Articles of Incorporation Article 8, Covenants, Limitations & Restrictions Article 19 Sec. A, Covenants, Limitations & Restrictions Article 19 Sec. B
Outcome Summary
The Administrative Law Judge dismissed the petition, finding that the Respondent HOA's Articles of Incorporation had been previously amended to be perpetual (1994, 1999) and that the CLRs automatically renew for an additional 25 years without requiring a homeowner vote, provided no modifications or changes are made.
Why this result: Petitioner failed to meet the burden of proof that Respondent violated the Articles of Incorporation or the CLRs, as the evidence showed the corporation's existence was perpetual and the CLRs' automatic renewal was permissible without a vote.
Key Issues & Findings
Expiration of HOA Charter and unlawful extension of CLRs by Board resolution without member vote
Petitioner alleged the HOA's charter and CLRs expired after 50 years (2022) and that the Board unlawfully extended the CLRs for 25 years via a resolution (Resolution/Memorandum of September 27, 2022) without the required vote of the co-owners. The ALJ found that the Articles of Incorporation were perpetually extended by amendments in 1994 and 1999, and the CLRs automatically renewed without a vote because no modifications were made.
Orders: Petitioner’s Petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Articles of Incorporation (1972)
Articles of Amendment (1994)
Articles of Amendment (1999)
CLRs Unit One (1972)
Resolution 092722 (Sept 27, 2022)
Analytics Highlights
Topics: HOA Charter Expiration, CLRs Renewal, Perpetual Existence, Amendment Vote, HOA Board Authority, Arizona Real Estate Statute
If the CC&Rs (or CLRs) include an automatic renewal clause, does the HOA board require a homeowner vote to extend them?
Short Answer
No. If the documents allow for automatic renewal and no other changes are made, a vote is not required because renewal is not considered a modification.
Detailed Answer
The ALJ determined that if the governing documents provide for automatic renewal for specific periods (e.g., 25 years), the simple act of renewing does not constitute a 'change' or 'modification' that would trigger a voting requirement. A vote is generally only required if the text of the documents is actually being altered.
Alj Quote
Petitioner failed to establish by a preponderance of the evidence that any changes or modifications were made to the CLRs, and the Administrative Law Judge concludes that the automatic renewal of the CLRs does not constitute a modification/change that required a vote of the homeowners.
Legal Basis
Conclusion of Law 4
Topic Tags
CC&R Renewal
Voting Rights
Governing Documents
Question
Who bears the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof to establish the violation.
Detailed Answer
In an administrative hearing, the person filing the complaint must prove their case. The HOA does not initially have to prove they are innocent; the homeowner must prove the HOA committed the violation.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
Legal Basis
Conclusion of Law 2; A.R.S. § 41-1092.07(G)(2)
Topic Tags
Legal Procedure
Burden of Proof
Question
What does 'preponderance of the evidence' mean in an HOA dispute?
Short Answer
It means the claim is 'more probably true than not.'
Detailed Answer
The standard is not 'beyond a reasonable doubt' (like in criminal court). Instead, it is based on the greater weight of the evidence, which must be sufficient to incline a fair mind to one side rather than the other.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Conclusion of Law 3
Topic Tags
Legal Standards
Evidence
Question
Can an HOA amend its Articles of Incorporation to exist perpetually if they originally had an expiration date?
Short Answer
Yes, an HOA can amend its Articles to extend its duration to be perpetual.
Detailed Answer
The decision upheld the validity of previous amendments where the HOA changed its corporate duration from a fixed term (e.g., 25 years) to 'perpetual.'
Alj Quote
Respondent amended its Articles of Incorporation, Section VIII, on November 18, 1994, and again on January 15, 1999, which extended the duration of the Articles of Incorporation perpetually.
Legal Basis
Findings of Fact 10-12; Conclusion of Law 4
Topic Tags
Corporate Charter
Amendments
Articles of Incorporation
Question
Where can an Arizona homeowner file a dispute regarding violations of community documents?
Short Answer
A petition can be filed with the Arizona Department of Real Estate (ADRE).
Detailed Answer
Arizona law allows homeowners or associations to file a petition with the Department regarding violations of the documents or statutes regulating planned communities. These are then heard by the Office of Administrative Hearings.
Alj Quote
Arizona statute permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities.
Legal Basis
Conclusion of Law 1; A.R.S. § 32-2199
Topic Tags
Dispute Resolution
ADRE
Jurisdiction
Question
Does a lack of knowledge about old amendments invalidate them?
Short Answer
No. Even if a current homeowner was unaware of amendments filed decades ago, they are still binding if properly recorded.
Detailed Answer
In this case, the petitioner was unaware of amendments from 1994 and 1999 until the hearing, but the ALJ still relied on those documents to determine that the corporation had not expired.
Alj Quote
Petitioner was not aware of the 1994 and 1999 amendments to the Articles of Incorporation until hearing… The credible and probative evidence of record established that Respondent amended its Articles of Incorporation… which extended the duration of the Articles of Incorporation perpetually.
Legal Basis
Findings of Fact 13; Conclusion of Law 4
Topic Tags
Record Keeping
Constructive Notice
Amendments
Case
Docket No
23F-H019-REL
Case Title
Pamela McKinney v. Valle Vista Property Owners Association
Decision Date
2023-01-31
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Questions
Question
If the CC&Rs (or CLRs) include an automatic renewal clause, does the HOA board require a homeowner vote to extend them?
Short Answer
No. If the documents allow for automatic renewal and no other changes are made, a vote is not required because renewal is not considered a modification.
Detailed Answer
The ALJ determined that if the governing documents provide for automatic renewal for specific periods (e.g., 25 years), the simple act of renewing does not constitute a 'change' or 'modification' that would trigger a voting requirement. A vote is generally only required if the text of the documents is actually being altered.
Alj Quote
Petitioner failed to establish by a preponderance of the evidence that any changes or modifications were made to the CLRs, and the Administrative Law Judge concludes that the automatic renewal of the CLRs does not constitute a modification/change that required a vote of the homeowners.
Legal Basis
Conclusion of Law 4
Topic Tags
CC&R Renewal
Voting Rights
Governing Documents
Question
Who bears the burden of proof when a homeowner files a petition against their HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof to establish the violation.
Detailed Answer
In an administrative hearing, the person filing the complaint must prove their case. The HOA does not initially have to prove they are innocent; the homeowner must prove the HOA committed the violation.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
Legal Basis
Conclusion of Law 2; A.R.S. § 41-1092.07(G)(2)
Topic Tags
Legal Procedure
Burden of Proof
Question
What does 'preponderance of the evidence' mean in an HOA dispute?
Short Answer
It means the claim is 'more probably true than not.'
Detailed Answer
The standard is not 'beyond a reasonable doubt' (like in criminal court). Instead, it is based on the greater weight of the evidence, which must be sufficient to incline a fair mind to one side rather than the other.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Conclusion of Law 3
Topic Tags
Legal Standards
Evidence
Question
Can an HOA amend its Articles of Incorporation to exist perpetually if they originally had an expiration date?
Short Answer
Yes, an HOA can amend its Articles to extend its duration to be perpetual.
Detailed Answer
The decision upheld the validity of previous amendments where the HOA changed its corporate duration from a fixed term (e.g., 25 years) to 'perpetual.'
Alj Quote
Respondent amended its Articles of Incorporation, Section VIII, on November 18, 1994, and again on January 15, 1999, which extended the duration of the Articles of Incorporation perpetually.
Legal Basis
Findings of Fact 10-12; Conclusion of Law 4
Topic Tags
Corporate Charter
Amendments
Articles of Incorporation
Question
Where can an Arizona homeowner file a dispute regarding violations of community documents?
Short Answer
A petition can be filed with the Arizona Department of Real Estate (ADRE).
Detailed Answer
Arizona law allows homeowners or associations to file a petition with the Department regarding violations of the documents or statutes regulating planned communities. These are then heard by the Office of Administrative Hearings.
Alj Quote
Arizona statute permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities.
Legal Basis
Conclusion of Law 1; A.R.S. § 32-2199
Topic Tags
Dispute Resolution
ADRE
Jurisdiction
Question
Does a lack of knowledge about old amendments invalidate them?
Short Answer
No. Even if a current homeowner was unaware of amendments filed decades ago, they are still binding if properly recorded.
Detailed Answer
In this case, the petitioner was unaware of amendments from 1994 and 1999 until the hearing, but the ALJ still relied on those documents to determine that the corporation had not expired.
Alj Quote
Petitioner was not aware of the 1994 and 1999 amendments to the Articles of Incorporation until hearing… The credible and probative evidence of record established that Respondent amended its Articles of Incorporation… which extended the duration of the Articles of Incorporation perpetually.
Legal Basis
Findings of Fact 13; Conclusion of Law 4
Topic Tags
Record Keeping
Constructive Notice
Amendments
Case
Docket No
23F-H019-REL
Case Title
Pamela McKinney v. Valle Vista Property Owners Association
Decision Date
2023-01-31
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Pamela McKinney(petitioner) Appeared on her own behalf
Respondent Side
Alan A. Meda(HOA attorney) Burch & Cracchiolo Represented Respondent Valle Vista Property Owners Association
Sharon Grossi(board member) Valle Vista Property Owners Association President of the Board; testified as a witness for Respondent
Rebecca Bankov(property manager) Valle Vista Property Owners Association Also referred to as Rebecca fan
Amy Wood(board member) Valle Vista Property Owners Association Secretary on the board
Thomas Noble(board member) Valle Vista Property Owners Association Former President of the Board (mentioned in communication)
Stan Andrews(board member) Valle Vista Property Owners Association Mentioned by Petitioner as a board member
Ray Rose(board member) Valle Vista Property Owners Association Recently resigned from the board
Neutral Parties
Sondra J. Vanella(ALJ) OAH Administrative Law Judge
Jean Newman(CPA) Independent auditor who prepared financial report
Other Participants
Dennis Hope(Fire Chief) Northern Arizona Fire District External party cited in board communications regarding water shutoff threats
High Lonesome Ranch Estates Property Owners Association
Counsel
Jason Smith, Esq.
Alleged Violations
HLR CCR 6.2.1 and HLR Association Rules: Nominating and Election Committee Mission and Procedures (approved 19 July 2021)
Outcome Summary
The Administrative Law Judge upheld the Petition, finding the Respondent HOA violated its Nominating and Elections Committee Mission and Procedures by refusing to count otherwise valid couriered ballots and subsequent in-person attempts to vote at the July 5, 2022 Special Election. Petitioners were deemed the prevailing party and awarded the $500 filing fee refund, and the HOA was assessed a $500 civil penalty.
Key Issues & Findings
Denial of the right to vote in Removal/Recall Special Election
Petitioners alleged they were denied the right to vote in the July 5, 2022 Removal/Recall Special Election after their initial ballots (couriered prior to the meeting) were rejected for lacking a postmark, and their subsequent attempts to cast new ballots in person were rejected for reasons including 'double voting' or being 'too late.' The ALJ found the HOA violated its established election procedures.
Orders: The Petition was upheld, and Petitioners were deemed the prevailing party. Respondent was ordered to pay Petitioners their $500.00 filing fee and pay a civil penalty of $500.00 to the Department.
Can my HOA refuse to count a ballot simply because it was delivered by a courier or neighbor rather than mailed?
Short Answer
No. If the HOA's procedures do not explicitly forbid couriers and it has been past practice, they cannot reject ballots solely for lacking a postmark.
Detailed Answer
The ALJ ruled that the HOA violated its procedures by rejecting ballots placed in the ballot box prior to the election (via courier) simply because they lacked postmarks. The judge noted that the custodian of the box did not believe it was a problem and there was no reason for homeowners to believe they couldn't do so.
Alj Quote
Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to count Petitioners’ and other homeowners’ ballots that had been placed in the ballot box prior to the election… There was also no reason for Petitioners or the other homeowners to believe that they could not place their ballots in the ballot box prior to the election and have those ballots counted.
Legal Basis
Nominating and Elections Committee Mission and Procedures
Topic Tags
elections
ballots
couriers
voting rights
Question
What are valid reasons for an HOA to consider a ballot ineligible or spoiled?
Short Answer
Valid reasons typically include incorrect vote counts, unconfirmed ownership, illegibility, unsigned envelopes, or lack of good standing.
Detailed Answer
The decision outlines specific criteria for invalidating ballots found in the HOA's procedures. Arbitrary reasons not listed in the governing documents (like lack of a postmark when not required) are not valid grounds for rejection.
Alj Quote
Reasons a ballot may not be valid include incorrect number of votes, lot ownership cannot be confirmed, ballot is illegible, ballot envelope is not signed, or a member is not in good standing.
Legal Basis
Association Election Procedures
Topic Tags
elections
ballot validity
rules
Question
Is the HOA obligated to try to count votes rather than looking for reasons to disqualify them?
Short Answer
Yes. If the election procedures state that every effort will be made to count votes to ensure fairness, the HOA must adhere to that standard.
Detailed Answer
The ALJ cited the HOA's own mission statement which promised to make every effort to count votes. Rejecting ballots for minor procedural issues (like lacking a postmark) when the voters are present and eligible violates this obligation.
Alj Quote
Respondent’s Nominating and Elections Committee Mission and Procedures state that 'every effort will be made to count as many votes as possible assuring a fair, open and honest election.' This was not the case at the July 5, 2022 Special Election.
Legal Basis
Nominating and Elections Committee Mission and Procedures
Topic Tags
elections
fairness
HOA obligations
Question
If my mailed ballot is rejected, can the HOA prevent me from voting in person at the meeting?
Short Answer
No. If you are present at the meeting and your absentee ballot is rejected, the HOA should allow you to cast a replacement ballot.
Detailed Answer
The ALJ found a violation when the HOA refused to accept in-person ballots from homeowners whose courier ballots were rejected. The decision noted that these ballots were not ineligible for any valid reason (like lack of standing).
Alj Quote
Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to accept in-person ballots at the meeting, notwithstanding that those ballots could not be considered ineligible ballots.
Legal Basis
Voting Rights / Election Procedures
Topic Tags
in-person voting
ballot rejection
elections
Question
Can the HOA enforce a voting deadline strictly against some owners but not others?
Short Answer
No. It is a violation to tell some owners they are 'too late' while allowing others to vote after the deadline.
Detailed Answer
The decision noted that while the Petitioners were told voting was closed at 6:00 PM and they were 'too late,' another homeowner was allowed to place a ballot in the box at 6:15 PM.
Alj Quote
Homeowner Jeffrey Knox personally handed in his ballot at the meeting by placing it in the ballot box at approximately 6:15 p.m., notwithstanding that voting supposedly closed at 6:00 p.m.
Legal Basis
Fair Election Practices
Topic Tags
discrimination
deadlines
fairness
Question
What penalties can an HOA face if they are found to have violated election rules?
Short Answer
The HOA may be ordered to refund the homeowner's filing fee and pay a civil penalty to the Department of Real Estate.
Detailed Answer
In this case, the ALJ ordered the HOA to pay $500 to the petitioners (reimbursement) and a $500 civil penalty to the state.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00… IT IS FURTHER ORDERED that… Respondent shall pay to the Department a civil penalty in the amount of $500.00
Legal Basis
A.R.S. § 32-2199
Topic Tags
penalties
fines
reimbursement
Question
What is the 'burden of proof' for a homeowner in an administrative hearing?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.
Detailed Answer
The decision defines the evidentiary standard required for the petitioners to win their case.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent committed the alleged violation(s) by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
legal standards
burden of proof
hearing process
Case
Docket No
23F-H002-REL
Case Title
Eileen Ahearn and Robert Barfield v. High Lonesome Ranch Estates Property Owners Association
Decision Date
2022-11-17
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA refuse to count a ballot simply because it was delivered by a courier or neighbor rather than mailed?
Short Answer
No. If the HOA's procedures do not explicitly forbid couriers and it has been past practice, they cannot reject ballots solely for lacking a postmark.
Detailed Answer
The ALJ ruled that the HOA violated its procedures by rejecting ballots placed in the ballot box prior to the election (via courier) simply because they lacked postmarks. The judge noted that the custodian of the box did not believe it was a problem and there was no reason for homeowners to believe they couldn't do so.
Alj Quote
Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to count Petitioners’ and other homeowners’ ballots that had been placed in the ballot box prior to the election… There was also no reason for Petitioners or the other homeowners to believe that they could not place their ballots in the ballot box prior to the election and have those ballots counted.
