Tag Archives: A.R.S. § 12-904(A)

Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

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Case Summary

Case ID 20F-H2020059-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-02-12
Administrative Law Judge Sondra J. Vanella
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J. Stoltenberg Counsel —
Respondent Rancho Del Oro Homeowners Association Counsel Nicole Payne

Alleged Violations

CC&Rs § 5.1; A.R.S. § 10-3842

Outcome Summary

The Petition was dismissed after rehearing because Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs. The ALJ found that Petitioner continually refused Respondent access to his locked back yard for landscaping maintenance, and the CC&Rs requiring landscaping do not mandate pool maintenance.

Why this result: Petitioner failed to establish a violation due to refusal of access to the back yard and misinterpretation of CC&R obligations regarding pool maintenance.

Key Issues & Findings

Failure to maintain landscaping and acting in bad faith

Petitioner alleged Respondent HOA violated CC&Rs by failing to maintain landscaping in 2020 and acting in bad faith, asserting that pool/hardscape maintenance was included in landscaping duties, and requesting the maximum fine. Respondent countered that they consistently maintained the front yard but were denied access to the locked backyard due to Petitioner's pool liability concerns.

Orders: Petitioner's Petition was dismissed/denied as Petitioner failed to establish a violation by a preponderance of the evidence. However, Respondent was ordered, going forward, to communicate the days and times they will be performing back yard landscaping so Petitioner can provide access.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs § 5.1
  • CC&Rs § 5.1(a)
  • A.R.S. § 10-3842
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • 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)
  • A.R.S. § 32-1122(A)(1)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA Duties, Landscaping, Pool Maintenance, CC&Rs, Access Refusal, Rehearing
Additional Citations:

  • CC&Rs § 5.1
  • CC&Rs § 5.1(a)
  • A.R.S. § 10-3842
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • 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)
  • A.R.S. § 32-1122(A)(1)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

20F-H2020059-REL Decision – 815480.pdf

Uploaded 2025-10-09T03:35:23 (124.1 KB)





Briefing Doc – 20F-H2020059-REL


Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document synthesizes the findings from two administrative hearings concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The core of the dispute centers on the scope of landscaping maintenance obligations as defined by the association’s Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner alleged the HOA failed its duties under CC&Rs § 5.1 by not maintaining his property’s unique landscaping, which he argued included replenishing rock, staining paths, and servicing his swimming pool and associated hardscape. He further claimed the HOA was acting in bad faith and failing to comply with a previous court ruling.

The Respondent countered that it had consistently performed standard landscaping on the Petitioner’s front yard since January 2020. However, it was repeatedly denied access to the backyard, a fact the Petitioner admitted, citing liability concerns due to his pool. The HOA provided evidence of multiple attempts to access the yard and testimony that its maintenance duties are uniform across the community and do not include “concierge” services or pool maintenance.

The Administrative Law Judge ultimately dismissed the petition in both the initial hearing and a subsequent rehearing. The final decision rested on two key points: 1) The Petitioner failed to provide access to the area in question, preventing the HOA from performing its duties. 2) The Petitioner failed to meet the burden of proof that the term “landscaping” under the CC&Rs could be reasonably interpreted to include swimming pool maintenance. This conclusion was strongly supported by the separate licensing classifications for landscaping (R-21) and swimming pool service (R-6) issued by the Arizona Registrar of Contractors, which establishes them as distinct services under state regulation.

Case Overview

Parties and Key Personnel

Name/Entity

Affiliation / Title

Petitioner

Michael J. Stoltenberg

Homeowner, 11777 E. Calle Gaudi, Yuma, AZ

Respondent

Rancho Del Oro Homeowners Association

Homeowners’ Association (HOA)

Respondent Counsel

Nicole Payne, Esq.

Legal Representative

Respondent Witness

Diana Crites

Owner, Crites and Associates (Property Management Co.)

Respondent Witness

Rian Baas

Owner, Mowtown Landscape (HOA Landscaping Contractor)

Presiding Judge

Sondra J. Vanella

Administrative Law Judge

Case Details

Details

Initial Case No.

20F-H2020059-REL

Initial Hearing

August 3, 2020

Initial Decision

August 17, 2020

Rehearing Case No.

20F-H2020059-REL-RHG

Rehearing

February 2, 2021

Rehearing Decision

February 12, 2021

Core Dispute

The central conflict involved the interpretation of the HOA’s maintenance obligations under its governing documents. The Petitioner argued for an expansive definition of “landscaping” that encompassed his entire property exterior, including a swimming pool. The HOA maintained that its duties were limited to standard, uniform landscaping services and that pool maintenance was explicitly excluded. The dispute was compounded by the Petitioner’s refusal to grant the HOA’s landscaper access to his backyard.

Petitioner’s Allegations and Arguments

Mr. Stoltenberg’s petition, filed on or about April 21, 2020, and subsequent arguments in two hearings, were based on the following claims:

• Violation of CC&Rs: The HOA violated § 5.1 of its CC&Rs by failing “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.”

• Broad Interpretation of “Landscaping”: As the CC&Rs do not define “landscaping,” the Petitioner contended it should include all types of features outside of structures. His specific demands included:

◦ Maintenance of unique xeriscape with geometric patterns.

◦ Replenishment of thin or worn-out rock ground cover.

◦ Staining of walking paths.

◦ Full maintenance of his “water feature,” identified as a swimming pool. This included the pump, filter, chemicals, patio, and all related hardscape.

• Refusal to Grant Access: The Petitioner acknowledged that the gate to his backyard was “always locked.” He stated this was for liability reasons due to the pool and refused access to the HOA’s landscapers. At the rehearing, he argued the HOA failed to communicate its schedule to allow him to provide temporary access.

• Budgetary Failure: He asserted that the HOA did not properly budget for the costs associated with maintaining his unique landscaping.

• Grounds for Rehearing: After the initial denial, the Petitioner requested a rehearing on multiple grounds, including irregularity in proceedings, errors in evidence admission, and claims of “Americans with Disabilities Act (ADA) issues” related to hearing loss.

Respondent’s Position and Evidence

The Rancho Del Oro HOA presented a defense centered on its consistent attempts to fulfill its obligations and the Petitioner’s own actions preventing them from doing so.

• Consistent Front Yard Maintenance: Both the HOA property manager and its landscaping contractor testified that the Petitioner’s front yard had been continuously maintained since landscaping services began in January 2020.

• Denial of Backyard Access: The HOA’s primary defense was that it was physically prevented from servicing the backyard. Evidence presented to support this included:

◦ Testimony from Rian Baas (Mowtown Landscape): His crews were at the property weekly. Between January and March 2020, he or his crew knocked and left notes or business cards four to five times with no response.

◦ Witness Testimony: In March 2020, a woman at the residence (presumably the Petitioner’s wife) explicitly instructed a landscaper that “she does not want anyone in the back yard because she had a pool and that is the reason for the lock on gate.”

◦ Documentary Evidence: A text message dated March 24, 2020, from Mr. Baas to property manager Diana Crites memorialized this interaction. A photograph of the locked gate was also submitted.

• Scope of Services: Ms. Crites testified that HOA landscape services are uniform throughout the community and include front yard maintenance, mowing and blowing in backyards (if access is granted), and sprinkler system upkeep. They do not provide “concierge” services such as maintaining potted plants, driveways, or pools (except for the community pool, which is serviced by a separate contractor).

• Access as a Prerequisite: Ms. Crites explained that backyard maintenance is contingent on homeowners leaving their gates unlocked, and some owners choose not to grant access due to pets or other reasons.

Judicial Findings and Rulings

Initial Decision (August 17, 2020)

The Administrative Law Judge denied the Petitioner’s initial petition based on a clear set of facts.

• Findings of Fact: The judge found the evidence presented by the Respondent to be credible. The Petitioner’s own admission that he refused to allow access to his backyard since January 2020 was a critical factor. The evidence established that the HOA had consistently maintained the front yard and made multiple, documented attempts to access the backyard.

• Conclusions of Law: The judge concluded that while § 5.1(a) of the CC&Rs requires the HOA to maintain yards, “nothing therein requires Respondent to maintain an individual member’s pool.” Because the Petitioner denied access, he could not establish that the Respondent had violated any CC&R.

Rehearing and Final Decision (February 12, 2021)

After the Commissioner for the Department of Real Estate granted a rehearing, the judge again reviewed the case and ultimately dismissed the petition, providing a more detailed legal analysis of the term “landscaping.”

• Burden of Proof: The judge reiterated that the Petitioner bore the burden to establish by a preponderance of the evidence that the HOA was legally obligated to maintain his pool and hardscape. The Petitioner failed to offer any definition or legal authority to support his expansive interpretation.

• Analysis of “Landscaping”: The judge found that the common definitions of “landscaping” from various dictionary and legal sources “cannot reasonably be read to include a swimming pool and the associated mechanical equipment.”

• Arizona Registrar of Contractors (ROC) Licensing: The judge’s conclusion was decisively reinforced by the State of Arizona’s contractor licensing classifications:

◦ The R-21 Hardscaping and Irrigation Systems license (formerly Landscaping) is for installing garden walls, irrigation, and other landscape features. It specifically precludes the licensee from contracting for “swimming pools, pool deck coatings.”

◦ The R-6 Swimming Pool Service and Repair license is a separate classification required to service residential pools.

◦ The judge concluded: “The Registrar’s licensing scheme supports a conclusion that landscaping maintenance and pool maintenance are two separate and distinct services.”

• Final Order: The petition was dismissed. The judge noted that because the Petitioner denied access, the Respondent was not in violation. However, the judge provided a forward-looking recommendation: “it is reasonable, going forward, for Respondent to communicate the days and times that it will be performing the landscaping of Petitioner’s back yard so that Petitioner can provide access for that service while maintaining safety precautions.”






Study Guide – 20F-H2020059-REL


Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

This study guide provides a comprehensive review of the administrative legal dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association. It covers the key arguments, evidence presented, and legal conclusions from two separate hearings. Use the following sections to test and deepen your understanding of the case.

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing all information from the provided case documents.

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

2. What was the core allegation made by the Petitioner against the Respondent in the initial petition filed on April 21, 2020?

3. According to Section 5.1 of the CC&Rs, what is the Association’s primary maintenance obligation regarding individual lots?

4. What specific and unique types of landscaping did the Petitioner claim required maintenance by the HOA?

5. What was the primary reason the Respondent’s landscaping contractor, Mowtown Landscape, was unable to perform maintenance in the Petitioner’s backyard?

6. What evidence did Diana Crites, the property manager, present to demonstrate the landscaper’s attempts to gain access to the backyard?

7. On what grounds did the Administrative Law Judge initially deny the Petitioner’s petition in the decision dated August 17, 2020?

8. What reasons did the Petitioner give for his request for a rehearing after the initial decision?

9. In the rehearing, how did the Administrative Law Judge legally define “landscaping” to determine the scope of the HOA’s duties?

10. What was the final order in the decision dated February 12, 2021, and what recommendation did the judge make for future interactions?

——————————————————————————–

Answer Key

1. The primary parties were Michael J. Stoltenberg, the homeowner, who served as the Petitioner, and the Rancho Del Oro Homeowners Association, which was the Respondent. The Petitioner brought the complaint alleging the HOA was not fulfilling its duties, while the Respondent defended its actions. The case was heard by Administrative Law Judge Sondra J. Vanella.

2. The Petitioner alleged that the Respondent had violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5.1 and Arizona Revised Statutes § 10-3842. Specifically, he claimed the HOA failed “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.” He also referenced a refusal to follow a previous court ruling.

3. Section 5.1 of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This clause formed the basis of the Petitioner’s argument that the HOA was responsible for all landscaping on his property.

4. The Petitioner testified that his landscaping was unique, including xeriscape with geometric patterns, “water features” (which was a pool), and walking paths that needed staining. He also contended that when the rock in his front yard wore thin, the Respondent should be responsible for replenishing it.

5. The landscaping contractor could not access the Petitioner’s backyard because the gate was always locked. The Petitioner acknowledged he kept it locked for liability reasons due to the presence of his pool, which he referred to as a “water feature.”

6. Diana Crites presented a text message from the landscaper, Rian Baas, dated March 24, 2020, detailing how a woman at the residence stated she did not want anyone in the backyard because of the pool. Ms. Crites also presented a photograph of the locked gate and read a letter from Mr. Baas explaining his crew had knocked and left business cards weekly for two months without response.

7. The judge denied the petition because the Petitioner’s own admission established that he had refused to allow the Respondent access to his backyard since January 2020. The decision noted that the HOA had made multiple attempts to access the yard and had consistently maintained the front yard landscaping.

8. The Petitioner requested a rehearing on multiple grounds, including alleged irregularity in the proceedings by the judge, newly discovered evidence, errors in the admission of evidence, and that the decision was not supported by evidence. He also asserted that there were Americans with Disabilities Act (ADA) issues related to his hearing loss and privacy issues.

