The Administrative Law Judge found the Respondent HOA in violation of A.R.S. § 33-1215(A)(1) for failing to contain the name of the association in the Declaration. The Petitioner was deemed the prevailing party and awarded the $500.00 filing fee, but no civil penalty was imposed.
Key Issues & Findings
Declaration requirements for naming the condominium and association.
Petitioner claimed the Declaration failed to comply with A.R.S. § 33-1215(A)(1) because it lacked the formal name of the association. Respondent argued the existing reference to the 'Council of Co-owners' was sufficient because case law established the current association was the successor entity. The Tribunal found the Declaration did not contain the name of the association as required.
Orders: Respondent shall pay Petitioner the filing fee of $500.00 within thirty (30) days and shall comply with A.R.S. § 33-1215(A)(1) going forward.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1215(A)(1)
A.R.S. § 12-550
A.R.S. § 33-1202(15)
A.R.S. § 33-1219(A)
London v Carrick
Schaefer v Pro Keanti AZ2 LP
Eli v Cro County A
Analytics Highlights
Topics: HOA, Condominium Act, Declaration, Statute of Limitations
Additional Citations:
A.R.S. § 33-1215(A)(1)
A.R.S. § 12-550
A.R.S. § 33-1202(15)
A.R.S. § 33-1219(A)
A.R.S. § 32-2199
A.R.S. § 41-1092
London v Carrick
Schaefer v Pro Keanti AZ2 LP
Eli v Cro County A
Audio Overview
Decision Documents
25F-H001-REL Decision – 1235116.pdf
Uploaded 2026-01-23T18:12:40 (44.0 KB)
25F-H001-REL Decision – 1241814.pdf
Uploaded 2026-01-23T18:12:47 (115.8 KB)
Briefing Doc – 25F-H001-REL
Briefing on Administrative Hearing Case No. 25F-H001-REL
Executive Summary
This briefing document synthesizes the proceedings and outcome of the administrative hearing case R.L. Whitmer v. Hilton Casitas Council of Homeowners (No. 25F-H001-REL). The central issue was whether the Respondent Homeowners Association’s (HOA) governing Declaration complied with Arizona Revised Statutes (A.R.S.) § 33-1215(A)(1), which mandates that the Declaration contain both the name of the condominium (with the word “condominium”) and the specific name of the association.
In a decision issued on November 12, 2024, Administrative Law Judge (ALJ) Samuel Fox ruled in favor of the Petitioner, R.L. Whitmer. The ALJ found that while the Declaration’s associated plat satisfied the requirement for the condominium’s name, the Declaration failed to contain the association’s actual, current legal name, “Hilton Casitas Council of Homeowners.”
The Respondent HOA advanced three primary defenses, all of which were rejected by the tribunal:
1. Constructive Compliance: The HOA argued that the Declaration’s reference to its predecessor entity (“Council of Co-owners”), combined with numerous court rulings affirming the current HOA as its legal successor, constituted compliance. The ALJ dismissed this, stating the statute requires the actual name to be present and that “constructive compliance” is not sufficient.
2. Statute of Limitations: The HOA claimed the petition was barred by a four-year statute of limitations (A.R.S. § 12-550), as the Petitioner had notice of the Declaration’s contents since 2014. The ALJ ruled that this statute applies only to “actions” in a “court,” and that proceedings before the Office of Administrative Hearings (OAH), an executive branch agency, do not qualify.
3. Impossibility of Unilateral Action: The HOA contended that it could not be ordered to amend the Declaration because such an action requires a membership vote and is not unilaterally achievable. The ALJ found this was not a valid legal defense, as the procedural requirements for achieving statutory compliance do not excuse non-compliance.
The final order declared the Petitioner the prevailing party, ordered the Respondent to pay the Petitioner’s $500 filing fee, and mandated that the Respondent comply with A.R.S. § 33-1215(A)(1). No civil penalty was imposed.
Case Overview
• Case Number: 25F-H001-REL
• Forum: Office of Administrative Hearings (OAH), State of Arizona
• Petitioner: R.L. Whitmer
• Respondent: Hilton Casitas Council of Homeowners
• Presiding Judge: Administrative Law Judge Samuel Fox
• Respondent’s Counsel: Emily H. Mann
• Core Legal Issue: Whether the Respondent’s Declaration of Horizontal Property Regime for Hilton Casitas violates A.R.S. § 33-1215(A)(1), which states:
Procedural History
• Petition Filed: On or about June 27, 2024, R.L. Whitmer filed a petition with the Arizona Department of Real Estate alleging the violation.
• Motion to Dismiss: On October 1, 2024, the Respondent filed a motion for summary judgment (or to dismiss), which was denied by the OAH on October 18, 2024.
• Evidentiary Hearing: A hearing was held on October 25, 2024, though the hearing transcript is dated October 26, 2024.
• ALJ Decision Issued: The final Administrative Law Judge Decision was issued on November 12, 2024.
Analysis of Key Arguments and Rulings
The case centered on three distinct legal arguments presented by the Respondent HOA and the subsequent rulings by the ALJ.
1. Statutory Compliance of the Declaration
The fundamental dispute was whether the Declaration, as written, satisfied the plain language of A.R.S. § 33-1215(A)(1).
Argument / Position
Supporting Evidence / Rationale
Petitioner (Whitmer)
The Declaration is non-compliant because the legal name “Hilton Casitas Council of Homeowners” is not present anywhere in the document.
The Declaration refers to the “Council of Co-owners,” an unincorporated association created in 1972. The current non-profit corporation, formed in 1994, is not named. The Petitioner argued, “It’s just not there.”
Respondent (HOA)
The Declaration is compliant when its constituent parts are read together with established case law.
1. Condominium Name: The plat, which is legally part of the Declaration per A.R.S. § 33-1219(A), contains the phrase “HILTON CASITAS A CONDOMINIUM DEVELOPMENT.” 2. Association Name: Section 1.4 of the Declaration defines “Council” as the “Council of Co-owners.” Multiple Arizona Court of Appeals decisions have held that the “Hilton Casitas Council of Homeowners” is the legal successor entity to the “Council of Co-owners.” Therefore, a reference to the old name legally constitutes a reference to the current name.
ALJ Ruling
Violation Established. The Declaration does not contain the name of the association as required.
The ALJ agreed with the Respondent that the plat satisfied the condominium name requirement. However, the judge rejected the “successor entity” argument for the association’s name, concluding: > “The statute requires ‘the name of the association,’ not merely a reference to it. Even if the current association was the entity with standing, its name was not present in the Declaration. Assuming that there is some purpose for the statutory requirement, a reader should be able to identify the association from the declaration. Accordingly, the Tribunal is not willing to accept constructive compliance.”
2. The Statute of Limitations Defense
The Respondent argued that even if a violation existed, the Petitioner’s claim was filed too late.
Argument / Position
Supporting Evidence / Rationale
Petitioner (Whitmer)
The statute of limitations does not apply because the violation is a continuous act.
The Petitioner framed the non-compliant Declaration as a “cloud on the title,” a type of defect to which a statute of limitations is never a bar.
Respondent (HOA)
The claim is time-barred by the four-year default statute of limitations under A.R.S. § 12-550.
The Petitioner acquired his property in August 2014 and thus had constructive notice of the Declaration’s contents. The four-year period to file a claim expired in August 2018, making the 2024 petition six years too late.
ALJ Ruling
Defense Rejected. The statute of limitations does not apply to OAH proceedings.
The ALJ performed a statutory analysis, noting that A.R.S. § 12-550 applies to an “action” which is defined as “any matter or proceeding in a court.” Because the OAH is an agency of the executive branch and not a court, its proceedings are not “actions” under the statute. Therefore, the general statute of limitations is inapplicable.
3. The “Impossibility” of Unilateral Compliance
The Respondent argued that the relief sought by the Petitioner—an order to amend the Declaration—was not something the tribunal could grant because the HOA Board could not comply on its own.
Argument / Position
Supporting Evidence / Rationale
Petitioner (Whitmer)
The HOA has a clear path to compliance.
The Petitioner stated that the HOA simply needs to “call the election, amend the… or propose an amendment that cures this problem and ask the membership to approve it.” He offered to stipulate that he would not seek a contempt order if the HOA made a good-faith effort.
Respondent (HOA)
An order to amend would be inappropriate because the HOA cannot unilaterally amend the Declaration.
Amending the Declaration requires a vote of the membership (either 51% or 67%) and consent from an entity referred to as “the corporation.” If a vote failed, the HOA could not comply with the order, exposing it to further litigation from the Petitioner seeking to hold it in contempt.
ALJ Ruling
Defense Rejected. Procedural requirements for compliance do not constitute a legal defense against non-compliance.
The ALJ noted that it is ordinary for an HOA board or membership to have to vote to enact compliance with a statute. The ruling states: > “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.” The tribunal’s role is to determine compliance and order it where it is lacking.
Final Order
The Administrative Law Judge Decision concluded with the following orders:
1. Prevailing Party: The Petitioner, R.L. Whitmer, is deemed the prevailing party.
2. Filing Fee: The Respondent must pay the Petitioner the filing fee of $500.00 within thirty days of the order.
3. Compliance: The Respondent shall comply with A.R.S. § 33-1215(A)(1) going forward.
4. Civil Penalty: No civil penalty was found to be appropriate in the matter.
The decision is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days.
Study Guide – 25F-H001-REL
{ “case”: { “docket_no”: “25F-H001-REL”, “case_title”: “R.L. Whitmer v. Hilton Casitas Council of Homeowners”, “decision_date”: “2024-11-12”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?”, “short_answer”: “No. The general statute of limitations applies to court ‘actions,’ and administrative hearings are not considered court actions.”, “detailed_answer”: “The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as ‘actions’ by the legislature.”, “alj_quote”: “Accordingly, proceedings before OAH are not ‘actions’ as defined by the legislature, and the general statute of limitations does not apply.”, “legal_basis”: “A.R.S. § 12-550; A.R.S. § 1-215”, “topic_tags”: [ “statute of limitations”, “jurisdiction”, “filing deadlines” ] }, { “question”: “Must the HOA’s Declaration explicitly state the full legal name of the Association?”, “short_answer”: “Yes. The Declaration must contain the actual name of the association, not just a definition or reference like ‘The Council’.”, “detailed_answer”: “State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like ‘Council’ to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.”, “alj_quote”: “The statute requires ‘the name of the association,’ not merely a reference to it. The name of the association as stated in the defined term ‘Council’ is not the name of the association.”, “legal_basis”: “A.R.S. § 33-1215(A)(1)”, “topic_tags”: [ “CC&Rs”, “governing documents”, “HOA name” ] }, { “question”: “Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?”, “short_answer”: “No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.”, “detailed_answer”: “An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.”, “alj_quote”: “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.”, “legal_basis”: “Administrative Authority”, “topic_tags”: [ “amendments”, “voting”, “defenses” ] }, { “question”: “If I win my case against the HOA, will I be reimbursed for the filing fee?”, “short_answer”: “Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.”, “detailed_answer”: “When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Administrative Remedy”, “topic_tags”: [ “fees”, “remedies”, “costs” ] }, { “question”: “Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?”, “short_answer”: “No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.”, “detailed_answer”: “Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “fines”, “civil penalties”, “enforcement” ] }, { “question”: “What is the burden of proof for a homeowner filing a petition against their HOA?”, “short_answer”: “The homeowner must prove the violation by a ‘preponderance of the evidence’.”, “detailed_answer”: “The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is ‘more probably true than not.'”, “alj_quote”: “Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “evidence”, “burden of proof”, “legal standards” ] } ] }
Blog Post – 25F-H001-REL
{ “case”: { “docket_no”: “25F-H001-REL”, “case_title”: “R.L. Whitmer v. Hilton Casitas Council of Homeowners”, “decision_date”: “2024-11-12”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?”, “short_answer”: “No. The general statute of limitations applies to court ‘actions,’ and administrative hearings are not considered court actions.”, “detailed_answer”: “The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as ‘actions’ by the legislature.”, “alj_quote”: “Accordingly, proceedings before OAH are not ‘actions’ as defined by the legislature, and the general statute of limitations does not apply.”, “legal_basis”: “A.R.S. § 12-550; A.R.S. § 1-215”, “topic_tags”: [ “statute of limitations”, “jurisdiction”, “filing deadlines” ] }, { “question”: “Must the HOA’s Declaration explicitly state the full legal name of the Association?”, “short_answer”: “Yes. The Declaration must contain the actual name of the association, not just a definition or reference like ‘The Council’.”, “detailed_answer”: “State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like ‘Council’ to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.”, “alj_quote”: “The statute requires ‘the name of the association,’ not merely a reference to it. The name of the association as stated in the defined term ‘Council’ is not the name of the association.”, “legal_basis”: “A.R.S. § 33-1215(A)(1)”, “topic_tags”: [ “CC&Rs”, “governing documents”, “HOA name” ] }, { “question”: “Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?”, “short_answer”: “No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.”, “detailed_answer”: “An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.”, “alj_quote”: “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.”, “legal_basis”: “Administrative Authority”, “topic_tags”: [ “amendments”, “voting”, “defenses” ] }, { “question”: “If I win my case against the HOA, will I be reimbursed for the filing fee?”, “short_answer”: “Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.”, “detailed_answer”: “When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Administrative Remedy”, “topic_tags”: [ “fees”, “remedies”, “costs” ] }, { “question”: “Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?”, “short_answer”: “No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.”, “detailed_answer”: “Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “fines”, “civil penalties”, “enforcement” ] }, { “question”: “What is the burden of proof for a homeowner filing a petition against their HOA?”, “short_answer”: “The homeowner must prove the violation by a ‘preponderance of the evidence’.”, “detailed_answer”: “The petitioner (homeowner) is responsible for providing enough evidence to show that their contention is ‘more probably true than not.'”, “alj_quote”: “Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “evidence”, “burden of proof”, “legal standards” ] } ] }
Case Participants
Petitioner Side
R.L. Whitmer(petitioner) fulcrumgroup.biz
Respondent Side
Emily H. Mann Phillips(HOA attorney) Phillips, Maceyko & Battock, PLLC
Robert Westbrook(HOA president) Hilton Casitas Council of Homeowners
Neutral Parties
Samuel Fox(ALJ) Office of Administrative Hearings
Susan Nicolson(Commissioner) Arizona Department of Real Estate (ADRE)
The Administrative Law Judge granted the Petition, concluding that the HOA violated A.R.S. § 33-1804(A) because the portion of the meeting where recording was prohibited was not effectively 'closed' (as members were allowed to remain) and therefore remained 'open' and subject to members' right to record.
