Deanna Smith v. Moondance Townhomes Homeowners Association

Case Summary

Case ID 23F-H049-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-06-06
Administrative Law Judge Brian Del Vecchio
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deanna Smith Counsel
Respondent Moondance Townhomes Homeowners Association Counsel Christina Morgan

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The ALJ affirmed the petition, finding the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide complete financial statements (including balance sheets and statements of cash flows) to the Petitioner upon request. The HOA was ordered to provide the missing financial statements and reimburse the $500 filing fee. A civil penalty was denied.

Key Issues & Findings

Failure to provide association financial records upon member request.

The Petitioner alleged that the Association failed to comply with her request for financial records dated December 15, 2022, pursuant to ARS § 33-1805. The Association provided only Profit & Loss statements on January 12, 2023, but failed to provide other requisite financial documents, such as balance sheets, statements of cash flows, or statements of income, as defined by ARS § 32-701. The failure to fulfill the request for financial statements constituted a violation.

Orders: The petition was affirmed. Respondent was ordered to reimburse the Petitioner's filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A). Respondent was ordered to provide financial statements, as defined by ARIZ. REV. STAT. § 32-701, for the months of August 2022 through December 2022 pursuant to ARIZ. REV. STAT. § 33-1805. Petitioner's request for a civil penalty was denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-701
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Financial Records, Statutory Compliance, Record Request Delay, Filing Fee Reimbursement, HOA Board Member
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-701
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • 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.

Video Overview

Audio Overview

Decision Documents

23F-H049-REL Decision – 1062328.pdf

Uploaded 2026-01-23T17:57:27 (149.9 KB)

Questions

Question

If I request 'financial statements' from my HOA, is it enough for them to just send a Profit and Loss statement?

Short Answer

No. A request for 'financial statements' implies more than just a Profit and Loss statement, and the HOA must provide the full range of documents defined by law.

Detailed Answer

The ALJ determined that providing only a Profit and Loss statement is insufficient when a homeowner requests 'financial statements.' The term encompasses a broader set of documents, including balance sheets and statements of cash flows, which must be provided to fully satisfy the request.

Alj Quote

Because Petitioner requested financial statements for the same period after receiving the Profit and Loss statements, implicit in her request was the understanding merely providing the Profit and Loss statement was insufficient to satisfy her request for financial statements.

Legal Basis

ARIZ. REV. STAT. § 32-701; ARIZ. REV. STAT. § 33-1805

Topic Tags

  • financial records
  • definitions
  • HOA obligations

Question

What specific documents does the law include in the definition of 'financial statements'?

Short Answer

The definition includes balance sheets, statements of income, retained earnings, cash flows, changes in equity, and other standard summaries.

Detailed Answer

Arizona law defines 'Financial Statement' broadly. It is not limited to a single report but includes statements and footnotes showing financial position in conformity with accounting principles.

Alj Quote

In Arizona, “Financial Statement… (b) Includes balance sheets, statements of income, statements of retained earnings, statements of cash flows, statements of changes in equity and other commonly used or recognized summaries of financial information.”

Legal Basis

ARIZ. REV. STAT. § 32-701

Topic Tags

  • financial records
  • definitions
  • accounting

Question

How quickly must my HOA respond to my request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute explicitly sets a ten-business-day deadline for the association to fulfill a request for examination or to provide copies of requested records.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • deadlines
  • procedural requirements
  • homeowner rights

Question

Can the HOA tell me to find the records on a Google Drive or website instead of sending them to me?

Short Answer

Only if the records are actually there and accessible. Directing a homeowner to an empty or incomplete digital folder does not count as providing access.

Detailed Answer

In this case, the HOA President directed the homeowner to a Google Drive, but the Treasurer later admitted the specific documents requested were never uploaded. The ALJ ruled that because the documents were not on the drive, the homeowner was not supplied with access.

Alj Quote

Furthermore, although President directed Petitioner to search the Google Drive for the documents, Treasurer admitted on January 23, 2023, that the documents Petitioner was seeking were never on the drive. Thus, Petitioner was neither supplied nor had access to obtain the requisite financial statements.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • digital access
  • compliance
  • records request

Question

Can the HOA charge me a fee for looking at the records?

Short Answer

No. The HOA cannot charge for making material available for review, though they can charge for copies.

Detailed Answer

The law prohibits charging a member for the act of making material available for review. However, if the member requests copies, the association may charge a fee for those copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review. … An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • fees
  • homeowner rights
  • costs

Question

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

Short Answer

Yes. If the petitioner prevails, the judge is required to order the respondent to reimburse the filing fee.

Detailed Answer

The statute mandates that if the homeowner (petitioner) prevails in the hearing, the administrative law judge must order the HOA (respondent) to pay the filing fee back to the homeowner.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • reimbursement
  • outcomes
  • filing fees

Question

Will the judge automatically fine the HOA if they violated the records law?

Short Answer

No. While the judge has the authority to levy a civil penalty, it is not mandatory, and they may choose to deny a request for a penalty.

Detailed Answer

The ALJ has the discretion to levy a civil penalty but is not required to do so. In this case, although a violation was found, the judge explicitly denied the request to levy a civil penalty against the HOA.

Alj Quote

The administrative law judge… may levy a civil penalty on the basis of each violation… IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • penalties
  • civil penalty
  • judgement

Case

Docket No
23F-H049-REL
Case Title
Deanna Smith v Moondance Townhomes Homeowners Association
Decision Date
2023-06-06
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

If I request 'financial statements' from my HOA, is it enough for them to just send a Profit and Loss statement?

Short Answer

No. A request for 'financial statements' implies more than just a Profit and Loss statement, and the HOA must provide the full range of documents defined by law.

Detailed Answer

The ALJ determined that providing only a Profit and Loss statement is insufficient when a homeowner requests 'financial statements.' The term encompasses a broader set of documents, including balance sheets and statements of cash flows, which must be provided to fully satisfy the request.

Alj Quote

Because Petitioner requested financial statements for the same period after receiving the Profit and Loss statements, implicit in her request was the understanding merely providing the Profit and Loss statement was insufficient to satisfy her request for financial statements.

Legal Basis

ARIZ. REV. STAT. § 32-701; ARIZ. REV. STAT. § 33-1805

Topic Tags

  • financial records
  • definitions
  • HOA obligations

Question

What specific documents does the law include in the definition of 'financial statements'?

Short Answer

The definition includes balance sheets, statements of income, retained earnings, cash flows, changes in equity, and other standard summaries.

Detailed Answer

Arizona law defines 'Financial Statement' broadly. It is not limited to a single report but includes statements and footnotes showing financial position in conformity with accounting principles.

Alj Quote

In Arizona, “Financial Statement… (b) Includes balance sheets, statements of income, statements of retained earnings, statements of cash flows, statements of changes in equity and other commonly used or recognized summaries of financial information.”

Legal Basis

ARIZ. REV. STAT. § 32-701

Topic Tags

  • financial records
  • definitions
  • accounting

Question

How quickly must my HOA respond to my request to examine records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute explicitly sets a ten-business-day deadline for the association to fulfill a request for examination or to provide copies of requested records.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • deadlines
  • procedural requirements
  • homeowner rights

Question

Can the HOA tell me to find the records on a Google Drive or website instead of sending them to me?

Short Answer

Only if the records are actually there and accessible. Directing a homeowner to an empty or incomplete digital folder does not count as providing access.

Detailed Answer

In this case, the HOA President directed the homeowner to a Google Drive, but the Treasurer later admitted the specific documents requested were never uploaded. The ALJ ruled that because the documents were not on the drive, the homeowner was not supplied with access.

Alj Quote

Furthermore, although President directed Petitioner to search the Google Drive for the documents, Treasurer admitted on January 23, 2023, that the documents Petitioner was seeking were never on the drive. Thus, Petitioner was neither supplied nor had access to obtain the requisite financial statements.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • digital access
  • compliance
  • records request

Question

Can the HOA charge me a fee for looking at the records?

Short Answer

No. The HOA cannot charge for making material available for review, though they can charge for copies.

Detailed Answer

The law prohibits charging a member for the act of making material available for review. However, if the member requests copies, the association may charge a fee for those copies.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review. … An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

ARIZ. REV. STAT. § 33-1805

Topic Tags

  • fees
  • homeowner rights
  • costs

Question

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

Short Answer

Yes. If the petitioner prevails, the judge is required to order the respondent to reimburse the filing fee.

Detailed Answer

The statute mandates that if the homeowner (petitioner) prevails in the hearing, the administrative law judge must order the HOA (respondent) to pay the filing fee back to the homeowner.

Alj Quote

If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • reimbursement
  • outcomes
  • filing fees

Question

Will the judge automatically fine the HOA if they violated the records law?

Short Answer

No. While the judge has the authority to levy a civil penalty, it is not mandatory, and they may choose to deny a request for a penalty.

Detailed Answer

The ALJ has the discretion to levy a civil penalty but is not required to do so. In this case, although a violation was found, the judge explicitly denied the request to levy a civil penalty against the HOA.

Alj Quote

The administrative law judge… may levy a civil penalty on the basis of each violation… IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • penalties
  • civil penalty
  • judgement

Case

Docket No
23F-H049-REL
Case Title
Deanna Smith v Moondance Townhomes Homeowners Association
Decision Date
2023-06-06
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Deanna Smith (petitioner, board member)
    Moondance Townhomes Homeowners Association

Respondent Side

  • Christina Morgan (HOA attorney)
    Vingham
  • George Minter (President, board member, witness)
    Moondance Townhomes Homeowners Association
  • Linda Dieball (Treasurer, board member)
    Moondance Townhomes Homeowners Association

Neutral Parties

  • Brian Del Vecchio (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

Victoria J Whitaker v. Villas at Sunland Condominium Association

Case Summary

Case ID 23F-H021-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-02-22
Administrative Law Judge Jenna Clark
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Victoria J Whitaker Counsel
Respondent Villas at Sunland Condominium Association Counsel Austin Baillio

Alleged Violations

ARIZ. REV. STAT. § 33-1242

Outcome Summary

The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.

Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242. Petitioner did not follow the statutory requirement of sending a response via certified mail (ARIZ. REV. STAT. § 33-1242(B)).

Key Issues & Findings

Alleged failure to follow due process concerning violation enforcement

Petitioner alleged the Association failed to follow due process when enforcing community documents regarding damage to a semi-common element (carport) before her purchase, leading to a violation notice and subsequent enforcement.

Orders: Petition denied. Respondent shall not reimburse Petitioner's filing fee as required by ARIZ. REV. STAT. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 33-1242(B)
  • ARIZ. REV. STAT. § 33-1242(C)
  • ARIZ. REV. STAT. § 33-1242(D)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Condominium Association, Due Process, Violation Enforcement, Carport Damage, Statutory Compliance, Filing Fee Denial
Additional Citations:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 33-1242(B)
  • ARIZ. REV. STAT. § 33-1242(C)
  • ARIZ. REV. STAT. § 33-1242(D)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 33-1260(A)(3)(e)
  • ARIZ. REV. STAT. § 33-1243
  • Declaration Article 5.3
  • Declaration Article 5.1
  • Declaration Article 5.2

Video Overview

Audio Overview

https://open.spotify.com/episode/72I03UkB36YQYWN0aeBE1m

Decision Documents

23F-H021-REL Decision – 1036088.pdf

Uploaded 2026-01-23T17:53:06 (224.9 KB)

Questions

Question

Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?

Short Answer

No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.

Detailed Answer

The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).

Alj Quote

The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • jurisdiction
  • scope of hearing
  • violation responsibility

Question

Is it required to send my violation dispute response by certified mail?

Short Answer

Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.

Detailed Answer

The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.

Alj Quote

The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.

Legal Basis

ARIZ. REV. STAT. § 33-1242(B)

Topic Tags

  • certified mail
  • procedural requirements
  • contesting violations

Question

What constitutes 'due process' for an HOA violation?

Short Answer

Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.

Detailed Answer

Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.

Alj Quote

Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • due process
  • notice
  • board hearing

Question

Who is responsible for repairing 'Limited Common Elements' like a designated carport?

Short Answer

Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.

Detailed Answer

In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.

Alj Quote

[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.

Legal Basis

Declaration Article 5.2

Topic Tags

  • maintenance
  • limited common elements
  • carport

Question

Am I financially liable for damage caused by my tenants?

Short Answer

Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.

Detailed Answer

The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.

Alj Quote

Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.

Legal Basis

Declaration Article 5.3

Topic Tags

  • tenant liability
  • rental property
  • damages

Question

Who has the burden of proof in an administrative hearing against the HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • evidence
  • legal standard

Question

Can I get my filing fee reimbursed if my petition is denied?

Short Answer

No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.

Detailed Answer

The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.

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

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • filing fees
  • costs
  • reimbursement

Case

Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?

Short Answer

No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.

Detailed Answer

The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).

Alj Quote

The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • jurisdiction
  • scope of hearing
  • violation responsibility

Question

Is it required to send my violation dispute response by certified mail?

Short Answer

Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.

Detailed Answer

The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.

Alj Quote

The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.

Legal Basis

ARIZ. REV. STAT. § 33-1242(B)

Topic Tags

  • certified mail
  • procedural requirements
  • contesting violations

Question

What constitutes 'due process' for an HOA violation?

Short Answer

Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.

Detailed Answer

Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.

Alj Quote

Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • due process
  • notice
  • board hearing

Question

Who is responsible for repairing 'Limited Common Elements' like a designated carport?

Short Answer

Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.

Detailed Answer

In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.

Alj Quote

[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.

Legal Basis

Declaration Article 5.2

Topic Tags

  • maintenance
  • limited common elements
  • carport

Question

Am I financially liable for damage caused by my tenants?

Short Answer

Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.

Detailed Answer

The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.

Alj Quote

Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.

Legal Basis

Declaration Article 5.3

Topic Tags

  • tenant liability
  • rental property
  • damages

Question

Who has the burden of proof in an administrative hearing against the HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • evidence
  • legal standard

Question

Can I get my filing fee reimbursed if my petition is denied?

Short Answer

No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.

Detailed Answer

The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.

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

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • filing fees
  • costs
  • reimbursement

Case

Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Victoria Whitaker (petitioner)
    Appeared on her own behalf without counsel
  • Kimball Whitaker (observer)
    Observed hearing; potential witness for petitioner
  • Realtor (realtor)
    Petitioner's realtor (name not provided)

Respondent Side

  • Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
  • Joseph Milin (board member)
    Villas at Sunland Condominium Association
    Board President; Witness
  • Steven Cheff (property manager)
    Haywood Community Management (HMC)
    Community Manager and Compliance Inspector; Witness
  • Carly Collins (property management admin)
    Haywood Community Management (HMC)
    Admin responsible for correspondence
  • Harvey Colin (property management admin)
    Haywood Community Management (HMC)
    Signed resale disclosure statement
  • Neighbor (Unit 15) (witness)
    Unit 15 resident
    Provided alleged eyewitness testimony regarding the damage

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Presiding Administrative Law Judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate (ADRE)

Other Participants

  • Chad and Ida Carpenter (prior owners/sellers)
    Unit 16 (prior owners)
    The sellers of the property at issue
  • Kevin Finley (contractor)
    Signature
    Provided repair estimate

Deborah Masear v. Paradise Park Condominiums Phase II Homeowners

Case Summary

Case ID 22F-H2222057-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-05
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah Mesear Counsel
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello, Esq.

Alleged Violations

A.R.S. § 33-1243(J)

Outcome Summary

The petition filed by the homeowner against the HOA was dismissed because the homeowner failed to prove the HOA violated A.R.S. § 33-1243(J) regarding financial reporting.

Why this result: The Petitioner failed to establish that the Association violated the applicable statute by a preponderance of the evidence, resulting in the dismissal of the petition.

