Tag Archives: Motion to Dismiss

Susannah Sabnekar v. Four Peaks Vista Owners Association

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Case Summary

Case ID 24F-H006-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-10-26
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susannah Sabnekar Counsel —
Respondent Four Peaks Vista Owners Association Counsel Maria McKee

Alleged Violations

A.R.S. §§ 33-1252 and 33-1217

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the statutes cited by the petitioner regarding conveyance of common elements (A.R.S. §§ 33-1252 and 33-1217) do not apply to the leasing of common elements, which was the action taken by the Respondent HOA.

Why this result: The statutes cited by the Petitioner apply to conveyances, but the disputed action was determined to be a lease, which is treated separately under Arizona's Condominium Act.

Key Issues & Findings

Whether the Board violated statute by conveying a portion of common elements without a vote from all homeowners.

Petitioner alleged the HOA violated A.R.S. §§ 33-1252 and 33-1217 by approving a lease agreement granting the Declarant (Four Peaks) the right to use a portion of the clubhouse as a management office, arguing this action constituted a conveyance requiring an 80% homeowner vote. The ALJ ruled that the statutes apply only to conveyances, not leases, and found no violation.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • 33-1252
  • 33-1217
  • 33-1242
  • 33-1225

Analytics Highlights

Topics: Condominium Act, Lease vs Conveyance, Common Elements, Declarant Rights, Motion to Dismiss
Additional Citations:

  • 33-1252
  • 33-1217
  • 33-1242
  • 33-1225
  • 33-1226

Video Overview

Audio Overview

Decision Documents

24F-H006-REL Decision – 1097274.pdf

Uploaded 2026-01-23T18:00:57 (52.7 KB)

24F-H006-REL Decision – 1099296.pdf

Uploaded 2026-01-23T18:01:00 (50.8 KB)

24F-H006-REL Decision – 1099320.pdf

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

24F-H006-REL Decision – 1106232.pdf

Uploaded 2026-01-23T18:01:09 (118.8 KB)

Questions

Question

Does leasing a common area count as 'conveying' it, requiring a supermajority vote?

Short Answer

No. Leasing and conveying are separate legal concepts in Arizona, and leasing does not trigger the voting requirements of a conveyance.

Detailed Answer

The ALJ determined that Arizona law distinguishes between leasing real property and conveying it. While a conveyance (transfer of title) of common elements often requires an 80% vote under A.R.S. § 33-1252, granting a lease does not. The Association has the specific statutory right to grant leases over common elements without meeting the stricter requirements for a conveyance.

Alj Quote

Plainly, Arizona law distinguishes between leasing real property and conveying it. These are two separate legal concepts. … The Administrative Law Judge concludes that A.R.S. §§ 33-1252 and A.R.S. 33-1217 do not apply to leases, but rather conveyances.

Legal Basis

A.R.S. § 33-1242(A)(9); A.R.S. § 33-1252

Topic Tags

  • common elements
  • leasing
  • voting requirements

Question

Can the HOA board authorize a lease of common elements without a vote of all homeowners?

Short Answer

Yes. The Board generally has the authority to grant leases, whereas conveying the property would require a homeowner vote.

Detailed Answer

The decision highlights that A.R.S. § 33-1242(A)(9) expressly gives the Association the right to lease common elements. This section does not reference the voting requirements found in A.R.S. § 33-1252, which applies only when the Association conveys or encumbers the property (like a mortgage).

Alj Quote

Notably, subsection (A)(9) expressly provides the Association the right to enter into the Lease, without any mention of A.R.S. § 33-1252, while the right to 'convey' Common Elements is subject to the requirements imposed in A.R.S. § 33-1252.

Legal Basis

A.R.S. § 33-1242(A)(9)

Topic Tags

  • board authority
  • leasing
  • common elements

Question

Is a Declarant allowed to use common elements for management offices?

Short Answer

Yes, a Declarant may maintain offices on common elements unless the Declaration specifically prohibits it.

Detailed Answer

The ALJ cited A.R.S. § 33-1225, which explicitly permits a declarant to maintain sales and management offices on common elements unless the community's declaration says otherwise or another law prohibits it.