Key Issues & Findings
Improperly preventing members from recording an open board meeting
The HOA Board prohibited homeowners participating in an open meeting on September 28, 2022, from recording that meeting. The HOA argued the portion was closed due to receiving legal advice/contemplated litigation, but the ALJ found the portion was not effectively 'closed' because no members were required to leave, thus the HOA lacked authority to prevent recording.
Orders: HOA found in violation; ordered to reimburse Petitioner $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1804(A)
A.R.S. § 33-1804
Analytics Highlights
Topics: HOA Open Meeting Law, Recording Rights, Attorney-Client Privilege, Filing Fee Reimbursement
Yes, homeowners have the statutory right to audio or video tape open portions of board and member meetings.
Detailed Answer
Under Arizona law, persons attending HOA meetings are permitted to audiotape or videotape any portion of the meeting that is open. The HOA cannot prohibit this for open sessions.
Alj Quote
A.R.S. § 33-1804(A) allows a person to record 'those portions of the meetings of the board of directors and meetings of the members that are open.'
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
recording meetings
homeowner rights
open meetings
Question
Can the HOA board stop me from recording if an attorney is giving legal advice?
Short Answer
Not if the meeting remains open to members. To stop recording, the board must physically close the meeting (exclude members).
Detailed Answer
Even if the board intends to receive legal advice (a valid reason to close a meeting), they cannot simply ask members to stop recording while allowing them to remain in the room. If members are allowed to stay, the meeting is not 'closed,' and the right to record remains.
Alj Quote
Because no portion of the September 28, 2022 meeting was 'closed,' the HOA had no authority under A.R.S. § 33-1804(A) to prevent the HOA members from recording the meeting.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
recording meetings
legal advice
closed sessions
Question
What actually constitutes a 'closed' meeting or executive session?
Short Answer
A meeting is considered closed only if members are required to leave or are excluded from attending.
Detailed Answer
Merely stating that a portion of the meeting is for legal advice or asking members to stop recording is not enough to close a meeting. If members are present and not asked to leave, the meeting is effectively open.
Alj Quote
However, nothing in the record demonstrates that this specific portion of the meeting was effectively 'closed.' In fact, Mr. Meister confirmed that none of the members present, or anyone online, had to leave the meeting or had to leave the meeting for the portion that included the attorney’s advice.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
closed sessions
definitions
procedural requirements
Question
Who has the burden of proof in an HOA dispute hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove by a preponderance of the evidence that the HOA violated the community documents or statutes. This means showing the contention is more probably true than not.
Alj Quote
In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.
Legal Basis
Ariz. Admin. Code R2-19-119
Topic Tags
legal standards
burden of proof
hearing procedures
Question
Can I recover my $500 filing fee if I win the hearing?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the petitioner prevails in the hearing, the judge has the authority to order the respondent (HOA) to reimburse the statutory filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED Respondent shall reimburse Petitioner his $500.00 filing fee.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
remedies
fees
penalties
Question
What authority does the Office of Administrative Hearings have in HOA disputes?
Short Answer
OAH can decide petitions, order compliance with statutes/documents, interpret contracts, and levy civil penalties.
Detailed Answer
The tribunal has broad authority to resolve disputes regarding violations of condominium documents or statutes, including interpreting contracts between the parties and imposing penalties for proven violations.
Alj Quote
OAH has the authority to consider and decide the contested petitions, the authority to order any party to abide by the statute, community documents and contract provisions at issue, the authority to interpret the contract between the parties, and the authority to levy a civil penalty on the basis of each proven violation.
Legal Basis
A.R.S. §§ 32-2199 et seq.
Topic Tags
jurisdiction
OAH authority
civil penalties
Case
Docket No
23F-H039-REL
Case Title
Michael Holland v. Tonto Forest Estates Homeowner's Association
Decision Date
2023-10-20
Alj Name
Kay Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
Can I record an open HOA board meeting?
Short Answer
Yes, homeowners have the statutory right to audio or video tape open portions of board and member meetings.
Detailed Answer
Under Arizona law, persons attending HOA meetings are permitted to audiotape or videotape any portion of the meeting that is open. The HOA cannot prohibit this for open sessions.
Alj Quote
A.R.S. § 33-1804(A) allows a person to record 'those portions of the meetings of the board of directors and meetings of the members that are open.'
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
recording meetings
homeowner rights
open meetings
Question
Can the HOA board stop me from recording if an attorney is giving legal advice?
Short Answer
Not if the meeting remains open to members. To stop recording, the board must physically close the meeting (exclude members).
Detailed Answer
Even if the board intends to receive legal advice (a valid reason to close a meeting), they cannot simply ask members to stop recording while allowing them to remain in the room. If members are allowed to stay, the meeting is not 'closed,' and the right to record remains.
Alj Quote
Because no portion of the September 28, 2022 meeting was 'closed,' the HOA had no authority under A.R.S. § 33-1804(A) to prevent the HOA members from recording the meeting.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
recording meetings
legal advice
closed sessions
Question
What actually constitutes a 'closed' meeting or executive session?
Short Answer
A meeting is considered closed only if members are required to leave or are excluded from attending.
Detailed Answer
Merely stating that a portion of the meeting is for legal advice or asking members to stop recording is not enough to close a meeting. If members are present and not asked to leave, the meeting is effectively open.
Alj Quote
However, nothing in the record demonstrates that this specific portion of the meeting was effectively 'closed.' In fact, Mr. Meister confirmed that none of the members present, or anyone online, had to leave the meeting or had to leave the meeting for the portion that included the attorney’s advice.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
closed sessions
definitions
procedural requirements
Question
Who has the burden of proof in an HOA dispute hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove by a preponderance of the evidence that the HOA violated the community documents or statutes. This means showing the contention is more probably true than not.
Alj Quote
In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.
Legal Basis
Ariz. Admin. Code R2-19-119
Topic Tags
legal standards
burden of proof
hearing procedures
Question
Can I recover my $500 filing fee if I win the hearing?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the petitioner prevails in the hearing, the judge has the authority to order the respondent (HOA) to reimburse the statutory filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED Respondent shall reimburse Petitioner his $500.00 filing fee.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
remedies
fees
penalties
Question
What authority does the Office of Administrative Hearings have in HOA disputes?
Short Answer
OAH can decide petitions, order compliance with statutes/documents, interpret contracts, and levy civil penalties.
Detailed Answer
The tribunal has broad authority to resolve disputes regarding violations of condominium documents or statutes, including interpreting contracts between the parties and imposing penalties for proven violations.
Alj Quote
OAH has the authority to consider and decide the contested petitions, the authority to order any party to abide by the statute, community documents and contract provisions at issue, the authority to interpret the contract between the parties, and the authority to levy a civil penalty on the basis of each proven violation.
Legal Basis
A.R.S. §§ 32-2199 et seq.
Topic Tags
jurisdiction
OAH authority
civil penalties
Case
Docket No
23F-H039-REL
Case Title
Michael Holland v. Tonto Forest Estates Homeowner's Association
Decision Date
2023-10-20
Alj Name
Kay Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael Holland(petitioner) Represented himself
Jill Burns(witness) Recorded the meeting at issue; former officer of the Board
Linda L. Holland(party affiliate) Co-owner of the property; Michael Holland's mother
The ALJ denied the petition, concluding that the Sanalina HOA did not violate its Bylaws when it removed Petitioner John Zumph from the Board of Directors. The tribunal held that a 'regular meeting' can occur even without the presence of a quorum necessary to conduct business, validating the HOA's decision to declare his office vacant after three consecutive absences.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the Bylaws. The ALJ determined that the meetings existed despite lack of quorum, and the Petitioner's intentional absences constituted an abuse of process and were not in the spirit of the bylaws.
Key Issues & Findings
Wrongful removal from the Board of Directors
Petitioner challenged his removal from the Board of Directors, arguing that his three consecutive absences from regularly scheduled meetings (July 8, 2021, September 9, 2021, and November 11, 2021) did not count because no quorum was met at those meetings, meaning the meetings did not exist.
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Sanalina Bylaws Article VII Section 1(d)
Sanalina Bylaws Article VI Section 3
Analytics Highlights
Topics: HOA Board Removal, Quorum Dispute, Bylaw Interpretation, Director Absence, Regular Meeting Definition
These sources document an Arizona administrative hearing and the subsequent legal ruling regarding a dispute between John Zumph and the Sanalina Homeowners Association. Zumph challenged his removal from the Board of Directors, which the association justified based on his absence from three consecutive meetings. While Zumph argued that these sessions did not legally qualify as meetings due to a lack of quorum, the association contended he intentionally skipped them to obstruct board business and force leadership changes. The provided transcript details the testimony and cross-examination of the parties involved, highlighting the internal conflicts within the board. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that meetings can exist even without a quorum to transact business. The final decision affirmed that Zumph’s intentional absences harmed the community and legally permitted the board to declare his seat vacant.
What was the core disagreement regarding the definition of a quorum?
Explain the impacts of the board’s inability to conduct official business.
How did the Administrative Law Judge rule on the petitioner’s removal?
Thursday, February 12
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These sources document an Arizona administrative hearing and the subsequent legal ruling regarding a dispute between John Zumph and the Sanalina Homeowners Association. Zumph challenged his removal from the Board of Directors, which the association justified based on his absence from three consecutive meetings. While Zumph argued that these sessions did not legally qualify as meetings due to a lack of quorum, the association contended he intentionally skipped them to obstruct board business and force leadership changes. The provided transcript details the testimony and cross-examination of the parties involved, highlighting the internal conflicts within the board. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that meetings can exist even without a quorum to transact business. The final decision affirmed that Zumph’s intentional absences harmed the community and legally permitted the board to declare his seat vacant.
What was the core disagreement regarding the definition of a quorum?
Explain the impacts of the board’s inability to conduct official business.
How did the Administrative Law Judge rule on the petitioner’s removal?
Thursday, February 12
Save to note
Today • 1:35 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
John Zumph(petitioner) Sanalina Homeowners Association Also referred to as John Zump or John Edward Dump; Former Board member removed from his position
Pete Selei(board member) Sanalina Homeowners Association Aligned with petitioner's refusal to attend meetings; Board member removed/vacated position; Also referred to as Joe Pete or Pete
Joe(board member) Sanalina Homeowners Association Aligned with petitioner's refusal to attend meetings
Respondent Side
Nick Eicher(HOA attorney) Sanalina Homeowners Association Also referred to as Nick Aker
Lisa Jean Terror(board member) Sanalina Homeowners Association Board Secretary; witness for Respondent
Neutral Parties
Adam D. Stone(ALJ) OAH
Louis Dettorre(commissioner) Arizona Department of Real Estate
Miranda Alvarez(legal secretary)
Other Participants
Thomas Campanella(property manager) Sanalina Homeowners Association Community Manager; Also referred to as Thomas Pampanella
Javier Gimenez(management representative) Sanalina Homeowners Association Handled minutes for March meeting
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020051-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-01-08
Administrative Law Judge
Kay Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Debra K. Morin
Counsel
—
Respondent
Solera Chandler Homeowners' Association, Inc.
Counsel
Lydia A. Perce Linsmeier, Esq.