Key Issues & Findings

Violation of HOA statutory duty to provide annual financial reports (audit, review, or compilation)

Petitioner alleged the HOA failed to share an annual audit/compilation for 2017-2021. The ALJ found the HOA provided financial compilations for 2017-2020 after the petition was filed. The claim regarding 2021 was found to be premature because the financial compilation was not yet due when the petition was filed on May 29, 2022.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1243(J)
  • A.R.S. § 33-1810

Analytics Highlights

Topics: Condominium Act, Financial Records, Compilation, Statutory Compliance, HOA Management
Additional Citations:

  • A.R.S. § 33-1243(J)
  • A.R.S. § 33-1810
  • A.R.S. § 32-2199(1)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222057-REL Decision – 1003891.pdf

Uploaded 2026-01-23T17:48:33 (95.1 KB)

22F-H2222057-REL Decision – 988206.pdf

Uploaded 2026-01-23T17:48:37 (57.1 KB)

22F-H2222057-REL Decision – 989133.pdf

Uploaded 2026-01-23T17:48:39 (50.1 KB)

22F-H2222057-REL Decision – 994978.pdf

Uploaded 2026-01-23T17:48:42 (50.8 KB)

Questions

Question

Is my condo HOA legally required to perform a full financial audit every year?

Short Answer

Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.

Detailed Answer

Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.

Alj Quote

Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Financial Reports
  • Audits
  • HOA Obligations

Question

What is the deadline for the HOA to complete the annual financial report?

Short Answer

The report must be completed no later than 180 days after the end of the fiscal year.

Detailed Answer

The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Deadlines
  • Financial Reports
  • Procedural Requirements

Question

Once the financial report is finished, how soon must the HOA provide it to me?

Short Answer

The HOA must make it available within 30 days of its completion upon request.

Detailed Answer

After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.

Alj Quote

and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Homeowner Rights
  • Transparency
  • Financial Reports

Question

Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?

Short Answer

No, a complaint filed before the deadline is considered premature (not ripe).

Detailed Answer

If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.

Alj Quote

Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.

Legal Basis

Ripeness Doctrine

Topic Tags

  • Legal Procedures
  • Filing Disputes
  • Deadlines

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Hearing Procedures

Question

What standard of proof is used in these administrative hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention 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

Evidentiary Standard

Topic Tags

  • Legal Standards
  • Evidence

Question

If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?

Short Answer

No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.

Detailed Answer

While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.

Alj Quote

A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Jurisdiction
  • Statutes
  • Condominiums

Case

Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Is my condo HOA legally required to perform a full financial audit every year?

Short Answer

Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.

Detailed Answer

Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.

Alj Quote

Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Financial Reports
  • Audits
  • HOA Obligations

Question

What is the deadline for the HOA to complete the annual financial report?

Short Answer

The report must be completed no later than 180 days after the end of the fiscal year.

Detailed Answer

The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Deadlines
  • Financial Reports
  • Procedural Requirements

Question

Once the financial report is finished, how soon must the HOA provide it to me?

Short Answer

The HOA must make it available within 30 days of its completion upon request.

Detailed Answer

After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.

Alj Quote

and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Homeowner Rights
  • Transparency
  • Financial Reports

Question

Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?

Short Answer

No, a complaint filed before the deadline is considered premature (not ripe).

Detailed Answer

If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.

Alj Quote

Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.

Legal Basis

Ripeness Doctrine

Topic Tags

  • Legal Procedures
  • Filing Disputes
  • Deadlines

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Hearing Procedures

Question

What standard of proof is used in these administrative hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention 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

Evidentiary Standard

Topic Tags

  • Legal Standards
  • Evidence

Question

If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?

Short Answer

No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.

Detailed Answer

While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.

Alj Quote

A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Jurisdiction
  • Statutes
  • Condominiums

Case

Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Deborah Mesear (petitioner, witness)
    Also appears as Deborah Masear and Deborah Mesier in the sources.

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Holmgren Law Group
    Also appears as Ashley Moscarello, Esq. and Ashley Carillo.
  • Carl Westlund (property manager, witness)
    The Management Trust
    Community manager for Paradise Park Condominiums Phase II Homeowners Association.
  • Mark A. Holmgren (HOA attorney)
    Goodman Holmgren Law Group

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).

Other Participants

  • Miranda Alvarez (legal secretary)
    Signed transmission notice.
  • c. serrano (legal secretary)
    Signed transmission notice.

Darryl Jacobson-Barnes & Robert Barnes v. Circle G Ranches 4

Case Summary

Case ID 21F-H2120022-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-08-24
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Darryl Jacobson-Barnes & Robert Barnes Counsel Anthony L. Perez, Esq.
Respondent Circle G Ranches 4 Homeowners Association Counsel Clint G. Goodman, Esq.

Alleged Violations

A.R.S. § 33-1803(D) and (E)
A.R.S. § 33-1804(a)(5)
A.R.S. § 33-1811
Article III, § 3.10 (CC&Rs)

Outcome Summary

The Administrative Law Judge dismissed the petition filed by Darryl L. Jacobson-Barnes and Robert Barnes, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent HOA violated any of the cited Arizona Revised Statutes or that the alleged CC&R violation was outside the scope of Article III, § 3.10. The Respondent was deemed the prevailing party.

Why this result: The Petitioner failed to meet the burden of proving by a preponderance of the evidence that the HOA violated A.R.S. §§ 33-1803(D) and (E), 33-1804(5), or 33-1811, or that the alleged unapproved flood light violation was outside the scope of the cited CC&R provision (Article III, § 3.10).

Key Issues & Findings

The Association violated A.R.S.§ 33-1803(D) and (E) by failing to properly respond to the Barnes response to the notice of alleged violation and proceeding with enforcement actions.

Petitioner failed to establish the HOA violated these statutes because the HOA's May 27, 2020 notice contained all required information under A.R.S. § 1803(D)(1)-(4), rendering A.R.S. § 33-1803(E) inapplicable.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803(D)
  • A.R.S. § 33-1803(E)
  • A.A.C. R2-19-119

The association violated A.R.S. § 33-1804(a)(5) in rendering its decision on the Barnes contest of the notice.

Petitioner failed to establish violation of meeting procedures, as the appeal was discussed in an open session, and the subsequent closed session was justified to allow the HOA to seek legal counsel pursuant to A.R.S. § 33-1804(A)(1).

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804(a)(5)
  • A.R.S. § 33-1804(A)(1)

The alleged violation and resulting penalty imposed are void and unenforceable under A.R.S. § 33-1811.

Petitioner failed to prove violation. A.R.S. § 33-1811 applies only to contracts, decisions, or actions for compensation, and no evidence was presented that the Petitioner's appeal involved such compensation.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1811

The alleged violation is outside the scope of the cited CC&R Article III, § 3.10.

Petitioner failed to prove the violation (installation of an unapproved flood light) was outside the scope of Article III, § 3.10, which requires prior approval for 'other structure[s]'.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Article III, § 3.10 (CC&Rs)
  • Article IV, 4.6 (CC&Rs)

Analytics Highlights

Topics: Architectural Control Committee, CC&R Enforcement, Floodlight, Meeting Procedure, Statutory Compliance
Additional Citations:

  • A.R.S. § 33-1803(D)
  • A.R.S. § 33-1803(E)
  • A.R.S. § 33-1804(a)(5)
  • A.R.S. § 33-1804(A)(1)
  • A.R.S. § 33-1811
  • Article III, § 3.10 (CC&Rs)
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

21F-H2120022-REL Decision – 895732.pdf

Uploaded 2026-01-23T17:36:00 (39.8 KB)

21F-H2120022-REL Decision – 895827.pdf

Uploaded 2026-01-23T17:36:03 (5.6 KB)

21F-H2120022-REL Decision – 906326.pdf

Uploaded 2026-01-23T17:36:06 (99.4 KB)

Questions

Question

What specific information must be included in a violation notice for it to be legally sufficient?

Short Answer

The notice must include the provision violated, the date of observation, the name of the observer, and the process to contest it.

Detailed Answer

An HOA violation notice is considered sufficient if it includes four key pieces of information: the specific community document provision alleged to be violated, the date the violation was observed, the first and last name of the person who observed it, and the process the member must follow to contest the notice. If these are present, the HOA has met its obligation.

Alj Quote

The weight of the evidence shows that the HOA notified Petitioner of the provision of the community documents that had allegedly been violated, the date the violation was observed, the first and last name of the person who observed the violation, and the process the member must follow to contest the notice through the May 27, 2020 notice.

Legal Basis

A.R.S. § 33-1803(D)

Topic Tags

  • violation notices
  • due process
  • HOA procedures

Question

Does the HOA have to send a second 'explanation' letter after I receive a violation notice?

Short Answer

No, not if the original notice already contained all the legally required details.

Detailed Answer

Under Arizona law, the requirement for an HOA to provide a written explanation (often detailed in A.R.S. § 33-1803(E)) is only triggered if the initial violation notice was missing required information. If the initial notice fully satisfied the statutory requirements (provision, date, observer, contest process), the HOA is not required to send further explanation letters before proceeding.

Alj Quote

If a homeowner’s association satisfies the requirements in A.R.S. § 1803(D) (1)-(4) in its notice of violation, A.R.S. § 33-1803 (E) is not triggered and does not apply.

Legal Basis

A.R.S. § 33-1803(E)

Topic Tags

  • violation notices
  • legal requirements

Question

Can the HOA Board go into a closed session to decide on my appeal?

Short Answer

Yes, if the closed session is used to seek legal counsel regarding the decision.

Detailed Answer

While appeals generally involve open discussion, the Board is permitted to adjourn to an executive (closed) session to deliberate if they need to obtain legal advice concerning the decision. This does not violate the open meeting requirement of A.R.S. § 33-1804.

Alj Quote

The preponderance of the evidence does not show that Respondent violated A.R.S. § 33-1804(5) because Petitioner’s appeal was discussed in an open session. Moreover, the HOA presented credible testimony that the session was closed to allow the HOA to seek legal counsel concerning its decision in Petitioner’s appeal

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • board meetings
  • open meeting law
  • executive session

Question

Do I need architectural approval to install a floodlight?

Short Answer

Yes, floodlights can be considered 'structures' or changes requiring approval under CC&Rs.

Detailed Answer

Even if not a building, items like floodlights attached to a home can fall under the scope of CC&R restrictions regarding 'structures' or unapproved changes. The ALJ found that an allegation of an unapproved floodlight falls within the scope of architectural control provisions.

Alj Quote

Respondent alleged that an unapproved flood light was installed at the back of Petitioner’s home. Such allegation falls within the scope of CC&R Article III, § 3.10.

Legal Basis

CC&R Article III, § 3.10

Topic Tags

  • architectural control
  • home improvements
  • lighting

Question

Can I use A.R.S. § 33-1811 to void a penalty if I disagree with the violation?

Short Answer

Generally no, unless the decision involved a conflict of interest or compensation for a board member.

Detailed Answer

A.R.S. § 33-1811 specifically addresses the validity of contracts or decisions involving compensation/conflicts of interest. It is not a catch-all statute to void standard violation penalties where no such compensation or conflict exists.

Alj Quote

A.R.S. § 33-1811 applies to the validity of any contract, decision, or action for compensation taken by or on behalf of the Board. There was no evidence presented at hearing that the Petitioner’s appeal involved a contract, decision or other action for compensation.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflicts of interest
  • penalties
  • statutory interpretation

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove the HOA violated the law by a 'preponderance of the evidence'.

Detailed Answer

In these administrative proceedings, the burden is on the petitioner (the homeowner) to provide evidence that carries greater weight or is more convincing than the evidence offered by the HOA.

Alj Quote

At this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1808.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal standards
  • hearings
  • burden of proof

Case

Docket No
21F-H2120022-REL
Case Title
Darryl Jacobson-Barnes & Robert Barnes vs. Circle G Ranches 4 Homeowners Association
Decision Date
2021-08-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

What specific information must be included in a violation notice for it to be legally sufficient?

Short Answer

The notice must include the provision violated, the date of observation, the name of the observer, and the process to contest it.

Detailed Answer

An HOA violation notice is considered sufficient if it includes four key pieces of information: the specific community document provision alleged to be violated, the date the violation was observed, the first and last name of the person who observed it, and the process the member must follow to contest the notice. If these are present, the HOA has met its obligation.

Alj Quote

The weight of the evidence shows that the HOA notified Petitioner of the provision of the community documents that had allegedly been violated, the date the violation was observed, the first and last name of the person who observed the violation, and the process the member must follow to contest the notice through the May 27, 2020 notice.

Legal Basis

A.R.S. § 33-1803(D)

Topic Tags

  • violation notices
  • due process
  • HOA procedures

Question

Does the HOA have to send a second 'explanation' letter after I receive a violation notice?

Short Answer

No, not if the original notice already contained all the legally required details.

Detailed Answer

Under Arizona law, the requirement for an HOA to provide a written explanation (often detailed in A.R.S. § 33-1803(E)) is only triggered if the initial violation notice was missing required information. If the initial notice fully satisfied the statutory requirements (provision, date, observer, contest process), the HOA is not required to send further explanation letters before proceeding.

Alj Quote

If a homeowner’s association satisfies the requirements in A.R.S. § 1803(D) (1)-(4) in its notice of violation, A.R.S. § 33-1803 (E) is not triggered and does not apply.

Legal Basis

A.R.S. § 33-1803(E)

Topic Tags

  • violation notices
  • legal requirements

Question

Can the HOA Board go into a closed session to decide on my appeal?

Short Answer

Yes, if the closed session is used to seek legal counsel regarding the decision.

Detailed Answer

While appeals generally involve open discussion, the Board is permitted to adjourn to an executive (closed) session to deliberate if they need to obtain legal advice concerning the decision. This does not violate the open meeting requirement of A.R.S. § 33-1804.

Alj Quote

The preponderance of the evidence does not show that Respondent violated A.R.S. § 33-1804(5) because Petitioner’s appeal was discussed in an open session. Moreover, the HOA presented credible testimony that the session was closed to allow the HOA to seek legal counsel concerning its decision in Petitioner’s appeal

Legal Basis

A.R.S. § 33-1804(A)(1)

Topic Tags

  • board meetings
  • open meeting law
  • executive session

Question

Do I need architectural approval to install a floodlight?

Short Answer

Yes, floodlights can be considered 'structures' or changes requiring approval under CC&Rs.

Detailed Answer

Even if not a building, items like floodlights attached to a home can fall under the scope of CC&R restrictions regarding 'structures' or unapproved changes. The ALJ found that an allegation of an unapproved floodlight falls within the scope of architectural control provisions.

Alj Quote

Respondent alleged that an unapproved flood light was installed at the back of Petitioner’s home. Such allegation falls within the scope of CC&R Article III, § 3.10.

Legal Basis

CC&R Article III, § 3.10

Topic Tags

  • architectural control
  • home improvements
  • lighting

Question

Can I use A.R.S. § 33-1811 to void a penalty if I disagree with the violation?

Short Answer

Generally no, unless the decision involved a conflict of interest or compensation for a board member.

Detailed Answer

A.R.S. § 33-1811 specifically addresses the validity of contracts or decisions involving compensation/conflicts of interest. It is not a catch-all statute to void standard violation penalties where no such compensation or conflict exists.

Alj Quote

A.R.S. § 33-1811 applies to the validity of any contract, decision, or action for compensation taken by or on behalf of the Board. There was no evidence presented at hearing that the Petitioner’s appeal involved a contract, decision or other action for compensation.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • conflicts of interest
  • penalties
  • statutory interpretation

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner must prove the HOA violated the law by a 'preponderance of the evidence'.

Detailed Answer

In these administrative proceedings, the burden is on the petitioner (the homeowner) to provide evidence that carries greater weight or is more convincing than the evidence offered by the HOA.

