The Administrative Law Judge denied the Petition on all issues, concluding that the CCRs contained legally enforceable setback language (Section 21(m)) properly passed in 2017 under A.R.S. § 33-1817(A). The ALJ rejected Petitioner's arguments regarding improper voting procedures, statute of limitations, and selective enforcement.
Why this result: Petitioner failed to establish the alleged violations by a preponderance of the evidence. The CCRs were deemed valid, and the enforcement action was deemed reasonable.
Key Issues & Findings
Challenge to the validity and enforcement of the 10-foot setback requirement regarding the Petitioner's carport and claims of selective enforcement.
Petitioner asserted that the HOA violated CCR 21(m) by improperly adopting the 2017 CCRs and sought resolution on whether the setback language was enforceable, whether forcing Petitioner to move the carport was reasonable, whether selective enforcement was applied, and whether an easement existed. The ALJ concluded the CCRs were valid and enforceable under A.R.S. § 33-1817(A), rejected the selective enforcement claim, and denied the petition.
Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.
The Administrative Law Judge denied the Petition on all issues, concluding that the CCRs contained legally enforceable setback language (Section 21(m)) properly passed in 2017 under A.R.S. § 33-1817(A). The ALJ rejected Petitioner's arguments regarding improper voting procedures, statute of limitations, and selective enforcement.
Why this result: Petitioner failed to establish the alleged violations by a preponderance of the evidence. The CCRs were deemed valid, and the enforcement action was deemed reasonable.
Key Issues & Findings
Challenge to the validity and enforcement of the 10-foot setback requirement regarding the Petitioner's carport and claims of selective enforcement.
Petitioner asserted that the HOA violated CCR 21(m) by improperly adopting the 2017 CCRs and sought resolution on whether the setback language was enforceable, whether forcing Petitioner to move the carport was reasonable, whether selective enforcement was applied, and whether an easement existed. The ALJ concluded the CCRs were valid and enforceable under A.R.S. § 33-1817(A), rejected the selective enforcement claim, and denied the petition.
Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020045-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2020-11-18
Administrative Law Judge
Adam D. Stone
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Shannon Lee Trezza Irrevocable Trust
Counsel
—
Respondent
Haciendas Del Conde Association
Counsel
Sharon Briggs, Esq.
Alleged Violations
CCRs Section 21(m)
Outcome Summary
The Administrative Law Judge denied the Petition on all issues, concluding that the CCRs contained legally enforceable setback language (Section 21(m)) properly passed in 2017 under A.R.S. § 33-1817(A). The ALJ rejected Petitioner's arguments regarding improper voting procedures, statute of limitations, and selective enforcement.
Why this result: Petitioner failed to establish the alleged violations by a preponderance of the evidence. The CCRs were deemed valid, and the enforcement action was deemed reasonable.
Key Issues & Findings
Challenge to the validity and enforcement of the 10-foot setback requirement regarding the Petitioner's carport and claims of selective enforcement.
Petitioner asserted that the HOA violated CCR 21(m) by improperly adopting the 2017 CCRs and sought resolution on whether the setback language was enforceable, whether forcing Petitioner to move the carport was reasonable, whether selective enforcement was applied, and whether an easement existed. The ALJ concluded the CCRs were valid and enforceable under A.R.S. § 33-1817(A), rejected the selective enforcement claim, and denied the petition.
Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2026-01-23T17:31:15 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
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Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2025-10-09T03:34:47 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
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Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.
Why this result: Petitioner failed to meet the burden of proof that the backflow flap was a common element maintenance responsibility under CC&Rs Sections 12(c) or 12(h)(1).
Key Issues & Findings
Violation of community documents regarding maintenance responsibility for sewage backflow flap.
Petitioner alleged the HOA violated CC&Rs by refusing to pay for repairs related to a malfunctioning backflow flap that caused a sewage overflow, arguing the item was a common element maintenance responsibility.
Orders: Petitioner Jennie Bennett’s Petition was dismissed.
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019002-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-02-26
Administrative Law Judge
Antara Nath Rivera
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Jennie Bennett
Counsel
Maxwell Riddiough
Respondent
Catalina Del Rey Homeowners Association
Counsel
Nathan Tennyson
Alleged Violations
CC&Rs Sections 12(c) and 12(h)(1)
Outcome Summary
The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.
Why this result: Petitioner failed to meet the burden of proof that the backflow flap was a common element maintenance responsibility under CC&Rs Sections 12(c) or 12(h)(1).
Key Issues & Findings
Violation of community documents regarding maintenance responsibility for sewage backflow flap.
Petitioner alleged the HOA violated CC&Rs by refusing to pay for repairs related to a malfunctioning backflow flap that caused a sewage overflow, arguing the item was a common element maintenance responsibility.
Orders: Petitioner Jennie Bennett’s Petition was dismissed.
Briefing Document: Jennie Bennett vs. Catalina Del Rey Homeowners Association
Executive Summary
This document synthesizes the findings, arguments, and conclusions from the Administrative Law Judge (ALJ) Decision in case number 20F-H2019002-REL-RHG, concerning a dispute between homeowner Jennie Bennett (Petitioner) and the Catalina Del Rey Homeowners Association (Respondent).
The core of the dispute was the financial responsibility for repairing a malfunctioning sewage backflow valve that caused an overflow at the petitioner’s residence. The petitioner argued that the HOA violated its Covenants, Conditions, Restrictions and Easements (CC&Rs), specifically Sections 12(c) and 12(h)(1), by refusing to cover the repair costs. The petitioner’s claim was complicated by the fact that the HOA had, just two weeks prior to the incident, rescinded a “Sewer Maintenance Policy” that had previously addressed such issues. The petitioner stated she was not notified of this rescission.
The respondent contended that the backflow valve was located on the petitioner’s private property, not in a common area, making its maintenance the petitioner’s responsibility under Section 15 of the CC&Rs. The HOA asserted that the 2017 policy was rescinded precisely because legal guidance confirmed this distinction. The HOA also maintained that notice of the rescission was sent to all homeowners.
The ALJ ultimately ruled in favor of the respondent, dismissing the petitioner’s petition. The decision concluded that the petitioner failed to meet the burden of proof—a preponderance of the evidence—to establish that the backflow valve was a common element covered by the cited CC&R sections. The evidence, including a plat map and photos, demonstrated the valve was on the petitioner’s private property. While the timing of the policy rescission was deemed “extremely unfortunate,” the ALJ found that once rescinded, the HOA was no longer obligated to share repair costs.
I. Case Overview
• Case Name: Jennie Bennett, Petitioner, vs. Catalina Del Rey Homeowners Association, Respondent.
• Case Number: 20F-H2019002-REL-RHG
• Forum: Arizona Office of Administrative Hearings
• Administrative Law Judge: Antara Nath Rivera
• Hearing Date: February 7, 2020
• Decision Date: February 26, 2020
• Core Allegation: The petitioner alleged that the HOA violated community documents, specifically Sections 12(c) and 12(h)(1) of the CC&Rs.
II. Central Dispute and Timeline of Events
The central issue was whether the HOA was responsible for the cost of repairing a malfunctioning sewage backflow flap on the petitioner’s property.
• March 2017: The HOA adopts a “Sewer Maintenance Policy” to outline processes for sewage maintenance.
• February 13, 2019: The HOA Board rescinds the Sewer Maintenance Policy.
• March 3, 2019: Petitioner Jennie Bennett experiences a sewage overflow at her residence due to a malfunctioning backflow valve.
• March – May 2019: The petitioner brings her concerns to the HOA board at multiple meetings but receives no response.
• May 22, 2019: The HOA responds to the petitioner after receiving a letter from her attorney.
• July 10, 2019: The petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.
III. Petitioner’s Position and Arguments (Jennie Bennett)
The petitioner, a resident for 20 years, argued that the HOA was liable for the repair costs based on the following points:
• CC&R Violation: The refusal to pay for the repair constituted a violation of Sections 12(c) and 12(h)(1) of the CC&Rs, which pertain to the HOA’s duty to maintain sewer lines and common elements.
• Lack of Notice: The petitioner testified she was not notified of the policy rescission on February 13, 2019. The sewage overflow occurred just two weeks later, and upon reporting it, she was informed by a neighbor that the HOA had historically covered such issues.
• Procedural Failure: The HOA failed to address her concerns at the March, April, or May board meetings, only engaging after her attorney intervened.
• Community Support: The petitioner collected 97 signatures on a grassroots petition asking the HOA to cover the repair due to the short time frame between the policy rescission and the incident, and the lack of notice. The petition stated: “I am asking to be covered because of the 2 week time frame and no notice. I agree with being covered by the HOA for the flap.”
IV. Respondent’s Position and Arguments (Catalina Del Rey HOA)
The HOA, represented by community manager Vanessa Lubinsky of Cadden Community Management, presented a defense centered on the distinction between private and common property.
• Private Property Responsibility: The HOA’s primary argument was that the backflow flap was located on the petitioner’s private property and was therefore her responsibility to maintain under Section 15 of the CC&Rs, which governs utilities like plumbing within a homeowner’s lot.
• Evidence of Location: The respondent submitted a plat map and photographs as evidence. The photos illustrated that the backflow flap was located “next to Petitioner’s walk up to her front door,” well within her property lines and not on common elements.
• Plumbing vs. Sewer Issue: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue,” because of its location on private property.
• Rationale for Policy Change: The 2017 Sewer Maintenance Policy was rescinded after the HOA received “additional legal guidance” confirming that backflow flaps were within homeowners’ units and thus their responsibility under Section 15.
• Notice and Procedure: Ms. Lubinsky testified that notice of the rescission was issued to homeowners via both email and postal mail (postcards). She clarified that the rescission was a board decision that did not require a homeowner vote, as it was not an amendment to the CC&Rs.
V. Relevant Sections of the CC&Rs
The dispute hinged on the interpretation of the following sections of the Declaration of Covenants, Conditions, Restrictions and Easements.