Alleged Violations
CC&R Article 7, Section 7.1
Outcome Summary
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Briefing Document: Morin v. Solera Chandler Homeowners’ Association, Inc.
Executive Summary
This briefing document synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin (Petitioner), and the Solera Chandler Homeowners’ Association, Inc. (Respondent/Solera). The case centered on the Petitioner’s allegations that the HOA failed to maintain common areas to the standards required by its own governing documents.
The Petitioner filed a two-issue petition, with the primary surviving issue being that Solera, its Board of Directors, and its management company were not maintaining the “Areas of Association Responsibility” (AREAS) in good condition and repair at all times. The Petitioner’s core argument was that the same stringent maintenance standard applied to individual homeowners must be equally applied to the HOA. She provided extensive photographic evidence of issues such as weeds, deteriorating sidewalks, street disrepair, and exposed wiring.
The HOA defended its actions by citing its established procedures for maintenance, including a committee review process, a scheduled Reserves plan, and the use of licensed contractors. Critically, Solera’s defense rested on provisions within its Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which grant the Board of Directors the exclusive right to interpret the CC&Rs and designate it as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
Following an initial hearing, the Administrative Law Judge (ALJ) dismissed the petition, finding that the Petitioner had not met the burden of proof. The ALJ ruled that under the governing documents, the HOA Board has sole discretion in maintenance matters, and the Petitioner’s subjective opinions on how and when work should be done were not relevant to determining a violation. The Petitioner was granted a rehearing, where she presented additional evidence and arguments. However, the ALJ upheld the original decision, reaffirming that the CC&Rs grant the Board authority superseding that of an individual homeowner in determining appropriate maintenance. The petition was dismissed, and Solera was deemed the prevailing party in both instances.
Case Overview
Case Name
Debra K. Morin, Petitioner, v. Solera Chandler Homeowners’ Association, Inc., Respondent.
Case Number
No. 20F-H2020051-REL / 20F-H2020051-REL-RHG
Tribunal
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge (ALJ) Kay Abramsohn
Petitioner
Debra K. Morin (represented herself)
Respondent
Solera Chandler Homeowners’ Association, Inc. (represented by Lydia Linsmeier, Esq.)
Petition Filed
On or about March 12, 2020
Initial Hearing
May 20, 2020 and July 15, 2020
Initial Decision
August 19, 2020 (Petition Dismissed)
Rehearing Hearing
December 16, 2020
Rehearing Decision
January 8, 2021 (Original Dismissal Upheld)
Petitioner’s Allegations and Arguments
The Petitioner, a resident of Solera for four years, filed a petition with the Arizona Department of Real Estate alleging violations of Solera’s Articles of Incorporation, By-Laws, CC&Rs, and Rules and Regulations (R&Rs). The allegations were organized into two primary issues.
Issue #1: Lack of Direct Communication
• Allegation: Solera, its Board, and its management company, Premier Management Company (Premier), “do not allow direct communication from homeowners.”
• Requested Relief: The Petitioner sought to have this “policy” rescinded.
• Outcome: This issue was connected to allegations of ethics violations based on the Board’s Code of Ethics, which the Tribunal determined was a non-governing document outside its jurisdiction. As a result, the Petitioner withdrew Issue #1 during the May 20, 2020 hearing.
Issue #2: Failure to Maintain Common Areas
• Allegation: Solera, its Board, and Premier “are not providing oversight to the General Manager in maintaining all Areas of Association Responsibility … in good condition and repair at all times.” Specific complaints included “uncontrolled weeds” and poor maintenance of the Community Center and other AREAS.
• Core Argument: The Petitioner’s central thesis was that the HOA must be held to the identical maintenance standard it imposes on homeowners. She argued that just as homeowners are required to maintain their lots “in a weed free condition 365 days a year,” the HOA has no discretion for delays in addressing maintenance issues in common areas.
• Requested Relief:
1. A public admission by the Board of its failures to follow governing documents.
2. The establishment of “direct communication rules” for reporting management deficiencies.
3. Compliance monitoring by the “Real Estate Board.”
Evidence and Specific Complaints
The Petitioner presented over 80 photographs at the initial hearing (growing to 310 by the rehearing) and multiple emails to document a wide range of perceived maintenance failures.
Maintenance Issue
Petitioner’s Specific Complaint
Uncontrolled weeds in granite rock locations throughout the community.
Community Center
Poor exterior condition.
Streets & Curbs
Deteriorating asphalt, cracking, and issues with sealing.
Sidewalks
Trip hazards and disintegrating cool-decking.
Drainage
Clogged storm drains and water pooling issues.
Landscaping
Exposed wiring for lights, exposed drip irrigation lines, and unremoved tree stumps.
Disrepair of boundary walls.
A key piece of evidence was a February 21, 2020 email exchange regarding weeds, which the ALJ found “representative of the overall situation.”
Petitioner’s Complaint: “This is NOT being done and our HOA looks disgusting with the continued presence of unchecked weeds inside and outside our community! No excuses, you cannot hold homeowners to a higher standard than you are willing to do for our HOA. You are on notice to rectify this violation immediately!”
General Manager’s Response: “…the landscape crew hula hoes and sprays daily, based on routine maintenance cycle and location of site work… Considering that we have 1,143,550 square feet of granite and 270,933 square feet of turf, the maintenance of weeds is a continuous and ongoing concern that is constantly being addressed.”
Petitioner’s Rebuttal: “YOUR response is just more excuses!… It appears that since it is not your personal money being spent, it is ok to have substandard work performance.”
Respondent’s Position and Defense
Solera HOA moved to dismiss the petition, arguing the issues were outside the Department’s jurisdiction and the requested relief could not be granted. While the motion was effectively denied after Issue #1 was withdrawn, Solera’s core defense remained consistent throughout the proceedings.
• Central Legal Argument: Solera contended that its Board of Directors is vested with the ultimate authority on maintenance matters by the community’s governing documents. It repeatedly cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation Authority: The HOA also pointed to CC&R Article 9, Section 9.5, which gives it the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with such interpretations being “final, conclusive and binding.”
• Operational Defense: Denise Frazier, Solera’s on-site general manager, testified that the HOA has established processes for maintenance.
◦ Committee Structure: A Building and Grounds Committee (B&G) reviews projects, which are then assessed by a Finance Committee before going to the Board for approval.
◦ Reserves Schedule: Solera maintains a Reserves schedule for large projects, such as sidewalk repairs (every 4 years), street repairs (every 8 years), and sealing cracks (every 2 years).
◦ Vendor Management: The Board relies on licensed contractors for specialized work, including landscaping, tree trimming (by two different companies for different heights), and stump grinding.
• Response to Specific Issues:
◦ Weeds: Frazier attributed the prevalence of weeds in early 2020 to an unusual amount of rain, creating “optimal” conditions. She noted that Solera had instructed landscapers to use dye in the weed spray to demonstrate to residents that spraying was occurring.
◦ Sidewalks: Frazier acknowledged a several-month delay in repairing a specific sidewalk area but stated that warning cones had been placed in the interim. Solera uses a ¼ inch standard for review but the City of Chandler’s ½ inch trip-hazard guideline for repairs.
◦ Exposed Wiring: This was explained as a temporary measure by landscapers to avoid cutting electrical and irrigation lines during tree and granite replacement projects.
Rulings and Legal Conclusions
The Administrative Law Judge dismissed the Petitioner’s case after the initial hearing and reaffirmed this dismissal after a rehearing, finding that the Petitioner failed to meet her legal burden of proof.
Key Legal Principles Applied
• Burden of Proof: The ALJ established that the Petitioner “bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions.”
• Supremacy of Governing Documents: The case was decided on the interpretation of the HOA’s CC&Rs, which function as the binding contract between the association and its members.
• Board’s Discretionary Authority: The central and decisive legal conclusion was that the HOA’s governing documents explicitly grant the Board superior authority over maintenance decisions.
◦ CC&R Article 7, Section 7.1 (“sole judge”) was interpreted to mean that only Solera is charged with determining when and how to perform maintenance, repair, and replacement in common areas.
◦ The ALJ concluded this provision “lifts the Board’s authority above that of a homeowner.” The Petitioner failed to provide legal support for her argument that the same maintenance standard must be applied to the Board as is applied to homeowners.
• Jurisdictional Limits: The Tribunal’s role is limited to adjudicating alleged violations of governing documents or statutes. The ALJ noted that a “homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
Final Order
The ALJ concluded that Solera was in compliance with its governing documents, including the critical CC&R Article 7, Section 7.1. The Petitioner’s subjective opinions about the timeliness or quality of repairs were deemed irrelevant in the face of the Board’s contractual authority to be the “sole judge.”
Initial Order (August 19, 2020): “IT IS ORDERED Petitioner’s Petition is dismissed and Solera is deemed the prevailing party.”
Rehearing Order (January 8, 2021): “IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.” The order was declared binding on the parties.
Study Guide – 20F-H2020051-REL-RHG
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in the Administrative Law Judge Decision of August 19, 2020, and the subsequent Rehearing Decision of January 8, 2021.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What were the two main issues the petitioner, Debra K. Morin, raised in her initial petition filed on March 12, 2020?
3. Why was the petitioner’s first issue, regarding direct communication, withdrawn during the initial hearing?
4. What was the petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. According to the CC&Rs, what specific authority does the Solera Board have regarding maintenance, which formed the core of its defense?
6. What type of evidence did the petitioner primarily use to document her claims of poor maintenance in the Areas of Association Responsibility (AREAS)?
7. Who is Denise Frazier, and what role did she play in the proceedings?
8. What was the Administrative Law Judge’s final decision in the initial hearing on August 19, 2020?
9. On what grounds did the Commissioner of the Arizona Department of Real Estate grant the petitioner’s request for a rehearing?
10. What was the final outcome of the case after the rehearing decision was issued on January 8, 2021?
Answer Key
1. The primary parties were Debra K. Morin, the Petitioner and a homeowner, and the Solera Chandler Homeowners’ Association, Inc. (Solera), the Respondent. The case was heard by Administrative Law Judge Kay Abramsohn, and Solera was represented by Premier Management Company and its on-site general manager.
2. The petitioner’s Issue #1 alleged that Solera, its Board, and its management company “do not allow direct communication from homeowners.” Issue #2 alleged they were not providing oversight to the General Manager in maintaining all Areas of Association Responsibility in good condition and repair at all times.
3. The petitioner withdrew Issue #1 after it was determined that the Tribunal’s jurisdiction does not include interpreting or applying non-governing documents. Her complaint was based on the Solera Code of Ethics, which the Tribunal could not consider.
4. The petitioner argued that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that if homeowners are required by the governing documents to maintain their lots “in good condition and repair at all times,” then the HOA must be held to the identical standard for common areas (AREAS).
5. Solera’s defense centered on CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Additionally, CC&R Article 9, Section 9.5 gives Solera the exclusive right to construe and interpret the CC&Rs.
6. The petitioner presented a large volume of photographic evidence, including over eighty photos for the initial hearing and more for the rehearing. These photographs were intended to document weeds, issues with sidewalks, exposed wiring, storm drains, and other maintenance problems in the common areas.
7. Denise Frazier is the on-site general manager for Solera and an employee of Premier Management Company. She testified on behalf of Solera regarding its maintenance schedules, procedures, reserve studies, and responses to the specific issues raised by the petitioner.
8. In the initial hearing, the Administrative Law Judge dismissed the petitioner’s petition and deemed Solera the prevailing party. The judge concluded that the petitioner had not demonstrated a violation of the governing documents, as the CC&Rs grant the Board sole judgment on maintenance matters.
9. The request for a rehearing was granted because the petitioner claimed there were irregularities in the proceedings, misconduct by the prevailing party, and that the decision was arbitrary, capricious, an abuse of discretion, and not supported by the evidence or contrary to law.
10. The rehearing affirmed the original decision. The Administrative Law Judge again concluded that the petitioner failed to sustain her burden of proof and that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1. The appeal was dismissed, and Solera was again named the prevailing party.
Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the central legal conflict in this case by contrasting the petitioner’s interpretation of CC&R Article 7, Section 7.2 with the respondent’s defense based on CC&R Article 7, Section 7.1 and Article 9, Section 9.5. How did the Administrative Law Judge resolve this interpretive dispute?
2. Discuss the concept of jurisdiction as it applied to this case. Explain why certain arguments and evidence presented by the petitioner—such as the Board’s Code of Ethics, Premier Management Company standards, and City of Chandler ordinances—were deemed outside the Tribunal’s authority to consider.
3. Evaluate the petitioner’s strategy and use of evidence. Discuss the strengths and weaknesses of relying heavily on photographic evidence and detailed email complaints. Why did this “enormity” of evidence ultimately fail to meet the “preponderance of the evidence” standard?
4. Explain the significance of the phrase “sole judge” in CC&R Article 7, Section 7.1. How does this clause grant discretionary authority to the HOA Board, and how did it function as the key element in defeating the petitioner’s claim?