Alj Quote

A declarant may maintain sales offices, management offices and models in units or on common elements in the condominium unless: 1. The declaration provides otherwise. 2. Such use is prohibited by another provision of law or local ordinances.

Legal Basis

A.R.S. § 33-1225

Topic Tags

  • declarant rights
  • common elements
  • offices

Question

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

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 is 'preponderance of the evidence,' meaning they must show it is more probable than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. §§ 33-1252 and A.R.S. 33-1217 by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal procedure
  • burden of proof

Question

What qualifies as a 'conveyance' of HOA property?

Short Answer

A conveyance is generally interpreted as a total transfer of fee title, usually evidenced by a recorded deed.

Detailed Answer

The decision clarifies that a conveyance involves a permanent transfer of interest, such as through a deed, and must be recorded. A lease, which is for a set period and does not transfer title, does not qualify as a conveyance.

Alj Quote

The Legislature… made clear its intent that a conveyance is a total transfer of fee title. … Furthermore, once any such 'conveyance' occurs, it must be evidenced by the execution and recording of the document in the same manner as a deed.

Legal Basis

A.R.S. § 33-1252(A); A.R.S. § 33-1252(B)

Topic Tags

  • definitions
  • conveyance
  • property rights

Question

How are ambiguous restrictive covenants in CC&Rs interpreted?

Short Answer

If they are unambiguous, they are enforced according to the intent of the parties.

Detailed Answer

The ALJ noted that restrictive covenants must be viewed as a whole and interpreted based on their underlying purpose. If the text is clear (unambiguous), it is enforced to uphold the parties' intent.

Alj Quote

In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. 'Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.'

Legal Basis

Case Law (Powell v. Washburn)

Topic Tags

  • CC&Rs
  • interpretation
  • legal standards

Case

Docket No
24F-H006-REL
Case Title
Susannah Sabnekar vs. Four Peaks Vista Owners Association
Decision Date
2023-10-26
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Does leasing a common area count as 'conveying' it, requiring a supermajority vote?

Short Answer

No. Leasing and conveying are separate legal concepts in Arizona, and leasing does not trigger the voting requirements of a conveyance.

Detailed Answer

The ALJ determined that Arizona law distinguishes between leasing real property and conveying it. While a conveyance (transfer of title) of common elements often requires an 80% vote under A.R.S. § 33-1252, granting a lease does not. The Association has the specific statutory right to grant leases over common elements without meeting the stricter requirements for a conveyance.

Alj Quote

Plainly, Arizona law distinguishes between leasing real property and conveying it. These are two separate legal concepts. … The Administrative Law Judge concludes that A.R.S. §§ 33-1252 and A.R.S. 33-1217 do not apply to leases, but rather conveyances.

Legal Basis

A.R.S. § 33-1242(A)(9); A.R.S. § 33-1252

Topic Tags

  • common elements
  • leasing
  • voting requirements

Question

Can the HOA board authorize a lease of common elements without a vote of all homeowners?

Short Answer

Yes. The Board generally has the authority to grant leases, whereas conveying the property would require a homeowner vote.

Detailed Answer

The decision highlights that A.R.S. § 33-1242(A)(9) expressly gives the Association the right to lease common elements. This section does not reference the voting requirements found in A.R.S. § 33-1252, which applies only when the Association conveys or encumbers the property (like a mortgage).

Alj Quote

Notably, subsection (A)(9) expressly provides the Association the right to enter into the Lease, without any mention of A.R.S. § 33-1252, while the right to 'convey' Common Elements is subject to the requirements imposed in A.R.S. § 33-1252.

Legal Basis

A.R.S. § 33-1242(A)(9)

Topic Tags

  • board authority
  • leasing
  • common elements

Question

Is a Declarant allowed to use common elements for management offices?

Short Answer

Yes, a Declarant may maintain offices on common elements unless the Declaration specifically prohibits it.

Detailed Answer

The ALJ cited A.R.S. § 33-1225, which explicitly permits a declarant to maintain sales and management offices on common elements unless the community's declaration says otherwise or another law prohibits it.

