Case Summary
| Case ID | 22F-H2222060-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2022-09-06 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | total |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | M&T Properties LLC | Counsel | Lucas Thomas, Owner |
|---|---|---|---|
| Respondent | Kivas Uno Homeowners’ Association | Counsel | David Rivandi, Director |
Alleged Violations
Section 6.7 of the First Amendment to the Amended and Restated Declaration of Condominium and of Covenants, Conditions and Restrictions for Kivas Uno Condominium
Outcome Summary
The Petitioner prevailed on the singular issue raised: Respondent (HOA) was found to be in violation of Section 6.7 of the CC&Rs for failing to retain a duly licensed property management agent at the time the petition was filed. The HOA was ordered to reimburse the $500 filing fee and comply with the CC&Rs moving forward. No civil penalty was imposed.
Key Issues & Findings
Professional Management
Respondent (HOA) acknowledged that as of the date the Petition was filed (June 6, 2022), it did not retain or maintain a Managing Agent who is duly licensed by the State of Arizona as a property manager, which violated Section 6.7 of the CC&Rs.
Orders: Respondent was ordered to reimburse Petitioner the $500.00 filing fee and was directed to comply with the requirements of Section 6.7 of the CC&Rs going forward.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 32-2199 et seq.
- A.R.S. § 33-1248
- A.R.S. § 33-1258
- A.A.C. R2-19-119
Analytics Highlights
- A.R.S. § 32-2199 et seq.
- A.R.S. § 33-1248
- A.R.S. § 33-1258
- A.A.C. R2-19-119
Video Overview
Audio Overview
https://open.spotify.com/episode/4FXJWGa1ZgJsdQCw7AE6RR
Decision Documents
22F-H2222060-REL Decision – 997254.pdf
Questions
Question
If my HOA fixes a violation after I file a formal complaint, do I still win the case?
Short Answer
Yes. If the violation existed at the time the petition was filed, the homeowner can still prevail.
Detailed Answer
Even if an HOA corrects the issue before the hearing date, the Administrative Law Judge (ALJ) looks at whether the violation existed at the time the legal action commenced. The homeowner is entitled to a finding in their favor and reimbursement of fees if the violation was active when filed.
Alj Quote
Respondent is asserting that they have since hired a management company. That's great. There's still a admitted violation at the time of the petition which results in the finding against respondent and the requirement to repay the filing fee.
Legal Basis
Admission of violation at time of filing
Topic Tags
- procedure
- mootness
- remedies
Question
Can I bring up new issues during the hearing that I forgot to include in my written petition?
Short Answer
No. The hearing is strictly limited to the issues specifically raised in the original petition.
Detailed Answer
The ALJ will typically refuse to hear arguments regarding issues that were not included in the initial filing. If a homeowner has additional complaints, they must file a separate petition to address them.
Alj Quote
The parties attempted to raise and discuss numerous issues unrelated to the single issue raised in the Petition. … In the event there is a subsequent petition raising other issues that will be dealt dealt with in a separate proceeding.
Legal Basis
Scope of hearing
Topic Tags
- procedure
- due process
- hearing scope
Question
Is the HOA Board allowed to use 'we didn't know' as a defense for violating the CC&Rs?
Short Answer
No. Ignorance of the CC&R requirements is not a valid defense against a violation finding.
Detailed Answer
In this case, the Board asserted they were unaware of the requirement to hire a professional manager. The ALJ noted this assertion but still found them in violation of the CC&Rs.
Alj Quote
Mr. Rivandi asserted the Board did not know they were required to have a professional management company… The failure to retain and maintain a Managing Agent was a violation of Section 6.7 of the CC&Rs.
Legal Basis
Strict liability for CC&R compliance
Topic Tags
- board defenses
- compliance
- fiduciary duty
Question
Can I get my $500 filing fee back if the HOA admits they were wrong?
Short Answer
Yes. If the homeowner prevails on the issue, the ALJ can order the HOA to reimburse the filing fee.
Detailed Answer
When a violation is found (or admitted to) regarding the issue raised in the petition, the standard remedy includes ordering the Respondent (HOA) to reimburse the Petitioner for the cost of filing the action.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner its $500.00 filing fee for the issue on which they prevailed.
Legal Basis
A.R.S. § 32-2199 et seq.
Topic Tags
- fees
- reimbursement
- costs
Question
Will the HOA always be fined a penalty if they are found guilty of a violation?
Short Answer
No. The ALJ has the discretion to decide whether a civil penalty is appropriate based on the facts.
Detailed Answer
Even if a violation is proven, the judge may choose not to impose a civil penalty (fine) against the HOA, potentially if the HOA has already taken steps to correct the issue.
Alj Quote
Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.