5. Trace the procedural history of the case, from the initial Petition and Motion to Dismiss through the original hearing, the Decision, the Rehearing Request, and the final Rehearing Decision. Identify the key rulings and turning points that determined the ultimate outcome.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge presiding over the administrative hearing at the Arizona Office of Administrative Hearings. In this case, Judge Kay Abramsohn.
AREAS (Areas of Association Responsibility)
The common areas within the Solera development that the Homeowners’ Association is responsible for managing, maintaining, repairing, and replacing.
By-Laws
One of the governing documents for the Solera Chandler Homeowners’ Association.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera development, specifically the “Solera Declaration of Covenants, Conditions, and Restrictions for Springfield Lakes.” It outlines the rights and responsibilities of the homeowners and the association.
Denise Frazier
The on-site general manager for Solera, employed by Premier Management Company, who testified on behalf of the association regarding its maintenance operations.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by Solera asking the Department of Real Estate to dismiss the petition on the grounds that the issues were outside the Department’s jurisdiction and the requested relief could not be granted.
Petitioner
The party who filed the petition initiating the legal action. In this case, Debra K. Morin, a homeowner in Solera.
Preponderance of the evidence
The burden of proof in this administrative proceeding. It is defined as proof that convinces the trier of fact that a contention is more probably true than not.
Premier Management Company
The management company hired by Solera to handle day-to-day operations of the community.
Project Documents
The set of governing documents for the community, defined as the CC&Rs, any supplemental declarations, the By-Laws, the R&Rs, and the Design Guidelines.
Respondent
The party against whom the petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents for the Solera Chandler Homeowners’ Association.
Tribunal
A term used in the documents to refer to the Arizona Office of Administrative Hearings (OAH), where the hearing was conducted.
Blog Post – 20F-H2020051-REL-RHG
A Homeowner Took on Her HOA with Over 300 Photos of Evidence. The Reason She Lost Is a Warning for Everyone.
Introduction: The Familiar Fight
It’s a scenario familiar to millions of Americans living in planned communities. You receive a violation notice for a minor infraction on your property, yet when you look at the common areas your HOA is responsible for, you see overgrown weeds, cracked sidewalks, and general disrepair. It feels deeply unfair. Why are homeowners held to a strict standard while the association itself seems to neglect its duties?
This exact frustration drove Debra K. Morin to take on her Solera Chandler Homeowners’ Association. Armed with over 300 photographs documenting every weed and crack, she was certain her case was airtight. But she lost. The reasons why her case failed are a stark warning for any homeowner, revealing a legal battle that hinged entirely on the community’s binding contract: the Covenants, Conditions, and Restrictions (CC&Rs).
——————————————————————————–
The 5 Surprising Lessons from One Homeowner’s HOA Lawsuit
1. The “Sole Judge” Clause: Your HOA’s Ultimate Defense
The single most critical factor in this case was a single clause buried in the HOA’s governing documents. Ms. Morin argued that the HOA must “maintain in good condition and repair at all times” the common areas, believing this was the same standard applied to homeowners. However, the HOA pointed to CC&R Article 7, Section 7.1, which designates the HOA Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
This clause proved to be an almost impenetrable defense. In essence, the legal standard for maintenance was not what a “reasonable person” would consider good repair, but whatever the Board, in its exclusive judgment, decided was appropriate. Even with extensive photo evidence, the case failed because the contract Ms. Morin agreed to when she bought her home gave the Board the ultimate discretion. The Administrative Law Judge’s decision made this crystal clear:
“While the CC&Rs allow an owner to bring to the Board a complaint, the CC&Rs specify that the Board is the sole judge regarding appropriate maintenance, repair and replacement of all AREAS.”
This “sole judge” clause is the cornerstone of a much broader power imbalance, one that is codified throughout the governing documents.
2. A Power Imbalance Is Written into the Rules
While Ms. Morin argued for an equal standard of responsibility, the legal documents revealed a clear and intentional power imbalance. CC&R Article 9, Section 9.5, granted the HOA the “exclusive right to construe and interpret the provisions of the [CC&Rs],” and stated that its interpretation is “final, conclusive and binding.”
This structure legally transforms the relationship from a partnership of equals into one of administrator and subject, where one party holds the power of final interpretation. The governing documents describe in detail how the HOA can levy penalties against an owner for violations, but they provide no equivalent process for an owner to penalize the HOA for its failures. The judge in the rehearing decision explicitly summarized this built-in hierarchy:
“Thus, it is clear, that pursuant to the governing documents, the Board’s authority is lifted above that of a homeowner.”
With the Board’s authority so clearly established, Ms. Morin’s mountain of evidence was about to run into a contractual brick wall.
3. An “Enormity of Evidence” Isn’t Always the Right Evidence
Ms. Morin presented a significant volume of evidence, starting with over 80 photographs in the first hearing and later referencing what she called an “enormity” of evidence totaling over 300 pictures of weeds, damaged sidewalks, and other maintenance issues.
The critical legal distinction the judge made was that the photographs documented the condition of the common areas, but they did not prove a violation of the governing documents. The legal question was not, “Are there weeds?” The question was, “Did the Board violate a contract that explicitly makes it the sole judge of maintenance?” This demonstrates that in a contract dispute, the quality of evidence is defined by its relevance to the specific contractual terms, not its sheer volume.
4. “At All Times” Doesn’t Mean “Instantly”
A key part of the homeowner’s argument was that the HOA was failing to “maintain in good condition and repair at all times” by allowing maintenance issues to persist for months. In response, the HOA detailed its operational reality. The HOA provided evidence of long-term capital plans, such as sealing street cracks every two years and major sidewalk repairs on a four-year cycle. Daily tasks, like weed control, were handled by landscape crews operating on a continuous, rotating schedule across the large community.
From a legal perspective, “at all times” is interpreted through the lens of operational reasonableness for a large entity, not as a guarantee of immediate perfection. For an organization managing a vast property, this standard is met through consistent processes and schedules, not by fixing every issue the moment it is reported.
5. Your Dissatisfaction Is Not a Lawsuit
At its heart, the case was driven by Ms. Morin’s deep frustration. The judge recognized that her petition stemmed from a core belief that the Board and its General Manager were unresponsive and providing poor oversight. While these feelings may have been valid, they were not legally actionable on their own. The judge’s decision in the rehearing drew a firm line between a homeowner’s frustration and a legal claim:
“However, a homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
This highlights a common misconception: while feelings of poor customer service are valid, they are legally irrelevant unless they can be tied to a specific, provable breach of the governing documents or a violation of state law.
——————————————————————————–
Conclusion: Read Before You Sign
The primary lesson from this case is the absolute authority of a community’s governing documents. In any dispute, the specific, written words of the CC&Rs—the contract you sign when you buy your home—will almost always outweigh a homeowner’s subjective standards, sense of fairness, or even a mountain of photographic evidence.
This case serves as a powerful reminder that from a contractual standpoint, the rules are not always designed to be “fair,” but to be enforceable. It leaves every homeowner with a critical question:
Before you complain about your HOA, have you read the rulebook they’re playing by—and that you agreed to?
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020051-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-01-08
Administrative Law Judge
Kay Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Debra K. Morin
Counsel
—
Respondent
Solera Chandler Homeowners' Association, Inc.
Counsel
Lydia A. Perce Linsmeier, Esq.
Alleged Violations
CC&R Article 7, Section 7.1
Outcome Summary
The Administrative Law Judge concluded that Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents regarding the maintenance of Areas of Association Responsibility (AREAS). The Tribunal dismissed the Petition and the subsequent Rehearing Appeal, finding Solera was in compliance with CC&R Article 7, Section 7.1.
Why this result: The Petitioner failed to prove by a preponderance of the evidence that Solera violated its governing documents. The CC&Rs grant the Board the authority to be the "sole judge" as to appropriate maintenance, repair, and replacement of all AREAS.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to meet the maintenance standard required by CC&R Article 7, Section 7.1, citing various examples of disrepair, including weeds, sidewalks, and streets, and arguing the same standard applied to homeowners must apply to the HOA. The Tribunal rejected this, finding that the CC&Rs designate the Board as the sole judge regarding appropriate maintenance, and Petitioner failed to meet the burden of proof to show a violation.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents, including CC&R Article 7, Section 7.1, and the Petition/Rehearing Appeal was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&R Article 7, Section 7.1
CC&R Article 9, Section 9.5
A.R.S. § 32-2199.02(B)
Analytics Highlights
Topics: HOA, Maintenance, CC&Rs, Jurisdiction, Burden of Proof, Rehearing
Additional Citations:
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.09
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 41-1092
A.R.S. § 32-2199.05
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Briefing Document: Morin v. Solera Chandler Homeowners’ Association, Inc.
Executive Summary
This briefing document synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin (Petitioner), and the Solera Chandler Homeowners’ Association, Inc. (Respondent/Solera). The case centered on the Petitioner’s allegations that the HOA failed to maintain common areas to the standards required by its own governing documents.
The Petitioner filed a two-issue petition, with the primary surviving issue being that Solera, its Board of Directors, and its management company were not maintaining the “Areas of Association Responsibility” (AREAS) in good condition and repair at all times. The Petitioner’s core argument was that the same stringent maintenance standard applied to individual homeowners must be equally applied to the HOA. She provided extensive photographic evidence of issues such as weeds, deteriorating sidewalks, street disrepair, and exposed wiring.
The HOA defended its actions by citing its established procedures for maintenance, including a committee review process, a scheduled Reserves plan, and the use of licensed contractors. Critically, Solera’s defense rested on provisions within its Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which grant the Board of Directors the exclusive right to interpret the CC&Rs and designate it as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
Following an initial hearing, the Administrative Law Judge (ALJ) dismissed the petition, finding that the Petitioner had not met the burden of proof. The ALJ ruled that under the governing documents, the HOA Board has sole discretion in maintenance matters, and the Petitioner’s subjective opinions on how and when work should be done were not relevant to determining a violation. The Petitioner was granted a rehearing, where she presented additional evidence and arguments. However, the ALJ upheld the original decision, reaffirming that the CC&Rs grant the Board authority superseding that of an individual homeowner in determining appropriate maintenance. The petition was dismissed, and Solera was deemed the prevailing party in both instances.
Case Overview
Case Name
Debra K. Morin, Petitioner, v. Solera Chandler Homeowners’ Association, Inc., Respondent.
Case Number
No. 20F-H2020051-REL / 20F-H2020051-REL-RHG
Tribunal
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge (ALJ) Kay Abramsohn
Petitioner
Debra K. Morin (represented herself)
Respondent
Solera Chandler Homeowners’ Association, Inc. (represented by Lydia Linsmeier, Esq.)
Petition Filed
On or about March 12, 2020
Initial Hearing
May 20, 2020 and July 15, 2020
Initial Decision
August 19, 2020 (Petition Dismissed)
Rehearing Hearing
December 16, 2020
Rehearing Decision
January 8, 2021 (Original Dismissal Upheld)
Petitioner’s Allegations and Arguments
The Petitioner, a resident of Solera for four years, filed a petition with the Arizona Department of Real Estate alleging violations of Solera’s Articles of Incorporation, By-Laws, CC&Rs, and Rules and Regulations (R&Rs). The allegations were organized into two primary issues.
Issue #1: Lack of Direct Communication
• Allegation: Solera, its Board, and its management company, Premier Management Company (Premier), “do not allow direct communication from homeowners.”
• Requested Relief: The Petitioner sought to have this “policy” rescinded.
• Outcome: This issue was connected to allegations of ethics violations based on the Board’s Code of Ethics, which the Tribunal determined was a non-governing document outside its jurisdiction. As a result, the Petitioner withdrew Issue #1 during the May 20, 2020 hearing.
Issue #2: Failure to Maintain Common Areas
• Allegation: Solera, its Board, and Premier “are not providing oversight to the General Manager in maintaining all Areas of Association Responsibility … in good condition and repair at all times.” Specific complaints included “uncontrolled weeds” and poor maintenance of the Community Center and other AREAS.
• Core Argument: The Petitioner’s central thesis was that the HOA must be held to the identical maintenance standard it imposes on homeowners. She argued that just as homeowners are required to maintain their lots “in a weed free condition 365 days a year,” the HOA has no discretion for delays in addressing maintenance issues in common areas.
• Requested Relief:
1. A public admission by the Board of its failures to follow governing documents.
2. The establishment of “direct communication rules” for reporting management deficiencies.
3. Compliance monitoring by the “Real Estate Board.”
Evidence and Specific Complaints
The Petitioner presented over 80 photographs at the initial hearing (growing to 310 by the rehearing) and multiple emails to document a wide range of perceived maintenance failures.
Maintenance Issue
Petitioner’s Specific Complaint
Uncontrolled weeds in granite rock locations throughout the community.
Community Center
Poor exterior condition.
Streets & Curbs
Deteriorating asphalt, cracking, and issues with sealing.