Section
Quoted Text from the Decision
Section 12(c)
“The Association shall maintain and landscape all front and side years open to the street, and shall maintain sewer lines, sidewalks, walkways, brick trim, streets and common recreation areas. …The words “repair or maintain” shall not be construed that the Association shall repair or maintain any individual lot owner’s roof or similar structure.”
Section 12(h)(1)
“Each such lot will be subject to assessments and the owner thereof shall pay to the Associations assessments as follows: Such lots pro rata share of the actual cost to the Association of all repair, maintenance, safety and control of common elements, including but not limited to maintenance of walkways, sidewalks, streets and sewers, care of lawns and landscaping in common areas and front and side yards of residences… .”
Section 15
(Described, not quoted) This section provides that the homeowner is responsible for the maintenance of utilities such as electricity and plumbing on their private property, similar to a single-family residence.
VI. Administrative Law Judge’s Findings and Ruling
The ALJ’s decision was based on the petitioner’s failure to meet the required burden of proof.
• Burden of Proof: The petitioner was required to establish the HOA’s violation by a “preponderance of the evidence,” meaning proof that convinces the trier of fact the contention is more probably true than not.
• Factual Determination: The judge found that the evidence, specifically the photos and plat map, demonstrated conclusively that the backflow flap was on the petitioner’s private property near her front door.
• Conclusion on CC&Rs: Because the flap was determined not to be located within a common area, the petitioner failed to establish that it fell under the purview of Sections 12(c) or 12(h)(1). Therefore, she failed to prove the HOA had a responsibility to repair it under those sections.
• Effect of Policy Rescission: The judge acknowledged, “It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.” However, the ruling stated that once the policy was rescinded, the HOA “was not obligated to share the cost of repairs.”
• Final Order: “IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.” The order is binding on the parties, with any appeal required to be filed with the superior court within thirty-five days of service.
Study Guide – 20F-H2019002-REL-RHG
Study Guide: Bennett v. Catalina Del Rey Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case text.
1. Who were the Petitioner and the Respondent in this case, and what was the legal case number?
2. What specific sections of the community documents did Petitioner Jennie Bennett allege the Respondent had violated?
3. Describe the incident that prompted the dispute and the date on which it occurred.
4. What was the “Sewer Maintenance Policy,” when was it adopted, and when was it rescinded?
5. According to the Respondent’s manager, Vanessa Lubinsky, why was the repair Jennie Bennett’s financial responsibility?
6. What evidence did the Respondent present to prove the location of the malfunctioning backflow flap?
7. What steps did Jennie Bennett take to rally support from her neighbors after the Respondent did not address her concerns?
8. What is the legal standard for the burden of proof in this case, and which party does it fall on?
9. According to Section 12(c) of the CC&Rs, what specific areas is the Homeowners Association responsible for maintaining?
10. What was the final ruling, or “Order,” issued by the Administrative Law Judge in this case?
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Answer Key
1. The Petitioner was Jennie Bennett, represented by attorney Maxwell Riddiough. The Respondent was the Catalina Del Rey Homeowners Association, represented by attorney Nathan Tennyson. The case number was 20F-H2019002-REL-RHG.
2. The Petitioner alleged that the Respondent violated Sections 12(c) and 12(h)(1) of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). This was noted as a single-issue petition.
3. On or about March 3, 2019, the Petitioner experienced a sewage overflow into her house. The overflow was caused by malfunctioning backflow valves.
4. The Sewer Maintenance Policy was a policy adopted in March 2017 to outline the process for sewage maintenance issues. It was rescinded by the HOA Board on February 13, 2019, shortly before the Petitioner’s incident.
5. Vanessa Lubinsky testified that the issue was the Petitioner’s responsibility because the malfunctioning backflow flap was located on her private property. Under Section 15 of the CC&Rs, homeowners are responsible for the maintenance of their own plumbing, electricity, and other utilities.
6. The Respondent presented a plat map, which specified all property lines, and photos. This evidence illustrated that the backflow flap was located inside the lines of the Petitioner’s private property, next to the walk-up to her front door, and not on common elements.
7. The Petitioner obtained 97 signatures on a “Grassroots petition.” The petition explained her situation and argued that she should be covered by the HOA for the repair due to the short time between the policy rescission and her incident, and because she had not received written notice.
8. The legal standard is “preponderance of the evidence,” which means the proof must convince the trier of fact that the contention is more probably true than not. The burden of proof fell on the Petitioner, Jennie Bennett, to establish that the Respondent committed the alleged violations.
9. Section 12(c) states the Association is responsible for maintaining and landscaping front and side yards open to the street. It also specifies the Association’s duty to maintain sewer lines, sidewalks, walkways, brick trim, streets, and common recreation areas.
10. The Administrative Law Judge ordered that Petitioner Jennie Bennett’s Petition be dismissed. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent had violated the CC&Rs.
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Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a detailed essay response for each prompt, using specific evidence and arguments from the provided text to support your conclusions.
1. Analyze and contrast the core arguments presented by the Petitioner, Jennie Bennett, and the Respondent, Catalina Del Rey Homeowners Association. How did each party use the CC&Rs and the Sewer Maintenance Policy to support their position?
2. Discuss the significance of the Sewer Maintenance Policy’s rescission. Evaluate the timing of the rescission relative to the Petitioner’s incident and the arguments made regarding notification to homeowners.
3. Explain the legal concept of “preponderance of the evidence” as defined in the case document. How did Administrative Law Judge Antara Nath Rivera apply this standard to the evidence presented by both parties to reach a final decision?
4. Evaluate the role of physical evidence, specifically the plat map and photographs, in the outcome of this hearing. Why was determining the precise location of the backflow flap the central issue of the case?
5. From an ethical and community governance perspective, discuss the actions of the Catalina Del Rey Homeowners Association. Consider their decision to rescind the policy, the method of notification, and their initial responses (or lack thereof) to Ms. Bennett’s requests at the board meetings.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Antara Nath Rivera, who presides over hearings at the Office of Administrative Hearings and makes legal decisions and orders.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.
Common Elements
Areas within the HOA community that are not part of an individual homeowner’s private property and are maintained by the Association. Examples from the text include walkways, sidewalks, streets, sewers, and recreation areas.
Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs)
The governing legal documents that outline the rules, obligations, and restrictions for a planned community. The Petitioner alleged a violation of Sections 12(c) and 12(h)(1) of these documents.
Homeowners Association (HOA)
The community organization, Catalina Del Rey Homeowners Association, responsible for managing and maintaining the common elements of a planned community as defined by the CC&Rs.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was homeowner Jennie Bennett.
Plat Map
A map, drawn to scale, showing the divisions of a piece of land. In this case, it was used as evidence to specify all property lines, including the Petitioner’s.
Preponderance of the Evidence
The evidentiary standard required to win the case, defined as proof that convinces the trier of fact that a contention is “more probably true than not.” It is described as the “greater weight of the evidence.”
Rescission
The act of canceling or revoking a policy or decision. The HOA Board rescinded its Sewer Maintenance Policy on February 13, 2019.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Catalina Del Rey Homeowners Association.
Blog Post – 20F-H2019002-REL-RHG
A Homeowner’s Sewage Nightmare: 5 Surprising Lessons from a Losing Battle with an HOA
Introduction: The Dreaded HOA Letter
For many homeowners, the greatest fear isn’t a storm or a failing appliance; it’s a sudden, catastrophic repair bill. This anxiety is often magnified for those living in a planned community, where another layer of complexity—the Homeowners Association (HOA)—governs every aspect of property maintenance. A dispute with the HOA can turn a straightforward repair into a frustrating and expensive legal battle.
The case of Jennie Bennett, a resident in her home for 20 years, and the Catalina Del Rey Homeowners Association is a stark cautionary tale. After a sewage overflow caused by a malfunctioning backflow valve, Ms. Bennett found herself in a dispute with her HOA over who should pay for the repair, claiming the association had violated Sections 12(c) and 12(h)(1) of its governing documents. The resulting legal decision reveals critical, and often surprising, insights into how HOA rules are interpreted and enforced. This article breaks down the five most impactful lessons from her losing battle.
1. Location is Everything: The Critical Line Between Private and Common Property
The single most important factor in the judge’s decision was the physical location of the broken part. The entire case hinged on a simple question: was the malfunctioning backflow flap on Jennie Bennett’s private property or in an HOA-maintained common area?
The HOA argued that the plat map and photos proved the flap was located “next to Petitioner’s walk up to her front door,” placing it squarely inside her private property line. While the homeowner claimed the HOA was responsible for “sewer lines” under Sections 12(c) and 12(h)(1) of the Covenants, Conditions, and Restrictions (CC&Rs), this argument failed. The HOA’s manager, Vanessa Lubinsky, perfectly synthesized the association’s legal position when she “opined that the backflow flap was a plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”
Because the backflow flap was deemed to be on private property, it fell under Section 15 of the CC&Rs. This clause stipulated that the homeowner was responsible for the maintenance of their own plumbing, electricity, and other utilities—much like the owner of a single-family residence. The specific location of the failure, not the general nature of the system it belonged to, determined financial responsibility.
2. An HOA ‘Policy’ Can Vanish Overnight
For nearly two years, from March 2017 to February 2019, the Catalina Del Rey HOA had a “Sewer Maintenance Policy” in place. This policy, which had been in effect for nearly two years, outlined a process for handling sewage maintenance; however, once rescinded, the HOA was no longer obligated to share in repair costs. The Board of Directors rescinded this policy on February 13, 2019. The petitioner’s sewage overflow occurred on March 3, 2019—less than three weeks later.
Crucially, the HOA’s action was not arbitrary. According to case testimony, the board rescinded the policy because, “After Respondent received additional legal guidance, it was determined that the backflow flaps were located within the homeowners’ units and on private property.” This reveals a critical insight: the HOA made a calculated, legally-informed decision to shift liability back to homeowners to align with the CC&Rs.
This also highlights the significant difference between a formal, recorded CC&R and a simple board policy. As the HOA manager clarified, rescinding the policy did not require a homeowner vote because it was not an amendment to the core CC&Rs. A board can unilaterally change a policy, altering the financial obligations of every resident without a community-wide vote.
