Petitioner MacLeod's challenge to the HOA's Amendment (Petition #19) was dismissed. The HOA's cross-petition (Petition #34) was partially affirmed, finding MacLeod in violation of the Amendment by living full-time in his hangar/home. The HOA (Mogollon Airpark, Inc.) was deemed the prevailing party in the cross-petitions, and each party was ordered to bear its own filing fee.
Why this result: Petitioner MacLeod failed to prove the Amendment was improperly adopted, and the HOA successfully proved MacLeod was in violation of the Amendment regarding full-time residency.
Key Issues & Findings
Challenge to the proper adoption of the October 18, 2018 Amendment to the Declaration (Petition #19)
Petitioner MacLeod alleged that the Amendment substantially altering residential usage in Tract Hangar/Homes was improperly adopted because it applied to fewer than all lots and thus required unanimous approval under A.R.S. § 33-1817(A)(2).
Orders: Petition #19 was dismissed because the Amendment was found to be properly adopted requiring 75% approval pursuant to the Declaration and A.R.S. § 33-1817(A)(1) [40, 44a].
Administrative Law Judge Decision: MacLeod v. Mogollon Airpark, Inc.
Executive Summary
This briefing document outlines the findings and decision of an Administrative Law Judge (ALJ) in the cross-petitions between Magnus L.D. MacLeod and Mogollon Airpark, Inc. (MAP). The central dispute revolves around the validity of a 2018 Amendment to the community’s Declaration and MacLeod’s alleged violation of this Amendment by residing full-time in an aircraft hangar.
MacLeod (Petition #19) contended that the Amendment was invalid because it was not unanimously approved by all lot owners, as he argued was required by Arizona statute A.R.S. § 33-1817(A)(2) since it applied to fewer than all properties. MAP (Petition #34) argued the Amendment was properly adopted with the required 75% approval and that MacLeod was in violation by living in his Tract G hangar, which also allegedly failed to meet the minimum living space requirement.
The ALJ ruled decisively in favor of Mogollon Airpark, Inc., deeming it the prevailing party. The judge concluded that the Amendment was properly adopted under the 75% approval threshold outlined in the community’s Declaration and A.R.S. § 33-1817(A)(1), thereby dismissing MacLeod’s petition. On MAP’s petition, the ALJ found that MacLeod had indeed violated the Amendment by living full-time in the hangar, affirming that part of the petition. However, the ALJ dismissed MAP’s claim regarding the hangar’s living space size due to insufficient evidence. The final order dismisses Petition #19, partially affirms and partially dismisses Petition #34, and orders each party to bear their own filing fees.
Case Overview
Case Numbers
No. 20F-H2019019-REL (Root), No. 20F-H2019034-REL
Parties
Petitioner: Magnus L.D. MacLeod Respondent: Mogollon Airpark, Inc. (MAP)
Jurisdiction
Arizona Department of Real Estate, Office of Administrative Hearings
Administrative Law Judge
Kay Abramsohn
Hearing Date
June 19, 2020
Decision Date
July 28, 2020
The Cross-Petitions
The legal conflict originated from two separate petitions filed with the Arizona Department of Real Estate.
Petition #19: Filed by Magnus L.D. MacLeod
• Filing Date: On or about October 15, 2019.
• Core Allegation: MAP violated Arizona statute A.R.S. § 33-1817(A)(1), (A)(2)(a), and (A)(2)(b) in its adoption of the October 18, 2018 “Amendment to Declaration of Establishment of Conditions, Reservations and Restrictions…”
• MacLeod’s Argument: The Amendment could not be enforced because it lacked the affirmative vote or written consent of all owners of the property to which it applied. He specifically noted that three of the nine Real Property Tracts (Tract G, Tract H, and Tract M) did not provide an affirmative vote and that he personally did not sign it. He argued the amendment required unanimous approval.
Petition #34: Filed by Mogollon Airpark, Inc. (MAP)
• Filing Date: On or about December 16, 2019.
• Core Allegations:
1. Violation of the Amendment: MacLeod was in continued violation of the properly adopted Amendment by living full-time in his Tract G aircraft storage hangar.
2. Violation of Square Footage Requirement: MAP alleged, upon information and belief, that the living space in the hangar was “only 549 square feet,” which violated the Declaration’s requirement that structures for living purposes contain no less than 1,200 square feet.
• Requested Relief: MAP sought enforcement of the Declaration and Amendment, including injunctive relief to compel MacLeod’s compliance, and an award of its attorney’s fees and costs.
Analysis of the Disputed Amendment
The conflict centers on an amendment recorded on October 18, 2018. This amendment introduced several significant changes to the community’s governing documents.
Key Provisions of the Amendment
• Creates Two Lot Categories: The Amendment establishes “Residential lots” (lots #178 through #213) and “Hangar Tracts” (Tracts E through M).
• Regulates Hangar Use: It designates Tracts E through M for the purpose of “aircraft storage only.”
• Restricts Occupancy: While guest quarters may be constructed within a hangar, they are for “temporary living only.” “Temporary” is explicitly defined as “not longer than four months per calendar year.” An owner can request an extension in special circumstances.
• Maintains Living Space Requirement: It affirms that any single-family structure or combination hangar/house must have a living area of “not less than 1,200 square feet.”
• Adds Taxiway Access: The Amendment adds Lot 213 to the list of properties authorized to use the aircraft taxiway. This change was necessitated by a fence MacLeod had erected that blocked the Lot 213 owner’s access.
MacLeod’s Objections to the Amendment
In his petition, MacLeod argued the Amendment fundamentally and unreasonably altered the original covenants:
• It “substantially alters” the covenants for Tract Hangar/Homes by imposing the new four-month temporary living limit where unrestricted usage was previously allowed.
• It replaced the allowance for “Guest Homes with Kitchens” with “Guest Quarters without Kitchens,” impacting Tract G.
• It created a “large burden upon me to buy or build an additional home that I do not want and do not need.”
Background and History of the Dispute
• Property Acquisition: MacLeod purchased Tract G from his brother, Pat MacLeod, in February 2017 with the stated expectation of living in the hangar/home full-time.
• Occupancy: After acquiring the property, MacLeod made interior improvements and began living full-time in the aircraft hangar.
• Conflict Origin: The issue of MacLeod’s full-time residency first arose in May 2017 when he requested to build a group home for disabled veterans, a request that drew opposition from other lot owners.
• Initial Violation Notice: On September 18, 2017, MAP’s Architectural Committee sent MacLeod a letter notifying him that living full-time in a hangar intended for aircraft storage was a violation and requested he vacate within 60 days.
• Formal Non-Compliance Notices & Fines:
◦ December 29, 2018: MAP issued a “First Notice of Non-Compliance,” imposing a $100 fine.
◦ April 29, 2019: MAP issued a “Second Notice: Non-Compliance,” imposing an additional $200 fine if the violation was not remedied.
Legal Framework and Adjudicated Issues
The central legal question was the standard of approval required to pass the Amendment. The parties stipulated that the core dispute was whether a 75% approval or a unanimous approval was necessary.
Stipulated Fact #11
The parties agreed to the following crucial point, which narrowed the scope of the legal argument:
“The AMENDMENT contains at least the required minimum signatures and authorizations from the Lot Owners in Unit IVB to adopt the AMENDMENT, provided that unanimous approval of all affected property owners was not required.”
