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.
The Petitioner's petition alleging violations of statute and community documents was denied in its entirety. Two issues were found moot because the prohibited action had already concluded, and the other two issues failed because the Petitioner did not meet the burden of proof to establish a violation.
Why this result: Issues 2 and 3 were moot. Issues 1 and 4 failed on the merits because the evidence did not prove the HOA violated the cited statute or rule.
Key Issues & Findings
Board conducted interviews of candidates in closed executive session.
Petitioner alleged the Board improperly conducted interviews for Board vacancies in closed sessions. The Board admitted to the practice but asserted they did so to elicit personal, health, or financial information, which is a statutory exception to the open meeting law.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
Discriminately penalized homeowners/members (Italian American Club).
Petitioner alleged the HOA wrongfully penalized and denied use of facilities to the Italian American Club (IAC). This issue was based on a specific one-year prohibition on facility use imposed after the IAC violated rules regarding moving furniture.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Article V, Section C of the CC&Rs
Article IV.E.8 of the Bylaws
Ventana Lakes Rules 8.4.A
Refusal of homeowners' use of facilities without authorization by rule.
Petitioner alleged the HOA wrongfully denied the Italian American Club use of facilities following an incident where club members moved tables against HOA rules, resulting in a one-year ban on facility use.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Article III, Section A of the CC&Rs
Article IV, Section C.23 of the CC&Rs
Article IV.E.8 of the Bylaws
Ventana Lakes Rules 8.4.A
Refusal to place written requests for Board action on the agenda.
Petitioner argued that Ventana Lakes Rule 8.3.B.1.b required the Board president to include every single written request from members on the next upcoming Board meeting agenda, which the Board had failed to do.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Ventana Lakes Rule 8.3.B.1.b
Analytics Highlights
Topics: HOA Open Meetings, Executive Session, Mootness, Facility Use Suspension, Agenda Setting
Additional Citations:
A.R.S. § 33-1804
Article IV, Section E of the Bylaws
Article 5, Section C of the CC&Rs
Article IV, Section C(23) of the CC&Rs
Article XII, Section B of the CC&Rs
Article III, Section A of the CC&Rs
Ventana Lake Rules 8.3.B
Ventana Lake Rules 8.4.A
A.R.S. § 32-2199
A.R.S. § 32-2199.02
Video Overview
Audio Overview
Decision Documents
20F-H2020046-REL Decision – 809207.pdf
Uploaded 2025-10-09T03:34:59 (157.4 KB)
Briefing Doc – 20F-H2020046-REL
Administrative Law Judge Decision: Alandar vs. Ventana Lakes POA
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020046-REL, involving a dispute between Petitioner Susan L. Alandar and the Ventana Lakes Property Owners’ Association (the “Respondent” or “Board”). The petition, filed with the Arizona Department of Real Estate, alleged multiple violations of state statutes and the Association’s governing documents. The ALJ ultimately denied the petition in its entirety, finding that the Petitioner failed to meet the burden of proof by a preponderance of the evidence for any of her claims.
The key takeaways from the decision are as follows:
• Board Candidate Interviews: The Board’s practice of interviewing candidates for board vacancies in closed executive sessions was deemed permissible. The ALJ found that these sessions were appropriately used to elicit personal, health, or financial information relevant to a candidate’s ability to serve, which is an exception to Arizona’s open meeting law (A.R.S. § 33-1804).
• Sanctions Against a Club: The Petitioner’s challenge to a one-year ban on facility use imposed upon the Italian American Club (IAC) was dismissed as moot. Because the one-year penalty had expired before the hearing date, the ALJ concluded there was no active issue to rule on or remedy to order.
• Agenda Setting Authority: The ALJ determined that the Board president possesses broad, inherent authority in setting the agenda for Board meetings. The governing rules do not require the president to place every written request from an Association member onto the agenda for the next meeting.
• Burden of Proof: Across all issues, the Petitioner failed to provide sufficient evidence to convince the judge that her contentions were “more probably true than not.” The decision repeatedly highlights the lack of evidence to support the claims of improper conduct.
Case Overview
On February 3, 2020, Petitioner Susan L. Alandar filed a petition alleging that the Ventana Lakes Property Owners’ Association violated Arizona state law and several provisions of its own Covenants, Conditions & Restrictions (CC&Rs), Bylaws, and Rules. After paying an additional filing fee, the Petitioner presented four distinct issues for the hearing held on June 11, 2020. The final decision was issued on July 23, 2020.
Case Detail
Information
Case Number
20F-H2020046-REL
Petitioner
Susan L. Alandar
Respondent
Ventana Lakes Property Owners’ Association
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
June 11, 2020
Decision Date
July 23, 2020
Final Disposition
Petitioner’s petition is denied.
Detailed Analysis of Allegations and Rulings
Issue 1: Board Candidate Interviews in Executive Session
• Allegation: The Petitioner contended that the Board of Directors violated A.R.S. § 33-1804 (Arizona’s open meeting law for HOAs) by interviewing candidates for Board appointments in closed executive sessions.
• Factual Background: The Respondent acknowledged that prior to June 2019, its practice was to conduct interviews, discussions, and votes to fill Board vacancies entirely within executive session, announcing the result in an open meeting. After this practice was questioned, the Board changed its procedure. Since June 2019, the Board has conducted candidate interviews in executive session specifically to “elicit private information that may impact the candidate’s ability to perform the duties of a Board member.” An example provided was a candidate who revealed his wife’s dementia diagnosis, which would take priority over Board duties. Under this revised process, the final vote on candidates is cast in an open session, and candidates also participate in an open forum where members can ask questions.
• Conclusion of Law: The ALJ found that the uncontroverted evidence showed the executive sessions were used for the purpose of discussing “personal, health, or financial information,” which is a specific exception allowed under A.R.S. § 33-1804. The decision states, “While Petitioner may believe the interviews were being conducted in executive session for nefarious purposes, no evidence was presented to establish such motives existed.” Consequently, the Petitioner failed to establish a violation.
Issues 2 & 3: Penalties and Facility Use Denial for the Italian American Club
• Allegation: The Petitioner argued that the Respondent wrongfully penalized the Italian American Club (IAC) and denied its members use of facilities, asserting that this action was discriminatory and not authorized by rule, in violation of CC&R’s Article V Section C and other community documents.
• Factual Background:
◦ In January 2018, the Board met with the IAC regarding non-compliance with rules and warned that failure to comply could result in the loss of privileges to use the Yacht Club.
◦ On April 4, 2019, an incident occurred where IAC members, after their last-minute request for more tables and chairs was denied, were observed on security cameras moving furniture from a storage area themselves. This was against Association rules, reportedly due to insurance policy limitations on volunteers moving tables.
◦ The situation escalated into a verbal altercation. Even after staff agreed to set up the requested tables, IAC members were again seen moving more furniture.
◦ On April 17, 2019, after reviewing video and audio recordings of the incident, the Board revoked the IAC’s right to use all Association facilities for a one-year period, from May 1, 2019, to April 30, 2020.
• Conclusion of Law: The ALJ found that the one-year prohibition on the IAC’s use of facilities had expired on April 30, 2020, prior to the June 11, 2020 hearing. As no evidence was presented that the revocation was still in effect, the matter was declared moot. The decision notes that even if the judge had found the revocation improper, she could not order any action because the penalty was no longer active. The ALJ did not rule on the merits of whether the Board’s action was initially justified.
Issue 4: Refusal to Place Member Items on Board Meeting Agenda
• Allegation: The Petitioner claimed the Board violated Ventana Lakes Rule 8.3.B.1.b by refusing to place homeowners’ written requests for Board action on the agenda for upcoming Board meetings. The Petitioner’s position was that the rule required the Board president to place any such item on the agenda.
• Factual Background: Both parties agreed that the Board president had received written requests from members that were not subsequently included on a meeting agenda. The Petitioner herself acknowledged during the hearing that it would be impractical for the president to include every single request if, for example, hundreds were received for a single meeting.
• Conclusion of Law: The ALJ determined that the “plain language” of the rule does not mandate that all requests must be placed on the agenda. The judge used the Petitioner’s own hypothetical concession to demonstrate that the Board president must have “inherent authority to limit the number of items to be included.” The ruling concluded that the president’s authority in setting the agenda is “broad” and that the Petitioner failed to prove a violation of the rule.
Key Referenced Authority
The decision was based on an interpretation of the following Arizona statutes and Ventana Lakes governing documents:
Document
Provision
Relevance to the Case
Arizona Revised Statutes
A.R.S. § 33-1804
Open Meetings: Allows meetings to be closed for specific reasons, including discussion of “Personal, health or financial information about an individual member.”
Article III, Section A
Easements of Enjoyment: Gives the Board the right to suspend any Resident from using Common Areas and to regulate their use through rules.
Article IV, Section C
Health, Safety and Welfare: Allows the Board to make rules restricting activities deemed a nuisance or to adversely affect the health, safety, or welfare of residents.
Article V, Section C
Ventana Lakes Rules: Grants the Association power to adopt and repeal rules governing the use of Common Areas, provided they are not discriminatory or inconsistent.
Bylaws
Article IV.E.8
Board Powers: Grants the Board the power to adopt, amend, and enforce rules covering the operation and use of all property.
Ventana Lakes Rules
Rule 8.3.B
Board President Duties: States the president shall prepare agendas and “ensure that written requests for Board action…are placed on the agenda.” (Interpreted by ALJ).
Final Order
The Administrative Law Judge concluded the hearing with a definitive ruling:
“IT IS ORDERED that Petitioner’s petition is denied.”
This order is binding 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-H2020046-REL
Study Guide: Alandar v. Ventana Lakes Property Owners’ Association
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2020046-REL, concerning a dispute between Petitioner Susan L. Alandar and Respondent Ventana Lakes Property Owners’ Association. The guide includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, arguments, and legal conclusions.
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Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the information provided in the case document.
1. What were the initial steps Susan L. Alandar took to begin the HOA dispute process, and when did she file her petition?
2. What was the Ventana Lakes Board’s practice regarding interviewing candidates for Board vacancies both before and after June 2019?
3. What was the core of the dispute regarding the Italian American Club (IAC), and what specific action by the club led to the conflict on April 4, 2019?
4. What penalty did the Board of Directors impose on the Italian American Club, and for what duration?
5. Why did the Administrative Law Judge ultimately dismiss Issues 2 and 3 (concerning the IAC) as moot?
6. What was the Petitioner’s argument regarding the Board President’s responsibility for setting the meeting agenda under Ventana Lakes Rule 8.3.B.1.b?
7. How did the Administrative Law Judge interpret the Board President’s authority and discretion in setting the agenda?
8. Which party bears the “burden of proof” in this type of hearing, and what is the standard of proof required?
9. According to Arizona statute A.R.S. § 33-1804, when is it permissible for a Board of Directors to hold a closed or executive session?
10. What was the final order issued by the Administrative Law Judge in this case?
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Answer Key
1. On or about February 3, 2020, Susan L. Alandar filed a Homeowners Association (HOA) Dispute Process Petition with the Arizona Department of Real Estate. She initially indicated two issues would be presented and paid a $1000.00 filing fee.
2. Prior to June 2019, the Board conducted candidate interviews, discussions, and votes in closed executive sessions. After June 2019, the Board conducted interviews in executive session to elicit private information but held the final vote in an open session.
3. The dispute centered on the IAC’s non-compliance with association rules. The conflict on April 4, 2019, was triggered when IAC members were observed on security cameras moving tables and chairs from a storage area against the instructions of the facilities manager.
4. In an executive session on April 17, 2019, the Board revoked the Italian American Club’s ability to use all of the association’s facilities. The penalty was for a period of one year, from May 1, 2019, to April 30, 2020.
5. The Judge dismissed these issues as moot because the one-year prohibition on the IAC’s use of facilities had already expired at the time of the hearing. Since the penalty was no longer in effect, the Judge could not order the Respondent to take any corrective action.
6. The Petitioner argued that Rule 8.3.B.1.b required the Board president to place any written request for Board action from an association member onto the agenda for the next meeting. She contended this was a mandatory duty, regardless of the nature or number of requests.
7. The Judge concluded that the rule’s plain language does not require every request to be placed on the agenda. Citing the impracticality of including hundreds of hypothetical requests, the Judge found that the Board President has broad, inherent authority to limit the items on the agenda.
8. The Petitioner bears the burden of proof to establish that the Respondent committed the alleged violations. The required standard of proof is a “preponderance of the evidence.”
9. A.R.S. § 33-1804 allows a portion of a meeting to be closed to consider specific matters, including personal, health, or financial information about an individual member or employee of the association. The Board used this exception to justify holding candidate interviews in executive session.
10. The final order issued on July 23, 2020, was that the Petitioner’s petition is denied.
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Essay Questions
The following questions are designed for deeper analysis and discussion. Formulate comprehensive answers based on the facts and legal reasoning presented in the decision.
1. Analyze the Board of Directors’ evolving practice for interviewing candidates for board vacancies (Issue 1). Discuss how their pre- and post-June 2019 methods relate to the specific language and exceptions outlined in A.R.S. § 33-1804.
2. Explain the legal concept of “mootness” as it was applied to the sanctions against the Italian American Club (Issues 2 and 3). Why was the Administrative Law Judge unable to rule on the propriety of the Board’s actions, and what does this imply about the timing of legal challenges in HOA disputes?
3. Compare and contrast the Petitioner’s interpretation of Ventana Lakes Rule 8.3.B.1.b with the Administrative Law Judge’s final interpretation (Issue 4). Discuss the Judge’s reasoning for concluding that the Board President has “inherent authority” to limit agenda items.
4. Define the “preponderance of the evidence” standard. Using examples from at least two of the four issues raised in the petition, explain how the Petitioner failed to meet this burden of proof.
5. Based on the referenced community documents (CC&Rs and Bylaws), describe the scope of the Ventana Lakes Board of Directors’ power to regulate Common Areas, suspend resident privileges, and enforce rules. How do these documents grant authority that was relevant to the Board’s actions against the Italian American Club?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions based on the evidence and applicable law. In this case, the ALJ was Tammy L. Eigenheer.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Bylaws
A set of rules adopted by an organization, such as an HOA, to govern its internal management and operations. Article IV, Section E of the Bylaws addresses the Board’s powers and duties.
Covenants, Conditions & Restrictions. These are legally binding rules recorded with the property deeds in a planned community, governing property use and the rights and obligations of the homeowners and the HOA.