Alj Quote

A declarant may maintain sales offices, management offices and models in units or on common elements in the condominium unless: 1. The declaration provides otherwise. 2. Such use is prohibited by another provision of law or local ordinances.

Legal Basis

A.R.S. § 33-1225

Topic Tags

  • declarant rights
  • common elements
  • offices

Question

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

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 is 'preponderance of the evidence,' meaning they must show it is more probable than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. §§ 33-1252 and A.R.S. 33-1217 by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal procedure
  • burden of proof

Question

What qualifies as a 'conveyance' of HOA property?

Short Answer

A conveyance is generally interpreted as a total transfer of fee title, usually evidenced by a recorded deed.

Detailed Answer

The decision clarifies that a conveyance involves a permanent transfer of interest, such as through a deed, and must be recorded. A lease, which is for a set period and does not transfer title, does not qualify as a conveyance.

Alj Quote

The Legislature… made clear its intent that a conveyance is a total transfer of fee title. … Furthermore, once any such 'conveyance' occurs, it must be evidenced by the execution and recording of the document in the same manner as a deed.

Legal Basis

A.R.S. § 33-1252(A); A.R.S. § 33-1252(B)

Topic Tags

  • definitions
  • conveyance
  • property rights

Question

How are ambiguous restrictive covenants in CC&Rs interpreted?

Short Answer

If they are unambiguous, they are enforced according to the intent of the parties.

Detailed Answer

The ALJ noted that restrictive covenants must be viewed as a whole and interpreted based on their underlying purpose. If the text is clear (unambiguous), it is enforced to uphold the parties' intent.

Alj Quote

In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. 'Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.'

Legal Basis

Case Law (Powell v. Washburn)

Topic Tags

  • CC&Rs
  • interpretation
  • legal standards

Case

Docket No
24F-H006-REL
Case Title
Susannah Sabnekar vs. Four Peaks Vista Owners Association
Decision Date
2023-10-26
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Susannah Sabnekar (petitioner)
    Homeowner
  • Amy Watier (witness)
    Homeowner, current board member, and previous board member

Respondent Side

  • Maria McKee (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen, PLC
    Council for Respondent
  • Chad P. Miesen (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen, PLC
    Council for Respondent
  • Charlie Markle (HOA attorney)
    Council for the Association
  • Kathy Gower (property manager)
    Four Peaks Vista Owners Association
    Community manager
  • Shelley Kobat (board member)
    Four Peaks Vista Owners Association
    Associate board president

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission list

Thomas P. Hommrich v. The Lakewood Community Association

Posted on by

Case Summary

Case ID 23F-H048-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-19
Administrative Law Judge Velva Moses-Thompson
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas P. Hommrich Counsel —
Respondent The Lakewood Community Association Counsel Quinten Cupps, Esq.

Alleged Violations

Article lV, Section 4.2(t) of the CC&R's

Outcome Summary

Order Granting Respondent’s Motion to Dismiss the Petition on jurisdictional grounds.

Why this result: The Administrative Law Judge ruled that the Office of Administrative Hearings (OAH) lacked jurisdiction to hear the case because the petition challenged the Association’s power to act (A.R.S. § 10-3304), which requires injunctive relief in a court of law, and did not concern a violation of community documents or statute (A.R.S. § 32-2199.01(A)).

Key Issues & Findings

Authority to enforce parking rule on residential public streets

Petitioner sought an order prohibiting the Respondent from restricting parking access on public residential streets, alleging the Association breached the CC&Rs by misapplying Article IV, Section 4.2(t).

Orders: The petition was dismissed because OAH lacked jurisdiction as the case challenged the Association's power to act under A.R.S. § 10-3304, rather than alleging a violation of community documents or statute under A.R.S. § 32-2199.01(A).

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 10-3304
  • A.R.S. § 10-3304(B)(2)

Analytics Highlights

Topics: Parking Restrictions, Jurisdiction, Motion to Dismiss, CC&Rs
Additional Citations:

  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 10-3304
  • A.R.S. § 10-3304(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

23F-H048-REL Decision – 1057905.pdf

Uploaded 2026-01-23T17:57:20 (71.7 KB)

23F-H048-REL Decision – 1059621.pdf

Uploaded 2026-01-23T17:57:22 (44.2 KB)

Questions

Question

Can I use the administrative hearing process to challenge my HOA's legal authority or power to enforce a specific rule?