Legal Basis
Nominating and Elections Committee Mission and Procedures
Topic Tags
elections
ballots
couriers
voting rights
Question
What are valid reasons for an HOA to consider a ballot ineligible or spoiled?
Short Answer
Valid reasons typically include incorrect vote counts, unconfirmed ownership, illegibility, unsigned envelopes, or lack of good standing.
Detailed Answer
The decision outlines specific criteria for invalidating ballots found in the HOA's procedures. Arbitrary reasons not listed in the governing documents (like lack of a postmark when not required) are not valid grounds for rejection.
Alj Quote
Reasons a ballot may not be valid include incorrect number of votes, lot ownership cannot be confirmed, ballot is illegible, ballot envelope is not signed, or a member is not in good standing.
Legal Basis
Association Election Procedures
Topic Tags
elections
ballot validity
rules
Question
Is the HOA obligated to try to count votes rather than looking for reasons to disqualify them?
Short Answer
Yes. If the election procedures state that every effort will be made to count votes to ensure fairness, the HOA must adhere to that standard.
Detailed Answer
The ALJ cited the HOA's own mission statement which promised to make every effort to count votes. Rejecting ballots for minor procedural issues (like lacking a postmark) when the voters are present and eligible violates this obligation.
Alj Quote
Respondent’s Nominating and Elections Committee Mission and Procedures state that 'every effort will be made to count as many votes as possible assuring a fair, open and honest election.' This was not the case at the July 5, 2022 Special Election.
Legal Basis
Nominating and Elections Committee Mission and Procedures
Topic Tags
elections
fairness
HOA obligations
Question
If my mailed ballot is rejected, can the HOA prevent me from voting in person at the meeting?
Short Answer
No. If you are present at the meeting and your absentee ballot is rejected, the HOA should allow you to cast a replacement ballot.
Detailed Answer
The ALJ found a violation when the HOA refused to accept in-person ballots from homeowners whose courier ballots were rejected. The decision noted that these ballots were not ineligible for any valid reason (like lack of standing).
Alj Quote
Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to accept in-person ballots at the meeting, notwithstanding that those ballots could not be considered ineligible ballots.
Legal Basis
Voting Rights / Election Procedures
Topic Tags
in-person voting
ballot rejection
elections
Question
Can the HOA enforce a voting deadline strictly against some owners but not others?
Short Answer
No. It is a violation to tell some owners they are 'too late' while allowing others to vote after the deadline.
Detailed Answer
The decision noted that while the Petitioners were told voting was closed at 6:00 PM and they were 'too late,' another homeowner was allowed to place a ballot in the box at 6:15 PM.
Alj Quote
Homeowner Jeffrey Knox personally handed in his ballot at the meeting by placing it in the ballot box at approximately 6:15 p.m., notwithstanding that voting supposedly closed at 6:00 p.m.
Legal Basis
Fair Election Practices
Topic Tags
discrimination
deadlines
fairness
Question
What penalties can an HOA face if they are found to have violated election rules?
Short Answer
The HOA may be ordered to refund the homeowner's filing fee and pay a civil penalty to the Department of Real Estate.
Detailed Answer
In this case, the ALJ ordered the HOA to pay $500 to the petitioners (reimbursement) and a $500 civil penalty to the state.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00… IT IS FURTHER ORDERED that… Respondent shall pay to the Department a civil penalty in the amount of $500.00
Legal Basis
A.R.S. § 32-2199
Topic Tags
penalties
fines
reimbursement
Question
What is the 'burden of proof' for a homeowner in an administrative hearing?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.
Detailed Answer
The decision defines the evidentiary standard required for the petitioners to win their case.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent committed the alleged violation(s) by a preponderance of the evidence… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
legal standards
burden of proof
hearing process
Case
Docket No
23F-H002-REL
Case Title
Eileen Ahearn and Robert Barfield v. High Lonesome Ranch Estates Property Owners Association
Decision Date
2022-11-17
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Eileen Ahearn(petitioner)
Robert Barfield(petitioner)
Randy Kling(witness / former board member) Testified for Petitioners. Also referred to as Randy Clling/Clean.
Claire Peachey(witness / election committee member) Testified for Petitioners. Custodian of the ballot box.
Joyce Green(witness) Testified for Petitioners.
Jeffrey Knox(witness) Testified for Petitioners. Property owner who received rejected ballots.
Respondent Side
Jason Smith(HOA attorney) Smith & Wamsley PLLC
Nancy Sakarelli(board member) High Lonesome Ranch Estates Property Owners Association Board President; appeared virtually.
Corinthia Pangalinan(former board president / board member) High Lonesome Ranch Estates Property Owners Association Subject of recall petition; responded to original complaint.
Becky Hilgart(Election Committee Chair / board member) High Lonesome Ranch Estates Property Owners Association Subject of recall petition. Also referred to as Rebecca Kilgart/Gilgart/Elart.
Tommy Smith(Election Committee Volunteer / property owner) Involved in denying votes.
Wally Oliday(board member) High Lonesome Ranch Estates Property Owners Association Subject of recall petition.
Amanda Miller(board member) High Lonesome Ranch Estates Property Owners Association Subject of recall petition.
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings
Louis Dettorre(Commissioner) Arizona Department of Real Estate
Miranda Alvarez(Legal Secretary) OAH staff transmitting documents.
c. serrano(Administrative Staff) Staff transmitting documents.
AHansen(ADRE Staff) Arizona Department of Real Estate
vnunez(ADRE Staff) Arizona Department of Real Estate
djones(ADRE Staff) Arizona Department of Real Estate
labril(ADRE Staff) Arizona Department of Real Estate
Other Participants
Edna Barton(observer) On the line during the hearing.
Jill Burns(observer) Present in the hearing room.
John Kron(observer) Present in the hearing room.
Stacy(board director) Director mentioned in meeting agenda.
Deborah Bonesac(property owner) Referenced in testimony regarding past courier procedures.
Billy McFarland(board member) Subject of previous recall election.
The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove a violation of A.R.S. § 33-1804(A) because the Architectural Review Committee (ARC) had ceased holding regularly scheduled meetings since March 2022, thereby negating the statutory requirement that such committee meetings must be open to members.
Why this result: The ARC successfully argued that A.R.S. § 33-1804(A) only mandates open access for 'any regularly scheduled committee meetings.' Since they transitioned to using an online portal on an irregular schedule, they were no longer holding 'regularly scheduled meetings,' meaning the statute did not require them to be open.
Key Issues & Findings
Failure of Architectural Review Committee (ARC) to hold open meetings where members can comment prior to a vote.
Petitioner alleged the Architectural Review Committee (ARC) was violating A.R.S. § 33-1804 (open meetings statute) by failing to hold open meetings, particularly after the ARC began processing requests using an online portal which allows for discussion and voting among members outside of noticed meetings. Historically, the ARC held regularly scheduled meetings on the first Tuesday of every month until March 2022. The ALJ ultimately ruled that since March 2022, the ARC was not holding 'regularly scheduled committee meetings' as defined by the statute.
Orders: Petitioner’s Petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804(A)
A.R.S. § 32-2199
Article 6.2 of the Bylaws
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. § 41-1092.09
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
Analytics Highlights
Topics: HOA Open Meeting Law, Architectural Review Committee (ARC), Regularly Scheduled Meetings, Online Portal, Statutory Interpretation
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If a committee does not maintain a regular schedule, the open meeting requirement may not apply.”, “alj_quote”: “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Committees”, “Homeowner Rights” ] }, { “question”: “Can an HOA committee conduct business through an online portal instead of meeting in person?”, “short_answer”: “Yes, utilizing an online portal to process requests is permitted and may result in the activity not being classified as a “regularly scheduled meeting.””, “detailed_answer”: “The ALJ found that moving committee business to an online portal where members review and vote on their own time effectively meant they were not holding ‘regularly scheduled meetings,’ thus bypassing the open meeting requirement.”, “alj_quote”: “Ms. Miglio testified that since August 2022, the ARC has not held regularly scheduled meetings because the ARC conducts its business through an online portal.”, “legal_basis”: “Fact Finding 3(e)”, “topic_tags”: [ “Digital Tools”, “Procedure”, “Committees” ] }, { “question”: “Is an HOA committee required by law to hold regularly scheduled meetings?”, “short_answer”: “No, there is generally no statutory requirement that committees must hold regularly scheduled meetings.”, “detailed_answer”: “The decision explicitly states that nothing in the cited statutes or bylaws required the Architectural Review Committee to adhere to a regular meeting schedule.”, “alj_quote”: “…nothing in the provisions cited by Petitioner require the ARC to hold regularly scheduled meetings.”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “HOA Obligations”, “Committees”, “Scheduling” ] }, { “question”: “Do committee members have to discuss and vote on requests at the same time?”, “short_answer”: “No, committee members can review requests and vote asynchronously on their own time.”, “detailed_answer”: “The ALJ accepted testimony that committee members could view requests and vote individually whenever they chose, rather than convening at a specific time.”, “alj_quote”: “Ms. Wilsey testified that there is no regularly scheduled time to look at the requests, comment, and/or vote.”, “legal_basis”: “Fact Finding 3(h)”, “topic_tags”: [ “Voting”, “Procedure”, “Committees” ] }, { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “This legal standard means the homeowner must convince the judge that their claim is ‘more probably true than not.’ It refers to the convincing force of the evidence rather than the amount.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence… A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Conclusion of Law 2-3”, “topic_tags”: [ “Legal Standards”, “Burden of Proof”, “Dispute Process” ] }, { “question”: “Can committee members comment to each other online without it being an open meeting?”, “short_answer”: “Yes, the ability to comment via a portal does not necessarily create a “meeting” if done asynchronously.”, “detailed_answer”: “The decision noted that members could comment to each other through the portal, but because there was no regularly scheduled time for this interaction, it did not trigger the open meeting statute.”, “alj_quote”: “Members of the ARC have the ability to comment to each other through the portal and vote on the requests through the portal.”, “legal_basis”: “Fact Finding 3(g)”, “topic_tags”: [ “Communication”, “Committees”, “Open Meetings” ] }, { “question”: “If an HOA committee previously held regular meetings, are they forced to continue doing so?”, “short_answer”: “No, past practices do not mandate future behavior if the committee changes its process.”, “detailed_answer”: “Although the committee had a history of regular monthly meetings from 2011 to 2022, the ALJ ruled based on their current practice of using a portal, finding no violation because they were not currently meeting regularly.”, “alj_quote”: “The credible and probative evidence of record established that… prior to the ARC utilizing the online portal system, the ARC was holding regularly scheduled meetings. However, since March 2022, the ARC has not been holding regularly scheduled meetings…”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “Precedent”, “Procedure”, “Committees” ] } ] }
Blog Post – 23F-H008-REL
{ “case”: { “docket_no”: “23F-H008-REL”, “case_title”: “Amy Hilburn v. Stetson Valley Owners Association”, “decision_date”: “2022-11-17”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does my HOA’s architectural committee have to hold open meetings for every decision?”, “short_answer”: “No, only “regularly scheduled” committee meetings are required to be open to members.”, “detailed_answer”: “The law specifically mandates that meetings of the members, the board of directors, and ‘regularly scheduled’ committee meetings be open. If a committee does not maintain a regular schedule, the open meeting requirement may not apply.”, “alj_quote”: “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Committees”, “Homeowner Rights” ] }, { “question”: “Can an HOA committee conduct business through an online portal instead of meeting in person?”, “short_answer”: “Yes, utilizing an online portal to process requests is permitted and may result in the activity not being classified as a “regularly scheduled meeting.””, “detailed_answer”: “The ALJ found that moving committee business to an online portal where members review and vote on their own time effectively meant they were not holding ‘regularly scheduled meetings,’ thus bypassing the open meeting requirement.”, “alj_quote”: “Ms. Miglio testified that since August 2022, the ARC has not held regularly scheduled meetings because the ARC conducts its business through an online portal.”, “legal_basis”: “Fact Finding 3(e)”, “topic_tags”: [ “Digital Tools”, “Procedure”, “Committees” ] }, { “question”: “Is an HOA committee required by law to hold regularly scheduled meetings?”, “short_answer”: “No, there is generally no statutory requirement that committees must hold regularly scheduled meetings.”, “detailed_answer”: “The decision explicitly states that nothing in the cited statutes or bylaws required the Architectural Review Committee to adhere to a regular meeting schedule.”, “alj_quote”: “…nothing in the provisions cited by Petitioner require the ARC to hold regularly scheduled meetings.”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “HOA Obligations”, “Committees”, “Scheduling” ] }, { “question”: “Do committee members have to discuss and vote on requests at the same time?”, “short_answer”: “No, committee members can review requests and vote asynchronously on their own time.”, “detailed_answer”: “The ALJ accepted testimony that committee members could view requests and vote individually whenever they chose, rather than convening at a specific time.”, “alj_quote”: “Ms. Wilsey testified that there is no regularly scheduled time to look at the requests, comment, and/or vote.”, “legal_basis”: “Fact Finding 3(h)”, “topic_tags”: [ “Voting”, “Procedure”, “Committees” ] }, { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “This legal standard means the homeowner must convince the judge that their claim is ‘more probably true than not.’ It refers to the convincing force of the evidence rather than the amount.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence… A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Conclusion of Law 2-3”, “topic_tags”: [ “Legal Standards”, “Burden of Proof”, “Dispute Process” ] }, { “question”: “Can committee members comment to each other online without it being an open meeting?”, “short_answer”: “Yes, the ability to comment via a portal does not necessarily create a “meeting” if done asynchronously.”, “detailed_answer”: “The decision noted that members could comment to each other through the portal, but because there was no regularly scheduled time for this interaction, it did not trigger the open meeting statute.”, “alj_quote”: “Members of the ARC have the ability to comment to each other through the portal and vote on the requests through the portal.”, “legal_basis”: “Fact Finding 3(g)”, “topic_tags”: [ “Communication”, “Committees”, “Open Meetings” ] }, { “question”: “If an HOA committee previously held regular meetings, are they forced to continue doing so?”, “short_answer”: “No, past practices do not mandate future behavior if the committee changes its process.”, “detailed_answer”: “Although the committee had a history of regular monthly meetings from 2011 to 2022, the ALJ ruled based on their current practice of using a portal, finding no violation because they were not currently meeting regularly.”, “alj_quote”: “The credible and probative evidence of record established that… prior to the ARC utilizing the online portal system, the ARC was holding regularly scheduled meetings. However, since March 2022, the ARC has not been holding regularly scheduled meetings…”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “Precedent”, “Procedure”, “Committees” ] } ] }
Case Participants
Petitioner Side
Amy Hilburn(petitioner) Stetson Valley Owners Association member Appeared pro se; former Board President
Respondent Side
Melissa Doolan(HOA attorney) Travis Law Firm
Danielle Miglio(community manager, witness) Oasis Community Management
Ann Renee Wilsey(ARC member, witness) Stetson Valley Owners Association ARC
Nichollet Widner(board member, witness) Stetson Valley Owners Association Board President
Tom Young(board member, observer) Stetson Valley Owners Association Board
Pam Weller(ARC member, observer) Stetson Valley Owners Association ARC
Omar Chavez(board member, observer) Stetson Valley Owners Association Board
Miranda Alvarez(legal secretary) Travis Law Firm Transmitting staff
Elizabeth Franco(community manager staff) Oasis Community Management Referenced in Petitioner's Exhibit 6 testimony
Benjamin Butler(ARC chairperson) Stetson Valley Owners Association ARC Referenced in Petitioner's Exhibit 6 testimony
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
22F-H2222028-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2022-10-11
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Asmaa Kadhum
Counsel
—
Respondent
Goldcrest Patio Homes Condominium Association
Counsel
—
Alleged Violations
A.R.S. § 33-1256
Outcome Summary
The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove a violation of A.R.S. § 33-1256 because the specific issue raised—a complaint about a recorded lien—was moot, as the lien had been released, and no current enforcement action regarding the disputed legal fees was pending.
Why this result: The ALJ determined that absent a recorded lien or pending enforcement action, the Office of Administrative Hearings lacked jurisdiction to address the reasonableness or accuracy of the disputed legal fees under the specific statute cited (A.R.S. § 33-1256).
Key Issues & Findings
Requesting to Waive/or Adjust Unreasonable Collection Fees.
