Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020051-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-01-08
Administrative Law Judge
Kay Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Debra K. Morin
Counsel
—
Respondent
Solera Chandler Homeowners' Association, Inc.
Counsel
Lydia A. Perce Linsmeier, Esq.
Alleged Violations
CC&R Article 7, Section 7.1
Outcome Summary
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
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
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Briefing Document: Morin v. Solera Chandler Homeowners’ Association, Inc.
Executive Summary
This briefing document synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin (Petitioner), and the Solera Chandler Homeowners’ Association, Inc. (Respondent/Solera). The case centered on the Petitioner’s allegations that the HOA failed to maintain common areas to the standards required by its own governing documents.
The Petitioner filed a two-issue petition, with the primary surviving issue being that Solera, its Board of Directors, and its management company were not maintaining the “Areas of Association Responsibility” (AREAS) in good condition and repair at all times. The Petitioner’s core argument was that the same stringent maintenance standard applied to individual homeowners must be equally applied to the HOA. She provided extensive photographic evidence of issues such as weeds, deteriorating sidewalks, street disrepair, and exposed wiring.
The HOA defended its actions by citing its established procedures for maintenance, including a committee review process, a scheduled Reserves plan, and the use of licensed contractors. Critically, Solera’s defense rested on provisions within its Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which grant the Board of Directors the exclusive right to interpret the CC&Rs and designate it as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
Following an initial hearing, the Administrative Law Judge (ALJ) dismissed the petition, finding that the Petitioner had not met the burden of proof. The ALJ ruled that under the governing documents, the HOA Board has sole discretion in maintenance matters, and the Petitioner’s subjective opinions on how and when work should be done were not relevant to determining a violation. The Petitioner was granted a rehearing, where she presented additional evidence and arguments. However, the ALJ upheld the original decision, reaffirming that the CC&Rs grant the Board authority superseding that of an individual homeowner in determining appropriate maintenance. The petition was dismissed, and Solera was deemed the prevailing party in both instances.
Case Overview
Case Name
Debra K. Morin, Petitioner, v. Solera Chandler Homeowners’ Association, Inc., Respondent.
Case Number
No. 20F-H2020051-REL / 20F-H2020051-REL-RHG
Tribunal
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge (ALJ) Kay Abramsohn
Petitioner
Debra K. Morin (represented herself)
Respondent
Solera Chandler Homeowners’ Association, Inc. (represented by Lydia Linsmeier, Esq.)
Petition Filed
On or about March 12, 2020
Initial Hearing
May 20, 2020 and July 15, 2020
Initial Decision
August 19, 2020 (Petition Dismissed)
Rehearing Hearing
December 16, 2020
Rehearing Decision
January 8, 2021 (Original Dismissal Upheld)
Petitioner’s Allegations and Arguments
The Petitioner, a resident of Solera for four years, filed a petition with the Arizona Department of Real Estate alleging violations of Solera’s Articles of Incorporation, By-Laws, CC&Rs, and Rules and Regulations (R&Rs). The allegations were organized into two primary issues.
Issue #1: Lack of Direct Communication
• Allegation: Solera, its Board, and its management company, Premier Management Company (Premier), “do not allow direct communication from homeowners.”
• Requested Relief: The Petitioner sought to have this “policy” rescinded.
• Outcome: This issue was connected to allegations of ethics violations based on the Board’s Code of Ethics, which the Tribunal determined was a non-governing document outside its jurisdiction. As a result, the Petitioner withdrew Issue #1 during the May 20, 2020 hearing.
Issue #2: Failure to Maintain Common Areas
• Allegation: Solera, its Board, and Premier “are not providing oversight to the General Manager in maintaining all Areas of Association Responsibility … in good condition and repair at all times.” Specific complaints included “uncontrolled weeds” and poor maintenance of the Community Center and other AREAS.
• Core Argument: The Petitioner’s central thesis was that the HOA must be held to the identical maintenance standard it imposes on homeowners. She argued that just as homeowners are required to maintain their lots “in a weed free condition 365 days a year,” the HOA has no discretion for delays in addressing maintenance issues in common areas.
• Requested Relief:
1. A public admission by the Board of its failures to follow governing documents.
2. The establishment of “direct communication rules” for reporting management deficiencies.
3. Compliance monitoring by the “Real Estate Board.”
Evidence and Specific Complaints
The Petitioner presented over 80 photographs at the initial hearing (growing to 310 by the rehearing) and multiple emails to document a wide range of perceived maintenance failures.
Maintenance Issue
Petitioner’s Specific Complaint
Uncontrolled weeds in granite rock locations throughout the community.
Community Center
Poor exterior condition.
Streets & Curbs
Deteriorating asphalt, cracking, and issues with sealing.
Sidewalks
Trip hazards and disintegrating cool-decking.
Drainage
Clogged storm drains and water pooling issues.
Landscaping
Exposed wiring for lights, exposed drip irrigation lines, and unremoved tree stumps.
Disrepair of boundary walls.
A key piece of evidence was a February 21, 2020 email exchange regarding weeds, which the ALJ found “representative of the overall situation.”
Petitioner’s Complaint: “This is NOT being done and our HOA looks disgusting with the continued presence of unchecked weeds inside and outside our community! No excuses, you cannot hold homeowners to a higher standard than you are willing to do for our HOA. You are on notice to rectify this violation immediately!”
General Manager’s Response: “…the landscape crew hula hoes and sprays daily, based on routine maintenance cycle and location of site work… Considering that we have 1,143,550 square feet of granite and 270,933 square feet of turf, the maintenance of weeds is a continuous and ongoing concern that is constantly being addressed.”
Petitioner’s Rebuttal: “YOUR response is just more excuses!… It appears that since it is not your personal money being spent, it is ok to have substandard work performance.”
Respondent’s Position and Defense
Solera HOA moved to dismiss the petition, arguing the issues were outside the Department’s jurisdiction and the requested relief could not be granted. While the motion was effectively denied after Issue #1 was withdrawn, Solera’s core defense remained consistent throughout the proceedings.
• Central Legal Argument: Solera contended that its Board of Directors is vested with the ultimate authority on maintenance matters by the community’s governing documents. It repeatedly cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation Authority: The HOA also pointed to CC&R Article 9, Section 9.5, which gives it the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with such interpretations being “final, conclusive and binding.”
• Operational Defense: Denise Frazier, Solera’s on-site general manager, testified that the HOA has established processes for maintenance.
◦ Committee Structure: A Building and Grounds Committee (B&G) reviews projects, which are then assessed by a Finance Committee before going to the Board for approval.
◦ Reserves Schedule: Solera maintains a Reserves schedule for large projects, such as sidewalk repairs (every 4 years), street repairs (every 8 years), and sealing cracks (every 2 years).
◦ Vendor Management: The Board relies on licensed contractors for specialized work, including landscaping, tree trimming (by two different companies for different heights), and stump grinding.
• Response to Specific Issues:
◦ Weeds: Frazier attributed the prevalence of weeds in early 2020 to an unusual amount of rain, creating “optimal” conditions. She noted that Solera had instructed landscapers to use dye in the weed spray to demonstrate to residents that spraying was occurring.
◦ Sidewalks: Frazier acknowledged a several-month delay in repairing a specific sidewalk area but stated that warning cones had been placed in the interim. Solera uses a ¼ inch standard for review but the City of Chandler’s ½ inch trip-hazard guideline for repairs.
◦ Exposed Wiring: This was explained as a temporary measure by landscapers to avoid cutting electrical and irrigation lines during tree and granite replacement projects.
Rulings and Legal Conclusions
The Administrative Law Judge dismissed the Petitioner’s case after the initial hearing and reaffirmed this dismissal after a rehearing, finding that the Petitioner failed to meet her legal burden of proof.
Key Legal Principles Applied
• Burden of Proof: The ALJ established that the Petitioner “bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions.”
• Supremacy of Governing Documents: The case was decided on the interpretation of the HOA’s CC&Rs, which function as the binding contract between the association and its members.
• Board’s Discretionary Authority: The central and decisive legal conclusion was that the HOA’s governing documents explicitly grant the Board superior authority over maintenance decisions.
◦ CC&R Article 7, Section 7.1 (“sole judge”) was interpreted to mean that only Solera is charged with determining when and how to perform maintenance, repair, and replacement in common areas.
◦ The ALJ concluded this provision “lifts the Board’s authority above that of a homeowner.” The Petitioner failed to provide legal support for her argument that the same maintenance standard must be applied to the Board as is applied to homeowners.
• Jurisdictional Limits: The Tribunal’s role is limited to adjudicating alleged violations of governing documents or statutes. The ALJ noted that a “homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
Final Order
The ALJ concluded that Solera was in compliance with its governing documents, including the critical CC&R Article 7, Section 7.1. The Petitioner’s subjective opinions about the timeliness or quality of repairs were deemed irrelevant in the face of the Board’s contractual authority to be the “sole judge.”