Alj Quote

At this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1808.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • legal standards
  • hearings
  • burden of proof

Case

Docket No
21F-H2120022-REL
Case Title
Darryl Jacobson-Barnes & Robert Barnes vs. Circle G Ranches 4 Homeowners Association
Decision Date
2021-08-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Darryl Jacobson-Barnes (petitioner)
    Also referred to as Darryl Lynn Barnes–Jacobson and Darryl Barnes
  • Robert Barnes (petitioner)
    Also referred to as Robert A Barnes and Bob Barnes
  • Anthony L. Perez (petitioner attorney)
    Boyes Legal, PC

Respondent Side

  • Clint G. Goodman (respondent attorney)
    Goodman Holmgren Law Group
  • Michelle Mooney (board member)
    Circle G Ranches 4 Homeowners Association Board of Directors
    Filed complaint against Petitioner
  • Jennifer Amundson (property manager)
    VISION Community Management
    Also referred to as Jen Amundson; inspected violation
  • Amanda Stewart (board member)
    Circle G Ranches 4 Homeowners Association Board of Directors
    Board President

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE contact)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
  • c. serrano (administrative staff)
    Transmitted July 14, 2021 Order
  • Miranda Alvarez (administrative staff)
    Transmitted August 24, 2021 Order

Jean Williams v. Surprise Farms II Community Association

Case Summary

Case ID 20F-H2020054-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-07-30
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jean Williams Counsel
Respondent Surprise Farms II Community Association Counsel Nick Nogami

Alleged Violations

A.R.S. § 33-1803; CC&Rs Article VII, Section 7.2 and 7.4(a)-(c)

Outcome Summary

Petitioner failed to prove the HOA violated A.R.S. § 33-1803(A) or the CC&Rs by increasing the Annual Assessment by 20% without a vote, as the increase remained below the Maximum Annual Assessment and complied with the statutory 20% cap.

Why this result: Petitioner’s assertion was based on an erroneous reading of the CC&Rs, confusing the maximum automatic increase of the Maximum Annual Assessment (10%) with the limit on the actual Annual Assessment increase.

Key Issues & Findings

Whether the 20% increase in the Annual Assessment effective April 2020 violated statutory limits or CC&R requirements for member approval.

Petitioner alleged the Respondent HOA violated A.R.S. § 33-1803 and the CC&Rs by increasing the Annual Assessment by 20% (from $720 to $864) effective April 2020 without obtaining a 2/3 majority vote of the members.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1803(A)
  • CC&Rs Article VII, Section 7.2
  • CC&Rs Article VII, Section 7.4

Analytics Highlights

Topics: assessment increase, HOA assessments, statutory compliance, CC&R interpretation
Additional Citations:

  • A.R.S. § 33-1803(A)
  • CC&Rs Article VII, Section 7.2
  • CC&Rs Article VII, Section 7.4

Video Overview

Audio Overview

Decision Documents

20F-H2020054-REL Decision – 810957.pdf

Uploaded 2026-01-23T17:32:37 (103.0 KB)





Briefing Doc – 20F-H2020054-REL


Briefing on Administrative Law Judge Decision: Williams v. Surprise Farms II Community Association

Executive Summary

This briefing analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020054-REL, where petitioner Jean Williams alleged that the Surprise Farms II Community Association improperly increased annual homeowner assessments. The ALJ dismissed the petition, concluding that the Association acted within its authority as defined by both its Covenants, Conditions, and Restrictions (CC&Rs) and Arizona state law.

The central finding of the case is that the petitioner erroneously interpreted the CC&Rs by confusing the “Annual Assessment” (the actual amount charged to homeowners) with the “Maximum Annual Assessment” (a calculated upper limit). The ALJ determined that the Association’s 20% increase in the Annual Assessment for 2020 was permissible because:

1. It did not exceed the 20% year-over-year cap allowed by Arizona Revised Statutes (A.R.S.) § 33-1803(A) without a member vote.

2. The resulting assessment of $864 was significantly below the $2,426 Maximum Annual Assessment permitted for 2020 under the community’s own CC&Rs.

Ultimately, the decision affirms the Board’s discretion to set the Annual Assessment, provided it stays within the dual constraints of the state’s percentage increase limit and the community’s own calculated maximum charge.

Case Overview

Case Number: 20F-H2020054-REL

Parties:

Petitioner: Jean Williams

Respondent: Surprise Farms II Community Association

Administrative Law Judge: Tammy L. Eigenheer

Hearing Date: July 10, 2020

Decision Date: July 30, 2020

Nature of Dispute: The petitioner contested the validity of a 20% increase in the annual homeowners association assessment implemented in April 2020, arguing it required a member vote.

Petitioner’s Allegations

Jean Williams filed a petition with the Arizona Department of Real Estate on March 31, 2020, alleging that the Surprise Farms II Community Association violated its governing documents and state law.

Core Allegation: The Association illegally increased the “Maximum Monthly Assessment” by 20% without the approval of a two-thirds majority of association members.

Cited Violations:

A.R.S. § 33-1803: The statute governing assessment increases.

CC&Rs Article VII, Sections 7.2 and 7.4(a)-(c): The sections of the community’s governing documents that outline assessment rules.

Petitioner’s Argument: Williams contended that the Association’s CC&Rs limited any annual assessment increase to 10% unless a vote was held. She argued that the Association’s justification for the 20% increase, which cited A.R.S. § 33-1803, was a direct violation of the community’s covenants.

Respondent’s Position and Stipulated Facts

The Surprise Farms II Community Association denied all of the petitioner’s complaints. At the hearing, the Association did not present witnesses and relied on its legal argument. The respondent stipulated to the key facts regarding the assessment increases:

April 2019 Increase: The Annual Assessment increased from $660.00 to $720.00 per year, a 9% increase, without a vote of the members.

April 2020 Increase: The Annual Assessment increased from $720.00 to $864.00 per year, a 20% increase, without a vote of the members.

Governing Rules and Document Analysis

The ALJ’s decision rested on a detailed interpretation of state law and two distinct concepts within the Association’s CC&Rs: the “Annual Assessment” and the “Maximum Annual Assessment.”

Arizona Revised Statutes (A.R.S.) § 33-1803(A)

This state law establishes a default cap on assessment increases. It states that an association “shall not impose a regular assessment that is more than twenty percent greater than the immediately preceding fiscal year’s assessment without the approval of the majority of the members,” unless the community’s own documents impose an even lower limit.

CC&Rs Article VII: Key Definitions

The case hinged on the distinction between two terms defined in the CC&Rs:

1. Maximum Annual Assessment (Section 7.4): This section defines a ceiling for how much the Board could charge.

◦ It began at $480 in the first year.

◦ Crucially, this maximum automatically increases by up to 10% each year without a member vote.

◦ To raise the Maximum Annual Assessment above this automatic 10% annual increase, a two-thirds vote of members is required.

2. Annual Assessment (Section 7.2): This section defines the actual charge levied against each property.

◦ The Board has “sole discretion” to set this amount each year.

◦ The only limitation is that the Annual Assessment must be less than or equal to the “Maximum Annual Assessment” calculated under Section 7.4.

Administrative Law Judge’s Findings and Conclusion

The ALJ concluded that the petitioner failed to prove by a preponderance of the evidence that the Association violated the CC&Rs or state law. The decision was based on the following key points of analysis:

Erroneous Reading of the CC&Rs

The ALJ found the petitioner’s entire argument was “predicated on her erroneous reading of Article VII, Section 7.4 of the CC&Rs.” The petitioner incorrectly believed the 10% automatic increase to the Maximum Annual Assessment was a cap on the Annual Assessment itself.

The decision explicitly clarifies this distinction:

“Petitioner repeatedly asserted that an increase in the Annual Assessment was limited to ten percent in any given year unless approved by a vote of the members even though Article VII, Section 7.4 was entitled Maximum Annual Assessment and consistently referenced the same. By definition, the existence of a Maximum Annual Assessment necessitates an Annual Assessment that may be less than the maximum.”

Calculation of the Maximum Annual Assessment

The ALJ used the CC&Rs’ formula (a 10% cumulative increase per year since 2003) to calculate the authorized Maximum Annual Assessment for each year. This demonstrated the significant gap between what the Association could charge and what it actually charged.

Maximum Annual Assessment

$480.00

$528.00

$580.80

$638.88

$702.76

$773.03

$850.33

$935.36

$1,028.89

$1,131.77

$1,244.94

$1,369.43

$1,369.43

$1,657.00

$1,822.70

$2,004.97

$2,205.46

$2,426.00

Legality of the 2020 Assessment Increase

The ALJ determined the Association’s 2020 increase was compliant with all rules for two reasons:

1. Compliance with State Law: The increase from $720 to $864 was exactly 20%, which is the maximum allowed under A.R.S. § 33-1803(A) without a member vote.

2. Compliance with CC&Rs: The new Annual Assessment of $864 was substantially lower than the calculated Maximum Annual Assessment of $2,426 allowed for 2020.

The Board therefore acted within its “sole discretion” as granted by Section 7.2 of the CC&Rs.

Final Order

Based on the finding that the Association acted properly, IT IS ORDERED that Petitioner’s petition is dismissed. The decision is binding unless a rehearing is requested within 30 days of the order.






Study Guide – 20F-H2020054-REL


Study Guide: Williams v. Surprise Farms II Community Association

This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2020054-REL, Jean Williams v. Surprise Farms II Community Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based on the provided legal decision.

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

2. What was the central allegation Jean Williams made against the Surprise Farms II Community Association in her petition?

3. What was the specific percentage and dollar amount of the Annual Assessment increase that took effect in April 2020, and was it approved by a vote of the members?

4. According to the decision, which two governing documents did the Petitioner allege the Respondent had violated?

5. What limitation does Arizona Revised Statute (A.R.S.) § 33-1803(A) place on an association’s ability to raise regular assessments?

6. How did the community’s CC&Rs define the relationship between the “Annual Assessment” set by the Board and the “Maximum Annual Assessment”?

7. What was the calculated “Maximum Annual Assessment” for the year 2020, according to the automatic increase formula in the CC&Rs?

8. According to the Administrative Law Judge, what was the petitioner’s fundamental misunderstanding of Article VII, Section 7.4 of the CC&Rs?

9. Who bore the “burden of proof” in this case, and what legal standard was required to meet it?

10. What was the final order issued by the Administrative Law Judge, and on what date was the decision made?

——————————————————————————–

Quiz Answer Key

1. The primary parties were Jean Williams, who was the Petitioner appearing on her own behalf, and the Surprise Farms II Community Association, which was the Respondent represented by Nick Nogami. The case was adjudicated by Administrative Law Judge Tammy L. Eigenheer.

2. The petitioner alleged that the association improperly increased the Maximum Monthly Assessment by 20% without the required approval from a two-thirds majority of the association members. She claimed this action violated the community’s CC&Rs and that the association incorrectly used A.R.S. § 33-1803 to justify the increase.

3. Effective April 2020, the Annual Assessment increased by twenty percent, from $720.00 per year to $864.00 per year. The respondent stipulated that this increase occurred without any vote of the members.

4. The Petitioner alleged that the Respondent had violated the provisions of A.R.S. § 33-1803 and specific sections of the association’s governing documents: Article VII, Section 7.2 and 7.4(a)-(c) of the Covenants, Conditions, and Restrictions (CC&Rs).

5. A.R.S. § 33-1803(A) states that an association cannot impose a regular assessment that is more than twenty percent greater than the previous fiscal year’s assessment without the approval of a majority of the members. This limit applies unless the community’s own documents impose an even lower limit.

6. Article VII, Section 7.2 of the CC&Rs granted the Board sole discretion to set the Annual Assessment. This discretion was limited by the provision that the amount must be subject to, and therefore less than or equal to, the “Maximum Annual Assessment” as calculated under Section 7.4.

7. Using the annual ten percent increase formula set forth in Article VII, Section 7.4 of the CC&Rs, the calculated Maximum Annual Assessment for the year 2020 was $2,426.00.

8. The judge concluded that the petitioner’s case was predicated on her erroneous reading of the CC&Rs. She incorrectly believed the 10% figure in Section 7.4 applied to the Annual Assessment itself, when in fact it was the automatic escalator for the Maximum Annual Assessment, which served as a ceiling for the board’s discretion.

9. The Petitioner, Jean Williams, bore the burden of proof in this proceeding. She was required to prove her allegations by a “preponderance of the evidence,” which is defined as evidence with the most convincing force.

10. The final order, issued on July 30, 2020, was that the Petitioner’s petition be dismissed. The Judge concluded that the Respondent did not violate the referenced provisions of the CC&Rs or A.R.S. § 33-1803(A).

——————————————————————————–

Essay Questions

The following questions are designed for longer-form, analytical responses. No answers are provided.

1. Analyze the distinction between “Annual Assessment” and “Maximum Annual Assessment” as defined in the Surprise Farms II CC&Rs. Explain how the petitioner’s failure to differentiate between these two terms was central to the case’s outcome.

2. Explain the interplay between the community’s CC&Rs (specifically Article VII, Sections 7.2 and 7.4) and the state law (A.R.S. § 33-1803(A)). How did the judge determine that the HOA’s actions complied with both governing authorities?

3. Describe the burden of proof in this case. Who held the burden, what was the standard required, and did they successfully meet it? Use specific details from the “CONCLUSIONS OF LAW” section to support your answer.

4. Trace the history of the assessment increases from April 2019 to April 2020. Detail the specific monetary and percentage increases for both years and explain why the 20% increase in 2020 was deemed legally permissible without a member vote, while an increase over 20% would not have been.

5. Discuss the legal reasoning behind the Administrative Law Judge’s decision to dismiss the petition. What specific conclusions of law and interpretations of the CC&Rs led directly to the ruling that the respondent did not improperly increase the annual assessment?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Tammy L. Eigenheer, who presides over administrative hearings and makes legal decisions and rulings.

Annual Assessment

As defined in the CC&Rs, “the charge levied and assessed each year against each Lot and Parcel pursuant to Article VII, Section 7.2 hereof.” The Board has sole discretion to set this amount, as long as it does not exceed the Maximum Annual Assessment.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The specific statute relevant to this case is A.R.S. § 33-1803(A), which governs HOA assessment increases.

Burden of Proof

The obligation on a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving the Respondent violated the law and CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set forth the rules for a planned community or homeowners association. In this case, the CC&Rs for Surprise Farms II were recorded in 2003.

HOA (Homeowners Association)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Surprise Farms II Community Association is the HOA in this case.

Maximum Annual Assessment

A ceiling on the Annual Assessment, established by the CC&Rs. This amount was set at $480 initially and designed to increase automatically by ten percent each year without a member vote, serving as the upper limit for the Board’s assessment-setting discretion.

Petitioner

The party who files a petition initiating a legal case. In this matter, Jean Williams was the Petitioner.

Preponderance of the Evidence

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

Respondent

The party against whom a petition is filed. In this matter, the Surprise Farms II Community Association was the Respondent.






Blog Post – 20F-H2020054-REL


Why This Homeowner Lost Her Lawsuit Against the HOA (And What You Can Learn From It)

1.0 Introduction: The Dreaded HOA Letter

It’s a scenario many homeowners fear: a letter from the Homeowners Association (HOA) announcing a significant and unexpected fee increase. The feeling of frustration and powerlessness can be overwhelming. When Jean Williams received notice that her HOA was raising her annual assessment by a full 20%, she believed the board had overstepped its authority. The increase seemed to be a clear violation of the community’s governing documents, so she decided to fight back and took her HOA to court. The outcome, however, was not what she—or many other homeowners—would have expected.

2.0 The Core Misunderstanding: “Maximum” Dues vs. “Actual” Dues

The foundation of Jean Williams’s case was her belief that the community’s Covenants, Conditions, and Restrictions (CC&Rs) limited any annual fee increase to 10% without a vote from the members. This is where the critical misunderstanding occurred.

The judge in the case identified a crucial distinction in the legal language. The 10% limit mentioned in the CC&Rs did not apply to the Annual Assessment—the actual dollar amount billed to homeowners each year. Instead, it applied to the Maximum Annual Assessment, a theoretical ceiling on how high the fees could potentially go.

But why was this ceiling so high? The CC&Rs were designed so that this Maximum Annual Assessment would increase automatically by 10% every single year since its inception in 2003. This cumulative growth operated silently in the background for over a decade, creating a vast difference between the two figures. For the year 2020, the actual assessment billed to homeowners was $864. However, due to years of automatic increases, the allowable Maximum Annual Assessment had ballooned to $2,426. The board was operating with far more financial latitude than the petitioner realized.

3.0 How State Law Set the Real Limit at 20%

The next layer of this case involves the interplay between the HOA’s documents and state law. An Arizona state law, A.R.S. § 33-1803(A), dictates that an HOA cannot raise regular assessments by more than 20% in a single year without a vote from the majority of members, unless the community’s own documents set a lower limit.