Common Areas
Property within a planned community owned by the HOA for the common use and enjoyment of all residents, such as the Yacht Club and recreational facilities mentioned in the case.
Executive Session
A closed portion of a meeting of a deliberative body, such as an HOA board, which is not open to the general membership. A.R.S. § 33-1804 specifies the limited circumstances under which such a session can be held.
HOA (Homeowners Association)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. In this case, the Ventana Lakes Property Owners’ Association.
A legal term for a matter that is no longer in controversy or has become irrelevant. The ALJ declared the issues regarding the Italian American Club moot because the one-year penalty had already expired.
Petitioner
The party who files a petition initiating a legal action or administrative proceeding. In this case, Susan L. Alandar.
Preponderance of the Evidence
The standard of proof in most civil cases, which requires the trier of fact (the judge) to be convinced that a contention is more probably true than not. The Petitioner had the burden to meet this standard.
Respondent
The party against whom a petition is filed or an appeal is brought. In this case, the Ventana Lakes Property Owners’ Association.
Blog Post – 20F-H2020046-REL
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The provided text is an Administrative Law Judge Decision concerning a dispute between Susan L. Alandar, the Petitioner, and the Ventana Lakes Property Owners’ Association, the Respondent. The Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging four violations of statute and community documents by the HOA, requiring her to pay additional filing fees to pursue all four issues. The judge systematically addressed each of the four allegations, which included improper closed-door interviews for board candidates, discriminatory penalizing and facility denial against an Italian American Club, and the refusal to place all member-requested items on the board agenda. Ultimately, the Administrative Law Judge denied the Petitioner’s petition, finding that she failed to establish the alleged violations by a preponderance of the evidence, and further determined that the facilities denial issue was moot as the one-year prohibition had expired.
What were the specific allegations and outcomes across the four distinct issues presented?
How did the Administrative Law Judge interpret governing documents regarding Board authority and rules?
What legal standards and statutes primarily governed the resolution of this HOA dispute petition?
Based on 1 source
Case Participants
Petitioner Side
Susan L. Alandar(petitioner) Appeared on her own behalf.
The Petitioner's petition alleging violations of statute and community documents was denied in its entirety. Two issues were found moot because the prohibited action had already concluded, and the other two issues failed because the Petitioner did not meet the burden of proof to establish a violation.
Why this result: Issues 2 and 3 were moot. Issues 1 and 4 failed on the merits because the evidence did not prove the HOA violated the cited statute or rule.
Key Issues & Findings
Board conducted interviews of candidates in closed executive session.
Petitioner alleged the Board improperly conducted interviews for Board vacancies in closed sessions. The Board admitted to the practice but asserted they did so to elicit personal, health, or financial information, which is a statutory exception to the open meeting law.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804
Discriminately penalized homeowners/members (Italian American Club).
Petitioner alleged the HOA wrongfully penalized and denied use of facilities to the Italian American Club (IAC). This issue was based on a specific one-year prohibition on facility use imposed after the IAC violated rules regarding moving furniture.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Article V, Section C of the CC&Rs
Article IV.E.8 of the Bylaws
Ventana Lakes Rules 8.4.A
Refusal of homeowners' use of facilities without authorization by rule.
Petitioner alleged the HOA wrongfully denied the Italian American Club use of facilities following an incident where club members moved tables against HOA rules, resulting in a one-year ban on facility use.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Article III, Section A of the CC&Rs
Article IV, Section C.23 of the CC&Rs
Article IV.E.8 of the Bylaws
Ventana Lakes Rules 8.4.A
Refusal to place written requests for Board action on the agenda.
Petitioner argued that Ventana Lakes Rule 8.3.B.1.b required the Board president to include every single written request from members on the next upcoming Board meeting agenda, which the Board had failed to do.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Ventana Lakes Rule 8.3.B.1.b
Analytics Highlights
Topics: HOA Open Meetings, Executive Session, Mootness, Facility Use Suspension, Agenda Setting
Additional Citations:
A.R.S. § 33-1804
Article IV, Section E of the Bylaws
Article 5, Section C of the CC&Rs
Article IV, Section C(23) of the CC&Rs
Article XII, Section B of the CC&Rs
Article III, Section A of the CC&Rs
Ventana Lake Rules 8.3.B
Ventana Lake Rules 8.4.A
A.R.S. § 32-2199
A.R.S. § 32-2199.02
Video Overview
Audio Overview
Decision Documents
20F-H2020046-REL Decision – 809207.pdf
Uploaded 2026-01-23T17:31:55 (157.4 KB)
Briefing Doc – 20F-H2020046-REL
Administrative Law Judge Decision: Alandar vs. Ventana Lakes POA
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020046-REL, involving a dispute between Petitioner Susan L. Alandar and the Ventana Lakes Property Owners’ Association (the “Respondent” or “Board”). The petition, filed with the Arizona Department of Real Estate, alleged multiple violations of state statutes and the Association’s governing documents. The ALJ ultimately denied the petition in its entirety, finding that the Petitioner failed to meet the burden of proof by a preponderance of the evidence for any of her claims.
The key takeaways from the decision are as follows:
• Board Candidate Interviews: The Board’s practice of interviewing candidates for board vacancies in closed executive sessions was deemed permissible. The ALJ found that these sessions were appropriately used to elicit personal, health, or financial information relevant to a candidate’s ability to serve, which is an exception to Arizona’s open meeting law (A.R.S. § 33-1804).
• Sanctions Against a Club: The Petitioner’s challenge to a one-year ban on facility use imposed upon the Italian American Club (IAC) was dismissed as moot. Because the one-year penalty had expired before the hearing date, the ALJ concluded there was no active issue to rule on or remedy to order.
• Agenda Setting Authority: The ALJ determined that the Board president possesses broad, inherent authority in setting the agenda for Board meetings. The governing rules do not require the president to place every written request from an Association member onto the agenda for the next meeting.
• Burden of Proof: Across all issues, the Petitioner failed to provide sufficient evidence to convince the judge that her contentions were “more probably true than not.” The decision repeatedly highlights the lack of evidence to support the claims of improper conduct.
Case Overview
On February 3, 2020, Petitioner Susan L. Alandar filed a petition alleging that the Ventana Lakes Property Owners’ Association violated Arizona state law and several provisions of its own Covenants, Conditions & Restrictions (CC&Rs), Bylaws, and Rules. After paying an additional filing fee, the Petitioner presented four distinct issues for the hearing held on June 11, 2020. The final decision was issued on July 23, 2020.
Case Detail
Information
Case Number
20F-H2020046-REL
Petitioner
Susan L. Alandar
Respondent
Ventana Lakes Property Owners’ Association
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
June 11, 2020
Decision Date
July 23, 2020
Final Disposition
Petitioner’s petition is denied.
Detailed Analysis of Allegations and Rulings
Issue 1: Board Candidate Interviews in Executive Session
• Allegation: The Petitioner contended that the Board of Directors violated A.R.S. § 33-1804 (Arizona’s open meeting law for HOAs) by interviewing candidates for Board appointments in closed executive sessions.
• Factual Background: The Respondent acknowledged that prior to June 2019, its practice was to conduct interviews, discussions, and votes to fill Board vacancies entirely within executive session, announcing the result in an open meeting. After this practice was questioned, the Board changed its procedure. Since June 2019, the Board has conducted candidate interviews in executive session specifically to “elicit private information that may impact the candidate’s ability to perform the duties of a Board member.” An example provided was a candidate who revealed his wife’s dementia diagnosis, which would take priority over Board duties. Under this revised process, the final vote on candidates is cast in an open session, and candidates also participate in an open forum where members can ask questions.
• Conclusion of Law: The ALJ found that the uncontroverted evidence showed the executive sessions were used for the purpose of discussing “personal, health, or financial information,” which is a specific exception allowed under A.R.S. § 33-1804. The decision states, “While Petitioner may believe the interviews were being conducted in executive session for nefarious purposes, no evidence was presented to establish such motives existed.” Consequently, the Petitioner failed to establish a violation.
Issues 2 & 3: Penalties and Facility Use Denial for the Italian American Club
• Allegation: The Petitioner argued that the Respondent wrongfully penalized the Italian American Club (IAC) and denied its members use of facilities, asserting that this action was discriminatory and not authorized by rule, in violation of CC&R’s Article V Section C and other community documents.
• Factual Background:
◦ In January 2018, the Board met with the IAC regarding non-compliance with rules and warned that failure to comply could result in the loss of privileges to use the Yacht Club.
◦ On April 4, 2019, an incident occurred where IAC members, after their last-minute request for more tables and chairs was denied, were observed on security cameras moving furniture from a storage area themselves. This was against Association rules, reportedly due to insurance policy limitations on volunteers moving tables.
◦ The situation escalated into a verbal altercation. Even after staff agreed to set up the requested tables, IAC members were again seen moving more furniture.
◦ On April 17, 2019, after reviewing video and audio recordings of the incident, the Board revoked the IAC’s right to use all Association facilities for a one-year period, from May 1, 2019, to April 30, 2020.
• Conclusion of Law: The ALJ found that the one-year prohibition on the IAC’s use of facilities had expired on April 30, 2020, prior to the June 11, 2020 hearing. As no evidence was presented that the revocation was still in effect, the matter was declared moot. The decision notes that even if the judge had found the revocation improper, she could not order any action because the penalty was no longer active. The ALJ did not rule on the merits of whether the Board’s action was initially justified.
Issue 4: Refusal to Place Member Items on Board Meeting Agenda
• Allegation: The Petitioner claimed the Board violated Ventana Lakes Rule 8.3.B.1.b by refusing to place homeowners’ written requests for Board action on the agenda for upcoming Board meetings. The Petitioner’s position was that the rule required the Board president to place any such item on the agenda.
• Factual Background: Both parties agreed that the Board president had received written requests from members that were not subsequently included on a meeting agenda. The Petitioner herself acknowledged during the hearing that it would be impractical for the president to include every single request if, for example, hundreds were received for a single meeting.
• Conclusion of Law: The ALJ determined that the “plain language” of the rule does not mandate that all requests must be placed on the agenda. The judge used the Petitioner’s own hypothetical concession to demonstrate that the Board president must have “inherent authority to limit the number of items to be included.” The ruling concluded that the president’s authority in setting the agenda is “broad” and that the Petitioner failed to prove a violation of the rule.
Key Referenced Authority
The decision was based on an interpretation of the following Arizona statutes and Ventana Lakes governing documents:
Document
Provision
Relevance to the Case
Arizona Revised Statutes
A.R.S. § 33-1804
Open Meetings: Allows meetings to be closed for specific reasons, including discussion of “Personal, health or financial information about an individual member.”
Article III, Section A
Easements of Enjoyment: Gives the Board the right to suspend any Resident from using Common Areas and to regulate their use through rules.
Article IV, Section C
Health, Safety and Welfare: Allows the Board to make rules restricting activities deemed a nuisance or to adversely affect the health, safety, or welfare of residents.
Article V, Section C
Ventana Lakes Rules: Grants the Association power to adopt and repeal rules governing the use of Common Areas, provided they are not discriminatory or inconsistent.
Bylaws
Article IV.E.8
Board Powers: Grants the Board the power to adopt, amend, and enforce rules covering the operation and use of all property.
Ventana Lakes Rules
Rule 8.3.B
Board President Duties: States the president shall prepare agendas and “ensure that written requests for Board action…are placed on the agenda.” (Interpreted by ALJ).
Final Order
The Administrative Law Judge concluded the hearing with a definitive ruling:
“IT IS ORDERED that Petitioner’s petition is denied.”
This order is binding 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-H2020046-REL
Study Guide: Alandar v. Ventana Lakes Property Owners’ Association
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2020046-REL, concerning a dispute between Petitioner Susan L. Alandar and Respondent Ventana Lakes Property Owners’ Association. The guide includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, arguments, and legal conclusions.
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Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the information provided in the case document.
1. What were the initial steps Susan L. Alandar took to begin the HOA dispute process, and when did she file her petition?
2. What was the Ventana Lakes Board’s practice regarding interviewing candidates for Board vacancies both before and after June 2019?
3. What was the core of the dispute regarding the Italian American Club (IAC), and what specific action by the club led to the conflict on April 4, 2019?
4. What penalty did the Board of Directors impose on the Italian American Club, and for what duration?
5. Why did the Administrative Law Judge ultimately dismiss Issues 2 and 3 (concerning the IAC) as moot?
6. What was the Petitioner’s argument regarding the Board President’s responsibility for setting the meeting agenda under Ventana Lakes Rule 8.3.B.1.b?
7. How did the Administrative Law Judge interpret the Board President’s authority and discretion in setting the agenda?
8. Which party bears the “burden of proof” in this type of hearing, and what is the standard of proof required?
9. According to Arizona statute A.R.S. § 33-1804, when is it permissible for a Board of Directors to hold a closed or executive session?
10. What was the final order issued by the Administrative Law Judge in this case?
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Answer Key
1. On or about February 3, 2020, Susan L. Alandar filed a Homeowners Association (HOA) Dispute Process Petition with the Arizona Department of Real Estate. She initially indicated two issues would be presented and paid a $1000.00 filing fee.
2. Prior to June 2019, the Board conducted candidate interviews, discussions, and votes in closed executive sessions. After June 2019, the Board conducted interviews in executive session to elicit private information but held the final vote in an open session.
3. The dispute centered on the IAC’s non-compliance with association rules. The conflict on April 4, 2019, was triggered when IAC members were observed on security cameras moving tables and chairs from a storage area against the instructions of the facilities manager.
4. In an executive session on April 17, 2019, the Board revoked the Italian American Club’s ability to use all of the association’s facilities. The penalty was for a period of one year, from May 1, 2019, to April 30, 2020.
5. The Judge dismissed these issues as moot because the one-year prohibition on the IAC’s use of facilities had already expired at the time of the hearing. Since the penalty was no longer in effect, the Judge could not order the Respondent to take any corrective action.
6. The Petitioner argued that Rule 8.3.B.1.b required the Board president to place any written request for Board action from an association member onto the agenda for the next meeting. She contended this was a mandatory duty, regardless of the nature or number of requests.
7. The Judge concluded that the rule’s plain language does not require every request to be placed on the agenda. Citing the impracticality of including hundreds of hypothetical requests, the Judge found that the Board President has broad, inherent authority to limit the items on the agenda.
8. The Petitioner bears the burden of proof to establish that the Respondent committed the alleged violations. The required standard of proof is a “preponderance of the evidence.”