Initial Order (August 19, 2020): “IT IS ORDERED Petitioner’s Petition is dismissed and Solera is deemed the prevailing party.”
Rehearing Order (January 8, 2021): “IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.” The order was declared binding on the parties.
Study Guide – 20F-H2020051-REL-RHG
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in the Administrative Law Judge Decision of August 19, 2020, and the subsequent Rehearing Decision of January 8, 2021.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What were the two main issues the petitioner, Debra K. Morin, raised in her initial petition filed on March 12, 2020?
3. Why was the petitioner’s first issue, regarding direct communication, withdrawn during the initial hearing?
4. What was the petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. According to the CC&Rs, what specific authority does the Solera Board have regarding maintenance, which formed the core of its defense?
6. What type of evidence did the petitioner primarily use to document her claims of poor maintenance in the Areas of Association Responsibility (AREAS)?
7. Who is Denise Frazier, and what role did she play in the proceedings?
8. What was the Administrative Law Judge’s final decision in the initial hearing on August 19, 2020?
9. On what grounds did the Commissioner of the Arizona Department of Real Estate grant the petitioner’s request for a rehearing?
10. What was the final outcome of the case after the rehearing decision was issued on January 8, 2021?
Answer Key
1. The primary parties were Debra K. Morin, the Petitioner and a homeowner, and the Solera Chandler Homeowners’ Association, Inc. (Solera), the Respondent. The case was heard by Administrative Law Judge Kay Abramsohn, and Solera was represented by Premier Management Company and its on-site general manager.
2. The petitioner’s Issue #1 alleged that Solera, its Board, and its management company “do not allow direct communication from homeowners.” Issue #2 alleged they were not providing oversight to the General Manager in maintaining all Areas of Association Responsibility in good condition and repair at all times.
3. The petitioner withdrew Issue #1 after it was determined that the Tribunal’s jurisdiction does not include interpreting or applying non-governing documents. Her complaint was based on the Solera Code of Ethics, which the Tribunal could not consider.
4. The petitioner argued that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that if homeowners are required by the governing documents to maintain their lots “in good condition and repair at all times,” then the HOA must be held to the identical standard for common areas (AREAS).
5. Solera’s defense centered on CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Additionally, CC&R Article 9, Section 9.5 gives Solera the exclusive right to construe and interpret the CC&Rs.
6. The petitioner presented a large volume of photographic evidence, including over eighty photos for the initial hearing and more for the rehearing. These photographs were intended to document weeds, issues with sidewalks, exposed wiring, storm drains, and other maintenance problems in the common areas.
7. Denise Frazier is the on-site general manager for Solera and an employee of Premier Management Company. She testified on behalf of Solera regarding its maintenance schedules, procedures, reserve studies, and responses to the specific issues raised by the petitioner.
8. In the initial hearing, the Administrative Law Judge dismissed the petitioner’s petition and deemed Solera the prevailing party. The judge concluded that the petitioner had not demonstrated a violation of the governing documents, as the CC&Rs grant the Board sole judgment on maintenance matters.
9. The request for a rehearing was granted because the petitioner claimed there were irregularities in the proceedings, misconduct by the prevailing party, and that the decision was arbitrary, capricious, an abuse of discretion, and not supported by the evidence or contrary to law.
10. The rehearing affirmed the original decision. The Administrative Law Judge again concluded that the petitioner failed to sustain her burden of proof and that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1. The appeal was dismissed, and Solera was again named the prevailing party.
Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the central legal conflict in this case by contrasting the petitioner’s interpretation of CC&R Article 7, Section 7.2 with the respondent’s defense based on CC&R Article 7, Section 7.1 and Article 9, Section 9.5. How did the Administrative Law Judge resolve this interpretive dispute?
2. Discuss the concept of jurisdiction as it applied to this case. Explain why certain arguments and evidence presented by the petitioner—such as the Board’s Code of Ethics, Premier Management Company standards, and City of Chandler ordinances—were deemed outside the Tribunal’s authority to consider.
3. Evaluate the petitioner’s strategy and use of evidence. Discuss the strengths and weaknesses of relying heavily on photographic evidence and detailed email complaints. Why did this “enormity” of evidence ultimately fail to meet the “preponderance of the evidence” standard?
4. Explain the significance of the phrase “sole judge” in CC&R Article 7, Section 7.1. How does this clause grant discretionary authority to the HOA Board, and how did it function as the key element in defeating the petitioner’s claim?
5. Trace the procedural history of the case, from the initial Petition and Motion to Dismiss through the original hearing, the Decision, the Rehearing Request, and the final Rehearing Decision. Identify the key rulings and turning points that determined the ultimate outcome.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge presiding over the administrative hearing at the Arizona Office of Administrative Hearings. In this case, Judge Kay Abramsohn.
AREAS (Areas of Association Responsibility)
The common areas within the Solera development that the Homeowners’ Association is responsible for managing, maintaining, repairing, and replacing.
By-Laws
One of the governing documents for the Solera Chandler Homeowners’ Association.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera development, specifically the “Solera Declaration of Covenants, Conditions, and Restrictions for Springfield Lakes.” It outlines the rights and responsibilities of the homeowners and the association.
Denise Frazier
The on-site general manager for Solera, employed by Premier Management Company, who testified on behalf of the association regarding its maintenance operations.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by Solera asking the Department of Real Estate to dismiss the petition on the grounds that the issues were outside the Department’s jurisdiction and the requested relief could not be granted.
Petitioner
The party who filed the petition initiating the legal action. In this case, Debra K. Morin, a homeowner in Solera.
Preponderance of the evidence
The burden of proof in this administrative proceeding. It is defined as proof that convinces the trier of fact that a contention is more probably true than not.
Premier Management Company
The management company hired by Solera to handle day-to-day operations of the community.
Project Documents
The set of governing documents for the community, defined as the CC&Rs, any supplemental declarations, the By-Laws, the R&Rs, and the Design Guidelines.
Respondent
The party against whom the petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents for the Solera Chandler Homeowners’ Association.
Tribunal
A term used in the documents to refer to the Arizona Office of Administrative Hearings (OAH), where the hearing was conducted.
Blog Post – 20F-H2020051-REL-RHG
A Homeowner Took on Her HOA with Over 300 Photos of Evidence. The Reason She Lost Is a Warning for Everyone.
Introduction: The Familiar Fight
It’s a scenario familiar to millions of Americans living in planned communities. You receive a violation notice for a minor infraction on your property, yet when you look at the common areas your HOA is responsible for, you see overgrown weeds, cracked sidewalks, and general disrepair. It feels deeply unfair. Why are homeowners held to a strict standard while the association itself seems to neglect its duties?
This exact frustration drove Debra K. Morin to take on her Solera Chandler Homeowners’ Association. Armed with over 300 photographs documenting every weed and crack, she was certain her case was airtight. But she lost. The reasons why her case failed are a stark warning for any homeowner, revealing a legal battle that hinged entirely on the community’s binding contract: the Covenants, Conditions, and Restrictions (CC&Rs).
——————————————————————————–
The 5 Surprising Lessons from One Homeowner’s HOA Lawsuit
1. The “Sole Judge” Clause: Your HOA’s Ultimate Defense
The single most critical factor in this case was a single clause buried in the HOA’s governing documents. Ms. Morin argued that the HOA must “maintain in good condition and repair at all times” the common areas, believing this was the same standard applied to homeowners. However, the HOA pointed to CC&R Article 7, Section 7.1, which designates the HOA Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
This clause proved to be an almost impenetrable defense. In essence, the legal standard for maintenance was not what a “reasonable person” would consider good repair, but whatever the Board, in its exclusive judgment, decided was appropriate. Even with extensive photo evidence, the case failed because the contract Ms. Morin agreed to when she bought her home gave the Board the ultimate discretion. The Administrative Law Judge’s decision made this crystal clear:
“While the CC&Rs allow an owner to bring to the Board a complaint, the CC&Rs specify that the Board is the sole judge regarding appropriate maintenance, repair and replacement of all AREAS.”
This “sole judge” clause is the cornerstone of a much broader power imbalance, one that is codified throughout the governing documents.
2. A Power Imbalance Is Written into the Rules
While Ms. Morin argued for an equal standard of responsibility, the legal documents revealed a clear and intentional power imbalance. CC&R Article 9, Section 9.5, granted the HOA the “exclusive right to construe and interpret the provisions of the [CC&Rs],” and stated that its interpretation is “final, conclusive and binding.”
This structure legally transforms the relationship from a partnership of equals into one of administrator and subject, where one party holds the power of final interpretation. The governing documents describe in detail how the HOA can levy penalties against an owner for violations, but they provide no equivalent process for an owner to penalize the HOA for its failures. The judge in the rehearing decision explicitly summarized this built-in hierarchy:
“Thus, it is clear, that pursuant to the governing documents, the Board’s authority is lifted above that of a homeowner.”
With the Board’s authority so clearly established, Ms. Morin’s mountain of evidence was about to run into a contractual brick wall.