This is the key legal point. Williams believed her community documents did set a lower limit of 10%. Critically, however, that 10% limit applied only to the wrong variable—the theoretical Maximum Annual Assessment ceiling, not the Annual Assessment actually paid. The CC&Rs’ failure to place a specific annual cap on the actual assessment created a legal vacuum. This vacuum was automatically filled by the Arizona state statute, making its 20% cap the only legally binding limit.

The HOA’s increase from $720 to $864 was exactly 20%. This placed their action right at the maximum threshold allowed by state law without requiring a member vote, making it legally permissible.

4.0 The Fine Print: The Power of “Sole Discretion”

The HOA board’s authority was further solidified by specific language embedded in its governing documents. Article VII, Section 7.2 of the CC&Rs explicitly granted the board “sole discretion” to determine the amount of the Annual Assessment.

The true power of this clause was unlocked by its connection to the two types of assessments. The board’s “sole discretion” was the legal tool that allowed them to set the Annual Assessment at any level they chose, provided it did not exceed the automatically growing Maximum Annual Assessment ceiling. With a ceiling of $2,426 and a previous fee of only $720, the board was legally empowered to enact the 20% increase without consulting homeowners.

5.0 The Judge’s Final Word: A Cautionary Tale

Ultimately, the judge concluded that the homeowner’s entire case was built on a misreading of the governing documents. The judge’s decision offers a clear and potent lesson for all homeowners, emphasizing that the precise wording of these legal documents is everything.

In the final decision, the judge wrote:

Petitioner’s assertion that Respondent could not increase the Annual Assessment by twenty percent was predicated on her erroneous reading of Article VII, Section 7.4 of the CC&Rs. … By definition, the existence of a Maximum Annual Assessment necessitates an Annual Assessment that may be less than the maximum.

The judge’s reasoning is precise: creating a “maximum” assessment in a legal document inherently implies the existence of a separate “actual” assessment that can be lower. Williams’s case collapsed because she treated these two distinct legal concepts as one and the same.

6.0 Conclusion: Are You Sure You Know What Your Documents Say?

The case of Jean Williams serves as a powerful reminder of how interlocking legal mechanics can produce unexpected outcomes. The board’s power was not derived from a single rule, but from the synthesis of three distinct elements: a high Maximum Assessment ceiling created by a silent, cumulative growth clause; the board’s “sole discretion” to set actual fees anywhere underneath that ceiling; and the state law’s 20% backstop that became the only relevant limit in the absence of a specific cap in the CC&Rs.

This case proves that the devil is truly in the details. It begs a critical question for every homeowner living in a planned community: When was the last time you read your community’s CC&Rs?


Case Participants

Petitioner Side

  • Jean Williams (petitioner)
    Appeared and testified on her own behalf

Respondent Side

  • Nick Nogami (HOA attorney)
    Surprise Farms II Community Association

Neutral Parties

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

Jean Williams v. Surprise Farms II Community Association

Case Summary

Case ID 20F-H2020054-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-07-30
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jean Williams Counsel
Respondent Surprise Farms II Community Association Counsel Nick Nogami

Alleged Violations

A.R.S. § 33-1803; CC&Rs Article VII, Section 7.2 and 7.4(a)-(c)

Outcome Summary

Petitioner failed to prove the HOA violated A.R.S. § 33-1803(A) or the CC&Rs by increasing the Annual Assessment by 20% without a vote, as the increase remained below the Maximum Annual Assessment and complied with the statutory 20% cap.

Why this result: Petitioner’s assertion was based on an erroneous reading of the CC&Rs, confusing the maximum automatic increase of the Maximum Annual Assessment (10%) with the limit on the actual Annual Assessment increase.

Key Issues & Findings

Whether the 20% increase in the Annual Assessment effective April 2020 violated statutory limits or CC&R requirements for member approval.

Petitioner alleged the Respondent HOA violated A.R.S. § 33-1803 and the CC&Rs by increasing the Annual Assessment by 20% (from $720 to $864) effective April 2020 without obtaining a 2/3 majority vote of the members.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1803(A)
  • CC&Rs Article VII, Section 7.2
  • CC&Rs Article VII, Section 7.4

Analytics Highlights

Topics: assessment increase, HOA assessments, statutory compliance, CC&R interpretation
Additional Citations:

  • A.R.S. § 33-1803(A)
  • CC&Rs Article VII, Section 7.2
  • CC&Rs Article VII, Section 7.4

Video Overview

Audio Overview

Decision Documents

20F-H2020054-REL Decision – 810957.pdf

Uploaded 2025-10-09T03:35:14 (103.0 KB)





Briefing Doc – 20F-H2020054-REL


Briefing on Administrative Law Judge Decision: Williams v. Surprise Farms II Community Association

Executive Summary

This briefing analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020054-REL, where petitioner Jean Williams alleged that the Surprise Farms II Community Association improperly increased annual homeowner assessments. The ALJ dismissed the petition, concluding that the Association acted within its authority as defined by both its Covenants, Conditions, and Restrictions (CC&Rs) and Arizona state law.

The central finding of the case is that the petitioner erroneously interpreted the CC&Rs by confusing the “Annual Assessment” (the actual amount charged to homeowners) with the “Maximum Annual Assessment” (a calculated upper limit). The ALJ determined that the Association’s 20% increase in the Annual Assessment for 2020 was permissible because:

1. It did not exceed the 20% year-over-year cap allowed by Arizona Revised Statutes (A.R.S.) § 33-1803(A) without a member vote.

2. The resulting assessment of $864 was significantly below the $2,426 Maximum Annual Assessment permitted for 2020 under the community’s own CC&Rs.

Ultimately, the decision affirms the Board’s discretion to set the Annual Assessment, provided it stays within the dual constraints of the state’s percentage increase limit and the community’s own calculated maximum charge.

Case Overview

Case Number: 20F-H2020054-REL

Parties:

Petitioner: Jean Williams

Respondent: Surprise Farms II Community Association

Administrative Law Judge: Tammy L. Eigenheer

Hearing Date: July 10, 2020

Decision Date: July 30, 2020

Nature of Dispute: The petitioner contested the validity of a 20% increase in the annual homeowners association assessment implemented in April 2020, arguing it required a member vote.

Petitioner’s Allegations

Jean Williams filed a petition with the Arizona Department of Real Estate on March 31, 2020, alleging that the Surprise Farms II Community Association violated its governing documents and state law.

Core Allegation: The Association illegally increased the “Maximum Monthly Assessment” by 20% without the approval of a two-thirds majority of association members.

Cited Violations:

A.R.S. § 33-1803: The statute governing assessment increases.

CC&Rs Article VII, Sections 7.2 and 7.4(a)-(c): The sections of the community’s governing documents that outline assessment rules.

Petitioner’s Argument: Williams contended that the Association’s CC&Rs limited any annual assessment increase to 10% unless a vote was held. She argued that the Association’s justification for the 20% increase, which cited A.R.S. § 33-1803, was a direct violation of the community’s covenants.

Respondent’s Position and Stipulated Facts

The Surprise Farms II Community Association denied all of the petitioner’s complaints. At the hearing, the Association did not present witnesses and relied on its legal argument. The respondent stipulated to the key facts regarding the assessment increases:

April 2019 Increase: The Annual Assessment increased from $660.00 to $720.00 per year, a 9% increase, without a vote of the members.

April 2020 Increase: The Annual Assessment increased from $720.00 to $864.00 per year, a 20% increase, without a vote of the members.

Governing Rules and Document Analysis

The ALJ’s decision rested on a detailed interpretation of state law and two distinct concepts within the Association’s CC&Rs: the “Annual Assessment” and the “Maximum Annual Assessment.”

Arizona Revised Statutes (A.R.S.) § 33-1803(A)

This state law establishes a default cap on assessment increases. It states that an association “shall not impose a regular assessment that is more than twenty percent greater than the immediately preceding fiscal year’s assessment without the approval of the majority of the members,” unless the community’s own documents impose an even lower limit.

CC&Rs Article VII: Key Definitions

The case hinged on the distinction between two terms defined in the CC&Rs:

1. Maximum Annual Assessment (Section 7.4): This section defines a ceiling for how much the Board could charge.

◦ It began at $480 in the first year.

◦ Crucially, this maximum automatically increases by up to 10% each year without a member vote.

◦ To raise the Maximum Annual Assessment above this automatic 10% annual increase, a two-thirds vote of members is required.

2. Annual Assessment (Section 7.2): This section defines the actual charge levied against each property.

◦ The Board has “sole discretion” to set this amount each year.

◦ The only limitation is that the Annual Assessment must be less than or equal to the “Maximum Annual Assessment” calculated under Section 7.4.

Administrative Law Judge’s Findings and Conclusion

The ALJ concluded that the petitioner failed to prove by a preponderance of the evidence that the Association violated the CC&Rs or state law. The decision was based on the following key points of analysis:

Erroneous Reading of the CC&Rs

The ALJ found the petitioner’s entire argument was “predicated on her erroneous reading of Article VII, Section 7.4 of the CC&Rs.” The petitioner incorrectly believed the 10% automatic increase to the Maximum Annual Assessment was a cap on the Annual Assessment itself.

The decision explicitly clarifies this distinction:

“Petitioner repeatedly asserted that an increase in the Annual Assessment was limited to ten percent in any given year unless approved by a vote of the members even though Article VII, Section 7.4 was entitled Maximum Annual Assessment and consistently referenced the same. By definition, the existence of a Maximum Annual Assessment necessitates an Annual Assessment that may be less than the maximum.”

Calculation of the Maximum Annual Assessment

The ALJ used the CC&Rs’ formula (a 10% cumulative increase per year since 2003) to calculate the authorized Maximum Annual Assessment for each year. This demonstrated the significant gap between what the Association could charge and what it actually charged.

Maximum Annual Assessment

$480.00

$528.00

$580.80

$638.88

$702.76

$773.03

$850.33

$935.36

$1,028.89

$1,131.77

$1,244.94

$1,369.43

$1,369.43

$1,657.00

$1,822.70

$2,004.97

$2,205.46

$2,426.00

Legality of the 2020 Assessment Increase

The ALJ determined the Association’s 2020 increase was compliant with all rules for two reasons:

1. Compliance with State Law: The increase from $720 to $864 was exactly 20%, which is the maximum allowed under A.R.S. § 33-1803(A) without a member vote.

2. Compliance with CC&Rs: The new Annual Assessment of $864 was substantially lower than the calculated Maximum Annual Assessment of $2,426 allowed for 2020.

The Board therefore acted within its “sole discretion” as granted by Section 7.2 of the CC&Rs.

Final Order

Based on the finding that the Association acted properly, IT IS ORDERED that Petitioner’s petition is dismissed. The decision is binding unless a rehearing is requested within 30 days of the order.






Study Guide – 20F-H2020054-REL


Study Guide: Williams v. Surprise Farms II Community Association

This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2020054-REL, Jean Williams v. Surprise Farms II Community Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based on the provided legal decision.

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

2. What was the central allegation Jean Williams made against the Surprise Farms II Community Association in her petition?

3. What was the specific percentage and dollar amount of the Annual Assessment increase that took effect in April 2020, and was it approved by a vote of the members?

4. According to the decision, which two governing documents did the Petitioner allege the Respondent had violated?

5. What limitation does Arizona Revised Statute (A.R.S.) § 33-1803(A) place on an association’s ability to raise regular assessments?

6. How did the community’s CC&Rs define the relationship between the “Annual Assessment” set by the Board and the “Maximum Annual Assessment”?

7. What was the calculated “Maximum Annual Assessment” for the year 2020, according to the automatic increase formula in the CC&Rs?

8. According to the Administrative Law Judge, what was the petitioner’s fundamental misunderstanding of Article VII, Section 7.4 of the CC&Rs?

9. Who bore the “burden of proof” in this case, and what legal standard was required to meet it?

10. What was the final order issued by the Administrative Law Judge, and on what date was the decision made?

——————————————————————————–

Quiz Answer Key

1. The primary parties were Jean Williams, who was the Petitioner appearing on her own behalf, and the Surprise Farms II Community Association, which was the Respondent represented by Nick Nogami. The case was adjudicated by Administrative Law Judge Tammy L. Eigenheer.

2. The petitioner alleged that the association improperly increased the Maximum Monthly Assessment by 20% without the required approval from a two-thirds majority of the association members. She claimed this action violated the community’s CC&Rs and that the association incorrectly used A.R.S. § 33-1803 to justify the increase.

3. Effective April 2020, the Annual Assessment increased by twenty percent, from $720.00 per year to $864.00 per year. The respondent stipulated that this increase occurred without any vote of the members.

4. The Petitioner alleged that the Respondent had violated the provisions of A.R.S. § 33-1803 and specific sections of the association’s governing documents: Article VII, Section 7.2 and 7.4(a)-(c) of the Covenants, Conditions, and Restrictions (CC&Rs).

5. A.R.S. § 33-1803(A) states that an association cannot impose a regular assessment that is more than twenty percent greater than the previous fiscal year’s assessment without the approval of a majority of the members. This limit applies unless the community’s own documents impose an even lower limit.

6. Article VII, Section 7.2 of the CC&Rs granted the Board sole discretion to set the Annual Assessment. This discretion was limited by the provision that the amount must be subject to, and therefore less than or equal to, the “Maximum Annual Assessment” as calculated under Section 7.4.

7. Using the annual ten percent increase formula set forth in Article VII, Section 7.4 of the CC&Rs, the calculated Maximum Annual Assessment for the year 2020 was $2,426.00.

8. The judge concluded that the petitioner’s case was predicated on her erroneous reading of the CC&Rs. She incorrectly believed the 10% figure in Section 7.4 applied to the Annual Assessment itself, when in fact it was the automatic escalator for the Maximum Annual Assessment, which served as a ceiling for the board’s discretion.

9. The Petitioner, Jean Williams, bore the burden of proof in this proceeding. She was required to prove her allegations by a “preponderance of the evidence,” which is defined as evidence with the most convincing force.

10. The final order, issued on July 30, 2020, was that the Petitioner’s petition be dismissed. The Judge concluded that the Respondent did not violate the referenced provisions of the CC&Rs or A.R.S. § 33-1803(A).

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Essay Questions

The following questions are designed for longer-form, analytical responses. No answers are provided.

1. Analyze the distinction between “Annual Assessment” and “Maximum Annual Assessment” as defined in the Surprise Farms II CC&Rs. Explain how the petitioner’s failure to differentiate between these two terms was central to the case’s outcome.

2. Explain the interplay between the community’s CC&Rs (specifically Article VII, Sections 7.2 and 7.4) and the state law (A.R.S. § 33-1803(A)). How did the judge determine that the HOA’s actions complied with both governing authorities?

3. Describe the burden of proof in this case. Who held the burden, what was the standard required, and did they successfully meet it? Use specific details from the “CONCLUSIONS OF LAW” section to support your answer.

4. Trace the history of the assessment increases from April 2019 to April 2020. Detail the specific monetary and percentage increases for both years and explain why the 20% increase in 2020 was deemed legally permissible without a member vote, while an increase over 20% would not have been.

5. Discuss the legal reasoning behind the Administrative Law Judge’s decision to dismiss the petition. What specific conclusions of law and interpretations of the CC&Rs led directly to the ruling that the respondent did not improperly increase the annual assessment?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Tammy L. Eigenheer, who presides over administrative hearings and makes legal decisions and rulings.

Annual Assessment

As defined in the CC&Rs, “the charge levied and assessed each year against each Lot and Parcel pursuant to Article VII, Section 7.2 hereof.” The Board has sole discretion to set this amount, as long as it does not exceed the Maximum Annual Assessment.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The specific statute relevant to this case is A.R.S. § 33-1803(A), which governs HOA assessment increases.

Burden of Proof

The obligation on a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving the Respondent violated the law and CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set forth the rules for a planned community or homeowners association. In this case, the CC&Rs for Surprise Farms II were recorded in 2003.

HOA (Homeowners Association)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Surprise Farms II Community Association is the HOA in this case.

Maximum Annual Assessment

A ceiling on the Annual Assessment, established by the CC&Rs. This amount was set at $480 initially and designed to increase automatically by ten percent each year without a member vote, serving as the upper limit for the Board’s assessment-setting discretion.

