit votes via proxy does not apply.”, “alj_quote”: “Here, the relevant and credible evidence of record establishes that while proxy voting is explicitly prohibited under the Planned Community Act, the legislature made no such bar regarding delegate voting as a form of HOA governance.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “proxies”, “delegates”, “elections” ] }, { “question”: “Can my HOA allow neighborhood representatives to vote on behalf of owners?”, “short_answer”: “Yes, if the governing documents establish a delegate system where votes are allocated to the representative rather than the unit.”, “detailed_answer”: “The decision upholds a system where neighborhoods elect ‘Voting Members’ who then cast votes for the Board of Directors. The ALJ reasoned that the Planned Communities Act prohibits proxy voting only when votes are ‘allocated to a unit.’ Under the delegate system described, the votes for directors were allocated to the Voting Members, not the individual units.”, “alj_quote”: “The Planned Community Act does not regulate who is authorized to vote in planned community elections. Instead, it prohibits proxy voting when votes have been ‘allocated to a unit.’ Regarding the election of Board Directors, there are no votes ‘allocated to a unit.’ Instead, all votes are allocated to Neighborhood Voting Members as delegates…”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “board of directors”, “governing documents” ] }, { “question”: “Can neighborhood delegates cast votes for homeowners who did not participate in the poll?”, “short_answer”: “Yes, provided the governing documents allow the delegate to cast unreceived votes at their discretion.”, “detailed_answer”: “The ALJ noted that Voting Members in this case had the discretion to cast votes for units that did not respond to the neighborhood poll. This practice was found not to violate the statutory prohibition on proxies because it was part of a valid delegate voting structure.”, “alj_quote”: “Voting Members do not have complete discretion when casting votes. They only have discretion to cast unreceived votes.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “discretionary voting”, “absentee ballots” ] }, { “question”: “What is the burden of proof for a homeowner challenging their HOA in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard used is ‘preponderance of the evidence,’ which means the homeowner must show that their contention is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812.”, “legal_basis”: “A.A.C. R2-19-119(B)(2)”, “topic_tags”: [ “burden of proof”, “administrative hearing”, “legal procedure” ] }, { “question”: “Does the Nonprofit Corporation Act apply to HOAs in Arizona?”, “short_answer”: “Yes, unless the Planned Communities Act specifically exempts the HOA from a provision.”, “detailed_answer”: “The ALJ reasoned that because the legislature specifically exempted planned communities from some parts of the Nonprofit Act but was silent on delegate voting, the Nonprofit Act’s allowance of such systems remains relevant context for HOA governance.”, “alj_quote”: “In fact, the legislature specifically exempted planned communities from certain enumerated provisions of the Nonprofit Act, but did not address delegate voting within the Planned Community Act in any capacity.”, “legal_basis”: “A.R.S. § 10-3101 et seq.”, “topic_tags”: [ “corporate law”, “statutory interpretation”, “nonprofit act” ] }, { “question”: “If I disagree with the Administrative Law Judge’s decision, what can I do?”, “short_answer”: “You can appeal to the Superior Court within 35 days of being served the order.”, “detailed_answer”: “The decision is binding, but parties have the right to seek judicial review. This appeal must be filed with the Superior Court within a strict 35-day window following the service of the order.”, “alj_quote”: “A party wishing to appeal this order must seek judicial review as prescribed by ARIZ. REV. STAT. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties.”, “legal_basis”: “A.R.S. § 41-1092.08(H); A.R.S. § 12-904(A)”, “topic_tags”: [ “appeals”, “judicial review”, “superior court” ] } ] }
Blog Post – 24F-H012-REL
{ “case”: { “docket_no”: “24F-H012-REL”, “case_title”: “Robert J. Garing v. Prescott Lakes Community Association, Inc.”, “decision_date”: “2023-11-20”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a delegate voting system considered the same as illegal proxy voting in Arizona HOAs?”, “short_answer”: “No. The ALJ determined that a delegate voting system is distinct from proxy voting and is not prohibited by the Planned Communities Act.”, “detailed_answer”: “While Arizona law (A.R.S. § 33-1812) explicitly prohibits proxy voting in planned communities after the period of declarant control, the Administrative Law Judge found that the legislature did not prohibit ‘delegate voting.’ In a delegate system, votes are allocated to the elected Voting Member (delegate) rather than directly to the individual unit for that specific election, meaning the prohibition on casting unit votes via proxy does not apply.”, “alj_quote”: “Here, the relevant and credible evidence of record establishes that while proxy voting is explicitly prohibited under the Planned Community Act, the legislature made no such bar regarding delegate voting as a form of HOA governance.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “proxies”, “delegates”, “elections” ] }, { “question”: “Can my HOA allow neighborhood representatives to vote on behalf of owners?”, “short_answer”: “Yes, if the governing documents establish a delegate system where votes are allocated to the representative rather than the unit.”, “detailed_answer”: “The decision upholds a system where neighborhoods elect ‘Voting Members’ who then cast votes for the Board of Directors. The ALJ reasoned that the Planned Communities Act prohibits proxy voting only when votes are ‘allocated to a unit.’ Under the delegate system described, the votes for directors were allocated to the Voting Members, not the individual units.”, “alj_quote”: “The Planned Community Act does not regulate who is authorized to vote in planned community elections. Instead, it prohibits proxy voting when votes have been ‘allocated to a unit.’ Regarding the election of Board Directors, there are no votes ‘allocated to a unit.’ Instead, all votes are allocated to Neighborhood Voting Members as delegates…”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “board of directors”, “governing documents” ] }, { “question”: “Can neighborhood delegates cast votes for homeowners who did not participate in the poll?”, “short_answer”: “Yes, provided the governing documents allow the delegate to cast unreceived votes at their discretion.”, “detailed_answer”: “The ALJ noted that Voting Members in this case had the discretion to cast votes for units that did not respond to the neighborhood poll. This practice was found not to violate the statutory prohibition on proxies because it was part of a valid delegate voting structure.”, “alj_quote”: “Voting Members do not have complete discretion when casting votes. They only have discretion to cast unreceived votes.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “discretionary voting”, “absentee ballots” ] }, { “question”: “What is the burden of proof for a homeowner challenging their HOA in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard used is ‘preponderance of the evidence,’ which means the homeowner must show that their contention is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812.”, “legal_basis”: “A.A.C. R2-19-119(B)(2)”, “topic_tags”: [ “burden of proof”, “administrative hearing”, “legal procedure” ] }, { “question”: “Does the Nonprofit Corporation Act apply to HOAs in Arizona?”, “short_answer”: “Yes, unless the Planned Communities Act specifically exempts the HOA from a provision.”, “detailed_answer”: “The ALJ reasoned that because the legislature specifically exempted planned communities from some parts of the Nonprofit Act but was silent on delegate voting, the Nonprofit Act’s allowance of such systems remains relevant context for HOA governance.”, “alj_quote”: “In fact, the legislature specifically exempted planned communities from certain enumerated provisions of the Nonprofit Act, but did not address delegate voting within the Planned Community Act in any capacity.”, “legal_basis”: “A.R.S. § 10-3101 et seq.”, “topic_tags”: [ “corporate law”, “statutory interpretation”, “nonprofit act” ] }, { “question”: “If I disagree with the Administrative Law Judge’s decision, what can I do?”, “short_answer”: “You can appeal to the Superior Court within 35 days of being served the order.”, “detailed_answer”: “The decision is binding, but parties have the right to seek judicial review. This appeal must be filed with the Superior Court within a strict 35-day window following the service of the order.”, “alj_quote”: “A party wishing to appeal this order must seek judicial review as prescribed by ARIZ. REV. STAT. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties.”, “legal_basis”: “A.R.S. § 41-1092.08(H); A.R.S. § 12-904(A)”, “topic_tags”: [ “appeals”, “judicial review”, “superior court” ] } ] }
Case Participants
Petitioner Side
Robert J. Garing(petitioner) Prescott Lakes Community Association, Inc. member Also served as alternate Voting Member for 2 years
James Thomas Joan(witness) Also listed as Jimmy Yiannis
Respondent Side
Adrianne A. Speas(HOA attorney) Krupnik & Speas, LLC Appeared as counsel for Respondent
Robert Sisley(board president; witness) Prescott Lakes Community Association, Inc. Also Alternate Voting Member for Parkside; served as the association representative
Catherine Black(assistant community manager; witness) Homeco Homeco is the HOA management company for Respondent
Lynn M. Krupnik(HOA attorney) Krupnik & Speas, LLC Counsel listed for Respondent in distribution
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate Final decision authority/recipient of ALJ Decision
Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs)
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's petition, finding that the Petitioner failed to prove that the Association violated CC&Rs Section 2.1 by adopting the Residential Parking Policy. The Policy was deemed a valid clarification authorized by existing CC&R provisions (4.2(t) and 5.3).
Why this result: Petitioner failed to meet the burden of proof required to establish a violation of the governing documents.
Key Issues & Findings
Violation of CC&Rs Section 2.1 regarding adoption of Residential Parking Policy
Petitioner alleged that the Association's adoption of the Residential Parking Policy violated CC&Rs Section 2.1 because the policy used the unauthorized term 'Rules and Regulations' rather than 'restrictions,' thereby attempting to amend the CC&Rs without following the proper process, particularly concerning the use of government-owned property.
Orders: Petitioner's petition was dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA, CC&Rs, Parking Policy, Rules vs Restrictions, Burden of Proof, Planned Community
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H009-REL Decision – 1101544.pdf
Uploaded 2026-01-23T18:01:45 (47.0 KB)
24F-H009-REL Decision – 1111460.pdf
Uploaded 2026-01-23T18:01:48 (102.6 KB)
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Thomas P. Hommrich(petitioner) Property owner, appeared on his own behalf
Respondent Side
Quinten Cupps(HOA attorney) VIal Fotheringham, LLP Represented The Lakewood Community Association
Sandra Smith(community manager) Lakewood Community Association Witness who testified on behalf of Respondent
Neutral Parties
Brian Del Vecchio(ALJ) Office of Administrative Hearings Administrative Law Judge for the hearing and final decision
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Administrative Law Judge who issued the October 12, 2023 Order
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Moses Thompson(Judge) Judge cited in precedent case (Brian Seatic v Lake Resort Condominium)
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
labril(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
Brian Seatic(party) Party in precedent case (Brian Seatic v Lake Resort Condominium) cited during the hearing
The Administrative Law Judge dismissed the petition, finding that Petitioner Harry G. Turner failed to meet his burden of proof to demonstrate that the Mountain Gate Home Owners Association, Inc. violated Article 10 Section 4 of the CC&Rs by planning drainage construction in Tract H.