Petitioner sought to waive or adjust unreasonable collection fees and attorney fees ($2,351.40 or $3,500.00) charged by the HOA related to a lien placed on their unit, which was later released because it was allegedly based on incorrect amounts.
Briefing Document: Dispute Between Asmaa Kadhum and Goldcrest Patio Homes Condominium Association
Executive Summary
This document synthesizes the key facts and legal proceedings concerning a dispute between homeowner Asmaa Kadhum (Petitioner) and the Goldcrest Patio Homes Condominium Association (Respondent). The central conflict is the Petitioner’s refusal to pay approximately $3,500 in legal fees that the Respondent incurred during collection efforts for past-due assessments.
The dispute escalated when the Respondent, on June 15, 2020, filed a lien for $2,199.00 against the Petitioner’s property. The Petitioner contested the lien’s validity, citing numerous accounting errors. Subsequently, the Respondent’s own legal counsel advised releasing the lien on November 13, 2020, acknowledging it contained “invalid late fee charges” and was released to protect the association from a “potential false lien claim.”
Despite the release of the lien, the Respondent continued to demand payment for the legal fees. The Petitioner filed a petition with the Arizona Department of Real Estate (ADRE) on January 12, 2022, alleging a violation of A.R.S. § 33-1256 and arguing the collection fees were unreasonable.
Following a hearing and a rehearing, the Administrative Law Judge (ALJ) ultimately ruled in favor of the Respondent. The decision was based on a critical jurisdictional issue: because there was no active lien on the property at the time the petition was filed or heard, there was no existing violation of the cited statute for the Office of Administrative Hearings (OAH) to adjudicate. The ALJ concluded that the OAH lacks the authority to issue a declaratory judgment on the reasonableness of the fees in the absence of a pending enforcement action by the association. The underlying liability for the legal fees remains an unresolved issue between the parties.
Parties Involved
Name/Entity
Key Representative(s)
Petitioner
Asmaa Kadhum
Asmaa Kadhum, Mazin Ahmed Al-Salih
Respondent
Goldcrest Patio Homes Condominium Association
Jerry Latschar (Vice President), Cammy Bowring
Chronology of Key Events
Prior to May 1, 2019
Petitioner accrued unpaid assessments and fees totaling $1,375.00 under previous management (AAMG).
April 21, 2020
Respondent sent a notice to Petitioner demanding payment of $1,435.00 in past-due assessments and fees within 30 days.
April 30, 2020
Petitioner responded via email, stating it was “not a good timing for collections” due to the pandemic and requested late fees be removed.
June 15, 2020
Respondent recorded a Notice of Lien on Petitioner’s unit for an amount of $2,199.00.
August 7, 2020
Respondent’s attorney sent a notice stating the total amount due, including legal fees, was now $2,504.00.
September 10, 2020
Petitioner notified Respondent that the lien amount was incorrect and constituted an “improper lien.”
November 13, 2020
Respondent recorded a Release of Lien against the Petitioner’s unit.
December 10, 2020
Respondent’s attorney explained in a letter that the lien was released because it “included late fee charges that were found to be invalid.”
Post-Release
Respondent maintained that Petitioner still owed approximately $3,500.00 in legal fees from the collection process.
December 2021
An account ledger showed a balance of $2,685.40.
January 12, 2022
Petitioner filed a petition with the ADRE (Case No. HO22-22/028) alleging a violation of A.R.S. § 33-1256.
April 4, 2022
An administrative hearing was held before ALJ Tammy L. Eigenheer.
October 11, 2022
Following a rehearing, the ALJ issued a final decision, finding no violation of the cited statute and dismissing the petition.
October 27, 2022
Petitioner filed a miscellaneous motion, which the OAH did not consider, stating it could take no further action on the matter.
Analysis of the Core Dispute
The Disputed Legal Fees
The primary point of contention is the legal fees assessed to the Petitioner’s account for the collection of past-due assessments.
• Respondent’s Claim: The Respondent asserts that legal fees of approximately $3,500.00 are owed. However, during testimony, Respondent’s representative, Mr. Latschar, was “uncertain where the $3,500.00 total originated.”
• Conflicting Evidence: The amount claimed is inconsistent with other documents. Invoices from counsel submitted after the initial hearing showed total charges of only 661.50∗∗attributabletothePetitioner′smatterbetweenAugustandNovember2020.AledgerfromDecember2021showedatotaloutstandingbalanceof∗∗2,685.40, which included legal fees.
The Improper Lien
A foundational element of the Petitioner’s argument is the improper nature of the lien filed by the Respondent.
• Filing and Release: A lien for $2,199.00 was recorded on June 15, 2020, and officially released on November 13, 2020.
• Reason for Release: The Respondent’s attorney stated the release was necessary to “protect [Respondent] and our firm from a potential false lien claim” because the original notice “included late fee charges that were found to be invalid.” The Respondent’s response to the petition also states, “the lawyer was forced to release the lien” because of “errors” related to posting late fees.
• Varying Amounts: The Petitioner highlighted the inconsistent amounts demanded throughout the process:
◦ $1,435.00 in the April 2020 notice.
◦ $2,199.00 in the June 2020 lien filing.
◦ $2,504.00 in the August 2020 attorney notice.
Petitioner’s Position and Arguments
The Petitioner contends they should not be held responsible for legal fees stemming from the Respondent’s flawed collection process.
• Fees are Unreasonable: The core argument is that charging legal fees for an “invalid” lien based on “false statements and invoices” is unreasonable and unacceptable.
• Lack of Cooperation: The Petitioner claims to have made multiple attempts to discuss the matter and arrange payments, sending meeting requests in December 2021 that were allegedly ignored or cancelled.
• Principle of Fairness: The Petitioner argued, “if someone files a claim then realized that his filing process was based on wrong documents, and then dropped the claim himself, should the other party be responsible for the legal fees for that.”
Respondent’s Position and Arguments
The Respondent maintains that the legal fees are a legitimate debt resulting from the Petitioner’s failure to pay assessments.
• Legal Action was Necessary: The Respondent initiated legal action because the Petitioner had not paid assessments for “nearly a year” and had stated they would not make back payments until late fees were waived.
• Lien Release vs. Debt: The Respondent argues that the release of the lien “doesn’t release the balance owing, just the lien at the county.” The legal fees incurred to collect the past assessments remain due.
• Petitioner Contributed to Costs: The Respondent claims the Petitioner “proceeded to force the attorney to review the ledger, which caused further legal fees to be charged.”
Administrative Hearing and Legal Rulings
Case Details and Petition
• OAH Docket: 22F-H2222028-REL
• ADRE Case: HO22-22/028
• Alleged Violation: A.R.S. § 33-1256, which governs the placement of liens for assessments and requires that they be for “reasonable collection fees and for reasonable attorney fee.”
• Relief Sought: An order to “Waive / or Adjust Unreasonable Collection Fees.”
Administrative Law Judge’s Findings and Conclusions
Across both the initial hearing and the rehearing, the ALJ’s decision was consistent and based on a narrow interpretation of the OAH’s jurisdiction under the cited statute.
• Primary Finding: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1256.
• Jurisdictional Limitation: The ALJ repeatedly emphasized that her authority was limited to evaluating existing liens. Since the lien was released in November 2020, well before the petition was filed in January 2022, there was no active lien to assess for reasonableness.
• Corrective Action: The ALJ stated that by releasing the improper lien, the Respondent had “fixed” the past error, removing it from the OAH’s purview.
• No Declaratory Judgment: The decision clarified that the OAH has “no jurisdiction to issue declaratory judgments.” It could not rule on whether the legal fees themselves were reasonable as a standalone issue, only whether an active lien containing those fees was compliant with statute.
• No Enforcement Action: The decision noted that at the time of the hearing, the Respondent was not pursuing any enforcement action (such as filing a new lien or foreclosure) to collect the disputed fees. The fees existed only as “a number on a ledger.”
Salient Quotes
• Petitioner:“Why why we have to pay for for them mistakes? That’s totally issue.”
• Petitioner:“$3,377 legal fee for placing lean is not reasonable or acceptable.”
• Respondent:“they caused us to obtain legal counsel by not paying their bills for almost a year… It doesn’t release the balance owing, just the lien at the county.”
• Respondent’s Attorney (via letter):“…because the original Notice of Lien ‘included late fee charges that were found to be invalid . . . a Release of Lien was recorded in order to protect [Respondent] and our firm from a potential false lien claim.'”
• Administrative Law Judge:“There is no lean on your property. I can’t say the lean is wrong because there is no lean at this point.”
• Administrative Law Judge:“I can’t I can’t say that what they did in the past was wrong because they have fixed it by releasing the lean.”
• Administrative Law Judge (Decision):“the exact amount of legal fees attributable to Petitioner is not relevant in this matter as there were no pending enforcement actions. This is not to say Petitioner may not be entitled to raise this question in a separate venue.”
Study Guide – 22F-H2222028-REL-RHG
Study Guide: Case No. 22F-H2222028-REL
Short-Answer Quiz
Instructions: Based on the provided source materials, answer the following questions in 2-3 complete sentences.
1. Identify the Petitioner and the Respondent in this case and describe the nature of their dispute.
2. What specific Arizona Revised Statute did the Petitioner allege the Respondent violated, and what was the core of this allegation?
3. On what date did the Respondent file a Notice of Lien against the Petitioner’s property, what was the amount, and why was this lien later released?
4. According to the Administrative Law Judge (ALJ), why did the Office of Administrative Hearings lack the jurisdiction to rule on the reasonableness of the legal fees sought by the Respondent?
5. How did the Petitioner respond to the Respondent’s April 21, 2020 notice of past-due assessments?
6. What action did the Respondent’s law firm state it was prohibited from taking until May 21, 2020, and what was the legal basis for this restriction?
7. After the initial hearing, what was the total amount of legal fees supported by the four invoices submitted by Mr. Latschar for the period between August 1 and November 30, 2020?
8. The Petitioner sought to sell their property and requested a statement from the Respondent showing a zero balance. What was the central point of contention preventing this?
9. In December 2021, the Petitioner attempted to schedule a meeting with the board to dispute a fee. What was the outcome of these requests?
10. What was the final outcome of the case as stated in the Administrative Law Judge’s decision on October 11, 2022?
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Answer Key
1. The Petitioner is Asmaa Kadhum, a condominium owner. The Respondent is the Goldcrest Patio Homes Condominium Association. Their dispute centers on the reasonableness of approximately $3,500 in legal fees the Association charged to Kadhum for collection efforts related to past-due assessments, particularly after the Association filed and then released an invalid lien on the property.
2. The Petitioner alleged a violation of A.R.S. Title 33, Chapter 16, Section 33-1256. The core of the allegation was that the Association was charging unreasonable collection and attorney fees, which is a standard addressed by this statute when an HOA places a lien against a unit.
3. The Respondent filed a Notice of Lien for $2,199.00 on June 15, 2020. The lien was later released on November 13, 2020, because, as the Respondent’s attorney noted, the original Notice of Lien “included late fee charges that were found to be invalid,” and the release was recorded to protect the Association and the law firm from a potential false lien claim.
4. The ALJ stated that the court could not rule on the reasonableness of the fees because there was no longer a recorded lien against the property. The petition was filed under A.R.S. § 33-1256, which governs liens, and since the lien had been released, there was no active violation or enforcement action for the court to evaluate or remedy. The OAH has no jurisdiction to issue declaratory judgments on such matters in the absence of an active enforcement action.
5. In an email dated April 30, 2020, the Petitioner responded to the notice by stating it was “not a good timing for collections” due to the pandemic. The Petitioner disputed the total amount, claiming late fees should be removed, and stated they were planning to pay the whole amount “after this pandemic goes away.”
6. In a May 5, 2020 email, the law firm, Mulcahy Law Firm, P.C., stated that pursuant to state law, it could not proceed with collection efforts until 30 days had passed from the April 21 notice. This meant the file could not be turned over to their office for collection until after May 21, 2020, giving the owner time to pay or arrange a payment agreement.
7. According to the ALJ’s decision from the initial hearing, the four invoices submitted by Mr. Latschar after the hearing showed total charges of $661.50 attributable to the Petitioner’s matter between August 1, 2020, and November 30, 2020.
8. The Petitioner wanted a zero-balance statement to sell the property, arguing all assessments had been paid. The Respondent refused to provide this, contending that while the assessments were paid, there was still an outstanding balance for legal fees incurred during the collection process, which the Petitioner disputed as unreasonable and resulting from the Respondent’s own mistakes.
9. The Petitioner sent multiple meeting requests in December 2021 to dispute a fee of $3,377. The Respondent ultimately canceled the meeting with the homeowner and held one with only the board members, citing COVID-19 and the use of Zoom, even though previous meetings had been held via Zoom.
10. In the final decision dated October 11, 2022, the ALJ concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1256. This was because there was no recorded lien against the property at the time of the petition or hearings, and thus no active enforcement action for the OAH to adjudicate.
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Suggested Essay Questions
1. Trace the complete timeline of the dispute, starting from the initial delinquency prior to May 2019 through the final OAH decision in October 2022. Detail the key financial figures, legal actions, and communications from both parties at each significant stage.
2. Analyze the central legal arguments presented by both the Petitioner and the Respondent. Discuss the merits of the Petitioner’s claim regarding A.R.S. § 33-1256 and explain in detail the jurisdictional reasoning used by the Administrative Law Judge to dismiss the petition.
3. Examine the various financial discrepancies present throughout the source documents, including the differing amounts cited in notices, the lien filing, attorney letters, and account ledgers. How did these inconsistencies contribute to the escalation of the conflict and the accumulation of legal fees?
4. Discuss the role of the Respondent’s law firm, Mulcahy Law Firm, P.C., in this dispute. Based on the provided emails and legal documents, evaluate their advice to the Association and their actions regarding the lien and collection process.
5. Critically evaluate the communication and resolution attempts between the Petitioner and the Respondent’s board outside of the formal legal proceedings. What do the emails and hearing testimony reveal about their efforts to resolve the dispute directly?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings for government agencies, such as the Office of Administrative Hearings. In this case, Tammy L. Eigenheer served as the ALJ.
A.R.S. § 33-1256
The specific Arizona Revised Statute cited by the Petitioner. This statute pertains to liens for assessments in condominiums, including provisions for reasonable collection and attorney fees associated with such liens.
Assessment
A mandatory fee paid by condominium owners to the homeowners’ association (HOA) for the maintenance of common elements and other association expenses.
Declaratory Judgment
A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any harm has occurred. The OAH stated it had no jurisdiction to issue such a judgment on the legal fees.
Department of Real Estate (ADRE)
The Arizona state agency responsible for licensing and regulating the real estate industry. Its functions include the Homeowners Association Dispute Resolution process.
A legal claim or hold on a property as security for a debt. In this case, the Condominium Association placed a lien on the Petitioner’s unit for unpaid assessments and fees.
Office of Administrative Hearings (OAH)
An independent Arizona state agency authorized to conduct hearings in contested matters for other state agencies, ensuring a fair and impartial process.
Petitioner
The party who files a petition initiating a legal case or administrative hearing. In this matter, the petitioner is the homeowner, Asmaa Kadhum.
Preponderance of the evidence
The standard of proof in most civil and administrative cases. It requires the party with the burden of proof (the Petitioner in this case) to show that their claim is more likely true than not.
Rehearing
A second hearing of a case to re-examine the issues and evidence. In this matter, a rehearing was granted after the initial April 4, 2022 hearing.
Release of Lien
A legal document that removes a previously recorded lien on a property. The Respondent recorded a Release of Lien on November 13, 2020, after acknowledging the original lien amount was incorrect.
Respondent
The party against whom a petition is filed. In this matter, the respondent is the Goldcrest Patio Homes Condominium Association.
Blog Post – 22F-H2222028-REL-RHG
5 Shocking Lessons from a Homeowner’s Two-Year War with Her HOA
Introduction: The Notice on the Door
It’s a moment many homeowners dread: finding an official notice from the Homeowner’s Association (HOA) taped to the front door. For most, it’s a minor issue—a reminder about lawn care or trash cans. But for homeowner Asmaa Kadhum, a notice in April 2020 regarding approximately $1,400 in past-due assessments was the first step in a spiraling, multi-year legal war with her Goldcrest Patio Homes Condominium Association.