9. The judge referenced multiple online dictionaries (Oxford English Dictionary, Dictionary.com, etc.) and, most significantly, the Arizona Registrar of Contractors’ license classifications. She noted that landscaping (R-21 license) and swimming pool service (R-6 license) are two separate and distinct services, supporting the conclusion that pool maintenance is not included under the term “landscaping.”

10. The final order was that the Petitioner’s Petition was dismissed. However, the judge recommended that, going forward, it would be reasonable for the Respondent to communicate the days and times for landscaping so the Petitioner could provide access to his backyard while maintaining his safety precautions.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer as a short essay.

1. Analyze the role of “burden of proof” in this case. Explain what “preponderance of the evidence” means according to the source text and discuss how the Petitioner’s failure to meet this burden led to the dismissal of his petition in both hearings.

2. Discuss the conflict between the Petitioner’s right to secure his property (the locked gate) and the Respondent’s obligation to perform maintenance. How did the judge’s final recommendation attempt to resolve this practical conflict, even while legally siding with the Respondent?

3. Evaluate the Administrative Law Judge’s legal reasoning in the rehearing for defining “landscaping.” Why was the reference to the Arizona Registrar of Contractors’ licensing scheme a particularly persuasive piece of evidence compared to dictionary definitions alone?

4. Trace the evolution of the Petitioner’s arguments from the initial hearing to the rehearing. How did his claims regarding the scope of “landscaping” and his introduction of issues like ADA accommodation and the HOA’s legitimacy reflect a shift in legal strategy?

5. Based on the evidence presented by the Respondent’s witnesses (Diana Crites and Rian Baas), assess the HOA’s efforts to fulfill its maintenance obligations. Were the HOA’s actions reasonable under the circumstances described in the proceedings?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings. In this case, Sondra J. Vanella served as the ALJ for the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The Petitioner cited A.R.S. § 10-3842 (Code of Conduct for Board Members) and the proceedings operated under the authority of A.R.S. § 32-2199(B) and other related statutes.

Burden of Proof

The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated its CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set out the rules for a planned community. The central issue of this case was the interpretation of Section 5.1(a) of the Rancho Del Oro HOA’s CC&Rs regarding maintenance duties.

Concierge Landscape Services

A term used by witness Diana Crites to describe specialized, non-uniform services the HOA does not provide. Examples given included maintaining potted plants, driveways, or walls dividing properties, in contrast to the uniform mowing and blowing provided to all homeowners.

Office of Administrative Hearings

An independent state agency in Arizona that conducts evidentiary hearings for other state agencies. This office heard the dispute after it was referred by the Department of Real Estate.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was homeowner Michael J. Stoltenberg.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to win his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”

Respondent

The party against whom a petition is filed. In this matter, the Respondent was the Rancho Del Oro Homeowners Association.

Xeriscape

A style of landscaping utilizing drought-tolerant plants and rock to minimize water use. The Petitioner mentioned his unique xeriscape with geometric patterns as part of the landscaping he expected the HOA to maintain.






Blog Post – 20F-H2020059-REL


Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

This study guide provides a comprehensive review of the administrative legal dispute between homeowner Michael J. Stoltenberg and the Rancho Del Oro Homeowners Association. It covers the key arguments, evidence presented, and legal conclusions from two separate hearings. Use the following sections to test and deepen your understanding of the case.

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing all information from the provided case documents.

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

2. What was the core allegation made by the Petitioner against the Respondent in the initial petition filed on April 21, 2020?

3. According to Section 5.1 of the CC&Rs, what is the Association’s primary maintenance obligation regarding individual lots?

4. What specific and unique types of landscaping did the Petitioner claim required maintenance by the HOA?

5. What was the primary reason the Respondent’s landscaping contractor, Mowtown Landscape, was unable to perform maintenance in the Petitioner’s backyard?

6. What evidence did Diana Crites, the property manager, present to demonstrate the landscaper’s attempts to gain access to the backyard?

7. On what grounds did the Administrative Law Judge initially deny the Petitioner’s petition in the decision dated August 17, 2020?

8. What reasons did the Petitioner give for his request for a rehearing after the initial decision?

9. In the rehearing, how did the Administrative Law Judge legally define “landscaping” to determine the scope of the HOA’s duties?

10. What was the final order in the decision dated February 12, 2021, and what recommendation did the judge make for future interactions?

——————————————————————————–

Answer Key

1. The primary parties were Michael J. Stoltenberg, the homeowner, who served as the Petitioner, and the Rancho Del Oro Homeowners Association, which was the Respondent. The Petitioner brought the complaint alleging the HOA was not fulfilling its duties, while the Respondent defended its actions. The case was heard by Administrative Law Judge Sondra J. Vanella.

2. The Petitioner alleged that the Respondent had violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5.1 and Arizona Revised Statutes § 10-3842. Specifically, he claimed the HOA failed “to do their job in 2020 with maintaining landscaping, and are acting in bad faith.” He also referenced a refusal to follow a previous court ruling.

3. Section 5.1 of the CC&Rs states that the Association’s maintenance duties “shall also include maintenance of the landscaping on individual Lots outside of structures.” This clause formed the basis of the Petitioner’s argument that the HOA was responsible for all landscaping on his property.

4. The Petitioner testified that his landscaping was unique, including xeriscape with geometric patterns, “water features” (which was a pool), and walking paths that needed staining. He also contended that when the rock in his front yard wore thin, the Respondent should be responsible for replenishing it.

5. The landscaping contractor could not access the Petitioner’s backyard because the gate was always locked. The Petitioner acknowledged he kept it locked for liability reasons due to the presence of his pool, which he referred to as a “water feature.”

6. Diana Crites presented a text message from the landscaper, Rian Baas, dated March 24, 2020, detailing how a woman at the residence stated she did not want anyone in the backyard because of the pool. Ms. Crites also presented a photograph of the locked gate and read a letter from Mr. Baas explaining his crew had knocked and left business cards weekly for two months without response.

7. The judge denied the petition because the Petitioner’s own admission established that he had refused to allow the Respondent access to his backyard since January 2020. The decision noted that the HOA had made multiple attempts to access the yard and had consistently maintained the front yard landscaping.

8. The Petitioner requested a rehearing on multiple grounds, including alleged irregularity in the proceedings by the judge, newly discovered evidence, errors in the admission of evidence, and that the decision was not supported by evidence. He also asserted that there were Americans with Disabilities Act (ADA) issues related to his hearing loss and privacy issues.

9. The judge referenced multiple online dictionaries (Oxford English Dictionary, Dictionary.com, etc.) and, most significantly, the Arizona Registrar of Contractors’ license classifications. She noted that landscaping (R-21 license) and swimming pool service (R-6 license) are two separate and distinct services, supporting the conclusion that pool maintenance is not included under the term “landscaping.”

10. The final order was that the Petitioner’s Petition was dismissed. However, the judge recommended that, going forward, it would be reasonable for the Respondent to communicate the days and times for landscaping so the Petitioner could provide access to his backyard while maintaining his safety precautions.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer as a short essay.

1. Analyze the role of “burden of proof” in this case. Explain what “preponderance of the evidence” means according to the source text and discuss how the Petitioner’s failure to meet this burden led to the dismissal of his petition in both hearings.

2. Discuss the conflict between the Petitioner’s right to secure his property (the locked gate) and the Respondent’s obligation to perform maintenance. How did the judge’s final recommendation attempt to resolve this practical conflict, even while legally siding with the Respondent?

3. Evaluate the Administrative Law Judge’s legal reasoning in the rehearing for defining “landscaping.” Why was the reference to the Arizona Registrar of Contractors’ licensing scheme a particularly persuasive piece of evidence compared to dictionary definitions alone?

4. Trace the evolution of the Petitioner’s arguments from the initial hearing to the rehearing. How did his claims regarding the scope of “landscaping” and his introduction of issues like ADA accommodation and the HOA’s legitimacy reflect a shift in legal strategy?

5. Based on the evidence presented by the Respondent’s witnesses (Diana Crites and Rian Baas), assess the HOA’s efforts to fulfill its maintenance obligations. Were the HOA’s actions reasonable under the circumstances described in the proceedings?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings. In this case, Sondra J. Vanella served as the ALJ for the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The Petitioner cited A.R.S. § 10-3842 (Code of Conduct for Board Members) and the proceedings operated under the authority of A.R.S. § 32-2199(B) and other related statutes.

Burden of Proof

The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated its CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set out the rules for a planned community. The central issue of this case was the interpretation of Section 5.1(a) of the Rancho Del Oro HOA’s CC&Rs regarding maintenance duties.

Concierge Landscape Services

A term used by witness Diana Crites to describe specialized, non-uniform services the HOA does not provide. Examples given included maintaining potted plants, driveways, or walls dividing properties, in contrast to the uniform mowing and blowing provided to all homeowners.

Office of Administrative Hearings

An independent state agency in Arizona that conducts evidentiary hearings for other state agencies. This office heard the dispute after it was referred by the Department of Real Estate.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was homeowner Michael J. Stoltenberg.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to win his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”

Respondent

The party against whom a petition is filed. In this matter, the Respondent was the Rancho Del Oro Homeowners Association.

Xeriscape

A style of landscaping utilizing drought-tolerant plants and rock to minimize water use. The Petitioner mentioned his unique xeriscape with geometric patterns as part of the landscaping he expected the HOA to maintain.


Case Participants

Petitioner Side

  • Michael J. Stoltenberg (petitioner)
    Appeared on his own behalf

Respondent Side

  • Nicole Payne (HOA attorney)
    Represented Respondent Rancho Del Oro Homeowners Association
  • Diana Crites (property manager)
    Crites and Associates
    Owner of Respondent’s property management company; appeared as witness
  • Rian Baas (witness)
    Mowtown Landscape
    Owner of landscaping company contracted by Respondent
  • Lydia A. Peirce Linsmeier (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Listed as recipient of the decision
  • Luis (employee)
    Mowtown Landscape (Implied)
    Crew member mentioned in text message regarding attempted access to petitioner's yard
  • Jill (employee)
    Mowtown Landscape (Implied)
    Printed papers for Luis regarding access to petitioner's yard

Neutral Parties

  • Sondra J. Vanella (ALJ)
    Administrative Law Judge
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Will Schreiber v. Cimarron Hills at McDowell Mountain Homeowners

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

Case Summary

Case ID 20F-H2019003-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-03-16
Administrative Law Judge Antara Nath Rivera
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Will Schreiber Counsel Aaron M. Green
Respondent Cimarron Hills at McDowell Mountain Homeowners Association Counsel Mark K. Sahl

Alleged Violations

Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3

Outcome Summary

The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.

Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.

Key Issues & Findings

HOA's denial of Petitioner's glass view fence modification

Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).

Orders: Petitioner Will Schreiber’s Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • 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’s Article 12.3
  • Design Guidelines Section HH
  • Design Guidelines Section E
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: Homeowner dispute, View fence, Architectural approval, Design Guidelines, CC&R's violation, Retroactive approval, Burden of Proof
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • 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)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Video Overview

Audio Overview

Decision Documents

20F-H2019003-REL-RHG Decision – 769789.pdf

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20F-H2019003-REL-RHG Decision – 775433.pdf

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Briefing Doc – 20F-H2019003-REL-RHG


Briefing Document: Schreiber v. Cimarron Hills HOA

Executive Summary

This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.

The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.

The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).

Case Identification and Participants

Detail

Information

Case Name

Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent

Case Number

20F-H2019003-REL-RHG

Tribunal

Office of Administrative Hearings (Arizona)

Administrative Law Judge

Antara Nath Rivera

Petitioner

Will Schreiber

Petitioner’s Counsel

Aaron M. Green, Esq.

Respondent

Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)

Respondent’s Counsel

Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)

Property Address

11551 East Caribbean Lane, Scottsdale, Arizona, 85255

Procedural History and Timeline

1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.

2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.

3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.

4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.

5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).

6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.

7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.

8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.

9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.

10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.

11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.

12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.

13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.

Analysis of Arguments

Petitioner’s Position (Will Schreiber)

The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.

• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.

• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.

• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.

• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”

Respondent’s Position (Cimarron Hills HOA)

The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.

• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.

• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.

• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.

• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.

Governing Documents Cited

The decision in this case was based on the interpretation of several key sections of the community’s governing documents.

• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.

• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”

• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.

• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.

Administrative Law Judge’s Decision and Rationale

The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.

• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.

• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.

• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.

• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.






Study Guide – 20F-H2019003-REL-RHG


Study Guide: Schreiber v. Cimarron Hills HOA

This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.

Short-Answer Quiz

Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.

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

2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?

3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?

4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?

5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?

6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.

7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?

8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?

9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?

10. What was the final outcome of the administrative rehearing held on January 30, 2020?

Answer Key

1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.

2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.

3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.

4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.

5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.

6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.

7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.

8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.

9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.

10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.

Essay Questions

The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.

1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.

2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?

3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.

4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.

5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.

Answer

The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.

Areas of Association Responsibility

Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.

An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.

Design Guidelines

A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.

Design Review Committee (DRC)

A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.

Homeowners Association Dispute Process Petition

The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.