Petitioner

The party who files a petition initiating a legal case. In this matter, Jean Williams was the Petitioner.

Preponderance of the Evidence

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

Respondent

The party against whom a petition is filed. In this matter, the Surprise Farms II Community Association was the Respondent.






Blog Post – 20F-H2020054-REL


Why This Homeowner Lost Her Lawsuit Against the HOA (And What You Can Learn From It)

1.0 Introduction: The Dreaded HOA Letter

It’s a scenario many homeowners fear: a letter from the Homeowners Association (HOA) announcing a significant and unexpected fee increase. The feeling of frustration and powerlessness can be overwhelming. When Jean Williams received notice that her HOA was raising her annual assessment by a full 20%, she believed the board had overstepped its authority. The increase seemed to be a clear violation of the community’s governing documents, so she decided to fight back and took her HOA to court. The outcome, however, was not what she—or many other homeowners—would have expected.

2.0 The Core Misunderstanding: “Maximum” Dues vs. “Actual” Dues

The foundation of Jean Williams’s case was her belief that the community’s Covenants, Conditions, and Restrictions (CC&Rs) limited any annual fee increase to 10% without a vote from the members. This is where the critical misunderstanding occurred.

The judge in the case identified a crucial distinction in the legal language. The 10% limit mentioned in the CC&Rs did not apply to the Annual Assessment—the actual dollar amount billed to homeowners each year. Instead, it applied to the Maximum Annual Assessment, a theoretical ceiling on how high the fees could potentially go.

But why was this ceiling so high? The CC&Rs were designed so that this Maximum Annual Assessment would increase automatically by 10% every single year since its inception in 2003. This cumulative growth operated silently in the background for over a decade, creating a vast difference between the two figures. For the year 2020, the actual assessment billed to homeowners was $864. However, due to years of automatic increases, the allowable Maximum Annual Assessment had ballooned to $2,426. The board was operating with far more financial latitude than the petitioner realized.

3.0 How State Law Set the Real Limit at 20%

The next layer of this case involves the interplay between the HOA’s documents and state law. An Arizona state law, A.R.S. § 33-1803(A), dictates that an HOA cannot raise regular assessments by more than 20% in a single year without a vote from the majority of members, unless the community’s own documents set a lower limit.

This is the key legal point. Williams believed her community documents did set a lower limit of 10%. Critically, however, that 10% limit applied only to the wrong variable—the theoretical Maximum Annual Assessment ceiling, not the Annual Assessment actually paid. The CC&Rs’ failure to place a specific annual cap on the actual assessment created a legal vacuum. This vacuum was automatically filled by the Arizona state statute, making its 20% cap the only legally binding limit.

The HOA’s increase from $720 to $864 was exactly 20%. This placed their action right at the maximum threshold allowed by state law without requiring a member vote, making it legally permissible.

4.0 The Fine Print: The Power of “Sole Discretion”

The HOA board’s authority was further solidified by specific language embedded in its governing documents. Article VII, Section 7.2 of the CC&Rs explicitly granted the board “sole discretion” to determine the amount of the Annual Assessment.

The true power of this clause was unlocked by its connection to the two types of assessments. The board’s “sole discretion” was the legal tool that allowed them to set the Annual Assessment at any level they chose, provided it did not exceed the automatically growing Maximum Annual Assessment ceiling. With a ceiling of $2,426 and a previous fee of only $720, the board was legally empowered to enact the 20% increase without consulting homeowners.

5.0 The Judge’s Final Word: A Cautionary Tale

Ultimately, the judge concluded that the homeowner’s entire case was built on a misreading of the governing documents. The judge’s decision offers a clear and potent lesson for all homeowners, emphasizing that the precise wording of these legal documents is everything.

In the final decision, the judge wrote:

Petitioner’s assertion that Respondent could not increase the Annual Assessment by twenty percent was predicated on her erroneous reading of Article VII, Section 7.4 of the CC&Rs. … By definition, the existence of a Maximum Annual Assessment necessitates an Annual Assessment that may be less than the maximum.

The judge’s reasoning is precise: creating a “maximum” assessment in a legal document inherently implies the existence of a separate “actual” assessment that can be lower. Williams’s case collapsed because she treated these two distinct legal concepts as one and the same.

6.0 Conclusion: Are You Sure You Know What Your Documents Say?

The case of Jean Williams serves as a powerful reminder of how interlocking legal mechanics can produce unexpected outcomes. The board’s power was not derived from a single rule, but from the synthesis of three distinct elements: a high Maximum Assessment ceiling created by a silent, cumulative growth clause; the board’s “sole discretion” to set actual fees anywhere underneath that ceiling; and the state law’s 20% backstop that became the only relevant limit in the absence of a specific cap in the CC&Rs.

This case proves that the devil is truly in the details. It begs a critical question for every homeowner living in a planned community: When was the last time you read your community’s CC&Rs?


Case Participants

Petitioner Side

  • Jean Williams (petitioner)
    Appeared and testified on her own behalf

Respondent Side

  • Nick Nogami (HOA attorney)
    Surprise Farms II Community Association

Neutral Parties

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

Joyce H Monsanto vs. Four Seasons at the Manor Homeowners

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The ALJ denied the petition, concluding that the HOA's architectural guideline limiting homeowners to one flagpole per lot, while permitting the display of both the U.S. flag and a military flag (Marine Corps flag) on that single pole, constitutes a reasonable rule under A.R.S. § 33-1808(B). The ALJ also found the Board complied with the 45-day requirement for a written appeal decision under CC&R § 7.9 by memorializing the denial in the draft meeting minutes posted by December 4, 2018,,.

Why this result: The Petitioner failed to meet her burden of proof on both statutory and CC&R violations,.

Key Issues & Findings

HOA's denial of application to install two flagpoles for US and military flags, and alleged failure to follow CC&R appeal process.

Petitioner challenged the HOA's denial of her request to install two flagpoles, arguing the restriction violated A.R.S. § 33-1808 (flag statute) and that the Board failed to provide a written decision on her appeal within 45 days as required by CC&R § 7.9, which she argued meant the request was deemed approved. The ALJ found the single flagpole restriction reasonable under A.R.S. § 33-1808(B) since both flags could be flown from one pole, and determined the Board satisfied the CC&R § 7.9 requirement by posting the decision in the meeting minutes within 45 days,.

Orders: Petitioner's petition is denied, as she failed to establish that the Respondent's Board should not have denied her application under A.R.S. § 33-1808 or CC&R § 7. The Board can properly find Petitioner in violation of Architectural Guidelines and order her to remove one of her two flagpoles.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803
  • A.R.S. § 32-2199(B)

Analytics Highlights

Topics: Flag display, Architectural Guidelines, CC&Rs, Statutory compliance, Planned Communities Act, Rehearing
Additional Citations:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803
  • A.R.S. § 32-2199(B)
  • A.R.S. § 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)
  • CC&R § 7

Decision Documents

19F-H1919053-REL Decision – 749213.pdf

Uploaded 2025-12-17T18:17:40 (163.6 KB)

19F-H1919053-REL Decision – 753595.pdf

Uploaded 2025-12-17T18:17:40 (163.3 KB)

Case Participants

Petitioner Side

  • Joyce H Monsanto (petitioner)
    Appeared on her own behalf at the hearing and rehearing

Respondent Side

  • Mark K. Sahl (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Represented the Respondent
  • Anthony Nunziato (board president)
    Four Seasons at the Manor Homeowners Association Board of Directors
    President of Respondent’s Board of Directors; testified at the hearing and rehearing; also referred to as 'Tony'
  • Annette McCraw (property manager)
    Community Manager (Implied Trestle Management)
    Sent notice regarding windsocks and the written Notice of Disapproval
  • Marc Vasquez (HOA representative)
    Addressed Petitioner's claim regarding violation letters compliance during the November 8, 2018 board meeting

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge who issued the decision
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Received electronic transmission of the decision

Joyce H Monsanto vs. Four Seasons at the Manor Homeowners Association

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

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The ALJ denied the petition, concluding that the HOA's architectural guideline limiting homeowners to one flagpole per lot, while permitting the display of both the U.S. flag and a military flag (Marine Corps flag) on that single pole, constitutes a reasonable rule under A.R.S. § 33-1808(B). The ALJ also found the Board complied with the 45-day requirement for a written appeal decision under CC&R § 7.9 by memorializing the denial in the draft meeting minutes posted by December 4, 2018,,.

Why this result: The Petitioner failed to meet her burden of proof on both statutory and CC&R violations,.

Key Issues & Findings

HOA's denial of application to install two flagpoles for US and military flags, and alleged failure to follow CC&R appeal process.

Petitioner challenged the HOA's denial of her request to install two flagpoles, arguing the restriction violated A.R.S. § 33-1808 (flag statute) and that the Board failed to provide a written decision on her appeal within 45 days as required by CC&R § 7.9, which she argued meant the request was deemed approved. The ALJ found the single flagpole restriction reasonable under A.R.S. § 33-1808(B) since both flags could be flown from one pole, and determined the Board satisfied the CC&R § 7.9 requirement by posting the decision in the meeting minutes within 45 days,.

Orders: Petitioner's petition is denied, as she failed to establish that the Respondent's Board should not have denied her application under A.R.S. § 33-1808 or CC&R § 7. The Board can properly find Petitioner in violation of Architectural Guidelines and order her to remove one of her two flagpoles.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803
  • A.R.S. § 32-2199(B)

Analytics Highlights

Topics: Flag display, Architectural Guidelines, CC&Rs, Statutory compliance, Planned Communities Act, Rehearing
Additional Citations:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803
  • A.R.S. § 32-2199(B)
  • A.R.S. § 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)
  • CC&R § 7

Video Overview

Audio Overview

Decision Documents

19F-H1919053-REL-RHG Decision – 749213.pdf

Uploaded 2026-01-23T17:29:16 (163.6 KB)

19F-H1919053-REL-RHG Decision – 753595.pdf

Uploaded 2026-01-23T17:29:19 (163.3 KB)





Briefing Doc – 19F-H1919053-REL-RHG


Briefing Document: Monsanto v. Four Seasons at the Manor HOA

Executive Summary

This document synthesizes the findings and legal reasoning from the Amended Administrative Law Judge Decision in the case of Joyce H. Monsanto versus the Four Seasons at the Manor Homeowners Association (HOA). The central conflict revolves around the HOA’s denial of Ms. Monsanto’s request to install two separate flagpoles on her home to display the United States flag and the United States Marine Corps flag. The petitioner alleged this denial violated Arizona state law and the HOA’s own governing documents.

The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision established two critical points: first, that the HOA’s rule limiting homeowners to a single flagpole is a “reasonable” regulation on the “placement and manner of display” explicitly permitted under Arizona statute A.R.S. § 33-1808(B), and does not constitute a prohibition of flag display. Second, the HOA was found to have complied with its own appeal process as outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ concluded that an oral denial at a board meeting, later documented in publicly posted meeting minutes, satisfied the CC&R’s requirement to “render its written decision” within a 45-day timeframe. The ruling affirms an HOA’s authority to enforce uniform aesthetic standards, provided they are reasonable and applied according to the association’s governing documents.

Case Background and Procedural History

The case was brought before the Arizona Office of Administrative Hearings (OAH) following a petition filed by homeowner Joyce H. Monsanto (“Petitioner”) against her HOA, Four Seasons at the Manor Homeowners Association (“Respondent”).

Initial Petition: On March 6, 2019, the Petitioner filed a petition with the Arizona Department of Real Estate, alleging the HOA violated state law (A.R.S. § 33-1803) and its CC&Rs (§ 7.9) by refusing to approve her request for two flagpoles.

First Hearing: An evidentiary hearing was held on May 30, 2019, after which the ALJ found that the Petitioner had not proven any violation by the HOA.

Rehearing: The Commissioner of the Department of Real Estate granted the Petitioner’s request for a rehearing on August 22, 2019. This rehearing took place on October 21, 2019.

Amended Decision: On November 18, 2019, ALJ Diane Mihalsky issued an Amended Administrative Law Judge Decision, again denying the Petitioner’s petition and affirming the previous findings. The amendment was issued to correct a typographical error and clarify the parties’ appeal rights.

The Core Dispute: A Request for Two Flagpoles

The petitioner, whose husband and two sons have long careers in the U.S. Marines and Coast Guard, sought to display both the U.S. flag and the U.S. Marine Corps flag on her home.

The Application: On August 31, 2018, she submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house, flanking her front door.

The Rationale: The Petitioner stated her desire for two separate poles was for aesthetic reasons, believing the display would look better. She also expressed concern that a single, larger flagpole installed in her front yard would obstruct the view from her front window.

The Denial: On September 22, 2018, the HOA’s Architectural Committee issued a written Notice of Disapproval, citing the Architectural Guidelines which permit only one flagpole per lot.

The Appeal: On October 1, 2018, the Petitioner submitted a written appeal to the HOA Board, arguing the denial was unreasonable, that the guidelines were not uniformly enforced, and that the board could grant a waiver under CC&R § 7.6.

Governing Rules and Statutes

The case decision rested on the interpretation of Arizona state law and the HOA’s specific governing documents.

Arizona Revised Statute § 33-1808

This statute governs the right of homeowners to display certain flags.

Protection of Display: Subsection A states that an association “shall not prohibit the outdoor… display” of the American flag or a military flag, among others.

Right to Regulate: Subsection B grants associations the authority to “adopt reasonable rules and regulations regarding the placement and manner of display.” It explicitly allows rules that “regulate the location and size of flagpoles,” “limit the member to displaying no more than two flags at once,” and limit flagpole height, while not prohibiting their installation.

HOA Architectural Guidelines

The community’s rules regarding flagpoles evolved but consistently maintained a key restriction.

Original Guideline (May 24, 2016): “Poles must not exceed 12’ in height, and only one flagpole is permitted per Lot.”

Amended Guideline (November 8, 2018): The board increased the maximum pole height to 20′ and added rules for nighttime illumination and inclement weather, but explicitly “did not change the limit of one flagpole per lot.”

HOA CC&Rs (Covenants, Conditions, and Restrictions)

The procedural requirements for architectural review and appeals were central to the Petitioner’s claim.

Section 7.8 (Board Approval): Pertaining to initial applications, this section requires the Board to provide the owner with a “written response within sixty (60) days,” otherwise the request is deemed approved.

Section 7.9 (Appeal): Pertaining to appeals, this section requires the Board to consult with the Architectural Committee and “render its written decision” within 45 days. A failure by the Board to render a decision in this period “shall be deemed approval.” This section does not contain the same explicit language as § 7.8 requiring the response be provided to the owner.

Analysis of the Appeal Process and Conflicting Testimonies

A significant portion of the dispute centered on the events of the November 8, 2018, HOA Board meeting, where the Petitioner’s appeal was to be considered. The accounts of what transpired at this meeting were contradictory.

Petitioner’s Testimony (Joyce H. Monsanto)

Respondent’s Testimony (Anthony Nunziato, Board President)

Consultation

The board did not consult the Architectural Committee.

The board consulted with the Architectural Committee before the meeting.

Decision

The board did not consider or make any decision on her appeal.

The board considered the appeal and made a decision.

Notification

She was never told her appeal was denied at the meeting.

He was certain the board verbally informed the Petitioner that her appeal was denied at the meeting.

On December 4, 2018, draft minutes from the November 8 meeting were posted on the HOA’s website. The Petitioner acknowledged seeing them. These minutes included the following entry:

“[Petitioner’s] last request was for a waiver that would allow her to have two flagpoles on her property (one to fly the American flag and the other to fly the Marine flag). The Board rejected this request since our CC&Rs allow for the flying of both flags on a single flagpole.”

The Petitioner argued that these publicly posted draft minutes, which were not sent directly to her, did not constitute a valid written denial of her appeal under the CC&Rs.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision methodically rejected each of the Petitioner’s claims, relying on witness credibility, statutory interpretation, and contract construction principles.

Credibility Assessment

The ALJ made a clear determination on the conflicting testimonies regarding the November 8 meeting.

• Mr. Nunziato’s testimony that the board made a decision and informed the Petitioner was found to be “credible and supported by the minutes of the meeting.”