What began as a manageable debt quickly escalated into a complex battle involving property liens, lawyers, and a dispute over thousands of dollars in legal fees. The case of Kadhum versus her HOA serves as a powerful cautionary tale, revealing several surprising and counter-intuitive truths about the high-stakes world of HOA disputes.
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1. You Can Win the Battle Over a Lien, But Still Owe the Fees
One of the central ironies of this case is how a clear victory on one front failed to end the war. After the homeowner fell behind on assessments, the HOA’s collection efforts caused the initial $1,435 dispute to snowball. On June 15, 2020, the HOA placed a lien on her property for $2,199. The homeowner disputed the lien’s accuracy, arguing that it contained errors.
Ultimately, she was proven correct. The HOA was forced to record a Release of Lien on November 13, 2020. This should have been the end of it, but here’s the twist: even with the lien gone, the HOA maintained that the homeowner was still responsible for approximately $3,500 in legal fees that had been incurred during the process of trying to collect the original debt. This reveals a crucial distinction in HOA law: getting an improper lien removed from your property title doesn’t automatically erase the associated collection costs from the HOA’s ledger. The manageable debt had now become a much larger problem.
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2. A Legal Technicality Can Get a Valid Complaint Dismissed
The homeowner, now facing a bill for thousands in legal fees related to a lien the HOA admitted was flawed, took her case to the Arizona Department of Real Estate. This move, however, highlights a critical strategic error. She filed her petition on January 12, 2022, alleging a violation of statute A.R.S. § 33-1256, which governs HOA liens and the reasonableness of the fees associated with them.
This led to a procedural “Catch-22” that doomed her case. The problem was timing. The HOA had released the improper lien on November 13, 2020—a full 14 months before the homeowner filed her petition. The case hinged on a procedural nuance that many homeowners might overlook: the statute she cited applies exclusively to active liens. Since the target of her complaint no longer existed by the time of the April 2022 hearing, the judge had no jurisdiction.
The Administrative Law Judge explained this jurisdictional trap in plain English:
and if there was a lien on your property right now, I could look at it and say whether or not the collection fees were appropriate, were reasonable. There isn’t one, so there’s nothing for me to evaluate.
The homeowner’s complaint about the fees might have had merit, but because she legally tied it to a violation that was no longer active, the court’s hands were tied. A different legal approach, perhaps focused on disputing the fees in another venue, may have been necessary.
——————————————————————————–
3. Correcting an Error Doesn’t Erase the Cost of Making It
The homeowner’s core argument was simple and relatable: why should she be forced to pay for the HOA’s mistakes? This question became even more pointed when documents revealed the HOA’s own attorney admitting the error. The attorney explained that the lien was released because it “included late fee charges that were found to be invalid” and the release was done to protect the association from a “potential false lien claim.”
During the hearing, the homeowner put the fundamental question to the judge: “Why… do we have to pay for their mistakes?”
Despite the HOA’s admission of error, the legal fees incurred during the entire collections process—including the work related to filing and defending the faulty lien—remained on her account. The situation reached a shocking climax during the hearing. When the judge reviewed the case, he noted that the HOA’s own representative, Mr. Latschar, “was uncertain where the $3,500.00 total originated.” The homeowner was being held liable for a debt that even her creditor couldn’t fully explain.
——————————————————————————–
4. A Disputed Debt Can Haunt a Property Sale
Even after the lien was officially released, the homeowner found herself in a financial vise. As she explained in the hearing, she wanted to sell her property and needed a formal statement from the HOA showing a zero balance to provide to potential buyers and title companies.
However, because the HOA’s books still showed she owed thousands in disputed legal fees, they would not provide this statement. This situation highlights the immense leverage an HOA maintains during a property conveyance. The dispute created a “phantom debt”—not an active lien recorded with the county, but a disputed balance on a ledger that can effectively halt a sale. The judge acknowledged this limbo, describing the amount as “just a number on a ledger.”
Yet, that number is a powerful barrier. Title insurance companies, which are essential for nearly all property sales, will not issue a clear policy if there is a known, unresolved financial dispute with an HOA. This gives the association the power to delay or prevent a sale, even without an active lien on the property.
——————————————————————————–
5. Small Communication Failures Lead to Big Legal Bills
This entire conflict escalated because of a pattern of communication failures that eroded trust long before lawyers were involved. Records show the friction began as early as November 2019, with the homeowner claiming disputes over incorrect receipts and the HOA’s alleged failure to waive late fees as promised.
The situation came to a head in April 2020. When the homeowner received the collection notice, she responded via email, stating it was “not a good timing for collections” due to the pandemic and that she planned to pay the full amount “after this pandemic goes away.” Instead of working toward a formal payment agreement, the HOA proceeded with legal action. The homeowner later claimed she tried to schedule meetings with the board to resolve the matter directly but “was never responded to.”
These failures in communication and negotiation were the direct catalyst for involving lawyers. That decision is what caused the debt to balloon from the original $1,435 to a prolonged, stressful, and expensive dispute over thousands in legal fees.
——————————————————————————–
Conclusion: A Pyrrhic Victory?
The ordeal of Asmaa Kadhum offers critical lessons for any homeowner in an HOA. It demonstrates that in these disputes, legal technicalities matter immensely, clear communication is non-negotiable, and winning a single battle doesn’t mean you’ve won the war. Even when a homeowner is “right” on a key point—like forcing the removal of an improper lien—they can still face significant and lasting financial consequences.
This case leaves every homeowner with a final, thought-provoking question to ponder: When facing a dispute with an HOA, how do you know when to fight for what’s right versus when to avoid a battle that might cost you more than you stand to gain?
Case Participants
Petitioner Side
Asmaa Kadhum(petitioner) Homeowner of Unit 101 who filed the initial petition.
Mazin Ahmed(petitioner) Co-owner/husband of Petitioner; primary contact for correspondence and identified as part of 'Petitioner' in the decision.
Respondent Side
Jerry Latschar(board member) Goldcrest Patio Homes Condominium Association Vice President of the Board of Directors and Statutory Agent; appeared on behalf of the Association.
Robert Kellerman(board member) Goldcrest Patio Homes Condominium Association President of the Board of Directors.
Silvia Petzold(board member) Goldcrest Patio Homes Condominium Association Former Treasurer who initiated debt collection contact with Petitioner.
Solomon Padilla(board member) Goldcrest Patio Homes Condominium Association Board member included in internal association correspondence.
Cammy Bowring(property manager) The Bowring Team Bookkeeper and point of contact for the Association's financial matters.
Lauren Vie(HOA attorney) Mulcahy Law Firm, P.C. Legal counsel for the Association.
Beth Mulcahy(HOA attorney) Mulcahy Law Firm, P.C. Lead attorney for the Association's legal representation.
Morgan Ronimus(HOA attorney) Mulcahy Law Firm, P.C. Paralegal acting as a legal representative in correspondence with Petitioner.
Pam Latschar(respondent) Recipient of correspondence regarding Unit 101.
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Presiding Administrative Law Judge; also referenced phonetically as Tammy Agon and Tammy Aganeer in transcripts.
Louis Dettorre(hearing officer) Arizona Department of Real Estate Commissioner who granted the request for rehearing.
Dan Gardner(staff) Arizona Department of Real Estate HOA Coordinator.
Miranda Alvarez(staff) Office of Administrative Hearings Legal Secretary who transmitted the ALJ decision.
c. serrano(staff) Office of Administrative Hearings Clerk who transmitted the minute entry.
Other Participants
David Villasenor(unknown) Goldcrest Patio Homes Condominium Association Owner of Unit 107; CC'd on association communications.
Paradise Park Condominiums Phase II Homeowners Association
Counsel
Ashley N. Moscarello, Esq.
Alleged Violations
A.R.S. § 33-1243(J)
Outcome Summary
The petition filed by the homeowner against the HOA was dismissed because the homeowner failed to prove the HOA violated A.R.S. § 33-1243(J) regarding financial reporting.
Why this result: The Petitioner failed to establish that the Association violated the applicable statute by a preponderance of the evidence, resulting in the dismissal of the petition.
Key Issues & Findings
Violation of HOA statutory duty to provide annual financial reports (audit, review, or compilation)
Petitioner alleged the HOA failed to share an annual audit/compilation for 2017-2021. The ALJ found the HOA provided financial compilations for 2017-2020 after the petition was filed. The claim regarding 2021 was found to be premature because the financial compilation was not yet due when the petition was filed on May 29, 2022.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1243(J)
A.R.S. § 33-1810
Analytics Highlights
Topics: Condominium Act, Financial Records, Compilation, Statutory Compliance, HOA Management
Additional Citations:
A.R.S. § 33-1243(J)
A.R.S. § 33-1810
A.R.S. § 32-2199(1)
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2222057-REL Decision – 1003891.pdf
Uploaded 2026-01-23T17:48:33 (95.1 KB)
22F-H2222057-REL Decision – 988206.pdf
Uploaded 2026-01-23T17:48:37 (57.1 KB)
22F-H2222057-REL Decision – 989133.pdf
Uploaded 2026-01-23T17:48:39 (50.1 KB)
22F-H2222057-REL Decision – 994978.pdf
Uploaded 2026-01-23T17:48:42 (50.8 KB)
Questions
Question
Is my condo HOA legally required to perform a full financial audit every year?
Short Answer
Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.
Detailed Answer
Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.
Alj Quote
Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.
Legal Basis
A.R.S. § 33-1243(J)
Topic Tags
Financial Reports
Audits
HOA Obligations
Question
What is the deadline for the HOA to complete the annual financial report?
Short Answer
The report must be completed no later than 180 days after the end of the fiscal year.
Detailed Answer
The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.
Alj Quote
The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year
Legal Basis
A.R.S. § 33-1243(J)
Topic Tags
Deadlines
Financial Reports
Procedural Requirements
Question
Once the financial report is finished, how soon must the HOA provide it to me?
Short Answer
The HOA must make it available within 30 days of its completion upon request.
Detailed Answer
After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.
Alj Quote
and shall be made available on request to the unit owners within thirty days after its completion.
Legal Basis
A.R.S. § 33-1243(J)
Topic Tags
Homeowner Rights
Transparency
Financial Reports
Question
Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?
Short Answer
No, a complaint filed before the deadline is considered premature (not ripe).
Detailed Answer
If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.
Alj Quote
Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.
Legal Basis
Ripeness Doctrine
Topic Tags
Legal Procedures
Filing Disputes
Deadlines
Question
Who is responsible for proving that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.
Legal Basis
Burden of Proof
Topic Tags
Legal Standards
Hearing Procedures
Question
What standard of proof is used in these administrative hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Evidentiary Standard
Topic Tags
Legal Standards
Evidence
Question
If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?
Short Answer
No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.
Detailed Answer
While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.
Alj Quote
A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums
Legal Basis
A.R.S. § 33-1243(J)
Topic Tags
Jurisdiction
Statutes
Condominiums
Case
Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Questions
Question
Is my condo HOA legally required to perform a full financial audit every year?
Short Answer
Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.
Detailed Answer
Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.
Alj Quote
Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.
Legal Basis
A.R.S. § 33-1243(J)
Topic Tags
Financial Reports
Audits
HOA Obligations
Question
What is the deadline for the HOA to complete the annual financial report?
Short Answer
The report must be completed no later than 180 days after the end of the fiscal year.
Detailed Answer
The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.
Alj Quote
The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year
Legal Basis
A.R.S. § 33-1243(J)
Topic Tags
Deadlines
Financial Reports
Procedural Requirements
Question
Once the financial report is finished, how soon must the HOA provide it to me?
Short Answer
The HOA must make it available within 30 days of its completion upon request.
Detailed Answer
After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.
Alj Quote
and shall be made available on request to the unit owners within thirty days after its completion.
Legal Basis
A.R.S. § 33-1243(J)
Topic Tags
Homeowner Rights
Transparency
Financial Reports
Question
Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?
Short Answer
No, a complaint filed before the deadline is considered premature (not ripe).
Detailed Answer
If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.
Alj Quote
Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.
Legal Basis
Ripeness Doctrine
Topic Tags
Legal Procedures
Filing Disputes
Deadlines
Question
Who is responsible for proving that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.
Legal Basis
Burden of Proof
Topic Tags
Legal Standards
Hearing Procedures
Question
What standard of proof is used in these administrative hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Evidentiary Standard
Topic Tags
Legal Standards
Evidence
Question
If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?
Short Answer
No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.
Detailed Answer
While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.
Alj Quote
A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums
Legal Basis
A.R.S. § 33-1243(J)
Topic Tags
Jurisdiction
Statutes
Condominiums
Case
Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Deborah Mesear(petitioner, witness) Also appears as Deborah Masear and Deborah Mesier in the sources.
Respondent Side
Ashley N. Moscarello(HOA attorney) Goodman Holmgren Law Group Also appears as Ashley Moscarello, Esq. and Ashley Carillo.
Carl Westlund(property manager, witness) The Management Trust Community manager for Paradise Park Condominiums Phase II Homeowners Association.
Mark A. Holmgren(HOA attorney) Goodman Holmgren Law Group
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Louis Dettorre(ADRE Commissioner) Arizona Department of Real Estate
A. Hansen(ADRE staff) Arizona Department of Real Estate Listed as administrative contact (Attn:).
V. Nunez(ADRE staff) Arizona Department of Real Estate Listed as administrative contact (Attn:).
D. Jones(ADRE staff) Arizona Department of Real Estate Listed as administrative contact (Attn:).
L. Abril(ADRE staff) Arizona Department of Real Estate Listed as administrative contact (Attn:).
Other Participants
Miranda Alvarez(legal secretary) Signed transmission notice.
c. serrano(legal secretary) Signed transmission notice.
The HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against Petitioner regarding his mobile observatory.
Why this result: Petitioner failed to prove that the mobile observatory was not a trailer under the plain and obvious meaning of CC&R Section 2.16, or that the HOA's enforcement constituted illegal selective enforcement.
Key Issues & Findings
Selective enforcement of CC&R Section 2.16 regarding vehicles/trailers.
Petitioner alleged that the HOA selectively enforced CC&R Section 2.16 (regarding parking/vehicles/trailers) against him concerning his 'mobile observatory' while failing to enforce the rule or similar rules against other homeowners (sheds).
Orders: The Administrative Law Judge determined that the HOA did not violate its duties by selectively enforcing CC&R Section 2.16 against the Petitioner.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
Arizona Biltmore Estates vs. TZAC, 868 T2 1030
Arizona Biltmore Estates vs. TZAC, 177 Arizona 47
Burke versus Voice Screen Wireless Corporation, 87P381
Burke versus Voice Screen Wireless Corporation, 207 Arizona 393
Restatement (Third) of Property: Servitudes § 6.13(1)(b),(c) (2000)
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)
A.R.S. 41-1092.07
A.A.C. R2-19-106(D)
A.A.C. R2-19-113(A)(3) and (4)
A.A.C. R2-19-116
Analytics Highlights
Topics: HOA, CC&Rs, Selective Enforcement, Trailer, Mobile Observatory, Parking
Additional Citations:
CC&R Section 2.16
Restatement (Third) of Property: Servitudes
Arizona Biltmore Estates vs. TZAC
Burke versus Voice Screen Wireless Corporation
Video Overview
Audio Overview
Decision Documents
22F-H2222044-REL Decision – 973802.pdf
Uploaded 2026-01-23T17:47:05 (46.0 KB)
22F-H2222044-REL Decision – 974694.pdf
Uploaded 2026-01-23T17:47:08 (48.1 KB)
22F-H2222044-REL Decision – 975118.pdf
Uploaded 2026-01-23T17:47:12 (40.9 KB)
22F-H2222044-REL Decision – 977059.pdf
Uploaded 2026-01-23T17:47:15 (52.0 KB)
22F-H2222044-REL Decision – 977202.pdf
Uploaded 2026-01-23T17:47:20 (48.2 KB)
22F-H2222044-REL Decision – 977294.pdf
Uploaded 2026-01-23T17:47:23 (6.1 KB)
22F-H2222044-REL Decision – 978417.pdf
Uploaded 2026-01-23T17:47:26 (50.1 KB)
22F-H2222044-REL Decision – 978990.pdf
Uploaded 2026-01-23T17:47:31 (44.1 KB)
22F-H2222044-REL Decision – 978991.pdf
Uploaded 2026-01-23T17:47:34 (42.3 KB)
22F-H2222044-REL Decision – 979005.pdf
Uploaded 2026-01-23T17:47:38 (50.4 KB)
22F-H2222044-REL Decision – 982403.pdf
Uploaded 2026-01-23T17:47:42 (55.2 KB)
22F-H2222044-REL Decision – 993469.pdf
Uploaded 2026-01-23T17:47:44 (55.5 KB)
Questions
Question
Can I claim that my HOA violated a CC&R provision meant to regulate homeowner behavior, such as parking rules?