3. The High Cost of “Extremely Unfortunate” Timing
The timing of the sewage backup, occurring just after the policy change, was a devastating coincidence for the homeowner. The administrative law judge acknowledged this directly in the final decision, stating:
It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.
Compounding the issue was a dispute over communication. The petitioner claimed she “was not notified of the rescission.” In her efforts to be covered, she even gathered 97 signatures on a “Grassroots petition” from her neighbors. The petitioner claimed she received no substantive response from the board regarding her repair claim until her attorney sent a formal letter on May 22, 2019. The HOA countered this, stating that notice of the policy change had been sent to homeowners via both email and postcards.
This takeaway is impactful because it demonstrates how quickly a homeowner’s rights and financial obligations can change. A simple board decision, potentially missed in a stack of mail or an overlooked email, can result in thousands of dollars in unexpected costs.
4. The Burden of Proof Is on the Homeowner, Not the HOA
In any legal dispute, one side has the “burden of proof”—the responsibility to convince the judge that their claim is true. In this HOA case, that burden fell entirely on the petitioner, Jennie Bennett.
The legal standard required her to prove her case by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient to persuade a judge that a claim is more likely true than not. The legal decision provides a clear definition:
“[t]he greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ultimately, the judge concluded that the homeowner did not meet this standard. The final order states, “Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.” This underscores a critical point: when a homeowner challenges an HOA, it is their responsibility to build the winning case with convincing evidence.
Conclusion: Know Your Documents, Know Your Property Lines
The overarching lesson from Jennie Bennett’s experience is that in an HOA, the fine print matters immensely. The precise wording of the governing documents and, as this case proves, the exact location of property lines are paramount. A board policy you rely on today could be gone tomorrow, and a repair you assume is a community responsibility could be deemed yours based on a measurement of inches.
This case serves as a powerful reminder for all homeowners to be proactive. Read your CC&Rs, pay attention to all communications from your board, and understand the difference between binding covenants and changeable policies. It all comes down to one final, critical question: Do you know exactly where your maintenance responsibilities end and your HOA’s begin?
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019002-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-02-26
Administrative Law Judge
Antara Nath Rivera
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Jennie Bennett
Counsel
Maxwell Riddiough
Respondent
Catalina Del Rey Homeowners Association
Counsel
Nathan Tennyson
Alleged Violations
CC&Rs Sections 12(c) and 12(h)(1)
Outcome Summary
The Administrative Law Judge ordered that Petitioner Jennie Bennett's Petition be dismissed because Petitioner failed to establish by a preponderance of the evidence that Respondent violated the cited sections of the CC&Rs.
Why this result: Petitioner failed to meet the burden of proof that the backflow flap was a common element maintenance responsibility under CC&Rs Sections 12(c) or 12(h)(1).
Key Issues & Findings
Violation of community documents regarding maintenance responsibility for sewage backflow flap.
Petitioner asserted the HOA violated CC&Rs Sections 12(c) and 12(h)(1) by refusing to pay for repairs to a malfunctioning backflow flap that caused a sewage overflow, arguing the HOA was responsible for maintenance.
Briefing Document: Jennie Bennett vs. Catalina Del Rey Homeowners Association
Executive Summary
This document synthesizes the findings, arguments, and conclusions from the Administrative Law Judge (ALJ) Decision in case number 20F-H2019002-REL-RHG, concerning a dispute between homeowner Jennie Bennett (Petitioner) and the Catalina Del Rey Homeowners Association (Respondent).
The core of the dispute was the financial responsibility for repairing a malfunctioning sewage backflow valve that caused an overflow at the petitioner’s residence. The petitioner argued that the HOA violated its Covenants, Conditions, Restrictions and Easements (CC&Rs), specifically Sections 12(c) and 12(h)(1), by refusing to cover the repair costs. The petitioner’s claim was complicated by the fact that the HOA had, just two weeks prior to the incident, rescinded a “Sewer Maintenance Policy” that had previously addressed such issues. The petitioner stated she was not notified of this rescission.
The respondent contended that the backflow valve was located on the petitioner’s private property, not in a common area, making its maintenance the petitioner’s responsibility under Section 15 of the CC&Rs. The HOA asserted that the 2017 policy was rescinded precisely because legal guidance confirmed this distinction. The HOA also maintained that notice of the rescission was sent to all homeowners.
The ALJ ultimately ruled in favor of the respondent, dismissing the petitioner’s petition. The decision concluded that the petitioner failed to meet the burden of proof—a preponderance of the evidence—to establish that the backflow valve was a common element covered by the cited CC&R sections. The evidence, including a plat map and photos, demonstrated the valve was on the petitioner’s private property. While the timing of the policy rescission was deemed “extremely unfortunate,” the ALJ found that once rescinded, the HOA was no longer obligated to share repair costs.
I. Case Overview
• Case Name: Jennie Bennett, Petitioner, vs. Catalina Del Rey Homeowners Association, Respondent.
• Case Number: 20F-H2019002-REL-RHG
• Forum: Arizona Office of Administrative Hearings
• Administrative Law Judge: Antara Nath Rivera
• Hearing Date: February 7, 2020
• Decision Date: February 26, 2020
• Core Allegation: The petitioner alleged that the HOA violated community documents, specifically Sections 12(c) and 12(h)(1) of the CC&Rs.
II. Central Dispute and Timeline of Events
The central issue was whether the HOA was responsible for the cost of repairing a malfunctioning sewage backflow flap on the petitioner’s property.
• March 2017: The HOA adopts a “Sewer Maintenance Policy” to outline processes for sewage maintenance.
• February 13, 2019: The HOA Board rescinds the Sewer Maintenance Policy.
• March 3, 2019: Petitioner Jennie Bennett experiences a sewage overflow at her residence due to a malfunctioning backflow valve.
• March – May 2019: The petitioner brings her concerns to the HOA board at multiple meetings but receives no response.
• May 22, 2019: The HOA responds to the petitioner after receiving a letter from her attorney.
• July 10, 2019: The petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.
III. Petitioner’s Position and Arguments (Jennie Bennett)
The petitioner, a resident for 20 years, argued that the HOA was liable for the repair costs based on the following points:
• CC&R Violation: The refusal to pay for the repair constituted a violation of Sections 12(c) and 12(h)(1) of the CC&Rs, which pertain to the HOA’s duty to maintain sewer lines and common elements.
• Lack of Notice: The petitioner testified she was not notified of the policy rescission on February 13, 2019. The sewage overflow occurred just two weeks later, and upon reporting it, she was informed by a neighbor that the HOA had historically covered such issues.
• Procedural Failure: The HOA failed to address her concerns at the March, April, or May board meetings, only engaging after her attorney intervened.
• Community Support: The petitioner collected 97 signatures on a grassroots petition asking the HOA to cover the repair due to the short time frame between the policy rescission and the incident, and the lack of notice. The petition stated: “I am asking to be covered because of the 2 week time frame and no notice. I agree with being covered by the HOA for the flap.”
IV. Respondent’s Position and Arguments (Catalina Del Rey HOA)
The HOA, represented by community manager Vanessa Lubinsky of Cadden Community Management, presented a defense centered on the distinction between private and common property.
• Private Property Responsibility: The HOA’s primary argument was that the backflow flap was located on the petitioner’s private property and was therefore her responsibility to maintain under Section 15 of the CC&Rs, which governs utilities like plumbing within a homeowner’s lot.
• Evidence of Location: The respondent submitted a plat map and photographs as evidence. The photos illustrated that the backflow flap was located “next to Petitioner’s walk up to her front door,” well within her property lines and not on common elements.
• Plumbing vs. Sewer Issue: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue,” because of its location on private property.
• Rationale for Policy Change: The 2017 Sewer Maintenance Policy was rescinded after the HOA received “additional legal guidance” confirming that backflow flaps were within homeowners’ units and thus their responsibility under Section 15.
• Notice and Procedure: Ms. Lubinsky testified that notice of the rescission was issued to homeowners via both email and postal mail (postcards). She clarified that the rescission was a board decision that did not require a homeowner vote, as it was not an amendment to the CC&Rs.
V. Relevant Sections of the CC&Rs
The dispute hinged on the interpretation of the following sections of the Declaration of Covenants, Conditions, Restrictions and Easements.
Section
Quoted Text from the Decision
Section 12(c)
“The Association shall maintain and landscape all front and side years open to the street, and shall maintain sewer lines, sidewalks, walkways, brick trim, streets and common recreation areas. …The words “repair or maintain” shall not be construed that the Association shall repair or maintain any individual lot owner’s roof or similar structure.”
Section 12(h)(1)
“Each such lot will be subject to assessments and the owner thereof shall pay to the Associations assessments as follows: Such lots pro rata share of the actual cost to the Association of all repair, maintenance, safety and control of common elements, including but not limited to maintenance of walkways, sidewalks, streets and sewers, care of lawns and landscaping in common areas and front and side yards of residences… .”
Section 15
(Described, not quoted) This section provides that the homeowner is responsible for the maintenance of utilities such as electricity and plumbing on their private property, similar to a single-family residence.
VI. Administrative Law Judge’s Findings and Ruling
The ALJ’s decision was based on the petitioner’s failure to meet the required burden of proof.
• Burden of Proof: The petitioner was required to establish the HOA’s violation by a “preponderance of the evidence,” meaning proof that convinces the trier of fact the contention is more probably true than not.
• Factual Determination: The judge found that the evidence, specifically the photos and plat map, demonstrated conclusively that the backflow flap was on the petitioner’s private property near her front door.
• Conclusion on CC&Rs: Because the flap was determined not to be located within a common area, the petitioner failed to establish that it fell under the purview of Sections 12(c) or 12(h)(1). Therefore, she failed to prove the HOA had a responsibility to repair it under those sections.
• Effect of Policy Rescission: The judge acknowledged, “It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.” However, the ruling stated that once the policy was rescinded, the HOA “was not obligated to share the cost of repairs.”