Conflicting Legal Standards
• Declaration Requirement (75% Rule): The original Declaration states it can be amended “by an instrument in writing, executed and acknowledged by the owners of not less than three-fourths of the lots in said subdivision…”
• Arizona Statute (Unanimous Rule): A.R.S. § 33-1817(A)(2) requires unanimous “affirmative vote or written consent of all of the owners of the lots or property to which the amendment applies” if the amendment “apply to fewer than all of the lots or less than all of the property that is bound by the Declaration.”
Parties’ Core Arguments
• MacLeod’s Position: The Amendment required unanimous approval under A.R.S. § 33-1817(A)(2) because it applied to “fewer than all the lots,” specifically pointing out that Tract B (a common area) was not included.
• MAP’s Position: The 75% rule under A.R.S. § 33-1817(A)(1) was the applicable standard. MAP argued that Tract B was a common area not subject to the Declaration’s conditions, so its exclusion from an amendment concerning residential use was irrelevant and did not trigger the unanimity requirement.
Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions systematically addressed each petition.
Ruling on Petition #19 (Amendment Validity)
• Conclusion: The Amendment was properly adopted.
• Rationale: The ALJ concluded that the 75% approval threshold, as specified in the Declaration and permitted by A.R.S. § 33-1817(A)(1), was the correct standard. Because the parties stipulated that the 75% threshold had been met, MAP was not in violation of the statute.
• Outcome: Petition #19 was dismissed.
Ruling on Petition #34 (MacLeod’s Violations)
• Conclusion on Full-Time Occupancy: MacLeod was in violation of the Amendment by living full-time in the Tract G Hangar/Home.
• Rationale: MacLeod acknowledged living there full-time. His testimony regarding when he ceased this practice was found to be “widely inconsistent,” and the ALJ could not conclude that the violation had stopped by the time MAP filed its petition.
• Outcome: This allegation in Petition #34 was affirmed.
• Conclusion on Living Space Requirement: MAP failed to prove its allegation that the living space was less than the required 1,200 square feet.
• Rationale: MAP did not clearly document or otherwise prove its claim that the living space was only 549 square feet. MacLeod, in contrast, cited a 2007 architectural committee sign-off indicating 1,656 square feet.
• Outcome: This allegation in Petition #34 was dismissed.
• Conclusion on Injunctive Relief: The Tribunal lacked the authority to grant the requested relief.
• Rationale: MAP “cited no statutory authority of this Tribunal with regard to ‘enforcement’ of a homeowner’s association governing documents or with regard to any injunctive relief.”
Final Order
1. Prevailing Party: Mogollon Airpark, Inc. (MAP) is deemed the prevailing party in the cross-petitions.
2. Petition #19 (MacLeod v. MAP): Dismissed.
3. Petition #34 (MAP v. MacLeod):
◦ Partially affirmed as to the allegation of MacLeod living full-time in the Tract G Hangar/Home in violation of the Amendment.
◦ Partially dismissed as to the allegation regarding the amount of living space within the hangar.
4. Filing Fees: Each party shall bear their own filing fee.
Study Guide – 20F-H2019019-REL
Study Guide: MacLeod v. Mogollon Airpark, Inc.
Short-Answer Quiz
1. What were the two primary allegations made by Mogollon Airpark, Inc. (MAP) in its petition (Petition #34) against Magnus L.D. MacLeod?
2. What was the core argument presented by Magnus L.D. MacLeod in his petition (Petition #19) regarding the October 18, 2018 Amendment?
3. According to the original Declaration, what was the minimum approval threshold required to amend it?
4. How did the Amendment of October 18, 2018 change the rules regarding residency in Hangar Tracts like Tract G?
5. What was the central legal question that the parties stipulated to regarding the adoption of the Amendment?
6. Describe the two notices that MAP issued to MacLeod prior to filing its petition.
7. What argument did MacLeod make regarding A.R.S. § 33-1817(A)(2) and why he believed the Amendment required unanimous approval?
8. Why was MAP’s allegation regarding the living space in MacLeod’s Tract G hangar (that it was only 549 sq. ft.) dismissed by the Administrative Law Judge?
9. What was MacLeod’s testimony regarding his occupancy of the Tract G hangar, and how did the Administrative Law Judge view this testimony?
10. What was the final order of the Administrative Law Judge regarding Petition #19 and Petition #34, and which party was deemed the prevailing party?
Answer Key
1. In Petition #34, MAP first alleged that MacLeod was in continued violation of the Amendment by living full-time in his Tract G aircraft storage hangar. Second, MAP requested enforcement of the Declaration and Amendment, seeking injunctive relief and an award of its attorney’s fees and costs.
2. MacLeod’s petition alleged that the Amendment was unenforceable because it was not properly adopted pursuant to A.R.S. § 33-1817. He argued it did not receive the affirmative vote or written consent of all owners of the property to which the amendment applied, specifically noting that owners of three of the nine affected tracts (G, H, and M) did not consent.
3. The original Declaration stipulated that it could be amended by “an instrument in writing, executed and acknowledged by the owners of not less than three-fourths of the lots in said subdivision.” This represents a 75% approval threshold.
4. The Amendment established that guest quarters in aircraft storage hangars (Tracts E through M) were for “temporary living only,” which was defined as “not longer than four months per calendar year.” It also specified that such quarters could not be used as a permanent residence.
5. The parties stipulated that the central dispute was whether the Amendment required 75% approval from lot owners as specified in the Declaration, or if it required unanimous approval from all affected property owners pursuant to A.R.S. § 33-1817(A)(2).
6. On December 29, 2018, MAP issued a “First Notice of Non-Compliance” with a $100 fine for living full-time in the hangar. On April 29, 2019, MAP issued a “Second Notice: Non-Compliance,” imposing an additional $200 fine if the violation was not remedied.
7. MacLeod argued that pursuant to A.R.S. § 33-1817(A)(2), unanimous approval was required because the Amendment applied to fewer than all the lots bound by the Declaration. He specifically pointed out that Tract B, a common area, was not included in the Amendment.
8. The Administrative Law Judge dismissed this part of MAP’s petition because MAP failed to clearly document or prove its allegation. The judge concluded that MAP did not sufficiently demonstrate that the living space within the Tract G Hangar/Home was less than the required 1,200 square feet.
9. MacLeod gave widely inconsistent dates for his full-time occupancy of the hangar and testified that he had moved to Concho in January 2019. The Administrative Law Judge found his testimony inconsistent and could not conclude that MacLeod had stopped living in the hangar at the time Petition #34 was filed.
10. The judge ordered that MacLeod’s Petition #19 be dismissed entirely. The judge partially dismissed MAP’s Petition #34 regarding the living space allegation but affirmed the allegation that MacLeod was living in the hangar in violation of the Amendment. MAP was deemed the prevailing party in the cross-petitions.
Essay Questions
1. Analyze the conflicting interpretations of A.R.S. § 33-1817 presented by Magnus L.D. MacLeod and Mogollon Airpark, Inc. Explain why the Administrative Law Judge ultimately sided with MAP’s interpretation that A.R.S. § 33-1817(A)(1) was the applicable statute.