9. A.R.S. § 33-1804 allows a portion of a meeting to be closed to consider specific matters, including personal, health, or financial information about an individual member or employee of the association. The Board used this exception to justify holding candidate interviews in executive session.
10. The final order issued on July 23, 2020, was that the Petitioner’s petition is denied.
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Essay Questions
The following questions are designed for deeper analysis and discussion. Formulate comprehensive answers based on the facts and legal reasoning presented in the decision.
1. Analyze the Board of Directors’ evolving practice for interviewing candidates for board vacancies (Issue 1). Discuss how their pre- and post-June 2019 methods relate to the specific language and exceptions outlined in A.R.S. § 33-1804.
2. Explain the legal concept of “mootness” as it was applied to the sanctions against the Italian American Club (Issues 2 and 3). Why was the Administrative Law Judge unable to rule on the propriety of the Board’s actions, and what does this imply about the timing of legal challenges in HOA disputes?
3. Compare and contrast the Petitioner’s interpretation of Ventana Lakes Rule 8.3.B.1.b with the Administrative Law Judge’s final interpretation (Issue 4). Discuss the Judge’s reasoning for concluding that the Board President has “inherent authority” to limit agenda items.
4. Define the “preponderance of the evidence” standard. Using examples from at least two of the four issues raised in the petition, explain how the Petitioner failed to meet this burden of proof.
5. Based on the referenced community documents (CC&Rs and Bylaws), describe the scope of the Ventana Lakes Board of Directors’ power to regulate Common Areas, suspend resident privileges, and enforce rules. How do these documents grant authority that was relevant to the Board’s actions against the Italian American Club?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions based on the evidence and applicable law. In this case, the ALJ was Tammy L. Eigenheer.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Bylaws
A set of rules adopted by an organization, such as an HOA, to govern its internal management and operations. Article IV, Section E of the Bylaws addresses the Board’s powers and duties.
Covenants, Conditions & Restrictions. These are legally binding rules recorded with the property deeds in a planned community, governing property use and the rights and obligations of the homeowners and the HOA.
Common Areas
Property within a planned community owned by the HOA for the common use and enjoyment of all residents, such as the Yacht Club and recreational facilities mentioned in the case.
Executive Session
A closed portion of a meeting of a deliberative body, such as an HOA board, which is not open to the general membership. A.R.S. § 33-1804 specifies the limited circumstances under which such a session can be held.
HOA (Homeowners Association)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. In this case, the Ventana Lakes Property Owners’ Association.
A legal term for a matter that is no longer in controversy or has become irrelevant. The ALJ declared the issues regarding the Italian American Club moot because the one-year penalty had already expired.
Petitioner
The party who files a petition initiating a legal action or administrative proceeding. In this case, Susan L. Alandar.
Preponderance of the Evidence
The standard of proof in most civil cases, which requires the trier of fact (the judge) to be convinced that a contention is more probably true than not. The Petitioner had the burden to meet this standard.
Respondent
The party against whom a petition is filed or an appeal is brought. In this case, the Ventana Lakes Property Owners’ Association.
Blog Post – 20F-H2020046-REL
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20F-H2020046-REL
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The provided text is an Administrative Law Judge Decision concerning a dispute between Susan L. Alandar, the Petitioner, and the Ventana Lakes Property Owners’ Association, the Respondent. The Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging four violations of statute and community documents by the HOA, requiring her to pay additional filing fees to pursue all four issues. The judge systematically addressed each of the four allegations, which included improper closed-door interviews for board candidates, discriminatory penalizing and facility denial against an Italian American Club, and the refusal to place all member-requested items on the board agenda. Ultimately, the Administrative Law Judge denied the Petitioner’s petition, finding that she failed to establish the alleged violations by a preponderance of the evidence, and further determined that the facilities denial issue was moot as the one-year prohibition had expired.
What were the specific allegations and outcomes across the four distinct issues presented?
How did the Administrative Law Judge interpret governing documents regarding Board authority and rules?
What legal standards and statutes primarily governed the resolution of this HOA dispute petition?
Based on 1 source
Case Participants
Petitioner Side
Susan L. Alandar(petitioner) Appeared on her own behalf.
A.R.S. § 33-1817(A)(1); CC&Rs Part 10, Section 10.4
Outcome Summary
Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1817(A)(1) and the community documents by improperly recording Amended CC&Rs without proper owner consent. The Respondent was ordered to refund the $500.00 filing fee. However, the ALJ could not grant the requested relief (rescission of the Amended CC&Rs) due to a lack of statutory authority.
Key Issues & Findings
Violation regarding the validity of Amended CC&Rs due to lack of required owner approval.
The Petitioner alleged that the Amended CC&Rs recorded by the Board were invalid because they were not approved by two-thirds (2/3) of the lot owners as required by the CC&Rs and statute. The ALJ agreed, finding the Board acted improperly and violated the documents and statute.
Orders: Respondent was ordered to pay Petitioner the filing fee of $500.00. No civil penalty was assessed. The ALJ determined she lacked the statutory authority to order the rescission of the Amended CC&Rs requested by the Petitioner.
Briefing Document: Karolak vs. VVE – Casa Grande Homeowners Association
Executive Summary
This briefing analyzes the Administrative Law Judge (ALJ) Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL). The central issue was whether the HOA Board had the authority to unilaterally amend and record changes to the community’s Covenants, Conditions, and Restrictions (CC&Rs) without the required homeowner vote.
The petitioner, Douglas J. Karolak, successfully argued that the HOA violated its own governing documents and Arizona state law by filing “Amended CC&Rs” on October 5, 2018, without securing the approval of two-thirds of the lot owners. The HOA contended its actions were a valid exercise of its authority to create “Association Rules.”
ALJ Tammy L. Eigenheer ruled decisively in favor of the petitioner. The decision established a clear legal distinction between the Board’s power to adopt rules and the separate, more stringent process required to formally amend the CC&Rs. The judge found the Board acted improperly, declaring Karolak the prevailing party and ordering the HOA to reimburse his $500 filing fee. Notably, while the judge found the amended document was improperly recorded, she concluded she lacked the statutory authority to order its rescission, which was the remedy the petitioner had requested.
Case Overview
Case Name
Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association
Case Number
20F-H2020041-REL
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Hearing Date
May 1, 2020
Decision Date
May 21, 2020
The Central Dispute
The core of the dispute revolved around the legitimacy of a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs), which the HOA Board recorded with the Pinal County Recorder on October 5, 2018.
• Petitioner’s Position (Douglas J. Karolak): The Amended CC&Rs are invalid because they were not approved by “owners of at least two-thirds (2/3) of the Lots,” a requirement explicitly stated in Section 10.4 of the original CC&Rs and supported by Arizona statute A.R.S. § 33-1817(A)(1). Karolak argued that the Board’s action of recording an amendment is fundamentally different from its power to adopt internal “Association Rules.”
• Respondent’s Position (VVE – Casa Grande HOA): The Board argued that its actions were a valid exercise of the authority granted to it under the CC&Rs. It claimed that because the only changes were to Part 7 (Use Restrictions), they fell under the Board’s power to “adopt, amend, or repeal such rules and regulations as it deems reasonable and appropriate” (Section 3.4) and to “modify or waive the foregoing restrictions… by reasonable rules and regulations” (Section 7.43). The Respondent’s counsel did, however, concede that “perhaps the Amended CC&Rs should not have been recorded.”
Factual Background and Chronology
• The VVE – Casa Grande Homeowners Association is a 56-lot community in Casa Grande, Arizona, with 19 lots remaining vacant at the time of the hearing.
• April 30, 1999: The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” (CC&Rs) was recorded.
• 2014 and 2015: The HOA Board made unsuccessful attempts to amend the CC&Rs through membership votes.
• 2018: Following the failed votes, the Board determined it would make changes to the “rules section” of the CC&Rs under the authority it believed was granted by Section 3.4.
• October 5, 2018: The Board recorded the Amended CC&Rs with the Pinal County Recorder. The HOA acknowledged that these amendments had not been approved by the required two-thirds of lot owners.
Legal Analysis and Key Provisions
The decision rested on the interpretation of specific sections of the community’s CC&Rs and Arizona state law. The judge concluded that the document’s structure clearly separates the process of rulemaking from the process of formal amendment.
Provision
Source
Summary of Stipulation
Amendment Process
CC&Rs Section 10.4
Requires an instrument “executed by the Owners of at least two-thirds (2/3) of the Lots” and recorded to become effective.
Rulemaking Authority
CC&Rs Section 3.4
Empowers the Board to adopt, amend, or repeal “Association Rules” governing the use of the property. States rules have the “same force and effect as if they were set forth in” the CC&Rs.
Statutory Requirement
A.R.S. § 33-1817(A)(1)
Provides that a declaration may be amended by the association via an affirmative vote or written consent of the number of owners specified in the declaration.
The judge’s rationale emphasized that the distinct sections for rulemaking (3.4) and amendments (10.4) demonstrate that the original drafters did not intend for the Board to have the power to unilaterally amend the CC&Rs. The judge stated, “The fact that the two topics are covered as separate topics in the CC&Rs leads to the conclusion that the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”
The Court’s Decision and Final Order
The Administrative Law Judge ruled that the petitioner, Douglas J. Karolak, had successfully proven by a preponderance of the evidence that the respondent HOA had acted improperly.
Key Findings:
• The HOA Board did not have the authority to amend the CC&Rs without the approval of two-thirds of the lot owners.
• The Board’s action of recording the Amended CC&Rs on October 5, 2018, was a violation of the community’s governing documents (Section 10.4) and Arizona state law (A.R.S. § 33-1817(A)(1)).
• The Board’s ability to create “Association Rules” is a separate and distinct process from the formal procedure required to amend the Declaration.
Final Order:
• The petitioner, Douglas J. Karolak, was deemed the prevailing party.
• The respondent HOA was ordered to pay the petitioner his $500.00 filing fee within thirty days of the order.
• No civil penalty was found to be appropriate in the matter.
• Critically, the judge determined that under the applicable statute (A.R.S. § 32-2199.02), the Administrative Law Judge does not have the authority to order the Amended CC&Rs rescinded, despite this being the remedy requested by the petitioner.
The order is binding on both parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the decision.
Study Guide – 20F-H2020041-REL
Study Guide: Karolak v. VVE – Casa Grande Homeowners Association
This guide is designed to review the key facts, legal arguments, and outcomes of the Administrative Law Judge Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL).
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the provided legal decision.
1. Who were the petitioner and the respondent in this case, and what was the petitioner’s core allegation?
2. What specific statute and section of the community documents did the petitioner claim the respondent violated?
3. According to Section 10.4 of the original CC&Rs, what was the required procedure for amending the Declaration?
4. Under what authority did the VVE – Casa Grande HOA Board claim it could make changes to the community documents without a membership vote?
5. What key event occurred on or about October 5, 2018, that became the central point of the dispute?
6. What was the respondent’s primary argument for why their actions were valid?
7. What is the “preponderance of the evidence,” and which party bears the burden of proof to establish a violation?
8. Why did the Administrative Law Judge conclude that the Board’s authority to create “Association Rules” was a separate process from amending the CC&Rs?
9. What remedy did the petitioner request, and why was it not granted by the Administrative Law Judge?
10. What was the final order issued by the Judge in this case?
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Answer Key
1. The petitioner was Douglas J. Karolak, a homeowner. The respondent was the VVE – Casa Grande Homeowners Association. Karolak’s core allegation was that the HOA had improperly amended the community’s governing documents.
2. The petitioner alleged a violation of Arizona Revised Statute (A.R.S.) § 33-1817(A)(1). He also claimed a violation of Part 10, Section 10.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
3. Section 10.4 of the CC&Rs stipulated that the Declaration could be amended by an instrument executed by the owners of at least two-thirds (2/3) of the lots. The amendment would not be effective until that instrument was officially recorded.
4. The HOA Board claimed it had the authority to make the changes under Section 3.4 of the CC&Rs. This section empowered the Board to adopt, amend, or repeal “Association Rules” as it deemed reasonable and appropriate.
5. On or about October 5, 2018, the Board recorded a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs) with the Pinal County Recorder. This was done without the required two-thirds vote from the lot owners.
6. The respondent argued that because the only changes made were to Part 7 (Use Restrictions), which fell under the type of rules the Board was authorized to adopt, the Amended CC&Rs were a valid exercise of the Board’s authority. Their counsel did acknowledge, however, that perhaps the document should not have been recorded.
7. A “preponderance of the evidence” is proof that convinces the trier of fact that a contention is more probably true than not. The petitioner bears the burden of proof to establish that the respondent committed the alleged violations by this standard.
8. The Judge concluded they were separate processes because the CC&Rs cover the topics in different sections. This separation led the Judge to believe the original drafters did not intend for the Board to have the authority to amend the CC&Rs on its own.
9. The petitioner requested that the improperly recorded Amended CC&Rs be rescinded. This remedy was not granted because the applicable statute, A.R.S. § 32-2199.02, does not give the Administrative Law Judge the specific authority to order a document rescinded.
10. The final order deemed the petitioner the prevailing party. It further ordered the respondent to repay the petitioner his $500.00 filing fee within thirty days, but found that no civil penalty was appropriate.
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Essay Questions
Instructions: The following questions are designed to promote deeper analysis of the case. Formulate a comprehensive response to each, using only the information presented in the legal decision.
1. Analyze the distinction made by the Administrative Law Judge between the Board’s authority to create “Association Rules” under Section 3.4 and the process for amending the Declaration under Section 10.4. Why was this distinction critical to the case’s outcome?
2. Discuss the legal standard of “preponderance of the evidence” as defined in the decision. How did the petitioner successfully meet this burden of proof to establish the respondent’s violation, and what specific facts supported this conclusion?
3. Examine the respondent’s (HOA’s) argument regarding its authority to amend the CC&Rs. What were the fundamental flaws in this argument, and how did their counsel’s acknowledgment about the recording of the Amended CC&Rs potentially weaken their position?
4. Explain the legal framework governing this dispute, citing the specific Arizona Revised Statutes (A.R.S.) mentioned in the decision. Detail the roles of the Arizona Department of Real Estate, the Office of Administrative Hearings, and the Administrative Law Judge in resolving this type of HOA conflict.