• Final Order: “IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.” The order is binding on the parties, with any appeal required to be filed with the superior court within thirty-five days of service.
Study Guide – 20F-H2019002-REL-RHG
Study Guide: Bennett v. Catalina Del Rey Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case text.
1. Who were the Petitioner and the Respondent in this case, and what was the legal case number?
2. What specific sections of the community documents did Petitioner Jennie Bennett allege the Respondent had violated?
3. Describe the incident that prompted the dispute and the date on which it occurred.
4. What was the “Sewer Maintenance Policy,” when was it adopted, and when was it rescinded?
5. According to the Respondent’s manager, Vanessa Lubinsky, why was the repair Jennie Bennett’s financial responsibility?
6. What evidence did the Respondent present to prove the location of the malfunctioning backflow flap?
7. What steps did Jennie Bennett take to rally support from her neighbors after the Respondent did not address her concerns?
8. What is the legal standard for the burden of proof in this case, and which party does it fall on?
9. According to Section 12(c) of the CC&Rs, what specific areas is the Homeowners Association responsible for maintaining?
10. What was the final ruling, or “Order,” issued by the Administrative Law Judge in this case?
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Answer Key
1. The Petitioner was Jennie Bennett, represented by attorney Maxwell Riddiough. The Respondent was the Catalina Del Rey Homeowners Association, represented by attorney Nathan Tennyson. The case number was 20F-H2019002-REL-RHG.
2. The Petitioner alleged that the Respondent violated Sections 12(c) and 12(h)(1) of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). This was noted as a single-issue petition.
3. On or about March 3, 2019, the Petitioner experienced a sewage overflow into her house. The overflow was caused by malfunctioning backflow valves.
4. The Sewer Maintenance Policy was a policy adopted in March 2017 to outline the process for sewage maintenance issues. It was rescinded by the HOA Board on February 13, 2019, shortly before the Petitioner’s incident.
5. Vanessa Lubinsky testified that the issue was the Petitioner’s responsibility because the malfunctioning backflow flap was located on her private property. Under Section 15 of the CC&Rs, homeowners are responsible for the maintenance of their own plumbing, electricity, and other utilities.
6. The Respondent presented a plat map, which specified all property lines, and photos. This evidence illustrated that the backflow flap was located inside the lines of the Petitioner’s private property, next to the walk-up to her front door, and not on common elements.
7. The Petitioner obtained 97 signatures on a “Grassroots petition.” The petition explained her situation and argued that she should be covered by the HOA for the repair due to the short time between the policy rescission and her incident, and because she had not received written notice.
8. The legal standard is “preponderance of the evidence,” which means the proof must convince the trier of fact that the contention is more probably true than not. The burden of proof fell on the Petitioner, Jennie Bennett, to establish that the Respondent committed the alleged violations.
9. Section 12(c) states the Association is responsible for maintaining and landscaping front and side yards open to the street. It also specifies the Association’s duty to maintain sewer lines, sidewalks, walkways, brick trim, streets, and common recreation areas.
10. The Administrative Law Judge ordered that Petitioner Jennie Bennett’s Petition be dismissed. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent had violated the CC&Rs.
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Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a detailed essay response for each prompt, using specific evidence and arguments from the provided text to support your conclusions.
1. Analyze and contrast the core arguments presented by the Petitioner, Jennie Bennett, and the Respondent, Catalina Del Rey Homeowners Association. How did each party use the CC&Rs and the Sewer Maintenance Policy to support their position?
2. Discuss the significance of the Sewer Maintenance Policy’s rescission. Evaluate the timing of the rescission relative to the Petitioner’s incident and the arguments made regarding notification to homeowners.
3. Explain the legal concept of “preponderance of the evidence” as defined in the case document. How did Administrative Law Judge Antara Nath Rivera apply this standard to the evidence presented by both parties to reach a final decision?
4. Evaluate the role of physical evidence, specifically the plat map and photographs, in the outcome of this hearing. Why was determining the precise location of the backflow flap the central issue of the case?
5. From an ethical and community governance perspective, discuss the actions of the Catalina Del Rey Homeowners Association. Consider their decision to rescind the policy, the method of notification, and their initial responses (or lack thereof) to Ms. Bennett’s requests at the board meetings.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Antara Nath Rivera, who presides over hearings at the Office of Administrative Hearings and makes legal decisions and orders.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.
Common Elements
Areas within the HOA community that are not part of an individual homeowner’s private property and are maintained by the Association. Examples from the text include walkways, sidewalks, streets, sewers, and recreation areas.
Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs)
The governing legal documents that outline the rules, obligations, and restrictions for a planned community. The Petitioner alleged a violation of Sections 12(c) and 12(h)(1) of these documents.
Homeowners Association (HOA)
The community organization, Catalina Del Rey Homeowners Association, responsible for managing and maintaining the common elements of a planned community as defined by the CC&Rs.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was homeowner Jennie Bennett.
Plat Map
A map, drawn to scale, showing the divisions of a piece of land. In this case, it was used as evidence to specify all property lines, including the Petitioner’s.
Preponderance of the Evidence
The evidentiary standard required to win the case, defined as proof that convinces the trier of fact that a contention is “more probably true than not.” It is described as the “greater weight of the evidence.”
Rescission
The act of canceling or revoking a policy or decision. The HOA Board rescinded its Sewer Maintenance Policy on February 13, 2019.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Catalina Del Rey Homeowners Association.
Blog Post – 20F-H2019002-REL-RHG
A Homeowner’s Sewage Nightmare: 5 Surprising Lessons from a Losing Battle with an HOA
Introduction: The Dreaded HOA Letter
For many homeowners, the greatest fear isn’t a storm or a failing appliance; it’s a sudden, catastrophic repair bill. This anxiety is often magnified for those living in a planned community, where another layer of complexity—the Homeowners Association (HOA)—governs every aspect of property maintenance. A dispute with the HOA can turn a straightforward repair into a frustrating and expensive legal battle.
The case of Jennie Bennett, a resident in her home for 20 years, and the Catalina Del Rey Homeowners Association is a stark cautionary tale. After a sewage overflow caused by a malfunctioning backflow valve, Ms. Bennett found herself in a dispute with her HOA over who should pay for the repair, claiming the association had violated Sections 12(c) and 12(h)(1) of its governing documents. The resulting legal decision reveals critical, and often surprising, insights into how HOA rules are interpreted and enforced. This article breaks down the five most impactful lessons from her losing battle.
1. Location is Everything: The Critical Line Between Private and Common Property
The single most important factor in the judge’s decision was the physical location of the broken part. The entire case hinged on a simple question: was the malfunctioning backflow flap on Jennie Bennett’s private property or in an HOA-maintained common area?
The HOA argued that the plat map and photos proved the flap was located “next to Petitioner’s walk up to her front door,” placing it squarely inside her private property line. While the homeowner claimed the HOA was responsible for “sewer lines” under Sections 12(c) and 12(h)(1) of the Covenants, Conditions, and Restrictions (CC&Rs), this argument failed. The HOA’s manager, Vanessa Lubinsky, perfectly synthesized the association’s legal position when she “opined that the backflow flap was a plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”
Because the backflow flap was deemed to be on private property, it fell under Section 15 of the CC&Rs. This clause stipulated that the homeowner was responsible for the maintenance of their own plumbing, electricity, and other utilities—much like the owner of a single-family residence. The specific location of the failure, not the general nature of the system it belonged to, determined financial responsibility.
2. An HOA ‘Policy’ Can Vanish Overnight
For nearly two years, from March 2017 to February 2019, the Catalina Del Rey HOA had a “Sewer Maintenance Policy” in place. This policy, which had been in effect for nearly two years, outlined a process for handling sewage maintenance; however, once rescinded, the HOA was no longer obligated to share in repair costs. The Board of Directors rescinded this policy on February 13, 2019. The petitioner’s sewage overflow occurred on March 3, 2019—less than three weeks later.
Crucially, the HOA’s action was not arbitrary. According to case testimony, the board rescinded the policy because, “After Respondent received additional legal guidance, it was determined that the backflow flaps were located within the homeowners’ units and on private property.” This reveals a critical insight: the HOA made a calculated, legally-informed decision to shift liability back to homeowners to align with the CC&Rs.
This also highlights the significant difference between a formal, recorded CC&R and a simple board policy. As the HOA manager clarified, rescinding the policy did not require a homeowner vote because it was not an amendment to the core CC&Rs. A board can unilaterally change a policy, altering the financial obligations of every resident without a community-wide vote.
3. The High Cost of “Extremely Unfortunate” Timing
The timing of the sewage backup, occurring just after the policy change, was a devastating coincidence for the homeowner. The administrative law judge acknowledged this directly in the final decision, stating:
It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.
Compounding the issue was a dispute over communication. The petitioner claimed she “was not notified of the rescission.” In her efforts to be covered, she even gathered 97 signatures on a “Grassroots petition” from her neighbors. The petitioner claimed she received no substantive response from the board regarding her repair claim until her attorney sent a formal letter on May 22, 2019. The HOA countered this, stating that notice of the policy change had been sent to homeowners via both email and postcards.
This takeaway is impactful because it demonstrates how quickly a homeowner’s rights and financial obligations can change. A simple board decision, potentially missed in a stack of mail or an overlooked email, can result in thousands of dollars in unexpected costs.
4. The Burden of Proof Is on the Homeowner, Not the HOA
In any legal dispute, one side has the “burden of proof”—the responsibility to convince the judge that their claim is true. In this HOA case, that burden fell entirely on the petitioner, Jennie Bennett.
The legal standard required her to prove her case by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient to persuade a judge that a claim is more likely true than not. The legal decision provides a clear definition:
“[t]he greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ultimately, the judge concluded that the homeowner did not meet this standard. The final order states, “Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.” This underscores a critical point: when a homeowner challenges an HOA, it is their responsibility to build the winning case with convincing evidence.