Short Answer

No. Challenges to an Association's corporate power to act must be brought in a court of law, not the administrative tribunal.

Detailed Answer

The Administrative Law Judge ruled that the tribunal does not have jurisdiction to hear challenges regarding the Association's 'power to act' (such as whether they have the authority to restrict parking). Under Arizona statute A.R.S. § 10-3304, these specific legal challenges regarding corporate authority must be addressed in a court of law.

Alj Quote

Petitioner may not challenge the Association’s power to act in this tribunal under A.R.S. § 10-3304. Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • jurisdiction
  • corporate power
  • HOA authority

Question

If I disagree with a decision, can I file a motion to amend my petition after the order has been issued?

Short Answer

No. Once a decision is rendered, the Office of Administrative Hearings cannot consider motions to amend.

Detailed Answer

The ALJ clarified that once a decision is finalized, the OAH loses the ability to take further action on the matter, meaning a Motion to Amend filed after the decision cannot be considered.

Alj Quote

The Motion to Amend the Petition cannot not be considered by the Office of Administrative Hearings (OAH) as this tribunal’s decision has already been rendered and, because of that, OAH can take no further action on the matter.

Legal Basis

Procedural Rule

Topic Tags

  • procedure
  • appeals
  • amendments

Question

Where must I file a request for a rehearing if I lose my case?

Short Answer

You must file the request with the Commissioner of the Department of Real Estate (ADRE), not the hearing office.

Detailed Answer

While the hearing takes place at the Office of Administrative Hearings (OAH), a request for a rehearing must be directed to the Arizona Department of Real Estate within 30 days 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

  • rehearing
  • procedure
  • ADRE

Question

Can the administrative tribunal issue an injunction preventing the HOA from enforcing parking restrictions on public streets?

Short Answer

Likely no, if the claim is based on the HOA lacking the 'power to act'.

Detailed Answer

The petitioner sought an order prohibiting the HOA from restricting parking on public streets. The ALJ dismissed this because the claim was fundamentally about the Association's authority (power to act), which falls outside the tribunal's jurisdiction.

Alj Quote

Petitioner asks this Court to issue an order that prohibits the Respondent from restricting parking access on public residential streets… Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • parking
  • injunctions
  • jurisdiction

Question

Does a petition challenging an HOA rule have to allege a specific violation of the community documents or statutes?

Short Answer

Yes. If the petition does not concern a violation of documents or statutes, it may be dismissed.

Detailed Answer

The HOA successfully argued that the petition should be dismissed because it did not allege that the HOA violated community documents or statutes, but rather challenged the HOA's authority to make rules.

Alj Quote

Therefore, the petition does not concern a violation of community documents or of any statute… IT IS ORDERED that the petition is dismissed.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • petition requirements
  • dismissal
  • violations

Case

Docket No
23F-H048-REL
Case Title
Thomas P. Hommrich vs. The Lakewood Community Association
Decision Date
2023-05-19
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I use the administrative hearing process to challenge my HOA's legal authority or power to enforce a specific rule?

Short Answer

No. Challenges to an Association's corporate power to act must be brought in a court of law, not the administrative tribunal.

Detailed Answer

The Administrative Law Judge ruled that the tribunal does not have jurisdiction to hear challenges regarding the Association's 'power to act' (such as whether they have the authority to restrict parking). Under Arizona statute A.R.S. § 10-3304, these specific legal challenges regarding corporate authority must be addressed in a court of law.

Alj Quote

Petitioner may not challenge the Association’s power to act in this tribunal under A.R.S. § 10-3304. Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • jurisdiction
  • corporate power
  • HOA authority

Question

If I disagree with a decision, can I file a motion to amend my petition after the order has been issued?

Short Answer

No. Once a decision is rendered, the Office of Administrative Hearings cannot consider motions to amend.

Detailed Answer

The ALJ clarified that once a decision is finalized, the OAH loses the ability to take further action on the matter, meaning a Motion to Amend filed after the decision cannot be considered.