2. Trace the timeline of the dispute, starting with MacLeod’s purchase of Tract G and his proposal for a group home. Discuss how the actions and reactions of both parties escalated the conflict, leading to the filing of cross-petitions with the Department of Real Estate.
3. Evaluate the evidence presented by both parties. How did the parties’ joint stipulation of facts narrow the central legal issue? Discuss the impact of MacLeod’s inconsistent testimony on the judge’s final decision regarding his residency.
4. MacLeod argued that MAP had waived its right to enforce the Amendment due to “longstanding and widespread utilization of Tract Hanger/Homes as full-time residences.” Although the Judge did not address this argument due to jurisdictional limits, construct an argument for or against this claim based on the facts available in the decision.
5. Discuss the scope and limitations of the Administrative Law Judge’s authority in this case. Why was the Judge able to rule on the validity of the Amendment’s adoption and MacLeod’s violation, but not grant MAP’s request for injunctive relief and enforcement?
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judicial authority, Kay Abramsohn, who presided over the hearing and issued the decision in this case.
A.R.S. § 33-1817
Arizona Revised Statute governing the amendment of a planned community’s Declaration. Subsection (A)(1) allows amendment by the vote specified in the Declaration, while (A)(2) requires unanimous consent of affected owners if the amendment applies to fewer than all lots.
Amendment
The “Amendment to Declaration of Establishment of Conditions, Reservations and Restrictions…” recorded on October 18, 2018. It created categories for Residential and Hangar lots and restricted hangar occupancy to temporary living of no more than four months per year.
A colloquial acronym used by the Petitioner to refer to the original “Declaration of Establishment of Conditions, Reservations and Restrictions and Mutual and Reciprocal Covenants and Liens Running with the Land.”
Declaration
The original governing document for Mogollon Airpark, Inc., establishing conditions, reservations, and restrictions for the properties. It required a three-fourths (75%) vote of lot owners to be amended.
Hangar Tracts
Tracts E through M, inclusive, as designated by the Amendment for the primary purpose of aircraft storage, though guest quarters for temporary living are permitted.
Magnus L.D. MacLeod
The Petitioner in Petition #19 and Respondent in Petition #34. He is the owner of Tract G and resided in the hangar on that property.
Mogollon Airpark, Inc. (MAP)
The Respondent in Petition #19 and Petitioner in Petition #34. It is the planned community association responsible for administering the Declaration.
Petition #19
The petition filed by Magnus L.D. MacLeod on October 15, 2019, alleging MAP improperly adopted the Amendment in violation of Arizona statute.
Petition #34
The petition filed by Mogollon Airpark, Inc. on December 16, 2019, alleging MacLeod was violating the Amendment by living full-time in his hangar.
Preponderance of the evidence
The standard of proof required in the hearing, defined as evidence that is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Residential Lots
Lots numbered 178 through 213, inclusive, as categorized by the Amendment.
Tract G
An aircraft storage hangar lot in Unit 4B owned by Magnus L.D. MacLeod, which was the central property in the dispute.
Unit 4B
The specific subdivision within Mogollon Airpark subject to the Declaration and Amendment. It includes Lots 178-213 and Tracts B, E, F, G, H, I, J, K, L, and M.
Blog Post – 20F-H2019019-REL
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20F-H2019019-REL
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This administrative law judge decision concerns cross-petitions filed by Magnus L.D. MacLeod and Mogollon Airpark, Inc. (MAP) regarding disputes within a planned community association in Arizona. MacLeod’s petition challenged the validity of an amendment to the community’s governing documents (CC&Rs), arguing it was improperly adopted and unreasonably altered prior usage rights for hangar/homes, specifically his Tract G property. MAP’s petition alleged that MacLeod was in continued violation of the amendment by living full-time in his aircraft storage hangar and requested injunctive relief to compel compliance. The judge ruled to dismiss MacLeod’s petition, finding the amendment was properly adopted, and partially affirmed MAP’s petition, concluding that MacLeod had violated the amendment by residing full-time in the hangar. Ultimately, MAP was deemed the prevailing party in the proceedings.
What were the central legal issues and findings in this property dispute case?
How did the contested amendment change the community’s declaration and rules?
What were the core arguments and outcomes for each party involved in this hearing?
Based on 1 source
Case Participants
Petitioner Side
Jeffrey M. Proper(attorney) JEFFREY M. PROPER, PLLC Counsel for Magnus L.D. MacLeod
Respondent Side
Gregory A. Stein(attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Mogollon Airpark, Inc.
Craig Albright(board member) MAP Board of Directors Then President of the MAP Board of Directors
Neutral Parties
Kay Abramsohn(ALJ)
Judy Lowe(commissioner) Arizona Department of Real Estate
Other Participants
Magnus L.D. MacLeod(party) Petitioner in 20F-H2019019-REL and Respondent in 20F-H2019034-REL
Pat MacLeod(HOA president) HOA Brother of Petitioner; previous owner of Tract G; appeared to be HOA President around 2017
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918042-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2020-01-15
Administrative Law Judge
Kay A. Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Joan A. Tober
Counsel
—
Respondent
Civano 1 Neighborhood 1 Homeowners Association
Counsel
Diana J. Elston
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.
Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.
Key Issues & Findings
HOA violation of requirement to provide association records within ten business days.
Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.
Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Analytics Highlights
Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Briefing Document: Tober v. Civano 1 Homeowners Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”
The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.
The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.
Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.
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Case Overview
This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).
Case Name
Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.
Case Number
19F-H1918042-REL
Adjudicating Body
Office of Administrative Hearings (OAH)
Administrative Law Judge
Kay A. Abramsohn
Core Issue
Alleged violation of A.R.S. § 33-1805, which governs member access to association records.
Initial Hearing Date
June 5, 2019
Initial Decision Date
July 29, 2019
Rehearing Date
December 11, 2019
Final Decision Date
January 15, 2020
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Key Parties and Individuals
• Petitioner: Joan A. Tober
◦ A homeowner in the Civano 1 Neighborhood since 2001.
◦ Previously worked for the company that developed the land/homes in the association area.
◦ Has served as a past Board member for the HOA.
◦ Served as an alternate member on the Finance Committee in 2018.
◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.
• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)
◦ The governing body for the planned community.
◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.
• Adjudicator: Kay Abramsohn
◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.
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Chronology of the Dispute
Nov 20, 2018
At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.
Nov 26, 2018
Petitioner sends her first email request for a copy of the Letter.
Nov 27, 2018
Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.
Nov 29, 2018
At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
Nov 29, 2018
At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.
Dec 13, 2018
Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”
Dec 26, 2018
Petitioner files her single-issue petition with the Arizona Department of Real Estate.
Jan 15-16, 2019
The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.
June 5, 2019
The initial administrative hearing is held.
July 29, 2019
Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.
Aug 5, 2019
Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”
Aug 23, 2019
The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
Dec 11, 2019
The rehearing is conducted.
Jan 15, 2020
Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.
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Core Dispute and Arguments
Petitioner’s Position (Joan A. Tober)
1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”
2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.
3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).
Respondent’s Position (Civano 1 HOA)
1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).
2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.
3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.
4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.
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Key Findings of Fact and Evidence
The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.
• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”
• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.
• Petitioner’s Request and Failure to Clarify:
◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.
◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”
◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”
◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.
• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.