Conclusion: Know Your Documents, Know Your Property Lines
The overarching lesson from Jennie Bennett’s experience is that in an HOA, the fine print matters immensely. The precise wording of the governing documents and, as this case proves, the exact location of property lines are paramount. A board policy you rely on today could be gone tomorrow, and a repair you assume is a community responsibility could be deemed yours based on a measurement of inches.
This case serves as a powerful reminder for all homeowners to be proactive. Read your CC&Rs, pay attention to all communications from your board, and understand the difference between binding covenants and changeable policies. It all comes down to one final, critical question: Do you know exactly where your maintenance responsibilities end and your HOA’s begin?
The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.
Why this result: Petitioner failed to meet the burden of proving Respondent violated A.R.S. § 33-1803(B), as the evidence showed Petitioner received sufficient constructive notice of the alleged violation and had an opportunity to be heard or appeal.
Key Issues & Findings
Whether the HOA violated statutory requirements regarding notice and imposition of monetary penalties/late fees, resulting in suspension of privileges.
Petitioner alleged the HOA violated A.R.S. § 33-1803(B) by imposing fines and suspending gate/clubhouse access without providing adequate (actual) notice of the violation and hearing opportunity, and by improperly imposing late fees. The ALJ found the HOA provided constructive notice, satisfying the statute, and was entitled to impose cumulative fines for the ongoing violation.
Briefing Document: Greco v. Bellasera Community Association, Inc.
Executive Summary
This document synthesizes the findings and decision in the case of Robert L. Greco (Petitioner) versus the Bellasera Community Association, Inc. (Respondent), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge dismissed the petition, ruling in favor of the Homeowners Association (HOA).
The core dispute originated from a 2013 violation notice regarding a faded garage door. The Petitioner claimed he did not receive the initial notices and only became aware of the issue upon receiving a letter from the HOA’s attorney. Despite subsequently painting the door, an outstanding balance of $750 in fines remained on his account. For six years, the Petitioner paid his quarterly dues but ignored the outstanding fine balance. In June 2019, after failed settlement negotiations, the HOA deactivated the Petitioner’s security gate fob and clubhouse access, prompting him to file the formal dispute.
The judge’s decision rested on two key legal conclusions. First, the court rejected the Petitioner’s argument that “actual notice” was required for the fines to be valid. It ruled that the multiple notices mailed to the Petitioner’s residence constituted sufficient “constructive notice” under Arizona law, providing both notification of the violation and an opportunity to be heard. Second, the court determined that the $750 charge was not an improper late fee but rather three separate, legitimate fines of $250 each, levied for an ongoing, uncorrected violation as per the HOA’s enforcement policy.
Case Overview
Case Name
Robert L Greco, Petitioner, vs. Bellasera Community Association, Inc., Respondent
Case Number
20F-H2019018-REL
Jurisdiction
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
January 9, 2020
Decision Date
January 29, 2020
Petitioner’s Core Allegation
Respondent violated A.R.S. § 33-1803(B) by imposing penalties and revoking privileges without providing proper notice and an opportunity to be heard.
Core Factual Issue
The denial of automatic gate and clubhouse access to the Petitioner on July 1, 2019, due to unpaid fines from 2013.
Chronology of the Dispute
The conflict between Mr. Greco and the Bellasera Community Association unfolded over six years, escalating from a minor maintenance issue to a formal legal dispute and revocation of privileges.
Initial Violation and Fines (2013)
Details
Feb. 5, 2013
Courtesy Notice
Respondent sent a notice to Petitioner’s address stating his garage door was faded and needed to be repainted, in violation of the Design Guidelines.
Mar. 14, 2013
Final Notice & First Fine
A follow-up notice was sent, stating a $250 fine was posted to Petitioner’s account. It warned that an additional $250 fine would be assessed automatically every 14 days if the violation remained uncorrected.
Apr. 2, 2013
Notice of Remedy & Second Fine
A third notice was sent, posting another $250 fine. This letter explicitly warned that the HOA had the “ability to suspend privileges for use of the Recreational Facilities” and informed the Petitioner of his right to appeal within 14 days.
May 7, 2013
Fourth Notice & Third Fine
A fourth notice was sent, posting another $250 fine to the account. It again noted the right to appeal the fine.
Jun. 5, 2013
Letter from HOA Counsel
Attorney Kelly Oetinger sent a letter demanding the garage door be repainted within 15 days. The letter explicitly stated, “If you do not repaint… the Association may disable the transponder you use to enter the community and may disable the fobs you use for the clubhouse.”
Petitioner’s Response and Aftermath (2013)
• July 4, 2013: Petitioner repainted the garage door.
• July 5, 2013: Petitioner sent a letter to the HOA stating the attorney’s letter was his “initial alert of the garage door condition.” He explained his delay by stating, “To effectively manage my workload, I dispose of unsolicited mail… In the future, I will exercise greater caution in disposing of unsolicited mail.”
• July 5, 2013: The HOA sent a letter acknowledging the repainting and offered to settle the $900 in fines for a payment of $500. The letter reiterated the threat to deactivate gate openers and fobs.
• July 17, 2013: The HOA sent a follow-up letter correcting an internal accounting error. The total fines were $750, not $900. A new settlement offer was made: pay $375, and the remaining $375 would be waived.
Period of Inaction (2013 – 2019)
From 2013 to 2019, the Petitioner received quarterly statements from the HOA indicating a $750 balance in addition to current assessments. Each quarter, the Petitioner would physically cross out the $750 balance and pay only the current assessment amount.
Escalation and Revocation of Privileges (2019)
• June 2019: Dennis Carson, a friend of the Petitioner serving on the HOA Board of Directors, informed him that his name was on a penalty list and the Board planned to deactivate his security gate and clubhouse access.
• June 2019: Settlement negotiations failed. The Petitioner offered $100; the Board countered with $250. The Petitioner then offered $251 ($250 for the fine and $1 to rent the clubhouse), which the Board declined.
• July 1, 2019: The Respondent deactivated the Petitioner’s security gate fob and access to the clubhouse.
• October 11, 2019: The Petitioner filed the Homeowners Association Dispute Process Petition, initiating the legal proceedings.
Key Arguments and Legal Findings
The Administrative Law Judge’s decision centered on the interpretation of “notice” as required by state law and the legitimacy of the fines imposed by the HOA.
Petitioner’s Position
1. Lack of Proper Notice: The Petitioner argued that he had not received “actual notice” of the violation or the impending fines until the letter from the HOA’s counsel on June 5, 2013. He asserted that because he acted promptly after receiving that letter, the fines were unjust. His argument implied that warnings in mail he did not personally read could not be held against him.
2. Improper Fines: The Petitioner alleged that the additional $500 in charges on the original $250 fine constituted improper late fees.
Administrative Law Judge’s Conclusions of Law
The Judge systematically refuted the Petitioner’s arguments, concluding that the HOA acted within its rights and in accordance with the law.
1. On the Matter of Notice:
• The governing statute, A.R.S. § 33-1803(B), requires “notice and an opportunity to be heard” before imposing penalties.
• The Judge found no legal authority requiring this to be “actual notice.” To accept this argument would create an unworkable standard where a homeowner could “avoid receiving ‘actual notice’ by simply refusing to sign for a certified mailing.”
• The decision established that the Petitioner received constructive notice through the “multiple mailings that were presumably delivered to his residential address.”
• The notices also informed the Petitioner how to appeal the matter, thereby satisfying the requirement for an “opportunity to be heard.”
• Conclusion: “Accordingly, Petitioner was provided notice and an opportunity to be heard in accordance with A.R.S. § 33-1803(B).”
2. On the Matter of Fines:
• The Judge differentiated between late fees and fines for an ongoing violation.
• The notices sent by the Respondent “clearly stated that an ongoing failure to remedy the violation would result in additional fines every 14 days.”
• The violation persisted from before March 14, 2013 (first fine) until July 5, 2013 (when the door was confirmed painted).
• Conclusion: The Respondent was entitled to impose three separate fines for the “ongoing condition of the garage door,” making the total of $750 legitimate.
Final Order and Implications
Based on the analysis of the evidence and law, the Administrative Law Judge reached a definitive conclusion.
• Final Ruling: “This Tribunal concludes that Respondent did not violate the provisions of A.R.S. § 33-1803(B).”
• Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Binding Nature: The order, dated January 29, 2020, is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019018-REL
Study Guide: Greco v. Bellasera Community Association, Inc.
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case of Robert L. Greco (Petitioner) versus Bellasera Community Association, Inc. (Respondent), Case No. 20F-H2019018-REL. It includes a short-answer quiz to test your knowledge, an answer key for review, a set of essay questions for deeper analysis, and a glossary of key terms.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each based on the information provided in the case document.
1. Who were the Petitioner and Respondent in this case, and what was the Petitioner’s central complaint that initiated the legal action?
2. What specific violation of the community’s rules was the Petitioner initially accused of, and which governing documents were cited as being violated?
3. Describe the timeline of notices and fines issued by the Respondent between February and May 2013.
4. What was the Petitioner’s explanation for not responding to the initial violation notices from the Respondent before receiving a letter from the association’s attorney?
5. What actions did the Respondent take in or around June 2019 that led the Petitioner to file his petition with the Arizona Department of Real Estate?
6. What was the Petitioner’s primary legal argument regarding the “notice” required by the Arizona statute A.R.S. § 33-1803(B)?
7. How did the Administrative Law Judge differentiate between “actual notice” and “constructive notice” in her decision?
8. Why did the judge ultimately conclude that the Respondent had provided the Petitioner with adequate “notice and an opportunity to be heard”?
9. Explain the Petitioner’s allegation about improper late fees and the reason the judge rejected this argument.
10. What was the final order of the Administrative Law Judge in this case, and what recourse was available to the parties?
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Answer Key
1. The Petitioner was homeowner Robert L. Greco, and the Respondent was the Bellasera Community Association, Inc. (the HOA). Greco’s central complaint, filed on October 11, 2019, was that the HOA had denied him automatic gate access and use of clubhouse facilities on July 1, 2019, despite his being a long-term resident with timely payment of all quarterly dues.