Legal Basis
Judicial discretion on penalties
Topic Tags
- penalties
- fines
- enforcement
Question
What level of proof is required for a homeowner to win an HOA dispute?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner (Petitioner) must show that their claim is 'more probable than not' based on the evidence provided. This is the standard burden of proof in these administrative hearings.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.
Legal Basis
A.A.C. R2-19-119
Topic Tags
- evidence
- burden of proof
- legal standards
Case
- Docket No
- 22F-H2222060-REL
- Case Title
- M&T Properties LLC vs Kivas Uno Homeowners’ Association
- Decision Date
- 2022-09-06
- Alj Name
- Tammy L. Eigenheer
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
If my HOA fixes a violation after I file a formal complaint, do I still win the case?
Short Answer
Yes. If the violation existed at the time the petition was filed, the homeowner can still prevail.
Detailed Answer
Even if an HOA corrects the issue before the hearing date, the Administrative Law Judge (ALJ) looks at whether the violation existed at the time the legal action commenced. The homeowner is entitled to a finding in their favor and reimbursement of fees if the violation was active when filed.
Alj Quote
Respondent is asserting that they have since hired a management company. That's great. There's still a admitted violation at the time of the petition which results in the finding against respondent and the requirement to repay the filing fee.
Legal Basis
Admission of violation at time of filing
Topic Tags
- procedure
- mootness
- remedies
Question
Can I bring up new issues during the hearing that I forgot to include in my written petition?
Short Answer
No. The hearing is strictly limited to the issues specifically raised in the original petition.
Detailed Answer
The ALJ will typically refuse to hear arguments regarding issues that were not included in the initial filing. If a homeowner has additional complaints, they must file a separate petition to address them.
Alj Quote
The parties attempted to raise and discuss numerous issues unrelated to the single issue raised in the Petition. … In the event there is a subsequent petition raising other issues that will be dealt dealt with in a separate proceeding.
Legal Basis
Scope of hearing
Topic Tags
- procedure
- due process
- hearing scope
Question
Is the HOA Board allowed to use 'we didn't know' as a defense for violating the CC&Rs?
Short Answer
No. Ignorance of the CC&R requirements is not a valid defense against a violation finding.
Detailed Answer
In this case, the Board asserted they were unaware of the requirement to hire a professional manager. The ALJ noted this assertion but still found them in violation of the CC&Rs.
Alj Quote
Mr. Rivandi asserted the Board did not know they were required to have a professional management company… The failure to retain and maintain a Managing Agent was a violation of Section 6.7 of the CC&Rs.
Legal Basis
Strict liability for CC&R compliance
Topic Tags
- board defenses
- compliance
- fiduciary duty
Question
Can I get my $500 filing fee back if the HOA admits they were wrong?
Short Answer
Yes. If the homeowner prevails on the issue, the ALJ can order the HOA to reimburse the filing fee.
Detailed Answer
When a violation is found (or admitted to) regarding the issue raised in the petition, the standard remedy includes ordering the Respondent (HOA) to reimburse the Petitioner for the cost of filing the action.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner its $500.00 filing fee for the issue on which they prevailed.
Legal Basis
A.R.S. § 32-2199 et seq.
Topic Tags
- fees
- reimbursement
- costs
Question
Will the HOA always be fined a penalty if they are found guilty of a violation?
Short Answer
No. The ALJ has the discretion to decide whether a civil penalty is appropriate based on the facts.
Detailed Answer
Even if a violation is proven, the judge may choose not to impose a civil penalty (fine) against the HOA, potentially if the HOA has already taken steps to correct the issue.
Alj Quote
Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.
Legal Basis
Judicial discretion on penalties
Topic Tags
- penalties
- fines
- enforcement
Question
What level of proof is required for a homeowner to win an HOA dispute?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner (Petitioner) must show that their claim is 'more probable than not' based on the evidence provided. This is the standard burden of proof in these administrative hearings.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1248 and A.R.S. § 33-1258.
Legal Basis
A.A.C. R2-19-119
Topic Tags
- evidence
- burden of proof
- legal standards
Case
- Docket No
- 22F-H2222060-REL
- Case Title
- M&T Properties LLC vs Kivas Uno Homeowners’ Association
- Decision Date
- 2022-09-06
- Alj Name
- Tammy L. Eigenheer
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Lucas Thomas (Petitioner Representative)
M&T Properties LLC
Owner, appeared on behalf of Petitioner.
Respondent Side
- David Rivandi (Board Member/Respondent Representative)
Kivas Uno Homeowners’ Association
Director, appeared on behalf of Respondent. Confirmed being on the board of directors.
Neutral Parties
- Tammy L. Eigenheer (ALJ)
OAH
Also referred to as Tammy Idier, Administrative Law Judge. - Louis Dettorre (Commissioner)
Arizona Department of Real Estate - Miranda Alvarez (Legal Secretary)
Transmitted the order.