5. Evaluate the final Order of the Administrative Law Judge. While the petitioner was deemed the prevailing party, why was their requested remedy (rescission of the Amended CC&Rs) denied? What does this reveal about the specific limits of the Administrative Law Judge’s authority in such cases under A.R.S. § 32-2199.02?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings. In this case, Tammy L. Eigenheer of the Office of Administrative Hearings made the findings of fact, conclusions of law, and issued the final order.
A.R.S. § 33-1817(A)(1)
The specific Arizona Revised Statute cited by the petitioner. It states that a declaration may be amended by the association with an affirmative vote or written consent of the number of owners specified in the declaration.
Amended CC&Rs
The document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates,” which the HOA Board recorded on October 5, 2018, without the required two-thirds owner approval.
Association Rules
Rules and regulations that the HOA Board is empowered to adopt, amend, or repeal under Section 3.4 of the CC&Rs to govern the use of Common Areas and other parts of the Project. The Board argued their changes fell under this authority.
Burden of Proof
The obligation to prove one’s assertion. In this case, the petitioner bore the burden of proof to establish the respondent’s violations by a preponderance of the evidence.
An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents for a planned community. The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” was recorded on April 30, 1999.
Department
Refers to the Arizona Department of Real Estate, the agency with which the petitioner filed his Homeowners Association (HOA) Dispute Process Petition.
An acronym for Homeowners Association. In this case, the VVE – Casa Grande Homeowners Association, an association of 56 lot owners in Casa Grande, Arizona.
Office of Administrative Hearings
The office responsible for conducting hearings for disputes filed with state agencies like the Department of Real Estate.
Petitioner
The party who initiates a legal action or petition. In this case, homeowner Douglas J. Karolak.
Preponderance of the Evidence
The evidentiary standard required to win the case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed. In this case, the VVE – Casa Grande Homeowners Association.
Blog Post – 20F-H2020041-REL
Your HOA Just Changed the Rules? Why This Homeowner’s $500 Victory is a Warning to Everyone
For millions of Americans, living in a planned community means living under the authority of a Homeowners Association (HOA). While intended to protect property values, these relationships can often feel one-sided, with boards issuing mandates and homeowners feeling powerless to push back. It’s a common frustration, but it’s rare to see a single homeowner challenge their board and force a legal reckoning.
A recent case from Arizona, Douglas J. Karolak versus the VVE – Casa Grande Homeowners Association, provides a critical case study in board overreach and the surprising limits of legal victory. Karolak alleged his HOA board violated its own governing documents and state law by improperly changing the community’s core rules.
He took his case to an administrative law judge and, in a significant ruling, he won. But the outcome of this seemingly straightforward dispute was far from simple. The final decision reveals a shocking twist that holds critical lessons for every homeowner about the difference between being right on paper and getting the remedy you actually want.
There’s a Huge Difference Between a ‘Rule Change’ and a ‘Declaration Amendment’
The first lesson from this case is a critical one for every homeowner: understand the constitutional hierarchy of your community’s documents. The core of the dispute was the HOA Board’s attempt to amend its foundational document, the CC&Rs (Covenants, Conditions, and Restrictions), without getting the required approval from the homeowners.
Here are the key facts of the case:
• The Original Rule: The community’s CC&Rs explicitly stated in Section 10.4 that any amendment required a vote and execution by “at least two-thirds (2/3) of the Lots.” This is the highest level of authority in a planned community, akin to a constitution.
• The Failed Attempts: The Board had tried to get this two-thirds vote in both 2014 and 2015, but was unsuccessful.
• The Workaround: In 2018, the Board decided to bypass the homeowners. It used a separate power granted in Section 3.4 of the CC&Rs—the authority to create day-to-day “Association Rules”—to make what it called changes to the “‘rules section’ of the CC&Rs, specifically targeting the Use Restrictions in Part 7.”
The judge’s conclusion was crystal clear: The CC&Rs were drafted to treat the power to create “rules” and the power to “amend” the declaration as two entirely separate processes. This separation acts as a crucial check on the board’s power, preventing a small group from unilaterally changing the fundamental property rights of all owners. As the judge noted, “the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”
Recording a Document Doesn’t Magically Make It Valid
To make their changes appear official, the HOA Board took a significant step. On October 5, 2018, they filed a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates (Amended CC&Rs)” with the Pinal County Recorder.
For the average homeowner, a formally recorded document filed with the county looks final, official, and legally binding. It’s an intimidating piece of paper that suggests any challenge would be futile.
However, the judge’s ruling highlights a critical legal truth: procedural legitimacy is paramount. An official-looking document, even one filed with the county, is invalid if the legal process required to create it was ignored. The judge found that because the Board did not follow the correct internal procedure—securing the two-thirds vote from homeowners—the very act of recording the document was improper. Even the HOA’s own lawyer seemed to concede this point during the hearing, acknowledging that “perhaps the Amended CC&Rs should not have been recorded.”
The Winner’s Paradox: You Can Be Right and Still Not Get Your Desired Fix
The final order from the Administrative Law Judge was unambiguous: Douglas Karolak, the petitioner, was officially deemed the “prevailing party.” The judge concluded that the HOA had acted in violation of its own community documents and Arizona state law. This was a clear-cut victory for the homeowner.
But here is the shocking twist. Karolak’s requested remedy was for the illegally filed “Amended CC&Rs” to be rescinded—in other words, to have them officially nullified and removed. This seems like the logical and necessary fix to the problem.
The judge, however, was bound by the limits of her authority. The final decision states plainly: “The Administrative Law Judge does not have the authority under the applicable statute to order the Amended CC&Rs rescinded.” This highlights a critical jurisdictional gap. The Administrative Law Judge’s role in this venue is to determine if a violation occurred and assign limited penalties, not to perform the function of a higher court, which might have the power to void a recorded document.
So, what was the actual remedy for this clear violation? The judge ordered the HOA to repay Karolak his $500 filing fee. No other civil penalty was issued. The homeowner won the argument but did not get the one thing he asked for to correct the board’s improper action.
A Victory on Paper, A Question in Practice
The case of Douglas J. Karolak is a powerful real-world lesson. It proves that a single homeowner, armed with a thorough understanding of their community’s governing documents, can successfully challenge an overreaching HOA board and win. It confirms that procedural shortcuts, even when filed and recorded, do not make an illegal action legal.
But it also reveals the frustrating limitations that can exist within the legal process. The homeowner was proven right, but the improperly filed document remains on the books, unable to be rescinded in this specific venue. It raises a crucial question for homeowners everywhere: How do you ensure your victory has real teeth?
Case Participants
Petitioner Side
Douglas J. Karolak(petitioner)
Respondent Side
David A. Fitzgibbons III(HOA attorney) Fitzgibbons Law Offices PLC Represented VVE – Casa Grande Homeowners Association
CV Mathai(witness) VVE – Casa Grande Homeowners Association
John Kelsey(witness) VVE – Casa Grande Homeowners Association
Kristi Kelsey(witness) VVE – Casa Grande Homeowners Association
William Findley(witness) VVE – Casa Grande Homeowners Association
Kay Niemi(witness) VVE – Casa Grande Homeowners Association
Mark Korte(witness) VVE – Casa Grande Homeowners Association
Felicia Del Sol(property manager rep) Norris Management
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
A.R.S. § 33-1817(A)(1); CC&Rs Part 10, Section 10.4
Outcome Summary
Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1817(A)(1) and the community documents by improperly recording Amended CC&Rs without proper owner consent. The Respondent was ordered to refund the $500.00 filing fee. However, the ALJ could not grant the requested relief (rescission of the Amended CC&Rs) due to a lack of statutory authority.
Key Issues & Findings
Violation regarding the validity of Amended CC&Rs due to lack of required owner approval.
The Petitioner alleged that the Amended CC&Rs recorded by the Board were invalid because they were not approved by two-thirds (2/3) of the lot owners as required by the CC&Rs and statute. The ALJ agreed, finding the Board acted improperly and violated the documents and statute.
Orders: Respondent was ordered to pay Petitioner the filing fee of $500.00. No civil penalty was assessed. The ALJ determined she lacked the statutory authority to order the rescission of the Amended CC&Rs requested by the Petitioner.
Briefing Document: Karolak vs. VVE – Casa Grande Homeowners Association
Executive Summary
This briefing analyzes the Administrative Law Judge (ALJ) Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL). The central issue was whether the HOA Board had the authority to unilaterally amend and record changes to the community’s Covenants, Conditions, and Restrictions (CC&Rs) without the required homeowner vote.
The petitioner, Douglas J. Karolak, successfully argued that the HOA violated its own governing documents and Arizona state law by filing “Amended CC&Rs” on October 5, 2018, without securing the approval of two-thirds of the lot owners. The HOA contended its actions were a valid exercise of its authority to create “Association Rules.”
ALJ Tammy L. Eigenheer ruled decisively in favor of the petitioner. The decision established a clear legal distinction between the Board’s power to adopt rules and the separate, more stringent process required to formally amend the CC&Rs. The judge found the Board acted improperly, declaring Karolak the prevailing party and ordering the HOA to reimburse his $500 filing fee. Notably, while the judge found the amended document was improperly recorded, she concluded she lacked the statutory authority to order its rescission, which was the remedy the petitioner had requested.
Case Overview
Case Name
Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association
Case Number
20F-H2020041-REL
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Hearing Date
May 1, 2020
Decision Date
May 21, 2020
The Central Dispute
The core of the dispute revolved around the legitimacy of a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs), which the HOA Board recorded with the Pinal County Recorder on October 5, 2018.
• Petitioner’s Position (Douglas J. Karolak): The Amended CC&Rs are invalid because they were not approved by “owners of at least two-thirds (2/3) of the Lots,” a requirement explicitly stated in Section 10.4 of the original CC&Rs and supported by Arizona statute A.R.S. § 33-1817(A)(1). Karolak argued that the Board’s action of recording an amendment is fundamentally different from its power to adopt internal “Association Rules.”
• Respondent’s Position (VVE – Casa Grande HOA): The Board argued that its actions were a valid exercise of the authority granted to it under the CC&Rs. It claimed that because the only changes were to Part 7 (Use Restrictions), they fell under the Board’s power to “adopt, amend, or repeal such rules and regulations as it deems reasonable and appropriate” (Section 3.4) and to “modify or waive the foregoing restrictions… by reasonable rules and regulations” (Section 7.43). The Respondent’s counsel did, however, concede that “perhaps the Amended CC&Rs should not have been recorded.”
Factual Background and Chronology
• The VVE – Casa Grande Homeowners Association is a 56-lot community in Casa Grande, Arizona, with 19 lots remaining vacant at the time of the hearing.
• April 30, 1999: The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” (CC&Rs) was recorded.
• 2014 and 2015: The HOA Board made unsuccessful attempts to amend the CC&Rs through membership votes.
• 2018: Following the failed votes, the Board determined it would make changes to the “rules section” of the CC&Rs under the authority it believed was granted by Section 3.4.
• October 5, 2018: The Board recorded the Amended CC&Rs with the Pinal County Recorder. The HOA acknowledged that these amendments had not been approved by the required two-thirds of lot owners.
Legal Analysis and Key Provisions
The decision rested on the interpretation of specific sections of the community’s CC&Rs and Arizona state law. The judge concluded that the document’s structure clearly separates the process of rulemaking from the process of formal amendment.
Provision
Source
Summary of Stipulation
Amendment Process
CC&Rs Section 10.4
Requires an instrument “executed by the Owners of at least two-thirds (2/3) of the Lots” and recorded to become effective.
Rulemaking Authority
CC&Rs Section 3.4
Empowers the Board to adopt, amend, or repeal “Association Rules” governing the use of the property. States rules have the “same force and effect as if they were set forth in” the CC&Rs.
Statutory Requirement
A.R.S. § 33-1817(A)(1)
Provides that a declaration may be amended by the association via an affirmative vote or written consent of the number of owners specified in the declaration.
The judge’s rationale emphasized that the distinct sections for rulemaking (3.4) and amendments (10.4) demonstrate that the original drafters did not intend for the Board to have the power to unilaterally amend the CC&Rs. The judge stated, “The fact that the two topics are covered as separate topics in the CC&Rs leads to the conclusion that the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”
The Court’s Decision and Final Order
The Administrative Law Judge ruled that the petitioner, Douglas J. Karolak, had successfully proven by a preponderance of the evidence that the respondent HOA had acted improperly.
Key Findings:
• The HOA Board did not have the authority to amend the CC&Rs without the approval of two-thirds of the lot owners.
• The Board’s action of recording the Amended CC&Rs on October 5, 2018, was a violation of the community’s governing documents (Section 10.4) and Arizona state law (A.R.S. § 33-1817(A)(1)).
• The Board’s ability to create “Association Rules” is a separate and distinct process from the formal procedure required to amend the Declaration.
Final Order:
• The petitioner, Douglas J. Karolak, was deemed the prevailing party.
• The respondent HOA was ordered to pay the petitioner his $500.00 filing fee within thirty days of the order.
• No civil penalty was found to be appropriate in the matter.
• Critically, the judge determined that under the applicable statute (A.R.S. § 32-2199.02), the Administrative Law Judge does not have the authority to order the Amended CC&Rs rescinded, despite this being the remedy requested by the petitioner.
The order is binding on both parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the decision.
Study Guide – 20F-H2020041-REL
Study Guide: Karolak v. VVE – Casa Grande Homeowners Association
This guide is designed to review the key facts, legal arguments, and outcomes of the Administrative Law Judge Decision in the case of Douglas J. Karolak vs. VVE – Casa Grande Homeowners Association (No. 20F-H2020041-REL).
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the provided legal decision.
1. Who were the petitioner and the respondent in this case, and what was the petitioner’s core allegation?
2. What specific statute and section of the community documents did the petitioner claim the respondent violated?
3. According to Section 10.4 of the original CC&Rs, what was the required procedure for amending the Declaration?
4. Under what authority did the VVE – Casa Grande HOA Board claim it could make changes to the community documents without a membership vote?
5. What key event occurred on or about October 5, 2018, that became the central point of the dispute?
6. What was the respondent’s primary argument for why their actions were valid?
7. What is the “preponderance of the evidence,” and which party bears the burden of proof to establish a violation?
8. Why did the Administrative Law Judge conclude that the Board’s authority to create “Association Rules” was a separate process from amending the CC&Rs?
9. What remedy did the petitioner request, and why was it not granted by the Administrative Law Judge?
10. What was the final order issued by the Judge in this case?
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Answer Key
1. The petitioner was Douglas J. Karolak, a homeowner. The respondent was the VVE – Casa Grande Homeowners Association. Karolak’s core allegation was that the HOA had improperly amended the community’s governing documents.
