Case Summary
| Case ID | 23F-H059-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-09-05 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | The case was dismissed because the Administrative Law Judge determined the Wintergardens Co-Operative, a cooperative mobile home park, did not qualify as a 'planned community' or 'condominium association' under Title 33, Chapter 9 or 16, thus the Arizona Department of Real Estate lacked jurisdiction to hear the dispute. |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Charlotte Tande | Counsel | — |
|---|---|---|---|
| Respondent | Wintergardens Co-Operative | Counsel | Beth Mulcahy, Esq. |
Alleged Violations
A.R.S. § 33-1804
A.R.S. § 33-1810
Outcome Summary
The case was dismissed because the Administrative Law Judge determined the Wintergardens Co-Operative, a cooperative mobile home park, did not qualify as a 'planned community' or 'condominium association' under Title 33, Chapter 9 or 16, thus the Arizona Department of Real Estate lacked jurisdiction to hear the dispute.
Why this result: The Respondent was found not to be a 'Planned Community' because its shareholders were lessees, not owners of 'separately owned lots, parcels or units' as required by A.R.S. § 33-1802(4).
Key Issues & Findings
Open Meeting Requirements
Petitioner alleged Respondent failed to comply with the open meeting requirements of A.R.S. § 33-1804.
Orders: The case was dismissed after Respondent's Motion to Dismiss was granted.
Filing fee: $0.00
Disposition: petitioner_loss
- A.R.S. § 33-1804
- A.R.S. § 33-1802(4)
- A.R.S. § 32-2199.01(A)
Financial Records Provision
Petitioner alleged Respondent failed to provide certain financial records as required by A.R.S. § 33-1810.
Orders: The case was dismissed after Respondent's Motion to Dismiss was granted.
Filing fee: $0.00
Disposition: petitioner_loss
- A.R.S. § 33-1810
- A.R.S. § 33-1802(4)
- A.R.S. § 32-2199.01(A)
Video Overview
Audio Overview
Decision Documents
23F-H059-REL Decision – 1074375.pdf
23F-H059-REL Decision – 1089824.pdf
23F-H059-REL Decision – 1089829.pdf
23F-H059-REL Decision – 1091579.pdf
23F-H059-REL Decision – 1074375.pdf
23F-H059-REL Decision – 1089824.pdf
23F-H059-REL Decision – 1089829.pdf
23F-H059-REL Decision – 1091579.pdf
This summary details the proceedings, key arguments, and final decision in the case of *Charlotte Tande vs. Wintergardens Co-Operative*, No. 23F-H059-REL, heard before the Office of Administrative Hearings (OAH).
Key Facts and Procedural History
The Petitioner, Charlotte Tande, is a shareholder and lessee of a property within the Respondent, Wintergardens Co-Operative, a non-profit corporation operating a cooperative mobile home and R.V. Park in Yuma, Arizona. Petitioner filed a two-issue petition with the Arizona Department of Real Estate (Department) alleging the Respondent failed to comply with: 1) open meeting requirements (A.R.S. § 33-1804), and 2) the requirement to provide certain financial records (A.R.S. § 33-1810). The Department referred the petition to the OAH for an evidentiary hearing.
Main Issues and Arguments
The central legal issue was whether the Wintergardens Co-Operative was subject to the provisions of the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16).
- Respondent's Position: Wintergardens Co-Operative filed a Motion to Dismiss arguing that it is not a "Planned Community" as defined in A.R.S. § 33-1802(4). Respondent asserted that its shareholders are lessees under a Proprietary Lease, not owners of "separately owned lots, parcels or units," which is a requirement for a Planned Community designation.
- Petitioner's Position: Petitioner argued in response that Wintergardens was a "Planned Community" and was therefore required to comply with the relevant statutes. Petitioner asserted that shareholders were "Lessees and OWNERS under a proprietary Lease," although she did not identify what the shareholders owned other than a share of the co-operative.
Key Legal Points and Outcome
The Administrative Law Judge (ALJ) reviewed the Motion, Response, and Reply.
The statutes granting the Department and OAH jurisdiction (A.R.S. § 32-2199.01(A)) are limited to hearing disputes between an owner and a condominium association or a planned community association. Therefore, for the OAH to have jurisdiction, the Respondent had to qualify as one of these entities.