3. An “Enormity of Evidence” Isn’t Always the Right Evidence
Ms. Morin presented a significant volume of evidence, starting with over 80 photographs in the first hearing and later referencing what she called an “enormity” of evidence totaling over 300 pictures of weeds, damaged sidewalks, and other maintenance issues.
The critical legal distinction the judge made was that the photographs documented the condition of the common areas, but they did not prove a violation of the governing documents. The legal question was not, “Are there weeds?” The question was, “Did the Board violate a contract that explicitly makes it the sole judge of maintenance?” This demonstrates that in a contract dispute, the quality of evidence is defined by its relevance to the specific contractual terms, not its sheer volume.
4. “At All Times” Doesn’t Mean “Instantly”
A key part of the homeowner’s argument was that the HOA was failing to “maintain in good condition and repair at all times” by allowing maintenance issues to persist for months. In response, the HOA detailed its operational reality. The HOA provided evidence of long-term capital plans, such as sealing street cracks every two years and major sidewalk repairs on a four-year cycle. Daily tasks, like weed control, were handled by landscape crews operating on a continuous, rotating schedule across the large community.
From a legal perspective, “at all times” is interpreted through the lens of operational reasonableness for a large entity, not as a guarantee of immediate perfection. For an organization managing a vast property, this standard is met through consistent processes and schedules, not by fixing every issue the moment it is reported.
5. Your Dissatisfaction Is Not a Lawsuit
At its heart, the case was driven by Ms. Morin’s deep frustration. The judge recognized that her petition stemmed from a core belief that the Board and its General Manager were unresponsive and providing poor oversight. While these feelings may have been valid, they were not legally actionable on their own. The judge’s decision in the rehearing drew a firm line between a homeowner’s frustration and a legal claim:
“However, a homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
This highlights a common misconception: while feelings of poor customer service are valid, they are legally irrelevant unless they can be tied to a specific, provable breach of the governing documents or a violation of state law.
——————————————————————————–
Conclusion: Read Before You Sign
The primary lesson from this case is the absolute authority of a community’s governing documents. In any dispute, the specific, written words of the CC&Rs—the contract you sign when you buy your home—will almost always outweigh a homeowner’s subjective standards, sense of fairness, or even a mountain of photographic evidence.
This case serves as a powerful reminder that from a contractual standpoint, the rules are not always designed to be “fair,” but to be enforceable. It leaves every homeowner with a critical question:
Before you complain about your HOA, have you read the rulebook they’re playing by—and that you agreed to?
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020051-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-01-08
Administrative Law Judge
Kay Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Debra K. Morin
Counsel
—
Respondent
Solera Chandler Homeowners' Association, Inc.
Counsel
Lydia A. Perce Linsmeier, Esq.
Alleged Violations
CC&R Article 7, Section 7.1
Outcome Summary
The Administrative Law Judge concluded that Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents regarding the maintenance of Areas of Association Responsibility (AREAS). The Tribunal dismissed the Petition and the subsequent Rehearing Appeal, finding Solera was in compliance with CC&R Article 7, Section 7.1.
Why this result: The Petitioner failed to prove by a preponderance of the evidence that Solera violated its governing documents. The CC&Rs grant the Board the authority to be the "sole judge" as to appropriate maintenance, repair, and replacement of all AREAS.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to meet the maintenance standard required by CC&R Article 7, Section 7.1, citing various examples of disrepair, including weeds, sidewalks, and streets, and arguing the same standard applied to homeowners must apply to the HOA. The Tribunal rejected this, finding that the CC&Rs designate the Board as the sole judge regarding appropriate maintenance, and Petitioner failed to meet the burden of proof to show a violation.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents, including CC&R Article 7, Section 7.1, and the Petition/Rehearing Appeal was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&R Article 7, Section 7.1
CC&R Article 9, Section 9.5
A.R.S. § 32-2199.02(B)
Analytics Highlights
Topics: HOA, Maintenance, CC&Rs, Jurisdiction, Burden of Proof, Rehearing
Additional Citations:
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.09
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 41-1092
A.R.S. § 32-2199.05
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Briefing Document: Morin v. Solera Chandler Homeowners’ Association, Inc.
Executive Summary
This briefing document synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin (Petitioner), and the Solera Chandler Homeowners’ Association, Inc. (Respondent/Solera). The case centered on the Petitioner’s allegations that the HOA failed to maintain common areas to the standards required by its own governing documents.
The Petitioner filed a two-issue petition, with the primary surviving issue being that Solera, its Board of Directors, and its management company were not maintaining the “Areas of Association Responsibility” (AREAS) in good condition and repair at all times. The Petitioner’s core argument was that the same stringent maintenance standard applied to individual homeowners must be equally applied to the HOA. She provided extensive photographic evidence of issues such as weeds, deteriorating sidewalks, street disrepair, and exposed wiring.
The HOA defended its actions by citing its established procedures for maintenance, including a committee review process, a scheduled Reserves plan, and the use of licensed contractors. Critically, Solera’s defense rested on provisions within its Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which grant the Board of Directors the exclusive right to interpret the CC&Rs and designate it as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
Following an initial hearing, the Administrative Law Judge (ALJ) dismissed the petition, finding that the Petitioner had not met the burden of proof. The ALJ ruled that under the governing documents, the HOA Board has sole discretion in maintenance matters, and the Petitioner’s subjective opinions on how and when work should be done were not relevant to determining a violation. The Petitioner was granted a rehearing, where she presented additional evidence and arguments. However, the ALJ upheld the original decision, reaffirming that the CC&Rs grant the Board authority superseding that of an individual homeowner in determining appropriate maintenance. The petition was dismissed, and Solera was deemed the prevailing party in both instances.
Case Overview
Case Name
Debra K. Morin, Petitioner, v. Solera Chandler Homeowners’ Association, Inc., Respondent.
Case Number
No. 20F-H2020051-REL / 20F-H2020051-REL-RHG
Tribunal
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge (ALJ) Kay Abramsohn
Petitioner
Debra K. Morin (represented herself)
Respondent
Solera Chandler Homeowners’ Association, Inc. (represented by Lydia Linsmeier, Esq.)
Petition Filed
On or about March 12, 2020
Initial Hearing
May 20, 2020 and July 15, 2020
Initial Decision
August 19, 2020 (Petition Dismissed)
Rehearing Hearing
December 16, 2020
Rehearing Decision
January 8, 2021 (Original Dismissal Upheld)
Petitioner’s Allegations and Arguments
The Petitioner, a resident of Solera for four years, filed a petition with the Arizona Department of Real Estate alleging violations of Solera’s Articles of Incorporation, By-Laws, CC&Rs, and Rules and Regulations (R&Rs). The allegations were organized into two primary issues.
Issue #1: Lack of Direct Communication
• Allegation: Solera, its Board, and its management company, Premier Management Company (Premier), “do not allow direct communication from homeowners.”
• Requested Relief: The Petitioner sought to have this “policy” rescinded.
• Outcome: This issue was connected to allegations of ethics violations based on the Board’s Code of Ethics, which the Tribunal determined was a non-governing document outside its jurisdiction. As a result, the Petitioner withdrew Issue #1 during the May 20, 2020 hearing.
Issue #2: Failure to Maintain Common Areas
• Allegation: Solera, its Board, and Premier “are not providing oversight to the General Manager in maintaining all Areas of Association Responsibility … in good condition and repair at all times.” Specific complaints included “uncontrolled weeds” and poor maintenance of the Community Center and other AREAS.
• Core Argument: The Petitioner’s central thesis was that the HOA must be held to the identical maintenance standard it imposes on homeowners. She argued that just as homeowners are required to maintain their lots “in a weed free condition 365 days a year,” the HOA has no discretion for delays in addressing maintenance issues in common areas.
• Requested Relief:
1. A public admission by the Board of its failures to follow governing documents.
2. The establishment of “direct communication rules” for reporting management deficiencies.
3. Compliance monitoring by the “Real Estate Board.”
Evidence and Specific Complaints
The Petitioner presented over 80 photographs at the initial hearing (growing to 310 by the rehearing) and multiple emails to document a wide range of perceived maintenance failures.
Maintenance Issue
Petitioner’s Specific Complaint
Uncontrolled weeds in granite rock locations throughout the community.
Community Center
Poor exterior condition.
Streets & Curbs
Deteriorating asphalt, cracking, and issues with sealing.
Sidewalks
Trip hazards and disintegrating cool-decking.
Drainage
Clogged storm drains and water pooling issues.
Landscaping
Exposed wiring for lights, exposed drip irrigation lines, and unremoved tree stumps.
Disrepair of boundary walls.
A key piece of evidence was a February 21, 2020 email exchange regarding weeds, which the ALJ found “representative of the overall situation.”
Petitioner’s Complaint: “This is NOT being done and our HOA looks disgusting with the continued presence of unchecked weeds inside and outside our community! No excuses, you cannot hold homeowners to a higher standard than you are willing to do for our HOA. You are on notice to rectify this violation immediately!”