2. The petitioner alleged a violation of Arizona Revised Statute (A.R.S.) § 33-1817(A)(1). He also claimed a violation of Part 10, Section 10.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
3. Section 10.4 of the CC&Rs stipulated that the Declaration could be amended by an instrument executed by the owners of at least two-thirds (2/3) of the lots. The amendment would not be effective until that instrument was officially recorded.
4. The HOA Board claimed it had the authority to make the changes under Section 3.4 of the CC&Rs. This section empowered the Board to adopt, amend, or repeal “Association Rules” as it deemed reasonable and appropriate.
5. On or about October 5, 2018, the Board recorded a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates” (Amended CC&Rs) with the Pinal County Recorder. This was done without the required two-thirds vote from the lot owners.
6. The respondent argued that because the only changes made were to Part 7 (Use Restrictions), which fell under the type of rules the Board was authorized to adopt, the Amended CC&Rs were a valid exercise of the Board’s authority. Their counsel did acknowledge, however, that perhaps the document should not have been recorded.
7. A “preponderance of the evidence” is proof that convinces the trier of fact that a contention is more probably true than not. The petitioner bears the burden of proof to establish that the respondent committed the alleged violations by this standard.
8. The Judge concluded they were separate processes because the CC&Rs cover the topics in different sections. This separation led the Judge to believe the original drafters did not intend for the Board to have the authority to amend the CC&Rs on its own.
9. The petitioner requested that the improperly recorded Amended CC&Rs be rescinded. This remedy was not granted because the applicable statute, A.R.S. § 32-2199.02, does not give the Administrative Law Judge the specific authority to order a document rescinded.
10. The final order deemed the petitioner the prevailing party. It further ordered the respondent to repay the petitioner his $500.00 filing fee within thirty days, but found that no civil penalty was appropriate.
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Essay Questions
Instructions: The following questions are designed to promote deeper analysis of the case. Formulate a comprehensive response to each, using only the information presented in the legal decision.
1. Analyze the distinction made by the Administrative Law Judge between the Board’s authority to create “Association Rules” under Section 3.4 and the process for amending the Declaration under Section 10.4. Why was this distinction critical to the case’s outcome?
2. Discuss the legal standard of “preponderance of the evidence” as defined in the decision. How did the petitioner successfully meet this burden of proof to establish the respondent’s violation, and what specific facts supported this conclusion?
3. Examine the respondent’s (HOA’s) argument regarding its authority to amend the CC&Rs. What were the fundamental flaws in this argument, and how did their counsel’s acknowledgment about the recording of the Amended CC&Rs potentially weaken their position?
4. Explain the legal framework governing this dispute, citing the specific Arizona Revised Statutes (A.R.S.) mentioned in the decision. Detail the roles of the Arizona Department of Real Estate, the Office of Administrative Hearings, and the Administrative Law Judge in resolving this type of HOA conflict.
5. Evaluate the final Order of the Administrative Law Judge. While the petitioner was deemed the prevailing party, why was their requested remedy (rescission of the Amended CC&Rs) denied? What does this reveal about the specific limits of the Administrative Law Judge’s authority in such cases under A.R.S. § 32-2199.02?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings. In this case, Tammy L. Eigenheer of the Office of Administrative Hearings made the findings of fact, conclusions of law, and issued the final order.
A.R.S. § 33-1817(A)(1)
The specific Arizona Revised Statute cited by the petitioner. It states that a declaration may be amended by the association with an affirmative vote or written consent of the number of owners specified in the declaration.
Amended CC&Rs
The document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates,” which the HOA Board recorded on October 5, 2018, without the required two-thirds owner approval.
Association Rules
Rules and regulations that the HOA Board is empowered to adopt, amend, or repeal under Section 3.4 of the CC&Rs to govern the use of Common Areas and other parts of the Project. The Board argued their changes fell under this authority.
Burden of Proof
The obligation to prove one’s assertion. In this case, the petitioner bore the burden of proof to establish the respondent’s violations by a preponderance of the evidence.
An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents for a planned community. The original “Restated Declaration of Covenants, Conditions and Restrictions for VVE” was recorded on April 30, 1999.
Department
Refers to the Arizona Department of Real Estate, the agency with which the petitioner filed his Homeowners Association (HOA) Dispute Process Petition.
An acronym for Homeowners Association. In this case, the VVE – Casa Grande Homeowners Association, an association of 56 lot owners in Casa Grande, Arizona.
Office of Administrative Hearings
The office responsible for conducting hearings for disputes filed with state agencies like the Department of Real Estate.
Petitioner
The party who initiates a legal action or petition. In this case, homeowner Douglas J. Karolak.
Preponderance of the Evidence
The evidentiary standard required to win the case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed. In this case, the VVE – Casa Grande Homeowners Association.
Blog Post – 20F-H2020041-REL
Your HOA Just Changed the Rules? Why This Homeowner’s $500 Victory is a Warning to Everyone
For millions of Americans, living in a planned community means living under the authority of a Homeowners Association (HOA). While intended to protect property values, these relationships can often feel one-sided, with boards issuing mandates and homeowners feeling powerless to push back. It’s a common frustration, but it’s rare to see a single homeowner challenge their board and force a legal reckoning.
A recent case from Arizona, Douglas J. Karolak versus the VVE – Casa Grande Homeowners Association, provides a critical case study in board overreach and the surprising limits of legal victory. Karolak alleged his HOA board violated its own governing documents and state law by improperly changing the community’s core rules.
He took his case to an administrative law judge and, in a significant ruling, he won. But the outcome of this seemingly straightforward dispute was far from simple. The final decision reveals a shocking twist that holds critical lessons for every homeowner about the difference between being right on paper and getting the remedy you actually want.
There’s a Huge Difference Between a ‘Rule Change’ and a ‘Declaration Amendment’
The first lesson from this case is a critical one for every homeowner: understand the constitutional hierarchy of your community’s documents. The core of the dispute was the HOA Board’s attempt to amend its foundational document, the CC&Rs (Covenants, Conditions, and Restrictions), without getting the required approval from the homeowners.
Here are the key facts of the case:
• The Original Rule: The community’s CC&Rs explicitly stated in Section 10.4 that any amendment required a vote and execution by “at least two-thirds (2/3) of the Lots.” This is the highest level of authority in a planned community, akin to a constitution.
• The Failed Attempts: The Board had tried to get this two-thirds vote in both 2014 and 2015, but was unsuccessful.
• The Workaround: In 2018, the Board decided to bypass the homeowners. It used a separate power granted in Section 3.4 of the CC&Rs—the authority to create day-to-day “Association Rules”—to make what it called changes to the “‘rules section’ of the CC&Rs, specifically targeting the Use Restrictions in Part 7.”
The judge’s conclusion was crystal clear: The CC&Rs were drafted to treat the power to create “rules” and the power to “amend” the declaration as two entirely separate processes. This separation acts as a crucial check on the board’s power, preventing a small group from unilaterally changing the fundamental property rights of all owners. As the judge noted, “the original drafters of the CC&Rs did not contemplate that the Board had the authority to, on its own, amend the CC&Rs.”
Recording a Document Doesn’t Magically Make It Valid
To make their changes appear official, the HOA Board took a significant step. On October 5, 2018, they filed a document titled “Restated Declaration of Covenants, Conditions and Restrictions for Val Vista Estates (Amended CC&Rs)” with the Pinal County Recorder.
For the average homeowner, a formally recorded document filed with the county looks final, official, and legally binding. It’s an intimidating piece of paper that suggests any challenge would be futile.
However, the judge’s ruling highlights a critical legal truth: procedural legitimacy is paramount. An official-looking document, even one filed with the county, is invalid if the legal process required to create it was ignored. The judge found that because the Board did not follow the correct internal procedure—securing the two-thirds vote from homeowners—the very act of recording the document was improper. Even the HOA’s own lawyer seemed to concede this point during the hearing, acknowledging that “perhaps the Amended CC&Rs should not have been recorded.”
The Winner’s Paradox: You Can Be Right and Still Not Get Your Desired Fix
The final order from the Administrative Law Judge was unambiguous: Douglas Karolak, the petitioner, was officially deemed the “prevailing party.” The judge concluded that the HOA had acted in violation of its own community documents and Arizona state law. This was a clear-cut victory for the homeowner.
But here is the shocking twist. Karolak’s requested remedy was for the illegally filed “Amended CC&Rs” to be rescinded—in other words, to have them officially nullified and removed. This seems like the logical and necessary fix to the problem.
The judge, however, was bound by the limits of her authority. The final decision states plainly: “The Administrative Law Judge does not have the authority under the applicable statute to order the Amended CC&Rs rescinded.” This highlights a critical jurisdictional gap. The Administrative Law Judge’s role in this venue is to determine if a violation occurred and assign limited penalties, not to perform the function of a higher court, which might have the power to void a recorded document.
So, what was the actual remedy for this clear violation? The judge ordered the HOA to repay Karolak his $500 filing fee. No other civil penalty was issued. The homeowner won the argument but did not get the one thing he asked for to correct the board’s improper action.
A Victory on Paper, A Question in Practice
The case of Douglas J. Karolak is a powerful real-world lesson. It proves that a single homeowner, armed with a thorough understanding of their community’s governing documents, can successfully challenge an overreaching HOA board and win. It confirms that procedural shortcuts, even when filed and recorded, do not make an illegal action legal.
But it also reveals the frustrating limitations that can exist within the legal process. The homeowner was proven right, but the improperly filed document remains on the books, unable to be rescinded in this specific venue. It raises a crucial question for homeowners everywhere: How do you ensure your victory has real teeth?
Case Participants
Petitioner Side
Douglas J. Karolak(petitioner)
Respondent Side
David A. Fitzgibbons III(HOA attorney) Fitzgibbons Law Offices PLC Represented VVE – Casa Grande Homeowners Association
CV Mathai(witness) VVE – Casa Grande Homeowners Association
John Kelsey(witness) VVE – Casa Grande Homeowners Association
Kristi Kelsey(witness) VVE – Casa Grande Homeowners Association
William Findley(witness) VVE – Casa Grande Homeowners Association
Kay Niemi(witness) VVE – Casa Grande Homeowners Association
Mark Korte(witness) VVE – Casa Grande Homeowners Association
Felicia Del Sol(property manager rep) Norris Management
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
CC&Rs Article VII Membership and Voting section 7.3.1 Voting Classes
Outcome Summary
The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.
Why this result: The restriction on voting found in Section 7.3.1 applies only when the owner is paying a reduced assessment 'pursuant to Section 8.3.' Since the reduced assessment period permitted under Section 8.3 had expired for the developer owners, they were not paying reduced assessments 'pursuant to Section 8.3,' and were therefore entitled to vote.
Key Issues & Findings
Alleged violation of community document regarding the voting rights of Developer Owners paying reduced assessments.
Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging the Respondent HOA violated the community documents (CC&Rs Article VII, Section 7.3.1) by allowing Developer Owners (Vistoso Highlands and Pulte) to vote in an election while they were paying reduced assessments, which Petitioner argued was prohibited.
Orders: Petitioner’s petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Analytics Highlights
Topics: HOA Election, Voting Rights, Reduced Assessment, Community Document Violation
Additional Citations:
A.R.S. § 32-2199
CC&Rs Article VII, Section 7.3.1
CC&Rs Article VIII, Section 8.3
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2019014-REL Decision – 766242.pdf
Uploaded 2025-10-09T03:34:33 (48.3 KB)
20F-H2019014-REL Decision – 766243.pdf
Uploaded 2025-10-09T03:34:33 (109.1 KB)
Briefing Doc – 20F-H2019014-REL
Administrative Hearing Briefing: Moffett vs. Vistoso Community Association (Case No. 20F-H2019014-REL)
Executive Summary
On January 27, 2020, Administrative Law Judge Tammy L. Eigenheer of the Arizona Office of Administrative Hearings dismissed a petition filed by Paul L. Moffett against the Vistoso Community Association. The core of the dispute was the validity of 207 votes cast by two developer-owners, Vistoso Highlands and Pulte, in a Board of Directors election held on March 29, 2019.
The petitioner argued that because these entities were paying reduced assessments on their lots, they were prohibited from voting under the community’s governing documents (CC&Rs). The respondent association contended that the voting prohibition was narrowly tied to a specific provision allowing reduced assessments for a limited time, a period which had long expired for both entities.
The judge ruled in favor of the Vistoso Community Association, concluding that the votes were valid. The decision hinged on a strict interpretation of the CC&Rs. Although the developers were factually paying reduced assessments, they were not doing so pursuant to the specific section that triggers the voting prohibition. The judge noted that the failure to collect full assessments was a separate “financial concern for the association,” but it did not invalidate the votes cast in the election. The petitioner failed to meet the burden of proof required to establish a violation of the community documents.
Case Overview
This briefing analyzes the Administrative Law Judge Decision in the matter between petitioner Paul L. Moffett and respondent Vistoso Community Association concerning an alleged violation of community CC&Rs.
Detail
Information
Case Name
Paul L Moffett vs. Vistoso Community Association
Case Number
20F-H2019014-REL
Adjudicating Body
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Petition Filed
On or about September 25, 2019
Hearing Date
December 16, 2019
Decision & Order Date
January 27, 2020
Petitioner
Paul L. Moffett
Petitioner’s Counsel
Richard M. Rollman, Gabroy, Rollman & Bosse, P.C.
Respondent
Vistoso Community Association
Respondent’s Counsel
Jason E. Smith, CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
The Core Dispute: Voter Eligibility and Reduced Assessments
Petitioner’s Allegation
On September 25, 2019, Paul L. Moffett filed a petition with the Arizona Department of Real Estate, alleging that the Vistoso Community Association violated its own governing documents. The specific violation cited was of Article VII, Section 7.3.1 (Voting Classes) of the community’s Declaration.
The dispute centered on the Board of Directors election held on March 29, 2019. In the days leading up to the election, property management solicited votes from two developer-owners:
• Vistoso Highlands: Owner of 39 lots.
• Pulte: Owner of 168 lots.
Both entities cast their total available votes—207 votes—for three candidates: Sarah Nelson, Patrick Straney, and Dennis Ottley. Mr. Moffett’s petition argued that these 207 votes were invalid because, at the time of the election, both Vistoso Highlands and Pulte were paying reduced assessments on their lots, which he contended made them ineligible to vote under the CC&Rs.