Why this result: Petitioner failed to provide sufficient evidence to reconcile conflicting designations of Tract H in the plat map (Preserved/Active Open Space vs. Drainage), thus failing to prove that the drainage ditch constituted a prohibited change of use.
Key Issues & Findings
Required membership vote for common area use change (Tract H drainage ditch)
Petitioner alleged the HOA (Respondent) violated CC&Rs Article 10 Section 4 by planning to dig a drainage ditch in Tract H, arguing this was a change of use requiring a 2/3rds membership vote. Respondent argued Tract H was already designated for drainage in the 'Conveyance and Dedication' portion of the plat map, negating the need for a vote.
Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project
Analytics Highlights
Topics: HOA, CC&R, Drainage, Common Area, Change of Use, Burden of Proof, Planned Community, Plat Map
Additional Citations:
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project
Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.
Legal Basis
Burden of Proof
Topic Tags
legal standards
procedure
Question
What is the legal standard of evidence required to win a case against an HOA?
Short Answer
The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.
Detailed Answer
The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.
Alj Quote
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Legal Basis
Preponderance of Evidence
Topic Tags
evidence
legal definitions
Question
What happens if community documents (like a plat map) contain conflicting descriptions of a common area?
Short Answer
If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.
Detailed Answer
In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.
Alj Quote
Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.
Legal Basis
Burden of Proof
Topic Tags
document interpretation
common areas
Question
Does the Department of Real Estate have jurisdiction over CC&R disputes?
Short Answer
Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.
Detailed Answer
Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.
Alj Quote
This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
A.R.S. § 32-2199
Topic Tags
jurisdiction
regulatory authority
Question
If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?
Short Answer
Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.
Detailed Answer
The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.
Alj Quote
Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.
Legal Basis
CC&R Interpretation
Topic Tags
common areas
voting rights
Question
Can I request a civil penalty be levied against my HOA?
Short Answer
You can request it, but it will be denied if you fail to prove the violation.
Detailed Answer
In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Order
Topic Tags
penalties
remedies
Case
Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.
Legal Basis
Burden of Proof
Topic Tags
legal standards
procedure
Question
What is the legal standard of evidence required to win a case against an HOA?
Short Answer
The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.
Detailed Answer
The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.
Alj Quote
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Legal Basis
Preponderance of Evidence
Topic Tags
evidence
legal definitions
Question
What happens if community documents (like a plat map) contain conflicting descriptions of a common area?
Short Answer
If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.
Detailed Answer
In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.
Alj Quote
Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.
Legal Basis
Burden of Proof
Topic Tags
document interpretation
common areas
Question
Does the Department of Real Estate have jurisdiction over CC&R disputes?
Short Answer
Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.
Detailed Answer
Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.
Alj Quote
This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
A.R.S. § 32-2199
Topic Tags
jurisdiction
regulatory authority
Question
If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?
Short Answer
Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.
Detailed Answer
The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.
Alj Quote
Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.
Legal Basis
CC&R Interpretation
Topic Tags
common areas
voting rights
Question
Can I request a civil penalty be levied against my HOA?
Short Answer
You can request it, but it will be denied if you fail to prove the violation.
Detailed Answer
In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Order
Topic Tags
penalties
remedies
Case
Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Harry G. Turner(petitioner) Appeared on his own behalf
Respondent Side
Michael Luden(president/representative) Mountain Gate Home Owners Association, Inc. Appeared on behalf of Respondent. Identified as President of the Homeowners Association
Brenda Anderson(witness/secretary) Mountain Gate Home Owners Association, Inc. Witness for Respondent; Secretary of Mountain Gate Homeowners Association
Kelly Callahan(HOA attorney) HOA's attorney who wrote an email regarding the drainage ditch proposal
Neutral Parties
Brian Del Vecchio(ALJ) OAH Administrative Law Judge
Susan Nicolson(Commissioner) Arizona Department of Real Estate Listed in transmission list
Jeremiah Lloyd(Community Development Director) Pinetop Lakeside Community Development Director for Pinetop Lakeside
Bill Best(County Engineer) Navajo County Navajo County Engineer
Emory Ellsworth(engineer) Painted Sky Engineering and Surveying Engineer consulted by Petitioner
John Murphy(engineer) Murphy Engineering Group Engineer whose company provided original certified plans
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Listed in transmission list
vnunez(ADRE staff) Arizona Department of Real Estate Listed in transmission list
djones(ADRE staff) Arizona Department of Real Estate Listed in transmission list
labril(ADRE staff) Arizona Department of Real Estate Listed in transmission list
Ken Anderson(community member) Mentioned as being present when a document was allegedly falsified
Paradise Park Condominiums Phase II Homeowners Association
Counsel
Ashley N. Moscarello
Alleged Violations
Article II Section 3 of Respondent’s bylaws
Outcome Summary
The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.