Alj Quote

The Motion to Amend the Petition cannot not be considered by the Office of Administrative Hearings (OAH) as this tribunal’s decision has already been rendered and, because of that, OAH can take no further action on the matter.

Legal Basis

Procedural Rule

Topic Tags

  • procedure
  • appeals
  • amendments

Question

Where must I file a request for a rehearing if I lose my case?

Short Answer

You must file the request with the Commissioner of the Department of Real Estate (ADRE), not the hearing office.

Detailed Answer

While the hearing takes place at the Office of Administrative Hearings (OAH), a request for a rehearing must be directed to the Arizona Department of Real Estate within 30 days 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

  • rehearing
  • procedure
  • ADRE

Question

Can the administrative tribunal issue an injunction preventing the HOA from enforcing parking restrictions on public streets?

Short Answer

Likely no, if the claim is based on the HOA lacking the 'power to act'.

Detailed Answer

The petitioner sought an order prohibiting the HOA from restricting parking on public streets. The ALJ dismissed this because the claim was fundamentally about the Association's authority (power to act), which falls outside the tribunal's jurisdiction.

Alj Quote

Petitioner asks this Court to issue an order that prohibits the Respondent from restricting parking access on public residential streets… Petitioner may seek injunctive relief regarding the Association’s power to act in a court of law.

Legal Basis

A.R.S. § 10-3304

Topic Tags

  • parking
  • injunctions
  • jurisdiction

Question

Does a petition challenging an HOA rule have to allege a specific violation of the community documents or statutes?

Short Answer

Yes. If the petition does not concern a violation of documents or statutes, it may be dismissed.

Detailed Answer

The HOA successfully argued that the petition should be dismissed because it did not allege that the HOA violated community documents or statutes, but rather challenged the HOA's authority to make rules.

Alj Quote

Therefore, the petition does not concern a violation of community documents or of any statute… IT IS ORDERED that the petition is dismissed.

Legal Basis

A.R.S. § 32-2199.01(A)

Topic Tags

  • petition requirements
  • dismissal
  • violations

Case

Docket No
23F-H048-REL
Case Title
Thomas P. Hommrich vs. The Lakewood Community Association
Decision Date
2023-05-19
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Thomas P. Hommrich (petitioner)

Respondent Side

  • Quinten Cupps (respondent attorney)
    vf-law.com
    Esq.

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal

Anthony & Karen Negrete v. Sundance Ranch Homeowners Association

Posted on by

Case Summary

Case ID 21F-H2120012-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-12-13
Administrative Law Judge Kay A. Abramsohn
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Anthony & Karen Negrete Counsel —
Respondent Sundance Ranch Homeowners Association Counsel Quinten Cupps, Esq.

Alleged Violations

A.R.S. §§ 33-1803 and 33-1817(B)(2)(b)

Outcome Summary

The Respondent's Motion to Dismiss was granted because the statute cited by Petitioners (A.R.S. § 33-1817(B)(2)(b)) regarding mandatory design approval meetings applies only to the construction or rebuild of the 'main residential structure,' not to a shed.

Why this result: The key statute relied upon by Petitioners was deemed inapplicable to the construction of a shed.

Key Issues & Findings

Failure to provide opportunity to participate in design approval meeting for replacement shed

Petitioners alleged they were not given the opportunity to participate in a final design approval meeting for building a replacement shed on their property, pursuant to A.R.S. § 33-1817(B)(2)(b).

Orders: Respondent’s Motion to Dismiss is granted and Petitioners’ Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1817(B)(2)(b)

Analytics Highlights

Topics: Design Review, Shed, Architectural Approval, Motion to Dismiss, Statutory Interpretation
Additional Citations:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1817(B)(2)(b)
  • A.R.S. Title 33, Chapter 16
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

21F-H2120012-REL Decision – 842597.pdf

Uploaded 2026-01-23T17:35:17 (131.7 KB)

Questions

Question

Do I need HOA approval to replace an old structure (like a shed) that was approved years ago?

Short Answer

Yes. Prior approval of an original structure does not automatically apply to a replacement, especially if the location or condition changes.