Short Answer
No. CC&R provisions regulating conduct like parking are rules for homeowners to follow, not the HOA.
Detailed Answer
The ALJ clarified that a homeowner cannot successfully argue that the HOA violated a CC&R section designed to regulate homeowner conduct (e.g., parking restrictions). Such sections govern what a homeowner can or cannot do, but do not impose a direct duty on the HOA itself that can be violated in the manner described.
Alj Quote
This is a CC&R that regulates the homeowners. A homeowner may violate this section, but not the HOA… This is not a section that the HOA would violate in and of itself.
Legal Basis
CC&R Interpretation
Topic Tags
CC&R Violations
HOA Obligations
Legal Standards
Question
Am I entitled to a rebuttal closing argument after the hearing record closes?
Short Answer
No. Rebuttal closing arguments are generally not permitted under OAH rules.
Detailed Answer
Homeowners should make all necessary arguments during the hearing. The procedural rules for the Office of Administrative Hearings do not entitle a petitioner to a rebuttal closing argument, especially if one was not requested during the hearing itself.
Alj Quote
Petitioner is not entitled to a rebuttal closing argument pursuant to the rules that govern hearings at the Office of Administrative Hearings. … Furthermore, Petitioner did not request a rebuttal closing at the time of the hearing.
Legal Basis
Arizona Administrative Code R2-19-116
Topic Tags
Hearing Procedures
Homeowner Rights
Closing Arguments
Question
Can I amend the hearing issue to include general claims about the HOA's duty to treat members fairly?
Short Answer
The tribunal may deny such amendments if it lacks jurisdiction over broad common law claims.
Detailed Answer
In this case, a motion to amend the hearing issue to include violations of duties to 'treat members fairly' and 'act reasonably' (citing the Restatement of Property) was denied by the ALJ specifically due to a lack of jurisdiction.
Alj Quote
IT IS ORDERED that Petitioner’s motion to amend the hearing issue is denied due to lack of jurisdiction.
Legal Basis
Jurisdiction
Topic Tags
Jurisdiction
Amending Claims
Fairness
Question
Will my request for a subpoena automatically be granted?
Short Answer
No. Subpoena requests must strictly follow the Arizona Administrative Code requirements.
Detailed Answer
A homeowner's request for a subpoena will be denied if it fails to satisfy the specific requirements outlined in the administrative rules (R2-19-113). It is not automatic; the correct form and substance are required.
Alj Quote
IT IS ORDERED that the request for subpoena is denied. The request does not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).
Legal Basis
Arizona Administrative Code R2-19-113
Topic Tags
Evidence
Subpoenas
Procedural Requirements
Question
Does the filing fee cover multiple unrelated issues in my petition?
Short Answer
No. The filing fee is tied to the number of issues; additional issues require additional payment.
Detailed Answer
If a petition includes multiple distinct issues (e.g., CC&R violation, notice violation, open meeting violation), the homeowner may be required to pay a higher fee. In this case, three issues required a total of $1,500, whereas a single issue was $500.
Alj Quote
With the violation of CC&R 2.16 and also 33-1803 and 33-1804. Those would be three separate issues and that would require a total payment of $1,500.
Legal Basis
Filing Fees
Topic Tags
Filing Fees
Petition Process
Costs
Question
Can the hearing be conducted virtually instead of in person?
Short Answer
Yes. The ALJ can order the hearing to be conducted via video conferencing or telephone.
Detailed Answer
The Office of Administrative Hearings utilizes platforms like Google Meet to allow parties to appear virtually for hearings.
Alj Quote
IT IS ORDERED that the hearing in this matter will be conducted either by video conferencing or telephone participation through Google Meet
Legal Basis
Hearing Procedures
Topic Tags
Virtual Hearing
Accessibility
Procedure
Case
Docket No
22F-H2222044-REL
Case Title
David G. Iadevavia vs. Ventana Shadows Homeowners Association, Inc.
Decision Date
2022-07-08
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Questions
Question
Can I claim that my HOA violated a CC&R provision meant to regulate homeowner behavior, such as parking rules?
Short Answer
No. CC&R provisions regulating conduct like parking are rules for homeowners to follow, not the HOA.
Detailed Answer
The ALJ clarified that a homeowner cannot successfully argue that the HOA violated a CC&R section designed to regulate homeowner conduct (e.g., parking restrictions). Such sections govern what a homeowner can or cannot do, but do not impose a direct duty on the HOA itself that can be violated in the manner described.
Alj Quote
This is a CC&R that regulates the homeowners. A homeowner may violate this section, but not the HOA… This is not a section that the HOA would violate in and of itself.
Legal Basis
CC&R Interpretation
Topic Tags
CC&R Violations
HOA Obligations
Legal Standards
Question
Am I entitled to a rebuttal closing argument after the hearing record closes?
Short Answer
No. Rebuttal closing arguments are generally not permitted under OAH rules.
Detailed Answer
Homeowners should make all necessary arguments during the hearing. The procedural rules for the Office of Administrative Hearings do not entitle a petitioner to a rebuttal closing argument, especially if one was not requested during the hearing itself.
Alj Quote
Petitioner is not entitled to a rebuttal closing argument pursuant to the rules that govern hearings at the Office of Administrative Hearings. … Furthermore, Petitioner did not request a rebuttal closing at the time of the hearing.
Legal Basis
Arizona Administrative Code R2-19-116
Topic Tags
Hearing Procedures
Homeowner Rights
Closing Arguments
Question
Can I amend the hearing issue to include general claims about the HOA's duty to treat members fairly?
Short Answer
The tribunal may deny such amendments if it lacks jurisdiction over broad common law claims.
Detailed Answer
In this case, a motion to amend the hearing issue to include violations of duties to 'treat members fairly' and 'act reasonably' (citing the Restatement of Property) was denied by the ALJ specifically due to a lack of jurisdiction.
Alj Quote
IT IS ORDERED that Petitioner’s motion to amend the hearing issue is denied due to lack of jurisdiction.
Legal Basis
Jurisdiction
Topic Tags
Jurisdiction
Amending Claims
Fairness
Question
Will my request for a subpoena automatically be granted?
Short Answer
No. Subpoena requests must strictly follow the Arizona Administrative Code requirements.
Detailed Answer
A homeowner's request for a subpoena will be denied if it fails to satisfy the specific requirements outlined in the administrative rules (R2-19-113). It is not automatic; the correct form and substance are required.
Alj Quote
IT IS ORDERED that the request for subpoena is denied. The request does not satisfy the requirements of Arizona Administrative Code R2-19-113(A)(3) and (4).
Legal Basis
Arizona Administrative Code R2-19-113
Topic Tags
Evidence
Subpoenas
Procedural Requirements
Question
Does the filing fee cover multiple unrelated issues in my petition?
Short Answer
No. The filing fee is tied to the number of issues; additional issues require additional payment.
Detailed Answer
If a petition includes multiple distinct issues (e.g., CC&R violation, notice violation, open meeting violation), the homeowner may be required to pay a higher fee. In this case, three issues required a total of $1,500, whereas a single issue was $500.
Alj Quote
With the violation of CC&R 2.16 and also 33-1803 and 33-1804. Those would be three separate issues and that would require a total payment of $1,500.
Legal Basis
Filing Fees
Topic Tags
Filing Fees
Petition Process
Costs
Question
Can the hearing be conducted virtually instead of in person?
Short Answer
Yes. The ALJ can order the hearing to be conducted via video conferencing or telephone.
Detailed Answer
The Office of Administrative Hearings utilizes platforms like Google Meet to allow parties to appear virtually for hearings.
Alj Quote
IT IS ORDERED that the hearing in this matter will be conducted either by video conferencing or telephone participation through Google Meet
Legal Basis
Hearing Procedures
Topic Tags
Virtual Hearing
Accessibility
Procedure
Case
Docket No
22F-H2222044-REL
Case Title
David G. Iadevavia vs. Ventana Shadows Homeowners Association, Inc.
Decision Date
2022-07-08
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
David G. Iadevavia(petitioner)
Jill H. Perrella(attorney) Snell & Wilmer LLP
Respondent Side
Carolyn B. Goldschmidt(HOA attorney) Goldschmidt | Shupe, PLLC
Bill Borg(witness/board member)
Jason Bader(witness/board member)
Neutral Parties
Velva Moses-Thompson(ALJ)
Louis Dettorre(Commissioner) Arizona Department of Real Estate
c. serrano(OAH staff)
M Alvarez(OAH staff)
A. Hansen(ADRE staff) Arizona Department of Real Estate
V. Nunez(ADRE staff) Arizona Department of Real Estate
D. Jones(ADRE staff) Arizona Department of Real Estate
L. Abril(ADRE staff) Arizona Department of Real Estate
The ALJ denied the petition, concluding that the Sanalina HOA did not violate its Bylaws when it removed Petitioner John Zumph from the Board of Directors. The tribunal held that a 'regular meeting' can occur even without the presence of a quorum necessary to conduct business, validating the HOA's decision to declare his office vacant after three consecutive absences.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the Bylaws. The ALJ determined that the meetings existed despite lack of quorum, and the Petitioner's intentional absences constituted an abuse of process and were not in the spirit of the bylaws.
Key Issues & Findings
Wrongful removal from the Board of Directors
Petitioner challenged his removal from the Board of Directors, arguing that his three consecutive absences from regularly scheduled meetings (July 8, 2021, September 9, 2021, and November 11, 2021) did not count because no quorum was met at those meetings, meaning the meetings did not exist.
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Sanalina Bylaws Article VII Section 1(d)
Sanalina Bylaws Article VI Section 3
Analytics Highlights
Topics: HOA Board Removal, Quorum Dispute, Bylaw Interpretation, Director Absence, Regular Meeting Definition
These sources document an Arizona administrative hearing and the subsequent legal ruling regarding a dispute between John Zumph and the Sanalina Homeowners Association. Zumph challenged his removal from the Board of Directors, which the association justified based on his absence from three consecutive meetings. While Zumph argued that these sessions did not legally qualify as meetings due to a lack of quorum, the association contended he intentionally skipped them to obstruct board business and force leadership changes. The provided transcript details the testimony and cross-examination of the parties involved, highlighting the internal conflicts within the board. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that meetings can exist even without a quorum to transact business. The final decision affirmed that Zumph’s intentional absences harmed the community and legally permitted the board to declare his seat vacant.
What was the core disagreement regarding the definition of a quorum?
Explain the impacts of the board’s inability to conduct official business.
How did the Administrative Law Judge rule on the petitioner’s removal?
Thursday, February 12
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Today • 1:35 PM
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Blog Post – 22F-H2222049-REL
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22F-H2222049-REL
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These sources document an Arizona administrative hearing and the subsequent legal ruling regarding a dispute between John Zumph and the Sanalina Homeowners Association. Zumph challenged his removal from the Board of Directors, which the association justified based on his absence from three consecutive meetings. While Zumph argued that these sessions did not legally qualify as meetings due to a lack of quorum, the association contended he intentionally skipped them to obstruct board business and force leadership changes. The provided transcript details the testimony and cross-examination of the parties involved, highlighting the internal conflicts within the board. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that meetings can exist even without a quorum to transact business. The final decision affirmed that Zumph’s intentional absences harmed the community and legally permitted the board to declare his seat vacant.
What was the core disagreement regarding the definition of a quorum?
Explain the impacts of the board’s inability to conduct official business.
How did the Administrative Law Judge rule on the petitioner’s removal?
Thursday, February 12
Save to note
Today • 1:35 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
John Zumph(petitioner) Sanalina Homeowners Association Also referred to as John Zump or John Edward Dump; Former Board member removed from his position
Pete Selei(board member) Sanalina Homeowners Association Aligned with petitioner's refusal to attend meetings; Board member removed/vacated position; Also referred to as Joe Pete or Pete
Joe(board member) Sanalina Homeowners Association Aligned with petitioner's refusal to attend meetings
Respondent Side
Nick Eicher(HOA attorney) Sanalina Homeowners Association Also referred to as Nick Aker
Lisa Jean Terror(board member) Sanalina Homeowners Association Board Secretary; witness for Respondent
Neutral Parties
Adam D. Stone(ALJ) OAH
Louis Dettorre(commissioner) Arizona Department of Real Estate
Miranda Alvarez(legal secretary)
Other Participants
Thomas Campanella(property manager) Sanalina Homeowners Association Community Manager; Also referred to as Thomas Pampanella
Javier Gimenez(management representative) Sanalina Homeowners Association Handled minutes for March meeting
The Administrative Law Judge ordered that the petition filed by Stephen and Elizabeth Tosh against the Cimmarron Superstition HOA be dismissed, as the Petitioners failed to appear at the hearing set on their behalf and thus failed to meet the required burden of proof.
Why this result: Petitioners failed to appear at the hearing on June 24, 2022, and consequently did not present evidence to satisfy the burden of proof required under A.A.C. R2-19-119.
Key Issues & Findings
Petition Dismissal for Failure to Appear
Petition was dismissed because Petitioners failed to appear at the scheduled hearing and therefore presented no evidence to meet their burden of proof.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.A.C. R2-19-119
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09
Analytics Highlights
Topics: dismissal, failure to appear, burden of proof
Additional Citations:
A.A.C. R2-19-119
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2222035-REL Decision – 968715.pdf
Uploaded 2026-01-23T17:45:27 (33.0 KB)
22F-H2222035-REL Decision – 969556.pdf
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22F-H2222035-REL Decision – 979812.pdf
Uploaded 2026-01-23T17:45:33 (72.2 KB)
22F-H2222035-REL Decision – 989050.pdf
Uploaded 2026-01-23T17:45:36 (39.3 KB)
Questions
Question
Who is responsible for proving the claims in an HOA dispute hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden of proof lies with the party bringing the action (the Petitioners). If they fail to present evidence to support their petition, they cannot prevail.
Alj Quote
The burden of proof in this matter is on Petitioners. See A.A.C. R2-19-119.
Legal Basis
A.A.C. R2-19-119
Topic Tags
burden of proof
legal standards
Question
What happens if I fail to attend my scheduled administrative hearing?
Short Answer
The petition will likely be dismissed because you failed to meet the burden of proof.
Detailed Answer
Attendance is mandatory to present evidence. If a petitioner fails to appear, they offer no evidence to support their claims. Consequently, the ALJ will find that they failed to meet the burden of proof and will order the petition dismissed.
Alj Quote
By failing to appear at the hearing, Petitioners failed to meet the required burden of proof. Therefore, the petition should be dismissed.
Legal Basis
Failure to Prosecute / Default
Topic Tags
attendance
procedural requirements
dismissal
Question
Is there a grace period if I am late to my hearing?
Short Answer
The judge may allow a short grace period (e.g., 15 minutes), but if you do not appear or contact the office by then, the hearing proceeds without you.
Detailed Answer
In this specific instance, the hearing was scheduled for 9:00 AM, but the judge noted on the record that the hearing did not start until approximately 9:15 AM to allow for a grace period. Since no one appeared or contacted the office to request a delay, the dismissal proceeded.
Alj Quote
Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Petitioners through an attorney, or contact the OAH to request that the start of the hearing be further delayed.
Legal Basis
Procedural Discretion
Topic Tags
attendance
procedural requirements
Question
What is the deadline for requesting a rehearing after a decision is issued?
Short Answer
You must file a request for rehearing with the Commissioner within 30 days of service of the order.
Detailed Answer
If a party disagrees with the ALJ's decision, they have a strict 30-day window from the date of service of the order to file a request for a rehearing with the Real Estate Commissioner.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeals
rehearing
deadlines
Question
Can I file an appeal or new documents directly with the Office of Administrative Hearings (OAH) after the case is closed?
Short Answer
No, once the OAH has issued its decision, it generally cannot take further action or consider new documents.
Detailed Answer
Once the ALJ issues the final order or dismissal, the OAH loses jurisdiction to act further on the matter. Subsequent filings, such as notices of appeal or new evidence, will not be considered by the OAH.