General Manager’s Response: “…the landscape crew hula hoes and sprays daily, based on routine maintenance cycle and location of site work… Considering that we have 1,143,550 square feet of granite and 270,933 square feet of turf, the maintenance of weeds is a continuous and ongoing concern that is constantly being addressed.”
Petitioner’s Rebuttal: “YOUR response is just more excuses!… It appears that since it is not your personal money being spent, it is ok to have substandard work performance.”
Respondent’s Position and Defense
Solera HOA moved to dismiss the petition, arguing the issues were outside the Department’s jurisdiction and the requested relief could not be granted. While the motion was effectively denied after Issue #1 was withdrawn, Solera’s core defense remained consistent throughout the proceedings.
• Central Legal Argument: Solera contended that its Board of Directors is vested with the ultimate authority on maintenance matters by the community’s governing documents. It repeatedly cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation Authority: The HOA also pointed to CC&R Article 9, Section 9.5, which gives it the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with such interpretations being “final, conclusive and binding.”
• Operational Defense: Denise Frazier, Solera’s on-site general manager, testified that the HOA has established processes for maintenance.
◦ Committee Structure: A Building and Grounds Committee (B&G) reviews projects, which are then assessed by a Finance Committee before going to the Board for approval.
◦ Reserves Schedule: Solera maintains a Reserves schedule for large projects, such as sidewalk repairs (every 4 years), street repairs (every 8 years), and sealing cracks (every 2 years).
◦ Vendor Management: The Board relies on licensed contractors for specialized work, including landscaping, tree trimming (by two different companies for different heights), and stump grinding.
• Response to Specific Issues:
◦ Weeds: Frazier attributed the prevalence of weeds in early 2020 to an unusual amount of rain, creating “optimal” conditions. She noted that Solera had instructed landscapers to use dye in the weed spray to demonstrate to residents that spraying was occurring.
◦ Sidewalks: Frazier acknowledged a several-month delay in repairing a specific sidewalk area but stated that warning cones had been placed in the interim. Solera uses a ¼ inch standard for review but the City of Chandler’s ½ inch trip-hazard guideline for repairs.
◦ Exposed Wiring: This was explained as a temporary measure by landscapers to avoid cutting electrical and irrigation lines during tree and granite replacement projects.
Rulings and Legal Conclusions
The Administrative Law Judge dismissed the Petitioner’s case after the initial hearing and reaffirmed this dismissal after a rehearing, finding that the Petitioner failed to meet her legal burden of proof.
Key Legal Principles Applied
• Burden of Proof: The ALJ established that the Petitioner “bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions.”
• Supremacy of Governing Documents: The case was decided on the interpretation of the HOA’s CC&Rs, which function as the binding contract between the association and its members.
• Board’s Discretionary Authority: The central and decisive legal conclusion was that the HOA’s governing documents explicitly grant the Board superior authority over maintenance decisions.
◦ CC&R Article 7, Section 7.1 (“sole judge”) was interpreted to mean that only Solera is charged with determining when and how to perform maintenance, repair, and replacement in common areas.
◦ The ALJ concluded this provision “lifts the Board’s authority above that of a homeowner.” The Petitioner failed to provide legal support for her argument that the same maintenance standard must be applied to the Board as is applied to homeowners.
• Jurisdictional Limits: The Tribunal’s role is limited to adjudicating alleged violations of governing documents or statutes. The ALJ noted that a “homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
Final Order
The ALJ concluded that Solera was in compliance with its governing documents, including the critical CC&R Article 7, Section 7.1. The Petitioner’s subjective opinions about the timeliness or quality of repairs were deemed irrelevant in the face of the Board’s contractual authority to be the “sole judge.”
Initial Order (August 19, 2020): “IT IS ORDERED Petitioner’s Petition is dismissed and Solera is deemed the prevailing party.”
Rehearing Order (January 8, 2021): “IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.” The order was declared binding on the parties.
Study Guide – 20F-H2020051-REL-RHG
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in the Administrative Law Judge Decision of August 19, 2020, and the subsequent Rehearing Decision of January 8, 2021.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What were the two main issues the petitioner, Debra K. Morin, raised in her initial petition filed on March 12, 2020?
3. Why was the petitioner’s first issue, regarding direct communication, withdrawn during the initial hearing?
4. What was the petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. According to the CC&Rs, what specific authority does the Solera Board have regarding maintenance, which formed the core of its defense?
6. What type of evidence did the petitioner primarily use to document her claims of poor maintenance in the Areas of Association Responsibility (AREAS)?
7. Who is Denise Frazier, and what role did she play in the proceedings?
8. What was the Administrative Law Judge’s final decision in the initial hearing on August 19, 2020?
9. On what grounds did the Commissioner of the Arizona Department of Real Estate grant the petitioner’s request for a rehearing?
10. What was the final outcome of the case after the rehearing decision was issued on January 8, 2021?
Answer Key
1. The primary parties were Debra K. Morin, the Petitioner and a homeowner, and the Solera Chandler Homeowners’ Association, Inc. (Solera), the Respondent. The case was heard by Administrative Law Judge Kay Abramsohn, and Solera was represented by Premier Management Company and its on-site general manager.
2. The petitioner’s Issue #1 alleged that Solera, its Board, and its management company “do not allow direct communication from homeowners.” Issue #2 alleged they were not providing oversight to the General Manager in maintaining all Areas of Association Responsibility in good condition and repair at all times.
3. The petitioner withdrew Issue #1 after it was determined that the Tribunal’s jurisdiction does not include interpreting or applying non-governing documents. Her complaint was based on the Solera Code of Ethics, which the Tribunal could not consider.
4. The petitioner argued that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that if homeowners are required by the governing documents to maintain their lots “in good condition and repair at all times,” then the HOA must be held to the identical standard for common areas (AREAS).
5. Solera’s defense centered on CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Additionally, CC&R Article 9, Section 9.5 gives Solera the exclusive right to construe and interpret the CC&Rs.
6. The petitioner presented a large volume of photographic evidence, including over eighty photos for the initial hearing and more for the rehearing. These photographs were intended to document weeds, issues with sidewalks, exposed wiring, storm drains, and other maintenance problems in the common areas.
7. Denise Frazier is the on-site general manager for Solera and an employee of Premier Management Company. She testified on behalf of Solera regarding its maintenance schedules, procedures, reserve studies, and responses to the specific issues raised by the petitioner.
8. In the initial hearing, the Administrative Law Judge dismissed the petitioner’s petition and deemed Solera the prevailing party. The judge concluded that the petitioner had not demonstrated a violation of the governing documents, as the CC&Rs grant the Board sole judgment on maintenance matters.
9. The request for a rehearing was granted because the petitioner claimed there were irregularities in the proceedings, misconduct by the prevailing party, and that the decision was arbitrary, capricious, an abuse of discretion, and not supported by the evidence or contrary to law.
10. The rehearing affirmed the original decision. The Administrative Law Judge again concluded that the petitioner failed to sustain her burden of proof and that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1. The appeal was dismissed, and Solera was again named the prevailing party.
Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the central legal conflict in this case by contrasting the petitioner’s interpretation of CC&R Article 7, Section 7.2 with the respondent’s defense based on CC&R Article 7, Section 7.1 and Article 9, Section 9.5. How did the Administrative Law Judge resolve this interpretive dispute?
2. Discuss the concept of jurisdiction as it applied to this case. Explain why certain arguments and evidence presented by the petitioner—such as the Board’s Code of Ethics, Premier Management Company standards, and City of Chandler ordinances—were deemed outside the Tribunal’s authority to consider.
3. Evaluate the petitioner’s strategy and use of evidence. Discuss the strengths and weaknesses of relying heavily on photographic evidence and detailed email complaints. Why did this “enormity” of evidence ultimately fail to meet the “preponderance of the evidence” standard?
4. Explain the significance of the phrase “sole judge” in CC&R Article 7, Section 7.1. How does this clause grant discretionary authority to the HOA Board, and how did it function as the key element in defeating the petitioner’s claim?
5. Trace the procedural history of the case, from the initial Petition and Motion to Dismiss through the original hearing, the Decision, the Rehearing Request, and the final Rehearing Decision. Identify the key rulings and turning points that determined the ultimate outcome.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge presiding over the administrative hearing at the Arizona Office of Administrative Hearings. In this case, Judge Kay Abramsohn.
AREAS (Areas of Association Responsibility)
The common areas within the Solera development that the Homeowners’ Association is responsible for managing, maintaining, repairing, and replacing.
By-Laws
One of the governing documents for the Solera Chandler Homeowners’ Association.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera development, specifically the “Solera Declaration of Covenants, Conditions, and Restrictions for Springfield Lakes.” It outlines the rights and responsibilities of the homeowners and the association.