Sidewalks
Trip hazards and disintegrating cool-decking.
Drainage
Clogged storm drains and water pooling issues.
Landscaping
Exposed wiring for lights, exposed drip irrigation lines, and unremoved tree stumps.
Disrepair of boundary walls.
A key piece of evidence was a February 21, 2020 email exchange regarding weeds, which the ALJ found “representative of the overall situation.”
Petitioner’s Complaint: “This is NOT being done and our HOA looks disgusting with the continued presence of unchecked weeds inside and outside our community! No excuses, you cannot hold homeowners to a higher standard than you are willing to do for our HOA. You are on notice to rectify this violation immediately!”
General Manager’s Response: “…the landscape crew hula hoes and sprays daily, based on routine maintenance cycle and location of site work… Considering that we have 1,143,550 square feet of granite and 270,933 square feet of turf, the maintenance of weeds is a continuous and ongoing concern that is constantly being addressed.”
Petitioner’s Rebuttal: “YOUR response is just more excuses!… It appears that since it is not your personal money being spent, it is ok to have substandard work performance.”
Respondent’s Position and Defense
Solera HOA moved to dismiss the petition, arguing the issues were outside the Department’s jurisdiction and the requested relief could not be granted. While the motion was effectively denied after Issue #1 was withdrawn, Solera’s core defense remained consistent throughout the proceedings.
• Central Legal Argument: Solera contended that its Board of Directors is vested with the ultimate authority on maintenance matters by the community’s governing documents. It repeatedly cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation Authority: The HOA also pointed to CC&R Article 9, Section 9.5, which gives it the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with such interpretations being “final, conclusive and binding.”
• Operational Defense: Denise Frazier, Solera’s on-site general manager, testified that the HOA has established processes for maintenance.
◦ Committee Structure: A Building and Grounds Committee (B&G) reviews projects, which are then assessed by a Finance Committee before going to the Board for approval.
◦ Reserves Schedule: Solera maintains a Reserves schedule for large projects, such as sidewalk repairs (every 4 years), street repairs (every 8 years), and sealing cracks (every 2 years).
◦ Vendor Management: The Board relies on licensed contractors for specialized work, including landscaping, tree trimming (by two different companies for different heights), and stump grinding.
• Response to Specific Issues:
◦ Weeds: Frazier attributed the prevalence of weeds in early 2020 to an unusual amount of rain, creating “optimal” conditions. She noted that Solera had instructed landscapers to use dye in the weed spray to demonstrate to residents that spraying was occurring.
◦ Sidewalks: Frazier acknowledged a several-month delay in repairing a specific sidewalk area but stated that warning cones had been placed in the interim. Solera uses a ¼ inch standard for review but the City of Chandler’s ½ inch trip-hazard guideline for repairs.
◦ Exposed Wiring: This was explained as a temporary measure by landscapers to avoid cutting electrical and irrigation lines during tree and granite replacement projects.
Rulings and Legal Conclusions
The Administrative Law Judge dismissed the Petitioner’s case after the initial hearing and reaffirmed this dismissal after a rehearing, finding that the Petitioner failed to meet her legal burden of proof.
Key Legal Principles Applied
• Burden of Proof: The ALJ established that the Petitioner “bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions.”
• Supremacy of Governing Documents: The case was decided on the interpretation of the HOA’s CC&Rs, which function as the binding contract between the association and its members.
• Board’s Discretionary Authority: The central and decisive legal conclusion was that the HOA’s governing documents explicitly grant the Board superior authority over maintenance decisions.
◦ CC&R Article 7, Section 7.1 (“sole judge”) was interpreted to mean that only Solera is charged with determining when and how to perform maintenance, repair, and replacement in common areas.
◦ The ALJ concluded this provision “lifts the Board’s authority above that of a homeowner.” The Petitioner failed to provide legal support for her argument that the same maintenance standard must be applied to the Board as is applied to homeowners.
• Jurisdictional Limits: The Tribunal’s role is limited to adjudicating alleged violations of governing documents or statutes. The ALJ noted that a “homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
Final Order
The ALJ concluded that Solera was in compliance with its governing documents, including the critical CC&R Article 7, Section 7.1. The Petitioner’s subjective opinions about the timeliness or quality of repairs were deemed irrelevant in the face of the Board’s contractual authority to be the “sole judge.”
Initial Order (August 19, 2020): “IT IS ORDERED Petitioner’s Petition is dismissed and Solera is deemed the prevailing party.”
Rehearing Order (January 8, 2021): “IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.” The order was declared binding on the parties.
Study Guide – 20F-H2020051-REL-RHG
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in the Administrative Law Judge Decision of August 19, 2020, and the subsequent Rehearing Decision of January 8, 2021.
Short-Answer Quiz
Answer the following questions in 2-3 sentences each, based on the provided case documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What were the two main issues the petitioner, Debra K. Morin, raised in her initial petition filed on March 12, 2020?
3. Why was the petitioner’s first issue, regarding direct communication, withdrawn during the initial hearing?
4. What was the petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. According to the CC&Rs, what specific authority does the Solera Board have regarding maintenance, which formed the core of its defense?
6. What type of evidence did the petitioner primarily use to document her claims of poor maintenance in the Areas of Association Responsibility (AREAS)?
7. Who is Denise Frazier, and what role did she play in the proceedings?
8. What was the Administrative Law Judge’s final decision in the initial hearing on August 19, 2020?
9. On what grounds did the Commissioner of the Arizona Department of Real Estate grant the petitioner’s request for a rehearing?
10. What was the final outcome of the case after the rehearing decision was issued on January 8, 2021?
Answer Key
1. The primary parties were Debra K. Morin, the Petitioner and a homeowner, and the Solera Chandler Homeowners’ Association, Inc. (Solera), the Respondent. The case was heard by Administrative Law Judge Kay Abramsohn, and Solera was represented by Premier Management Company and its on-site general manager.
2. The petitioner’s Issue #1 alleged that Solera, its Board, and its management company “do not allow direct communication from homeowners.” Issue #2 alleged they were not providing oversight to the General Manager in maintaining all Areas of Association Responsibility in good condition and repair at all times.
3. The petitioner withdrew Issue #1 after it was determined that the Tribunal’s jurisdiction does not include interpreting or applying non-governing documents. Her complaint was based on the Solera Code of Ethics, which the Tribunal could not consider.
4. The petitioner argued that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that if homeowners are required by the governing documents to maintain their lots “in good condition and repair at all times,” then the HOA must be held to the identical standard for common areas (AREAS).
5. Solera’s defense centered on CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Additionally, CC&R Article 9, Section 9.5 gives Solera the exclusive right to construe and interpret the CC&Rs.
6. The petitioner presented a large volume of photographic evidence, including over eighty photos for the initial hearing and more for the rehearing. These photographs were intended to document weeds, issues with sidewalks, exposed wiring, storm drains, and other maintenance problems in the common areas.
7. Denise Frazier is the on-site general manager for Solera and an employee of Premier Management Company. She testified on behalf of Solera regarding its maintenance schedules, procedures, reserve studies, and responses to the specific issues raised by the petitioner.
8. In the initial hearing, the Administrative Law Judge dismissed the petitioner’s petition and deemed Solera the prevailing party. The judge concluded that the petitioner had not demonstrated a violation of the governing documents, as the CC&Rs grant the Board sole judgment on maintenance matters.
9. The request for a rehearing was granted because the petitioner claimed there were irregularities in the proceedings, misconduct by the prevailing party, and that the decision was arbitrary, capricious, an abuse of discretion, and not supported by the evidence or contrary to law.
10. The rehearing affirmed the original decision. The Administrative Law Judge again concluded that the petitioner failed to sustain her burden of proof and that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1. The appeal was dismissed, and Solera was again named the prevailing party.
Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the central legal conflict in this case by contrasting the petitioner’s interpretation of CC&R Article 7, Section 7.2 with the respondent’s defense based on CC&R Article 7, Section 7.1 and Article 9, Section 9.5. How did the Administrative Law Judge resolve this interpretive dispute?
2. Discuss the concept of jurisdiction as it applied to this case. Explain why certain arguments and evidence presented by the petitioner—such as the Board’s Code of Ethics, Premier Management Company standards, and City of Chandler ordinances—were deemed outside the Tribunal’s authority to consider.
3. Evaluate the petitioner’s strategy and use of evidence. Discuss the strengths and weaknesses of relying heavily on photographic evidence and detailed email complaints. Why did this “enormity” of evidence ultimately fail to meet the “preponderance of the evidence” standard?
4. Explain the significance of the phrase “sole judge” in CC&R Article 7, Section 7.1. How does this clause grant discretionary authority to the HOA Board, and how did it function as the key element in defeating the petitioner’s claim?
5. Trace the procedural history of the case, from the initial Petition and Motion to Dismiss through the original hearing, the Decision, the Rehearing Request, and the final Rehearing Decision. Identify the key rulings and turning points that determined the ultimate outcome.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judge presiding over the administrative hearing at the Arizona Office of Administrative Hearings. In this case, Judge Kay Abramsohn.
AREAS (Areas of Association Responsibility)
The common areas within the Solera development that the Homeowners’ Association is responsible for managing, maintaining, repairing, and replacing.
By-Laws
One of the governing documents for the Solera Chandler Homeowners’ Association.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera development, specifically the “Solera Declaration of Covenants, Conditions, and Restrictions for Springfield Lakes.” It outlines the rights and responsibilities of the homeowners and the association.
Denise Frazier
The on-site general manager for Solera, employed by Premier Management Company, who testified on behalf of the association regarding its maintenance operations.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by Solera asking the Department of Real Estate to dismiss the petition on the grounds that the issues were outside the Department’s jurisdiction and the requested relief could not be granted.
Petitioner
The party who filed the petition initiating the legal action. In this case, Debra K. Morin, a homeowner in Solera.
Preponderance of the evidence
The burden of proof in this administrative proceeding. It is defined as proof that convinces the trier of fact that a contention is more probably true than not.
Premier Management Company
The management company hired by Solera to handle day-to-day operations of the community.
Project Documents
The set of governing documents for the community, defined as the CC&Rs, any supplemental declarations, the By-Laws, the R&Rs, and the Design Guidelines.
Respondent
The party against whom the petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents for the Solera Chandler Homeowners’ Association.
Tribunal
A term used in the documents to refer to the Arizona Office of Administrative Hearings (OAH), where the hearing was conducted.
Blog Post – 20F-H2020051-REL-RHG
A Homeowner Took on Her HOA with Over 300 Photos of Evidence. The Reason She Lost Is a Warning for Everyone.
Introduction: The Familiar Fight
It’s a scenario familiar to millions of Americans living in planned communities. You receive a violation notice for a minor infraction on your property, yet when you look at the common areas your HOA is responsible for, you see overgrown weeds, cracked sidewalks, and general disrepair. It feels deeply unfair. Why are homeowners held to a strict standard while the association itself seems to neglect its duties?
This exact frustration drove Debra K. Morin to take on her Solera Chandler Homeowners’ Association. Armed with over 300 photographs documenting every weed and crack, she was certain her case was airtight. But she lost. The reasons why her case failed are a stark warning for any homeowner, revealing a legal battle that hinged entirely on the community’s binding contract: the Covenants, Conditions, and Restrictions (CC&Rs).
——————————————————————————–
The 5 Surprising Lessons from One Homeowner’s HOA Lawsuit
1. The “Sole Judge” Clause: Your HOA’s Ultimate Defense
The single most critical factor in this case was a single clause buried in the HOA’s governing documents. Ms. Morin argued that the HOA must “maintain in good condition and repair at all times” the common areas, believing this was the same standard applied to homeowners. However, the HOA pointed to CC&R Article 7, Section 7.1, which designates the HOA Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas.
This clause proved to be an almost impenetrable defense. In essence, the legal standard for maintenance was not what a “reasonable person” would consider good repair, but whatever the Board, in its exclusive judgment, decided was appropriate. Even with extensive photo evidence, the case failed because the contract Ms. Morin agreed to when she bought her home gave the Board the ultimate discretion. The Administrative Law Judge’s decision made this crystal clear:
“While the CC&Rs allow an owner to bring to the Board a complaint, the CC&Rs specify that the Board is the sole judge regarding appropriate maintenance, repair and replacement of all AREAS.”
This “sole judge” clause is the cornerstone of a much broader power imbalance, one that is codified throughout the governing documents.
2. A Power Imbalance Is Written into the Rules
While Ms. Morin argued for an equal standard of responsibility, the legal documents revealed a clear and intentional power imbalance. CC&R Article 9, Section 9.5, granted the HOA the “exclusive right to construe and interpret the provisions of the [CC&Rs],” and stated that its interpretation is “final, conclusive and binding.”