The ALJ analyzed the definition of a "Planned Community" (A.R.S. § 33-1802(4)), which explicitly requires that the declaration state that the owners of separately owned lots, parcels or units are mandatory members. The ALJ concluded that, while shareholders may own a share of the co-operative entity, nothing in the pleadings indicated they were owners of any "separately owned lots, parcels or units".
Conclusion of Law: The ALJ determined that Respondent’s cooperative does not fall within the definition of a planned community because its purposes and functions are separate and distinct.
Final Decision: Because Wintergardens Co-Operative does not meet the definition of a planned community, the Department lacked jurisdiction to hear the dispute between the Petitioner and the Respondent. The Order granted the Respondent’s Motion to Dismiss, and the scheduled hearing was vacated from the calendar. This Order, issued September 5, 2023, is binding unless a rehearing is requested within 30 days.
{ “case”: { “docket_no”: “23F-H059-REL”, “case_title”: “Charlotte Tande vs. Wintergardens Co-Operative”, “decision_date”: “2023-09-05”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction to hear disputes regarding housing cooperatives?”, “short_answer”: “No, not if the cooperative does not meet the legal definition of a ‘planned community’ or ‘condominium.'”, “detailed_answer”: “The Department only has jurisdiction over disputes involving condominium associations or planned community associations. If a housing cooperative does not fit the statutory definition of these entities (e.g., shareholders are lessees rather than owners of separate lots), the Department cannot hear the dispute.”, “alj_quote”: “Therefore, because Respondent does not fall within the definition of a planned community, the Department does not have jurisdiction to hear a dispute between Petitioner and Respondent.”, “legal_basis”: “A.R.S. § 32-2199.01(A); A.R.S. § 33-1802(4)”, “topic_tags”: [ “Jurisdiction”, “Cooperatives”, “Planned Community Definition” ] }, { “question”: “If I have a proprietary lease in a cooperative, am I considered an ‘owner’ for the purpose of filing an HOA dispute?”, “short_answer”: “Likely not, unless you hold title to a separately owned lot, parcel, or unit.”, “detailed_answer”: “Even if you own a share of the cooperative corporation, if you are a lessee under a proprietary lease and do not own a separate lot or unit, you may not meet the definition of an owner required to classify the community as a ‘planned community’ under Arizona law.”, “alj_quote”: “While the shareholders may be owners of a share of Respondent as an entity, nothing in any of the pleadings indicated that the shareholders were owners of any ‘separately owned lots, parcels or units.'”, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Ownership Status”, “Lease vs Ownership”, “Definitions” ] }, { “question”: “What is the legal definition of a ‘Planned Community’ in Arizona?”, “short_answer”: “It is a development where owners of separately owned lots are mandatory members of an association and must pay assessments.”, “detailed_answer”: “A planned community is defined as a real estate development managed by a nonprofit corporation where the declaration states that owners of separately owned lots, parcels, or units are mandatory members and are required to pay assessments.”, “alj_quote”: ““Planned community” means a real estate development… in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.“, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Definitions”, “Planned Community” ] }, { “question”: “Can the Administrative Law Judge give me legal advice if I am representing myself?”, “short_answer”: “No, the Office of Administrative Hearings cannot provide legal advice to parties.”, “detailed_answer”: “The ALJ must remain neutral and cannot offer guidance or legal advice to either party involved in the dispute.”, “alj_quote”: “To the extent Petitioner was asking the Administrative Law Judge for guidance, the Office of Administrative Hearings cannot provide parties with legal advice.”, “legal_basis”: “Procedural Rule”, “topic_tags”: [ “Procedural”, “Legal Advice”, “OAH Role” ] }, { “question”: “What happens to my hearing if the judge determines the community is not a planned community?”, “short_answer”: “The case will be dismissed and the hearing vacated.”, “detailed_answer”: “If the judge finds that the community does not meet the statutory definition of a planned community or condominium, the ADRE/OAH lacks subject matter jurisdiction, and the motion to dismiss will be granted.”, “alj_quote”: “IT IS ORDERED granting Respondent’s Motion to Dismiss. The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.”, “legal_basis”: “Jurisdiction”, “topic_tags”: [ “Dismissal”, “Hearing Process”, “Jurisdiction” ] } ] }