Key Issues & Findings
Failure to hold an annual meeting as required by bylaws
The HOA failed to hold the mandatory annual meeting on March 13, 2023, as explicitly required by the amended bylaws (Article II Section 3). The meeting was subsequently scheduled for May 8, 2023, 56 days late, constituting a violation, even though the later meeting failed to meet quorum.
Orders: Petitioner’s petition is affirmed. Respondent shall reimburse Petitioner’s filing fee of $500.00. Petitioner’s request to levy a civil penalty against Respondent is denied.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
23F-H053-REL Decision – 1072068.pdf
Uploaded 2026-01-23T17:57:32 (115.3 KB)
Study Guide – 23F-H053-REL
{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }
Blog Post – 23F-H053-REL
{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }
Case Participants
Petitioner Side
Deborah Masear(petitioner) Paradise Park Condominiums Phase II HOA Member Also referred to as Deborah Maer
Respondent Side
Ashley Moscarello(HOA attorney) Goodman Law Group Appeared on behalf of Respondent
Carl Westlund(witness) Management Trust Community Manager for the HOA
Neutral Parties
Brian Del Vecchio(ALJ) OAH Also referred to as Judge Delio
Petitioner prevailed on the allegation that Respondent failed to provide notice of the board meeting in violation of A.R.S. § 33-1804, resulting in a refund of $500.00. Respondent prevailed on the allegation that the board meeting was required to be open, as the meeting was properly closed to receive legal advice under a statutory exception.
Why this result: Petitioner lost the open meeting claim because the meeting was protected by the legal advice exception under A.R.S. § 33-1804(A)(1).
Key Issues & Findings
Failure to provide notice of board meeting to members.
Petitioner alleged Respondent conducted an unnoticed board meeting regarding obtaining legal advice. Respondent conceded the meeting was unnoticed. The ALJ concluded Respondent was required to provide notice to members that it would be conducting a board meeting to consider legal advice from an attorney that would be closed to members, and failed to do so.
Orders: Respondent must pay Petitioner the filing fee of $500.00 within thirty (30) days. Respondent is directed to comply with the notice requirements of A.R.S. § 33-1804 going forward.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1804
A.R.S. § 33-1804(D)
Board meeting was not open to all members of the association.
Petitioner alleged the meeting, attended by two board members and an attorney, should have been open. Respondent contended the meeting was a permitted closed session to consider legal advice from an attorney regarding reorganization/disbanding, pursuant to A.R.S. § 33-1804(A)(1). The ALJ concluded the meeting was not required to be open because the board members were solely receiving legal advice from an attorney.
If the HOA board meets with their attorney, do they still have to notify homeowners about the meeting?
Short Answer
Yes. Even if the meeting will be closed for legal advice, the board is legally required to provide notice to the members that the meeting is occurring.
Detailed Answer
The ALJ ruled that while a board can close a meeting to receive legal advice, they cannot skip the notice requirement. The HOA in this case violated the law by failing to provide notice of a board meeting where they obtained legal advice.
Alj Quote
Therefore, the Administrative Law Judge concludes that Respondent violated A.R.S. § 33-1804 when it failed to provide notice to its members of the March 31, 2022 board meeting where it obtained legal advice from an attorney.
Legal Basis
A.R.S. § 33-1804
Topic Tags
meetings
notice
legal advice
Question
Can the HOA board exclude homeowners from a meeting if they are discussing legal advice?
Short Answer
Yes. The board is permitted to close a portion of a meeting if it is limited to considering legal advice from an attorney.
Detailed Answer
The ALJ determined that the HOA did not violate the open meeting law by keeping the meeting closed, because the sole purpose was to receive legal advice. This is a specific exception to the open meeting requirement.
Alj Quote
The Administrative law Judge further concludes that Respondent did not violate A.R.S. § 33-1804 when it failed to make the March 31, 2022 board meeting open to members when the only information discussed and obtained was legal advice from an attorney.
Legal Basis
A.R.S. § 33-1804(A)(1)
Topic Tags
meetings
exclusions
attorney-client privilege
Question
Does a gathering of board members count as a 'meeting' if they are just meeting informally or for a workshop?
Short Answer
Yes. If a quorum of the board meets to discuss association business, even informally, they must follow open meeting and notice laws.
Detailed Answer
The decision cites the statute stating that any quorum meeting informally to discuss business must comply with notice and open meeting provisions, regardless of whether a formal vote is taken.
Alj Quote
Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.
Legal Basis
A.R.S. § 33-1804(E)(4)
Topic Tags
meetings
quorum
workshops
Question
If I file a petition against my HOA and win, will the HOA have to reimburse my filing fees?
Short Answer
Yes, the judge can order the HOA to reimburse the filing fee if the homeowner prevails on the issue.