• The Petitioner’s testimony that the board made no decision on her appeal was deemed “incredible.”

Ruling on A.R.S. § 33-1808 (State Flag Law)

The ALJ concluded that the HOA’s one-flagpole rule did not violate state law.

• The rule was found to be a “reasonable rule or regulation under A.R.S. § 33-1808(B).”

• Because the Architectural Guidelines allow for flying two flags from a single flagpole up to 20′ long, the HOA was not prohibiting the display of flags, merely regulating the manner.

• The ALJ characterized the core issue as the “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.”

Ruling on CC&R § 7.9 (Appeal Process)

The ALJ found that the HOA had followed the procedure required by its own CC&Rs.

Consultation: Based on Mr. Nunziato’s credible testimony, the board fulfilled its duty to consult with the Architectural Committee.

“Render a Decision”: The board “rendered a decision on her appeal at the November 8, 2018 board meeting” when it orally reached a decision.

“Written Decision”: The board created a “writing memorializing its decision” by documenting it in the meeting minutes. Because the Petitioner saw these minutes on December 4, 2018, this action occurred within the 45-day window following her October 1, 2018 appeal.

No Delivery Requirement: The ALJ applied the “negative implication cannon of contract construction.” By comparing CC&R § 7.9 (appeals) with § 7.8 (initial applications), the judge noted that § 7.9 lacks the explicit requirement to provide the written decision to the owner. Therefore, posting the minutes was sufficient, and the Petitioner’s request was not “deemed approved.”

Final Order

Based on these findings, the ALJ issued a final, binding order.

IT IS ORDERED that the Petitioners’ petition is denied because she has not established that the Respondent’s Board should not have denied her application to install two flagpoles on her property.

The decision concludes with a notice informing the parties that the order is binding and that any appeal must be filed with the superior court within 35 days from the date of service.






Study Guide – 19F-H1919053-REL-RHG


Study Guide: Monsanto v. Four Seasons at the Manor HOA

This study guide provides a detailed review of the legal case Joyce H. Monsanto v. Four Seasons at the Manor Homeowners Association, Case No. 19F-H1919053-REL-RHG, as detailed in the Amended Administrative Law Judge Decision dated November 18, 2019. The guide includes a short-answer quiz, a corresponding answer key, suggested essay questions, and a comprehensive glossary of terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based entirely on the information provided in the case document.

1. Who are the Petitioner and the Respondent in this case, and what is their relationship?

2. What specific action did the Petitioner request from the Respondent that initiated this dispute?

3. On what grounds did the Respondent’s Architectural Committee initially deny the Petitioner’s request on September 22, 2018?

4. Identify the key Arizona statute cited in the case and explain its two main provisions regarding flag displays.

5. What was the Petitioner’s primary argument regarding the Respondent’s handling of her appeal under CC&R § 7.9?

6. According to the testimony of Board President Tony Nunziato, how did the Board address the Petitioner’s appeal at the November 8, 2018 meeting?

7. What documentary evidence did the Respondent use to support the claim that a decision on the appeal was made and written down within the required timeframe?

8. Why did the Administrative Law Judge (ALJ) find the Respondent’s one-flagpole rule to be legally permissible?

9. What is the legal standard of proof required for the Petitioner in this case, and did she meet it according to the ALJ?

10. What was the final order issued by the Administrative Law Judge in this case and its practical consequence for the Petitioner?

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Answer Key

1. The Petitioner is Joyce H. Monsanto, a homeowner. The Respondent is the Four Seasons at the Manor Homeowners Association (HOA). Ms. Monsanto is a member of the Respondent HOA because she owns a house within its development in Sun City, Arizona.

2. The Petitioner submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house. She intended to fly the United States flag from one pole and the United States Marine Corps flag from the other.

3. The Architectural Committee denied the request because the community’s Architectural Guidelines only permitted one flagpole per lot. The written Notice of Disapproval explicitly stated this rule as the reason for the denial.

4. The key statute is A.R.S. § 33-1808. Its first provision, § 33-1808(A), prohibits an HOA from banning the display of the American flag and various military flags. The second provision, § 33-1808(B), allows an HOA to adopt reasonable rules regulating the placement, size, and number of flagpoles, explicitly permitting a limit of one flagpole per property.

5. The Petitioner argued that the Board violated CC&R § 7.9 because it failed to provide her with a formal written decision denying her appeal within the 45-day period. She contended that because she never received a dedicated letter, the request should have been “deemed approved” as stipulated in the CC&R for failure to render a timely decision.

6. Tony Nunziato testified that the Board did consult with the Architectural Committee regarding the appeal before the meeting. He stated with certainty that at the November 8, 2018 meeting, the Board considered the appeal and verbally informed Ms. Monsanto that her request for a waiver was denied.

7. The Respondent presented the draft minutes from the November 8, 2018 Board meeting, which were posted on the HOA’s website on December 4, 2018. These minutes explicitly stated that the Board rejected the Petitioner’s request for a waiver to have two flagpoles, fulfilling the requirement to have a written record of the decision within 45 days of her October 1 appeal.

8. The ALJ found the rule permissible because A.R.S. § 33-1808(B) explicitly grants HOAs the authority to “adopt reasonable rules and regulations” which may “regulate the location and size of flagpoles” and “shall not prohibit the installation of a flagpole.” Since the HOA’s guidelines allowed for one flagpole up to 20 feet long, capable of flying two flags, the judge concluded the rule was reasonable under the statute.

9. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that her contention was more probably true than not. The ALJ concluded that the Petitioner did not meet this burden of proof to establish that the Respondent violated any statute or its own CC&Rs.

10. The final order denied the Petitioner’s petition. The practical consequence is that the HOA’s denial of her application for two flagpoles was upheld, and the Board could therefore properly find her in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.

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Suggested Essay Questions

1. Analyze the conflict between A.R.S. § 33-1808(A), which protects a homeowner’s right to display military flags, and § 33-1808(B), which grants HOAs regulatory power. How did the Administrative Law Judge balance these two provisions to reach a conclusion in this case?

2. Discuss the concept of “burden of proof” as it applied to the Petitioner. Detail the specific claims made by Joyce Monsanto and explain why, according to the legal decision, she failed to establish them by a “preponderance of the evidence.”

3. Examine the procedural dispute surrounding CC&R § 7.9. Contrast the Petitioner’s interpretation of a “written decision” with the interpretation ultimately adopted by the Administrative Law Judge, referencing the role of the verbal notification and the meeting minutes.

4. Evaluate the role of testimony and credibility in this administrative hearing. Compare and contrast the testimony provided by Petitioner Joyce Monsanto and Respondent’s Board President Tony Nunziato regarding the events of the November 8, 2018 board meeting, and explain why the judge found Mr. Nunziato’s account more credible.

5. Based on the facts presented, construct an argument that the HOA’s actions, while legally permissible according to the judge, were inconsistent with the patriotic values of its community, which includes many retired military members. Conversely, construct an argument defending the Board’s decision as a necessary and fair application of rules essential for maintaining community standards.

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Glossary of Key Terms

Definition in Context

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, and issues legal decisions. In this case, Diane Mihalsky served as the ALJ for the Office of Administrative Hearings.

A.R.S. § 33-1808

An Arizona Revised Statute that governs the display of flags in planned communities. It forbids HOAs from prohibiting certain flags (like the U.S. and military flags) but permits them to establish reasonable rules regarding the number, size, and location of flagpoles.

Architectural Committee

A committee established by the HOA’s CC&Rs responsible for reviewing and approving or disapproving homeowners’ applications for external modifications to their property, such as installing flagpoles.

Architectural Guidelines

The specific rules adopted by the HOA that set forth requirements for property modifications. In this case, the guidelines limited each lot to one flagpole, with a maximum height of 20 feet.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. The Petitioner, Joyce Monsanto, bore the burden of proof to show the HOA had violated the law or its own rules.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that create the rules for a planned community. The Petitioner alleged the Respondent violated CC&R § 7.9, which outlines the appeal process for disapproved architectural applications.

Declarant

The original developer of a planned community who establishes the initial CC&Rs. In this case, K. Hovnanian was the Declarant for Four Seasons at the Manor.

Homeowners’ Association (HOA)

The governing organization in a planned community responsible for enforcing the CC&Rs and managing common areas. The Respondent, Four Seasons at the Manor Homeowners Association, is an HOA.

Negative Implication

A principle of legal interpretation which holds that the explicit inclusion of one thing implies the intentional exclusion of another. The ALJ used this to argue that because CC&R § 7.9 (appeals) does not specify that a written decision must be sent to the owner, unlike CC&R § 7.8 (initial applications), that requirement should not be read into the appeal rule.

Office of Administrative Hearings (OAH)

An independent Arizona state agency that conducts evidentiary hearings for other state agencies, providing an impartial forum to resolve disputes.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Joyce H. Monsanto is the Petitioner.

Preponderance of the Evidence

The evidentiary standard required in this civil case. It is defined as proof that convinces the trier of fact (the judge) that a contention is “more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the Four Seasons at the Manor Homeowners Association is the Respondent.

Restrictive Covenant

A legally enforceable rule within the CC&Rs that limits what a homeowner can do with their property. The rule limiting homes to one flagpole is an example of a restrictive covenant.

Waiver

The act of intentionally relinquishing a known right or claim. The Petitioner argued that the HOA board could, and should, have waived the one-flagpole rule for her under CC&R § 7.6.






Blog Post – 19F-H1919053-REL-RHG


HOA vs. Military Family: 4 Lessons from a Legal Battle Over a Flagpole

For Joyce Monsanto, a member of a dedicated military family, displaying her patriotism was a matter of pride. Her husband served 25 years in the Marines, and her two sons have spent decades in the Marines and the Coast Guard. Naturally, she wanted to fly both the flag of the United States and the flag of the U.S. Marine Corps at her Arizona home. But when she submitted her plan to her Homeowners Association (HOA), she was met with a firm “no.”

The conflict wasn’t about the flags themselves. The Four Seasons at the Manor HOA had no issue with her displaying both. The dispute centered on how she wanted to display them. It was a disagreement over her vision for a symmetrical, two-pole display versus the HOA’s “one flagpole per lot” rule. This architectural dispute escalated from a simple request into a formal administrative hearing.

Ms. Monsanto’s fight reveals several surprising truths about the power of HOA rules and the specific language written into state law. Her case ultimately failed on two fronts—a substantive challenge to the rule itself, and a procedural challenge to how the HOA handled her appeal. Here’s what every homeowner can learn from each.

1. Your Right to Fly the Flag Has Limits—And They’re Written into Law.

Many homeowners believe the right to fly the American flag is unconditional. However, the legal reality is more nuanced. While Arizona law (A.R.S. § 33-1808) prevents an HOA from outright prohibiting the display of U.S. or military flags, it explicitly allows the association to create “reasonable rules and regulations” for their placement and manner of display.

The statute is specific about what these rules can cover. An HOA can legally regulate the size and location of flagpoles and can limit a homeowner to displaying no more than two flags at once. In this case, the HOA’s architectural guidelines permitted two flags, but only on a single flagpole. The Administrative Law Judge found this “one flagpole per lot” rule was a “reasonable” regulation and therefore perfectly legal. To underscore that the HOA’s stance was not about a lack of patriotism, the judge noted testimony that the HOA president himself “placed 140 small flags on his property” for Memorial Day. The issue was about the uniform enforcement of an architectural rule, not the patriotic display itself.

2. Your Personal Taste Is No Match for the Community Rulebook.

During the hearing, Ms. Monsanto acknowledged that she could fly both of her flags from a single pole as the HOA rules allowed. Her reason for wanting two poles was a matter of personal preference. She testified that she “wanted to install two flagpoles for aesthetic reasons” and also felt that a single pole placed in the middle of her lot would block the view from her front window.

The judge was unmoved by this line of reasoning. In the final decision, the response was direct and unambiguous:

Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.

This is a foundational principle of community association law: homeowners trade a degree of personal autonomy for the perceived benefits of uniform standards and predictable property values. The judge’s decision simply reaffirms that bargain. In the world of planned communities, the established rulebook will almost always outweigh an individual’s personal taste.

3. In HOA Law, the Appeal Isn’t a Re-do—It’s a Different Process.

One of Ms. Monsanto’s key arguments was procedural. She believed her appeal should have been automatically approved because the HOA failed to provide a written decision within the 45-day deadline stipulated in its own rules (CC&R § 7.9). This is where the judge identified a subtle but crucial legal distinction buried in the HOA’s governing documents.

The HOA’s CC&Rs had two different sections for architectural requests:

CC&R § 7.8 (Initial Requests): This section explicitly required the Board to “inform the submitting party of the final decision” with a “written response.”

CC&R § 7.9 (Appeals): This section, however, only required the Board to “render its written decision” within 45 days.

That small difference in wording—”written response” versus “written decision”—was the linchpin of her procedural case. The judge ruled that for an appeal, the HOA was not required to send a personal letter or direct notice to Ms. Monsanto. It only had to create a written record of its decision within the timeframe.

4. A Post on an HOA Website Can Count as an Official “Written Decision.”

The final surprise came down to what constitutes a “written decision” and how the deadline was met. Ms. Monsanto was waiting for a formal letter informing her that her appeal had been denied. She never received one. Her appeal was filed on October 1, 2018, starting a 45-day clock.

The judge found the HOA satisfied its obligation in a two-step process:

1. The Decision: The Board verbally denied her appeal during its public meeting on November 8, 2018. This action, which occurred 38 days after her appeal, fulfilled the requirement to “render its decision” within the 45-day period.

2. The Writing: That decision was then recorded in the draft meeting minutes, which were posted on the Board’s website on December 4, 2018. Ms. Monsanto acknowledged seeing the posted minutes.

The judge ruled that these online minutes satisfied the separate legal requirement for a “writing memorializing its decision.” Even though they weren’t sent directly to her, the publicly posted minutes served as the official record of the timely denial of her appeal, closing the final door on her argument for automatic approval.

Conclusion: Before You Plant Your Flag, Read the Fine Print

Joyce Monsanto’s case is a cautionary tale on two levels. First, it shows that even cherished rights like displaying the flag are subject to reasonable, neutrally-applied community rules. Second, and more critically, it demonstrates that procedural arguments live and die by the most precise definitions in the governing documents. A single word can be the difference between winning an appeal and being ordered to take your flagpole down.

This case came down to the difference between a “written response” and a “written decision”—do you know what the fine print says about your rights in your community?


Case Participants

Petitioner Side

  • Joyce H Monsanto (petitioner)
    Appeared on her own behalf

Respondent Side

  • Mark K. Sahl (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Anthony Nunziato (board member)
    Four Seasons at the Manor Homeowners Association
    President of the Board of Directors; also referred to as 'Tony'
  • Annette McCraw (property manager)
    Community Manager/Trestle Management (implied)
    Sent Notice of Disapproval on behalf of Respondent
  • Marc Vasquez (HOA representative)
    Addressed Petitioner's claim regarding violation letters at the Board meeting

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Joyce H Monsanto vs. Four Seasons at the Manor Homeowners Association

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

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The ALJ denied the Petitioner's request, finding she had not established that the Respondent HOA violated A.R.S. § 33-1808 or CC&R § 7,. The HOA's Architectural Guidelines, which limit the display to one flagpole per lot but allow two flags (US and military) to be flown from it, were deemed reasonable rules under A.R.S. § 33-1808(B),. The Board was found to have rendered a decision and memorialized it in writing within the timeframe required by CC&R § 7.9,.

Why this result: Petitioner failed to meet her burden of proof to show the HOA's rule limiting flagpoles was unreasonable under A.R.S. § 33-1808(B) or that the HOA violated the procedural requirements of CC&R § 7.9 during the appeal process,,.

Key Issues & Findings

Refusal to allow two flagpoles to display US and Marine Corps flags and alleged violation of CC&R appeal procedure.