This structure legally transforms the relationship from a partnership of equals into one of administrator and subject, where one party holds the power of final interpretation. The governing documents describe in detail how the HOA can levy penalties against an owner for violations, but they provide no equivalent process for an owner to penalize the HOA for its failures. The judge in the rehearing decision explicitly summarized this built-in hierarchy:
“Thus, it is clear, that pursuant to the governing documents, the Board’s authority is lifted above that of a homeowner.”
With the Board’s authority so clearly established, Ms. Morin’s mountain of evidence was about to run into a contractual brick wall.
3. An “Enormity of Evidence” Isn’t Always the Right Evidence
Ms. Morin presented a significant volume of evidence, starting with over 80 photographs in the first hearing and later referencing what she called an “enormity” of evidence totaling over 300 pictures of weeds, damaged sidewalks, and other maintenance issues.
The critical legal distinction the judge made was that the photographs documented the condition of the common areas, but they did not prove a violation of the governing documents. The legal question was not, “Are there weeds?” The question was, “Did the Board violate a contract that explicitly makes it the sole judge of maintenance?” This demonstrates that in a contract dispute, the quality of evidence is defined by its relevance to the specific contractual terms, not its sheer volume.
4. “At All Times” Doesn’t Mean “Instantly”
A key part of the homeowner’s argument was that the HOA was failing to “maintain in good condition and repair at all times” by allowing maintenance issues to persist for months. In response, the HOA detailed its operational reality. The HOA provided evidence of long-term capital plans, such as sealing street cracks every two years and major sidewalk repairs on a four-year cycle. Daily tasks, like weed control, were handled by landscape crews operating on a continuous, rotating schedule across the large community.
From a legal perspective, “at all times” is interpreted through the lens of operational reasonableness for a large entity, not as a guarantee of immediate perfection. For an organization managing a vast property, this standard is met through consistent processes and schedules, not by fixing every issue the moment it is reported.
5. Your Dissatisfaction Is Not a Lawsuit
At its heart, the case was driven by Ms. Morin’s deep frustration. The judge recognized that her petition stemmed from a core belief that the Board and its General Manager were unresponsive and providing poor oversight. While these feelings may have been valid, they were not legally actionable on their own. The judge’s decision in the rehearing drew a firm line between a homeowner’s frustration and a legal claim:
“However, a homeowner’s dissatisfaction with management is not within the purview of this process or the jurisdiction of the Tribunal.”
This highlights a common misconception: while feelings of poor customer service are valid, they are legally irrelevant unless they can be tied to a specific, provable breach of the governing documents or a violation of state law.
——————————————————————————–
Conclusion: Read Before You Sign
The primary lesson from this case is the absolute authority of a community’s governing documents. In any dispute, the specific, written words of the CC&Rs—the contract you sign when you buy your home—will almost always outweigh a homeowner’s subjective standards, sense of fairness, or even a mountain of photographic evidence.
This case serves as a powerful reminder that from a contractual standpoint, the rules are not always designed to be “fair,” but to be enforceable. It leaves every homeowner with a critical question:
Before you complain about your HOA, have you read the rulebook they’re playing by—and that you agreed to?
CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5
Outcome Summary
The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.
Key Issues & Findings
Unauthorized 2nd story addition
Respondents constructed a second-story Addition to their property without first obtaining approval from the Foothills Architectural Committee, violating the community governing documents.
Orders: Respondents’ appeal is dismissed, and Foothills is deemed the prevailing party with regard to its Petition.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_win
Cited:
CC&Rs Article 7, Section 7.3
CC&R Article 9, Section 9.3
CC&R Article 9, Section 9.4
CC&R Article 9, Section 9.5
Analytics Highlights
Topics: architectural review, cc&r violation, unapproved construction, second story addition, prevailing party
Additional Citations:
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. §§ 32-2199(2)
A.R.S. §§ 32-2199.01(D)
A.R.S. §§ 32-2199.02
A.R.S. § 32-2199.05
A.R.S. § 41-1092
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
21F-H2120004-REL Decision – 839537.pdf
Uploaded 2026-01-23T17:34:43 (135.4 KB)
Briefing Doc – 21F-H2120004-REL
Briefing Document: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
Executive Summary
This document synthesizes the findings and decision in the case of Foothills Club West Homeowners Association v. Subrahmanyam & Sudhakar Living Trust (No. 21F-H2120004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core dispute involved the construction of a second-story addition by homeowners (Respondents) without the prior approval of the Homeowners Association (Petitioner), a direct violation of the community’s governing documents.
The Administrative Law Judge (ALJ) found conclusively in favor of the Foothills Club West HOA. The evidence demonstrated that the Respondents not only began construction without seeking approval but continued the project even after receiving a formal denial from the HOA’s Architectural Committee. A subsequent agreement between the parties, wherein the Respondents would demolish the addition in exchange for a waiver of fines, was not honored by the Respondents. The ALJ dismissed the Respondents’ appeal and declared the HOA the prevailing party, validating its authority to enforce the community’s architectural standards as outlined in its Covenants, Conditions, and Restrictions (CC&Rs).
I. Case Overview
• Case Name: Foothills Club West Homeowners Association, Petitioner, v. Subrahmanyam & Sudhakar Living Trust, Respondent.
• Case Number: 21F-H2120004-REL
• Jurisdiction: Arizona Office of Administrative Hearings
• Administrative Law Judge: Kay Abramsohn
• Hearing Date: October 5, 2020
• Decision Date: November 27, 2020
• Central Issue: The petition filed by Foothills HOA on July 24, 2020, alleged that the Respondents constructed an unauthorized and unapproved second-story addition to their property. This action was alleged to be in violation of CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5.
II. Chronology of Key Events
The hearing record established the following undisputed sequence of events:
Oct. 2018
Respondents begin construction of the second-story addition.
Nov. 7, 2018
The City of Phoenix issues a stop-work order, noting a permit is required.
Nov. 7, 2018
Foothills HOA issues a violation notice to the Respondents.
Dec. 17, 2018
Respondents obtain a permit from the City of Phoenix.
Jan. 18, 2019 (approx.)
Respondents submit a request for approval to the Foothills Architectural Committee.
Jan. 18, 2019
Foothills HOA issues a penalty notice to the Respondents, with further notices issued monthly.
Feb. 22, 2019
Foothills HOA issues a formal denial of the application.
Mar. 15, 2019
The City of Phoenix gives final approval to the construction and issues a Certificate of Occupancy.
Post Feb. 2019
The parties reach an agreement for Respondents to demolish the addition in exchange for a waiver of fines.
July 24, 2020
Foothills HOA files its petition, noting Respondents have not complied with the demolition agreement.
Oct. 5, 2020
The administrative hearing is held.
Nov. 27, 2020
The Administrative Law Judge issues the final decision.
III. Arguments of the Parties
A. Petitioner: Foothills Club West HOA
• Violation of CC&Rs: The HOA argued that the Respondents violated CC&R Article 9, Section 9.3 by commencing construction without first obtaining approval from the Architectural Committee.
• Disregard for Denial: The HOA asserted that the Respondents completed the addition after receiving a formal denial of their application.
• Breach of Agreement: The HOA noted that the parties had reached a settlement agreement for demolition, which the Respondents failed to honor. The HOA requested that the Tribunal enforce this agreement.
• Jurisdictional Distinction: The HOA maintained that approval from the City of Phoenix was a separate matter and did not negate the requirement to obtain approval from the HOA as mandated by the governing documents.
B. Respondents: Subrahmanyam & Sudhakar Living Trust
• Initial Ignorance: Respondents claimed they were initially unaware of the HOA approval requirements.
• Attempted Compliance: They argued that once notified, they followed the association’s guidance, met with the Board, and sought approval.
• Vague Denial: Respondents stated they did not understand the meaning of the denial reason, “Fails aesthetics of surrounding community,” or how the addition specifically violated community rules.
• Lack of Due Process: They argued they did not receive a letter indicating an appeal process was available and therefore felt they had not received a final “denial.”
• Demolition Delay: While not disputing the existence of the demolition agreement, Respondents cited COVID-19 issues and safety concerns for their at-risk family as reasons for requesting more time.
• Final Appeal: At the hearing, Respondents reversed their position on the agreement and requested to be allowed to keep the addition.
IV. Analysis of Governing Documents
The decision centered on specific provisions within the Foothills Club West governing documents, which constitute the contract between the HOA and the homeowners.
• CC&R Article 9, Section 9.3 (Architectural Approval): This section was central to the case. It states in pertinent part:
• CC&R Article 9, Section 9.4 (Obligation to Obtain Approval): This provision explicitly sets forth a homeowner’s obligation to secure approval from the Architectural Committee.
• CC&R Article 9, Section 9.5 (Exterior Appearance): This section clarifies that while the HOA cannot limit interior remodeling, it retains jurisdiction over any changes that are “visible from outside such [home] … or affects the exterior appearance of such [home].”
• Amended Architectural Guidelines (2013): These guidelines reinforce the CC&Rs, specifying that a homeowner’s plans must be submitted for approval through the Architectural Committee on a case-by-case basis.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law provided a clear framework for the final order.
A. Burden of Proof
The ALJ established that in this proceeding, the petitioner (Foothills HOA) bore the burden of proving by a “preponderance of the evidence” that the Respondents had violated the governing documents. A preponderance of the evidence is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
B. Core Conclusion on Violations
The ALJ found that the HOA had successfully met its burden of proof. The central conclusion of law states:
“The Administrative Law Judge concludes that Foothills has demonstrated Respondents’ violation of the community governing documents, as stated in CC&R Article 9, Sections 9.3, 9.4, and 9.5, because Respondents began to construct a modification, the Addition, to their existing home prior to obtaining approval from Foothills Architectural Committee and, further, Respondents continued to construct the Addition despite receiving a denial of approval from Foothills Architectural Committee.”
This finding affirmed that the Respondents committed two distinct violations: starting work without approval and continuing work after being explicitly denied approval.
VI. Final Order and Implications
Based on the findings of fact and conclusions of law, the ALJ issued a decisive order.
• Order:
• Binding Nature: The decision notes that the order is binding on both parties unless a rehearing is requested. Pursuant to A.R.S. § 41-1092.09, a request for rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order.
Study Guide – 21F-H2120004-REL
Study Guide: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
This guide provides a detailed review of the Administrative Law Judge Decision in case No. 21F-H2120004-REL. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a comprehensive glossary of key terms found within the document.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.
1. Who are the Petitioner and Respondent in this case, and what is their relationship?
2. What was the single issue raised in the petition filed by Foothills Club West Homeowners Association?
3. According to the Petition, which specific articles and sections of the governing documents did the Respondents allegedly violate?
4. What action did the City of Phoenix take on November 7, 2018, regarding the Respondents’ construction project?
5. What reasons did the Foothills Architectural Committee provide for denying the Respondents’ application on February 22, 2019?
6. Prior to the hearing, what agreement did the parties reach in an attempt to resolve the dispute?
7. What was the Respondents’ primary argument for their actions and for their failure to comply with the association’s denial?
8. What is the legal standard of proof required in this case, and which party bore the burden of meeting it?
9. Explain the difference between the City of Phoenix’s approval and the Foothills Architectural Committee’s approval, as argued by the Petitioner.
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The Petitioner is the Foothills Club West Homeowners Association (“Foothills”). The Respondent is the Subrahmanyam & Sheila Sudhakar Living Trust. Their relationship is that of a homeowners’ association and a member homeowner residing within the planned community for 22 years.
2. The single issue raised was that the Respondents constructed an unauthorized and unapproved second-story addition to their property. The construction was completed even after the Foothills Architectural Committee had issued a denial of the project.
3. Foothills alleged that the Respondents violated the CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5. These articles pertain to the rights and obligations of the association and the architectural standards requiring prior approval for modifications.
4. On November 7, 2018, the City of Phoenix issued a stop-work order for the Respondents’ construction project. The order noted that the work being performed required a permit, which had not yet been obtained.
5. The Foothills Architectural Committee denied the application because it needed copies of the City permit, the plans were incomplete, and there was no documentation on the roof line or roofing materials. Furthermore, the denial stated that the project “Fails aesthetics of surrounding community.”
6. The parties came to an agreement wherein the Respondents would complete the demolition of the second-story addition. In exchange, Foothills agreed to waive the penalties that had been imposed on the Respondents for the violation.
7. The Respondents argued that they initially did not know what was required and that they cooperated with the association’s Board once notified. They claimed they did not understand what “Fails aesthetics” meant, did not receive a letter about an appeal process, and therefore did not feel they had received a final “denial.”
8. The legal standard of proof is a “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not. The Petitioner, Foothills, bore the burden of proving the Respondents’ violation by this standard.
9. Foothills argued that approval from the City of Phoenix and approval from the association’s Architectural Committee were two different and separate matters. Even though the Respondents eventually received a City permit and a Certificate of Occupancy, this did not override the CC&R requirement to first obtain approval from Foothills.