McDowell Mountain Ranch Homeowners Association (MMRHA)

The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.

Petitioner

The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.

Preponderance of the evidence

The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.

Respondent

The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.

Retroactive Approval

Approval sought for a modification or construction that has already been completed without prior authorization.

Variance

A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.






Blog Post – 20F-H2019003-REL-RHG


The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA

Introduction: The Dream Project and the Unseen Rules

Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.

The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.

1. The most critical mistake wasn’t the fence—it was the timing.

The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.

The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.

In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.

2. A logical argument can lose to a written rule.

The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:

A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.

To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.

This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.

3. The HOA’s biggest concern wasn’t curb appeal; it was risk.

While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.

The HOA presented several key points:

• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.

• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.

• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”

Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.

4. In a dispute, you are the one who has to prove the HOA is wrong.

When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”

In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.

The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.

Conclusion: The Unwritten Lessons of Community Living

HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.

This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?


Case Participants

Petitioner Side

  • Will Schreiber (petitioner)
    Complainant
  • Aaron M. Green (petitioner attorney)
    Law Office of Aaron Green, P.C.

Respondent Side

  • Nick Nogami (respondent attorney)
    Represented Respondent at hearing
  • Mark K. Sahl (respondent attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Whitney Bostic (witness)
    Testified for Respondent

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (clerk)
    Transmitting agent for Order
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Will Schreiber v. Cimarron Hills at McDowell Mountain Homeowners

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

Case Summary

Case ID 20F-H2019003-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-03-16
Administrative Law Judge Antara Nath Rivera
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Will Schreiber Counsel Aaron M. Green
Respondent Cimarron Hills at McDowell Mountain Homeowners Association Counsel Mark K. Sahl

Alleged Violations

CC&R's Article 12; Design Guidelines HH Walls/View Fences

Outcome Summary

The Petitioner's dispute petition was dismissed because the Petitioner failed to meet the burden of proof that the HOA violated its governing documents regarding the denial of a retroactively submitted view fence modification.

Why this result: Petitioner failed to meet the burden of proof to establish the HOA violated its CC&Rs or Design Guidelines. Specifically, the Petitioner did not establish he rightfully sought approval prior to installing the fence.

Key Issues & Findings

HOA's denial of Petitioner's glass view fence modification

Petitioner alleged the HOA violated community documents by denying approval for a glass view fence installed without prior approval. The ALJ found Petitioner failed to establish the HOA violated its documents, as Petitioner did not follow required procedures for seeking approval.

Orders: Petitioner Will Schreiber’s Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • 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)
  • CC&R's Article 12.3
  • Design Guidelines Section HH

Analytics Highlights

Topics: Homeowner dispute, View fence, Architectural approval, Design Guidelines, CC&R's violation, Retroactive application
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • 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)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Video Overview

Audio Overview

Decision Documents

20F-H2019003-REL-RHG Decision – 769789.pdf

Uploaded 2025-10-09T03:34:30 (42.2 KB)

20F-H2019003-REL-RHG Decision – 775433.pdf

Uploaded 2025-10-09T03:34:30 (123.4 KB)





Briefing Doc – 20F-H2019003-REL-RHG


Briefing Document: Schreiber v. Cimarron Hills HOA

Executive Summary

This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.

The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.

The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).

Case Identification and Participants

Detail

Information

Case Name

Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent

Case Number

20F-H2019003-REL-RHG

Tribunal

Office of Administrative Hearings (Arizona)

Administrative Law Judge

Antara Nath Rivera

Petitioner

Will Schreiber

Petitioner’s Counsel

Aaron M. Green, Esq.

Respondent

Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)

Respondent’s Counsel

Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)

Property Address

11551 East Caribbean Lane, Scottsdale, Arizona, 85255

Procedural History and Timeline

1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.

2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.

3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.

4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.

5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).

6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.

7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.

8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.

9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.

10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.

11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.

12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.

13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.

Analysis of Arguments

Petitioner’s Position (Will Schreiber)

The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.

• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.

• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.

• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.

• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”

Respondent’s Position (Cimarron Hills HOA)

The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.

• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.

• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.

• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.

• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.

Governing Documents Cited

The decision in this case was based on the interpretation of several key sections of the community’s governing documents.

• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.

• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”

• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.

• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.

Administrative Law Judge’s Decision and Rationale

The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.

• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.

• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.

• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.

• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.






Study Guide – 20F-H2019003-REL-RHG


Study Guide: Schreiber v. Cimarron Hills HOA

This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.

Short-Answer Quiz

Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.

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

2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?

3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?

4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?

5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?

6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.

7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?

8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?

9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?

10. What was the final outcome of the administrative rehearing held on January 30, 2020?

Answer Key

1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.

2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.

3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.

4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.

5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.

6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.

7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.

8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.

9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.

10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.

Essay Questions

The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.

1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.

2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?

3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.

4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.

5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.

Answer

The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.

Areas of Association Responsibility

Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.

An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.

Design Guidelines

A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.

Design Review Committee (DRC)

A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.

Homeowners Association Dispute Process Petition

The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.

McDowell Mountain Ranch Homeowners Association (MMRHA)

The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.

Petitioner

The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.

Preponderance of the evidence

The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.

Respondent

The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.

Retroactive Approval

Approval sought for a modification or construction that has already been completed without prior authorization.

Variance

A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.






Blog Post – 20F-H2019003-REL-RHG


The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA

Introduction: The Dream Project and the Unseen Rules

Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.

The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.

1. The most critical mistake wasn’t the fence—it was the timing.

The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.

The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.

In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.

2. A logical argument can lose to a written rule.

The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:

A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.

To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.

This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.

3. The HOA’s biggest concern wasn’t curb appeal; it was risk.

While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.

The HOA presented several key points:

• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.

• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.

• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”

Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.

4. In a dispute, you are the one who has to prove the HOA is wrong.

When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”

In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.

The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.

Conclusion: The Unwritten Lessons of Community Living

HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.

This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?


Case Participants

Petitioner Side

  • Will Schreiber (petitioner)
    Complainant
  • Aaron M. Green (petitioner attorney)
    Law Office of Aaron Green, P.C.

Respondent Side

  • Nick Nogami (respondent attorney)
    Represented Respondent at hearing
  • Mark K. Sahl (respondent attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Whitney Bostic (witness)
    Testified for Respondent

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (clerk)
    Transmitting agent for Order
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Will Schreiber vs. Cimarron Hills at McDowell Mountain Homeowners

Posted on by

Case Summary

Case ID 20F-H2019003-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-03-16
Administrative Law Judge Antara Nath Rivera
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Will Schreiber Counsel Aaron M. Green
Respondent Cimarron Hills at McDowell Mountain Homeowners Association Counsel Mark K. Sahl

Alleged Violations

Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3

Outcome Summary

The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.

Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.

Key Issues & Findings

HOA's denial of Petitioner's glass view fence modification

Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).

Orders: Petitioner Will Schreiber’s Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • 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’s Article 12.3
  • Design Guidelines Section HH
  • Design Guidelines Section E
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: Homeowner dispute, View fence, Architectural approval, Design Guidelines, CC&R's violation, Retroactive approval, Burden of Proof
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • 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)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Decision Documents

20F-H2019003-REL Decision – 769789.pdf

Uploaded 2025-12-17T18:18:00 (42.2 KB)

20F-H2019003-REL Decision – 775433.pdf

Uploaded 2025-12-17T18:18:00 (123.4 KB)

Case Participants

Petitioner Side

  • Will Schreiber (petitioner)
  • Aaron M. Green (petitioner attorney)
    Law Office of Aaron Green, P.C.

Respondent Side

  • Nick Nogami (respondent attorney)
  • Mark K. Sahl (respondent attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Whitney Bostic (witness)

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (clerk)
    Transmitted order/document
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Joan A. Tober, vs. Civano 1 Neighborhood 1 Homeowners Association

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

Case Summary

Case ID 19F-H1918042-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-15
Administrative Law Judge Kay A. Abramsohn
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joan A. Tober Counsel —
Respondent Civano 1 Neighborhood 1 Homeowners Association Counsel Diana J. Elston

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the Civano 1 Neighborhood 1 Homeowners Association (HOA) was the prevailing party. The ALJ found that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B) because the specific attorney letter requested was privileged and could be withheld,, and Petitioner's request for additional 'background information' was unreasonably broad and unclarified,.

Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1805(A) as the HOA lawfully withheld privileged documents under A.R.S. § 33-1805(B) and was not required to guess what records were requested due to the vague nature of the demand for 'any and all documentation'.

Key Issues & Findings

HOA violation of requirement to provide association records.

Petitioner alleged the HOA failed to provide all requested documentation, specifically an attorney letter concerning the North Ridge wall, and failed to comply with the 10-business day response period required for record requests.

Orders: The HOA was deemed the prevailing party on rehearing and Petitioner's appeal was dismissed. The HOA acted in compliance with A.R.S. § 33-1805(A) and (B). The requested attorney letter was privileged communication and could be withheld.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)

Analytics Highlights

Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request
Additional Citations:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.09
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Video Overview

Audio Overview

Decision Documents

19F-H1918042-REL-RHG Decision – 764197.pdf

Uploaded 2025-10-09T03:34:01 (187.4 KB)

19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/714863.pdf

Uploaded 2026-01-20T13:51:35 (51.7 KB)

19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/725808.pdf

Uploaded 2026-01-20T13:51:36 (89.7 KB)





Briefing Doc – 19F-H1918042-REL-RHG


Briefing Document: Tober v. Civano 1 Homeowners Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”

The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.

The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.

Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.

——————————————————————————–

Case Overview

This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).

Case Name

Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.

Case Number

19F-H1918042-REL

Adjudicating Body

Office of Administrative Hearings (OAH)

Administrative Law Judge

Kay A. Abramsohn

Core Issue

Alleged violation of A.R.S. § 33-1805, which governs member access to association records.

Initial Hearing Date

June 5, 2019

Initial Decision Date

July 29, 2019

Rehearing Date

December 11, 2019

Final Decision Date

January 15, 2020

——————————————————————————–

Key Parties and Individuals

• Petitioner: Joan A. Tober

◦ A homeowner in the Civano 1 Neighborhood since 2001.

◦ Previously worked for the company that developed the land/homes in the association area.

◦ Has served as a past Board member for the HOA.

◦ Served as an alternate member on the Finance Committee in 2018.

◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.

• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)

◦ The governing body for the planned community.

◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.

• Adjudicator: Kay Abramsohn

◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.

——————————————————————————–

Chronology of the Dispute

Nov 20, 2018

At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.

Nov 26, 2018

Petitioner sends her first email request for a copy of the Letter.

Nov 27, 2018

Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.

Nov 29, 2018

At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

Nov 29, 2018

At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.

Dec 13, 2018

Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”

Dec 26, 2018

Petitioner files her single-issue petition with the Arizona Department of Real Estate.

Jan 15-16, 2019

The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.

June 5, 2019

The initial administrative hearing is held.

July 29, 2019

Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.

Aug 5, 2019

Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”

Aug 23, 2019

The Commissioner of the Arizona Department of Real Estate grants the rehearing request.

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.

——————————————————————————–

Core Dispute and Arguments

Petitioner’s Position (Joan A. Tober)

1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”

2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.

3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).

Respondent’s Position (Civano 1 HOA)

1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).

2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.

3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.

4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.

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Key Findings of Fact and Evidence

The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.

• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”

• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.

• Petitioner’s Request and Failure to Clarify:

◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.

◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”

◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”

◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.

• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.

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Legal Rulings and Conclusions of Law

Initial Decision (July 29, 2019)

• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.

• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”

• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.

Final Decision on Rehearing (January 15, 2020)

• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.

• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”

• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”

• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”

• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”

• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.






Study Guide – 19F-H1918042-REL-RHG


Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association

This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.

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Short Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.

1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?

2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?

3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?

4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?

5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?

6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?

7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?

8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?

9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.

10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?

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Answer Key

1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”

2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).

3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.

4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.

5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.

6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.

8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.

9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.

10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.

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Essay Questions

Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.

1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.

2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.

3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.

4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?

5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.

A.R.S. § 33-1805

The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.

Attorney-Client Privilege

A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”

Burden of Proof

The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.

Executive Session

A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.

An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

Office of Administrative Hearings (OAH)

The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.

Petition

The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.

Preponderance of the Evidence

The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”

Rehearing

A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”

Respondent

The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

The Letter

The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.






Blog Post – 19F-H1918042-REL-RHG


She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.

Introduction: The Fight for Information

Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.

This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.

1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.

The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”

Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.

The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.

2. Takeaway #2: Asking for “Everything” Can Get You Nothing.

Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.

After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”

In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:

An association is not required to guess what records are being requested.

The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.

3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.

What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.

But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:

Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.

Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.

Conclusion: Strategy Over Sheer Effort

The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.

This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?