Detailed Answer
In this case, because the homeowner prevailed on the issue regarding the lack of notice, the ALJ ordered the HOA to pay back the $500 filing fee.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Order of the ALJ
Topic Tags
fees
reimbursement
penalties
Question
Does a violation of the open meeting law always result in a fine for the HOA?
Short Answer
No. The judge has discretion and may decide that no civil penalty is appropriate even if a violation occurred.
Detailed Answer
Although the HOA was found to have violated the notice statute, the ALJ explicitly stated that no civil penalty was appropriate in this specific matter.
Alj Quote
No Civil Penalty is found to be appropriate in this matter.
Legal Basis
Discretion of ALJ
Topic Tags
civil penalty
fines
enforcement
Question
What legal standard do I have to meet to prove my HOA violated the rules?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more probably true than not.
Detailed Answer
The decision defines the burden of proof as the greater weight of the evidence, sufficient to incline a fair and impartial mind to one side rather than the other.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated the CC&Rs by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
legal standard
burden of proof
evidence
Case
Docket No
23F-H038-REL
Case Title
Clifford S. Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-20
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Questions
Question
If the HOA board meets with their attorney, do they still have to notify homeowners about the meeting?
Short Answer
Yes. Even if the meeting will be closed for legal advice, the board is legally required to provide notice to the members that the meeting is occurring.
Detailed Answer
The ALJ ruled that while a board can close a meeting to receive legal advice, they cannot skip the notice requirement. The HOA in this case violated the law by failing to provide notice of a board meeting where they obtained legal advice.
Alj Quote
Therefore, the Administrative Law Judge concludes that Respondent violated A.R.S. § 33-1804 when it failed to provide notice to its members of the March 31, 2022 board meeting where it obtained legal advice from an attorney.
Legal Basis
A.R.S. § 33-1804
Topic Tags
meetings
notice
legal advice
Question
Can the HOA board exclude homeowners from a meeting if they are discussing legal advice?
Short Answer
Yes. The board is permitted to close a portion of a meeting if it is limited to considering legal advice from an attorney.
Detailed Answer
The ALJ determined that the HOA did not violate the open meeting law by keeping the meeting closed, because the sole purpose was to receive legal advice. This is a specific exception to the open meeting requirement.
Alj Quote
The Administrative law Judge further concludes that Respondent did not violate A.R.S. § 33-1804 when it failed to make the March 31, 2022 board meeting open to members when the only information discussed and obtained was legal advice from an attorney.
Legal Basis
A.R.S. § 33-1804(A)(1)
Topic Tags
meetings
exclusions
attorney-client privilege
Question
Does a gathering of board members count as a 'meeting' if they are just meeting informally or for a workshop?
Short Answer
Yes. If a quorum of the board meets to discuss association business, even informally, they must follow open meeting and notice laws.
Detailed Answer
The decision cites the statute stating that any quorum meeting informally to discuss business must comply with notice and open meeting provisions, regardless of whether a formal vote is taken.
Alj Quote
Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.
Legal Basis
A.R.S. § 33-1804(E)(4)
Topic Tags
meetings
quorum
workshops
Question
If I file a petition against my HOA and win, will the HOA have to reimburse my filing fees?
Short Answer
Yes, the judge can order the HOA to reimburse the filing fee if the homeowner prevails on the issue.
Detailed Answer
In this case, because the homeowner prevailed on the issue regarding the lack of notice, the ALJ ordered the HOA to pay back the $500 filing fee.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Order of the ALJ
Topic Tags
fees
reimbursement
penalties
Question
Does a violation of the open meeting law always result in a fine for the HOA?
Short Answer
No. The judge has discretion and may decide that no civil penalty is appropriate even if a violation occurred.
Detailed Answer
Although the HOA was found to have violated the notice statute, the ALJ explicitly stated that no civil penalty was appropriate in this specific matter.
Alj Quote
No Civil Penalty is found to be appropriate in this matter.
Legal Basis
Discretion of ALJ
Topic Tags
civil penalty
fines
enforcement
Question
What legal standard do I have to meet to prove my HOA violated the rules?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more probably true than not.
Detailed Answer
The decision defines the burden of proof as the greater weight of the evidence, sufficient to incline a fair and impartial mind to one side rather than the other.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated the CC&Rs by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
legal standard
burden of proof
evidence
Case
Docket No
23F-H038-REL
Case Title
Clifford S. Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-20
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Clifford S. Burnes(petitioner; witness) Saguaro Crest Homeowners' Association member Also known as Clifford (Norm) S. Burnes,; appeared on behalf of himself,.
Respondent Side
John T. Crotty(HOA attorney) Saguaro Crest Homeowners' Association Appeared on behalf of Respondent,.
Esmeralda Sarina Ayala-Martinez(board member; witness) Saguaro Crest Homeowners' Association Also referred to as Esmeralda Sarina-Ayala Martinez or Esmerita Martinez; testified on behalf of Respondent.
Dave Madill(board member) Saguaro Crest Homeowners' Association Vice President; also referred to as Dave Matt or Dave Medil; was one of the two board members who met with the attorney.