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Legal Rulings and Conclusions of Law
Initial Decision (July 29, 2019)
• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.
• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”
• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.
Final Decision on Rehearing (January 15, 2020)
• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.
• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”
• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”
• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”
• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”
• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.
Study Guide – 19F-H1918042-REL-RHG
Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association
This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.
1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?
2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?
3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?
4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?
5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?
6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?
7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?
8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?
9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.
10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?
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Answer Key
1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”
2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).
3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.
4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.
5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.
6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.
8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.
9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.
10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.
1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.
2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.
3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.
4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?
5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.
Arizona Department of Real Estate (“the Department”)
The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.
A.R.S. § 33-1805
The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.
Attorney-Client Privilege
A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.
Executive Session
A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.
An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
Office of Administrative Hearings (OAH)
The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.
Petition
The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”
Rehearing
A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”
Respondent
The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
The Letter
The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.
Blog Post – 19F-H1918042-REL-RHG
She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.
Introduction: The Fight for Information
Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.
This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.
1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.
The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”
Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.
The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.
2. Takeaway #2: Asking for “Everything” Can Get You Nothing.
Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.
After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”
In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:
An association is not required to guess what records are being requested.
The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.
3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.
What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.
But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:
Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.
Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.
Conclusion: Strategy Over Sheer Effort
The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.
This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?
Case Participants
Petitioner Side
Joan A. Tober(petitioner) Former Board member; current Finance Committee member
Respondent Side
Diana J. Elston(HOA attorney) Jones, Skelton & Hochuli, P.L.C.
Mr. Mastrosimone(Board President) Civano 1 Neighborhood 1 Homeowners Association Testified at rehearing
Neutral Parties
Kay A. Abramsohn(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
c. serrano(Clerk)
Felicia Del Sol(Clerk)
LDettorre(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
AHansen(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
djones(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
DGardner(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
ncano(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918042-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2020-01-15
Administrative Law Judge
Kay A. Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Joan A. Tober
Counsel
—
Respondent
Civano 1 Neighborhood 1 Homeowners Association
Counsel
Diana J. Elston
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
The Administrative Law Judge concluded that the Civano 1 Neighborhood 1 Homeowners Association (HOA) was the prevailing party. The ALJ found that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B) because the specific attorney letter requested was privileged and could be withheld,, and Petitioner's request for additional 'background information' was unreasonably broad and unclarified,.
Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1805(A) as the HOA lawfully withheld privileged documents under A.R.S. § 33-1805(B) and was not required to guess what records were requested due to the vague nature of the demand for 'any and all documentation'.
Key Issues & Findings
HOA violation of requirement to provide association records.
Petitioner alleged the HOA failed to provide all requested documentation, specifically an attorney letter concerning the North Ridge wall, and failed to comply with the 10-business day response period required for record requests.
Orders: The HOA was deemed the prevailing party on rehearing and Petitioner's appeal was dismissed. The HOA acted in compliance with A.R.S. § 33-1805(A) and (B). The requested attorney letter was privileged communication and could be withheld.
Briefing Document: Tober v. Civano 1 Homeowners Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”
The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.
The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.
Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.
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Case Overview
This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).
Case Name
Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.
Case Number
19F-H1918042-REL
Adjudicating Body
Office of Administrative Hearings (OAH)
Administrative Law Judge
Kay A. Abramsohn
Core Issue
Alleged violation of A.R.S. § 33-1805, which governs member access to association records.
Initial Hearing Date
June 5, 2019
Initial Decision Date
July 29, 2019
Rehearing Date
December 11, 2019
Final Decision Date
January 15, 2020
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Key Parties and Individuals
• Petitioner: Joan A. Tober
◦ A homeowner in the Civano 1 Neighborhood since 2001.
◦ Previously worked for the company that developed the land/homes in the association area.
◦ Has served as a past Board member for the HOA.
◦ Served as an alternate member on the Finance Committee in 2018.
◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.
• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)
◦ The governing body for the planned community.
◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.
• Adjudicator: Kay Abramsohn
◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.
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Chronology of the Dispute
Nov 20, 2018
At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.
Nov 26, 2018
Petitioner sends her first email request for a copy of the Letter.
Nov 27, 2018
Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.
Nov 29, 2018
At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
Nov 29, 2018
At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.
Dec 13, 2018
Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”
Dec 26, 2018
Petitioner files her single-issue petition with the Arizona Department of Real Estate.
Jan 15-16, 2019
The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.
June 5, 2019
The initial administrative hearing is held.
July 29, 2019
Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.
Aug 5, 2019
Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”
Aug 23, 2019
The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
Dec 11, 2019
The rehearing is conducted.
Jan 15, 2020
Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.
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Core Dispute and Arguments
Petitioner’s Position (Joan A. Tober)
1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”
2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.
3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).
Respondent’s Position (Civano 1 HOA)
1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).
2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.
3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.
4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.
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Key Findings of Fact and Evidence
The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.
• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”
• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.
• Petitioner’s Request and Failure to Clarify:
◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.
◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”
◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”
◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.
• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.
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Legal Rulings and Conclusions of Law
Initial Decision (July 29, 2019)
• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.
• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”
• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.
Final Decision on Rehearing (January 15, 2020)
• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.
• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”
• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”
• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”
• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”
• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.
Study Guide – 19F-H1918042-REL-RHG
Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association
This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.
1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?
2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?
3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?
4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?
5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?
6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?
7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?
8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?
9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.
10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?
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Answer Key
1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”
2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).
3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.
4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.
5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.
6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.
8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.
9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.
10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.
1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.
2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.
3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.
4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?
5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.
Arizona Department of Real Estate (“the Department”)
The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.
A.R.S. § 33-1805
The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.
Attorney-Client Privilege
A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.
Executive Session
A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.
An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
Office of Administrative Hearings (OAH)
The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.
Petition
The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”
Rehearing
A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”
Respondent
The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
The Letter
The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.
Blog Post – 19F-H1918042-REL-RHG
She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.
Introduction: The Fight for Information
Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.
This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.
1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.
The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”
Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.
The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.
2. Takeaway #2: Asking for “Everything” Can Get You Nothing.
Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.
After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”
In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:
An association is not required to guess what records are being requested.
The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.
3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.
What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.
But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:
Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.
Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.
Conclusion: Strategy Over Sheer Effort
The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.
This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?
Case Participants
Petitioner Side
Joan A. Tober(petitioner) Former Board member; current Finance Committee member
Respondent Side
Diana J. Elston(HOA attorney) Jones, Skelton & Hochuli, P.L.C.
Mr. Mastrosimone(Board President) Civano 1 Neighborhood 1 Homeowners Association Testified at rehearing
Neutral Parties
Kay A. Abramsohn(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
c. serrano(Clerk)
Felicia Del Sol(Clerk)
LDettorre(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
AHansen(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
djones(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
DGardner(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
ncano(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.
Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.
Key Issues & Findings
HOA violation of requirement to provide association records within ten business days.
Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.
Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Analytics Highlights
Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.
Key Issues & Findings
Failure to hold required annual meeting
Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.
Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.