Case Participants

Petitioner Side

  • Joan A. Tober (petitioner)
    Former Board member; current Finance Committee member

Respondent Side

  • Diana J. Elston (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
  • Mr. Mastrosimone (Board President)
    Civano 1 Neighborhood 1 Homeowners Association
    Testified at rehearing

Neutral Parties

  • Kay A. Abramsohn (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (Clerk)
  • Felicia Del Sol (Clerk)
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal

Joan A. Tober, vs. Civano 1 Neighborhood 1 Homeowners Association

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

Case Summary

Case ID 19F-H1918042-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-15
Administrative Law Judge Kay A. Abramsohn
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joan A. Tober Counsel —
Respondent Civano 1 Neighborhood 1 Homeowners Association Counsel Diana J. Elston

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.

Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.

Key Issues & Findings

HOA violation of requirement to provide association records within ten business days.

Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.

Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Video Overview

Audio Overview

Decision Documents

19F-H1918042-REL-RHG Decision – 764197.pdf

Uploaded 2026-01-23T17:28:27 (187.4 KB)

19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/714863.pdf

Uploaded 2026-01-23T17:28:32 (51.7 KB)

19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/725808.pdf

Uploaded 2026-01-23T17:28:37 (89.7 KB)





Briefing Doc – 19F-H1918042-REL-RHG


Briefing Document: Tober v. Civano 1 Homeowners Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”

The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.

The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.

Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.

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Case Overview

This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).

Case Name

Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.

Case Number

19F-H1918042-REL

Adjudicating Body

Office of Administrative Hearings (OAH)

Administrative Law Judge

Kay A. Abramsohn

Core Issue

Alleged violation of A.R.S. § 33-1805, which governs member access to association records.

Initial Hearing Date

June 5, 2019

Initial Decision Date

July 29, 2019

Rehearing Date

December 11, 2019

Final Decision Date

January 15, 2020

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Key Parties and Individuals

• Petitioner: Joan A. Tober

◦ A homeowner in the Civano 1 Neighborhood since 2001.

◦ Previously worked for the company that developed the land/homes in the association area.

◦ Has served as a past Board member for the HOA.

◦ Served as an alternate member on the Finance Committee in 2018.

◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.

• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)

◦ The governing body for the planned community.

◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.

• Adjudicator: Kay Abramsohn

◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.

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Chronology of the Dispute

Nov 20, 2018

At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.

Nov 26, 2018

Petitioner sends her first email request for a copy of the Letter.

Nov 27, 2018

Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.

Nov 29, 2018

At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

Nov 29, 2018

At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.

Dec 13, 2018

Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”

Dec 26, 2018

Petitioner files her single-issue petition with the Arizona Department of Real Estate.

Jan 15-16, 2019

The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.

June 5, 2019

The initial administrative hearing is held.

July 29, 2019

Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.

Aug 5, 2019

Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”

Aug 23, 2019

The Commissioner of the Arizona Department of Real Estate grants the rehearing request.

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.

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Core Dispute and Arguments

Petitioner’s Position (Joan A. Tober)

1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”

2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.

3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).

Respondent’s Position (Civano 1 HOA)

1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).

2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.

3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.

4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.

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Key Findings of Fact and Evidence

The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.

• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”

• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.

• Petitioner’s Request and Failure to Clarify:

◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.

◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”

◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”

◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.

• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.

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Legal Rulings and Conclusions of Law

Initial Decision (July 29, 2019)

• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.

• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”

• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.

Final Decision on Rehearing (January 15, 2020)

• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.

• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”

• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”

• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”

• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”

• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.






Study Guide – 19F-H1918042-REL-RHG


Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association

This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.

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Short Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.

1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?

2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?

3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?

4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?

5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?

6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?

7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?

8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?

9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.

10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?

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Answer Key

1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”

2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).

3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.

4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.

5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.

6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.

8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.

9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.

10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.

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Essay Questions

Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.

1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.

2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.

3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.

4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?

5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.

A.R.S. § 33-1805

The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.

Attorney-Client Privilege

A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”

Burden of Proof

The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.

Executive Session

A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.

An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

Office of Administrative Hearings (OAH)

The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.

Petition

The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.

Preponderance of the Evidence

The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”

Rehearing

A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”

Respondent

The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

The Letter

The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.






Blog Post – 19F-H1918042-REL-RHG


She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.

Introduction: The Fight for Information

Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.

This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.

1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.

The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”

Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.

The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.

2. Takeaway #2: Asking for “Everything” Can Get You Nothing.

Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.

After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”

In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:

An association is not required to guess what records are being requested.

The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.

3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.

What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.

But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:

Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.

Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.

Conclusion: Strategy Over Sheer Effort

The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.

This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?


Case Participants

Petitioner Side

  • Joan A. Tober (petitioner)
    Former Board member; current Finance Committee member

Respondent Side

  • Diana J. Elston (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
  • Mr. Mastrosimone (Board President)
    Civano 1 Neighborhood 1 Homeowners Association
    Testified at rehearing

Neutral Parties

  • Kay A. Abramsohn (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (Clerk)
  • Felicia Del Sol (Clerk)
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal

Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association

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Case Summary

Case ID 19F-H1918042-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-15
Administrative Law Judge Kay A. Abramsohn
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joan A. Tober Counsel —
Respondent Civano 1 Neighborhood 1 Homeowners Association Counsel Diana J. Elston

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.

Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.

Key Issues & Findings

HOA violation of requirement to provide association records within ten business days.

Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.

Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Travis Prall v. Villas at Tierra Buena Homeowners

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

Case Summary

Case ID 18F-H1818053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-31
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Travis Prall Counsel —
Respondent Villas at Tierra Buena HOA Counsel Lydia Pierce Linsmeier

Alleged Violations

CC&R Section 7.1.4

Outcome Summary

The Administrative Law Judge dismissed the petition following a rehearing, finding the homeowner failed to meet the burden of proof to show the HOA violated the CC&Rs (Section 7.1.4) by neglecting yard maintenance, specifically because the homeowner did not provide credible evidence that the landscaping at issue was 'originally installed by Declarant'.

Why this result: Petitioner failed to present credible evidence that the landscaping/tree in question was 'originally installed by Declarant', which was necessary to trigger the Respondent's maintenance obligation under CC&R Section 7.1.4.

Key Issues & Findings

The Petitioner alleges that the Villas at Tierra Buena Homeowner’s Association (Respondent) violated the Association’s CC&R’s Article 7.1 by neglecting yard maintenance in visible public yards.

Petitioner asserted the HOA was responsible for the maintenance and replacement of landscaping, specifically a tree, in his back yard under CC&R Section 7.1.4, claiming it was a Public Yard and the tree was originally installed by the Declarant. The HOA denied responsibility.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)

Analytics Highlights

Topics: HOA maintenance responsibility, CC&R interpretation, burden of proof, originally installed by declarant, public yard vs private yard, rehearing
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)

Video Overview

Audio Overview

Decision Documents

18F-H1818053-REL-RHG Decision – 686236.pdf

Uploaded 2025-10-09T03:33:07 (116.2 KB)

18F-H1818053-REL-RHG Decision – ../18F-H1818053-REL/661820.pdf

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Briefing Doc – 18F-H1818053-REL-RHG


Briefing: Prall v. Villas at Tierra Buena HOA

Executive Summary

This briefing synthesizes the findings from two administrative law hearings concerning a dispute between homeowner Travis Prall (Petitioner) and the Villas at Tierra Buena Homeowners Association (Respondent). The core of the conflict was the Petitioner’s allegation that the HOA violated its governing documents by failing to maintain landscaping—specifically a large tree—in his backyard, which he contended was a “Public Yard” under the community’s Covenants, Conditions, and Restrictions (CC&Rs).

The dispute culminated in two separate rulings by an Administrative Law Judge (ALJ), one in September 2018 and another following a rehearing in January 2019. In both instances, the petition was dismissed.

The central issue did not turn on the ambiguous definition of “Public Yard” vs. “Private Yard” in the CC&Rs, a point of significant debate between the parties. Instead, the case was decided on a critical qualifying phrase in the governing documents: the HOA’s maintenance obligation under Section 7.1.4 is limited to landscaping “as originally installed by Declarant” (the original developer).

The Petitioner failed to meet the burden of proof to establish that the tree in question was installed by the developer. In the initial hearing, this conclusion was based on inference. In the rehearing, the HOA presented credible witness testimony from a board member involved in the community’s initial sales, who stated that all homes were sold with no landscaping or irrigation in the backyards, which were “just dirt.” The ALJ found this to be the only credible evidence on the matter, leading to the final dismissal of the case.

Case Overview

Case Name

Travis Prall (Petitioner) vs. Villas at Tierra Buena HOA (Respondent)

Case Number

18F-H1818053-REL

Office of Administrative Hearings, Phoenix, Arizona

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Core Allegation

The Petitioner alleged the HOA violated Section 7.1.4 of the CC&Rs by “neglecting yard maintenance in visible public yards.”

Factual Background and Timeline

The dispute is centered within the Villas at Tierra Buena, a gated community comprising 43 homes on the outer perimeter with tall block fences and 19 interior homes with four-foot-tall walls (two feet of block with a two-foot aluminum fence on top). The Petitioner owns one of these interior homes.

• 2010: Travis Prall purchases his home. He believes, based on his reading of the CC&Rs, that the HOA is responsible for maintaining both his front and back yards. A large tree is present in the backyard at the time of purchase.

• 2010–2013: Prall testifies that the HOA provided landscaping maintenance to his front and back yards during this period. The HOA denies ever providing maintenance to any backyards in the community.

• July 26, 2014: A storm knocks over the tree in Prall’s backyard. Prall pays for its removal but asserts at the time that it was the HOA’s responsibility.

• Post-2014: The tree regrows from the remaining stump.

• 2018: The HOA observes that the “pony wall” near the regrown tree is buckling. A repair company, Sun King Fencing & Gates, confirms “the reason the pony wall buckled was the tree roots in the area” and recommends the tree’s removal.

• May 3, 2018: The HOA issues a “Courtesy Letter” to Prall, stating, “Please trim or remove the tree in the back yard causing damage to the pony wall.”

• June 4, 2018: Prall files an HOA Dispute Process Petition with the Arizona Department of Real Estate.

• September 4, 2018: The initial administrative hearing is held.

• September 24, 2018: The ALJ issues a decision dismissing the petition.

• Post-September 2018: Prall’s request for a rehearing is granted.

• January 11, 2019: The rehearing is conducted.

• January 31, 2019: The ALJ issues a final decision, again dismissing the petition.

Central Point of Contention: Interpretation of CC&Rs

The primary disagreement focused on whether the Petitioner’s enclosed but visible backyard constituted a “Public Yard” or a “Private Yard” under the CC&Rs. The HOA’s maintenance obligation under Section 7.1.4 applies only to Public Yards.

Relevant CC&R Sections

Section

Language

Respondent must “Replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots…” (Emphasis added)

“‘Private Yard’ means that portion of a Yard which is enclosed or shielded from view by walls, fences, hedges or the like so that it is not generally Visible from Neighboring Property. ‘Public Yard’ means that portion of a Yard which is generally visible from Neighboring Property, whether or not it is located in front of, beside, or behind the Residential Dwelling.”

“‘Visible from Neighboring Property’ means, with respect to any given object, that such object is or would be visible to a person six feet tall standing on any part of such neighboring property…”

Competing Interpretations

• Petitioner’s Interpretation: A yard is “Private” only if it is both enclosed/shielded AND not generally visible. Because his backyard is enclosed but visible through the four-foot wall/fence, he argued it qualifies as a “Public Yard” that the HOA must maintain.

• Respondent’s Interpretation: A yard is “Private” if it is either enclosed or shielded from view. Because the Petitioner’s backyard is enclosed, it is a Private Yard, and the HOA has no maintenance responsibility.

While the ALJ acknowledged that “the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards,” she explicitly stated that the tribunal was “not required to reach that issue in this matter.” The case was decided on other grounds.

Analysis of Arguments and Evidence

The Petitioner bore the burden of proof to establish a violation by a preponderance of the evidence.

Petitioner’s Position (Travis Prall)

• Argued that the HOA performed backyard maintenance from 2010 to 2013, establishing a precedent.

• Posited that the large size of the tree when he bought the home in 2010 indicated it must have been planted by the original developer.

• Suggested that the presence of just two types of irrigation systems across the community, accessible from the front, implied a uniform developer installation for both front and back yards.

• Noted that his backyard sprinkler system wrapped around the tree, suggesting they were installed together by the developer.

Respondent’s Position (Villas at Tierra Buena HOA)

• Denied ever providing landscaping maintenance to any backyards, stating it only controls front yard irrigation and sprinkler systems.

• Raised liability concerns about maintenance workers entering residents’ enclosed backyards where pets could escape.

• Presented critical testimony from Board President Maureen Karpinski during the rehearing. Ms. Karpinski, a real estate agent who was involved with the community’s development and sales from 2002, stated that to her knowledge, none of the homes were sold with any landscaping or irrigation in the backyards, which were “just dirt.”

Administrative Law Judge’s Decisions and Rationale

The ALJ’s rulings in both hearings hinged on the specific requirement in Section 7.1.4 that the landscaping must have been “originally installed by Declarant.”

Initial Hearing Decision (September 24, 2018)

• Ruling: The Petition was dismissed.