Joseph Martinez(board member) Saguaro Crest Homeowners' Association Husband of Esmeralda Sarina Ayala-Martinez; third board member.
David A. Melvoy(HOA attorney/legal counsel) Saguaro Crest Homeowners' Association Provided legal advice during the underlying May 31, 2022, closed meeting; also referred to as David Mackoy, Eoy, or Eway,,.
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Susan Nicolson(ADRE staff) Arizona Department of Real Estate Recipient of official transmission,.
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of official transmission,.
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of official transmission,.
djones(ADRE staff) Arizona Department of Real Estate Recipient of official transmission,.
labril(ADRE staff) Arizona Department of Real Estate Recipient of official transmission,.
The Administrative Law Judge dismissed the Petition, finding that the Respondent HOA did not violate Article XV of the Articles of Incorporation during the dissolution vote. The required 2/3 majority was achieved with 11 votes in favor, and the requirement for signed assent was met by the signatures provided on the ballot envelopes.
Why this result: Petitioner failed to meet the burden of proof to establish the alleged violation by a preponderance of the evidence.
Key Issues & Findings
Violation of voting requirements for dissolution of the Homeowners Association
Petitioner alleged that the dissolution vote was invalid because the ballots were not signed, and Respondent failed to achieve the 2/3 authorized votes needed, noting only 9 ballots were cast for dissolution. Respondent argued that 11 votes were cast, meeting the 2/3 requirement (10 votes needed), and that signatures on the ballot envelopes satisfied the Article XV requirement for assent given in writing and signed by Owners.
Orders: Petitioner’s Petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199
ARIZ. REV. STAT. section 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Analytics Highlights
Topics: HOA, Articles of Incorporation, Voting Rights, Dissolution, Burden of Proof, Planned Community
Additional Citations:
A.R.S. § 32-2199
ARIZ. REV. STAT. section 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Video Overview
Audio Overview
Decision Documents
23F-H033-REL Decision – 1035350.pdf
Uploaded 2026-01-23T17:54:11 (55.1 KB)
23F-H033-REL Decision – 1049512.pdf
Uploaded 2026-01-23T17:54:15 (100.5 KB)
Questions
Question
If my HOA requires votes to be 'in writing and signed,' does the ballot itself need a signature?
Short Answer
Not necessarily. If the governing documents do not explicitly specify that the ballot itself must be signed, a signature on the envelope containing the ballot may satisfy the requirement.
Detailed Answer
The ALJ determined that if the Articles of Incorporation require assent 'in writing and signed' but do not specify that the ballot itself must be signed, a signature on the envelope containing the ballot is sufficient compliance. In this case, envelopes with the homeowner's signature, lot number, and date were deemed to satisfy the requirement.
Alj Quote
Article XV of the Articles of Incorporation does not specify that the ballot itself must signed, and in this case, the signatures are contained on the envelopes that held the corresponding ballots, thereby satisfying the language of the charged provision.
Legal Basis
Articles of Incorporation, Article XV
Topic Tags
voting
ballots
signatures
governing documents
Question
If I own multiple lots, do I need to submit a separate physical ballot for each lot?
Short Answer
No, unless you can cite specific legal authority or governing documents that require separate physical ballots.
Detailed Answer
The ALJ rejected the argument that separate ballots are required for each vote possessed by homeowners who own multiple lots, specifically noting that the petitioner failed to provide any authority supporting that claim.
Alj Quote
Petitioner further testified that there should have been separate ballots for each vote for homeowners who own two lots. However, Petitioner did not cite to any authority establishing such.
Legal Basis
Lack of citation to authority
Topic Tags
voting
multiple lots
ballots
Question
How are votes counted if some homeowners own more than one property?
Short Answer
Votes are counted based on 'authorized votes' rather than just the number of physical ballots cast. One ballot may represent multiple votes.
Detailed Answer
The ALJ accepted the calculation where fewer physical ballots were cast than the total vote count because some ballots represented multiple votes (one for each lot owned). The decision validated that 9 ballots could validly represent 11 authorized votes.
Alj Quote
In this case, eleven (11) votes were cast on nine (9) ballots, which represents at least 2/3 of the owners authorized to vote.
Legal Basis
Articles of Incorporation, Article XV
Topic Tags
voting
vote counting
authorized votes
Question
Who is responsible for proving that the HOA violated the rules?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner alleging the violation must prove their case by a 'preponderance of the evidence.' It is not the HOA's job to disprove the allegation initially.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
What does 'preponderance of the evidence' mean in an HOA dispute?
Short Answer
It means the claim is more likely true than not.
Detailed Answer
The ALJ defines this standard as proof that convinces the decision-maker that the contention is 'more probably true than not,' or holds the greater weight of evidence.
Alj Quote
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5
Topic Tags
legal definitions
evidence
standard of proof
Case
Docket No
23F-H033-REL
Case Title
Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-14
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Questions
Question
If my HOA requires votes to be 'in writing and signed,' does the ballot itself need a signature?
Short Answer
Not necessarily. If the governing documents do not explicitly specify that the ballot itself must be signed, a signature on the envelope containing the ballot may satisfy the requirement.