Detailed Answer

Even if a structure was approved in the past, building a replacement is considered a new improvement or alteration. The ALJ found that despite having a shed approved in 2005, the homeowners were required to seek approval for the new shed, particularly because the governing documents stated that no improvements or alterations could be made without prior written approval.

Alj Quote

All subsequent additions to or changes or alterations in any building, fence, wall or other structure … shall be subject to the prior written approval of the Design Review Committee.

Legal Basis

CC&Rs Article 4, Section 4.1(a)

Topic Tags

  • Architectural Review
  • Improvements
  • Grandfathering

Question

Is the HOA required to hold a 'final design approval meeting' for backyard projects like sheds?

Short Answer

No. The legal requirement for a design approval meeting applies only to the main residential structure.

Detailed Answer

The ALJ clarified that A.R.S. § 33-1817(B)(2)(b), which mandates a design approval meeting, is specific to the new construction or rebuild of the 'main residential structure.' It does not apply to ancillary structures like sheds.

Alj Quote

The Administrative Law Judge concludes that A.R.S. § 33-1817(B)(2)(b) contains a mandate for a “design approval” meeting in the circumstance of construction of a “main residential structure.” That was not the circumstance in this case.

Legal Basis

A.R.S. § 33-1817(B)(2)(b)

Topic Tags

  • Meetings
  • Statutory Interpretation
  • Homeowner Rights

Question

Can I move an approved structure to a different location on my lot without new approval?

Short Answer

No. Moving a structure is considered a change that must adhere to current guidelines and receive approval.

Detailed Answer

The HOA successfully argued that an approval from 2005 was for a specific location and condition. Moving the structure constitutes a change that requires adherence to current guidelines.

Alj Quote

Again, the shed that was approved in 2005 cannot move or change- it is not denied, it simply cannot be moved or change. Any changes must adhere to the guidelines and be approved.

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

  • modifications
  • Architectural Review
  • Compliance

Question

Who bears the burden of proof when a homeowner challenges an HOA in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proving the HOA violated the law.

Detailed Answer

In an administrative hearing, it is up to the homeowner to provide evidence that carries more weight than the evidence offered by the HOA to prove a violation occurred.

Alj Quote

In this proceeding, pursuant to Arizona Administrative Code (A.A.C.) R2-19-119, Petitioners bear the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. §§ 33-1803 and 33-1817(B)(2)(b).

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Procedure
  • Burden of Proof
  • Hearings

Question

Can the HOA restrict the height and placement of backyard sheds?

Short Answer

Yes. The HOA can enforce specific design guidelines regarding dimensions and location relative to neighbors and the street.

Detailed Answer

The ALJ upheld the validity of Design Guidelines that mandated maximum heights and specific lot placements to ensure conformity with city codes and minimize visibility.

Alj Quote

Sundance Design Guidelines regarding “sheds” mandates: (a) a maximum height, including the roof pitch, of no more than eight (8) feet, … [and] (c) lot placement has to conform to City codes and have approval from the Design Committee “based on neighboring properties and visibility from the street,”

Legal Basis

Design Guidelines

Topic Tags

  • Architectural Guidelines
  • Restrictions
  • Property Use

Question

What happens if I start construction without approval?

Short Answer

The HOA may issue violation notices, impose fines, and require the structure be returned to its original state.

Detailed Answer

The ALJ noted that the HOA acted within its rights to issue violation notices and fines when it discovered unapproved construction. They also warned the homeowner to return the property to its original state.

Alj Quote

If the work has been started or completed, you will have 30 days from the date of this letter to have the submitted items returned to the original state. Or fines will be imposed.

Legal Basis

A.R.S. § 33-1803

Topic Tags

  • Violations
  • Fines
  • Enforcement

Case

Docket No
21F-H2120012-REL
Case Title
Anthony & Karen Negrete v. Sundance Ranch Homeowners Association
Decision Date
2020-12-13
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Questions

Question

Do I need HOA approval to replace an old structure (like a shed) that was approved years ago?

Short Answer

Yes. Prior approval of an original structure does not automatically apply to a replacement, especially if the location or condition changes.