Topics: HOA annual meeting violation, statutory requirement, default judgment
Additional Citations:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.R.S. § 32-2199.05
A.A.C. R2-19-119(B)
A.A.C. R2-19-119(A)
Video Overview
Audio Overview
Decision Documents
18F-H1717036-REL Decision – 586602.pdf
Uploaded 2026-01-23T17:21:12 (65.3 KB)
18F-H1717036-REL Decision – 588549.pdf
Uploaded 2026-01-23T17:21:16 (592.6 KB)
Briefing Doc – 18F-H1717036-REL
Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association
Executive Summary
This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.
The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.
The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.
Case Overview
The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.
Case Detail
Information
Petitioner
Jerry Wheeler
Respondent
Beaver Dam Estates Homeowners Association
Case Number (OAH)
18F-H1717036-REL
Case Number (Dept. of Real Estate)
HO 17-17/036
Petition Filed
June 8, 2017
Hearing Date
September 5, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 13, 2017
Presiding Judge
Suzanne Marwil, Administrative Law Judge (ALJ)
Adopting Authority
Judy Lowe, Commissioner, Arizona Department of Real Estate
Petitioner’s Allegations and Evidence
The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.
• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”
• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.
• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.
Respondent’s Actions and Procedural Failures
The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.
• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.
• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.
• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.
• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.
• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.
Legal Framework and Conclusions of Law
The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.
• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:
• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”
• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”
Final Order and Penalties
The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.
IT IS ORDERED that:
1. The petitioner’s petition is granted.
2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.
3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.
4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.
This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.
Study Guide – 18F-H1717036-REL
Study Guide for Wheeler v. Beaver Dam Estates HOA
Short Answer Quiz
Instructions: Answer the following ten questions based on the provided legal documents. Each answer should be approximately 2-3 sentences.
1. Who were the primary parties in the case Wheeler v. Beaver Dam Estates Homeowners Association, and what were their roles?
2. What was the central allegation made by the Petitioner against the Respondent?
3. According to the Findings of Fact, how long had the Petitioner lived in the community, and why is this duration significant?
4. What specific Arizona Revised Statute (A.R.S.) did the Respondent violate, and what does this statute require?
5. What event involving the Respondent’s president, Randy Hawk, complicated the case proceedings?
6. What was the outcome of the hearing held on September 5, 2017, regarding the Respondent’s attendance?
7. What standard of proof was required in this matter, and which party had the burden of proof?
8. Describe the key components of the Order issued by the Administrative Law Judge.
9. What two monetary penalties were imposed on the Beaver Dam Estates Homeowners Association?
10. According to the Final Order, what steps could an aggrieved party take after the decision was issued?
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Answer Key
1. The primary parties were Jerry Wheeler, the Petitioner, and the Beaver Dam Estates Homeowners Association, the Respondent. As the Petitioner, Mr. Wheeler initiated the legal action by filing a petition, while the Homeowners Association was the entity required to respond to the allegations.
2. The central allegation was that the Respondent had violated state law by failing to hold a meeting of the members’ association for several years. The Petitioner specifically sought to have the association convene a meeting to review financial statements.
3. The Petitioner, Jerry Wheeler, testified that he had moved into the community on April 1, 2014. This duration is significant because he stated that no meeting of the association had been held during his entire tenure, providing a multi-year timeframe for the alleged violation.
4. The Respondent violated A.R.S. § 33-1804(B). This statute mandates that, notwithstanding any provisions in community documents, a meeting of the members’ association must be held at least once each year within the state of Arizona.
5. After responding to the petition and scheduling a future meeting, the Respondent’s president, Randy Hawk, passed away. The Petitioner informed the Tribunal of this event, which created uncertainty about who could serve as the Respondent’s representative in the matter.
6. The Respondent, Beaver Dam Estates Homeowners Association, failed to appear for the hearing on September 5, 2017. After a 20-minute grace period, the Administrative Law Judge proceeded with the hearing in the Respondent’s absence.
7. The standard of proof was a “preponderance of the evidence,” as stated in A.A.C. R2-19-119(A). Pursuant to A.A.C. R2-19-119(B), the Petitioner, Jerry Wheeler, had the burden of proving his case.
8. The Order granted the Petitioner’s petition and mandated that the Respondent hold a meeting on the currently scheduled date of December 28, 2017. It also imposed financial penalties on the Respondent and affirmed that the order was binding on the parties unless a rehearing was granted.
9. The Respondent was ordered to pay the Petitioner’s filing fee required by section 32-2199.01. Additionally, the Respondent was ordered to pay a civil penalty of $250.00 to the planned community hearing office fund.
10. A person aggrieved by the decision could apply for a rehearing by filing a petition with the Commissioner within thirty (30) days. The Final Order is also considered a final administrative action, which a party may appeal by filing a complaint for judicial review.
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Essay Questions
Instructions: The following questions are designed to test a deeper, more comprehensive understanding of the case. Formulate a detailed essay-style response for each.
1. Trace the procedural history of case No. 18F-H1717036-REL from the initial petition filing to the issuance of the Final Order. Discuss the key dates, actions taken by the parties and the Tribunal, and the legal significance of each step.
2. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Explain how the “Findings of Fact” supported the “Conclusions of Law,” with a specific focus on the violation of A.R.S. § 33-1804(B) and the application of the “preponderance of the evidence” standard.
3. Discuss the role and authority of the Office of Administrative Hearings and the Department of Real Estate in this dispute. How do the statutes cited (e.g., A.R.S. § 32-2199 et seq.) empower these bodies to adjudicate disputes and enforce compliance among homeowners associations?
4. Evaluate the impact of the Respondent’s failure to appear at the September 5, 2017 hearing. How did this absence affect the proceedings and the evidence presented, and in what way did it likely influence the final outcome?
5. Examine the remedies and enforcement mechanisms outlined in the Final Order. Discuss the specific purpose of ordering a meeting, reimbursing the filing fee, and imposing a civil penalty, and explain the legal process for appealing the decision.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, Suzanne Marwil served as the ALJ.
A.R.S. (Arizona Revised Statutes)
The codified collection of laws for the state of Arizona. The case frequently cites statutes within Title 32 and Title 33, such as A.R.S. § 33-1804(B), which governs HOA meetings.
A.A.C. (Arizona Administrative Code)
The official compilation of rules and regulations of Arizona state agencies. A.A.C. R2-19-119 established the burden and standard of proof for the hearing.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this matter, the burden of proof was on the Petitioner.
Civil Penalty
A monetary fine imposed by a government agency for a violation of a law or regulation. The Respondent was ordered to pay a $250.00 civil penalty.
Conclusions of Law
The section of a legal decision that applies the relevant laws and legal principles to the established facts of the case to reach a judgment.
Final Administrative Action
A final decision by an administrative agency that is legally binding and can be appealed to a court through a process of judicial review.
Findings of Fact
The section of a legal decision that details the factual circumstances of the case as determined by the judge based on the evidence presented.
A formal directive from a judge or administrative body that requires a party to perform a specific act or refrain from doing so. The final decision in this case included an Order for the Respondent to hold a meeting and pay penalties.
Petitioner
The party who initiates a legal proceeding by filing a petition. In this case, the Petitioner was Jerry Wheeler.
Preponderance of the Evidence
The standard of proof in most civil cases, which requires that the evidence presented by one side is more convincing and likely to be true than the evidence of the opposing side.
Rehearing
A request to have a case heard again by the same administrative body or court, typically based on new evidence or an error in the original proceeding. A party had 30 days to petition for a rehearing.