Detailed Answer
The ALJ determined that if the Articles of Incorporation require assent 'in writing and signed' but do not specify that the ballot itself must be signed, a signature on the envelope containing the ballot is sufficient compliance. In this case, envelopes with the homeowner's signature, lot number, and date were deemed to satisfy the requirement.
Alj Quote
Article XV of the Articles of Incorporation does not specify that the ballot itself must signed, and in this case, the signatures are contained on the envelopes that held the corresponding ballots, thereby satisfying the language of the charged provision.
Legal Basis
Articles of Incorporation, Article XV
Topic Tags
voting
ballots
signatures
governing documents
Question
If I own multiple lots, do I need to submit a separate physical ballot for each lot?
Short Answer
No, unless you can cite specific legal authority or governing documents that require separate physical ballots.
Detailed Answer
The ALJ rejected the argument that separate ballots are required for each vote possessed by homeowners who own multiple lots, specifically noting that the petitioner failed to provide any authority supporting that claim.
Alj Quote
Petitioner further testified that there should have been separate ballots for each vote for homeowners who own two lots. However, Petitioner did not cite to any authority establishing such.
Legal Basis
Lack of citation to authority
Topic Tags
voting
multiple lots
ballots
Question
How are votes counted if some homeowners own more than one property?
Short Answer
Votes are counted based on 'authorized votes' rather than just the number of physical ballots cast. One ballot may represent multiple votes.
Detailed Answer
The ALJ accepted the calculation where fewer physical ballots were cast than the total vote count because some ballots represented multiple votes (one for each lot owned). The decision validated that 9 ballots could validly represent 11 authorized votes.
Alj Quote
In this case, eleven (11) votes were cast on nine (9) ballots, which represents at least 2/3 of the owners authorized to vote.
Legal Basis
Articles of Incorporation, Article XV
Topic Tags
voting
vote counting
authorized votes
Question
Who is responsible for proving that the HOA violated the rules?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner alleging the violation must prove their case by a 'preponderance of the evidence.' It is not the HOA's job to disprove the allegation initially.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
What does 'preponderance of the evidence' mean in an HOA dispute?
Short Answer
It means the claim is more likely true than not.
Detailed Answer
The ALJ defines this standard as proof that convinces the decision-maker that the contention is 'more probably true than not,' or holds the greater weight of evidence.
Alj Quote
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5
Topic Tags
legal definitions
evidence
standard of proof
Case
Docket No
23F-H033-REL
Case Title
Burnes v. Saguaro Crest Homeowners' Association
Decision Date
2023-04-14
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Clifford S. Burnes(petitioner) Also referred to as Clifford (Norm) S. Burnes
Respondent Side
John T. Crotty(HOA attorney) LAW OFFICES OF COLLIN T. WELCH
Esmeralda Sarina Ayala-Martinez(HOA President, witness) Saguaro Crest Homeowners' Association Also referred to as Sarina Martinez or Serena Martinez
Neutral Parties
Sondra J. Vanella(ALJ)
Susan Nicolson(Commissioner) ADRE
Tammy I(ALJ) Mentioned as presiding over related case
The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.
Why this result: The Bylaws did not strictly require elections be held, and Petitioner failed to object to the board remaining in place to oversee the dissolution.
Key Issues & Findings
Annual meeting
Petitioner alleged the HOA violated Article 2.1 of the Bylaws by failing to hold Board of Directors elections at the 2021 annual meeting. Respondent argued the language ('for the purpose of electing or announcing the results') did not require elections and that the dissolution vote superseded the immediate need for elections, especially since no one objected at the meeting.
Orders: Petitioner’s petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Decision Documents
23F-H031-REL Decision – 1035344.pdf
Uploaded 2026-01-23T17:53:49 (51.8 KB)
23F-H031-REL Decision – 1049021.pdf
Uploaded 2026-01-23T17:53:51 (114.7 KB)
Study Guide – 23F-H031-REL
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23F-H031-REL
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These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.
What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.
Thursday, February 12
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Today • 2:17 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 23F-H031-REL
Select all sources
1035344.pdf
1045278.aac
1049021.pdf
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23F-H031-REL
3 sources
These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.
What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.
Thursday, February 12
Save to note
Today • 2:17 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Clifford S. Burnes(petitioner) Saguaro Crest Homeowners' Association Member Also referred to as Clifford (Norm) Burnes.
Respondent Side
John T. Crotty(HOA attorney) Saguaro Crest Homeowners' Association
Esmerina Martinez(board member) Saguaro Crest Homeowners' Association President; referred to as Serena Martinez or Esmerelda Martinez in sources.
Dave Madill(board member) Saguaro Crest Homeowners' Association Vice President; referred to as Dave Matt or Dave Mel in testimony.
Joseph Martinez(board member) Saguaro Crest Homeowners' Association
Neutral Parties
Adam D. Stone(ALJ) OAH
Susan Nicolson(Commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
djones(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
labril(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
CC&R’s Article XI, Sections 1, 2, and 3; Summit View Community Plat Notes
Outcome Summary
The Administrative Law Judge denied the petition, ruling that the Petitioner failed to meet the burden of proof to establish that the walls were built on the common area. Since HOA maintenance responsibility primarily attached to the common area, and the location of the walls relative to the lots remained unproven, the HOA was not found in violation of its maintenance obligations.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the walls were located in a common area. No survey evidence was presented to determine whether the walls were on the individual lots (Owner responsibility) or the common area (HOA responsibility).