Analysis of Arguments and Key Provisions
The decision in this case rested entirely on the interpretation of two interlinked sections within the Vistoso Community Association’s Declaration.
Key Governing Document Provisions
• Article VII, Section 7.3.1 (Voting Prohibition): This section states, in pertinent part, that “a Class A Member shall not be entitled to vote with respect to any Lots, Parcels or Apartment Units in regard to which the Owner is paying only a reduced Assessment pursuant to Section 8.3.”
• Article VIII, Section 8.3 (Reduced Assessment Eligibility): This section permits a Developer Owner to pay a reduced assessment on lots for a maximum of two years after the initial Developer Owner obtains ownership from the Declarant.
Petitioner’s Position (Paul L. Moffett)
The petitioner’s argument was straightforward:
• Vistoso Highlands and Pulte were paying reduced assessments.
• Section 7.3.1 prohibits voting for members who pay reduced assessments.
• Therefore, their votes should not have been counted.
Respondent’s Position (Vistoso Community Association)
The respondent’s argument focused on the precise qualifying language in the CC&Rs:
• The voting prohibition in Section 7.3.1 is conditional and applies only when members are paying reduced assessments specifically “pursuant to Section 8.3.”
• The eligibility window for paying reduced assessments under Section 8.3 had expired years prior for both entities.
• Therefore, although they were factually paying reduced assessments, this was not being done under the authority or conditions of Section 8.3.
• Consequently, the voting prohibition of Section 7.3.1 was not applicable to them.
Established Findings of Fact
The evidence presented at the hearing established a clear timeline regarding the ownership of the lots and the expiration of the reduced assessment periods.
• March 20, 2007: Vistoso Highlands obtained ownership of 39 lots from the Declarant.
• March 20, 2009: The two-year maximum period for Vistoso Highlands to pay reduced assessments under Section 8.3 officially terminated.
• August 21 & October 14, 2014: Pulte’s predecessor obtained ownership of 168 lots from the Declarant.
• October 14, 2016: The two-year maximum period for these 168 lots to have reduced assessments under Section 8.3 officially terminated.
• January 2, 2019: Pulte obtained ownership of the 168 lots from its predecessor.
• March 29, 2019: The Board of Directors election was held.
• Key Fact: The judge found that “For whatever reason, neither Vistoso Highlands nor Pulte had been paying the full assessment as required by the Declaration as of the date of the election.”
The Administrative Law Judge’s Decision and Rationale
The Administrative Law Judge (ALJ) sided with the respondent’s interpretation of the governing documents, leading to the dismissal of the petition.
Legal Interpretation
The ALJ concluded that the two articles could not be read in isolation. The critical legal finding was that the voting prohibition was explicitly and inextricably linked to the conditions set forth in Section 8.3.
The decision states:
“Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.”
The judge reasoned that since the eligibility period under Section 8.3 had expired in 2009 and 2016, respectively, the developers were no longer paying reduced fees “pursuant to” that section at the time of the 2019 election.
Acknowledgment of Financial Discrepancy
The ALJ acknowledged the underlying issue that the developers were not paying the full assessments they owed. However, this was deemed a separate matter from voter eligibility. The judge noted that the failure to be invoiced for and to pay the full amount “is certainly a financial concern for the association as a whole,” but “that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.”
Final Order
Based on this legal interpretation, the ALJ found that the petitioner, Paul L. Moffett, failed to sustain his burden of proof to establish a violation of the community documents by a preponderance of the evidence.
• Official Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Notice: The decision 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-H2019014-REL
Study Guide: Moffett v. Vistoso Community Association (Case No. 20F-H2019014-REL)
This guide provides a comprehensive review of the administrative law case between Petitioner Paul L. Moffett and Respondent Vistoso Community Association, based on the Administrative Law Judge Decision issued on January 27, 2020. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling of the case.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, using only information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific article and section of the community documents did the Petitioner allege was violated?
3. When was the Board of Directors election held, and what was the total number of votes cast by Pulte and Vistoso Highlands?
4. According to the community’s Declaration, under what specific condition is a Class A Member not entitled to vote?
5. What did Article VIII, Section 8.3 of the Declaration allow for, and what was the maximum time limit for this provision?
6. Based on the timeline provided, when should the reduced assessment period have ended for Vistoso Highlands and for Pulte?
7. What was the Petitioner’s core argument for why Pulte and Vistoso Highlands should not have been allowed to vote?
8. How did the Respondent counter the Petitioner’s argument regarding the voting rights of Pulte and Vistoso Highlands?
9. What was the Administrative Law Judge’s final conclusion regarding the voting eligibility of Vistoso Highlands and Pulte, and what was the reasoning?
10. What was the final order in this case, and what recourse was available to the parties after the decision?
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Answer Key
1. The primary parties were Paul L. Moffett, who served as the Petitioner, and the Vistoso Community Association, which was the Respondent. Moffett initiated the dispute by filing a petition against the association.
2. The Petitioner alleged a violation of “Article VII Membership and Voting, Section 7.3.1 Voting Classes” of the community documents (CC&Rs). This was the single issue presented for the hearing.
3. The Board of Directors election was held on or about March 29, 2019. In that election, Pulte and Vistoso Highlands collectively cast 207 votes for candidates Sarah Nelson, Patrick Straney, and Dennis Ottley.
4. According to Article VII, Section 7.3.1 of the Declaration, a Class A Member is not entitled to vote with respect to any lots for which the owner is paying only a reduced assessment “pursuant to Section 8.3.”
5. Article VIII, Section 8.3 of the Declaration allowed Developer Owners to pay a reduced assessment on lots purchased from the Declarant. This provision was permitted for a maximum period of two years (24 months) after the initial Developer Owner obtained ownership.
6. The reduced assessment period for Vistoso Highlands should have terminated on March 20, 2009. For the lots owned by Pulte, the reduced assessments should have terminated on October 14, 2016.
7. The Petitioner argued that because Vistoso Highlands and Pulte were, in fact, paying reduced assessments at the time of the election, they were not entitled to vote. The argument was based on the fact that they were paying reduced fees, regardless of whether they were supposed to be.
8. The Respondent argued that the voting prohibition in Section 7.3.1 was not applicable. Their reasoning was that while Pulte and Vistoso Highlands were paying reduced assessments, they were not doing so “pursuant to Section 8.3” because the time limit for that provision had long expired.
9. The Judge concluded that Vistoso Highlands and Pulte were entitled to vote in the election. The reasoning was that the prohibition in Section 7.3.1 only applied to reduced assessments paid as authorized by Section 8.3; since the authorization period had passed, the prohibition no longer applied, even if they were improperly paying a lower rate.
10. The final order was that the Petitioner’s petition was dismissed. After the order was served, the parties had 30 days to file a request for a rehearing with the Commissioner of the Department of Real Estate pursuant to A.R.S. § 41-1092.09.
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Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Use the source material to construct a thorough and well-supported argument.
1. Analyze the Administrative Law Judge’s interpretation of the phrase “pursuant to Section 8.3” from Article VII, Section 7.3.1. Explain how this interpretation was central to the case’s outcome and discuss the distinction made between paying a reduced assessment and paying a reduced assessment under the authority of Section 8.3.
2. Describe the timeline of property ownership and assessment obligations for both Vistoso Highlands and Pulte. Explain how the failure to adhere to the timeline for ending reduced assessments created the central conflict in this dispute.
3. Discuss the concept of “burden of proof” as it applied in this case. Who held the burden, what was the standard required (preponderance of the evidence), and why did the Administrative Law Judge ultimately find that the Petitioner failed to meet this burden?
4. The judge noted that the failure to collect full assessments from Vistoso Highlands and Pulte was a “financial concern for the association as a whole.” Elaborate on the potential implications of this financial issue for the Vistoso Community Association, even though it did not affect the outcome of the election dispute.
5. Outline the procedural history of the case, starting from the filing of the petition. Include key dates, the entities involved (Petitioner, Respondent, Department of Real Estate, Office of Administrative Hearings), the legal representatives, and the final step available to the parties after the judge’s order.
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Glossary of Key Terms and Entities
Term / Entity
Definition
Administrative Law Judge (ALJ)
An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and makes decisions on disputes.
Arizona Department of Real Estate (Department)
The state agency with which the Petitioner filed the initial Homeowners Association (HOA) Dispute Process Petition.
Article VII, Section 7.3.1
The section of the Vistoso Community Association Declaration that prohibits a Class A Member from voting on lots for which they are paying a reduced assessment “pursuant to Section 8.3.”
Article VIII, Section 8.3
The section of the Declaration that permits a Developer Owner to pay a reduced assessment for a maximum of two years after purchasing a parcel from the Declarant.
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.
Declarant
The original entity that owned the land before selling lots to Developer Owners like Vistoso Highlands and Pulte’s predecessor.
Developer Owner
An owner, such as Vistoso Highlands or Pulte, who obtained lots from the Declarant and was eligible for reduced assessments for a limited time under Section 8.3.
Homeowners Association (HOA) Dispute Process Petition
The formal document filed by Paul L. Moffett with the Arizona Department of Real Estate on September 25, 2019, to initiate the legal dispute.
Office of Administrative Hearings (OAH)
The state office where the formal hearing for this case was conducted before an Administrative Law Judge.
Petitioner
The party who initiates a lawsuit or petition. In this case, Paul L. Moffett.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side over the other.
Respondent
The party against whom a petition is filed. In this case, the Vistoso Community Association.
Blog Post – 20F-H2019014-REL
The Legal Loophole That Flipped an HOA Election on Its Head
For anyone living in a planned community, the thick binder of Homeowners Association (HOA) rules is a familiar reality. These documents govern everything from mailbox colors to lawn maintenance, and their dense language can be a source of constant confusion. But beyond the day-to-day frustrations lies a deeper legal truth: the precise wording of these documents is absolute. This principle, known in contract law as strict constructionism, holds that a text’s literal meaning must be followed, even if it leads to an outcome that seems unfair.
This is the story of a homeowner who believed he had uncovered a clear-cut violation during a critical HOA election. Developers who were underpaying their dues had cast hundreds of votes, seemingly in direct contravention of the community’s own governing documents. But when the case was adjudicated, the outcome hinged on a single phrase, providing a textbook example of how strict constructionism can create a mind-bending loophole and turn a seemingly open-and-shut case completely upside down.
The Rule Seemed Simple: Pay a Discount, You Don’t Get a Vote
The petitioner, Paul L. Moffett, filed a formal complaint against the Vistoso Community Association, alleging a violation of a specific clause in the governing documents: “Article VII Membership and Voting, Section 7.3.1 Voting Classes.” His case was built on what appeared to be a straightforward set of rules designed to ensure fairness.
The community’s governing documents contained two key sections:
• Article VIII, Section 8.3: This rule allowed “Developer Owners” who purchased property from the original Declarant to pay a reduced assessment. However, this discount was explicitly limited to a maximum of two years.
• Article VII, Section 7.3.1: This rule stated that any member paying a reduced assessment pursuant to Section 8.3 was not entitled to vote with respect to those properties.
On the surface, the logic was simple and equitable: if you aren’t paying your full share as authorized by the rules, you don’t get a say in the community’s governance.
The Smoking Gun: Developers Were Underpaying for Years
The petitioner presented evidence that seemed to prove his case conclusively. Two developers, Vistoso Highlands and Pulte, owned a combined 207 lots. According to the two-year limit, their eligibility for reduced assessments should have ended long ago.
• Vistoso Highlands’ reduced assessment period should have terminated on March 20, 2009.
• Pulte’s predecessor’s reduced assessment period should have terminated on October 14, 2016.
However, at the time of the Board of Directors election on March 29, 2019, both developers were still paying the discounted rate—years after their eligibility had expired. Making matters worse, the evidence showed that in the days preceding the election, the property management staff had actively reached out to both developers to obtain their votes. They cast all 207 of them, which appeared to be a direct violation of the rule prohibiting voting by members paying reduced fees.
The Twist: A Single Phrase Created a Mind-Bending Loophole
This is where the case took a sharp, unexpected turn. The Administrative Law Judge (ALJ) assigned to the case did not focus on the fact that the developers were underpaying, but on the precise legal language connecting the two rules. The dispositive element of the case was the phrase “pursuant to Section 8.3.”
The ALJ noted that, “for whatever reason,” the developers had been underpaying for years. However, she reasoned that because the two-year time limit for reduced payments under Section 8.3 had long since expired, the developers were no longer paying their reduced fees “pursuant to Section 8.3.” They were, in fact, simply underpaying their dues improperly and in violation of the documents.
In essence, the developers’ long-term violation of the payment rule served as their shield against the voting penalty. By breaking the rule governing their assessment amount, they had inadvertently immunized themselves from the rule governing voting rights. The voting prohibition in Section 7.3.1 only applied to members who were correctly paying a reduced assessment as authorized by Section 8.3. Since their discount was no longer authorized, the voting ban no longer applied.
The ALJ summarized this stunning conclusion in the final decision:
Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.
The Verdict: A Financial Problem Doesn’t Invalidate a Vote
Ultimately, the petition was dismissed, and all 207 votes cast by the developers were deemed valid. The ALJ acknowledged that the developers’ failure to pay their full assessments was a serious financial issue for the association but clarified that it was a separate matter from their right to vote.
The ALJ effectively severed the financial issue from the question of voting eligibility. This separation of issues is a fundamental tenet of legal analysis, preventing one breach of contract (underpaying dues) from automatically triggering penalties associated with a completely different clause (voting rights).
While the failure to be invoiced and to pay a full assessment on the 207 parcels at issue is certainly a financial concern for the association as a whole, that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.
This highlights a critical aspect of legal interpretation: issues that seem causally linked in a common-sense way can be treated as entirely distinct under a strict reading of the law.
Conclusion: The Devil is Always in the Details
This case serves as a powerful reminder that in the world of legal documents, every single word matters. It is a perfect demonstration of strict constructionism, where an outcome that seems to defy logic and fairness can be perfectly valid based on the literal, unambiguous phrasing of a rule. What appeared to be a clear prohibition on voting was undone by a loophole created by the developers’ own long-term failure to comply with assessment rules.
The outcome forces us to confront a difficult question at the heart of our legal system: When the literal interpretation of a contract conflicts with our sense of fairness, which should prevail? This case provides a clear, if unsettling, answer.
Case Participants
Petitioner Side
Paul L Moffett(petitioner) Appeared at hearing and testified on his own behalf
Richard M. Rollman(petitioner attorney) Gabroy, Rollman & Bosse, P.C.