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Beaver Dam Estates Homeowners Association.
Tribunal
A general term for a body, including a court or administrative hearing office, that has the authority to judge or determine claims and disputes.
Blog Post – 18F-H1717036-REL
4 Key Lessons from One Homeowner’s Winning Fight Against His HOA
Introduction: When Your HOA Becomes Dysfunctional
For many homeowners, a Homeowners Association (HOA) is a background presence, collecting dues and ensuring community standards. But what happens when the HOA itself fails in its duties? When legally required meetings stop, financial transparency disappears, and the leadership becomes unresponsive, residents can feel powerless. It’s a common frustration that leaves homeowners wondering what recourse they have when the very organization meant to maintain order violates its own governing laws.
This was the exact situation faced by Jerry Wheeler, a resident of Beaver Dam Estates in Arizona. After years of his HOA failing to hold its legally required annual meeting, he decided he had enough. Instead of letting his frustration simmer, he took formal action, setting in motion a legal process that offers powerful lessons for any homeowner living in a planned community. His story is a clear example of how one determined individual can hold an association accountable.
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1. One Determined Homeowner Can Hold an Entire HOA Accountable
It can feel daunting to challenge an organization, but Jerry Wheeler’s case proves that a single person can be the catalyst for change. The core of his dispute extended beyond procedure into a fundamental issue of financial transparency. On June 8, 2017, Wheeler filed a petition because since moving in on April 1, 2014, no annual meeting had been held. His stated goal was clear: he wanted the HOA to convene a meeting to “review Respondent’s financial statements with the homeowners.”
Initially, the HOA president, Randy Hawk, responded to the petition by agreeing to hold a meeting. However, the execution faltered. A meeting scheduled for July 18, 2017, failed when only about ten people attended. Hawk then rescheduled for December 28, 2017. While Wheeler initiated the petition alone, he strengthened his case by presenting numerous written statements from other homeowners confirming no annual meetings had been held for several years. This demonstrates that one person’s courageous action, aimed at securing accountability and supported by the community, can successfully trigger the legal mechanisms designed to protect homeowners’ rights.
2. Annual Meetings Aren’t Just a Suggestion—They’re the Law
The core of Jerry Wheeler’s complaint wasn’t based on a simple grievance; it was rooted in a specific violation of Arizona state law. The Administrative Law Judge’s decision found that the Beaver Dam Estates HOA was in direct violation of a statute requiring annual meetings. This law is not a guideline or a best practice—it is a legal mandate.
For any homeowner in Arizona, the relevant section of the law is crystal clear:
A.R.S. § 33-1804(B)
Notwithstanding any provision in the community documents, all meetings of the members’ association and the board shall be held in this state. A meeting of the members’ association shall be held at least once each year…
This statute is a cornerstone of transparency and accountability for planned communities. It ensures that residents have a regular, guaranteed opportunity to hear from the board, review financials, elect new leadership, and have their voices heard. Understanding that this is a legal requirement—not just a courtesy—is critical knowledge for any homeowner.
3. Ignoring the Process Has Financial Consequences
The Beaver Dam Estates HOA’s strategy of inaction ultimately backfired, resulting in financial penalties. The association’s failure to appear at its own hearing on September 5, 2017, meant that Wheeler’s evidence was uncontested, leading directly to a default judgment and the resulting financial penalties. The judge’s final order wasn’t just a request to do better; it was a binding decision with specific consequences.
Because the judge granted the petitioner’s petition, the HOA was ordered to take three specific actions:
• Hold the legally required meeting as scheduled on December 28, 2017.
• Pay the Petitioner (Jerry Wheeler) back for his filing fee.
• Pay a civil penalty of $250.00 to the planned community hearing office fund.
This outcome makes it clear that avoiding legal and administrative responsibilities is not a viable strategy. The process is designed to proceed with or without the respondent’s participation, and ignoring it leads directly to mandated actions and financial penalties.
4. The System Can Work, Even Under Strange Circumstances
The proceedings in this case were complicated by unusual and unfortunate events, yet the legal framework proved resilient. After attempting to schedule the required meetings, the HOA’s president, Randy Hawk, passed away. The tribunal ordered the association to name a new representative, but it failed to do so. Compounding the issue, no one from the HOA showed up for the scheduled hearing.
Despite these significant obstacles—the death of the board’s president and the association’s complete failure to participate—the process did not grind to a halt. The Administrative Law Judge was able to conduct the hearing, review the uncontested evidence presented by Jerry Wheeler, make official Findings of Fact, and issue a final, binding order. This remarkable persistence shows that the administrative system is robust and designed to deliver a resolution, ensuring that a petitioner’s rights are upheld even when a respondent organization is in disarray.
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Conclusion: Know Your Rights
The case of Jerry Wheeler vs. Beaver Dam Estates is a powerful reminder that community living is governed by rules that apply to everyone—including the association itself. An HOA cannot simply cease to function or ignore its legal obligations without consequence. The systems in place, from state statutes to administrative hearings, are designed to provide a path for homeowners to seek and achieve recourse.
This case serves as an empowering example of how knowledge and determination can lead to accountability. It underscores the importance of understanding the specific laws that govern your community association. This case was in Arizona, but it raises a universal question: Do you know the specific laws that govern your own HOA, and is your board in compliance?
Case Participants
Petitioner Side
Jerry Wheeler(petitioner)
Respondent Side
Randy Hawk(president) Beaver Dam Estates Homeowners Association
Neutral Parties
Suzanne Marwil(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.
Key Issues & Findings
Failure to hold required annual meeting
Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.
Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.
Topics: HOA annual meeting violation, statutory requirement, default judgment
Additional Citations:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.R.S. § 32-2199.05
A.A.C. R2-19-119(B)
A.A.C. R2-19-119(A)
Audio Overview
Decision Documents
18F-H1717036-REL Decision – 586602.pdf
Uploaded 2025-10-08T06:58:28 (65.3 KB)
18F-H1717036-REL Decision – 588549.pdf
Uploaded 2025-10-08T06:58:28 (592.6 KB)
Briefing Doc – 18F-H1717036-REL
Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association
Executive Summary
This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.
The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.
The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.
Case Overview
The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.
Case Detail
Information
Petitioner
Jerry Wheeler
Respondent
Beaver Dam Estates Homeowners Association
Case Number (OAH)
18F-H1717036-REL
Case Number (Dept. of Real Estate)
HO 17-17/036
Petition Filed
June 8, 2017
Hearing Date
September 5, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 13, 2017
Presiding Judge
Suzanne Marwil, Administrative Law Judge (ALJ)
Adopting Authority
Judy Lowe, Commissioner, Arizona Department of Real Estate
Petitioner’s Allegations and Evidence
The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.
• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”
• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.
• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.
Respondent’s Actions and Procedural Failures
The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.
• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.
• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.
• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.
• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.
• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.
Legal Framework and Conclusions of Law
The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.
• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:
• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”
• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”
Final Order and Penalties
The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.
IT IS ORDERED that:
1. The petitioner’s petition is granted.
2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.
3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.
4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.
This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.
The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.
Key Issues & Findings
Failure to hold required annual meeting
Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.
Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.