Petitioner filed a petition alleging the HOA violated A.R.S. § 33-1803 and CC&R § 7.9 by refusing to allow her to install two flagpoles for the U.S. flag and the U.S. Marine Corps flag, contrary to Architectural Guidelines limiting installations to one flagpole per lot,,,. Petitioner also argued the Board failed to properly handle her appeal as required by CC&R § 7.9,. The ALJ found that the single flagpole limit was a reasonable rule under A.R.S. § 33-1808(B) since both flags could be flown from one pole, and Petitioner failed to establish a violation of CC&R § 7.9,,,.

Orders: Petitioners’ petition is denied. The Board can properly find Petitioner in violation of the Architectural Guidelines and order her to remove one of her two flagpoles,.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803

Analytics Highlights

Topics: Flag display, Architectural Guidelines, CC&Rs, Statutory compliance, Planned Communities Act
Additional Citations:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803
  • A.R.S. § 32-2199(B)
  • CC&R § 7

Video Overview

Audio Overview

Decision Documents

19F-H1919053-REL-RHG Decision – 749213.pdf

Uploaded 2025-10-09T03:34:13 (163.6 KB)

19F-H1919053-REL-RHG Decision – 753595.pdf

Uploaded 2025-10-09T03:34:13 (163.3 KB)





Briefing Doc – 19F-H1919053-REL-RHG


Briefing Document: Monsanto v. Four Seasons at the Manor HOA

Executive Summary

This document synthesizes the findings and legal reasoning from the Amended Administrative Law Judge Decision in the case of Joyce H. Monsanto versus the Four Seasons at the Manor Homeowners Association (HOA). The central conflict revolves around the HOA’s denial of Ms. Monsanto’s request to install two separate flagpoles on her home to display the United States flag and the United States Marine Corps flag. The petitioner alleged this denial violated Arizona state law and the HOA’s own governing documents.

The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision established two critical points: first, that the HOA’s rule limiting homeowners to a single flagpole is a “reasonable” regulation on the “placement and manner of display” explicitly permitted under Arizona statute A.R.S. § 33-1808(B), and does not constitute a prohibition of flag display. Second, the HOA was found to have complied with its own appeal process as outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ concluded that an oral denial at a board meeting, later documented in publicly posted meeting minutes, satisfied the CC&R’s requirement to “render its written decision” within a 45-day timeframe. The ruling affirms an HOA’s authority to enforce uniform aesthetic standards, provided they are reasonable and applied according to the association’s governing documents.

Case Background and Procedural History

The case was brought before the Arizona Office of Administrative Hearings (OAH) following a petition filed by homeowner Joyce H. Monsanto (“Petitioner”) against her HOA, Four Seasons at the Manor Homeowners Association (“Respondent”).

Initial Petition: On March 6, 2019, the Petitioner filed a petition with the Arizona Department of Real Estate, alleging the HOA violated state law (A.R.S. § 33-1803) and its CC&Rs (§ 7.9) by refusing to approve her request for two flagpoles.

First Hearing: An evidentiary hearing was held on May 30, 2019, after which the ALJ found that the Petitioner had not proven any violation by the HOA.

Rehearing: The Commissioner of the Department of Real Estate granted the Petitioner’s request for a rehearing on August 22, 2019. This rehearing took place on October 21, 2019.

Amended Decision: On November 18, 2019, ALJ Diane Mihalsky issued an Amended Administrative Law Judge Decision, again denying the Petitioner’s petition and affirming the previous findings. The amendment was issued to correct a typographical error and clarify the parties’ appeal rights.

The Core Dispute: A Request for Two Flagpoles

The petitioner, whose husband and two sons have long careers in the U.S. Marines and Coast Guard, sought to display both the U.S. flag and the U.S. Marine Corps flag on her home.

The Application: On August 31, 2018, she submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house, flanking her front door.

The Rationale: The Petitioner stated her desire for two separate poles was for aesthetic reasons, believing the display would look better. She also expressed concern that a single, larger flagpole installed in her front yard would obstruct the view from her front window.

The Denial: On September 22, 2018, the HOA’s Architectural Committee issued a written Notice of Disapproval, citing the Architectural Guidelines which permit only one flagpole per lot.

The Appeal: On October 1, 2018, the Petitioner submitted a written appeal to the HOA Board, arguing the denial was unreasonable, that the guidelines were not uniformly enforced, and that the board could grant a waiver under CC&R § 7.6.

Governing Rules and Statutes

The case decision rested on the interpretation of Arizona state law and the HOA’s specific governing documents.

Arizona Revised Statute § 33-1808

This statute governs the right of homeowners to display certain flags.

Protection of Display: Subsection A states that an association “shall not prohibit the outdoor… display” of the American flag or a military flag, among others.

Right to Regulate: Subsection B grants associations the authority to “adopt reasonable rules and regulations regarding the placement and manner of display.” It explicitly allows rules that “regulate the location and size of flagpoles,” “limit the member to displaying no more than two flags at once,” and limit flagpole height, while not prohibiting their installation.

HOA Architectural Guidelines

The community’s rules regarding flagpoles evolved but consistently maintained a key restriction.

Original Guideline (May 24, 2016): “Poles must not exceed 12’ in height, and only one flagpole is permitted per Lot.”

Amended Guideline (November 8, 2018): The board increased the maximum pole height to 20′ and added rules for nighttime illumination and inclement weather, but explicitly “did not change the limit of one flagpole per lot.”

HOA CC&Rs (Covenants, Conditions, and Restrictions)

The procedural requirements for architectural review and appeals were central to the Petitioner’s claim.

Section 7.8 (Board Approval): Pertaining to initial applications, this section requires the Board to provide the owner with a “written response within sixty (60) days,” otherwise the request is deemed approved.

Section 7.9 (Appeal): Pertaining to appeals, this section requires the Board to consult with the Architectural Committee and “render its written decision” within 45 days. A failure by the Board to render a decision in this period “shall be deemed approval.” This section does not contain the same explicit language as § 7.8 requiring the response be provided to the owner.

Analysis of the Appeal Process and Conflicting Testimonies

A significant portion of the dispute centered on the events of the November 8, 2018, HOA Board meeting, where the Petitioner’s appeal was to be considered. The accounts of what transpired at this meeting were contradictory.

Petitioner’s Testimony (Joyce H. Monsanto)

Respondent’s Testimony (Anthony Nunziato, Board President)

Consultation

The board did not consult the Architectural Committee.

The board consulted with the Architectural Committee before the meeting.

Decision

The board did not consider or make any decision on her appeal.

The board considered the appeal and made a decision.

Notification

She was never told her appeal was denied at the meeting.

He was certain the board verbally informed the Petitioner that her appeal was denied at the meeting.

On December 4, 2018, draft minutes from the November 8 meeting were posted on the HOA’s website. The Petitioner acknowledged seeing them. These minutes included the following entry:

“[Petitioner’s] last request was for a waiver that would allow her to have two flagpoles on her property (one to fly the American flag and the other to fly the Marine flag). The Board rejected this request since our CC&Rs allow for the flying of both flags on a single flagpole.”

The Petitioner argued that these publicly posted draft minutes, which were not sent directly to her, did not constitute a valid written denial of her appeal under the CC&Rs.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision methodically rejected each of the Petitioner’s claims, relying on witness credibility, statutory interpretation, and contract construction principles.

Credibility Assessment

The ALJ made a clear determination on the conflicting testimonies regarding the November 8 meeting.

• Mr. Nunziato’s testimony that the board made a decision and informed the Petitioner was found to be “credible and supported by the minutes of the meeting.”

• The Petitioner’s testimony that the board made no decision on her appeal was deemed “incredible.”

Ruling on A.R.S. § 33-1808 (State Flag Law)

The ALJ concluded that the HOA’s one-flagpole rule did not violate state law.

• The rule was found to be a “reasonable rule or regulation under A.R.S. § 33-1808(B).”

• Because the Architectural Guidelines allow for flying two flags from a single flagpole up to 20′ long, the HOA was not prohibiting the display of flags, merely regulating the manner.

• The ALJ characterized the core issue as the “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.”

Ruling on CC&R § 7.9 (Appeal Process)

The ALJ found that the HOA had followed the procedure required by its own CC&Rs.

Consultation: Based on Mr. Nunziato’s credible testimony, the board fulfilled its duty to consult with the Architectural Committee.

“Render a Decision”: The board “rendered a decision on her appeal at the November 8, 2018 board meeting” when it orally reached a decision.

“Written Decision”: The board created a “writing memorializing its decision” by documenting it in the meeting minutes. Because the Petitioner saw these minutes on December 4, 2018, this action occurred within the 45-day window following her October 1, 2018 appeal.

No Delivery Requirement: The ALJ applied the “negative implication cannon of contract construction.” By comparing CC&R § 7.9 (appeals) with § 7.8 (initial applications), the judge noted that § 7.9 lacks the explicit requirement to provide the written decision to the owner. Therefore, posting the minutes was sufficient, and the Petitioner’s request was not “deemed approved.”

Final Order

Based on these findings, the ALJ issued a final, binding order.

IT IS ORDERED that the Petitioners’ petition is denied because she has not established that the Respondent’s Board should not have denied her application to install two flagpoles on her property.

The decision concludes with a notice informing the parties that the order is binding and that any appeal must be filed with the superior court within 35 days from the date of service.






Study Guide – 19F-H1919053-REL-RHG


Study Guide: Monsanto v. Four Seasons at the Manor HOA

This study guide provides a detailed review of the legal case Joyce H. Monsanto v. Four Seasons at the Manor Homeowners Association, Case No. 19F-H1919053-REL-RHG, as detailed in the Amended Administrative Law Judge Decision dated November 18, 2019. The guide includes a short-answer quiz, a corresponding answer key, suggested essay questions, and a comprehensive glossary of terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based entirely on the information provided in the case document.

1. Who are the Petitioner and the Respondent in this case, and what is their relationship?

2. What specific action did the Petitioner request from the Respondent that initiated this dispute?

3. On what grounds did the Respondent’s Architectural Committee initially deny the Petitioner’s request on September 22, 2018?

4. Identify the key Arizona statute cited in the case and explain its two main provisions regarding flag displays.

5. What was the Petitioner’s primary argument regarding the Respondent’s handling of her appeal under CC&R § 7.9?

6. According to the testimony of Board President Tony Nunziato, how did the Board address the Petitioner’s appeal at the November 8, 2018 meeting?

7. What documentary evidence did the Respondent use to support the claim that a decision on the appeal was made and written down within the required timeframe?

8. Why did the Administrative Law Judge (ALJ) find the Respondent’s one-flagpole rule to be legally permissible?

9. What is the legal standard of proof required for the Petitioner in this case, and did she meet it according to the ALJ?

10. What was the final order issued by the Administrative Law Judge in this case and its practical consequence for the Petitioner?

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Answer Key

1. The Petitioner is Joyce H. Monsanto, a homeowner. The Respondent is the Four Seasons at the Manor Homeowners Association (HOA). Ms. Monsanto is a member of the Respondent HOA because she owns a house within its development in Sun City, Arizona.

2. The Petitioner submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house. She intended to fly the United States flag from one pole and the United States Marine Corps flag from the other.

3. The Architectural Committee denied the request because the community’s Architectural Guidelines only permitted one flagpole per lot. The written Notice of Disapproval explicitly stated this rule as the reason for the denial.

4. The key statute is A.R.S. § 33-1808. Its first provision, § 33-1808(A), prohibits an HOA from banning the display of the American flag and various military flags. The second provision, § 33-1808(B), allows an HOA to adopt reasonable rules regulating the placement, size, and number of flagpoles, explicitly permitting a limit of one flagpole per property.

5. The Petitioner argued that the Board violated CC&R § 7.9 because it failed to provide her with a formal written decision denying her appeal within the 45-day period. She contended that because she never received a dedicated letter, the request should have been “deemed approved” as stipulated in the CC&R for failure to render a timely decision.

6. Tony Nunziato testified that the Board did consult with the Architectural Committee regarding the appeal before the meeting. He stated with certainty that at the November 8, 2018 meeting, the Board considered the appeal and verbally informed Ms. Monsanto that her request for a waiver was denied.

7. The Respondent presented the draft minutes from the November 8, 2018 Board meeting, which were posted on the HOA’s website on December 4, 2018. These minutes explicitly stated that the Board rejected the Petitioner’s request for a waiver to have two flagpoles, fulfilling the requirement to have a written record of the decision within 45 days of her October 1 appeal.

8. The ALJ found the rule permissible because A.R.S. § 33-1808(B) explicitly grants HOAs the authority to “adopt reasonable rules and regulations” which may “regulate the location and size of flagpoles” and “shall not prohibit the installation of a flagpole.” Since the HOA’s guidelines allowed for one flagpole up to 20 feet long, capable of flying two flags, the judge concluded the rule was reasonable under the statute.

9. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that her contention was more probably true than not. The ALJ concluded that the Petitioner did not meet this burden of proof to establish that the Respondent violated any statute or its own CC&Rs.

10. The final order denied the Petitioner’s petition. The practical consequence is that the HOA’s denial of her application for two flagpoles was upheld, and the Board could therefore properly find her in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.

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Suggested Essay Questions

1. Analyze the conflict between A.R.S. § 33-1808(A), which protects a homeowner’s right to display military flags, and § 33-1808(B), which grants HOAs regulatory power. How did the Administrative Law Judge balance these two provisions to reach a conclusion in this case?

2. Discuss the concept of “burden of proof” as it applied to the Petitioner. Detail the specific claims made by Joyce Monsanto and explain why, according to the legal decision, she failed to establish them by a “preponderance of the evidence.”

3. Examine the procedural dispute surrounding CC&R § 7.9. Contrast the Petitioner’s interpretation of a “written decision” with the interpretation ultimately adopted by the Administrative Law Judge, referencing the role of the verbal notification and the meeting minutes.

4. Evaluate the role of testimony and credibility in this administrative hearing. Compare and contrast the testimony provided by Petitioner Joyce Monsanto and Respondent’s Board President Tony Nunziato regarding the events of the November 8, 2018 board meeting, and explain why the judge found Mr. Nunziato’s account more credible.

5. Based on the facts presented, construct an argument that the HOA’s actions, while legally permissible according to the judge, were inconsistent with the patriotic values of its community, which includes many retired military members. Conversely, construct an argument defending the Board’s decision as a necessary and fair application of rules essential for maintaining community standards.

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Glossary of Key Terms

Definition in Context

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, and issues legal decisions. In this case, Diane Mihalsky served as the ALJ for the Office of Administrative Hearings.

A.R.S. § 33-1808

An Arizona Revised Statute that governs the display of flags in planned communities. It forbids HOAs from prohibiting certain flags (like the U.S. and military flags) but permits them to establish reasonable rules regarding the number, size, and location of flagpoles.

Architectural Committee

A committee established by the HOA’s CC&Rs responsible for reviewing and approving or disapproving homeowners’ applications for external modifications to their property, such as installing flagpoles.

Architectural Guidelines

The specific rules adopted by the HOA that set forth requirements for property modifications. In this case, the guidelines limited each lot to one flagpole, with a maximum height of 20 feet.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. The Petitioner, Joyce Monsanto, bore the burden of proof to show the HOA had violated the law or its own rules.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that create the rules for a planned community. The Petitioner alleged the Respondent violated CC&R § 7.9, which outlines the appeal process for disapproved architectural applications.

Declarant

The original developer of a planned community who establishes the initial CC&Rs. In this case, K. Hovnanian was the Declarant for Four Seasons at the Manor.

Homeowners’ Association (HOA)

The governing organization in a planned community responsible for enforcing the CC&Rs and managing common areas. The Respondent, Four Seasons at the Manor Homeowners Association, is an HOA.

Negative Implication

A principle of legal interpretation which holds that the explicit inclusion of one thing implies the intentional exclusion of another. The ALJ used this to argue that because CC&R § 7.9 (appeals) does not specify that a written decision must be sent to the owner, unlike CC&R § 7.8 (initial applications), that requirement should not be read into the appeal rule.

Office of Administrative Hearings (OAH)

An independent Arizona state agency that conducts evidentiary hearings for other state agencies, providing an impartial forum to resolve disputes.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Joyce H. Monsanto is the Petitioner.

Preponderance of the Evidence

The evidentiary standard required in this civil case. It is defined as proof that convinces the trier of fact (the judge) that a contention is “more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the Four Seasons at the Manor Homeowners Association is the Respondent.