Alyssa Leverette(legal staff) Gabroy, Rollman & Bosse, P.C. Listed below Petitioner's attorney on service list
Respondent Side
Jason E. Smith(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Kimberly Rubly(witness) Vice President of Southern Region (testified for Respondent)
Sean K. Moynihan(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC Recipient of Order
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of Order
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of Order
djones(ADRE staff) Arizona Department of Real Estate Recipient of Order
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of Order
ncano(ADRE staff) Arizona Department of Real Estate Recipient of Order
Other Participants
Sarah Nelson(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Patrick Straney(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Dennis Ottley(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
CC&Rs Article VII Membership and Voting section 7.3.1 Voting Classes
Outcome Summary
The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.
Why this result: The restriction on voting found in Section 7.3.1 applies only when the owner is paying a reduced assessment 'pursuant to Section 8.3.' Since the reduced assessment period permitted under Section 8.3 had expired for the developer owners, they were not paying reduced assessments 'pursuant to Section 8.3,' and were therefore entitled to vote.
Key Issues & Findings
Alleged violation of community document regarding the voting rights of Developer Owners paying reduced assessments.
Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging the Respondent HOA violated the community documents (CC&Rs Article VII, Section 7.3.1) by allowing Developer Owners (Vistoso Highlands and Pulte) to vote in an election while they were paying reduced assessments, which Petitioner argued was prohibited.
Orders: Petitioner’s petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Analytics Highlights
Topics: HOA Election, Voting Rights, Reduced Assessment, Community Document Violation
Additional Citations:
A.R.S. § 32-2199
CC&Rs Article VII, Section 7.3.1
CC&Rs Article VIII, Section 8.3
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2019014-REL Decision – 766242.pdf
Uploaded 2026-01-23T17:30:28 (48.3 KB)
20F-H2019014-REL Decision – 766243.pdf
Uploaded 2026-01-23T17:30:31 (109.1 KB)
Briefing Doc – 20F-H2019014-REL
Administrative Hearing Briefing: Moffett vs. Vistoso Community Association (Case No. 20F-H2019014-REL)
Executive Summary
On January 27, 2020, Administrative Law Judge Tammy L. Eigenheer of the Arizona Office of Administrative Hearings dismissed a petition filed by Paul L. Moffett against the Vistoso Community Association. The core of the dispute was the validity of 207 votes cast by two developer-owners, Vistoso Highlands and Pulte, in a Board of Directors election held on March 29, 2019.
The petitioner argued that because these entities were paying reduced assessments on their lots, they were prohibited from voting under the community’s governing documents (CC&Rs). The respondent association contended that the voting prohibition was narrowly tied to a specific provision allowing reduced assessments for a limited time, a period which had long expired for both entities.
The judge ruled in favor of the Vistoso Community Association, concluding that the votes were valid. The decision hinged on a strict interpretation of the CC&Rs. Although the developers were factually paying reduced assessments, they were not doing so pursuant to the specific section that triggers the voting prohibition. The judge noted that the failure to collect full assessments was a separate “financial concern for the association,” but it did not invalidate the votes cast in the election. The petitioner failed to meet the burden of proof required to establish a violation of the community documents.
Case Overview
This briefing analyzes the Administrative Law Judge Decision in the matter between petitioner Paul L. Moffett and respondent Vistoso Community Association concerning an alleged violation of community CC&Rs.
Detail
Information
Case Name
Paul L Moffett vs. Vistoso Community Association
Case Number
20F-H2019014-REL
Adjudicating Body
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Petition Filed
On or about September 25, 2019
Hearing Date
December 16, 2019
Decision & Order Date
January 27, 2020
Petitioner
Paul L. Moffett
Petitioner’s Counsel
Richard M. Rollman, Gabroy, Rollman & Bosse, P.C.
Respondent
Vistoso Community Association
Respondent’s Counsel
Jason E. Smith, CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
The Core Dispute: Voter Eligibility and Reduced Assessments
Petitioner’s Allegation
On September 25, 2019, Paul L. Moffett filed a petition with the Arizona Department of Real Estate, alleging that the Vistoso Community Association violated its own governing documents. The specific violation cited was of Article VII, Section 7.3.1 (Voting Classes) of the community’s Declaration.
The dispute centered on the Board of Directors election held on March 29, 2019. In the days leading up to the election, property management solicited votes from two developer-owners:
• Vistoso Highlands: Owner of 39 lots.
• Pulte: Owner of 168 lots.
Both entities cast their total available votes—207 votes—for three candidates: Sarah Nelson, Patrick Straney, and Dennis Ottley. Mr. Moffett’s petition argued that these 207 votes were invalid because, at the time of the election, both Vistoso Highlands and Pulte were paying reduced assessments on their lots, which he contended made them ineligible to vote under the CC&Rs.
Analysis of Arguments and Key Provisions
The decision in this case rested entirely on the interpretation of two interlinked sections within the Vistoso Community Association’s Declaration.
Key Governing Document Provisions
• Article VII, Section 7.3.1 (Voting Prohibition): This section states, in pertinent part, that “a Class A Member shall not be entitled to vote with respect to any Lots, Parcels or Apartment Units in regard to which the Owner is paying only a reduced Assessment pursuant to Section 8.3.”
• Article VIII, Section 8.3 (Reduced Assessment Eligibility): This section permits a Developer Owner to pay a reduced assessment on lots for a maximum of two years after the initial Developer Owner obtains ownership from the Declarant.
Petitioner’s Position (Paul L. Moffett)
The petitioner’s argument was straightforward:
• Vistoso Highlands and Pulte were paying reduced assessments.
• Section 7.3.1 prohibits voting for members who pay reduced assessments.
• Therefore, their votes should not have been counted.
Respondent’s Position (Vistoso Community Association)
The respondent’s argument focused on the precise qualifying language in the CC&Rs:
• The voting prohibition in Section 7.3.1 is conditional and applies only when members are paying reduced assessments specifically “pursuant to Section 8.3.”
• The eligibility window for paying reduced assessments under Section 8.3 had expired years prior for both entities.
• Therefore, although they were factually paying reduced assessments, this was not being done under the authority or conditions of Section 8.3.
• Consequently, the voting prohibition of Section 7.3.1 was not applicable to them.
Established Findings of Fact
The evidence presented at the hearing established a clear timeline regarding the ownership of the lots and the expiration of the reduced assessment periods.
• March 20, 2007: Vistoso Highlands obtained ownership of 39 lots from the Declarant.
• March 20, 2009: The two-year maximum period for Vistoso Highlands to pay reduced assessments under Section 8.3 officially terminated.
• August 21 & October 14, 2014: Pulte’s predecessor obtained ownership of 168 lots from the Declarant.
• October 14, 2016: The two-year maximum period for these 168 lots to have reduced assessments under Section 8.3 officially terminated.
• January 2, 2019: Pulte obtained ownership of the 168 lots from its predecessor.
• March 29, 2019: The Board of Directors election was held.
• Key Fact: The judge found that “For whatever reason, neither Vistoso Highlands nor Pulte had been paying the full assessment as required by the Declaration as of the date of the election.”
The Administrative Law Judge’s Decision and Rationale
The Administrative Law Judge (ALJ) sided with the respondent’s interpretation of the governing documents, leading to the dismissal of the petition.
Legal Interpretation
The ALJ concluded that the two articles could not be read in isolation. The critical legal finding was that the voting prohibition was explicitly and inextricably linked to the conditions set forth in Section 8.3.
The decision states:
“Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.”
The judge reasoned that since the eligibility period under Section 8.3 had expired in 2009 and 2016, respectively, the developers were no longer paying reduced fees “pursuant to” that section at the time of the 2019 election.
Acknowledgment of Financial Discrepancy
The ALJ acknowledged the underlying issue that the developers were not paying the full assessments they owed. However, this was deemed a separate matter from voter eligibility. The judge noted that the failure to be invoiced for and to pay the full amount “is certainly a financial concern for the association as a whole,” but “that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.”
Final Order
Based on this legal interpretation, the ALJ found that the petitioner, Paul L. Moffett, failed to sustain his burden of proof to establish a violation of the community documents by a preponderance of the evidence.
• Official Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Notice: The decision 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-H2019014-REL
Study Guide: Moffett v. Vistoso Community Association (Case No. 20F-H2019014-REL)
This guide provides a comprehensive review of the administrative law case between Petitioner Paul L. Moffett and Respondent Vistoso Community Association, based on the Administrative Law Judge Decision issued on January 27, 2020. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling of the case.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, using only information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific article and section of the community documents did the Petitioner allege was violated?
3. When was the Board of Directors election held, and what was the total number of votes cast by Pulte and Vistoso Highlands?
4. According to the community’s Declaration, under what specific condition is a Class A Member not entitled to vote?
5. What did Article VIII, Section 8.3 of the Declaration allow for, and what was the maximum time limit for this provision?
6. Based on the timeline provided, when should the reduced assessment period have ended for Vistoso Highlands and for Pulte?
7. What was the Petitioner’s core argument for why Pulte and Vistoso Highlands should not have been allowed to vote?
8. How did the Respondent counter the Petitioner’s argument regarding the voting rights of Pulte and Vistoso Highlands?
9. What was the Administrative Law Judge’s final conclusion regarding the voting eligibility of Vistoso Highlands and Pulte, and what was the reasoning?
10. What was the final order in this case, and what recourse was available to the parties after the decision?
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Answer Key
1. The primary parties were Paul L. Moffett, who served as the Petitioner, and the Vistoso Community Association, which was the Respondent. Moffett initiated the dispute by filing a petition against the association.
2. The Petitioner alleged a violation of “Article VII Membership and Voting, Section 7.3.1 Voting Classes” of the community documents (CC&Rs). This was the single issue presented for the hearing.
3. The Board of Directors election was held on or about March 29, 2019. In that election, Pulte and Vistoso Highlands collectively cast 207 votes for candidates Sarah Nelson, Patrick Straney, and Dennis Ottley.
4. According to Article VII, Section 7.3.1 of the Declaration, a Class A Member is not entitled to vote with respect to any lots for which the owner is paying only a reduced assessment “pursuant to Section 8.3.”
5. Article VIII, Section 8.3 of the Declaration allowed Developer Owners to pay a reduced assessment on lots purchased from the Declarant. This provision was permitted for a maximum period of two years (24 months) after the initial Developer Owner obtained ownership.
6. The reduced assessment period for Vistoso Highlands should have terminated on March 20, 2009. For the lots owned by Pulte, the reduced assessments should have terminated on October 14, 2016.
7. The Petitioner argued that because Vistoso Highlands and Pulte were, in fact, paying reduced assessments at the time of the election, they were not entitled to vote. The argument was based on the fact that they were paying reduced fees, regardless of whether they were supposed to be.
8. The Respondent argued that the voting prohibition in Section 7.3.1 was not applicable. Their reasoning was that while Pulte and Vistoso Highlands were paying reduced assessments, they were not doing so “pursuant to Section 8.3” because the time limit for that provision had long expired.
9. The Judge concluded that Vistoso Highlands and Pulte were entitled to vote in the election. The reasoning was that the prohibition in Section 7.3.1 only applied to reduced assessments paid as authorized by Section 8.3; since the authorization period had passed, the prohibition no longer applied, even if they were improperly paying a lower rate.
10. The final order was that the Petitioner’s petition was dismissed. After the order was served, the parties had 30 days to file a request for a rehearing with the Commissioner of the Department of Real Estate pursuant to A.R.S. § 41-1092.09.
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Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Use the source material to construct a thorough and well-supported argument.
1. Analyze the Administrative Law Judge’s interpretation of the phrase “pursuant to Section 8.3” from Article VII, Section 7.3.1. Explain how this interpretation was central to the case’s outcome and discuss the distinction made between paying a reduced assessment and paying a reduced assessment under the authority of Section 8.3.
2. Describe the timeline of property ownership and assessment obligations for both Vistoso Highlands and Pulte. Explain how the failure to adhere to the timeline for ending reduced assessments created the central conflict in this dispute.
3. Discuss the concept of “burden of proof” as it applied in this case. Who held the burden, what was the standard required (preponderance of the evidence), and why did the Administrative Law Judge ultimately find that the Petitioner failed to meet this burden?
4. The judge noted that the failure to collect full assessments from Vistoso Highlands and Pulte was a “financial concern for the association as a whole.” Elaborate on the potential implications of this financial issue for the Vistoso Community Association, even though it did not affect the outcome of the election dispute.
5. Outline the procedural history of the case, starting from the filing of the petition. Include key dates, the entities involved (Petitioner, Respondent, Department of Real Estate, Office of Administrative Hearings), the legal representatives, and the final step available to the parties after the judge’s order.
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Glossary of Key Terms and Entities
Term / Entity
Definition
Administrative Law Judge (ALJ)
An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and makes decisions on disputes.
Arizona Department of Real Estate (Department)
The state agency with which the Petitioner filed the initial Homeowners Association (HOA) Dispute Process Petition.
Article VII, Section 7.3.1
The section of the Vistoso Community Association Declaration that prohibits a Class A Member from voting on lots for which they are paying a reduced assessment “pursuant to Section 8.3.”
Article VIII, Section 8.3
The section of the Declaration that permits a Developer Owner to pay a reduced assessment for a maximum of two years after purchasing a parcel from the Declarant.
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.
Declarant
The original entity that owned the land before selling lots to Developer Owners like Vistoso Highlands and Pulte’s predecessor.
Developer Owner
An owner, such as Vistoso Highlands or Pulte, who obtained lots from the Declarant and was eligible for reduced assessments for a limited time under Section 8.3.
Homeowners Association (HOA) Dispute Process Petition
The formal document filed by Paul L. Moffett with the Arizona Department of Real Estate on September 25, 2019, to initiate the legal dispute.
Office of Administrative Hearings (OAH)
The state office where the formal hearing for this case was conducted before an Administrative Law Judge.
Petitioner
The party who initiates a lawsuit or petition. In this case, Paul L. Moffett.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side over the other.
Respondent
The party against whom a petition is filed. In this case, the Vistoso Community Association.
Blog Post – 20F-H2019014-REL
The Legal Loophole That Flipped an HOA Election on Its Head
For anyone living in a planned community, the thick binder of Homeowners Association (HOA) rules is a familiar reality. These documents govern everything from mailbox colors to lawn maintenance, and their dense language can be a source of constant confusion. But beyond the day-to-day frustrations lies a deeper legal truth: the precise wording of these documents is absolute. This principle, known in contract law as strict constructionism, holds that a text’s literal meaning must be followed, even if it leads to an outcome that seems unfair.