10. The Administrative Law Judge ordered that the Respondents’ appeal be dismissed. The Judge deemed Foothills the prevailing party with regard to its petition, finding that Foothills had demonstrated the Respondents’ violation of the community’s governing documents.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing evidence and support directly from the provided legal decision.
1. Analyze the arguments presented by both the Petitioner (Foothills) and the Respondents at the hearing. Discuss the key evidence and claims each party used to support their position and explain why the Administrative Law Judge ultimately found the Petitioner’s case more persuasive.
2. Explain the distinct roles and jurisdictions of the Homeowners Association’s Architectural Committee and the City of Phoenix regarding the Respondents’ construction project. Why was obtaining a City permit and a Certificate of Occupancy insufficient for the Respondents to proceed without violating the community’s governing documents?
3. Trace the procedural history of case No. 21F-H2120004-REL, from the filing of the initial petition to the final order. Discuss key filings, motions, and deadlines mentioned in the document, including the Respondents’ attempt to consolidate another case.
4. Discuss the significance of the “contract” between the parties, as defined in footnote 15. How do the CC&Rs and the amended Architectural Guidelines function as this contract, and which specific sections were central to the judge’s conclusion that a violation occurred?
5. Evaluate the Respondents’ attempt to justify their failure to demolish the addition as per their agreement with Foothills, citing COVID-19 issues. How did their request at the hearing to keep the addition conflict with their prior agreement, and what does this reveal about their position in the dispute?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over administrative hearings at the Office of Administrative Hearings and issues decisions.
Architectural Committee
A committee appointed by the Foothills HOA, as established by CC&R Article 9, with the authority to review, approve, or disapprove plans for construction, modifications, and additions to properties within the community.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These are the governing documents that form a binding contract between the homeowners association and the property owners, outlining their rights and obligations.
Disclosure
The formal process by which parties in a legal case provide evidence, exhibits, and information to each other before a hearing. The deadline for disclosure in this case was September 29, 2020.
Governing Documents
The set of rules for the planned community, including the CC&Rs and the amended Architectural Guidelines, which have the same force and effect as association rules.
Petitioner
The party who initiates a legal proceeding by filing a petition. In this case, the Foothills Club West Homeowners Association.
Petition
The formal document filed with the Arizona Department of Real Estate to initiate a hearing concerning violations of community governing documents. In this case, it was a “single-issue petition.”
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Subrahmanyam & Sheila Sudhakar Living Trust.
Tribunal
The Arizona Office of Administrative Hearings, the state agency authorized by statute to hear and decide contested matters referred to it, such as this dispute.
Blog Post – 21F-H2120004-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings concerning a dispute between the Foothills Club West Homeowners Association and the Subrahmanyam & Sudhakar Living Trust. The Petitioner, the Foothills Club West Homeowners Association, filed a petition alleging that the Respondents constructed an unauthorized second-story addition to their property in violation of the association’s governing documents, specifically the CC&Rs Article 9, Sections 9.3, 9.4, and 9.5. The Administrative Law Judge determined that the Respondents violated these community documents by beginning construction prior to obtaining approval from the Foothills Architectural Committee and continuing the work despite receiving a denial. The judge ultimately concluded that Foothills was the prevailing party and dismissed the Respondents’ appeal, effectively upholding the violation finding.
What are the specific governing document violations alleged and proven against the homeowners?
How did the legal and administrative process address the unauthorized construction dispute?
What was the final resolution ordered regarding the unapproved second-story home addition?
Based on 1 source
Case Participants
Petitioner Side
John Halk(HOA attorney) BROWN/OLCOTT, PLLC Represented Petitioner Foothills Club West Homeowners Association
Nathan Tennyson(HOA attorney) BROWN/OLCOTT, PLLC Counsel for Petitioner
Respondent Side
Mary T. Hone(Respondent attorney) Mary T. Hone, PLLC Counsel for Respondent Trustees Subrahmanyam & Sheila Sudhakar
Subrahmanyam Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Sheila Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
AHansen(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
djones(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
DGardner(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
ncano(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Additional Citations:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Video Overview
Audio Overview
Decision Documents
20F-H2020051-REL Decision – 816310.pdf
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20F-H2020051-REL Decision – 847175.pdf
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Briefing Doc – 20F-H2020051-REL
Briefing Document: Morin v. Solera Chandler Homeowners’ Association
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Rehearing Decision in the case of Debra K. Morin versus the Solera Chandler Homeowners’ Association, Inc. (Solera), dated January 8, 2021. The central dispute involved a homeowner’s allegation that the association failed to maintain its common areas in good condition and repair.
The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case, finding conclusively in favor of the Solera HOA. The decision rested on a critical provision within the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which designates the Solera Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas. This clause grants the Board exclusive discretion, superseding an individual homeowner’s opinion on the timing or quality of maintenance.
Despite the petitioner presenting extensive photographic evidence documenting various maintenance issues, the ALJ concluded that this evidence failed to prove a violation of the governing documents. The petitioner did not meet her burden of proving by a preponderance of the evidence that the Board had acted outside its granted authority. The ruling affirms that the authority of the Board is explicitly elevated above that of an individual homeowner in matters of common area maintenance under the controlling legal documents.
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I. Case Background and Procedural History
The case originates from a petition filed by Debra K. Morin, a four-year resident of the Solera community, against the Solera Chandler Homeowners’ Association. The matter was adjudicated by the Arizona Office of Administrative Hearings (Tribunal).
A. Initial Petition
On March 12, 2020, Ms. Morin filed a two-issue petition with the Arizona Department of Real Estate, alleging that Solera, its Board of Directors, and its management company (Premier) had violated numerous governing documents, including the Articles of Incorporation, By-Laws, CC&Rs, and Rules & Regulations (R&Rs).
• Issue #1: Alleged that Solera did not permit “direct communication from homeowners” and sought to have this “policy” rescinded.
• Issue #2: Alleged that Solera was not providing oversight to the General Manager in maintaining the “Areas of Association Responsibility” (AREAS) in “good condition and repair at all times.” Specific complaints included uncontrolled weeds and poor maintenance of the Community Center and other common areas.
B. Procedural Developments
• Motion to Dismiss: Solera filed a Motion to Dismiss, arguing the issues were outside the Department of Real Estate’s jurisdiction.
• Withdrawal of Issue #1: At a May 20, 2020 hearing, the Tribunal noted its jurisdiction did not extend to non-governing documents like the Board’s Code of Ethics. Consequently, Ms. Morin withdrew Issue #1. The Tribunal denied the Motion to Dismiss for the remaining “bare-bones” maintenance allegation in Issue #2.
• Initial Decision (August 19, 2020): Following the original hearing, the ALJ issued a decision concluding that Solera was the “sole judge” regarding maintenance of the AREAS and had not violated its governing documents. The petition was dismissed.
• Rehearing Request (September 24, 2020): Ms. Morin filed a request for rehearing, citing irregularities in the proceedings, misconduct by the prevailing party, and arguing the decision was arbitrary and capricious, particularly in its interpretation of CC&R Article 7, Section 7.1.
• Rehearing Granted and Conducted: The Commissioner of the Arizona Department of Real Estate granted the rehearing, which was conducted telephonically on December 16, 2020.
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II. Core Arguments of the Parties
The fundamental conflict centered on the interpretation of the maintenance standards outlined in the community’s CC&Rs.
A. Petitioner’s Position (Debra K. Morin)
Ms. Morin’s case was built on the principle of equal application of maintenance standards.
• Central Argument: The same maintenance standard requiring homeowners to keep their lots “in good condition and repair at all times” (per CC&R Article 7, Section 7.2) must be applied equally to Solera’s responsibility for the common AREAS (per CC&R Article 7, Section 7.1).
• Core Belief: Because homeowners are given no discretion regarding delays in maintenance, Solera should not be able to take months to address reported issues.
• Evidence Presented: The petitioner submitted extensive documentation, including over 80 photographs (referenced in the rehearing as “310 pictures”), emails, and other documents. This evidence was intended to show persistent maintenance failures, including:
◦ Uncontrolled weeds in granite rock locations
◦ Poor exterior condition of the Community Center
◦ Deficiencies in street asphalt, storm drains, sidewalks, and curbing
◦ Water pooling and intrusion issues
◦ Exposed landscaping lights and irrigation lines
◦ Unremoved tree stumps
B. Respondent’s Position (Solera HOA)
Solera’s defense relied entirely on the specific authority granted to its Board by the governing documents.
• Central Argument: The association met its responsibilities, and the petitioner’s subjective opinions about what, when, or how maintenance should be done are irrelevant.
• Dispositive Legal Provision: Solera consistently cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation: This provision grants the Board exclusive discretion and authority to determine the nature and timing of maintenance, insulating its decisions from a single homeowner’s critique.
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III. Analysis and Key Findings of the Administrative Law Judge
The Rehearing Decision provided a thorough review of the evidence and legal arguments, ultimately reinforcing the original ruling in favor of Solera.
A. The “Sole Judge” Clause and Board Authority
The ALJ’s conclusion hinged on the unambiguous language of the CC&Rs, which establishes a clear hierarchy of authority.
• CC&R Article 7, Section 7.1: This article was identified as the dispositive text. It states, in pertinent part: “the Board ‘shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS], but all [AREAS], and the Improvements located thereon, shall be maintained in good condition and repair at all times.'” The ALJ found that the “sole judge” provision grants the Board exclusive authority to determine how the “good condition and repair” standard is met.
• CC&R Article 9, Section 9.5: This section further strengthens the Board’s position by granting Solera the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with its interpretation being “final, conclusive and binding.”
• Conclusion on Authority: The ALJ concluded that these provisions clearly lift the Board’s authority above that of an individual homeowner in determining appropriate maintenance.
B. Rejection of the “Equal Standard” Argument
The petitioner’s primary argument for an equal, non-discretionary standard for both the HOA and homeowners was explicitly rejected.
• The ALJ found that the petitioner “failed to provide legal support for her argument that the same maintenance standard is required to be applied to the Board as it is applied to a homeowner.”
• The governing documents themselves create different levels of authority and obligation for the Board versus individual owners.
C. Evaluation of Evidence and Burden of Proof
• Burden of Proof: The decision reiterates that the petitioner bears the burden of proving a violation by a “preponderance of the evidence.”
• Photographic Evidence: The ALJ acknowledged reviewing all photographs from both hearings. The decision states that this evidence successfully documented “the existence, at those dates embedded in the photographs, of items that deal with maintenance and repairs in various locations of Solera AREAS.”
• Failure to Prove a Violation: Crucially, while the photos proved maintenance issues existed, they did not prove a violation of the CC&Rs. Because the Board is the “sole judge,” the existence of a weed or a cracked curb does not automatically constitute a breach of its duties, as the Board retains discretion over the timeline and method of repair.
D. Jurisdictional Limitations
The decision affirmed the Tribunal’s limited jurisdiction, noting that many of the petitioner’s underlying frustrations were not legally actionable in this venue.
• Not Actionable: A homeowner’s dissatisfaction with the Board, its management company, or the General Manager is “not within the purview of this process or the jurisdiction of the Tribunal.”
• Irrelevant Documents: Arguments based on City of Chandler standards, the landscaping contract with Integrated Landscape Management (ILM), or Premier’s General Manager job description were deemed irrelevant, as the Tribunal’s review is limited to the association’s governing documents and applicable state statutes.
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IV. Final Order and Conclusion
Based on an exhaustive review of the record from both the original hearing and the rehearing, the Administrative Law Judge reached a definitive conclusion.
• Final Finding: The petitioner failed to sustain her burden of proof to establish a violation by Solera of the governing documents. The ALJ concluded that Solera is in compliance with its governing documents, including CC&R Article 7, Section 7.1.
• Order:
◦ IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.
◦ The order was issued on January 8, 2021.
◦ As a decision issued after a rehearing, the order is binding on the parties. Any further appeal must be filed with the Superior Court within 35 days from the date of service.
Study Guide – 20F-H2020051-REL
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a comprehensive review of the administrative rehearing case No. 20F-H2020051-REL-RHG, between Petitioner Debra K. Morin and Respondent Solera Chandler Homeowners’ Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms derived from the case documents.
Short-Answer Quiz
Answer each of the following questions in 2-3 sentences based on the information provided in the case decision.
1. Who were the primary parties in this case, and who represented them at the telephonic hearing on December 16, 2020?
2. What were the two initial issues Petitioner Debra K. Morin raised in her petition filed on March 12, 2020?
3. Why did the Petitioner withdraw Issue #1 from her petition during the May 20, 2020 hearing?
4. What was the Petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. What type of evidence did the Petitioner primarily present to document the alleged maintenance failures in the Areas of Association Responsibility (AREAS)?
6. What specific clause in the CC&Rs did Solera (the Respondent) rely on to defend its actions and decisions regarding maintenance?
7. What were the primary reasons the Commissioner of the Arizona Department of Real Estate granted the Petitioner’s request for a rehearing?
8. How did the Administrative Law Judge rule on the relevance of non-governing documents, such as the City of Chandler ordinances and the Premier Management Company job description?