Restrictive Covenant

A legally enforceable rule within the CC&Rs that limits what a homeowner can do with their property. The rule limiting homes to one flagpole is an example of a restrictive covenant.

Waiver

The act of intentionally relinquishing a known right or claim. The Petitioner argued that the HOA board could, and should, have waived the one-flagpole rule for her under CC&R § 7.6.






Blog Post – 19F-H1919053-REL-RHG


HOA vs. Military Family: 4 Lessons from a Legal Battle Over a Flagpole

For Joyce Monsanto, a member of a dedicated military family, displaying her patriotism was a matter of pride. Her husband served 25 years in the Marines, and her two sons have spent decades in the Marines and the Coast Guard. Naturally, she wanted to fly both the flag of the United States and the flag of the U.S. Marine Corps at her Arizona home. But when she submitted her plan to her Homeowners Association (HOA), she was met with a firm “no.”

The conflict wasn’t about the flags themselves. The Four Seasons at the Manor HOA had no issue with her displaying both. The dispute centered on how she wanted to display them. It was a disagreement over her vision for a symmetrical, two-pole display versus the HOA’s “one flagpole per lot” rule. This architectural dispute escalated from a simple request into a formal administrative hearing.

Ms. Monsanto’s fight reveals several surprising truths about the power of HOA rules and the specific language written into state law. Her case ultimately failed on two fronts—a substantive challenge to the rule itself, and a procedural challenge to how the HOA handled her appeal. Here’s what every homeowner can learn from each.

1. Your Right to Fly the Flag Has Limits—And They’re Written into Law.

Many homeowners believe the right to fly the American flag is unconditional. However, the legal reality is more nuanced. While Arizona law (A.R.S. § 33-1808) prevents an HOA from outright prohibiting the display of U.S. or military flags, it explicitly allows the association to create “reasonable rules and regulations” for their placement and manner of display.

The statute is specific about what these rules can cover. An HOA can legally regulate the size and location of flagpoles and can limit a homeowner to displaying no more than two flags at once. In this case, the HOA’s architectural guidelines permitted two flags, but only on a single flagpole. The Administrative Law Judge found this “one flagpole per lot” rule was a “reasonable” regulation and therefore perfectly legal. To underscore that the HOA’s stance was not about a lack of patriotism, the judge noted testimony that the HOA president himself “placed 140 small flags on his property” for Memorial Day. The issue was about the uniform enforcement of an architectural rule, not the patriotic display itself.

2. Your Personal Taste Is No Match for the Community Rulebook.

During the hearing, Ms. Monsanto acknowledged that she could fly both of her flags from a single pole as the HOA rules allowed. Her reason for wanting two poles was a matter of personal preference. She testified that she “wanted to install two flagpoles for aesthetic reasons” and also felt that a single pole placed in the middle of her lot would block the view from her front window.

The judge was unmoved by this line of reasoning. In the final decision, the response was direct and unambiguous:

Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.

This is a foundational principle of community association law: homeowners trade a degree of personal autonomy for the perceived benefits of uniform standards and predictable property values. The judge’s decision simply reaffirms that bargain. In the world of planned communities, the established rulebook will almost always outweigh an individual’s personal taste.

3. In HOA Law, the Appeal Isn’t a Re-do—It’s a Different Process.

One of Ms. Monsanto’s key arguments was procedural. She believed her appeal should have been automatically approved because the HOA failed to provide a written decision within the 45-day deadline stipulated in its own rules (CC&R § 7.9). This is where the judge identified a subtle but crucial legal distinction buried in the HOA’s governing documents.

The HOA’s CC&Rs had two different sections for architectural requests:

CC&R § 7.8 (Initial Requests): This section explicitly required the Board to “inform the submitting party of the final decision” with a “written response.”

CC&R § 7.9 (Appeals): This section, however, only required the Board to “render its written decision” within 45 days.

That small difference in wording—”written response” versus “written decision”—was the linchpin of her procedural case. The judge ruled that for an appeal, the HOA was not required to send a personal letter or direct notice to Ms. Monsanto. It only had to create a written record of its decision within the timeframe.

4. A Post on an HOA Website Can Count as an Official “Written Decision.”

The final surprise came down to what constitutes a “written decision” and how the deadline was met. Ms. Monsanto was waiting for a formal letter informing her that her appeal had been denied. She never received one. Her appeal was filed on October 1, 2018, starting a 45-day clock.

The judge found the HOA satisfied its obligation in a two-step process:

1. The Decision: The Board verbally denied her appeal during its public meeting on November 8, 2018. This action, which occurred 38 days after her appeal, fulfilled the requirement to “render its decision” within the 45-day period.

2. The Writing: That decision was then recorded in the draft meeting minutes, which were posted on the Board’s website on December 4, 2018. Ms. Monsanto acknowledged seeing the posted minutes.

The judge ruled that these online minutes satisfied the separate legal requirement for a “writing memorializing its decision.” Even though they weren’t sent directly to her, the publicly posted minutes served as the official record of the timely denial of her appeal, closing the final door on her argument for automatic approval.

Conclusion: Before You Plant Your Flag, Read the Fine Print

Joyce Monsanto’s case is a cautionary tale on two levels. First, it shows that even cherished rights like displaying the flag are subject to reasonable, neutrally-applied community rules. Second, and more critically, it demonstrates that procedural arguments live and die by the most precise definitions in the governing documents. A single word can be the difference between winning an appeal and being ordered to take your flagpole down.

This case came down to the difference between a “written response” and a “written decision”—do you know what the fine print says about your rights in your community?


Case Participants

Petitioner Side

  • Joyce H Monsanto (petitioner)
    Appeared on her own behalf

Respondent Side

  • Mark K. Sahl (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Anthony Nunziato (board member)
    Four Seasons at the Manor Homeowners Association
    President of the Board of Directors; also referred to as 'Tony'
  • Annette McCraw (property manager)
    Community Manager/Trestle Management (implied)
    Sent Notice of Disapproval on behalf of Respondent
  • Marc Vasquez (HOA representative)
    Addressed Petitioner's claim regarding violation letters at the Board meeting

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Brian Sopatk vs. The Lakeshore Village Condo. Assoc., Inc.

Case Summary

Case ID 17F-H1716004-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2017-08-10
Administrative Law Judge Thomas Shedden
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian Sopatyk Counsel Nathan Andrews, Esq. and Jill Kennedy, Esq.
Respondent The Lakeshore Village Condo. Association, Inc. Counsel Bradley R. Jardine, Esq.

Alleged Violations

ARIZ. REV. STAT. section 33-1260

Outcome Summary

The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the HOA violated A.R.S. § 33-1260. The contested $660 fee was determined to be a working capital contribution authorized by the Association's CC&Rs (section 8.13), which is distinct from the resale disclosure fees limited by statute.

Why this result: The Petitioner did not meet the burden of proof to show a statutory violation because the fee in question was a valid working capital fee collected under the CC&Rs, not an illegal transfer fee under A.R.S. § 33-1260.

Key Issues & Findings

Alleged violation of statutory maximum fee for resale disclosure/transfer documents.

Petitioner alleged the Association charged a $660 transfer fee, plus a $30 statement fee, violating A.R.S. § 33-1260, which limits aggregate fees for resale disclosure and transfer services to $400. The ALJ found the $660 fee was a working capital fee authorized by CC&R section 8.13, not a statutory disclosure fee, despite being mislabeled by the Association.

Orders: Petitioner Brian D. Sopatyk's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. section 33-1260
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 33-1242(A)(2)
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119

Analytics Highlights

Topics: HOA fees, transfer fee, working capital fund, statutory compliance, burden of proof, condominium association, resale disclosure
Additional Citations:

  • ARIZ. REV. STAT. section 33-1260
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 33-1242(A)(2)
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • A.R.S. § 41-1092.08
  • A.R.S. § 41-1092.09
  • A.R.S. § 1-243

Audio Overview

Decision Documents

17f-H1716004-REL Decision – 531040.pdf

Uploaded 2025-10-08T06:51:51 (67.9 KB)

17f-H1716004-REL Decision – 540004.pdf

Uploaded 2025-10-08T06:51:51 (154.0 KB)





Briefing Doc – 17f-H1716004-REL


Briefing Document: Sopatyk v. The Lakeshore Village Condominium Association, Inc.

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case Brian Sopatyk v. The Lakeshore Village Condominium Association, Inc. (Case No. 17F-H1716004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Brian Sopatyk’s allegation that the Respondent Condominium Association violated Arizona Revised Statute (A.R.S.) § 33-1260 by charging a $660 “transfer fee” upon the sale of a condominium unit, which exceeded the statutory maximum of $400 for resale disclosure services.

The Association’s defense centered on the argument that the $660 charge was not a disclosure fee but a separate “working capital fee” authorized by its Covenants, Conditions, and Restrictions (CC&Rs). The Association contended that this fee had been erroneously mislabeled as a “transfer fee” due to a clerical error inherited by its current manager. The actual statutory fee for disclosure documents, the Association argued, was a separate $30 charge paid by the seller.

After an initial hearing in November 2016 and a subsequent re-hearing in June 2017, the Administrative Law Judge consistently found that Mr. Sopatyk failed to prove the alleged violation by a preponderance of the evidence. The court concluded that the evidence supported the Association’s claim of a mislabeled working capital fee. Consequently, Mr. Sopatyk’s petition was dismissed on both occasions, and the Association was deemed the prevailing party.

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Case Overview

Parties and Jurisdiction

Representation

Petitioner

Brian Sopatyk

On his own behalf (Initial Hearing); Nathan Andrews, Esq. & Jill Kennedy, Esq. (Re-Hearing)

Respondent

The Lakeshore Village Condominium Association, Inc.

Bradley R. Jardine, Esq. (Both Hearings)

Jurisdiction

Arizona Department of Real Estate (ADRE)

Authority under A.R.S. Title 32, Ch. 20, Art. 11.

Adjudicator

Administrative Law Judge (ALJ) Thomas Shedden

Office of Administrative Hearings, Phoenix, AZ

Core Allegation and Governing Statute

Allegation: Brian Sopatyk alleged that The Lakeshore Village Condominium Association violated A.R.S. § 33-1260 by charging fees exceeding the statutory maximum for resale disclosure services. Specifically, a $660 fee labeled as a “transfer fee” was charged when he purchased his unit.

Petitioner’s Request: Mr. Sopatyk sought an order for the Association to comply with the statute, issue refunds to all who paid fees in excess of the maximum, and for a civil penalty to be imposed.

Governing Statute: A.R.S. § 33-1260 stipulates that a condominium association “may charge the unit owner a fee of no more than an aggregate of four hundred dollars to compensate the association for the costs incurred in the preparation of a statement or other documents furnished… for purposes of resale disclosure, lien estoppel and any other services related to the transfer or use of the property.” The statute explicitly forbids charging any other fees for these services except as authorized.

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Chronology of Legal Proceedings

March 2, 2015

The Association issues a “Disclosure Form” for Mr. Sopatyk’s purchase, listing a $660 transfer fee and a $30 statement fee.

May 18, 2016

The Association’s Board of Directors meets to address Mr. Sopatyk’s claim. They conclude the $660 fee was a mislabeled working capital fee and direct corrective accounting.

August 9, 2016

Mr. Sopatyk files a petition with the Arizona Department of Real Estate.

November 14, 2016

The initial hearing is conducted before ALJ Thomas Shedden.

November 29, 2016

ALJ Shedden issues a decision dismissing Mr. Sopatyk’s petition.

December 13, 2016

The ADRE Commissioner, Judy Lowe, adopts the ALJ’s decision, issuing a Final Order dismissing the case.

February 7, 2017

A Notice of Re-Hearing is issued after Mr. Sopatyk requests one.

June 9, 2017

A re-hearing is conducted before ALJ Thomas Shedden.

June 26, 2017

ALJ Shedden issues a new decision, again dismissing Mr. Sopatyk’s petition.

August 1, 2017

The deadline passes for the ADRE to accept, reject, or modify the ALJ’s re-hearing decision. No action is taken.

August 10, 2017

The Office of Administrative Hearings certifies the ALJ’s decision from the re-hearing as the final administrative decision in the matter.

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Analysis of Arguments and Evidence

Petitioner’s Position (Brian Sopatyk)

Primary Argument: The Association’s own documents, specifically the Disclosure Form and the HUD-1 settlement statement, explicitly labeled the $660 charge as a “Transfer Fee.” This amount is a prima facie violation of the $400 statutory cap in A.R.S. § 33-1260.

Evidence Presented:

March 2, 2015 Disclosure Form: Showed a required payment of a $660 “transfer fee” and a $30 “statement fee.”

HUD-1 Settlement Statement: Documented that the $660 Transfer Fee was paid to the Association, with $330 paid from the Borrower’s (Sopatyk’s) funds and $330 from the Seller’s funds. It also showed the Seller paid a separate $30 Resale Statement Fee.

Contradictory Testimony: In his sworn petition, Mr. Sopatyk stated the $660 fee was “split between the seller and the buyer.” However, during the re-hearing, he testified that he had “in fact paid the entire $660 as part of the negotiated price of the unit.” The ALJ noted this discrepancy, stating “either Mr. Sopatyk’s sworn statement or his testimony must be false.”

Respondent’s Position (The Lakeshore Village Condo. Association)

Primary Argument: The $660 fee was not for resale disclosure services but was a working capital fee authorized by the Association’s CC&Rs. The “transfer fee” label was a historical clerical error that the Board had since identified and corrected.

Evidence and Testimony:

CC&R Section 8.13 (“Transfer Fee and Working Capital Fund”): This provision authorizes the Association to assess each new owner a fee of “at least twice the average monthly assessment” to be deposited into the working capital fund (referred to as the Reserve Fund). The monthly assessment was $328.83, making the $660 fee consistent with this rule.

Testimony of Amy Telnes (Association Manager): Ms. Telnes testified that when she became manager, she was incorrectly informed that the working capital fee was the transfer fee. She affirmed that the $660 fee was deposited into the Association’s reserve fund and that the separate $30 fee was the one charged pursuant to A.R.S. § 33-1260.

May 18, 2016 Board Meeting Minutes: These minutes, entered into evidence, documented the Board’s conclusion that it was collecting a working capital contribution but “erroneously calling it a transfer fee.” The Board directed Ms. Telnes to perform an accounting and transfer all such fees collected after October 1, 2013, to the Reserve Account. The minutes also show the Board voted to change its fee structure moving forward to a single $400 fee to avoid future confusion.

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Judicial Findings and Final Disposition

Standard and Burden of Proof

Across both hearings, the ALJ established that the standard of proof was a preponderance of the evidence, defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” The burden of proof rested entirely on the petitioner, Mr. Sopatyk, to demonstrate that a violation had occurred.

Initial Hearing Decision (November 29, 2016)

Findings of Fact: The ALJ found that the Association was charging a $660 working capital fee in accordance with its CC&Rs but had been mislabeling it. It was also charging a separate $30 document preparation fee.

Conclusion of Law: Mr. Sopatyk did not show by a preponderance of the evidence that the Association violated A.R.S. § 33-1260.

Order: The petition was dismissed, and the decision was adopted as final by the ADRE Commissioner on December 13, 2016.

Re-Hearing Decision (June 26, 2017)

Findings of Fact: The re-hearing produced more detailed findings but led to the same conclusion. The ALJ found that the Association had authority under its CC&Rs to collect the $660 working capital fee and that the statutory disclosure statute did not apply to this charge. The fee applicable to the statute was the $30 charge paid by the seller.

Conclusion of Law: The ALJ reiterated that Mr. Sopatyk failed to meet his burden of proof. The Association’s argument that the claim should fail because Sopatyk did not personally pay over $400 was deemed “not persuasive,” as the statute applies to all violations regardless of particularized harm.

Order: The petition was again ordered to be dismissed.

Final Administrative Disposition

The ADRE took no action to modify or reject the ALJ’s re-hearing decision by the statutory deadline of August 1, 2017. As a result, the Office of Administrative Hearings certified the June 26, 2017 decision as the final administrative decision on August 10, 2017, concluding the matter in favor of the Respondent Association.