Detailed Answer

Even if a structure was approved in the past, building a replacement is considered a new improvement or alteration. The ALJ found that despite having a shed approved in 2005, the homeowners were required to seek approval for the new shed, particularly because the governing documents stated that no improvements or alterations could be made without prior written approval.

Alj Quote

All subsequent additions to or changes or alterations in any building, fence, wall or other structure … shall be subject to the prior written approval of the Design Review Committee.

Legal Basis

CC&Rs Article 4, Section 4.1(a)

Topic Tags

  • Architectural Review
  • Improvements
  • Grandfathering

Question

Is the HOA required to hold a 'final design approval meeting' for backyard projects like sheds?

Short Answer

No. The legal requirement for a design approval meeting applies only to the main residential structure.

Detailed Answer

The ALJ clarified that A.R.S. § 33-1817(B)(2)(b), which mandates a design approval meeting, is specific to the new construction or rebuild of the 'main residential structure.' It does not apply to ancillary structures like sheds.

Alj Quote

The Administrative Law Judge concludes that A.R.S. § 33-1817(B)(2)(b) contains a mandate for a “design approval” meeting in the circumstance of construction of a “main residential structure.” That was not the circumstance in this case.

Legal Basis

A.R.S. § 33-1817(B)(2)(b)

Topic Tags

  • Meetings
  • Statutory Interpretation
  • Homeowner Rights

Question

Can I move an approved structure to a different location on my lot without new approval?

Short Answer

No. Moving a structure is considered a change that must adhere to current guidelines and receive approval.

Detailed Answer

The HOA successfully argued that an approval from 2005 was for a specific location and condition. Moving the structure constitutes a change that requires adherence to current guidelines.

Alj Quote

Again, the shed that was approved in 2005 cannot move or change- it is not denied, it simply cannot be moved or change. Any changes must adhere to the guidelines and be approved.

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

  • modifications
  • Architectural Review
  • Compliance

Question

Who bears the burden of proof when a homeowner challenges an HOA in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proving the HOA violated the law.

Detailed Answer

In an administrative hearing, it is up to the homeowner to provide evidence that carries more weight than the evidence offered by the HOA to prove a violation occurred.

Alj Quote

In this proceeding, pursuant to Arizona Administrative Code (A.A.C.) R2-19-119, Petitioners bear the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. §§ 33-1803 and 33-1817(B)(2)(b).

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Procedure
  • Burden of Proof
  • Hearings

Question

Can the HOA restrict the height and placement of backyard sheds?

Short Answer

Yes. The HOA can enforce specific design guidelines regarding dimensions and location relative to neighbors and the street.

Detailed Answer

The ALJ upheld the validity of Design Guidelines that mandated maximum heights and specific lot placements to ensure conformity with city codes and minimize visibility.

Alj Quote

Sundance Design Guidelines regarding “sheds” mandates: (a) a maximum height, including the roof pitch, of no more than eight (8) feet, … [and] (c) lot placement has to conform to City codes and have approval from the Design Committee “based on neighboring properties and visibility from the street,”

Legal Basis

Design Guidelines

Topic Tags

  • Architectural Guidelines
  • Restrictions
  • Property Use

Question

What happens if I start construction without approval?

Short Answer

The HOA may issue violation notices, impose fines, and require the structure be returned to its original state.

Detailed Answer

The ALJ noted that the HOA acted within its rights to issue violation notices and fines when it discovered unapproved construction. They also warned the homeowner to return the property to its original state.

Alj Quote

If the work has been started or completed, you will have 30 days from the date of this letter to have the submitted items returned to the original state. Or fines will be imposed.

Legal Basis

A.R.S. § 33-1803

Topic Tags

  • Violations
  • Fines
  • Enforcement

Case

Docket No
21F-H2120012-REL
Case Title
Anthony & Karen Negrete v. Sundance Ranch Homeowners Association
Decision Date
2020-12-13
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Anthony Negrete (petitioner)
  • Karen Negrete (petitioner)

Respondent Side

  • Quinten Cupps (HOA attorney)
    Sundance Ranch Homeowners Association

Neutral Parties

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