2. The Petitioner was accused of having a faded garage door that needed to be repainted. The violation was cited as being contrary to the CC&Rs (Covenants, Conditions and Restrictions), specifically Article V, Section 5.2, and the community’s Design Guidelines, specifically Article III, Section J.
3. The Respondent sent an initial “Courtesy Notice” on February 5, 2013. This was followed by a “Final Notice” with a $250 fine on March 14, a “Notice of Remedy” with another $250 fine on April 2, and a “Fourth Notice of Non-Compliance” with another $250 fine on May 7, 2013.
4. The Petitioner claimed that the attorney’s letter, received around June 5, 2013, was his “initial alert” regarding the garage door condition. He stated that he routinely disposes of unsolicited mail without reading it and had inadvertently discarded the previous notices sent by the Respondent.
5. In June 2019, after failed settlement negotiations over the outstanding $750 in fines from 2013, the Respondent deactivated the Petitioner’s security gate fob and his access to the clubhouse. This action prompted the Petitioner to file his dispute petition.
6. The Petitioner’s primary argument was that he did not receive “actual notice” of the violation until the attorney’s letter. He contended that because he acted promptly to correct the violation after receiving actual notice, he should not have been fined.
7. The judge used definitions from Black’s Law Dictionary. “Actual notice” was defined as notice given directly to, or personally received by, a party. “Constructive notice” was defined as notice arising by presumption of law from facts and circumstances that a party had a duty to take notice of.
8. The judge concluded that the multiple notices mailed to the Petitioner’s residential address constituted “constructive notice” of the violation. Because the relevant statute, A.R.S. § 33-1803(B), does not explicitly require “actual notice,” and the mailings also advised him of his right to appeal, the judge found the Respondent had fulfilled its obligation to provide notice and an opportunity to be heard.
9. The Petitioner alleged that the additional $500 in fines were improper late fees on the original $250 fine. The judge rejected this, clarifying that the Respondent’s notices stated that additional fines would be assessed every 14 days for an ongoing failure to remedy the violation. Therefore, the additional charges were three separate fines for the “ongoing condition of the garage door,” not late fees.
10. The final order was that the Petitioner’s petition be dismissed. The parties were notified that this order was binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.
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Essay Questions
The following questions are designed for deeper analysis and discussion. No answers are provided.
1. Analyze the Administrative Law Judge’s reasoning for favoring “constructive notice” over “actual notice” in the context of A.R.S. § 33-1803(B). Discuss the potential consequences for homeowners and HOAs if the ruling had required “actual notice.”
2. Trace the negotiation attempts between the Petitioner and the Respondent in 2013 and 2019. Evaluate the effectiveness of these attempts and discuss whether the dispute could have been resolved without formal legal proceedings.
3. The Petitioner argued that the fines imposed after the initial $250 were improper late fees. The judge, however, characterized them as new fines for an “ongoing condition.” Based on the evidence presented in the notices, construct an argument supporting both the Petitioner’s and the judge’s interpretation.
4. Discuss the concept of “burden of proof” in this case. Explain what “preponderance of the evidence” means and identify the key pieces of evidence that allowed the judge to conclude the Respondent did not violate the statute.
5. Examine the roles of the various community governing documents cited in this case (CC&Rs, Design Guidelines, Violation Enforcement policy). Explain how these documents worked together to grant the Respondent the authority to take action against the Petitioner.
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Glossary of Key Terms
Definition
A.R.S. § 33-1803(B)
The Arizona Revised Statute central to this case, which permits an HOA board to impose reasonable monetary penalties for violations after providing “notice and an opportunity to be heard.”
Actual Notice
As defined in the decision, it is “[n]otice given directly to, or received personally by, a party.”
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues a decision. In this case, it was Tammy L. Eigenheer.
Bellasera Community Association, Inc.
The Respondent in the case; the homeowners association (HOA) for the Bellasera Community in Arizona.
An acronym for Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents for the community, which the Petitioner was found to have violated (specifically Article V, Section 5.2).
Constructive Notice
As defined in the decision, it is “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.” The judge ruled that mail sent to a residence constitutes this form of notice.
Design Guidelines
A set of rules established by the HOA governing the aesthetic appearance of properties. The Petitioner was found in violation of Article III, Section J of these guidelines.
Petitioner
The party who initiates a legal action or petition seeking a ruling. In this case, it was the homeowner, Robert L. Greco.
Preponderance of the evidence
The standard of proof required in this hearing. It is defined as “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.”
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, it was the HOA.
Blog Post – 20F-H2019018-REL
He Threw Away His Mail for Years. His HOA’s Response Is a Warning to Every Homeowner.
That official-looking envelope from your Homeowners Association sits on the counter, a silent challenge. It’s easy to dismiss it as a newsletter or a bland reminder, just another piece of paper to be sorted later. But what if it isn’t? What if that envelope is a legal summons in disguise, the first shot in a battle you don’t even know you’re fighting?
For Robert L. Greco, a resident in his community for 17 years, this hypothetical became a harsh reality. He learned that ignoring HOA correspondence can ignite a conflict that smolders for years before erupting into severe consequences. Originating from a maintenance issue as simple as a faded garage door, his case offers a masterclass in the powerful lessons every homeowner should heed.
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1. The “I Didn’t Read It” Defense Doesn’t Work
The central pillar of the homeowner’s defense was disarmingly simple: he claimed he never received the first four violation notices because he habitually throws away what he considers “unsolicited mail.” He argued that without having read the warnings, he couldn’t be held responsible for the fines.
The judge’s ruling, however, invoked a foundational legal concept that extends far beyond HOA disputes into areas like property deeds and public records: the difference between “actual notice” and “constructive notice.” While actual notice means you personally saw the information, constructive notice presumes you have knowledge of something because it was delivered properly—in this case, mailed to the correct address. Whether you open the envelope is irrelevant.
In a July 5, 2013 letter, the homeowner unwittingly sealed his own fate by describing his mail-handling routine:
Routinely, Saturdays are my mail-pick-up days, and invariably, I walk straight to the re-cyclable container, and deposit the mail in the receptacle… I was astonished to learn that my garage door failed inspection. This is my initial alert of the garage door condition.
For homeowners, the takeaway is a stark one: in the eyes of the law, your recycling bin is not a valid legal defense. The burden doesn’t fall on an HOA to ensure you read your mail, only to send it. The responsibility to open and review all official correspondence rests squarely on the homeowner.
2. A Tiny Issue Can Snowball into a Years-Long Standoff
The timeline of this dispute reveals a classic case of conflict avoidance, where a minor, fixable problem was allowed to spiral into a major legal battle. The cost of a can of paint and a Saturday afternoon of work was ultimately dwarfed by a six-year, $750 dispute that cost the homeowner his access to his own community.
• February 5, 2013: The HOA sends its first “Courtesy Notice” regarding a faded garage door in need of repainting.
• March – May 2013: After no response, the HOA issues three more notices, levying escalating fines that total $750.
• 2013 to 2019: For six years, the homeowner receives quarterly statements showing the $750 balance. Each time, he would “cross out the $750.00 balance and pay the current assessment.”
• June/July 2019: The HOA finally forces the issue by deactivating his security gate fob and his access to the clubhouse.
This progression shows how a simple lack of communication transformed a weekend chore into a years-long standoff. By ignoring the notices and the subsequent fines, the homeowner allowed a molehill to grow into a mountain of conflict.
3. “Continuing Violation” Fines Are Not Late Fees
The homeowner contended that the HOA was improperly stacking late fees on top of an initial $250 penalty. However, the administrative law judge highlighted a critical distinction embedded in the association’s rules.
The HOA wasn’t charging late fees on a single, past-due penalty. It was levying new fines for a “continuing violation.” The notice sent on March 14, 2013, explicitly warned that “an additional fine of $250 will be assessed automatically every 14 days… if the violation remains uncorrected.”
This is a crucial detail found in many HOA bylaws. An unpainted garage door is not a one-time offense; it is an ongoing breach of community standards. A homeowner who thinks they are simply letting a single fine sit unpaid may actually be incurring entirely new violations over time, dramatically increasing their financial liability.
4. Failed Negotiations Can Cost More Than Money
Twice, this dispute could have been resolved. The breakdown in negotiations, however, reveals how ego and principle can prove more costly than the fines themselves.
The first attempt came in 2013, after the homeowner had finally painted the garage. The HOA initially offered to settle a supposed $900 balance for $500. This, however, was based on an “internal accounting error.” In a subsequent letter, the HOA apologized, corrected the record to show the true balance was $750, and made a formal offer: pay half—just $375—and the matter would be closed. The offer was not accepted. Including this error shows the HOA was not infallible, making the subsequent stalemate more complex.
The second negotiation occurred in 2019, prompted by a friend on the Board who urged a settlement. The homeowner offered $100. The Board countered with $250. The homeowner’s final offer was exquisitely specific: “$251.00, $250.00 to settle the outstanding fines and $1.00 to rent the clubhouse on a specific date.”
This offer was a tactical and psychological blunder. That extra dollar wasn’t about money; it was a message. Whether intended as a sarcastic jab or a principled stand to assert his rights as a member, it transformed a financial negotiation into a battle of wills. For a Board of Directors, accepting such an offer could be seen as capitulating to a petty gesture, setting a precedent that defiance works. They declined. Shortly after, the homeowner’s access to community facilities was cut off, leading to the legal petition he ultimately lost.
——————————————————————————–
Conclusion: A Lesson in Communication
This case serves as a powerful warning. The legal force of “constructive notice” makes you responsible for the mail you receive, not just the mail you read. The six-year standoff over a can of paint shows how inaction can have disproportionate consequences. And the failed $251 offer demonstrates that good-faith negotiation is paramount.
Ultimately, the homeowner was left still owing the money and locked out of his own amenities—a casualty of a battle he prolonged at every turn. It leaves every homeowner with a critical question to consider: in a dispute with your HOA, where is the line between standing on principle and causing yourself unnecessary harm?