Alj Quote
The documents will not be considered because no further action can be taken on the matter by the Office of Administrative Hearings.
Legal Basis
Jurisdiction
Topic Tags
appeals
jurisdiction
procedural requirements
Question
Is the Administrative Law Judge's order automatically binding?
Short Answer
Yes, the order is binding on all parties unless a rehearing is officially granted.
Detailed Answer
The decision issued by the ALJ carries the weight of law and binds the parties involved immediately, subject only to the granting of a specific motion for rehearing.
Alj Quote
Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.
Legal Basis
A.R.S. § 32-2199.02(B)
Topic Tags
legal standards
enforcement
Case
Docket No
22F-H2222035-REL
Case Title
Stephen and Elizabeth Tosh v. Cimmarron Superstition HOA
Decision Date
2022-06-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Questions
Question
Who is responsible for proving the claims in an HOA dispute hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden of proof lies with the party bringing the action (the Petitioners). If they fail to present evidence to support their petition, they cannot prevail.
Alj Quote
The burden of proof in this matter is on Petitioners. See A.A.C. R2-19-119.
Legal Basis
A.A.C. R2-19-119
Topic Tags
burden of proof
legal standards
Question
What happens if I fail to attend my scheduled administrative hearing?
Short Answer
The petition will likely be dismissed because you failed to meet the burden of proof.
Detailed Answer
Attendance is mandatory to present evidence. If a petitioner fails to appear, they offer no evidence to support their claims. Consequently, the ALJ will find that they failed to meet the burden of proof and will order the petition dismissed.
Alj Quote
By failing to appear at the hearing, Petitioners failed to meet the required burden of proof. Therefore, the petition should be dismissed.
Legal Basis
Failure to Prosecute / Default
Topic Tags
attendance
procedural requirements
dismissal
Question
Is there a grace period if I am late to my hearing?
Short Answer
The judge may allow a short grace period (e.g., 15 minutes), but if you do not appear or contact the office by then, the hearing proceeds without you.
Detailed Answer
In this specific instance, the hearing was scheduled for 9:00 AM, but the judge noted on the record that the hearing did not start until approximately 9:15 AM to allow for a grace period. Since no one appeared or contacted the office to request a delay, the dismissal proceeded.
Alj Quote
Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Petitioners through an attorney, or contact the OAH to request that the start of the hearing be further delayed.
Legal Basis
Procedural Discretion
Topic Tags
attendance
procedural requirements
Question
What is the deadline for requesting a rehearing after a decision is issued?
Short Answer
You must file a request for rehearing with the Commissioner within 30 days of service of the order.
Detailed Answer
If a party disagrees with the ALJ's decision, they have a strict 30-day window from the date of service of the order to file a request for a rehearing with the Real Estate Commissioner.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeals
rehearing
deadlines
Question
Can I file an appeal or new documents directly with the Office of Administrative Hearings (OAH) after the case is closed?
Short Answer
No, once the OAH has issued its decision, it generally cannot take further action or consider new documents.
Detailed Answer
Once the ALJ issues the final order or dismissal, the OAH loses jurisdiction to act further on the matter. Subsequent filings, such as notices of appeal or new evidence, will not be considered by the OAH.
Alj Quote
The documents will not be considered because no further action can be taken on the matter by the Office of Administrative Hearings.
Legal Basis
Jurisdiction
Topic Tags
appeals
jurisdiction
procedural requirements
Question
Is the Administrative Law Judge's order automatically binding?
Short Answer
Yes, the order is binding on all parties unless a rehearing is officially granted.
Detailed Answer
The decision issued by the ALJ carries the weight of law and binds the parties involved immediately, subject only to the granting of a specific motion for rehearing.
Alj Quote
Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.
Legal Basis
A.R.S. § 32-2199.02(B)
Topic Tags
legal standards
enforcement
Case
Docket No
22F-H2222035-REL
Case Title
Stephen and Elizabeth Tosh v. Cimmarron Superstition HOA
Decision Date
2022-06-24
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Stephen Tosh(petitioner)
Elizabeth Tosh(petitioner)
Respondent Side
Christopher Hanlon(HOA attorney) Childers Hanlon & Hudson, PLC
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Louis Dettorre(Commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of Transmissions
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of Transmissions
djones(ADRE staff) Arizona Department of Real Estate Recipient of Transmissions
labril(ADRE staff) Arizona Department of Real Estate Recipient of Transmissions
c. serrano(staff) Transmitted documents
Miranda Alvarez(legal secretary) Transmitted Decision
The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove a violation of A.R.S. § 33-1256 because the specific issue raised—a complaint about a recorded lien—was moot, as the lien had been released, and no current enforcement action regarding the disputed legal fees was pending.
Why this result: The ALJ determined that absent a recorded lien or pending enforcement action, the Office of Administrative Hearings lacked jurisdiction to address the reasonableness or accuracy of the disputed legal fees under the specific statute cited (A.R.S. § 33-1256).
Key Issues & Findings
Requesting to Waive/or Adjust Unreasonable Collection Fees.
Petitioner sought to waive or adjust unreasonable collection fees and attorney fees ($2,351.40 or $3,500.00) charged by the HOA related to a lien placed on their unit, which was later released because it was allegedly based on incorrect amounts.
Briefing Document: Dispute Between Asmaa Kadhum and Goldcrest Patio Homes Condominium Association
Executive Summary
This document synthesizes the key facts and legal proceedings concerning a dispute between homeowner Asmaa Kadhum (Petitioner) and the Goldcrest Patio Homes Condominium Association (Respondent). The central conflict is the Petitioner’s refusal to pay approximately $3,500 in legal fees that the Respondent incurred during collection efforts for past-due assessments.
The dispute escalated when the Respondent, on June 15, 2020, filed a lien for $2,199.00 against the Petitioner’s property. The Petitioner contested the lien’s validity, citing numerous accounting errors. Subsequently, the Respondent’s own legal counsel advised releasing the lien on November 13, 2020, acknowledging it contained “invalid late fee charges” and was released to protect the association from a “potential false lien claim.”
Despite the release of the lien, the Respondent continued to demand payment for the legal fees. The Petitioner filed a petition with the Arizona Department of Real Estate (ADRE) on January 12, 2022, alleging a violation of A.R.S. § 33-1256 and arguing the collection fees were unreasonable.
Following a hearing and a rehearing, the Administrative Law Judge (ALJ) ultimately ruled in favor of the Respondent. The decision was based on a critical jurisdictional issue: because there was no active lien on the property at the time the petition was filed or heard, there was no existing violation of the cited statute for the Office of Administrative Hearings (OAH) to adjudicate. The ALJ concluded that the OAH lacks the authority to issue a declaratory judgment on the reasonableness of the fees in the absence of a pending enforcement action by the association. The underlying liability for the legal fees remains an unresolved issue between the parties.
Parties Involved
Name/Entity
Key Representative(s)
Petitioner
Asmaa Kadhum
Asmaa Kadhum, Mazin Ahmed Al-Salih
Respondent
Goldcrest Patio Homes Condominium Association
Jerry Latschar (Vice President), Cammy Bowring
Chronology of Key Events
Prior to May 1, 2019
Petitioner accrued unpaid assessments and fees totaling $1,375.00 under previous management (AAMG).
April 21, 2020
Respondent sent a notice to Petitioner demanding payment of $1,435.00 in past-due assessments and fees within 30 days.
April 30, 2020
Petitioner responded via email, stating it was “not a good timing for collections” due to the pandemic and requested late fees be removed.
June 15, 2020
Respondent recorded a Notice of Lien on Petitioner’s unit for an amount of $2,199.00.
August 7, 2020
Respondent’s attorney sent a notice stating the total amount due, including legal fees, was now $2,504.00.
September 10, 2020
Petitioner notified Respondent that the lien amount was incorrect and constituted an “improper lien.”
November 13, 2020
Respondent recorded a Release of Lien against the Petitioner’s unit.
December 10, 2020
Respondent’s attorney explained in a letter that the lien was released because it “included late fee charges that were found to be invalid.”
Post-Release
Respondent maintained that Petitioner still owed approximately $3,500.00 in legal fees from the collection process.
December 2021
An account ledger showed a balance of $2,685.40.
January 12, 2022
Petitioner filed a petition with the ADRE (Case No. HO22-22/028) alleging a violation of A.R.S. § 33-1256.
April 4, 2022
An administrative hearing was held before ALJ Tammy L. Eigenheer.
October 11, 2022
Following a rehearing, the ALJ issued a final decision, finding no violation of the cited statute and dismissing the petition.
October 27, 2022
Petitioner filed a miscellaneous motion, which the OAH did not consider, stating it could take no further action on the matter.
Analysis of the Core Dispute
The Disputed Legal Fees
The primary point of contention is the legal fees assessed to the Petitioner’s account for the collection of past-due assessments.
• Respondent’s Claim: The Respondent asserts that legal fees of approximately $3,500.00 are owed. However, during testimony, Respondent’s representative, Mr. Latschar, was “uncertain where the $3,500.00 total originated.”
• Conflicting Evidence: The amount claimed is inconsistent with other documents. Invoices from counsel submitted after the initial hearing showed total charges of only 661.50∗∗attributabletothePetitioner′smatterbetweenAugustandNovember2020.AledgerfromDecember2021showedatotaloutstandingbalanceof∗∗2,685.40, which included legal fees.
The Improper Lien
A foundational element of the Petitioner’s argument is the improper nature of the lien filed by the Respondent.
• Filing and Release: A lien for $2,199.00 was recorded on June 15, 2020, and officially released on November 13, 2020.
• Reason for Release: The Respondent’s attorney stated the release was necessary to “protect [Respondent] and our firm from a potential false lien claim” because the original notice “included late fee charges that were found to be invalid.” The Respondent’s response to the petition also states, “the lawyer was forced to release the lien” because of “errors” related to posting late fees.
• Varying Amounts: The Petitioner highlighted the inconsistent amounts demanded throughout the process:
◦ $1,435.00 in the April 2020 notice.
◦ $2,199.00 in the June 2020 lien filing.
◦ $2,504.00 in the August 2020 attorney notice.
Petitioner’s Position and Arguments
The Petitioner contends they should not be held responsible for legal fees stemming from the Respondent’s flawed collection process.
• Fees are Unreasonable: The core argument is that charging legal fees for an “invalid” lien based on “false statements and invoices” is unreasonable and unacceptable.
• Lack of Cooperation: The Petitioner claims to have made multiple attempts to discuss the matter and arrange payments, sending meeting requests in December 2021 that were allegedly ignored or cancelled.
• Principle of Fairness: The Petitioner argued, “if someone files a claim then realized that his filing process was based on wrong documents, and then dropped the claim himself, should the other party be responsible for the legal fees for that.”
Respondent’s Position and Arguments
The Respondent maintains that the legal fees are a legitimate debt resulting from the Petitioner’s failure to pay assessments.
• Legal Action was Necessary: The Respondent initiated legal action because the Petitioner had not paid assessments for “nearly a year” and had stated they would not make back payments until late fees were waived.
• Lien Release vs. Debt: The Respondent argues that the release of the lien “doesn’t release the balance owing, just the lien at the county.” The legal fees incurred to collect the past assessments remain due.
• Petitioner Contributed to Costs: The Respondent claims the Petitioner “proceeded to force the attorney to review the ledger, which caused further legal fees to be charged.”
Administrative Hearing and Legal Rulings
Case Details and Petition
• OAH Docket: 22F-H2222028-REL
• ADRE Case: HO22-22/028
• Alleged Violation: A.R.S. § 33-1256, which governs the placement of liens for assessments and requires that they be for “reasonable collection fees and for reasonable attorney fee.”
• Relief Sought: An order to “Waive / or Adjust Unreasonable Collection Fees.”
Administrative Law Judge’s Findings and Conclusions
Across both the initial hearing and the rehearing, the ALJ’s decision was consistent and based on a narrow interpretation of the OAH’s jurisdiction under the cited statute.
• Primary Finding: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1256.
• Jurisdictional Limitation: The ALJ repeatedly emphasized that her authority was limited to evaluating existing liens. Since the lien was released in November 2020, well before the petition was filed in January 2022, there was no active lien to assess for reasonableness.
• Corrective Action: The ALJ stated that by releasing the improper lien, the Respondent had “fixed” the past error, removing it from the OAH’s purview.
• No Declaratory Judgment: The decision clarified that the OAH has “no jurisdiction to issue declaratory judgments.” It could not rule on whether the legal fees themselves were reasonable as a standalone issue, only whether an active lien containing those fees was compliant with statute.
• No Enforcement Action: The decision noted that at the time of the hearing, the Respondent was not pursuing any enforcement action (such as filing a new lien or foreclosure) to collect the disputed fees. The fees existed only as “a number on a ledger.”
Salient Quotes
• Petitioner:“Why why we have to pay for for them mistakes? That’s totally issue.”
• Petitioner:“$3,377 legal fee for placing lean is not reasonable or acceptable.”
• Respondent:“they caused us to obtain legal counsel by not paying their bills for almost a year… It doesn’t release the balance owing, just the lien at the county.”
• Respondent’s Attorney (via letter):“…because the original Notice of Lien ‘included late fee charges that were found to be invalid . . . a Release of Lien was recorded in order to protect [Respondent] and our firm from a potential false lien claim.'”
• Administrative Law Judge:“There is no lean on your property. I can’t say the lean is wrong because there is no lean at this point.”
• Administrative Law Judge:“I can’t I can’t say that what they did in the past was wrong because they have fixed it by releasing the lean.”
• Administrative Law Judge (Decision):“the exact amount of legal fees attributable to Petitioner is not relevant in this matter as there were no pending enforcement actions. This is not to say Petitioner may not be entitled to raise this question in a separate venue.”
Study Guide – 22F-H2222028-REL
Study Guide: Case No. 22F-H2222028-REL
Short-Answer Quiz
Instructions: Based on the provided source materials, answer the following questions in 2-3 complete sentences.
1. Identify the Petitioner and the Respondent in this case and describe the nature of their dispute.
2. What specific Arizona Revised Statute did the Petitioner allege the Respondent violated, and what was the core of this allegation?
3. On what date did the Respondent file a Notice of Lien against the Petitioner’s property, what was the amount, and why was this lien later released?
4. According to the Administrative Law Judge (ALJ), why did the Office of Administrative Hearings lack the jurisdiction to rule on the reasonableness of the legal fees sought by the Respondent?
5. How did the Petitioner respond to the Respondent’s April 21, 2020 notice of past-due assessments?
6. What action did the Respondent’s law firm state it was prohibited from taking until May 21, 2020, and what was the legal basis for this restriction?
7. After the initial hearing, what was the total amount of legal fees supported by the four invoices submitted by Mr. Latschar for the period between August 1 and November 30, 2020?
8. The Petitioner sought to sell their property and requested a statement from the Respondent showing a zero balance. What was the central point of contention preventing this?
9. In December 2021, the Petitioner attempted to schedule a meeting with the board to dispute a fee. What was the outcome of these requests?
10. What was the final outcome of the case as stated in the Administrative Law Judge’s decision on October 11, 2022?
——————————————————————————–
Answer Key
1. The Petitioner is Asmaa Kadhum, a condominium owner. The Respondent is the Goldcrest Patio Homes Condominium Association. Their dispute centers on the reasonableness of approximately $3,500 in legal fees the Association charged to Kadhum for collection efforts related to past-due assessments, particularly after the Association filed and then released an invalid lien on the property.
2. The Petitioner alleged a violation of A.R.S. Title 33, Chapter 16, Section 33-1256. The core of the allegation was that the Association was charging unreasonable collection and attorney fees, which is a standard addressed by this statute when an HOA places a lien against a unit.
3. The Respondent filed a Notice of Lien for $2,199.00 on June 15, 2020. The lien was later released on November 13, 2020, because, as the Respondent’s attorney noted, the original Notice of Lien “included late fee charges that were found to be invalid,” and the release was recorded to protect the Association and the law firm from a potential false lien claim.
4. The ALJ stated that the court could not rule on the reasonableness of the fees because there was no longer a recorded lien against the property. The petition was filed under A.R.S. § 33-1256, which governs liens, and since the lien had been released, there was no active violation or enforcement action for the court to evaluate or remedy. The OAH has no jurisdiction to issue declaratory judgments on such matters in the absence of an active enforcement action.