{ “case”: { “docket_no”: “23F-H059-REL”, “case_title”: “Charlotte Tande vs. Wintergardens Co-Operative”, “decision_date”: “2023-09-05”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction to hear disputes regarding housing cooperatives?”, “short_answer”: “No, not if the cooperative does not meet the legal definition of a ‘planned community’ or ‘condominium.'”, “detailed_answer”: “The Department only has jurisdiction over disputes involving condominium associations or planned community associations. If a housing cooperative does not fit the statutory definition of these entities (e.g., shareholders are lessees rather than owners of separate lots), the Department cannot hear the dispute.”, “alj_quote”: “Therefore, because Respondent does not fall within the definition of a planned community, the Department does not have jurisdiction to hear a dispute between Petitioner and Respondent.”, “legal_basis”: “A.R.S. § 32-2199.01(A); A.R.S. § 33-1802(4)”, “topic_tags”: [ “Jurisdiction”, “Cooperatives”, “Planned Community Definition” ] }, { “question”: “If I have a proprietary lease in a cooperative, am I considered an ‘owner’ for the purpose of filing an HOA dispute?”, “short_answer”: “Likely not, unless you hold title to a separately owned lot, parcel, or unit.”, “detailed_answer”: “Even if you own a share of the cooperative corporation, if you are a lessee under a proprietary lease and do not own a separate lot or unit, you may not meet the definition of an owner required to classify the community as a ‘planned community’ under Arizona law.”, “alj_quote”: “While the shareholders may be owners of a share of Respondent as an entity, nothing in any of the pleadings indicated that the shareholders were owners of any ‘separately owned lots, parcels or units.'”, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Ownership Status”, “Lease vs Ownership”, “Definitions” ] }, { “question”: “What is the legal definition of a ‘Planned Community’ in Arizona?”, “short_answer”: “It is a development where owners of separately owned lots are mandatory members of an association and must pay assessments.”, “detailed_answer”: “A planned community is defined as a real estate development managed by a nonprofit corporation where the declaration states that owners of separately owned lots, parcels, or units are mandatory members and are required to pay assessments.”, “alj_quote”: ““Planned community” means a real estate development… in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.“, “legal_basis”: “A.R.S. § 33-1802(4)”, “topic_tags”: [ “Definitions”, “Planned Community” ] }, { “question”: “Can the Administrative Law Judge give me legal advice if I am representing myself?”, “short_answer”: “No, the Office of Administrative Hearings cannot provide legal advice to parties.”, “detailed_answer”: “The ALJ must remain neutral and cannot offer guidance or legal advice to either party involved in the dispute.”, “alj_quote”: “To the extent Petitioner was asking the Administrative Law Judge for guidance, the Office of Administrative Hearings cannot provide parties with legal advice.”, “legal_basis”: “Procedural Rule”, “topic_tags”: [ “Procedural”, “Legal Advice”, “OAH Role” ] }, { “question”: “What happens to my hearing if the judge determines the community is not a planned community?”, “short_answer”: “The case will be dismissed and the hearing vacated.”, “detailed_answer”: “If the judge finds that the community does not meet the statutory definition of a planned community or condominium, the ADRE/OAH lacks subject matter jurisdiction, and the motion to dismiss will be granted.”, “alj_quote”: “IT IS ORDERED granting Respondent’s Motion to Dismiss. The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.”, “legal_basis”: “Jurisdiction”, “topic_tags”: [ “Dismissal”, “Hearing Process”, “Jurisdiction” ] } ] }
Case Participants
Petitioner Side
- Charlotte Tande (petitioner)
Respondent Side
- Beth Mulcahy (attorney)
Mulcahy Law Firm, PC
Esq.
Neutral Parties
- Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Signed Orders dated July 18, 2023 and September 5, 2023 - Susan Nicolson (Commissioner)
Arizona Department of Real Estate - Alyssa Leverette (ALJ)
Office of Administrative Hearings
Signed Minute Entry granting continuance dated September 5, 2023 - AHansen (staff)
Arizona Department of Real Estate
Listed as contact/recipient for transmissions - vnunez (staff)
Arizona Department of Real Estate
Listed as contact/recipient for transmissions - djones (staff)
Arizona Department of Real Estate
Listed as contact/recipient for transmissions - labril (staff)
Arizona Department of Real Estate
Listed as contact/recipient for transmissions