Topics: HOA annual meeting violation, statutory requirement, default judgment
Additional Citations:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.R.S. § 32-2199.05
A.A.C. R2-19-119(B)
A.A.C. R2-19-119(A)
Audio Overview
Decision Documents
18F-H1717036-REL Decision – 586602.pdf
Uploaded 2025-10-08T07:02:44 (65.3 KB)
18F-H1717036-REL Decision – 588549.pdf
Uploaded 2025-10-08T07:02:44 (592.6 KB)
Briefing Doc – 18F-H1717036-REL
Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association
Executive Summary
This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.
The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.
The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.
Case Overview
The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.
Case Detail
Information
Petitioner
Jerry Wheeler
Respondent
Beaver Dam Estates Homeowners Association
Case Number (OAH)
18F-H1717036-REL
Case Number (Dept. of Real Estate)
HO 17-17/036
Petition Filed
June 8, 2017
Hearing Date
September 5, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 13, 2017
Presiding Judge
Suzanne Marwil, Administrative Law Judge (ALJ)
Adopting Authority
Judy Lowe, Commissioner, Arizona Department of Real Estate
Petitioner’s Allegations and Evidence
The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.
• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”
• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.
• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.
Respondent’s Actions and Procedural Failures
The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.
• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.
• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.
• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.
• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.
• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.
Legal Framework and Conclusions of Law
The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.
• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:
• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”
• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”
Final Order and Penalties
The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.
IT IS ORDERED that:
1. The petitioner’s petition is granted.
2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.
3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.
4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.
This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.
The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.
Key Issues & Findings
Failure to hold required annual meeting
Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.
Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.
Topics: HOA annual meeting violation, statutory requirement, default judgment
Additional Citations:
A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.R.S. § 32-2199.05
A.A.C. R2-19-119(B)
A.A.C. R2-19-119(A)
Video Overview
Audio Overview
Decision Documents
18F-H1717036-REL Decision – 586602.pdf
Uploaded 2025-10-09T03:31:53 (65.3 KB)
18F-H1717036-REL Decision – 588549.pdf
Uploaded 2025-10-09T03:31:53 (592.6 KB)
Briefing Doc – 18F-H1717036-REL
Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association
Executive Summary
This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.
The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.
The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.
Case Overview
The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.
Case Detail
Information
Petitioner
Jerry Wheeler
Respondent
Beaver Dam Estates Homeowners Association
Case Number (OAH)
18F-H1717036-REL
Case Number (Dept. of Real Estate)
HO 17-17/036
Petition Filed
June 8, 2017
Hearing Date
September 5, 2017
ALJ Decision Date
September 6, 2017
Final Order Date
September 13, 2017
Presiding Judge
Suzanne Marwil, Administrative Law Judge (ALJ)
Adopting Authority
Judy Lowe, Commissioner, Arizona Department of Real Estate
Petitioner’s Allegations and Evidence
The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.
• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”
• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.
• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.
Respondent’s Actions and Procedural Failures
The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.
• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.
• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.
• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.
• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.
• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.
Legal Framework and Conclusions of Law
The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.
• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:
• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”
• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”
Final Order and Penalties
The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.
IT IS ORDERED that:
1. The petitioner’s petition is granted.
2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.
3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.
4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.
This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.
Study Guide – 18F-H1717036-REL
Study Guide for Wheeler v. Beaver Dam Estates HOA
Short Answer Quiz
Instructions: Answer the following ten questions based on the provided legal documents. Each answer should be approximately 2-3 sentences.
1. Who were the primary parties in the case Wheeler v. Beaver Dam Estates Homeowners Association, and what were their roles?
2. What was the central allegation made by the Petitioner against the Respondent?
3. According to the Findings of Fact, how long had the Petitioner lived in the community, and why is this duration significant?
4. What specific Arizona Revised Statute (A.R.S.) did the Respondent violate, and what does this statute require?
5. What event involving the Respondent’s president, Randy Hawk, complicated the case proceedings?
6. What was the outcome of the hearing held on September 5, 2017, regarding the Respondent’s attendance?
7. What standard of proof was required in this matter, and which party had the burden of proof?
8. Describe the key components of the Order issued by the Administrative Law Judge.
9. What two monetary penalties were imposed on the Beaver Dam Estates Homeowners Association?
10. According to the Final Order, what steps could an aggrieved party take after the decision was issued?
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Answer Key
1. The primary parties were Jerry Wheeler, the Petitioner, and the Beaver Dam Estates Homeowners Association, the Respondent. As the Petitioner, Mr. Wheeler initiated the legal action by filing a petition, while the Homeowners Association was the entity required to respond to the allegations.
2. The central allegation was that the Respondent had violated state law by failing to hold a meeting of the members’ association for several years. The Petitioner specifically sought to have the association convene a meeting to review financial statements.
3. The Petitioner, Jerry Wheeler, testified that he had moved into the community on April 1, 2014. This duration is significant because he stated that no meeting of the association had been held during his entire tenure, providing a multi-year timeframe for the alleged violation.
4. The Respondent violated A.R.S. § 33-1804(B). This statute mandates that, notwithstanding any provisions in community documents, a meeting of the members’ association must be held at least once each year within the state of Arizona.
5. After responding to the petition and scheduling a future meeting, the Respondent’s president, Randy Hawk, passed away. The Petitioner informed the Tribunal of this event, which created uncertainty about who could serve as the Respondent’s representative in the matter.
6. The Respondent, Beaver Dam Estates Homeowners Association, failed to appear for the hearing on September 5, 2017. After a 20-minute grace period, the Administrative Law Judge proceeded with the hearing in the Respondent’s absence.
7. The standard of proof was a “preponderance of the evidence,” as stated in A.A.C. R2-19-119(A). Pursuant to A.A.C. R2-19-119(B), the Petitioner, Jerry Wheeler, had the burden of proving his case.
8. The Order granted the Petitioner’s petition and mandated that the Respondent hold a meeting on the currently scheduled date of December 28, 2017. It also imposed financial penalties on the Respondent and affirmed that the order was binding on the parties unless a rehearing was granted.
9. The Respondent was ordered to pay the Petitioner’s filing fee required by section 32-2199.01. Additionally, the Respondent was ordered to pay a civil penalty of $250.00 to the planned community hearing office fund.
10. A person aggrieved by the decision could apply for a rehearing by filing a petition with the Commissioner within thirty (30) days. The Final Order is also considered a final administrative action, which a party may appeal by filing a complaint for judicial review.
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Essay Questions
Instructions: The following questions are designed to test a deeper, more comprehensive understanding of the case. Formulate a detailed essay-style response for each.
1. Trace the procedural history of case No. 18F-H1717036-REL from the initial petition filing to the issuance of the Final Order. Discuss the key dates, actions taken by the parties and the Tribunal, and the legal significance of each step.
2. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Explain how the “Findings of Fact” supported the “Conclusions of Law,” with a specific focus on the violation of A.R.S. § 33-1804(B) and the application of the “preponderance of the evidence” standard.
3. Discuss the role and authority of the Office of Administrative Hearings and the Department of Real Estate in this dispute. How do the statutes cited (e.g., A.R.S. § 32-2199 et seq.) empower these bodies to adjudicate disputes and enforce compliance among homeowners associations?
4. Evaluate the impact of the Respondent’s failure to appear at the September 5, 2017 hearing. How did this absence affect the proceedings and the evidence presented, and in what way did it likely influence the final outcome?