Denise Frazier
The on-site general manager for Solera, employed by Premier Management Company, who testified on behalf of the association regarding its maintenance operations.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by Solera asking the Department of Real Estate to dismiss the petition on the grounds that the issues were outside the Department’s jurisdiction and the requested relief could not be granted.
Petitioner
The party who filed the petition initiating the legal action. In this case, Debra K. Morin, a homeowner in Solera.
Preponderance of the evidence
The burden of proof in this administrative proceeding. It is defined as proof that convinces the trier of fact that a contention is more probably true than not.
Premier Management Company
The management company hired by Solera to handle day-to-day operations of the community.
Project Documents
The set of governing documents for the community, defined as the CC&Rs, any supplemental declarations, the By-Laws, the R&Rs, and the Design Guidelines.
Respondent
The party against whom the petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents for the Solera Chandler Homeowners’ Association.
Tribunal
A term used in the documents to refer to the Arizona Office of Administrative Hearings (OAH), where the hearing was conducted.
Blog Post – 20F-H2020051-REL-RHG
A Homeowner Took on Her HOA with Over 300 Photos of Evidence. The Reason She Lost Is a Warning for Everyone.
Introduction: The Familiar Fight
It’s a scenario familiar to millions of Americans living in planned communities. You receive a violation notice for a minor infraction on your property, yet when you look at the common areas your HOA is responsible for, you see overgrown weeds, cracked sidewalks, and general disrepair. It feels deeply unfair. Why are homeowners held to a strict standard while the association itself seems to neglect its duties?
This exact frustration drove Debra K. Morin to take on her Solera Chandler Homeowners’ Association. Armed with over 300 photographs documenting every weed and crack, she was certain her case was airtight. But she lost. The reasons why her case failed are a stark warning for any homeowner, revealing a legal battle that hinged entirely on the community’s binding contract: the Covenants, Conditions, and Restrictions (CC&Rs).
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The 5 Surprising Lessons from One Homeowner’s HOA Lawsuit
1. The “Sole Judge” Clause: Your HOA’s Ultimate Defense
The single most critical factor in this case was a single clause buried in the HOA’s governing documents. Ms. Morin argued that the HOA must “maintain in good condition and repair at all times” the common areas, believing this was the same standard applied to homeowners. However, the HOA pointed to CC&R Article 7, Section 7.1, which designates the HOA Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
This clause proved to be an almost impenetrable defense. In essence, the legal standard for maintenance was not what a “reasonable person” would consider good repair, but whatever the Board, in its exclusive judgment, decided was appropriate. Even with extensive photo evidence, the case failed because the contract Ms. Morin agreed to when she bought her home gave the Board the ultimate discretion. The Administrative Law Judge’s decision made this crystal clear:
“While the CC&Rs allow an owner to bring to the Board a complaint, the CC&Rs specify that the Board is the sole judge regarding appropriate maintenance, repair and replacement of all AREAS.”
This “sole judge” clause is the cornerstone of a much broader power imbalance, one that is codified throughout the governing documents.
2. A Power Imbalance Is Written into the Rules
While Ms. Morin argued for an equal standard of responsibility, the legal documents revealed a clear and intentional power imbalance. CC&R Article 9, Section 9.5, granted the HOA the “exclusive right to construe and interpret the provisions of the [CC&Rs],” and stated that its interpretation is “final, conclusive and binding.”
This structure legally transforms the relationship from a partnership of equals into one of administrator and subject, where one party holds the power of final interpretation. The governing documents describe in detail how the HOA can levy penalties against an owner for violations, but they provide no equivalent process for an owner to penalize the HOA for its failures. The judge in the rehearing decision explicitly summarized this built-in hierarchy:
“Thus, it is clear, that pursuant to the governing documents, the Board’s authority is lifted above that of a homeowner.”
With the Board’s authority so clearly established, Ms. Morin’s mountain of evidence was about to run into a contractual brick wall.
3. An “Enormity of Evidence” Isn’t Always the Right Evidence
Ms. Morin presented a significant volume of evidence, starting with over 80 photographs in the first hearing and later referencing what she called an “enormity” of evidence totaling over 300 pictures of weeds, damaged sidewalks, and other maintenance issues.
The critical legal distinction the judge made was that the photographs documented the condition of the common areas, but they did not prove a violation of the governing documents. The legal question was not, “Are there weeds?” The question was, “Did the Board violate a contract that explicitly makes it the sole judge of maintenance?” This demonstrates that in a contract dispute, the quality of evidence is defined by its relevance to the specific contractual terms, not its sheer volume.
4. “At All Times” Doesn’t Mean “Instantly”
A key part of the homeowner’s argument was that the HOA was failing to “maintain in good condition and repair at all times” by allowing maintenance issues to persist for months. In response, the HOA detailed its operational reality. The HOA provided evidence of long-term capital plans, such as sealing street cracks every two years and major sidewalk repairs on a four-year cycle. Daily tasks, like weed control, were handled by landscape crews operating on a continuous, rotating schedule across the large community.
From a legal perspective, “at all times” is interpreted through the lens of operational reasonableness for a large entity, not as a guarantee of immediate perfection. For an organization managing a vast property, this standard is met through consistent processes and schedules, not by fixing every issue the moment it is reported.
5. Your Dissatisfaction Is Not a Lawsuit
At its heart, the case was driven by Ms. Morin’s deep frustration. The judge recognized that her petition stemmed from a core belief that the Board and its General Manager were unresponsive and providing poor oversight. While these feelings may have been valid, they were not legally actionable on their own. The judge’s decision in the rehearing drew a firm line between a homeowner’s frustration and a legal claim:
“However, a homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
This highlights a common misconception: while feelings of poor customer service are valid, they are legally irrelevant unless they can be tied to a specific, provable breach of the governing documents or a violation of state law.
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Conclusion: Read Before You Sign
The primary lesson from this case is the absolute authority of a community’s governing documents. In any dispute, the specific, written words of the CC&Rs—the contract you sign when you buy your home—will almost always outweigh a homeowner’s subjective standards, sense of fairness, or even a mountain of photographic evidence.
This case serves as a powerful reminder that from a contractual standpoint, the rules are not always designed to be “fair,” but to be enforceable. It leaves every homeowner with a critical question:
Before you complain about your HOA, have you read the rulebook they’re playing by—and that you agreed to?
CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5
Outcome Summary
The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.
Key Issues & Findings
Unauthorized 2nd story addition
Respondents constructed a second-story Addition to their property without first obtaining approval from the Foothills Architectural Committee, violating the community governing documents.
Orders: Respondents’ appeal is dismissed, and Foothills is deemed the prevailing party with regard to its Petition.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_win
Cited:
CC&Rs Article 7, Section 7.3
CC&R Article 9, Section 9.3
CC&R Article 9, Section 9.4
CC&R Article 9, Section 9.5
Analytics Highlights
Topics: architectural review, cc&r violation, unapproved construction, second story addition, prevailing party
Additional Citations:
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. §§ 32-2199(2)
A.R.S. §§ 32-2199.01(D)
A.R.S. §§ 32-2199.02
A.R.S. § 32-2199.05
A.R.S. § 41-1092
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
21F-H2120004-REL Decision – 839537.pdf
Uploaded 2026-01-23T17:34:43 (135.4 KB)
Briefing Doc – 21F-H2120004-REL
Briefing Document: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
Executive Summary
This document synthesizes the findings and decision in the case of Foothills Club West Homeowners Association v. Subrahmanyam & Sudhakar Living Trust (No. 21F-H2120004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core dispute involved the construction of a second-story addition by homeowners (Respondents) without the prior approval of the Homeowners Association (Petitioner), a direct violation of the community’s governing documents.
The Administrative Law Judge (ALJ) found conclusively in favor of the Foothills Club West HOA. The evidence demonstrated that the Respondents not only began construction without seeking approval but continued the project even after receiving a formal denial from the HOA’s Architectural Committee. A subsequent agreement between the parties, wherein the Respondents would demolish the addition in exchange for a waiver of fines, was not honored by the Respondents. The ALJ dismissed the Respondents’ appeal and declared the HOA the prevailing party, validating its authority to enforce the community’s architectural standards as outlined in its Covenants, Conditions, and Restrictions (CC&Rs).
I. Case Overview
• Case Name: Foothills Club West Homeowners Association, Petitioner, v. Subrahmanyam & Sudhakar Living Trust, Respondent.
• Case Number: 21F-H2120004-REL
• Jurisdiction: Arizona Office of Administrative Hearings
• Administrative Law Judge: Kay Abramsohn
• Hearing Date: October 5, 2020
• Decision Date: November 27, 2020
• Central Issue: The petition filed by Foothills HOA on July 24, 2020, alleged that the Respondents constructed an unauthorized and unapproved second-story addition to their property. This action was alleged to be in violation of CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5.
II. Chronology of Key Events
The hearing record established the following undisputed sequence of events:
Oct. 2018
Respondents begin construction of the second-story addition.
Nov. 7, 2018
The City of Phoenix issues a stop-work order, noting a permit is required.