5. In an email dated April 30, 2020, the Petitioner responded to the notice by stating it was “not a good timing for collections” due to the pandemic. The Petitioner disputed the total amount, claiming late fees should be removed, and stated they were planning to pay the whole amount “after this pandemic goes away.”
6. In a May 5, 2020 email, the law firm, Mulcahy Law Firm, P.C., stated that pursuant to state law, it could not proceed with collection efforts until 30 days had passed from the April 21 notice. This meant the file could not be turned over to their office for collection until after May 21, 2020, giving the owner time to pay or arrange a payment agreement.
7. According to the ALJ’s decision from the initial hearing, the four invoices submitted by Mr. Latschar after the hearing showed total charges of $661.50 attributable to the Petitioner’s matter between August 1, 2020, and November 30, 2020.
8. The Petitioner wanted a zero-balance statement to sell the property, arguing all assessments had been paid. The Respondent refused to provide this, contending that while the assessments were paid, there was still an outstanding balance for legal fees incurred during the collection process, which the Petitioner disputed as unreasonable and resulting from the Respondent’s own mistakes.
9. The Petitioner sent multiple meeting requests in December 2021 to dispute a fee of $3,377. The Respondent ultimately canceled the meeting with the homeowner and held one with only the board members, citing COVID-19 and the use of Zoom, even though previous meetings had been held via Zoom.
10. In the final decision dated October 11, 2022, the ALJ concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1256. This was because there was no recorded lien against the property at the time of the petition or hearings, and thus no active enforcement action for the OAH to adjudicate.
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Suggested Essay Questions
1. Trace the complete timeline of the dispute, starting from the initial delinquency prior to May 2019 through the final OAH decision in October 2022. Detail the key financial figures, legal actions, and communications from both parties at each significant stage.
2. Analyze the central legal arguments presented by both the Petitioner and the Respondent. Discuss the merits of the Petitioner’s claim regarding A.R.S. § 33-1256 and explain in detail the jurisdictional reasoning used by the Administrative Law Judge to dismiss the petition.
3. Examine the various financial discrepancies present throughout the source documents, including the differing amounts cited in notices, the lien filing, attorney letters, and account ledgers. How did these inconsistencies contribute to the escalation of the conflict and the accumulation of legal fees?
4. Discuss the role of the Respondent’s law firm, Mulcahy Law Firm, P.C., in this dispute. Based on the provided emails and legal documents, evaluate their advice to the Association and their actions regarding the lien and collection process.
5. Critically evaluate the communication and resolution attempts between the Petitioner and the Respondent’s board outside of the formal legal proceedings. What do the emails and hearing testimony reveal about their efforts to resolve the dispute directly?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings for government agencies, such as the Office of Administrative Hearings. In this case, Tammy L. Eigenheer served as the ALJ.
A.R.S. § 33-1256
The specific Arizona Revised Statute cited by the Petitioner. This statute pertains to liens for assessments in condominiums, including provisions for reasonable collection and attorney fees associated with such liens.
Assessment
A mandatory fee paid by condominium owners to the homeowners’ association (HOA) for the maintenance of common elements and other association expenses.
Declaratory Judgment
A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any harm has occurred. The OAH stated it had no jurisdiction to issue such a judgment on the legal fees.
Department of Real Estate (ADRE)
The Arizona state agency responsible for licensing and regulating the real estate industry. Its functions include the Homeowners Association Dispute Resolution process.
A legal claim or hold on a property as security for a debt. In this case, the Condominium Association placed a lien on the Petitioner’s unit for unpaid assessments and fees.
Office of Administrative Hearings (OAH)
An independent Arizona state agency authorized to conduct hearings in contested matters for other state agencies, ensuring a fair and impartial process.
Petitioner
The party who files a petition initiating a legal case or administrative hearing. In this matter, the petitioner is the homeowner, Asmaa Kadhum.
Preponderance of the evidence
The standard of proof in most civil and administrative cases. It requires the party with the burden of proof (the Petitioner in this case) to show that their claim is more likely true than not.
Rehearing
A second hearing of a case to re-examine the issues and evidence. In this matter, a rehearing was granted after the initial April 4, 2022 hearing.
Release of Lien
A legal document that removes a previously recorded lien on a property. The Respondent recorded a Release of Lien on November 13, 2020, after acknowledging the original lien amount was incorrect.
Respondent
The party against whom a petition is filed. In this matter, the respondent is the Goldcrest Patio Homes Condominium Association.
Blog Post – 22F-H2222028-REL
5 Shocking Lessons from a Homeowner’s Two-Year War with Her HOA
Introduction: The Notice on the Door
It’s a moment many homeowners dread: finding an official notice from the Homeowner’s Association (HOA) taped to the front door. For most, it’s a minor issue—a reminder about lawn care or trash cans. But for homeowner Asmaa Kadhum, a notice in April 2020 regarding approximately $1,400 in past-due assessments was the first step in a spiraling, multi-year legal war with her Goldcrest Patio Homes Condominium Association.
What began as a manageable debt quickly escalated into a complex battle involving property liens, lawyers, and a dispute over thousands of dollars in legal fees. The case of Kadhum versus her HOA serves as a powerful cautionary tale, revealing several surprising and counter-intuitive truths about the high-stakes world of HOA disputes.
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1. You Can Win the Battle Over a Lien, But Still Owe the Fees
One of the central ironies of this case is how a clear victory on one front failed to end the war. After the homeowner fell behind on assessments, the HOA’s collection efforts caused the initial $1,435 dispute to snowball. On June 15, 2020, the HOA placed a lien on her property for $2,199. The homeowner disputed the lien’s accuracy, arguing that it contained errors.
Ultimately, she was proven correct. The HOA was forced to record a Release of Lien on November 13, 2020. This should have been the end of it, but here’s the twist: even with the lien gone, the HOA maintained that the homeowner was still responsible for approximately $3,500 in legal fees that had been incurred during the process of trying to collect the original debt. This reveals a crucial distinction in HOA law: getting an improper lien removed from your property title doesn’t automatically erase the associated collection costs from the HOA’s ledger. The manageable debt had now become a much larger problem.
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2. A Legal Technicality Can Get a Valid Complaint Dismissed
The homeowner, now facing a bill for thousands in legal fees related to a lien the HOA admitted was flawed, took her case to the Arizona Department of Real Estate. This move, however, highlights a critical strategic error. She filed her petition on January 12, 2022, alleging a violation of statute A.R.S. § 33-1256, which governs HOA liens and the reasonableness of the fees associated with them.
This led to a procedural “Catch-22” that doomed her case. The problem was timing. The HOA had released the improper lien on November 13, 2020—a full 14 months before the homeowner filed her petition. The case hinged on a procedural nuance that many homeowners might overlook: the statute she cited applies exclusively to active liens. Since the target of her complaint no longer existed by the time of the April 2022 hearing, the judge had no jurisdiction.
The Administrative Law Judge explained this jurisdictional trap in plain English:
and if there was a lien on your property right now, I could look at it and say whether or not the collection fees were appropriate, were reasonable. There isn’t one, so there’s nothing for me to evaluate.
The homeowner’s complaint about the fees might have had merit, but because she legally tied it to a violation that was no longer active, the court’s hands were tied. A different legal approach, perhaps focused on disputing the fees in another venue, may have been necessary.
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3. Correcting an Error Doesn’t Erase the Cost of Making It
The homeowner’s core argument was simple and relatable: why should she be forced to pay for the HOA’s mistakes? This question became even more pointed when documents revealed the HOA’s own attorney admitting the error. The attorney explained that the lien was released because it “included late fee charges that were found to be invalid” and the release was done to protect the association from a “potential false lien claim.”
During the hearing, the homeowner put the fundamental question to the judge: “Why… do we have to pay for their mistakes?”
Despite the HOA’s admission of error, the legal fees incurred during the entire collections process—including the work related to filing and defending the faulty lien—remained on her account. The situation reached a shocking climax during the hearing. When the judge reviewed the case, he noted that the HOA’s own representative, Mr. Latschar, “was uncertain where the $3,500.00 total originated.” The homeowner was being held liable for a debt that even her creditor couldn’t fully explain.
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4. A Disputed Debt Can Haunt a Property Sale
Even after the lien was officially released, the homeowner found herself in a financial vise. As she explained in the hearing, she wanted to sell her property and needed a formal statement from the HOA showing a zero balance to provide to potential buyers and title companies.
However, because the HOA’s books still showed she owed thousands in disputed legal fees, they would not provide this statement. This situation highlights the immense leverage an HOA maintains during a property conveyance. The dispute created a “phantom debt”—not an active lien recorded with the county, but a disputed balance on a ledger that can effectively halt a sale. The judge acknowledged this limbo, describing the amount as “just a number on a ledger.”
Yet, that number is a powerful barrier. Title insurance companies, which are essential for nearly all property sales, will not issue a clear policy if there is a known, unresolved financial dispute with an HOA. This gives the association the power to delay or prevent a sale, even without an active lien on the property.
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5. Small Communication Failures Lead to Big Legal Bills
This entire conflict escalated because of a pattern of communication failures that eroded trust long before lawyers were involved. Records show the friction began as early as November 2019, with the homeowner claiming disputes over incorrect receipts and the HOA’s alleged failure to waive late fees as promised.
The situation came to a head in April 2020. When the homeowner received the collection notice, she responded via email, stating it was “not a good timing for collections” due to the pandemic and that she planned to pay the full amount “after this pandemic goes away.” Instead of working toward a formal payment agreement, the HOA proceeded with legal action. The homeowner later claimed she tried to schedule meetings with the board to resolve the matter directly but “was never responded to.”
These failures in communication and negotiation were the direct catalyst for involving lawyers. That decision is what caused the debt to balloon from the original $1,435 to a prolonged, stressful, and expensive dispute over thousands in legal fees.
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Conclusion: A Pyrrhic Victory?
The ordeal of Asmaa Kadhum offers critical lessons for any homeowner in an HOA. It demonstrates that in these disputes, legal technicalities matter immensely, clear communication is non-negotiable, and winning a single battle doesn’t mean you’ve won the war. Even when a homeowner is “right” on a key point—like forcing the removal of an improper lien—they can still face significant and lasting financial consequences.
This case leaves every homeowner with a final, thought-provoking question to ponder: When facing a dispute with an HOA, how do you know when to fight for what’s right versus when to avoid a battle that might cost you more than you stand to gain?
Case Participants
Petitioner Side
Asmaa Kadhum(petitioner) Filed the petition and appeared on her own behalf,
Mazin Ahmed(co-owner) Referenced as part of 'Petitioner' definition; much of the correspondence was from/to him
Respondent Side
Jerry Latschar(board member) Goldcrest Patio Homes Condominium Association Vice President of the Board of Directors, appeared on behalf of Respondent
Neutral Parties
Tammy L. Eigenheer(ALJ) OAH Also referred to as Tammy Aganeer,,,
Louis Dettorre(Commissioner ADRE) Arizona Department of Real Estate
Miranda Alvarez(legal secretary) Transmitted decision
c. serrano(administrative staff) Transmitted minute entry
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
22F-H2221009-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2022-04-25
Administrative Law Judge
Velva Moses-Thompson
Outcome
full
Filing Fees Refunded
$500.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Sam & Pipper O' Shaughnessy Stangl
Counsel
—
Respondent
Sabino Vista Townhouse Association
Counsel
Nathan Tennyson
Alleged Violations
Article VI of the CC&Rs
Outcome Summary
The Administrative Law Judge deemed Petitioners the prevailing party. Respondent HOA violated Article VI of the CC&Rs by failing to maintain and remove rubbish from the natural desert area within the Common Area up to the exterior building lines, as the Board's determination not to maintain the area lacked proper authority without a CC&R amendment. The Respondent was ordered to comply with the CC&Rs and refund the Petitioners' filing fee.
Key Issues & Findings
HOA maintenance obligations for common area up to exterior building lines
Petitioners alleged the HOA failed to maintain and otherwise manage all property up to the exterior building lines and patio enclosures, specifically a natural desert area within the Common Area. The ALJ found that the CC&Rs require the Association to maintain and remove all rubbish within its property up to the exterior building lines, and the Board lacked the authority to refuse maintenance of the natural desert area without amending the CC&Rs.
Orders: Respondent is ordered to comply with the requirements of Article VI of the CC&Rs going forward and must pay Petitioners their filing fee of $500.00 within thirty (30) days.
Stangl v. Sabino Vista Townhouse Association: A Dispute Over Common Area Maintenance
Executive Summary
This briefing document synthesizes the key facts, arguments, and legal decisions in the administrative case of Sam & Pipper O’ Shaughnessy Stangl versus the Sabino Vista Townhouse Association. The central conflict revolves around the Association’s legal obligation, as defined by its Covenants, Conditions, and Restrictions (CC&Rs), to maintain a common area behind the Petitioners’ property.
The Petitioners alleged that the Association violated Article 6 of its CC&Rs by failing to maintain this area for over two decades, resulting in the accumulation of rubbish and the creation of a habitat for pests. The Association countered that the area in question was designated “natural desert” to serve as a buffer, and that maintaining it was not required and would be cost-prohibitive.
An initial hearing in November 2021 resulted in a decision in favor of the Petitioners. The Association was granted a rehearing, which took place in April 2022. Despite new arguments from the Association regarding budget constraints, historical precedent, and alleged interference by the Petitioners, the Administrative Law Judge (ALJ) upheld the original decision.
The final ruling on April 25, 2022, found that the language of CC&R Article 6 is unambiguous and requires the Association to maintain “all property up to the exterior building lines.” The ALJ concluded that the Board of Directors does not have the authority to unilaterally designate a common area as “unmaintained” without formally amending the CC&Rs. Consequently, the Association was ordered to comply with Article 6 and reimburse the Petitioners’ filing fee.
Case Overview
Case Name
Sam & Pipper O’ Shaughnessy Stangl, Petitioners, vs. Sabino Vista Townhouse Association, Respondent.
Petition Filed: August 6, 2021 Initial Hearing: November 8, 2021 Initial Decision: November 29, 2021 Rehearing: April 4, 2022 Final Decision: April 25, 2022
The Central Allegation: Violation of CC&R Article 6
The dispute is founded on the interpretation of Article 6 of the Sabino Vista Townhouse Association’s CC&Rs concerning “Common Maintenance.”
Key Provisions of Article 6:
• Maintenance Obligation: “The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping… roofs, common elements, decorative walls, drainage… and be responsible for the rubbish removal of all areas within the common properties.”
• Standard of Care: “The Board of Directors of the Association shall use a reasonably high standard of care in providing for the repair, management and maintenance of said property, so that said townhouse project will reflect high pride of ownership.”
Petitioners’ Core Claim: Filed on August 6, 2021, the petition alleged that the Association violated Article 6 by failing to maintain the property behind their townhome unit. They asserted this neglect had persisted for the approximately 24 years they had lived there, leading to overgrowth and pest infestations.
◦ Alleged observing only 12 hours of landscaping work in their immediate back area over 24 years.
◦ Claimed the accumulated rubbish and overgrowth served as a habitat for pests, specifically mentioning “a pack rat for rattlesnakes.”
◦ Submitted a photograph of a rattlesnake skin found in their backyard as evidence.
• Respondent (Sabino Vista Townhouse Association):
◦ Testimony was provided by Charles Taylor Ostermeyer, secretary of the Board of Directors.
◦ Argued the area in question is a “natural desert area and underbrush” that begins 30 to 40 feet behind the homes.
◦ Initially claimed the Board had adopted a rule limiting maintenance to just 4 feet behind residences, citing Board meeting minutes. However, when pressed by the ALJ, Ostermeyer conceded that believing a formal rule was adopted “would be conjecture on my part.”
◦ Asserted it would be too costly to clear the entire region.
◦ Contended that the decision not to maintain the open desert area was a valid exercise of the “business judgment rule” applicable to non-profit organizations.
November 29, 2021 Decision
The ALJ, Velva Moses-Thompson, ruled in favor of the Petitioners.
• Finding: The preponderance of the evidence showed the Respondent failed to maintain the property as required by the unambiguous language of Article 6.
• Reasoning: The Respondent provided “no evidence of an Amendment to Article VI” and “no evidence of a rule properly adopted by the Board that would limit the common area to be maintained.”
• Order: The Petitioners were deemed the prevailing party, and the Association was ordered to reimburse their $500 filing fee and comply with Article 6 going forward.