5. Examine the remedies and enforcement mechanisms outlined in the Final Order. Discuss the specific purpose of ordering a meeting, reimbursing the filing fee, and imposing a civil penalty, and explain the legal process for appealing the decision.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, Suzanne Marwil served as the ALJ.
A.R.S. (Arizona Revised Statutes)
The codified collection of laws for the state of Arizona. The case frequently cites statutes within Title 32 and Title 33, such as A.R.S. § 33-1804(B), which governs HOA meetings.
A.A.C. (Arizona Administrative Code)
The official compilation of rules and regulations of Arizona state agencies. A.A.C. R2-19-119 established the burden and standard of proof for the hearing.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this matter, the burden of proof was on the Petitioner.
Civil Penalty
A monetary fine imposed by a government agency for a violation of a law or regulation. The Respondent was ordered to pay a $250.00 civil penalty.
Conclusions of Law
The section of a legal decision that applies the relevant laws and legal principles to the established facts of the case to reach a judgment.
Final Administrative Action
A final decision by an administrative agency that is legally binding and can be appealed to a court through a process of judicial review.
Findings of Fact
The section of a legal decision that details the factual circumstances of the case as determined by the judge based on the evidence presented.
A formal directive from a judge or administrative body that requires a party to perform a specific act or refrain from doing so. The final decision in this case included an Order for the Respondent to hold a meeting and pay penalties.
Petitioner
The party who initiates a legal proceeding by filing a petition. In this case, the Petitioner was Jerry Wheeler.
Preponderance of the Evidence
The standard of proof in most civil cases, which requires that the evidence presented by one side is more convincing and likely to be true than the evidence of the opposing side.
Rehearing
A request to have a case heard again by the same administrative body or court, typically based on new evidence or an error in the original proceeding. A party had 30 days to petition for a rehearing.
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Beaver Dam Estates Homeowners Association.
Tribunal
A general term for a body, including a court or administrative hearing office, that has the authority to judge or determine claims and disputes.
Blog Post – 18F-H1717036-REL
4 Key Lessons from One Homeowner’s Winning Fight Against His HOA
Introduction: When Your HOA Becomes Dysfunctional
For many homeowners, a Homeowners Association (HOA) is a background presence, collecting dues and ensuring community standards. But what happens when the HOA itself fails in its duties? When legally required meetings stop, financial transparency disappears, and the leadership becomes unresponsive, residents can feel powerless. It’s a common frustration that leaves homeowners wondering what recourse they have when the very organization meant to maintain order violates its own governing laws.
This was the exact situation faced by Jerry Wheeler, a resident of Beaver Dam Estates in Arizona. After years of his HOA failing to hold its legally required annual meeting, he decided he had enough. Instead of letting his frustration simmer, he took formal action, setting in motion a legal process that offers powerful lessons for any homeowner living in a planned community. His story is a clear example of how one determined individual can hold an association accountable.
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1. One Determined Homeowner Can Hold an Entire HOA Accountable
It can feel daunting to challenge an organization, but Jerry Wheeler’s case proves that a single person can be the catalyst for change. The core of his dispute extended beyond procedure into a fundamental issue of financial transparency. On June 8, 2017, Wheeler filed a petition because since moving in on April 1, 2014, no annual meeting had been held. His stated goal was clear: he wanted the HOA to convene a meeting to “review Respondent’s financial statements with the homeowners.”
Initially, the HOA president, Randy Hawk, responded to the petition by agreeing to hold a meeting. However, the execution faltered. A meeting scheduled for July 18, 2017, failed when only about ten people attended. Hawk then rescheduled for December 28, 2017. While Wheeler initiated the petition alone, he strengthened his case by presenting numerous written statements from other homeowners confirming no annual meetings had been held for several years. This demonstrates that one person’s courageous action, aimed at securing accountability and supported by the community, can successfully trigger the legal mechanisms designed to protect homeowners’ rights.
2. Annual Meetings Aren’t Just a Suggestion—They’re the Law
The core of Jerry Wheeler’s complaint wasn’t based on a simple grievance; it was rooted in a specific violation of Arizona state law. The Administrative Law Judge’s decision found that the Beaver Dam Estates HOA was in direct violation of a statute requiring annual meetings. This law is not a guideline or a best practice—it is a legal mandate.
For any homeowner in Arizona, the relevant section of the law is crystal clear:
A.R.S. § 33-1804(B)
Notwithstanding any provision in the community documents, all meetings of the members’ association and the board shall be held in this state. A meeting of the members’ association shall be held at least once each year…
This statute is a cornerstone of transparency and accountability for planned communities. It ensures that residents have a regular, guaranteed opportunity to hear from the board, review financials, elect new leadership, and have their voices heard. Understanding that this is a legal requirement—not just a courtesy—is critical knowledge for any homeowner.
3. Ignoring the Process Has Financial Consequences
The Beaver Dam Estates HOA’s strategy of inaction ultimately backfired, resulting in financial penalties. The association’s failure to appear at its own hearing on September 5, 2017, meant that Wheeler’s evidence was uncontested, leading directly to a default judgment and the resulting financial penalties. The judge’s final order wasn’t just a request to do better; it was a binding decision with specific consequences.
Because the judge granted the petitioner’s petition, the HOA was ordered to take three specific actions:
• Hold the legally required meeting as scheduled on December 28, 2017.
• Pay the Petitioner (Jerry Wheeler) back for his filing fee.
• Pay a civil penalty of $250.00 to the planned community hearing office fund.
This outcome makes it clear that avoiding legal and administrative responsibilities is not a viable strategy. The process is designed to proceed with or without the respondent’s participation, and ignoring it leads directly to mandated actions and financial penalties.
4. The System Can Work, Even Under Strange Circumstances
The proceedings in this case were complicated by unusual and unfortunate events, yet the legal framework proved resilient. After attempting to schedule the required meetings, the HOA’s president, Randy Hawk, passed away. The tribunal ordered the association to name a new representative, but it failed to do so. Compounding the issue, no one from the HOA showed up for the scheduled hearing.
Despite these significant obstacles—the death of the board’s president and the association’s complete failure to participate—the process did not grind to a halt. The Administrative Law Judge was able to conduct the hearing, review the uncontested evidence presented by Jerry Wheeler, make official Findings of Fact, and issue a final, binding order. This remarkable persistence shows that the administrative system is robust and designed to deliver a resolution, ensuring that a petitioner’s rights are upheld even when a respondent organization is in disarray.
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Conclusion: Know Your Rights
The case of Jerry Wheeler vs. Beaver Dam Estates is a powerful reminder that community living is governed by rules that apply to everyone—including the association itself. An HOA cannot simply cease to function or ignore its legal obligations without consequence. The systems in place, from state statutes to administrative hearings, are designed to provide a path for homeowners to seek and achieve recourse.
This case serves as an empowering example of how knowledge and determination can lead to accountability. It underscores the importance of understanding the specific laws that govern your community association. This case was in Arizona, but it raises a universal question: Do you know the specific laws that govern your own HOA, and is your board in compliance?
Case Participants
Petitioner Side
Jerry Wheeler(petitioner)
Respondent Side
Randy Hawk(president) Beaver Dam Estates Homeowners Association
Neutral Parties
Suzanne Marwil(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