Nov. 7, 2018
Foothills HOA issues a violation notice to the Respondents.
Dec. 17, 2018
Respondents obtain a permit from the City of Phoenix.
Jan. 18, 2019 (approx.)
Respondents submit a request for approval to the Foothills Architectural Committee.
Jan. 18, 2019
Foothills HOA issues a penalty notice to the Respondents, with further notices issued monthly.
Feb. 22, 2019
Foothills HOA issues a formal denial of the application.
Mar. 15, 2019
The City of Phoenix gives final approval to the construction and issues a Certificate of Occupancy.
Post Feb. 2019
The parties reach an agreement for Respondents to demolish the addition in exchange for a waiver of fines.
July 24, 2020
Foothills HOA files its petition, noting Respondents have not complied with the demolition agreement.
Oct. 5, 2020
The administrative hearing is held.
Nov. 27, 2020
The Administrative Law Judge issues the final decision.
III. Arguments of the Parties
A. Petitioner: Foothills Club West HOA
• Violation of CC&Rs: The HOA argued that the Respondents violated CC&R Article 9, Section 9.3 by commencing construction without first obtaining approval from the Architectural Committee.
• Disregard for Denial: The HOA asserted that the Respondents completed the addition after receiving a formal denial of their application.
• Breach of Agreement: The HOA noted that the parties had reached a settlement agreement for demolition, which the Respondents failed to honor. The HOA requested that the Tribunal enforce this agreement.
• Jurisdictional Distinction: The HOA maintained that approval from the City of Phoenix was a separate matter and did not negate the requirement to obtain approval from the HOA as mandated by the governing documents.
B. Respondents: Subrahmanyam & Sudhakar Living Trust
• Initial Ignorance: Respondents claimed they were initially unaware of the HOA approval requirements.
• Attempted Compliance: They argued that once notified, they followed the association’s guidance, met with the Board, and sought approval.
• Vague Denial: Respondents stated they did not understand the meaning of the denial reason, “Fails aesthetics of surrounding community,” or how the addition specifically violated community rules.
• Lack of Due Process: They argued they did not receive a letter indicating an appeal process was available and therefore felt they had not received a final “denial.”
• Demolition Delay: While not disputing the existence of the demolition agreement, Respondents cited COVID-19 issues and safety concerns for their at-risk family as reasons for requesting more time.
• Final Appeal: At the hearing, Respondents reversed their position on the agreement and requested to be allowed to keep the addition.
IV. Analysis of Governing Documents
The decision centered on specific provisions within the Foothills Club West governing documents, which constitute the contract between the HOA and the homeowners.
• CC&R Article 9, Section 9.3 (Architectural Approval): This section was central to the case. It states in pertinent part:
• CC&R Article 9, Section 9.4 (Obligation to Obtain Approval): This provision explicitly sets forth a homeowner’s obligation to secure approval from the Architectural Committee.
• CC&R Article 9, Section 9.5 (Exterior Appearance): This section clarifies that while the HOA cannot limit interior remodeling, it retains jurisdiction over any changes that are “visible from outside such [home] … or affects the exterior appearance of such [home].”
• Amended Architectural Guidelines (2013): These guidelines reinforce the CC&Rs, specifying that a homeowner’s plans must be submitted for approval through the Architectural Committee on a case-by-case basis.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law provided a clear framework for the final order.
A. Burden of Proof
The ALJ established that in this proceeding, the petitioner (Foothills HOA) bore the burden of proving by a “preponderance of the evidence” that the Respondents had violated the governing documents. A preponderance of the evidence is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
B. Core Conclusion on Violations
The ALJ found that the HOA had successfully met its burden of proof. The central conclusion of law states:
“The Administrative Law Judge concludes that Foothills has demonstrated Respondents’ violation of the community governing documents, as stated in CC&R Article 9, Sections 9.3, 9.4, and 9.5, because Respondents began to construct a modification, the Addition, to their existing home prior to obtaining approval from Foothills Architectural Committee and, further, Respondents continued to construct the Addition despite receiving a denial of approval from Foothills Architectural Committee.”
This finding affirmed that the Respondents committed two distinct violations: starting work without approval and continuing work after being explicitly denied approval.
VI. Final Order and Implications
Based on the findings of fact and conclusions of law, the ALJ issued a decisive order.
• Order:
• Binding Nature: The decision notes that the order is binding on both parties unless a rehearing is requested. Pursuant to A.R.S. § 41-1092.09, a request for rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order.
Study Guide – 21F-H2120004-REL
Study Guide: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
This guide provides a detailed review of the Administrative Law Judge Decision in case No. 21F-H2120004-REL. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a comprehensive glossary of key terms found within the document.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.
1. Who are the Petitioner and Respondent in this case, and what is their relationship?
2. What was the single issue raised in the petition filed by Foothills Club West Homeowners Association?
3. According to the Petition, which specific articles and sections of the governing documents did the Respondents allegedly violate?
4. What action did the City of Phoenix take on November 7, 2018, regarding the Respondents’ construction project?
5. What reasons did the Foothills Architectural Committee provide for denying the Respondents’ application on February 22, 2019?
6. Prior to the hearing, what agreement did the parties reach in an attempt to resolve the dispute?
7. What was the Respondents’ primary argument for their actions and for their failure to comply with the association’s denial?
8. What is the legal standard of proof required in this case, and which party bore the burden of meeting it?
9. Explain the difference between the City of Phoenix’s approval and the Foothills Architectural Committee’s approval, as argued by the Petitioner.
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The Petitioner is the Foothills Club West Homeowners Association (“Foothills”). The Respondent is the Subrahmanyam & Sheila Sudhakar Living Trust. Their relationship is that of a homeowners’ association and a member homeowner residing within the planned community for 22 years.
2. The single issue raised was that the Respondents constructed an unauthorized and unapproved second-story addition to their property. The construction was completed even after the Foothills Architectural Committee had issued a denial of the project.
3. Foothills alleged that the Respondents violated the CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5. These articles pertain to the rights and obligations of the association and the architectural standards requiring prior approval for modifications.
4. On November 7, 2018, the City of Phoenix issued a stop-work order for the Respondents’ construction project. The order noted that the work being performed required a permit, which had not yet been obtained.
5. The Foothills Architectural Committee denied the application because it needed copies of the City permit, the plans were incomplete, and there was no documentation on the roof line or roofing materials. Furthermore, the denial stated that the project “Fails aesthetics of surrounding community.”
6. The parties came to an agreement wherein the Respondents would complete the demolition of the second-story addition. In exchange, Foothills agreed to waive the penalties that had been imposed on the Respondents for the violation.
7. The Respondents argued that they initially did not know what was required and that they cooperated with the association’s Board once notified. They claimed they did not understand what “Fails aesthetics” meant, did not receive a letter about an appeal process, and therefore did not feel they had received a final “denial.”
8. The legal standard of proof is a “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not. The Petitioner, Foothills, bore the burden of proving the Respondents’ violation by this standard.
9. Foothills argued that approval from the City of Phoenix and approval from the association’s Architectural Committee were two different and separate matters. Even though the Respondents eventually received a City permit and a Certificate of Occupancy, this did not override the CC&R requirement to first obtain approval from Foothills.
10. The Administrative Law Judge ordered that the Respondents’ appeal be dismissed. The Judge deemed Foothills the prevailing party with regard to its petition, finding that Foothills had demonstrated the Respondents’ violation of the community’s governing documents.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing evidence and support directly from the provided legal decision.
1. Analyze the arguments presented by both the Petitioner (Foothills) and the Respondents at the hearing. Discuss the key evidence and claims each party used to support their position and explain why the Administrative Law Judge ultimately found the Petitioner’s case more persuasive.
2. Explain the distinct roles and jurisdictions of the Homeowners Association’s Architectural Committee and the City of Phoenix regarding the Respondents’ construction project. Why was obtaining a City permit and a Certificate of Occupancy insufficient for the Respondents to proceed without violating the community’s governing documents?
3. Trace the procedural history of case No. 21F-H2120004-REL, from the filing of the initial petition to the final order. Discuss key filings, motions, and deadlines mentioned in the document, including the Respondents’ attempt to consolidate another case.
4. Discuss the significance of the “contract” between the parties, as defined in footnote 15. How do the CC&Rs and the amended Architectural Guidelines function as this contract, and which specific sections were central to the judge’s conclusion that a violation occurred?
5. Evaluate the Respondents’ attempt to justify their failure to demolish the addition as per their agreement with Foothills, citing COVID-19 issues. How did their request at the hearing to keep the addition conflict with their prior agreement, and what does this reveal about their position in the dispute?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over administrative hearings at the Office of Administrative Hearings and issues decisions.
Architectural Committee
A committee appointed by the Foothills HOA, as established by CC&R Article 9, with the authority to review, approve, or disapprove plans for construction, modifications, and additions to properties within the community.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These are the governing documents that form a binding contract between the homeowners association and the property owners, outlining their rights and obligations.