• Rationale: The Petitioner failed to present evidence that the tree was installed by the developer. The ALJ noted that the tree had regrown to a significant height in approximately five years after being cut down in 2014. From this, she concluded that “it cannot be concluded that the tree in the photograph from 2010 was planted as part of the original landscape plan around 2000.”

Rehearing Decision (January 31, 2019)

• Ruling: The Petition was dismissed.

• Rationale: The ALJ found the Petitioner’s arguments to be “suppositions and inferences.” In contrast, she deemed the testimony of Maureen Karpinski to be “the only credible evidence offered regarding the landscaping of the homes.” Ms. Karpinski’s statement that backyards were sold as “just dirt” directly refuted the claim that any landscaping was “originally installed by Declarant.”

• The final conclusion stated: “As there was no evidence there was any landscaping or improvements originally installed by Declarant, there is no reason to conclude Respondent would be required to replace and maintain Petitioner’s back yard under the terms of Section 7.1.4 of the CC&Rs.”

Final Disposition

The Administrative Law Judge ordered that the Petition be dismissed. The order resulting from the rehearing was final and binding on the parties. Any further appeal would require seeking judicial review in the superior court within 35 days of the order.






Study Guide – 18F-H1818053-REL-RHG


Study Guide: Prall v. Villas at Tierra Buena HOA

This study guide provides a comprehensive review of the administrative case between Travis Prall and the Villas at Tierra Buena Homeowners Association, based on the legal decisions from September 2018 and January 2019. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the dispute, arguments, and legal reasoning involved.

Short-Answer Quiz

Answer each question in 2-3 sentences, based on the provided source context.

1. What specific violation of the community’s CC&Rs did the Petitioner, Travis Prall, allege in his petition?

2. What was the key physical difference between the backyards of the “interior homes” and the “exterior homes” in the Villas at Tierra Buena community?

3. What was the central point of disagreement between the Petitioner and the Respondent regarding the definition of a “Private Yard” versus a “Public Yard”?

4. According to Section 7.1.4 of the CC&Rs, what specific condition must be met for the HOA to be responsible for maintaining landscaping in a Public Yard?

5. What was the “Courtesy Letter” issued by the Respondent on May 3, 2018, and what did it request of the Petitioner?

6. What was the Petitioner’s primary argument for why the tree in his backyard must have been installed by the original developer?

7. What is the legal standard of proof the Petitioner was required to meet, and what does it mean?

8. In the first hearing, why did the Administrative Law Judge conclude that the tree was not part of the original landscape plan?

9. During the rehearing, what “credible evidence” was presented by the Respondent that refuted the Petitioner’s claims about original backyard landscaping?

10. Why did the Administrative Law Judge state that it was not necessary to rule on the interpretation of “Public Yard” vs. “Private Yard” in either decision?

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Answer Key

1. Petitioner Travis Prall alleged that the Villas at Tierra Buena HOA violated Section 7.1.4 of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). The specific allegation was that the HOA neglected its duty for yard maintenance in visible public yards.

2. The exterior homes have six to seven-foot-tall block wall fences enclosing the backyards. The interior homes, like the Petitioner’s, have a shorter back wall, consisting of a two-foot-tall block wall topped with a two-foot-tall aluminum fence, making the backyards more visible.

3. The Petitioner argued that a yard must be both enclosed and not generally visible to be private, meaning his visible, enclosed yard was public. The Respondent argued that a yard was private if it was enclosed or shielded from view, meaning the Petitioner’s enclosed yard was private regardless of visibility.

4. According to Section 7.1.4, the HOA is required to “replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots.” This means the landscaping in question must have been part of the original developer’s installation.

5. The “Courtesy Letter” was a notice from the HOA to the Petitioner concerning the tree in his backyard. It requested that he “Please trim or remove the tree in the back yard causing damage to the pony wall,” which had buckled due to the tree’s roots.

6. The Petitioner posited that the tree must have been installed by the developer due to its large size when he bought the home in 2010. He also noted that the backyard sprinkler system wrapped around the tree, suggesting they were installed together during original construction.

7. The Petitioner was required to meet the “preponderance of the evidence” standard. This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not; it is the greater weight of evidence.

8. The judge noted that after the original tree was removed in 2014, the present tree grew to a similar height in approximately five years from the remaining stump. Therefore, the judge concluded that the tree’s size in 2010 did not prove it was planted as part of the original landscape plan around the year 2000.

9. The Respondent presented the testimony of Maureen Karpinski, the Board President and a real estate agent who sold homes in the community during its development. She stated that to the best of her knowledge, none of the homes were sold with any landscaping or irrigation in the backyards and that they were “just dirt.”

10. The judge did not need to rule on the yard definition because the Petitioner first had to prove the tree was “originally installed by the Declarant” per Section 7.1.4. Since the Petitioner failed to provide sufficient evidence for this foundational claim in both hearings, the question of whether the yard was public or private became irrelevant to the outcome.

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Suggested Essay Questions

These questions are designed to test a deeper, more analytical understanding of the case. Answers are not provided.

1. Explain the concept of “burden of proof” and analyze how the Petitioner’s failure to meet the “preponderance of the evidence” standard was the determining factor in the dismissal of his petition in both the initial hearing and the rehearing.

2. Provide a detailed analysis of the competing interpretations of “Private Yard” and “Public Yard” as defined in Section 1.38 of the CC&Rs. Discuss the arguments made by both the Petitioner and the Respondent and explain why, despite this being a central point of contention, the final ruling did not hinge on this issue.

3. Compare the evidence presented by Travis Prall with the evidence presented by the Villas at Tierra Buena HOA. How did the nature and credibility of the evidence, particularly witness testimony versus suppositions, influence the Administrative Law Judge’s final decision?

4. Trace the procedural history of this case, starting from the initial event that triggered the HOA’s notice through the final decision after the rehearing. What were the key decision points and legal options available to the parties at each stage?

5. Discuss the significance of Maureen Karpinski’s testimony in the rehearing. How did her personal and professional experience with the community’s development directly address the central weakness of the Petitioner’s case from the first hearing?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge

The judicial officer who presides over hearings at the Office of Administrative Hearings and issues legal decisions, in this case, Tammy L. Eigenheer.

An abbreviation for the Declaration of Covenants, Conditions,Restrictions and Easements, the legal documents that govern a planned community or HOA.

Common Area

Land within the community for the common use and enjoyment of the owners; the HOA is responsible for maintaining landscaping in these areas.

Courtesy Letter

A formal notice issued by the HOA to a resident. In this case, it was a letter dated May 3, 2018, requesting that the Petitioner trim or remove a tree causing damage to a wall.

Declarant

The original developer who installed the initial landscaping and improvements in the community.

An abbreviation for Homeowners Association. In this case, the Villas at Tierra Buena HOA, which was the Respondent.

Petitioner

The party who files a petition initiating a legal action. In this case, homeowner Travis Prall.

Preponderance of the evidence

The standard of proof in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the “greater weight of the evidence.”

Private Yard

As defined in Section 1.38 of the CC&Rs, it is the portion of a Yard “which is enclosed or shielded from view by walls, fences, hedges or the like so that it is not generally Visible from Neighboring Property.” The interpretation of this definition was a key dispute in the case.

Public Yard

As defined in Section 1.38 of the CC&Rs, it is the portion of a Yard “which is generally visible from Neighboring Property, whether or not it is located in front of, beside, or behind the Residential Dwelling.”

Respondent

The party against whom a petition is filed. In this case, the Villas at Tierra Buena HOA.

Visible from Neighboring Property

A term defined in Section 1.37 of the CC&Rs. An object is considered visible if it can be seen by a six-foot-tall person standing on a neighboring property, with a specific exception for objects visible only through a wrought iron fence.

As defined in Section 1.38 of the CC&Rs, it is “the portion of the Lot devoted to Improvements other than the Residential Dwelling.”






Blog Post – 18F-H1818053-REL-RHG


He Fought His HOA Over a Single Tree—And Lost Because of a Clause Everyone Missed

For many homeowners, the relationship with their Homeowners Association is a delicate balance of rules, fees, and occasional frustrations. It’s a familiar story: a dispute arises over a seemingly minor issue, and suddenly you’re deep in the weeds of your community’s governing documents, convinced you’re in the right.

This was exactly the position of homeowner Travis Prall. He believed the rules for his community, the Villas at Tierra Buena HOA, clearly stated they were responsible for maintaining a troublesome tree in his backyard. Confident in his interpretation of the Covenants, Conditions, and Restrictions (CC&Rs), he took his case to an administrative law judge.

But the outcome of his legal battle hinged not on the clause he was arguing, but on details everyone had overlooked. The way he lost—first in an initial hearing, and then decisively in a rehearing he himself requested—reveals crucial lessons for any homeowner hidden within the dense language of community documents.

The Definition You Debate Isn’t Always the One That Matters

The core of Mr. Prall’s argument was a battle of definitions. According to the CC&Rs, the HOA was responsible for maintaining “Public Yards.” The rules defined a “Public Yard” as any part of a yard “which is generally visible from Neighboring Property.” Even though his backyard was enclosed by a four-foot wall, it was visible to his neighbors, so he argued it qualified.

The HOA countered with its own interpretation. They pointed to the definition of a “Private Yard,” which included any yard that is “enclosed.” Since his yard was enclosed, they claimed, it was his responsibility, regardless of visibility.

The two sides were locked in a debate over these competing definitions. But in the first hearing, the judge delivered a surprising twist: the entire debate was irrelevant. The judge acknowledged that Prall’s reading of the rules might even be plausible but declared that the tribunal was “not required to reach that issue.” Why? Because Prall had failed to clear an even more fundamental hurdle first. The judge found that Prall had “failed to present any evidence that the tree at issue was originally installed by the Declarant,” a fatal flaw that sidestepped his primary argument entirely.

“While the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards of the interior homes even if that is contrary to the intention of the drafters of the CC&Rs, the tribunal is not required to reach that issue in this matter.”

Prall had lost the first round not because his interpretation was wrong, but because he hadn’t proven his case on a different, more critical point.

It All Comes Down to “As Originally Installed”

Unsatisfied with the outcome, Prall requested and was granted a rehearing—a second chance to make his case. But this second chance also gave the HOA an opportunity to sharpen its defense, and it zeroed in on the exact clause that had decided the first hearing.

The case was ultimately decided by Section 7.1.4. This clause stated the HOA was only responsible for landscaping “as originally installed by Declarant”—a legal term for the original developer of the community.

This single phrase shifted the entire focus of the dispute. The question was no longer about “Public vs. Private” yards, but about the historical fact of what the developer had installed when the homes were first built around the year 2000.

At the rehearing, the HOA introduced the knockout blow: the testimony of Maureen Karpinski, an early resident and real estate agent who had sold homes in the community during its construction. She testified that to her knowledge, none of the homes were sold with any landscaping in the backyards. Her exact description was that the yards were “just dirt.”

The judge found this to be the “only credible evidence offered.” It completely undermined Prall’s case. If the developer never installed any landscaping in the backyards, there was no “original” landscaping for the HOA to maintain. Their responsibility under the governing documents was zero.

“Suppositions and Inferences” Aren’t Enough

In any formal dispute, the person making a claim has the “burden of proof.” Mr. Prall needed to prove his case by a “preponderance of the evidence,” a legal standard meaning it was more likely true than not.

He tried to meet this burden with logical arguments. He “posited that, given the size of the tree” in a 2010 photograph, it must have been planted when the home was built. He added that the “sprinkler system in his back yard wrapped around the tree as further evidence” that they were installed together by the developer.

But these deductions failed to convince the judge. In the final decision after the rehearing, these arguments were dismissed as the petitioner’s “suppositions and inferences.”

This stands in stark contrast to the HOA’s evidence. While Prall offered logical conclusions, the HOA offered direct testimony from someone who was there at the beginning. This case underscores a fundamental legal truth: personal belief and common-sense deductions are no substitute for verifiable facts and credible, first-hand testimony.

The Final Word is in the Fine Print

This homeowner’s fight over a single tree serves as a powerful cautionary tale. He built a logical case based on his interpretation of a key definition, only to lose because of a clause and a historical fact he hadn’t sufficiently proven.

The lessons are clear. Winning a dispute requires understanding every relevant clause in the governing documents, not just the one that seems most obvious. It requires acknowledging that the history of the community can be more powerful than a present-day interpretation of the rules. And most importantly, it requires presenting concrete proof, not just strong beliefs.

For any homeowner in an HOA, this story poses a crucial question: When was the last time you read your HOA’s documents from start to finish, and what hidden details might be waiting for you?


Case Participants

Petitioner Side

  • Travis Prall (petitioner)

Respondent Side

  • Maureen Karpinski (board member)
    President of the Board; witness
  • Frank Peake (property manager)
    Pride Community Management
    Witness; Owner of Pride Community Management
  • Rebecca Stowers (community manager)
    Witness
  • Lydia Pierce Linsmeier (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Nicole Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE

Travis Prall v. Villas at Tierra Buena Homeowners

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

Case Summary

Case ID 18F-H1818053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-31
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Travis Prall Counsel —
Respondent Villas at Tierra Buena Homeowners Association Counsel Lydia Pierce Linsmeier

Alleged Violations

Section 7.1.4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof to show the HOA violated Section 7.1.4 of the CC&Rs because there was no credible evidence that the disputed landscaping (tree) had been originally installed by the developer.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the landscaping was originally installed by the Declarant, which was a prerequisite for HOA maintenance responsibility under the relevant CC&R section.