The Rehearing and Final Decision (April 2022)
The Association’s request for a rehearing was granted, with the new hearing held on April 4, 2022. The Association was represented by Nathan Tennyson, Esq., and presented testimony from John Polasi, a Board member and Chairman of the Landscape Committee.
Rehearing Testimony and Arguments
Petitioner Arguments (Sam O’ Shaughnessy Stangl)
Respondent Arguments (John Polasi, HOA Board)
Core Issue is Deflection: Argued the Association’s narrative was a “deflection from the main issue.” Stated the HOA focused on irrelevant topics to circumvent the court’s correct original ruling.
Area is a “Natural Buffer”: The unmaintained area has existed since 1974 and serves as a natural buffer from Tanque Verde Creek, keeping wildlife out and preventing hikers/bikers from wandering into the neighborhood.
Tree Trimming Incident: Claimed the HOA falsely accused him of “singlehandedly” stopping all tree trimming. Clarified a December 2021 interaction with a contractor (Leon’s Tree Service) lasted only 30 seconds, where he refused permission to cut three shade branches in his private front courtyard.
Petitioner Hindrance: Alleged the Petitioners actively hindered tree trimming in December 2021 by refusing the contractor entry into their courtyard and blocking their driveway with an SUV to prevent the trimming of a low-hanging branch.
Pest Infestations: Maintained that pests are a significant problem, citing a recent rattlesnake sighting on his birthday (March 21) and his personal removal of “252 packrats in the last three years.”
Pest Control is Managed: Stated the HOA contracts “Mr. Packrat” to inspect the entire property quarterly. Polasi testified he had been chairman for a year and had “never heard of a single pack rider or rattlesnake anywhere.”
Misuse of Common Area: Dismissed accusations of misusing the common area as “pure deflection.” He stated his use (grilling, sitting outdoors) was adjudicated in court 18 years prior and found to be in compliance with CC&Rs.
Petitioner Misuse of Common Area: Accused the Petitioners of violating CC&Rs by placing personal items (barbecue, smoker, tables, chairs) in the common area and cutting a hole in their patio wall for water and electric lines.
Developer’s Intent: Cited a statement from Dale Chastine, the original developer, asserting the CC&Rs were written to “strictly forbid any unfettered wild growth” and require all common areas to be maintained in the same manner.
Board Authority and Historical Precedent: Cited 2020 Board Minutes that formally designated the area “35 ft to the south of southern homeowner rear wall” as “unmaintained natural desert landscape.” Referenced 1999 minutes indicating a 4-foot maintenance rule was previously in place.
New Issues: Attempted to introduce new evidence regarding a “complete drainage channel that… is now buried under debris and soil,” but the ALJ did not admit it as it was a new allegation not in the original petition.
Budgetary Constraints: Argued that maintaining the entire two-to-four-acre area would be excessively expensive. He noted the HOA had recently spent $15,000 on front-area tree trimming and $10,000 on tree repairs, and had other costs like a new pool pump.
April 25, 2022 Final Decision
The ALJ again ruled in favor of the Petitioners, affirming the initial decision.
• Core Conclusion: “Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines.”
• Legal Reasoning: The CC&Rs are unambiguous and require the Association to maintain and remove rubbish from all property within its boundaries, including the area designated as “natural desert.”
• Path Forward for HOA: The ALJ explicitly stated, “If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.”
• Final Order: The order from the November 29, 2021 decision was reiterated: Petitioners were deemed the prevailing party, the Respondent was ordered to pay the $500 filing fee, and the Respondent was directed to comply with Article VI of the CC&Rs.
Study Guide – 22F-H2221009-REL-RHG
Stangl v. Sabino Vista Townhouse Association: A Case Study Guide
This study guide provides a comprehensive review of the administrative case between homeowners Sam & Pipper O’ Shaughnessy Stangl and the Sabino Vista Townhouse Association. It includes a short-answer quiz with a corresponding answer key, a set of essay questions for deeper analysis, and a glossary of key terms found within the case documents.
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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 was the central violation alleged by the Petitioners in their August 6, 2021, petition?
2. According to Article 6 of the CC&Rs, what is the Sabino Vista Townhouse Association’s responsibility regarding property maintenance?
3. In the first hearing on November 8, 2021, what was the Respondent’s primary argument for not maintaining the area behind the Petitioners’ home?
4. What was the outcome of the first Administrative Law Judge Decision issued on November 29, 2021?
5. Who testified for the Respondent at the April 4, 2022, rehearing, and what were his roles within the Association?
6. What two historical documents did the Respondent present at the rehearing to support its maintenance policy for the area in question?
7. Describe the Respondent’s accusation against the Petitioners regarding the tree trimming service in December 2021.
8. What strategic reasons did the Respondent’s witness, John Polasi, give for leaving the desert area unmaintained?
9. In the final decision of April 25, 2022, why did the Administrative Law Judge rule against the Association despite its evidence of a board-approved maintenance plan?
10. What specific orders were issued to the Respondent in the final court decision?
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Answer Key
1. The Petitioners alleged that the Sabino Vista Townhouse Association violated Article 6 of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, they claimed the Association failed to maintain and otherwise manage all property up to the exterior lines and patio enclosures, focusing on the unkempt two-acre area behind their townhome.
2. Article 6 requires the Association to “maintain and otherwise manage all property up to the exterior building lines and patio enclosures.” This includes landscaping, common elements, and rubbish removal, and mandates that the Board of Directors use a “reasonably high standard of care” so the project reflects a high pride of ownership.
3. In the first hearing, the Respondent argued that it had applied the “business judgment rule” applicable to non-profit organizations. The Association contended it would be too costly to clear out the entire region, which it described as an open desert area with many trees and weeds.
4. The Administrative Law Judge (ALJ) found the Petitioners to be the prevailing party. The ALJ ordered the Respondent to comply with Article 6 of the CC&Rs going forward and to pay the Petitioners their filing fee of $500.00.
5. John Polasi testified for the Respondent at the rehearing. He was identified as a member of the Respondent’s Board of Directors and the Chairman of the Landscaping Committee.
6. The Respondent presented minutes from a Board Meeting in February 1999, which stated that only 4 feet behind residences were maintained, with the remainder left natural. They also presented minutes from a 2020 Board Meeting that revised this policy, designating an area 35 feet from the southern homeowner walls as the maintenance boundary.
7. The Respondent alleged that the Petitioners interfered with and prevented a tree trimming project conducted by Leon’s Tree Service. The witness claimed the Petitioners refused entry into their front patio to trim overhanging limbs and moved a vehicle into their driveway to block the work.
8. John Polasi testified that the unmaintained desert area serves as a “natural buffer.” He stated it keeps animals from the adjacent Tanque Verde Creek area from coming onto homeowner property and also prevents bikers and hikers from wandering into the neighborhood.
9. The ALJ ruled that although the Board had determined it would not maintain the natural desert area, the Board does not have the authority under its CC&Rs to refuse maintenance. The judge concluded that the CC&Rs require the Association to maintain all property up to the exterior lines and that if the Association wishes to change this, it must formally amend its CC&Rs.
10. The final order deemed the Petitioners the prevailing party and directed the Respondent to pay the Petitioners’ $500.00 filing fee within thirty days. It further ordered the Respondent to comply with the requirements of Article VI of the CC&Rs going forward.
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Essay Questions
Instructions: The following questions are designed for essay-length responses to encourage a deeper analysis of the case. Answers are not provided.
1. Analyze the legal reasoning of the Administrative Law Judge in both the initial and final decisions. Why was Article 6 of the CC&Rs consistently interpreted as unambiguous, and how did this interpretation override the Respondent’s “business judgment” defense and subsequent board resolutions?
2. Compare and contrast the evidence and arguments presented by the Respondent in the first hearing versus the rehearing. How did the Association’s defense strategy evolve, and what new evidence did it introduce in the second hearing?
3. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Using specific examples from the testimony and exhibits, explain how the Petitioners met this burden of proof and why the Respondent’s affirmative defenses failed to meet the same standard in both hearings.
4. Examine the tension between a homeowners’ association’s governing documents (like CC&Rs) and the operational decisions made by its Board of Directors. How does this case illustrate the limits of a Board’s authority to interpret or modify its responsibilities without formally amending the core documents?
5. Evaluate the various pieces of evidence introduced during the rehearing, such as the Board Minutes from 1999 and 2020, the letter from Leon’s Tree Service, and the attempted introduction of the developer’s affidavit. What role did each piece of evidence play in shaping the arguments, and why was some evidence given more weight or deemed inadmissible by the judge?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions and orders. In this case, the ALJ was Velva Moses-Thompson.
Affidavit
A written statement confirmed by oath or affirmation, for use as evidence in court. An affidavit from the original developer, Dale Chastain, was presented but not admitted into evidence.
Affirmative Defense
A defense in which the defendant introduces evidence that, if found to be credible, will negate liability, even if it is proven that the defendant committed the alleged acts.
Arizona Dept. of Real Estate
The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.
Business Judgment Rule
A legal principle that grants directors of a corporation (or non-profit association) immunity from liability for losses incurred in corporate transactions if the directors acted in good faith. This was used as a defense by the Respondent in the first hearing.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision. The interpretation of Article 6 of the CC&Rs was the central issue of the case.
Common Area
Property in a planned community that is owned by the homeowners’ association and intended for the use and enjoyment of all members. The dispute centered on the maintenance of a common area behind the Petitioners’ home.
Conjecture
An opinion or conclusion formed on the basis of incomplete information. A witness for the Respondent admitted his belief about a maintenance rule was “conjecture.”
Evidentiary Hearing
A formal proceeding where parties present evidence and testimony before a judge to resolve a disputed issue.
Homeowners’ Association (HOA)
An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. In this case, the Sabino Vista Townhouse Association.
Office of Administrative Hearings
An independent state agency in Arizona where evidentiary hearings are conducted by Administrative Law Judges.
Petitioners
The party that files a petition to initiate a legal proceeding. In this case, Sam & Pipper O’ Shaughnessy Stangl.
Preponderance of the Evidence
The standard of proof in most civil cases, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioners had the burden of proving their case by this standard.
Rehearing
A second hearing of a case, granted upon request, to reconsider the original decision. The April 4, 2022, hearing was a rehearing, treated as a “complete and new hearing.”
Respondent
The party against whom a petition is filed. In this case, the Sabino Vista Townhouse Association.
Restrictive Covenant
A provision in a deed or other legal document that limits the use of real property. The court noted that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.
Riparian Area
An area of land adjacent to a river or stream. The Respondent’s witness described the community as being in a riparian area next to Tanque Verde Creek.
Blog Post – 22F-H2221009-REL-RHG
He Sued His HOA Over Landscaping and Won. They Demanded a Do-Over. He Won Again. Here Are the Lessons.
Introduction: The David vs. Goliath Tale of a Homeowner and His HOA
For many homeowners, dealing with a Homeowners Association (HOA) can feel like a constant struggle. Disputes over rules, maintenance, and responsibilities are common frustrations. But what happens when a homeowner believes their HOA is fundamentally failing to uphold its end of the bargain?
This is the story of Sam O’ Shaughnessy Stangl, a homeowner who took his HOA to court over its failure to maintain a common area behind his home. The outcome was surprising enough: he won. But when the HOA was granted a complete “do-over” hearing to re-argue the case from scratch, he won a second time.
This case, Stangl vs. Sabino Vista Townhouse Association, offers a powerful case study in the hierarchy of governing documents and the legal principle of plain language in contract law. Here are the surprising and powerful lessons from the repeated legal victory that every homeowner should know.
1. An HOA Board Vote Can’t Override Its Own Founding Documents
The HOA’s core defense was that its Board of Directors had made a decision to leave the area behind the homes as an “unmaintained natural desert.” This argument, however, proved legally insufficient across two separate hearings.
In the first hearing, board secretary Charles Taylor Ostermeyer testified that the board had decided to limit maintenance. However, when pressed by the judge, he admitted that claiming this decision was a formal “rule” would be “conjecture on my part.” For the rehearing, the association presented board member John Polaski, who formalized the argument, claiming the unmaintained area served as a “natural buffer.” To support this, they presented minutes from a 2020 board meeting, arguing that the board’s decision recorded in those minutes effectively created a new policy for that common area.
In both instances, the Administrative Law Judge delivered a decisive counter-ruling. The judge found that the association’s primary governing documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were the superior legal authority. A simple board vote recorded in meeting minutes could not nullify the binding requirements of the CC&Rs. The judge’s final order from the rehearing was unequivocal:
Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines. … If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.
This is a critical lesson for every homeowner. The CC&Rs function as a legally binding contract between the association and its members. A simple board resolution, a new rule, or a long-standing “tradition” cannot legally contradict the foundational covenants.
2. When the Contract is Clear, “All” Simply Means All
The entire case ultimately hinged on a single sentence in Article VI of the Sabino Vista Townhouse Association CC&Rs. This piece of text was so clear and powerful that the judge cited it as the deciding factor in both the original hearing and the rehearing. The language stated:
“The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping…”
The HOA attempted to argue around this plain language. Its representatives claimed that maintaining the entire area was too costly, that it had been unmaintained since the community was built in 1974, and that it was a “riparian area” (land adjacent to a river or stream) that should be left wild.
In both hearings, the judge rejected these arguments. The word “all” was not open to interpretation. The language of the CC&Rs was unambiguous and therefore had to be enforced as it was written. This illustrates a fundamental legal principle: when contract language is clear, arguments about convenience, cost, or past practice often fail when pitted against the plain text of a governing legal document.
3. Facts are Stubborn, Even in a “Complete New Hearing”
In a highly unusual procedural twist, after losing the first hearing in November 2021, the HOA was granted a “re-hearing” in April 2022. This was not an appeal, which reviews an original decision for errors, but a complete strategic reset. The judge explained its legal significance:
“And this is a re-hearing. So it is a complete and new hearing. … as if the first hearing didn’t happen.”
The HOA used this second chance to launch a new strategy. While the first hearing’s defense centered on cost and a vague, unwritten policy, the second hearing featured a new witness and a new, two-pronged approach: formalizing the “natural buffer” argument and adding an ad hominem strategy that attempted to portray Mr. Stangl as an uncooperative resident who had personally interfered with tree trimming.
But while the HOA’s tactics shifted, the central fact of the case could not be changed. The text of the CC&Rs was the same in April 2022 as it was in November 2021. The final outcome was identical to the first. The judge once again ruled in favor of the homeowner, ordering the HOA to comply with its own CC&Rs and to reimburse Mr. Stangl’s $500 filing fee.
This demonstrates a key legal reality: while procedural tactics can create new opportunities for argument, they cannot alter the foundational text of a contract. The HOA’s strategy shifted, but the CC&Rs—the central fact of the case—remained immutable.
Conclusion: A Final Takeaway for Every Homeowner
The case of Stangl vs. Sabino Vista Townhouse Association offers three profound takeaways for homeowners: the CC&Rs are supreme over board decisions, the plain language of those documents is incredibly powerful, and a fact-based argument is resilient. It serves as a potent reminder that an association’s governing documents are not just suggestions—they are enforceable contracts.
The next time you question an HOA policy, will you stop at their latest newsletter, or will you go back to the source?
Case Participants
Petitioner Side
Sam O' Shaughnessy Stangl(petitioner)
Pipper O' Shaughnessy Stangl(petitioner)
Dale Chastain(witness) Original developer, provided affidavit/statement
Lisa Chastain(witness) Witness who signed affidavit
Respondent Side
Blake R. Johnson(HOA attorney) The Brown Law Group, PLLC Appeared at initial hearing
Nathan Tennyson(HOA attorney) The Brown Law Group, PLLC Appeared at rehearing
Charles Taylor Ostermeyer(board member) Sabino Vista Townhouse Association Secretary; witness at initial hearing
John Polasi(board member) Sabino Vista Townhouse Association Chairman of Landscaping Committee; witness at rehearing
Leon(contractor/witness) Leon's Tree Service Hired by Respondent
Neutral Parties
Velva Moses-Thompson(ALJ) OAH
Louis Dettorre(Commissioner) ADRE
AHansen(ADRE staff) ADRE
djones(ADRE staff) ADRE
DGardner(ADRE staff) ADRE
vnunez(ADRE staff) ADRE
c. serrano(admin staff) Transmitted order
Miranda Alvarez(admin staff) Transmitted order
Other Participants
Barbara Barski(property manager) Former manager, referenced in testimony