Disclosure
The formal process by which parties in a legal case provide evidence, exhibits, and information to each other before a hearing. The deadline for disclosure in this case was September 29, 2020.
Governing Documents
The set of rules for the planned community, including the CC&Rs and the amended Architectural Guidelines, which have the same force and effect as association rules.
Petitioner
The party who initiates a legal proceeding by filing a petition. In this case, the Foothills Club West Homeowners Association.
Petition
The formal document filed with the Arizona Department of Real Estate to initiate a hearing concerning violations of community governing documents. In this case, it was a “single-issue petition.”
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Subrahmanyam & Sheila Sudhakar Living Trust.
Tribunal
The Arizona Office of Administrative Hearings, the state agency authorized by statute to hear and decide contested matters referred to it, such as this dispute.
Blog Post – 21F-H2120004-REL
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21F-H2120004-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings concerning a dispute between the Foothills Club West Homeowners Association and the Subrahmanyam & Sudhakar Living Trust. The Petitioner, the Foothills Club West Homeowners Association, filed a petition alleging that the Respondents constructed an unauthorized second-story addition to their property in violation of the association’s governing documents, specifically the CC&Rs Article 9, Sections 9.3, 9.4, and 9.5. The Administrative Law Judge determined that the Respondents violated these community documents by beginning construction prior to obtaining approval from the Foothills Architectural Committee and continuing the work despite receiving a denial. The judge ultimately concluded that Foothills was the prevailing party and dismissed the Respondents’ appeal, effectively upholding the violation finding.
What are the specific governing document violations alleged and proven against the homeowners?
How did the legal and administrative process address the unauthorized construction dispute?
What was the final resolution ordered regarding the unapproved second-story home addition?
Based on 1 source
Case Participants
Petitioner Side
John Halk(HOA attorney) BROWN/OLCOTT, PLLC Represented Petitioner Foothills Club West Homeowners Association
Nathan Tennyson(HOA attorney) BROWN/OLCOTT, PLLC Counsel for Petitioner
Respondent Side
Mary T. Hone(Respondent attorney) Mary T. Hone, PLLC Counsel for Respondent Trustees Subrahmanyam & Sheila Sudhakar
Subrahmanyam Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Sheila Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
AHansen(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
djones(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
DGardner(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
ncano(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
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
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
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
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Additional Citations:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
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
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Video Overview
Audio Overview
Decision Documents
20F-H2020051-REL Decision – 816310.pdf
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20F-H2020051-REL Decision – 847175.pdf
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Briefing Doc – 20F-H2020051-REL
Briefing Document: Morin v. Solera Chandler Homeowners’ Association
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Rehearing Decision in the case of Debra K. Morin versus the Solera Chandler Homeowners’ Association, Inc. (Solera), dated January 8, 2021. The central dispute involved a homeowner’s allegation that the association failed to maintain its common areas in good condition and repair.
The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case, finding conclusively in favor of the Solera HOA. The decision rested on a critical provision within the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which designates the Solera Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas. This clause grants the Board exclusive discretion, superseding an individual homeowner’s opinion on the timing or quality of maintenance.
Despite the petitioner presenting extensive photographic evidence documenting various maintenance issues, the ALJ concluded that this evidence failed to prove a violation of the governing documents. The petitioner did not meet her burden of proving by a preponderance of the evidence that the Board had acted outside its granted authority. The ruling affirms that the authority of the Board is explicitly elevated above that of an individual homeowner in matters of common area maintenance under the controlling legal documents.
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I. Case Background and Procedural History
The case originates from a petition filed by Debra K. Morin, a four-year resident of the Solera community, against the Solera Chandler Homeowners’ Association. The matter was adjudicated by the Arizona Office of Administrative Hearings (Tribunal).
A. Initial Petition
On March 12, 2020, Ms. Morin filed a two-issue petition with the Arizona Department of Real Estate, alleging that Solera, its Board of Directors, and its management company (Premier) had violated numerous governing documents, including the Articles of Incorporation, By-Laws, CC&Rs, and Rules & Regulations (R&Rs).
• Issue #1: Alleged that Solera did not permit “direct communication from homeowners” and sought to have this “policy” rescinded.
• Issue #2: Alleged that Solera was not providing oversight to the General Manager in maintaining the “Areas of Association Responsibility” (AREAS) in “good condition and repair at all times.” Specific complaints included uncontrolled weeds and poor maintenance of the Community Center and other common areas.
B. Procedural Developments
• Motion to Dismiss: Solera filed a Motion to Dismiss, arguing the issues were outside the Department of Real Estate’s jurisdiction.
• Withdrawal of Issue #1: At a May 20, 2020 hearing, the Tribunal noted its jurisdiction did not extend to non-governing documents like the Board’s Code of Ethics. Consequently, Ms. Morin withdrew Issue #1. The Tribunal denied the Motion to Dismiss for the remaining “bare-bones” maintenance allegation in Issue #2.
• Initial Decision (August 19, 2020): Following the original hearing, the ALJ issued a decision concluding that Solera was the “sole judge” regarding maintenance of the AREAS and had not violated its governing documents. The petition was dismissed.
• Rehearing Request (September 24, 2020): Ms. Morin filed a request for rehearing, citing irregularities in the proceedings, misconduct by the prevailing party, and arguing the decision was arbitrary and capricious, particularly in its interpretation of CC&R Article 7, Section 7.1.
• Rehearing Granted and Conducted: The Commissioner of the Arizona Department of Real Estate granted the rehearing, which was conducted telephonically on December 16, 2020.
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II. Core Arguments of the Parties
The fundamental conflict centered on the interpretation of the maintenance standards outlined in the community’s CC&Rs.
A. Petitioner’s Position (Debra K. Morin)
Ms. Morin’s case was built on the principle of equal application of maintenance standards.
• Central Argument: The same maintenance standard requiring homeowners to keep their lots “in good condition and repair at all times” (per CC&R Article 7, Section 7.2) must be applied equally to Solera’s responsibility for the common AREAS (per CC&R Article 7, Section 7.1).
• Core Belief: Because homeowners are given no discretion regarding delays in maintenance, Solera should not be able to take months to address reported issues.
• Evidence Presented: The petitioner submitted extensive documentation, including over 80 photographs (referenced in the rehearing as “310 pictures”), emails, and other documents. This evidence was intended to show persistent maintenance failures, including:
◦ Uncontrolled weeds in granite rock locations
◦ Poor exterior condition of the Community Center
◦ Deficiencies in street asphalt, storm drains, sidewalks, and curbing
◦ Water pooling and intrusion issues
◦ Exposed landscaping lights and irrigation lines
◦ Unremoved tree stumps
B. Respondent’s Position (Solera HOA)
Solera’s defense relied entirely on the specific authority granted to its Board by the governing documents.
• Central Argument: The association met its responsibilities, and the petitioner’s subjective opinions about what, when, or how maintenance should be done are irrelevant.
• Dispositive Legal Provision: Solera consistently cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation: This provision grants the Board exclusive discretion and authority to determine the nature and timing of maintenance, insulating its decisions from a single homeowner’s critique.
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III. Analysis and Key Findings of the Administrative Law Judge
The Rehearing Decision provided a thorough review of the evidence and legal arguments, ultimately reinforcing the original ruling in favor of Solera.
A. The “Sole Judge” Clause and Board Authority
The ALJ’s conclusion hinged on the unambiguous language of the CC&Rs, which establishes a clear hierarchy of authority.
• CC&R Article 7, Section 7.1: This article was identified as the dispositive text. It states, in pertinent part: “the Board ‘shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS], but all [AREAS], and the Improvements located thereon, shall be maintained in good condition and repair at all times.'” The ALJ found that the “sole judge” provision grants the Board exclusive authority to determine how the “good condition and repair” standard is met.
• CC&R Article 9, Section 9.5: This section further strengthens the Board’s position by granting Solera the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with its interpretation being “final, conclusive and binding.”
• Conclusion on Authority: The ALJ concluded that these provisions clearly lift the Board’s authority above that of an individual homeowner in determining appropriate maintenance.
B. Rejection of the “Equal Standard” Argument
The petitioner’s primary argument for an equal, non-discretionary standard for both the HOA and homeowners was explicitly rejected.
• The ALJ found that the petitioner “failed to provide legal support for her argument that the same maintenance standard is required to be applied to the Board as it is applied to a homeowner.”
• The governing documents themselves create different levels of authority and obligation for the Board versus individual owners.
C. Evaluation of Evidence and Burden of Proof
• Burden of Proof: The decision reiterates that the petitioner bears the burden of proving a violation by a “preponderance of the evidence.”
• Photographic Evidence: The ALJ acknowledged reviewing all photographs from both hearings. The decision states that this evidence successfully documented “the existence, at those dates embedded in the photographs, of items that deal with maintenance and repairs in various locations of Solera AREAS.”