Key Issues & Findings

Neglecting yard maintenance in visible public yards

Petitioner alleged the HOA violated CC&R Section 7.1.4 by failing to maintain a tree in his back yard, arguing the back yard qualified as a 'Public Yard' and the tree was originally installed by the Declarant.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA maintenance, CC&R interpretation, burden of proof, landscaping
Additional Citations:

  • A.R.S. § 41-2198.01
  • 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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

18F-H1818053-REL-RHG Decision – 686236.pdf

Uploaded 2026-01-23T17:25:18 (116.2 KB)

18F-H1818053-REL-RHG Decision – ../18F-H1818053-REL/661820.pdf

Uploaded 2026-01-23T17:25:23 (107.3 KB)





Briefing Doc – 18F-H1818053-REL-RHG


Briefing: Prall v. Villas at Tierra Buena HOA

Executive Summary

This briefing synthesizes the findings from two administrative law hearings concerning a dispute between homeowner Travis Prall (Petitioner) and the Villas at Tierra Buena Homeowners Association (Respondent). The core of the conflict was the Petitioner’s allegation that the HOA violated its governing documents by failing to maintain landscaping—specifically a large tree—in his backyard, which he contended was a “Public Yard” under the community’s Covenants, Conditions, and Restrictions (CC&Rs).

The dispute culminated in two separate rulings by an Administrative Law Judge (ALJ), one in September 2018 and another following a rehearing in January 2019. In both instances, the petition was dismissed.

The central issue did not turn on the ambiguous definition of “Public Yard” vs. “Private Yard” in the CC&Rs, a point of significant debate between the parties. Instead, the case was decided on a critical qualifying phrase in the governing documents: the HOA’s maintenance obligation under Section 7.1.4 is limited to landscaping “as originally installed by Declarant” (the original developer).

The Petitioner failed to meet the burden of proof to establish that the tree in question was installed by the developer. In the initial hearing, this conclusion was based on inference. In the rehearing, the HOA presented credible witness testimony from a board member involved in the community’s initial sales, who stated that all homes were sold with no landscaping or irrigation in the backyards, which were “just dirt.” The ALJ found this to be the only credible evidence on the matter, leading to the final dismissal of the case.

Case Overview

Case Name

Travis Prall (Petitioner) vs. Villas at Tierra Buena HOA (Respondent)

Case Number

18F-H1818053-REL

Office of Administrative Hearings, Phoenix, Arizona

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Core Allegation

The Petitioner alleged the HOA violated Section 7.1.4 of the CC&Rs by “neglecting yard maintenance in visible public yards.”

Factual Background and Timeline

The dispute is centered within the Villas at Tierra Buena, a gated community comprising 43 homes on the outer perimeter with tall block fences and 19 interior homes with four-foot-tall walls (two feet of block with a two-foot aluminum fence on top). The Petitioner owns one of these interior homes.

• 2010: Travis Prall purchases his home. He believes, based on his reading of the CC&Rs, that the HOA is responsible for maintaining both his front and back yards. A large tree is present in the backyard at the time of purchase.

• 2010–2013: Prall testifies that the HOA provided landscaping maintenance to his front and back yards during this period. The HOA denies ever providing maintenance to any backyards in the community.

• July 26, 2014: A storm knocks over the tree in Prall’s backyard. Prall pays for its removal but asserts at the time that it was the HOA’s responsibility.

• Post-2014: The tree regrows from the remaining stump.

• 2018: The HOA observes that the “pony wall” near the regrown tree is buckling. A repair company, Sun King Fencing & Gates, confirms “the reason the pony wall buckled was the tree roots in the area” and recommends the tree’s removal.

• May 3, 2018: The HOA issues a “Courtesy Letter” to Prall, stating, “Please trim or remove the tree in the back yard causing damage to the pony wall.”

• June 4, 2018: Prall files an HOA Dispute Process Petition with the Arizona Department of Real Estate.

• September 4, 2018: The initial administrative hearing is held.

• September 24, 2018: The ALJ issues a decision dismissing the petition.

• Post-September 2018: Prall’s request for a rehearing is granted.

• January 11, 2019: The rehearing is conducted.

• January 31, 2019: The ALJ issues a final decision, again dismissing the petition.

Central Point of Contention: Interpretation of CC&Rs

The primary disagreement focused on whether the Petitioner’s enclosed but visible backyard constituted a “Public Yard” or a “Private Yard” under the CC&Rs. The HOA’s maintenance obligation under Section 7.1.4 applies only to Public Yards.

Relevant CC&R Sections

Section

Language

Respondent must “Replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots…” (Emphasis added)

“‘Private Yard’ means that portion of a Yard which is enclosed or shielded from view by walls, fences, hedges or the like so that it is not generally Visible from Neighboring Property. ‘Public Yard’ means that portion of a Yard which is generally visible from Neighboring Property, whether or not it is located in front of, beside, or behind the Residential Dwelling.”

“‘Visible from Neighboring Property’ means, with respect to any given object, that such object is or would be visible to a person six feet tall standing on any part of such neighboring property…”

Competing Interpretations

• Petitioner’s Interpretation: A yard is “Private” only if it is both enclosed/shielded AND not generally visible. Because his backyard is enclosed but visible through the four-foot wall/fence, he argued it qualifies as a “Public Yard” that the HOA must maintain.

• Respondent’s Interpretation: A yard is “Private” if it is either enclosed or shielded from view. Because the Petitioner’s backyard is enclosed, it is a Private Yard, and the HOA has no maintenance responsibility.

While the ALJ acknowledged that “the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards,” she explicitly stated that the tribunal was “not required to reach that issue in this matter.” The case was decided on other grounds.

Analysis of Arguments and Evidence

The Petitioner bore the burden of proof to establish a violation by a preponderance of the evidence.

Petitioner’s Position (Travis Prall)

• Argued that the HOA performed backyard maintenance from 2010 to 2013, establishing a precedent.

• Posited that the large size of the tree when he bought the home in 2010 indicated it must have been planted by the original developer.

• Suggested that the presence of just two types of irrigation systems across the community, accessible from the front, implied a uniform developer installation for both front and back yards.

• Noted that his backyard sprinkler system wrapped around the tree, suggesting they were installed together by the developer.

Respondent’s Position (Villas at Tierra Buena HOA)

• Denied ever providing landscaping maintenance to any backyards, stating it only controls front yard irrigation and sprinkler systems.

• Raised liability concerns about maintenance workers entering residents’ enclosed backyards where pets could escape.

• Presented critical testimony from Board President Maureen Karpinski during the rehearing. Ms. Karpinski, a real estate agent who was involved with the community’s development and sales from 2002, stated that to her knowledge, none of the homes were sold with any landscaping or irrigation in the backyards, which were “just dirt.”

Administrative Law Judge’s Decisions and Rationale

The ALJ’s rulings in both hearings hinged on the specific requirement in Section 7.1.4 that the landscaping must have been “originally installed by Declarant.”

Initial Hearing Decision (September 24, 2018)

• Ruling: The Petition was dismissed.

• Rationale: The Petitioner failed to present evidence that the tree was installed by the developer. The ALJ noted that the tree had regrown to a significant height in approximately five years after being cut down in 2014. From this, she concluded that “it cannot be concluded that the tree in the photograph from 2010 was planted as part of the original landscape plan around 2000.”

Rehearing Decision (January 31, 2019)

• Ruling: The Petition was dismissed.

• Rationale: The ALJ found the Petitioner’s arguments to be “suppositions and inferences.” In contrast, she deemed the testimony of Maureen Karpinski to be “the only credible evidence offered regarding the landscaping of the homes.” Ms. Karpinski’s statement that backyards were sold as “just dirt” directly refuted the claim that any landscaping was “originally installed by Declarant.”

• The final conclusion stated: “As there was no evidence there was any landscaping or improvements originally installed by Declarant, there is no reason to conclude Respondent would be required to replace and maintain Petitioner’s back yard under the terms of Section 7.1.4 of the CC&Rs.”

Final Disposition

The Administrative Law Judge ordered that the Petition be dismissed. The order resulting from the rehearing was final and binding on the parties. Any further appeal would require seeking judicial review in the superior court within 35 days of the order.






Study Guide – 18F-H1818053-REL-RHG


Study Guide: Prall v. Villas at Tierra Buena HOA

This study guide provides a comprehensive review of the administrative case between Travis Prall and the Villas at Tierra Buena Homeowners Association, based on the legal decisions from September 2018 and January 2019. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the dispute, arguments, and legal reasoning involved.

Short-Answer Quiz

Answer each question in 2-3 sentences, based on the provided source context.

1. What specific violation of the community’s CC&Rs did the Petitioner, Travis Prall, allege in his petition?

2. What was the key physical difference between the backyards of the “interior homes” and the “exterior homes” in the Villas at Tierra Buena community?

3. What was the central point of disagreement between the Petitioner and the Respondent regarding the definition of a “Private Yard” versus a “Public Yard”?

4. According to Section 7.1.4 of the CC&Rs, what specific condition must be met for the HOA to be responsible for maintaining landscaping in a Public Yard?

5. What was the “Courtesy Letter” issued by the Respondent on May 3, 2018, and what did it request of the Petitioner?

6. What was the Petitioner’s primary argument for why the tree in his backyard must have been installed by the original developer?

7. What is the legal standard of proof the Petitioner was required to meet, and what does it mean?

8. In the first hearing, why did the Administrative Law Judge conclude that the tree was not part of the original landscape plan?

9. During the rehearing, what “credible evidence” was presented by the Respondent that refuted the Petitioner’s claims about original backyard landscaping?

10. Why did the Administrative Law Judge state that it was not necessary to rule on the interpretation of “Public Yard” vs. “Private Yard” in either decision?

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Answer Key

1. Petitioner Travis Prall alleged that the Villas at Tierra Buena HOA violated Section 7.1.4 of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). The specific allegation was that the HOA neglected its duty for yard maintenance in visible public yards.

2. The exterior homes have six to seven-foot-tall block wall fences enclosing the backyards. The interior homes, like the Petitioner’s, have a shorter back wall, consisting of a two-foot-tall block wall topped with a two-foot-tall aluminum fence, making the backyards more visible.

3. The Petitioner argued that a yard must be both enclosed and not generally visible to be private, meaning his visible, enclosed yard was public. The Respondent argued that a yard was private if it was enclosed or shielded from view, meaning the Petitioner’s enclosed yard was private regardless of visibility.

4. According to Section 7.1.4, the HOA is required to “replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots.” This means the landscaping in question must have been part of the original developer’s installation.

5. The “Courtesy Letter” was a notice from the HOA to the Petitioner concerning the tree in his backyard. It requested that he “Please trim or remove the tree in the back yard causing damage to the pony wall,” which had buckled due to the tree’s roots.

6. The Petitioner posited that the tree must have been installed by the developer due to its large size when he bought the home in 2010. He also noted that the backyard sprinkler system wrapped around the tree, suggesting they were installed together during original construction.

7. The Petitioner was required to meet the “preponderance of the evidence” standard. This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not; it is the greater weight of evidence.

8. The judge noted that after the original tree was removed in 2014, the present tree grew to a similar height in approximately five years from the remaining stump. Therefore, the judge concluded that the tree’s size in 2010 did not prove it was planted as part of the original landscape plan around the year 2000.

9. The Respondent presented the testimony of Maureen Karpinski, the Board President and a real estate agent who sold homes in the community during its development. She stated that to the best of her knowledge, none of the homes were sold with any landscaping or irrigation in the backyards and that they were “just dirt.”

10. The judge did not need to rule on the yard definition because the Petitioner first had to prove the tree was “originally installed by the Declarant” per Section 7.1.4. Since the Petitioner failed to provide sufficient evidence for this foundational claim in both hearings, the question of whether the yard was public or private became irrelevant to the outcome.

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Suggested Essay Questions

These questions are designed to test a deeper, more analytical understanding of the case. Answers are not provided.

1. Explain the concept of “burden of proof” and analyze how the Petitioner’s failure to meet the “preponderance of the evidence” standard was the determining factor in the dismissal of his petition in both the initial hearing and the rehearing.

2. Provide a detailed analysis of the competing interpretations of “Private Yard” and “Public Yard” as defined in Section 1.38 of the CC&Rs. Discuss the arguments made by both the Petitioner and the Respondent and explain why, despite this being a central point of contention, the final ruling did not hinge on this issue.

3. Compare the evidence presented by Travis Prall with the evidence presented by the Villas at Tierra Buena HOA. How did the nature and credibility of the evidence, particularly witness testimony versus suppositions, influence the Administrative Law Judge’s final decision?