Case Participants
Petitioner Side
Robert L Greco(petitioner)
Respondent Side
Nathan Tennyson(attorney) Brown|Olcott, PLLC
David Reid(board member) Testified for Respondent
Annette McCarthy(manager) Acting Manager; Testified for Respondent
Kelly Oetinger(attorney) Counsel for Respondent in 2013
The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.
Why this result: Petitioner failed to meet the burden of proving Respondent violated A.R.S. § 33-1803(B), as the evidence showed Petitioner received sufficient constructive notice of the alleged violation and had an opportunity to be heard or appeal.
Key Issues & Findings
Whether the HOA violated statutory requirements regarding notice and imposition of monetary penalties/late fees, resulting in suspension of privileges.
Petitioner alleged the HOA violated A.R.S. § 33-1803(B) by imposing fines and suspending gate/clubhouse access without providing adequate (actual) notice of the violation and hearing opportunity, and by improperly imposing late fees. The ALJ found the HOA provided constructive notice, satisfying the statute, and was entitled to impose cumulative fines for the ongoing violation.
Briefing Document: Greco v. Bellasera Community Association, Inc.
Executive Summary
This document synthesizes the findings and decision in the case of Robert L. Greco (Petitioner) versus the Bellasera Community Association, Inc. (Respondent), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge dismissed the petition, ruling in favor of the Homeowners Association (HOA).
The core dispute originated from a 2013 violation notice regarding a faded garage door. The Petitioner claimed he did not receive the initial notices and only became aware of the issue upon receiving a letter from the HOA’s attorney. Despite subsequently painting the door, an outstanding balance of $750 in fines remained on his account. For six years, the Petitioner paid his quarterly dues but ignored the outstanding fine balance. In June 2019, after failed settlement negotiations, the HOA deactivated the Petitioner’s security gate fob and clubhouse access, prompting him to file the formal dispute.
The judge’s decision rested on two key legal conclusions. First, the court rejected the Petitioner’s argument that “actual notice” was required for the fines to be valid. It ruled that the multiple notices mailed to the Petitioner’s residence constituted sufficient “constructive notice” under Arizona law, providing both notification of the violation and an opportunity to be heard. Second, the court determined that the $750 charge was not an improper late fee but rather three separate, legitimate fines of $250 each, levied for an ongoing, uncorrected violation as per the HOA’s enforcement policy.
Case Overview
Case Name
Robert L Greco, Petitioner, vs. Bellasera Community Association, Inc., Respondent
Case Number
20F-H2019018-REL
Jurisdiction
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
January 9, 2020
Decision Date
January 29, 2020
Petitioner’s Core Allegation
Respondent violated A.R.S. § 33-1803(B) by imposing penalties and revoking privileges without providing proper notice and an opportunity to be heard.
Core Factual Issue
The denial of automatic gate and clubhouse access to the Petitioner on July 1, 2019, due to unpaid fines from 2013.
Chronology of the Dispute
The conflict between Mr. Greco and the Bellasera Community Association unfolded over six years, escalating from a minor maintenance issue to a formal legal dispute and revocation of privileges.
Initial Violation and Fines (2013)
Details
Feb. 5, 2013
Courtesy Notice
Respondent sent a notice to Petitioner’s address stating his garage door was faded and needed to be repainted, in violation of the Design Guidelines.
Mar. 14, 2013
Final Notice & First Fine
A follow-up notice was sent, stating a $250 fine was posted to Petitioner’s account. It warned that an additional $250 fine would be assessed automatically every 14 days if the violation remained uncorrected.
Apr. 2, 2013
Notice of Remedy & Second Fine
A third notice was sent, posting another $250 fine. This letter explicitly warned that the HOA had the “ability to suspend privileges for use of the Recreational Facilities” and informed the Petitioner of his right to appeal within 14 days.
May 7, 2013
Fourth Notice & Third Fine
A fourth notice was sent, posting another $250 fine to the account. It again noted the right to appeal the fine.
Jun. 5, 2013
Letter from HOA Counsel
Attorney Kelly Oetinger sent a letter demanding the garage door be repainted within 15 days. The letter explicitly stated, “If you do not repaint… the Association may disable the transponder you use to enter the community and may disable the fobs you use for the clubhouse.”
Petitioner’s Response and Aftermath (2013)
• July 4, 2013: Petitioner repainted the garage door.
• July 5, 2013: Petitioner sent a letter to the HOA stating the attorney’s letter was his “initial alert of the garage door condition.” He explained his delay by stating, “To effectively manage my workload, I dispose of unsolicited mail… In the future, I will exercise greater caution in disposing of unsolicited mail.”
• July 5, 2013: The HOA sent a letter acknowledging the repainting and offered to settle the $900 in fines for a payment of $500. The letter reiterated the threat to deactivate gate openers and fobs.
• July 17, 2013: The HOA sent a follow-up letter correcting an internal accounting error. The total fines were $750, not $900. A new settlement offer was made: pay $375, and the remaining $375 would be waived.
Period of Inaction (2013 – 2019)
From 2013 to 2019, the Petitioner received quarterly statements from the HOA indicating a $750 balance in addition to current assessments. Each quarter, the Petitioner would physically cross out the $750 balance and pay only the current assessment amount.
Escalation and Revocation of Privileges (2019)
• June 2019: Dennis Carson, a friend of the Petitioner serving on the HOA Board of Directors, informed him that his name was on a penalty list and the Board planned to deactivate his security gate and clubhouse access.
• June 2019: Settlement negotiations failed. The Petitioner offered $100; the Board countered with $250. The Petitioner then offered $251 ($250 for the fine and $1 to rent the clubhouse), which the Board declined.
• July 1, 2019: The Respondent deactivated the Petitioner’s security gate fob and access to the clubhouse.
• October 11, 2019: The Petitioner filed the Homeowners Association Dispute Process Petition, initiating the legal proceedings.
Key Arguments and Legal Findings
The Administrative Law Judge’s decision centered on the interpretation of “notice” as required by state law and the legitimacy of the fines imposed by the HOA.
Petitioner’s Position
1. Lack of Proper Notice: The Petitioner argued that he had not received “actual notice” of the violation or the impending fines until the letter from the HOA’s counsel on June 5, 2013. He asserted that because he acted promptly after receiving that letter, the fines were unjust. His argument implied that warnings in mail he did not personally read could not be held against him.
2. Improper Fines: The Petitioner alleged that the additional $500 in charges on the original $250 fine constituted improper late fees.
Administrative Law Judge’s Conclusions of Law
The Judge systematically refuted the Petitioner’s arguments, concluding that the HOA acted within its rights and in accordance with the law.
1. On the Matter of Notice:
• The governing statute, A.R.S. § 33-1803(B), requires “notice and an opportunity to be heard” before imposing penalties.
• The Judge found no legal authority requiring this to be “actual notice.” To accept this argument would create an unworkable standard where a homeowner could “avoid receiving ‘actual notice’ by simply refusing to sign for a certified mailing.”
• The decision established that the Petitioner received constructive notice through the “multiple mailings that were presumably delivered to his residential address.”
• The notices also informed the Petitioner how to appeal the matter, thereby satisfying the requirement for an “opportunity to be heard.”
• Conclusion: “Accordingly, Petitioner was provided notice and an opportunity to be heard in accordance with A.R.S. § 33-1803(B).”
2. On the Matter of Fines:
• The Judge differentiated between late fees and fines for an ongoing violation.
• The notices sent by the Respondent “clearly stated that an ongoing failure to remedy the violation would result in additional fines every 14 days.”
• The violation persisted from before March 14, 2013 (first fine) until July 5, 2013 (when the door was confirmed painted).
• Conclusion: The Respondent was entitled to impose three separate fines for the “ongoing condition of the garage door,” making the total of $750 legitimate.
Final Order and Implications
Based on the analysis of the evidence and law, the Administrative Law Judge reached a definitive conclusion.
• Final Ruling: “This Tribunal concludes that Respondent did not violate the provisions of A.R.S. § 33-1803(B).”
• Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Binding Nature: The order, dated January 29, 2020, is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019018-REL
Study Guide: Greco v. Bellasera Community Association, Inc.
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case of Robert L. Greco (Petitioner) versus Bellasera Community Association, Inc. (Respondent), Case No. 20F-H2019018-REL. It includes a short-answer quiz to test your knowledge, an answer key for review, a set of essay questions for deeper analysis, and a glossary of key terms.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each based on the information provided in the case document.
1. Who were the Petitioner and Respondent in this case, and what was the Petitioner’s central complaint that initiated the legal action?
2. What specific violation of the community’s rules was the Petitioner initially accused of, and which governing documents were cited as being violated?
3. Describe the timeline of notices and fines issued by the Respondent between February and May 2013.
4. What was the Petitioner’s explanation for not responding to the initial violation notices from the Respondent before receiving a letter from the association’s attorney?
5. What actions did the Respondent take in or around June 2019 that led the Petitioner to file his petition with the Arizona Department of Real Estate?
6. What was the Petitioner’s primary legal argument regarding the “notice” required by the Arizona statute A.R.S. § 33-1803(B)?
7. How did the Administrative Law Judge differentiate between “actual notice” and “constructive notice” in her decision?
8. Why did the judge ultimately conclude that the Respondent had provided the Petitioner with adequate “notice and an opportunity to be heard”?
9. Explain the Petitioner’s allegation about improper late fees and the reason the judge rejected this argument.
10. What was the final order of the Administrative Law Judge in this case, and what recourse was available to the parties?
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Answer Key
1. The Petitioner was homeowner Robert L. Greco, and the Respondent was the Bellasera Community Association, Inc. (the HOA). Greco’s central complaint, filed on October 11, 2019, was that the HOA had denied him automatic gate access and use of clubhouse facilities on July 1, 2019, despite his being a long-term resident with timely payment of all quarterly dues.
2. The Petitioner was accused of having a faded garage door that needed to be repainted. The violation was cited as being contrary to the CC&Rs (Covenants, Conditions and Restrictions), specifically Article V, Section 5.2, and the community’s Design Guidelines, specifically Article III, Section J.