• Failure to Prove a Violation: Crucially, while the photos proved maintenance issues existed, they did not prove a violation of the CC&Rs. Because the Board is the “sole judge,” the existence of a weed or a cracked curb does not automatically constitute a breach of its duties, as the Board retains discretion over the timeline and method of repair.
D. Jurisdictional Limitations
The decision affirmed the Tribunal’s limited jurisdiction, noting that many of the petitioner’s underlying frustrations were not legally actionable in this venue.
• Not Actionable: A homeowner’s dissatisfaction with the Board, its management company, or the General Manager is “not within the purview of this process or the jurisdiction of the Tribunal.”
• Irrelevant Documents: Arguments based on City of Chandler standards, the landscaping contract with Integrated Landscape Management (ILM), or Premier’s General Manager job description were deemed irrelevant, as the Tribunal’s review is limited to the association’s governing documents and applicable state statutes.
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IV. Final Order and Conclusion
Based on an exhaustive review of the record from both the original hearing and the rehearing, the Administrative Law Judge reached a definitive conclusion.
• Final Finding: The petitioner failed to sustain her burden of proof to establish a violation by Solera of the governing documents. The ALJ concluded that Solera is in compliance with its governing documents, including CC&R Article 7, Section 7.1.
• Order:
◦ IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.
◦ The order was issued on January 8, 2021.
◦ As a decision issued after a rehearing, the order is binding on the parties. Any further appeal must be filed with the Superior Court within 35 days from the date of service.
Study Guide – 20F-H2020051-REL
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a comprehensive review of the administrative rehearing case No. 20F-H2020051-REL-RHG, between Petitioner Debra K. Morin and Respondent Solera Chandler Homeowners’ Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms derived from the case documents.
Short-Answer Quiz
Answer each of the following questions in 2-3 sentences based on the information provided in the case decision.
1. Who were the primary parties in this case, and who represented them at the telephonic hearing on December 16, 2020?
2. What were the two initial issues Petitioner Debra K. Morin raised in her petition filed on March 12, 2020?
3. Why did the Petitioner withdraw Issue #1 from her petition during the May 20, 2020 hearing?
4. What was the Petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. What type of evidence did the Petitioner primarily present to document the alleged maintenance failures in the Areas of Association Responsibility (AREAS)?
6. What specific clause in the CC&Rs did Solera (the Respondent) rely on to defend its actions and decisions regarding maintenance?
7. What were the primary reasons the Commissioner of the Arizona Department of Real Estate granted the Petitioner’s request for a rehearing?
8. How did the Administrative Law Judge rule on the relevance of non-governing documents, such as the City of Chandler ordinances and the Premier Management Company job description?
9. What is the legal standard of proof that a petitioner must meet in these proceedings, and how is it defined in the decision?
10. What was the final conclusion and order of the Administrative Law Judge in the Rehearing Decision issued on January 8, 2021?
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Answer Key
1. The primary parties were the Petitioner, Debra K. Morin, who represented herself, and the Respondent, Solera Chandler Homeowners’ Association (Solera). Solera was represented by Lydia Linsmeier, Esq.
2. Issue #1 alleged that Solera did not allow direct communication from homeowners. Issue #2 alleged that Solera, its Board, and its management company were not providing proper oversight to maintain the Areas of Association Responsibility (AREAS) in good condition and repair.
3. The Petitioner withdrew Issue #1 after the Tribunal ruled that the statutory parameters of its jurisdiction did not include the interpretation or application of a non-governing document like the Board’s Code of Ethics. The allegations regarding ethics and mismanagement based on this code were therefore removed from consideration.
4. The Petitioner’s central argument was that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that just as homeowners are required by CC&R Article 7, Section 7.2 to maintain their lots in good condition at all times, Solera must be held to the same standard for common AREAS under CC&R Article 7, Section 7.1.
5. The Petitioner presented an “enormity” of photographic evidence to document the maintenance issues. The decision notes she presented over eighty photographs at the original hearing and an additional “310 pictures” were mentioned in the rehearing, showing weeds, debris, exposed wiring, and other issues at various dates.
6. Solera relied on CC&R Article 7, Section 7.1, which states that the Solera Board of Directors “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Solera argued that the Petitioner’s subjective opinions on maintenance were therefore not relevant.
7. The rehearing was granted for reasons outlined in the Petitioner’s request, which claimed: irregularities in the proceedings, misconduct by the prevailing party, and that the original decision was arbitrary, capricious, an abuse of discretion, not supported by evidence, or contrary to law.
8. The Judge ruled that such documents were not relevant or justiciable. City standards were not under review, and the management company’s job description and landscape contract were not Solera governing documents, so they could not be used to prove a violation of the association’s governing documents.
9. The petitioner bears the burden of proving their case by a “preponderance of the evidence.” This is defined as proof that convinces the trier of fact that the contention is more probably true than not, and it represents the greater weight of evidence.
10. The Administrative Law Judge concluded that the Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents. The Judge found Solera to be the prevailing party, in compliance with CC&R Article 7, Section 7.1, and ordered that the Petitioner’s appeal be dismissed.
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Suggested Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the balance of power between a homeowner and an HOA as depicted in this case. Discuss how specific clauses in the CC&Rs, particularly Article 7 (Section 7.1) and Article 9 (Sections 9.5 and 9.9), grant authority to the Board and limit the recourse available to an individual owner within the association’s own framework.
2. Examine the role and limitations of evidence in this administrative hearing. Why was the Petitioner’s photographic evidence, despite its volume, ultimately insufficient to meet the burden of proof? Discuss the distinction made by the Tribunal between evidence of a maintenance issue and evidence of a violation of the governing documents.
3. The Petitioner argued for an equal application of the “maintenance standard” to both homeowners and the HOA, stating “[t]here must be equal consideration to have a valid contract.” Evaluate this argument in the context of the specific language found in the Solera CC&Rs. Is the concept of “equal consideration” legally applicable in the way the Petitioner suggests?
4. Discuss the jurisdiction of the Arizona Office of Administrative Hearings (the Tribunal) in HOA disputes as described in the decision. Explain why the Tribunal could rule on the maintenance of common areas but had to dismiss claims related to the Solera Code of Ethics, City of Chandler ordinances, and Premier Management’s internal documents.
5. Based on the findings of fact, trace the procedural journey of this case from the initial petition to the final rehearing order. Identify the key turning points, such as the Motion to Dismiss and the Order Granting Rehearing, and explain their impact on the scope and outcome of the dispute.
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
The judicial authority, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings, makes findings of fact, issues decisions, and conducts rehearings.
Areas of Association Responsibility (AREAS)
The common areas within the Solera community that the homeowners’ association is responsible for managing and maintaining. This includes landscaping, the Community Center exterior, street conditions, storm drains, sidewalks, walls, and curbing.
Articles of Incorporation
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit A.
By-Laws
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit B.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera at Springfield Lakes community. It outlines the rights and responsibilities of both the homeowners and the association.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by a party (in this case, Solera) asking for a petition or case to be dismissed on the grounds that the issues are outside the Department’s jurisdiction or that the requested relief cannot be granted as a matter of law.
Petitioner
The party who initiates a legal action or petition. In this case, Debra K. Morin, a homeowner in the Solera community.
Preponderance of the Evidence
The standard of proof required for a petitioner to win in these proceedings. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Premier Management Company (Premier)
The management company hired by the Solera Board of Directors to handle duties including the oversight of a General Manager.
Project Documents
Defined in CC&R Article 1, Section 1.37 as the CC&Rs, any supplements to the CC&Rs, the By-Laws, the Rules and Regulations (R&Rs), and the Design Guidelines.
Respondent
The party against whom a petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit D.
Tribunal
A term used to refer to the Arizona Office of Administrative Hearings (OAH), the body responsible for conducting administrative hearings for disputes referred by the Arizona Department of Real Estate.
Blog Post – 20F-H2020051-REL
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20F-H2020051-REL-RHG
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This document presents an Administrative Law Judge Rehearing Decision regarding a dispute between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The Petitioner initially filed a two-issue complaint with the Arizona Department of Real Estate alleging that the HOA had violated various governing documents, primarily concerning lack of direct homeowner communication and a failure to maintain Association Responsibility Areas (AREAS) in good condition. After the first issue was withdrawn due to jurisdictional limitations, the initial decision dismissed the petition, finding the HOA was the sole judge of appropriate maintenance under the Covenants, Conditions, and Restrictions (CC&Rs). This rehearing decision, granted due to claims of procedural irregularities and arbitrary findings, ultimately reaffirms the original dismissal, concluding that the Petitioner failed to meet the burden of proof to establish a violation of the governing documents.
Case Participants
Petitioner Side
Debra K. Morin(petitioner) Represented herself
Respondent Side
Lydia A. Perce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Solera Chandler Homeowners' Association
Denise Frazier(general manager/witness) Premier Management Company / Solera Chandler Homeowners' Association Solera's onsite general manager who testified
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge for both original and rehearing decisions
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate
Felicia Del Sol(administrative) Transmitted the original August 19, 2020 Decision
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].
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)