4. Trace the procedural history of this case, starting from the initial event that triggered the HOA’s notice through the final decision after the rehearing. What were the key decision points and legal options available to the parties at each stage?

5. Discuss the significance of Maureen Karpinski’s testimony in the rehearing. How did her personal and professional experience with the community’s development directly address the central weakness of the Petitioner’s case from the first hearing?

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Glossary of Key Terms

Definition

Administrative Law Judge

The judicial officer who presides over hearings at the Office of Administrative Hearings and issues legal decisions, in this case, Tammy L. Eigenheer.

An abbreviation for the Declaration of Covenants, Conditions,Restrictions and Easements, the legal documents that govern a planned community or HOA.

Common Area

Land within the community for the common use and enjoyment of the owners; the HOA is responsible for maintaining landscaping in these areas.

Courtesy Letter

A formal notice issued by the HOA to a resident. In this case, it was a letter dated May 3, 2018, requesting that the Petitioner trim or remove a tree causing damage to a wall.

Declarant

The original developer who installed the initial landscaping and improvements in the community.

An abbreviation for Homeowners Association. In this case, the Villas at Tierra Buena HOA, which was the Respondent.

Petitioner

The party who files a petition initiating a legal action. In this case, homeowner Travis Prall.

Preponderance of the evidence

The standard of proof in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the “greater weight of the evidence.”

Private Yard

As defined in Section 1.38 of the CC&Rs, it is the portion of a Yard “which is enclosed or shielded from view by walls, fences, hedges or the like so that it is not generally Visible from Neighboring Property.” The interpretation of this definition was a key dispute in the case.

Public Yard

As defined in Section 1.38 of the CC&Rs, it is the portion of a Yard “which is generally visible from Neighboring Property, whether or not it is located in front of, beside, or behind the Residential Dwelling.”

Respondent

The party against whom a petition is filed. In this case, the Villas at Tierra Buena HOA.

Visible from Neighboring Property

A term defined in Section 1.37 of the CC&Rs. An object is considered visible if it can be seen by a six-foot-tall person standing on a neighboring property, with a specific exception for objects visible only through a wrought iron fence.

As defined in Section 1.38 of the CC&Rs, it is “the portion of the Lot devoted to Improvements other than the Residential Dwelling.”






Blog Post – 18F-H1818053-REL-RHG


He Fought His HOA Over a Single Tree—And Lost Because of a Clause Everyone Missed

For many homeowners, the relationship with their Homeowners Association is a delicate balance of rules, fees, and occasional frustrations. It’s a familiar story: a dispute arises over a seemingly minor issue, and suddenly you’re deep in the weeds of your community’s governing documents, convinced you’re in the right.

This was exactly the position of homeowner Travis Prall. He believed the rules for his community, the Villas at Tierra Buena HOA, clearly stated they were responsible for maintaining a troublesome tree in his backyard. Confident in his interpretation of the Covenants, Conditions, and Restrictions (CC&Rs), he took his case to an administrative law judge.

But the outcome of his legal battle hinged not on the clause he was arguing, but on details everyone had overlooked. The way he lost—first in an initial hearing, and then decisively in a rehearing he himself requested—reveals crucial lessons for any homeowner hidden within the dense language of community documents.

The Definition You Debate Isn’t Always the One That Matters

The core of Mr. Prall’s argument was a battle of definitions. According to the CC&Rs, the HOA was responsible for maintaining “Public Yards.” The rules defined a “Public Yard” as any part of a yard “which is generally visible from Neighboring Property.” Even though his backyard was enclosed by a four-foot wall, it was visible to his neighbors, so he argued it qualified.

The HOA countered with its own interpretation. They pointed to the definition of a “Private Yard,” which included any yard that is “enclosed.” Since his yard was enclosed, they claimed, it was his responsibility, regardless of visibility.

The two sides were locked in a debate over these competing definitions. But in the first hearing, the judge delivered a surprising twist: the entire debate was irrelevant. The judge acknowledged that Prall’s reading of the rules might even be plausible but declared that the tribunal was “not required to reach that issue.” Why? Because Prall had failed to clear an even more fundamental hurdle first. The judge found that Prall had “failed to present any evidence that the tree at issue was originally installed by the Declarant,” a fatal flaw that sidestepped his primary argument entirely.

“While the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards of the interior homes even if that is contrary to the intention of the drafters of the CC&Rs, the tribunal is not required to reach that issue in this matter.”

Prall had lost the first round not because his interpretation was wrong, but because he hadn’t proven his case on a different, more critical point.

It All Comes Down to “As Originally Installed”

Unsatisfied with the outcome, Prall requested and was granted a rehearing—a second chance to make his case. But this second chance also gave the HOA an opportunity to sharpen its defense, and it zeroed in on the exact clause that had decided the first hearing.

The case was ultimately decided by Section 7.1.4. This clause stated the HOA was only responsible for landscaping “as originally installed by Declarant”—a legal term for the original developer of the community.

This single phrase shifted the entire focus of the dispute. The question was no longer about “Public vs. Private” yards, but about the historical fact of what the developer had installed when the homes were first built around the year 2000.

At the rehearing, the HOA introduced the knockout blow: the testimony of Maureen Karpinski, an early resident and real estate agent who had sold homes in the community during its construction. She testified that to her knowledge, none of the homes were sold with any landscaping in the backyards. Her exact description was that the yards were “just dirt.”

The judge found this to be the “only credible evidence offered.” It completely undermined Prall’s case. If the developer never installed any landscaping in the backyards, there was no “original” landscaping for the HOA to maintain. Their responsibility under the governing documents was zero.

“Suppositions and Inferences” Aren’t Enough

In any formal dispute, the person making a claim has the “burden of proof.” Mr. Prall needed to prove his case by a “preponderance of the evidence,” a legal standard meaning it was more likely true than not.

He tried to meet this burden with logical arguments. He “posited that, given the size of the tree” in a 2010 photograph, it must have been planted when the home was built. He added that the “sprinkler system in his back yard wrapped around the tree as further evidence” that they were installed together by the developer.

But these deductions failed to convince the judge. In the final decision after the rehearing, these arguments were dismissed as the petitioner’s “suppositions and inferences.”

This stands in stark contrast to the HOA’s evidence. While Prall offered logical conclusions, the HOA offered direct testimony from someone who was there at the beginning. This case underscores a fundamental legal truth: personal belief and common-sense deductions are no substitute for verifiable facts and credible, first-hand testimony.

The Final Word is in the Fine Print

This homeowner’s fight over a single tree serves as a powerful cautionary tale. He built a logical case based on his interpretation of a key definition, only to lose because of a clause and a historical fact he hadn’t sufficiently proven.

The lessons are clear. Winning a dispute requires understanding every relevant clause in the governing documents, not just the one that seems most obvious. It requires acknowledging that the history of the community can be more powerful than a present-day interpretation of the rules. And most importantly, it requires presenting concrete proof, not just strong beliefs.

For any homeowner in an HOA, this story poses a crucial question: When was the last time you read your HOA’s documents from start to finish, and what hidden details might be waiting for you?


Case Participants

Petitioner Side

  • Travis Prall (petitioner)

Respondent Side

  • Maureen Karpinski (board member)
    President of the Board; witness
  • Frank Peake (property manager)
    Pride Community Management
    Witness; Owner of Pride Community Management
  • Rebecca Stowers (community manager)
    Witness
  • Lydia Pierce Linsmeier (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Nicole Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE

Travis Prall v. Villas at Tierra Buena HOA

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Case Summary

Case ID 18F-H1818053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-31
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Travis Prall Counsel —
Respondent Villas at Tierra Buena Homeowners Association Counsel Lydia Pierce Linsmeier

Alleged Violations

Section 7.1.4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof to show the HOA violated Section 7.1.4 of the CC&Rs because there was no credible evidence that the disputed landscaping (tree) had been originally installed by the developer.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the landscaping was originally installed by the Declarant, which was a prerequisite for HOA maintenance responsibility under the relevant CC&R section.

Key Issues & Findings

Neglecting yard maintenance in visible public yards

Petitioner alleged the HOA violated CC&R Section 7.1.4 by failing to maintain a tree in his back yard, arguing the back yard qualified as a 'Public Yard' and the tree was originally installed by the Declarant.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA maintenance, CC&R interpretation, burden of proof, landscaping
Additional Citations:

  • A.R.S. § 41-2198.01
  • 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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

18F-H1818053-REL Decision – 661820.pdf

Uploaded 2025-10-09T03:33:06 (107.3 KB)





Briefing Doc – 18F-H1818053-REL


Briefing: Prall v. Villas at Tierra Buena HOA Dispute

Executive Summary

This briefing synthesizes the findings and legal rationale from a homeowners’ association dispute between Petitioner Travis Prall and Respondent Villas at Tierra Buena HOA. The case centered on whether the HOA was responsible for maintaining a tree in the Petitioner’s backyard. The Petitioner alleged the HOA violated Section 7.1.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs) by neglecting maintenance in what he defined as a “Public Yard.”

The dispute was adjudicated by the Arizona Office of Administrative Hearings, resulting in two decisions, an initial ruling and a subsequent ruling on rehearing, both of which dismissed the Petitioner’s case. The critical takeaway is that the case was decided not on the ambiguous definition of “Public” versus “Private” yards, but on a crucial qualifying clause in the CC&Rs. Section 7.1.4 obligates the HOA to maintain landscaping only “as originally installed by Declarant.”

The Petitioner failed to provide sufficient evidence that the tree in question was part of the original developer’s landscaping. Conversely, the HOA presented credible testimony from an early homeowner and board member stating that all backyards in the community were sold as “just dirt,” with no developer-installed landscaping or irrigation. The Administrative Law Judge ruled that the Petitioner’s arguments were based on “suppositions and inferences” and did not meet the “preponderance of the evidence” standard required to prove his claim.

Case Overview

This dispute was initiated by a petition filed with the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings. The core issue was the interpretation of HOA maintenance responsibilities as defined in the community’s governing documents.

Case Detail

Information

Case Number

18F-H1818053-REL

Petitioner

Travis Prall

Respondent

Villas at Tierra Buena HOA

Adjudicator

Administrative Law Judge Tammy L. Eigenheer

Initial Hearing

September 4, 2018

Initial Decision

September 24, 2018 (Petition Dismissed)

Rehearing

January 11, 2019

Final Decision

January 31, 2019 (Petition Dismissed)

Timeline of Key Events

• 2010: Petitioner Travis Prall purchases his home, an “interior” unit, and believes the HOA is responsible for both front and backyard maintenance.

• July 26, 2014: A storm knocks over a large tree in the Petitioner’s backyard. He pays for its removal while asserting it was the HOA’s responsibility.

• Post-2014: The tree regrows from its remaining trunk.

• 2018: The HOA observes that the regrown tree’s roots are causing a “pony wall” to buckle and hires Sun King Fencing & Gates to perform repairs. The repair company recommends removing the tree to prevent recurrence.

• May 3, 2018: The HOA issues a “Courtesy Letter” to the Petitioner, requesting he “trim or remove the tree in the back yard causing damage to the pony wall.”

• June 4, 2018: In response, the Petitioner files a Dispute Process Petition with the Arizona Department of Real Estate, initiating the legal proceedings.

Central Allegation and Dispute

The Petitioner alleged that the Villas at Tierra Buena HOA violated Section 7.1.4 of its CC&Rs by “neglecting yard maintenance in visible public yards.” His central claim was that his backyard, though enclosed, qualifies as a “Public Yard” under the CC&Rs and that the HOA was therefore responsible for the maintenance and removal of the problematic tree. The HOA’s demand that he handle the tree himself constituted, in his view, a violation of their duties.

Analysis of Arguments and Evidence

The case presented conflicting interpretations of the CC&Rs and opposing accounts of historical maintenance practices.

Petitioner’s Position (Travis Prall)

The Petitioner’s case was built on his interpretation of the CC&Rs and inferences drawn from circumstantial evidence.

• CC&R Interpretation: Argued that his backyard is a “Public Yard” because, while enclosed by a four-foot wall (two-foot block plus two-foot aluminum fence), it is “generally visible from Neighboring Property” via a community walkway.

• Claim of Prior Maintenance: Testified that from 2010 to 2013, the HOA did provide landscaping maintenance for his backyard.

• Inferences about Original Landscaping:

◦ Posited that the large size of the tree in 2010 indicated it must have been planted by the original developer around 2000.

◦ Argued that the similar design of irrigation systems across the community suggested they were all installed during original construction, including those in backyards.

◦ Noted that the sprinkler system in his backyard wrapped around the tree, further suggesting they were installed together by the developer.

Respondent’s Position (Villas at Tierra Buena HOA)

The Respondent’s defense relied on its own interpretation of the CC&Rs, consistent historical practice, and direct testimony regarding the community’s development.

• CC&R Interpretation: Argued that an “enclosed” yard is, by definition, a “Private Yard,” making the homeowner responsible for its maintenance.

• Denial of Prior Maintenance: Stated unequivocally that it had never provided landscaping services for any resident’s backyard. Its responsibility is limited to front yards and common areas.