3. The Respondent sent an initial “Courtesy Notice” on February 5, 2013. This was followed by a “Final Notice” with a $250 fine on March 14, a “Notice of Remedy” with another $250 fine on April 2, and a “Fourth Notice of Non-Compliance” with another $250 fine on May 7, 2013.
4. The Petitioner claimed that the attorney’s letter, received around June 5, 2013, was his “initial alert” regarding the garage door condition. He stated that he routinely disposes of unsolicited mail without reading it and had inadvertently discarded the previous notices sent by the Respondent.
5. In June 2019, after failed settlement negotiations over the outstanding $750 in fines from 2013, the Respondent deactivated the Petitioner’s security gate fob and his access to the clubhouse. This action prompted the Petitioner to file his dispute petition.
6. The Petitioner’s primary argument was that he did not receive “actual notice” of the violation until the attorney’s letter. He contended that because he acted promptly to correct the violation after receiving actual notice, he should not have been fined.
7. The judge used definitions from Black’s Law Dictionary. “Actual notice” was defined as notice given directly to, or personally received by, a party. “Constructive notice” was defined as notice arising by presumption of law from facts and circumstances that a party had a duty to take notice of.
8. The judge concluded that the multiple notices mailed to the Petitioner’s residential address constituted “constructive notice” of the violation. Because the relevant statute, A.R.S. § 33-1803(B), does not explicitly require “actual notice,” and the mailings also advised him of his right to appeal, the judge found the Respondent had fulfilled its obligation to provide notice and an opportunity to be heard.
9. The Petitioner alleged that the additional $500 in fines were improper late fees on the original $250 fine. The judge rejected this, clarifying that the Respondent’s notices stated that additional fines would be assessed every 14 days for an ongoing failure to remedy the violation. Therefore, the additional charges were three separate fines for the “ongoing condition of the garage door,” not late fees.
10. The final order was that the Petitioner’s petition be dismissed. The parties were notified that this order was binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.
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Essay Questions
The following questions are designed for deeper analysis and discussion. No answers are provided.
1. Analyze the Administrative Law Judge’s reasoning for favoring “constructive notice” over “actual notice” in the context of A.R.S. § 33-1803(B). Discuss the potential consequences for homeowners and HOAs if the ruling had required “actual notice.”
2. Trace the negotiation attempts between the Petitioner and the Respondent in 2013 and 2019. Evaluate the effectiveness of these attempts and discuss whether the dispute could have been resolved without formal legal proceedings.
3. The Petitioner argued that the fines imposed after the initial $250 were improper late fees. The judge, however, characterized them as new fines for an “ongoing condition.” Based on the evidence presented in the notices, construct an argument supporting both the Petitioner’s and the judge’s interpretation.
4. Discuss the concept of “burden of proof” in this case. Explain what “preponderance of the evidence” means and identify the key pieces of evidence that allowed the judge to conclude the Respondent did not violate the statute.
5. Examine the roles of the various community governing documents cited in this case (CC&Rs, Design Guidelines, Violation Enforcement policy). Explain how these documents worked together to grant the Respondent the authority to take action against the Petitioner.
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Glossary of Key Terms
Definition
A.R.S. § 33-1803(B)
The Arizona Revised Statute central to this case, which permits an HOA board to impose reasonable monetary penalties for violations after providing “notice and an opportunity to be heard.”
Actual Notice
As defined in the decision, it is “[n]otice given directly to, or received personally by, a party.”
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues a decision. In this case, it was Tammy L. Eigenheer.
Bellasera Community Association, Inc.
The Respondent in the case; the homeowners association (HOA) for the Bellasera Community in Arizona.
An acronym for Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents for the community, which the Petitioner was found to have violated (specifically Article V, Section 5.2).
Constructive Notice
As defined in the decision, it is “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.” The judge ruled that mail sent to a residence constitutes this form of notice.
Design Guidelines
A set of rules established by the HOA governing the aesthetic appearance of properties. The Petitioner was found in violation of Article III, Section J of these guidelines.
Petitioner
The party who initiates a legal action or petition seeking a ruling. In this case, it was the homeowner, Robert L. Greco.
Preponderance of the evidence
The standard of proof required in this hearing. It is defined as “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.”
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, it was the HOA.
Blog Post – 20F-H2019018-REL
He Threw Away His Mail for Years. His HOA’s Response Is a Warning to Every Homeowner.
That official-looking envelope from your Homeowners Association sits on the counter, a silent challenge. It’s easy to dismiss it as a newsletter or a bland reminder, just another piece of paper to be sorted later. But what if it isn’t? What if that envelope is a legal summons in disguise, the first shot in a battle you don’t even know you’re fighting?
For Robert L. Greco, a resident in his community for 17 years, this hypothetical became a harsh reality. He learned that ignoring HOA correspondence can ignite a conflict that smolders for years before erupting into severe consequences. Originating from a maintenance issue as simple as a faded garage door, his case offers a masterclass in the powerful lessons every homeowner should heed.
——————————————————————————–
1. The “I Didn’t Read It” Defense Doesn’t Work
The central pillar of the homeowner’s defense was disarmingly simple: he claimed he never received the first four violation notices because he habitually throws away what he considers “unsolicited mail.” He argued that without having read the warnings, he couldn’t be held responsible for the fines.
The judge’s ruling, however, invoked a foundational legal concept that extends far beyond HOA disputes into areas like property deeds and public records: the difference between “actual notice” and “constructive notice.” While actual notice means you personally saw the information, constructive notice presumes you have knowledge of something because it was delivered properly—in this case, mailed to the correct address. Whether you open the envelope is irrelevant.
In a July 5, 2013 letter, the homeowner unwittingly sealed his own fate by describing his mail-handling routine:
Routinely, Saturdays are my mail-pick-up days, and invariably, I walk straight to the re-cyclable container, and deposit the mail in the receptacle… I was astonished to learn that my garage door failed inspection. This is my initial alert of the garage door condition.
For homeowners, the takeaway is a stark one: in the eyes of the law, your recycling bin is not a valid legal defense. The burden doesn’t fall on an HOA to ensure you read your mail, only to send it. The responsibility to open and review all official correspondence rests squarely on the homeowner.
2. A Tiny Issue Can Snowball into a Years-Long Standoff
The timeline of this dispute reveals a classic case of conflict avoidance, where a minor, fixable problem was allowed to spiral into a major legal battle. The cost of a can of paint and a Saturday afternoon of work was ultimately dwarfed by a six-year, $750 dispute that cost the homeowner his access to his own community.
• February 5, 2013: The HOA sends its first “Courtesy Notice” regarding a faded garage door in need of repainting.
• March – May 2013: After no response, the HOA issues three more notices, levying escalating fines that total $750.
• 2013 to 2019: For six years, the homeowner receives quarterly statements showing the $750 balance. Each time, he would “cross out the $750.00 balance and pay the current assessment.”
• June/July 2019: The HOA finally forces the issue by deactivating his security gate fob and his access to the clubhouse.
This progression shows how a simple lack of communication transformed a weekend chore into a years-long standoff. By ignoring the notices and the subsequent fines, the homeowner allowed a molehill to grow into a mountain of conflict.
3. “Continuing Violation” Fines Are Not Late Fees
The homeowner contended that the HOA was improperly stacking late fees on top of an initial $250 penalty. However, the administrative law judge highlighted a critical distinction embedded in the association’s rules.
The HOA wasn’t charging late fees on a single, past-due penalty. It was levying new fines for a “continuing violation.” The notice sent on March 14, 2013, explicitly warned that “an additional fine of $250 will be assessed automatically every 14 days… if the violation remains uncorrected.”
This is a crucial detail found in many HOA bylaws. An unpainted garage door is not a one-time offense; it is an ongoing breach of community standards. A homeowner who thinks they are simply letting a single fine sit unpaid may actually be incurring entirely new violations over time, dramatically increasing their financial liability.
4. Failed Negotiations Can Cost More Than Money
Twice, this dispute could have been resolved. The breakdown in negotiations, however, reveals how ego and principle can prove more costly than the fines themselves.
The first attempt came in 2013, after the homeowner had finally painted the garage. The HOA initially offered to settle a supposed $900 balance for $500. This, however, was based on an “internal accounting error.” In a subsequent letter, the HOA apologized, corrected the record to show the true balance was $750, and made a formal offer: pay half—just $375—and the matter would be closed. The offer was not accepted. Including this error shows the HOA was not infallible, making the subsequent stalemate more complex.
The second negotiation occurred in 2019, prompted by a friend on the Board who urged a settlement. The homeowner offered $100. The Board countered with $250. The homeowner’s final offer was exquisitely specific: “$251.00, $250.00 to settle the outstanding fines and $1.00 to rent the clubhouse on a specific date.”
This offer was a tactical and psychological blunder. That extra dollar wasn’t about money; it was a message. Whether intended as a sarcastic jab or a principled stand to assert his rights as a member, it transformed a financial negotiation into a battle of wills. For a Board of Directors, accepting such an offer could be seen as capitulating to a petty gesture, setting a precedent that defiance works. They declined. Shortly after, the homeowner’s access to community facilities was cut off, leading to the legal petition he ultimately lost.
——————————————————————————–
Conclusion: A Lesson in Communication
This case serves as a powerful warning. The legal force of “constructive notice” makes you responsible for the mail you receive, not just the mail you read. The six-year standoff over a can of paint shows how inaction can have disproportionate consequences. And the failed $251 offer demonstrates that good-faith negotiation is paramount.
Ultimately, the homeowner was left still owing the money and locked out of his own amenities—a casualty of a battle he prolonged at every turn. It leaves every homeowner with a critical question to consider: in a dispute with your HOA, where is the line between standing on principle and causing yourself unnecessary harm?
Case Participants
Petitioner Side
Robert L Greco(petitioner)
Respondent Side
Nathan Tennyson(attorney) Brown|Olcott, PLLC
David Reid(board member) Testified for Respondent
Annette McCarthy(manager) Acting Manager; Testified for Respondent
Kelly Oetinger(attorney) Counsel for Respondent in 2013