This is the story of a homeowner who believed he had uncovered a clear-cut violation during a critical HOA election. Developers who were underpaying their dues had cast hundreds of votes, seemingly in direct contravention of the community’s own governing documents. But when the case was adjudicated, the outcome hinged on a single phrase, providing a textbook example of how strict constructionism can create a mind-bending loophole and turn a seemingly open-and-shut case completely upside down.
The Rule Seemed Simple: Pay a Discount, You Don’t Get a Vote
The petitioner, Paul L. Moffett, filed a formal complaint against the Vistoso Community Association, alleging a violation of a specific clause in the governing documents: “Article VII Membership and Voting, Section 7.3.1 Voting Classes.” His case was built on what appeared to be a straightforward set of rules designed to ensure fairness.
The community’s governing documents contained two key sections:
• Article VIII, Section 8.3: This rule allowed “Developer Owners” who purchased property from the original Declarant to pay a reduced assessment. However, this discount was explicitly limited to a maximum of two years.
• Article VII, Section 7.3.1: This rule stated that any member paying a reduced assessment pursuant to Section 8.3 was not entitled to vote with respect to those properties.
On the surface, the logic was simple and equitable: if you aren’t paying your full share as authorized by the rules, you don’t get a say in the community’s governance.
The Smoking Gun: Developers Were Underpaying for Years
The petitioner presented evidence that seemed to prove his case conclusively. Two developers, Vistoso Highlands and Pulte, owned a combined 207 lots. According to the two-year limit, their eligibility for reduced assessments should have ended long ago.
• Vistoso Highlands’ reduced assessment period should have terminated on March 20, 2009.
• Pulte’s predecessor’s reduced assessment period should have terminated on October 14, 2016.
However, at the time of the Board of Directors election on March 29, 2019, both developers were still paying the discounted rate—years after their eligibility had expired. Making matters worse, the evidence showed that in the days preceding the election, the property management staff had actively reached out to both developers to obtain their votes. They cast all 207 of them, which appeared to be a direct violation of the rule prohibiting voting by members paying reduced fees.
The Twist: A Single Phrase Created a Mind-Bending Loophole
This is where the case took a sharp, unexpected turn. The Administrative Law Judge (ALJ) assigned to the case did not focus on the fact that the developers were underpaying, but on the precise legal language connecting the two rules. The dispositive element of the case was the phrase “pursuant to Section 8.3.”
The ALJ noted that, “for whatever reason,” the developers had been underpaying for years. However, she reasoned that because the two-year time limit for reduced payments under Section 8.3 had long since expired, the developers were no longer paying their reduced fees “pursuant to Section 8.3.” They were, in fact, simply underpaying their dues improperly and in violation of the documents.
In essence, the developers’ long-term violation of the payment rule served as their shield against the voting penalty. By breaking the rule governing their assessment amount, they had inadvertently immunized themselves from the rule governing voting rights. The voting prohibition in Section 7.3.1 only applied to members who were correctly paying a reduced assessment as authorized by Section 8.3. Since their discount was no longer authorized, the voting ban no longer applied.
The ALJ summarized this stunning conclusion in the final decision:
Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.
The Verdict: A Financial Problem Doesn’t Invalidate a Vote
Ultimately, the petition was dismissed, and all 207 votes cast by the developers were deemed valid. The ALJ acknowledged that the developers’ failure to pay their full assessments was a serious financial issue for the association but clarified that it was a separate matter from their right to vote.
The ALJ effectively severed the financial issue from the question of voting eligibility. This separation of issues is a fundamental tenet of legal analysis, preventing one breach of contract (underpaying dues) from automatically triggering penalties associated with a completely different clause (voting rights).
While the failure to be invoiced and to pay a full assessment on the 207 parcels at issue is certainly a financial concern for the association as a whole, that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.
This highlights a critical aspect of legal interpretation: issues that seem causally linked in a common-sense way can be treated as entirely distinct under a strict reading of the law.
Conclusion: The Devil is Always in the Details
This case serves as a powerful reminder that in the world of legal documents, every single word matters. It is a perfect demonstration of strict constructionism, where an outcome that seems to defy logic and fairness can be perfectly valid based on the literal, unambiguous phrasing of a rule. What appeared to be a clear prohibition on voting was undone by a loophole created by the developers’ own long-term failure to comply with assessment rules.
The outcome forces us to confront a difficult question at the heart of our legal system: When the literal interpretation of a contract conflicts with our sense of fairness, which should prevail? This case provides a clear, if unsettling, answer.
Case Participants
Petitioner Side
Paul L Moffett(petitioner) Appeared at hearing and testified on his own behalf
Richard M. Rollman(petitioner attorney) Gabroy, Rollman & Bosse, P.C.
Alyssa Leverette(legal staff) Gabroy, Rollman & Bosse, P.C. Listed below Petitioner's attorney on service list
Respondent Side
Jason E. Smith(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Kimberly Rubly(witness) Vice President of Southern Region (testified for Respondent)
Sean K. Moynihan(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC Recipient of Order
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of Order
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of Order
djones(ADRE staff) Arizona Department of Real Estate Recipient of Order
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of Order
ncano(ADRE staff) Arizona Department of Real Estate Recipient of Order
Other Participants
Sarah Nelson(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Patrick Straney(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Dennis Ottley(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918042-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2020-01-15
Administrative Law Judge
Kay A. Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Joan A. Tober
Counsel
—
Respondent
Civano 1 Neighborhood 1 Homeowners Association
Counsel
Diana J. Elston
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
The Administrative Law Judge concluded that the Civano 1 Neighborhood 1 Homeowners Association (HOA) was the prevailing party. The ALJ found that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B) because the specific attorney letter requested was privileged and could be withheld,, and Petitioner's request for additional 'background information' was unreasonably broad and unclarified,.
Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1805(A) as the HOA lawfully withheld privileged documents under A.R.S. § 33-1805(B) and was not required to guess what records were requested due to the vague nature of the demand for 'any and all documentation'.
Key Issues & Findings
HOA violation of requirement to provide association records.
Petitioner alleged the HOA failed to provide all requested documentation, specifically an attorney letter concerning the North Ridge wall, and failed to comply with the 10-business day response period required for record requests.
Orders: The HOA was deemed the prevailing party on rehearing and Petitioner's appeal was dismissed. The HOA acted in compliance with A.R.S. § 33-1805(A) and (B). The requested attorney letter was privileged communication and could be withheld.
Briefing Document: Tober v. Civano 1 Homeowners Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”
The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.
The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.
Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.
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Case Overview
This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).
Case Name
Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.
Case Number
19F-H1918042-REL
Adjudicating Body
Office of Administrative Hearings (OAH)
Administrative Law Judge
Kay A. Abramsohn
Core Issue
Alleged violation of A.R.S. § 33-1805, which governs member access to association records.
Initial Hearing Date
June 5, 2019
Initial Decision Date
July 29, 2019
Rehearing Date
December 11, 2019
Final Decision Date
January 15, 2020
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Key Parties and Individuals
• Petitioner: Joan A. Tober
◦ A homeowner in the Civano 1 Neighborhood since 2001.
◦ Previously worked for the company that developed the land/homes in the association area.
◦ Has served as a past Board member for the HOA.
◦ Served as an alternate member on the Finance Committee in 2018.
◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.
• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)
◦ The governing body for the planned community.
◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.
• Adjudicator: Kay Abramsohn
◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.
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Chronology of the Dispute
Nov 20, 2018
At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.
Nov 26, 2018
Petitioner sends her first email request for a copy of the Letter.
Nov 27, 2018
Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.
Nov 29, 2018
At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
Nov 29, 2018
At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.
Dec 13, 2018
Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”
Dec 26, 2018
Petitioner files her single-issue petition with the Arizona Department of Real Estate.
Jan 15-16, 2019
The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.
June 5, 2019
The initial administrative hearing is held.
July 29, 2019
Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.
Aug 5, 2019
Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”
Aug 23, 2019
The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
Dec 11, 2019
The rehearing is conducted.
Jan 15, 2020
Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.
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Core Dispute and Arguments
Petitioner’s Position (Joan A. Tober)
1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”
2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.
3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).
Respondent’s Position (Civano 1 HOA)
1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).
2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.
3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.
4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.
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Key Findings of Fact and Evidence
The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.
• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”
• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.
• Petitioner’s Request and Failure to Clarify:
◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.
◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”
◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”
◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.
• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.
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Legal Rulings and Conclusions of Law
Initial Decision (July 29, 2019)
• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.
• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”
• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.
Final Decision on Rehearing (January 15, 2020)
• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.
• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”
• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”
• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”
• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”
• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.
Study Guide – 19F-H1918042-REL-RHG
Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association
This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.
1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?
2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?
3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?
4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?
5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?
6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?
7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?
8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?
9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.
10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?
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Answer Key
1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”
2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).
3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.
4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.
5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.
6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.
8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.
9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.
10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.
1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.
2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.
3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.
4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?
5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.
Arizona Department of Real Estate (“the Department”)
The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.
A.R.S. § 33-1805
The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.
Attorney-Client Privilege
A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.
Executive Session
A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.
An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
Office of Administrative Hearings (OAH)
The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.
Petition
The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”
Rehearing
A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”
Respondent
The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
The Letter
The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.
Blog Post – 19F-H1918042-REL-RHG
She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.
Introduction: The Fight for Information
Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.
This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.
1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.
The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”
Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.
The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.
2. Takeaway #2: Asking for “Everything” Can Get You Nothing.
Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.
After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”
In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:
An association is not required to guess what records are being requested.
The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.
3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.
What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.
But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:
Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.
Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.
Conclusion: Strategy Over Sheer Effort
The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.
This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?
Case Participants
Petitioner Side
Joan A. Tober(petitioner) Former Board member; current Finance Committee member
Respondent Side
Diana J. Elston(HOA attorney) Jones, Skelton & Hochuli, P.L.C.
Mr. Mastrosimone(Board President) Civano 1 Neighborhood 1 Homeowners Association Testified at rehearing
Neutral Parties
Kay A. Abramsohn(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
c. serrano(Clerk)
Felicia Del Sol(Clerk)
LDettorre(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
AHansen(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
djones(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
DGardner(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
ncano(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918042-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2020-01-15
Administrative Law Judge
Kay A. Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Joan A. Tober
Counsel
—
Respondent
Civano 1 Neighborhood 1 Homeowners Association
Counsel
Diana J. Elston
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.
Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.
Key Issues & Findings
HOA violation of requirement to provide association records within ten business days.
Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.
Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Analytics Highlights
Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Briefing Document: Tober v. Civano 1 Homeowners Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”
The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.
The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.
Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.
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Case Overview
This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).
Case Name
Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.
Case Number
19F-H1918042-REL
Adjudicating Body
Office of Administrative Hearings (OAH)
Administrative Law Judge
Kay A. Abramsohn
Core Issue
Alleged violation of A.R.S. § 33-1805, which governs member access to association records.
Initial Hearing Date
June 5, 2019
Initial Decision Date
July 29, 2019
Rehearing Date
December 11, 2019
Final Decision Date
January 15, 2020
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Key Parties and Individuals
• Petitioner: Joan A. Tober
◦ A homeowner in the Civano 1 Neighborhood since 2001.
◦ Previously worked for the company that developed the land/homes in the association area.
◦ Has served as a past Board member for the HOA.
◦ Served as an alternate member on the Finance Committee in 2018.
◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.
• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)
◦ The governing body for the planned community.
◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.
• Adjudicator: Kay Abramsohn
◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.
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Chronology of the Dispute
Nov 20, 2018
At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.
Nov 26, 2018
Petitioner sends her first email request for a copy of the Letter.
Nov 27, 2018
Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.
Nov 29, 2018
At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
Nov 29, 2018
At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.
Dec 13, 2018
Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”
Dec 26, 2018
Petitioner files her single-issue petition with the Arizona Department of Real Estate.
Jan 15-16, 2019
The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.
June 5, 2019
The initial administrative hearing is held.
July 29, 2019
Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.
Aug 5, 2019
Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”
Aug 23, 2019
The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
Dec 11, 2019
The rehearing is conducted.
Jan 15, 2020
Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.
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Core Dispute and Arguments
Petitioner’s Position (Joan A. Tober)
1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”
2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.
3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).
Respondent’s Position (Civano 1 HOA)
1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).
2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.
3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.
4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.
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Key Findings of Fact and Evidence
The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.
• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”
• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.
• Petitioner’s Request and Failure to Clarify:
◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.
◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”
◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”
◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.
• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.
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Legal Rulings and Conclusions of Law
Initial Decision (July 29, 2019)
• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.
• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”
• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.
Final Decision on Rehearing (January 15, 2020)
• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.
• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”
• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”
• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”
• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”
• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.
Study Guide – 19F-H1918042-REL-RHG
Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association
This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.
1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?
2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?
3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?
4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?
5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?
6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?
7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?
8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?
9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.
10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?
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Answer Key
1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”
2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).
3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.
4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.
5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.
6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.
8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.
9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.
10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.
1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.
2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.
3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.
4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?
5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.
Arizona Department of Real Estate (“the Department”)
The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.
A.R.S. § 33-1805
The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.
Attorney-Client Privilege
A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.
Executive Session
A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.
An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
Office of Administrative Hearings (OAH)
The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.
Petition
The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”
Rehearing
A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”
Respondent
The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
The Letter
The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.
Blog Post – 19F-H1918042-REL-RHG
She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.
Introduction: The Fight for Information
Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.
This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.
1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.
The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”
Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.
The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.
2. Takeaway #2: Asking for “Everything” Can Get You Nothing.
Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.
After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”
In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:
An association is not required to guess what records are being requested.
The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.
3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.
What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.
But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:
Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.
Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.
Conclusion: Strategy Over Sheer Effort
The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.
This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?
Case Participants
Petitioner Side
Joan A. Tober(petitioner) Former Board member; current Finance Committee member
Respondent Side
Diana J. Elston(HOA attorney) Jones, Skelton & Hochuli, P.L.C.
Mr. Mastrosimone(Board President) Civano 1 Neighborhood 1 Homeowners Association Testified at rehearing
Neutral Parties
Kay A. Abramsohn(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
c. serrano(Clerk)
Felicia Del Sol(Clerk)
LDettorre(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
AHansen(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
djones(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
DGardner(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
ncano(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