• Practical and Liability Concerns: Argued that it has no access to control backyard irrigation systems and that its workers entering enclosed yards would create liability issues, such as pets escaping.

• Crucial Rehearing Testimony: Presented testimony from Maureen Karpinski, the HOA Board President.

◦ Ms. Karpinski, a real estate agent, purchased her home from the developer in 2002 and was involved with the community during its construction phase.

◦ She testified with certainty that her backyard was “just dirt” with no landscaping or irrigation when she purchased it.

◦ She stated that, to the best of her knowledge, “none of the homes in Respondent’s community were sold with any landscaping or irrigation in the back yards and were just dirt.”

Interpretation of Governing CC&R Sections

The dispute revolved around the specific language in the Declaration of Covenants, Conditions, Restrictions and Easements.

Section

Provision

Significance in the Case

The HOA must “Replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots…“

This became the dispositive clause. The Petitioner’s entire claim depended on proving the tree was “originally installed by Declarant.”

“Private Yard” means that portion of a Yard which is enclosed or shielded from view… so that it is not generally Visible from Neighboring Property. “Public Yard” means that portion of a Yard which is generally visible from Neighboring Property…

This created a central point of interpretive conflict. The Petitioner argued the clause meant “enclosed and not visible,” while the HOA argued it meant “enclosed or shielded.” The Judge ultimately did not rule on this ambiguity.

“Visible from Neighboring Property” means… visible to a person six feet tall standing on any part of such neighboring property…

This definition supported the Petitioner’s claim that his backyard was, in fact, “visible” from the common area walkway.

Administrative Law Judge’s Rulings and Rationale

The Administrative Law Judge (ALJ) dismissed the Petitioner’s case in both the initial hearing and the rehearing, focusing on the burden of proof related to a single, critical phrase in the CC&Rs.

Initial Decision (September 24, 2018)

• Avoidance of Ambiguity: The ALJ acknowledged the potential merit of the Petitioner’s interpretation of “Public Yard,” stating “the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards of the interior homes.” However, the ALJ concluded the tribunal was “not required to reach that issue in this matter.”

• Focus on “Originally Installed by Declarant”: The decision hinged entirely on Section 7.1.4. The ALJ found that the “Petitioner failed to present any evidence that the tree at issue was originally installed by the Declarant.”

• Lack of Proof: The ALJ noted that the tree’s rapid regrowth from 2013 to 2018 made it impossible to conclude that the original tree must have been planted by the developer in 2000.

• Conclusion: The Petitioner failed to meet the “preponderance of the evidence” burden of proof, and the petition was dismissed.

Rehearing Decision (January 31, 2019)

• Rejection of Petitioner’s Inferences: The ALJ characterized the Petitioner’s evidence regarding the tree’s age and the irrigation system as “suppositions and inferences.”

• Credibility of Respondent’s Testimony: In contrast, the ALJ found the testimony of HOA President Maureen Karpinski to be “the only credible evidence offered regarding the landscaping of the homes.”

• Definitive Factual Finding: Based on Ms. Karpinski’s testimony, the ALJ concluded there was “no evidence there was any landscaping or improvements originally installed by Declarant.”

• Final Conclusion: As the precondition of Section 7.1.4 (that landscaping be “originally installed by Declarant”) was not met, the HOA had no maintenance duty for the Petitioner’s backyard. The Petitioner again failed to establish his case by a preponderance of the evidence, and the petition was dismissed with finality.






Study Guide – 18F-H1818053-REL


Study Guide: Prall v. Villas at Tierra Buena HOA

Short Answer Quiz

Instructions: Answer the following ten questions based on the provided legal decisions. Each answer should be two to three sentences long.

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

2. What specific section of the governing documents did the Petitioner allege was violated, and what was the central claim of his petition?

3. Describe the key physical differences between the “interior homes” and “exterior homes” within the Villas at Tierra Buena community as detailed in the hearing.

4. What incident in 2018 prompted the HOA to issue a “Courtesy Letter” to the Petitioner, and what action did the letter request?

5. Explain the two conflicting interpretations of the term “Private Yard” as argued by the Petitioner and the Respondent.

6. What was the Petitioner’s claim regarding the HOA’s past maintenance practices in his backyard, and how did the Respondent counter this assertion?

7. What is the legal standard of proof the Petitioner was required to meet, and how is this standard defined in the legal decision?

8. According to the Administrative Law Judge’s decisions, what was the single most critical point the Petitioner failed to prove, which ultimately led to the dismissal of his case?

9. During the rehearing, what crucial testimony was provided by the HOA’s witness, Maureen Karpinski, and why was it deemed the “only credible evidence” on the matter?

10. What was the final outcome of both the initial hearing on September 4, 2018, and the subsequent rehearing on January 11, 2019?

——————————————————————————–

Answer Key

1. Who were the primary parties in this legal dispute, and what were their respective roles? The Petitioner was Travis Prall, the homeowner who filed the dispute. The Respondent was the Villas at Tierra Buena Homeowners Association (HOA), which was defending against the Petitioner’s claims. The case was heard by Administrative Law Judge Tammy L. Eigenheer.

2. What specific section of the governing documents did the Petitioner allege was violated, and what was the central claim of his petition? The Petitioner alleged a violation of Section 7.1.4 of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). His central claim was that the HOA violated this section by neglecting its duty to perform yard maintenance in his backyard, which he argued was a “visible public yard.”

3. Describe the key physical differences between the “interior homes” and “exterior homes” within the Villas at Tierra Buena community as detailed in the hearing. The exterior homes feature six to seven-foot-tall block wall fences enclosing their backyards. In contrast, the interior homes, including the Petitioner’s, have a shorter back wall consisting of a two-foot block wall topped with a two-foot aluminum fence, making the total height approximately four feet and more visible from a common walkway.

4. What incident in 2018 prompted the HOA to issue a “Courtesy Letter” to the Petitioner, and what action did the letter request? In 2018, the HOA had a “pony wall” in the Petitioner’s backyard repaired and was informed by the repair company, Sun King Fencing & Gates, that the wall had buckled due to tree roots. Consequently, the HOA issued a Courtesy Letter on May 3, 2018, requesting that the Petitioner “trim or remove the tree in the back yard causing damage to the pony wall.”

5. Explain the two conflicting interpretations of the term “Private Yard” as argued by the Petitioner and the Respondent. The Respondent argued that a yard is considered a “Private Yard” if it is enclosed or shielded from view, meaning any enclosed yard qualified. The Petitioner argued that the definition should be read to mean a yard is private only if it is enclosed so that it is not generally visible from neighboring property, implying visibility was the key factor.

6. What was the Petitioner’s claim regarding the HOA’s past maintenance practices in his backyard, and how did the Respondent counter this assertion? The Petitioner testified that from 2010 to 2013, the HOA had provided landscaping maintenance for his backyard. The Respondent denied this claim, stating that it had never provided any landscaping maintenance to any backyards in the community and raised liability concerns about entering residents’ enclosed yards.

7. What is the legal standard of proof the Petitioner was required to meet, and how is this standard defined in the legal decision? The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence.” This standard is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” representing the greater weight of evidence.

8. According to the Administrative Law Judge’s decisions, what was the single most critical point the Petitioner failed to prove, which ultimately led to the dismissal of his case? The judge ruled that the Petitioner failed to present evidence proving that the tree in his backyard was “originally installed by the Declarant” (the developer). According to Section 7.1.4 of the CC&Rs, the HOA’s maintenance responsibility only applied to landscaping and improvements installed by the original community developer.

9. During the rehearing, what crucial testimony was provided by the HOA’s witness, Maureen Karpinski, and why was it deemed the “only credible evidence” on the matter? Maureen Karpinski testified that none of the homes in the community were sold with any landscaping or irrigation in the backyards and that they were “just dirt” at the time of purchase. Her testimony was considered credible because she was a real estate agent involved in the initial sales, had walked the community with many buyers during construction, and was herself an original buyer.

10. What was the final outcome of both the initial hearing on September 4, 2018, and the subsequent rehearing on January 11, 2019? In both the initial decision issued on September 24, 2018, and the final decision issued after the rehearing on January 31, 2019, the Petitioner’s petition was dismissed. The judge concluded in both instances that the Petitioner had failed to establish by a preponderance of the evidence that the HOA had violated the CC&Rs.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style answers. Do not provide answers.

1. Analyze the competing interpretations of “Public Yard” versus “Private Yard” as defined in Section 1.38 of the CC&Rs. Explain why the Administrative Law Judge ultimately found it unnecessary to rule on this specific issue to reach a decision.

2. Discuss the concept of “burden of proof” as it applied in this case. How did the “preponderance of the evidence” standard shape the proceedings, and what specific types of evidence (or lack thereof) were most influential in the judge’s final decision?

3. Trace the timeline of the dispute over the tree in Travis Prall’s backyard, from the 2014 storm to the final legal decision in 2019. How did each key event contribute to the escalation of the conflict and the arguments presented at the hearings?

4. Compare the evidence presented by Travis Prall with the evidence presented by the Villas at Tierra Buena HOA at the rehearing. Why did the judge characterize Prall’s evidence as “suppositions and inferences” while deeming the HOA’s evidence “credible”?

5. Section 7.1.4 of the CC&Rs contains the phrase “as originally installed by Declarant.” Explain the critical importance of this phrase to the outcome of the case and how it became the dispositive legal issue, overshadowing all other arguments.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

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

Arizona Department of Real Estate (Department)

The state agency with which the initial Homeowners Association (HOA) Dispute Process Petition was filed.

Burden of Proof

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

An acronym for Declaration of Covenants, Conditions, Restrictions and Easements, which are the governing legal documents for a planned community.

Common Area

Areas within the community maintained by the HOA for the benefit of all residents. The HOA provides landscaping for these areas.

Courtesy Letter

A formal notice sent by the HOA to a homeowner regarding a potential violation or required action. In this case, it requested the removal of a tree causing damage.

Declarant

The original developer of the planned community who installed the initial infrastructure and landscaping.

HOA Dispute Process Petition

The formal document filed with the Arizona Department of Real Estate by a homeowner to initiate a legal hearing regarding an alleged violation by their HOA.

Improvements

A term used in the CC&Rs referring to any additions to a lot other than the main residential dwelling, including landscaping.

Petitioner

The party who initiates a legal action or files a petition. In this case, the homeowner Travis Prall.

Pony Wall

A term used to describe the short, two-foot-tall block wall in the backyards of the interior homes, which was buckling due to tree roots.

Preponderance of the Evidence

The standard of proof required in this case, defined as evidence that is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other,” making a contention “more probably true than not.”

Private Yard

As defined in the CC&Rs, a portion of a yard “which is enclosed or shielded from view… so that it is not generally Visible from Neighboring Property.” The interpretation of this definition was a point of contention.

Public Yard

As defined in the CC&Rs, the portion of a yard “which is generally visible from Neighboring Property,” regardless of its location on the lot. The HOA is responsible for maintaining landscaping originally installed by the Declarant in Public Yards.

Respondent

The party against whom a petition is filed; the party that must respond to the claims. In this case, the Villas at Tierra Buena HOA.

Visible from Neighboring Property

A term defined in the CC&Rs to mean an object that would be visible to a six-foot-tall person standing on a neighboring property. It includes a specific exception for objects visible only through a wrought iron fence.

As defined in the CC&Rs, “the portion of the Lot devoted to Improvements other than the Residential Dwelling.”






Blog Post – 18F-H1818053-REL



⚖️

18F-H1818053-REL-RHG

2 sources

These documents are two Administrative Law Judge Decisions from the Arizona Office of Administrative Hearings concerning a dispute between Travis Prall, the Petitioner, and the Villas at Tierra Buena HOA, the Respondent. The first document outlines the initial decision, dated September 24, 2018, which dismissed Mr. Prall’s petition arguing the HOA violated their Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs) by neglecting yard maintenance. The second document is the decision following a rehearing requested by the Petitioner, dated January 31, 2019, which reaffirmed the initial dismissal, concluding that Mr. Prall failed to prove that the landscaping in question was originally installed by the Declarant, a prerequisite for the HOA’s maintenance responsibility under the CC&Rs. Both decisions rely heavily on interpreting sections of the CC&Rs, particularly the definitions of “Public Yard” versus “Private Yard,” to determine the HOA’s obligation. Ultimately, both rulings found that the Petitioner did not meet his burden of proof by a preponderance of the evidence.



Case Participants

Petitioner Side

  • Travis Prall (petitioner)
    Appeared on his own behalf

Respondent Side

  • Lydia Pierce Linsmeier (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Represented Villas at Tierra Buena HOA
  • Nicole Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Represented Villas at Tierra Buena HOA
  • Maureen Karpinski (board member)
    Villas at Tierra Buena HOA
    President of the Board; testified
  • Frank Peake (property manager)
    Pride Community Management
    Owner of Pride Community Management; testified
  • Rebecca Stowers (community manager)
    Community Manager; testified at initial hearing

Neutral Parties

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