Key Issues & Findings
HOA failure to maintain perimeter walls and improper charging of homeowners for repairs.
Petitioner alleged that the HOA (SVHA) violated CC&R Article XI, Sections 1, 2, and 3, and the Community Plat Notes by failing to maintain the subdivision perimeter walls and charging homeowners for repairs, arguing the walls abutted and were part of the Common Area (NAOS), making maintenance the HOA's responsibility.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
CC&R Article XI, Section 1
CC&R Article XI, Section 2
CC&R Article XI, Section 3
Summit View Community Plat Notes
Analytics Highlights
Topics: HOA, Maintenance, Perimeter Walls, CC&R, Common Area, Burden of Proof, NAOS, Lot Line Dispute
Who has the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
legal standards
burden of proof
procedural requirements
Question
What level of evidence is required to win a dispute against an HOA?
Short Answer
A 'preponderance of the evidence,' meaning the claim is more likely true than not.
Detailed Answer
The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
legal standards
evidence
hearings
Question
If a wall touches an HOA common area, does the HOA automatically have to maintain it?
Short Answer
No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.
Detailed Answer
Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.
Alj Quote
There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
maintenance
common areas
boundaries
Question
Is a professional survey necessary to prove a boundary or maintenance dispute?
Short Answer
Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.
Detailed Answer
If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.
Alj Quote
However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.
Legal Basis
Conclusions of Law
Topic Tags
evidence
surveys
property lines
Question
Does the alignment of walls affect who is responsible for them?
Short Answer
Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.
Detailed Answer
In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.
Alj Quote
Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.
Legal Basis
Conclusions of Law
Topic Tags
maintenance
construction
HOA obligations
Question
Can I rely solely on Plat Notes to prove HOA maintenance responsibility?
Short Answer
Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.
Detailed Answer
Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.
Alj Quote
Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
cc&rs
plat maps
interpretation
Case
Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Who has the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)
Topic Tags
legal standards
burden of proof
procedural requirements
Question
What level of evidence is required to win a dispute against an HOA?
Short Answer
A 'preponderance of the evidence,' meaning the claim is more likely true than not.
Detailed Answer
The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
legal standards
evidence
hearings
Question
If a wall touches an HOA common area, does the HOA automatically have to maintain it?
Short Answer
No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.
Detailed Answer
Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.
Alj Quote
There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
maintenance
common areas
boundaries
Question
Is a professional survey necessary to prove a boundary or maintenance dispute?
Short Answer
Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.
Detailed Answer
If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.
Alj Quote
However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.
Legal Basis
Conclusions of Law
Topic Tags
evidence
surveys
property lines
Question
Does the alignment of walls affect who is responsible for them?
Short Answer
Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.
Detailed Answer
In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.
Alj Quote
Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.
Legal Basis
Conclusions of Law
Topic Tags
maintenance
construction
HOA obligations
Question
Can I rely solely on Plat Notes to prove HOA maintenance responsibility?
Short Answer
Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.
Detailed Answer
Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.
Alj Quote
Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.
Legal Basis
Findings of Fact / Conclusions of Law
Topic Tags
cc&rs
plat maps
interpretation
Case
Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Carolyn Wefsenmoe(petitioner) Appeared via Google Meet on her own behalf
Respondent Side
Chad M. Gallacher(HOA attorney) Maxwell & Morgan, P.C.
Bick Smith(witness/board president) Summit View Homeowner's Association Also referred to as Vic Smith; testified for Respondent
Henry(board member) Summit View Homeowner's Association Discussed erosion issues; toured walls with Bick Smith
Denise(board member) Summit View Homeowner's Association Participated in special board meeting
Larry Burns(property manager/GM) Summit View Homeowner's Association General Manager who wrote community painting update; participated in board meeting
Neutral Parties
Adam D. Stone(ALJ) OAH
Louis Dettorre(Commissioner) Arizona Department of Real Estate Transmitted minute entry to
James Knupp(Acting Commissioner) Arizona Department of Real Estate Transmitted order to
Susan Nicolson(Commissioner) Arizona Department of Real Estate Transmitted ALJ decision to
AHansen(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
vnunez(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
djones(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
labril(ADRE Staff) Arizona Department of Real Estate Email recipient for transmitted documents
c. serrano(OAH Staff) OAH Signed minute entries for transmission
Helen Purcell(county recorder) Maricopa County Recorded Amended CC&R Declaration in 2004
Maria Rosana Pira(notary public) Maricopa County Notarized Amended CC&R and Bylaws in 2004
Other Participants
Elelliana(unknown) Correspondent in objected-to email exhibit
Beth Mulcahy(attorney) Mulcahy Law Firm, P.C. Firm filed the Amended CC&R Declaration in 2004
LizzieG(customer service rep) Brown Community Management Customer service contact listed on billing document