9. What is the legal standard of proof that a petitioner must meet in these proceedings, and how is it defined in the decision?
10. What was the final conclusion and order of the Administrative Law Judge in the Rehearing Decision issued on January 8, 2021?
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Answer Key
1. The primary parties were the Petitioner, Debra K. Morin, who represented herself, and the Respondent, Solera Chandler Homeowners’ Association (Solera). Solera was represented by Lydia Linsmeier, Esq.
2. Issue #1 alleged that Solera did not allow direct communication from homeowners. Issue #2 alleged that Solera, its Board, and its management company were not providing proper oversight to maintain the Areas of Association Responsibility (AREAS) in good condition and repair.
3. The Petitioner withdrew Issue #1 after the Tribunal ruled that the statutory parameters of its jurisdiction did not include the interpretation or application of a non-governing document like the Board’s Code of Ethics. The allegations regarding ethics and mismanagement based on this code were therefore removed from consideration.
4. The Petitioner’s central argument was that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that just as homeowners are required by CC&R Article 7, Section 7.2 to maintain their lots in good condition at all times, Solera must be held to the same standard for common AREAS under CC&R Article 7, Section 7.1.
5. The Petitioner presented an “enormity” of photographic evidence to document the maintenance issues. The decision notes she presented over eighty photographs at the original hearing and an additional “310 pictures” were mentioned in the rehearing, showing weeds, debris, exposed wiring, and other issues at various dates.
6. Solera relied on CC&R Article 7, Section 7.1, which states that the Solera Board of Directors “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Solera argued that the Petitioner’s subjective opinions on maintenance were therefore not relevant.
7. The rehearing was granted for reasons outlined in the Petitioner’s request, which claimed: irregularities in the proceedings, misconduct by the prevailing party, and that the original decision was arbitrary, capricious, an abuse of discretion, not supported by evidence, or contrary to law.
8. The Judge ruled that such documents were not relevant or justiciable. City standards were not under review, and the management company’s job description and landscape contract were not Solera governing documents, so they could not be used to prove a violation of the association’s governing documents.
9. The petitioner bears the burden of proving their case by a “preponderance of the evidence.” This is defined as proof that convinces the trier of fact that the contention is more probably true than not, and it represents the greater weight of evidence.
10. The Administrative Law Judge concluded that the Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents. The Judge found Solera to be the prevailing party, in compliance with CC&R Article 7, Section 7.1, and ordered that the Petitioner’s appeal be dismissed.
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Suggested Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the balance of power between a homeowner and an HOA as depicted in this case. Discuss how specific clauses in the CC&Rs, particularly Article 7 (Section 7.1) and Article 9 (Sections 9.5 and 9.9), grant authority to the Board and limit the recourse available to an individual owner within the association’s own framework.
2. Examine the role and limitations of evidence in this administrative hearing. Why was the Petitioner’s photographic evidence, despite its volume, ultimately insufficient to meet the burden of proof? Discuss the distinction made by the Tribunal between evidence of a maintenance issue and evidence of a violation of the governing documents.
3. The Petitioner argued for an equal application of the “maintenance standard” to both homeowners and the HOA, stating “[t]here must be equal consideration to have a valid contract.” Evaluate this argument in the context of the specific language found in the Solera CC&Rs. Is the concept of “equal consideration” legally applicable in the way the Petitioner suggests?
4. Discuss the jurisdiction of the Arizona Office of Administrative Hearings (the Tribunal) in HOA disputes as described in the decision. Explain why the Tribunal could rule on the maintenance of common areas but had to dismiss claims related to the Solera Code of Ethics, City of Chandler ordinances, and Premier Management’s internal documents.
5. Based on the findings of fact, trace the procedural journey of this case from the initial petition to the final rehearing order. Identify the key turning points, such as the Motion to Dismiss and the Order Granting Rehearing, and explain their impact on the scope and outcome of the dispute.
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
The judicial authority, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings, makes findings of fact, issues decisions, and conducts rehearings.
Areas of Association Responsibility (AREAS)
The common areas within the Solera community that the homeowners’ association is responsible for managing and maintaining. This includes landscaping, the Community Center exterior, street conditions, storm drains, sidewalks, walls, and curbing.
Articles of Incorporation
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit A.
By-Laws
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit B.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera at Springfield Lakes community. It outlines the rights and responsibilities of both the homeowners and the association.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by a party (in this case, Solera) asking for a petition or case to be dismissed on the grounds that the issues are outside the Department’s jurisdiction or that the requested relief cannot be granted as a matter of law.
Petitioner
The party who initiates a legal action or petition. In this case, Debra K. Morin, a homeowner in the Solera community.
Preponderance of the Evidence
The standard of proof required for a petitioner to win in these proceedings. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Premier Management Company (Premier)
The management company hired by the Solera Board of Directors to handle duties including the oversight of a General Manager.
Project Documents
Defined in CC&R Article 1, Section 1.37 as the CC&Rs, any supplements to the CC&Rs, the By-Laws, the Rules and Regulations (R&Rs), and the Design Guidelines.
Respondent
The party against whom a petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit D.
Tribunal
A term used to refer to the Arizona Office of Administrative Hearings (OAH), the body responsible for conducting administrative hearings for disputes referred by the Arizona Department of Real Estate.
Blog Post – 20F-H2020051-REL
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20F-H2020051-REL-RHG
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This document presents an Administrative Law Judge Rehearing Decision regarding a dispute between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The Petitioner initially filed a two-issue complaint with the Arizona Department of Real Estate alleging that the HOA had violated various governing documents, primarily concerning lack of direct homeowner communication and a failure to maintain Association Responsibility Areas (AREAS) in good condition. After the first issue was withdrawn due to jurisdictional limitations, the initial decision dismissed the petition, finding the HOA was the sole judge of appropriate maintenance under the Covenants, Conditions, and Restrictions (CC&Rs). This rehearing decision, granted due to claims of procedural irregularities and arbitrary findings, ultimately reaffirms the original dismissal, concluding that the Petitioner failed to meet the burden of proof to establish a violation of the governing documents.
Case Participants
Petitioner Side
Debra K. Morin(petitioner) Represented herself
Respondent Side
Lydia A. Perce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Solera Chandler Homeowners' Association
Denise Frazier(general manager/witness) Premier Management Company / Solera Chandler Homeowners' Association Solera's onsite general manager who testified
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge for both original and rehearing decisions
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate
Felicia Del Sol(administrative) Transmitted the original August 19, 2020 Decision
Petitioner MacLeod's challenge to the HOA's Amendment (Petition #19) was dismissed. The HOA's cross-petition (Petition #34) was partially affirmed, finding MacLeod in violation of the Amendment by living full-time in his hangar/home. The HOA (Mogollon Airpark, Inc.) was deemed the prevailing party in the cross-petitions, and each party was ordered to bear its own filing fee.
Why this result: Petitioner MacLeod failed to prove the Amendment was improperly adopted, and the HOA successfully proved MacLeod was in violation of the Amendment regarding full-time residency.
Key Issues & Findings
Challenge to the proper adoption of the October 18, 2018 Amendment to the Declaration (Petition #19)
Petitioner MacLeod alleged that the Amendment substantially altering residential usage in Tract Hangar/Homes was improperly adopted because it applied to fewer than all lots and thus required unanimous approval under A.R.S. § 33-1817(A)(2).
Orders: Petition #19 was dismissed because the Amendment was found to be properly adopted requiring 75% approval pursuant to the Declaration and A.R.S. § 33-1817(A)(1) [40, 44a].
Petitioner MacLeod's challenge to the HOA's Amendment (Petition #19) was dismissed. The HOA's cross-petition (Petition #34) was partially affirmed, finding MacLeod in violation of the Amendment by living full-time in his hangar/home. The HOA (Mogollon Airpark, Inc.) was deemed the prevailing party in the cross-petitions, and each party was ordered to bear its own filing fee.
Why this result: Petitioner MacLeod failed to prove the Amendment was improperly adopted, and the HOA successfully proved MacLeod was in violation of the Amendment regarding full-time residency.
Key Issues & Findings
Challenge to the proper adoption of the October 18, 2018 Amendment to the Declaration (Petition #19)
Petitioner MacLeod alleged that the Amendment substantially altering residential usage in Tract Hangar/Homes was improperly adopted because it applied to fewer than all lots and thus required unanimous approval under A.R.S. § 33-1817(A)(2).
Orders: Petition #19 was dismissed because the Amendment was found to be properly adopted requiring 75% approval pursuant to the Declaration and A.R.S. § 33-1817(A)(1) [40, 44a].
Administrative Law Judge Decision: MacLeod v. Mogollon Airpark, Inc.
Executive Summary
This briefing document outlines the findings and decision of an Administrative Law Judge (ALJ) in the cross-petitions between Magnus L.D. MacLeod and Mogollon Airpark, Inc. (MAP). The central dispute revolves around the validity of a 2018 Amendment to the community’s Declaration and MacLeod’s alleged violation of this Amendment by residing full-time in an aircraft hangar.
MacLeod (Petition #19) contended that the Amendment was invalid because it was not unanimously approved by all lot owners, as he argued was required by Arizona statute A.R.S. § 33-1817(A)(2) since it applied to fewer than all properties. MAP (Petition #34) argued the Amendment was properly adopted with the required 75% approval and that MacLeod was in violation by living in his Tract G hangar, which also allegedly failed to meet the minimum living space requirement.
The ALJ ruled decisively in favor of Mogollon Airpark, Inc., deeming it the prevailing party. The judge concluded that the Amendment was properly adopted under the 75% approval threshold outlined in the community’s Declaration and A.R.S. § 33-1817(A)(1), thereby dismissing MacLeod’s petition. On MAP’s petition, the ALJ found that MacLeod had indeed violated the Amendment by living full-time in the hangar, affirming that part of the petition. However, the ALJ dismissed MAP’s claim regarding the hangar’s living space size due to insufficient evidence. The final order dismisses Petition #19, partially affirms and partially dismisses Petition #34, and orders each party to bear their own filing fees.
Case Overview
Case Numbers
No. 20F-H2019019-REL (Root), No. 20F-H2019034-REL
Parties
Petitioner: Magnus L.D. MacLeod Respondent: Mogollon Airpark, Inc. (MAP)
Jurisdiction
Arizona Department of Real Estate, Office of Administrative Hearings
Administrative Law Judge
Kay Abramsohn
Hearing Date
June 19, 2020
Decision Date
July 28, 2020
The Cross-Petitions
The legal conflict originated from two separate petitions filed with the Arizona Department of Real Estate.
Petition #19: Filed by Magnus L.D. MacLeod
• Filing Date: On or about October 15, 2019.
• Core Allegation: MAP violated Arizona statute A.R.S. § 33-1817(A)(1), (A)(2)(a), and (A)(2)(b) in its adoption of the October 18, 2018 “Amendment to Declaration of Establishment of Conditions, Reservations and Restrictions…”
• MacLeod’s Argument: The Amendment could not be enforced because it lacked the affirmative vote or written consent of all owners of the property to which it applied. He specifically noted that three of the nine Real Property Tracts (Tract G, Tract H, and Tract M) did not provide an affirmative vote and that he personally did not sign it. He argued the amendment required unanimous approval.
Petition #34: Filed by Mogollon Airpark, Inc. (MAP)
• Filing Date: On or about December 16, 2019.
• Core Allegations:
1. Violation of the Amendment: MacLeod was in continued violation of the properly adopted Amendment by living full-time in his Tract G aircraft storage hangar.
2. Violation of Square Footage Requirement: MAP alleged, upon information and belief, that the living space in the hangar was “only 549 square feet,” which violated the Declaration’s requirement that structures for living purposes contain no less than 1,200 square feet.
• Requested Relief: MAP sought enforcement of the Declaration and Amendment, including injunctive relief to compel MacLeod’s compliance, and an award of its attorney’s fees and costs.
Analysis of the Disputed Amendment
The conflict centers on an amendment recorded on October 18, 2018. This amendment introduced several significant changes to the community’s governing documents.
Key Provisions of the Amendment
• Creates Two Lot Categories: The Amendment establishes “Residential lots” (lots #178 through #213) and “Hangar Tracts” (Tracts E through M).
• Regulates Hangar Use: It designates Tracts E through M for the purpose of “aircraft storage only.”
• Restricts Occupancy: While guest quarters may be constructed within a hangar, they are for “temporary living only.” “Temporary” is explicitly defined as “not longer than four months per calendar year.” An owner can request an extension in special circumstances.
• Maintains Living Space Requirement: It affirms that any single-family structure or combination hangar/house must have a living area of “not less than 1,200 square feet.”
• Adds Taxiway Access: The Amendment adds Lot 213 to the list of properties authorized to use the aircraft taxiway. This change was necessitated by a fence MacLeod had erected that blocked the Lot 213 owner’s access.
MacLeod’s Objections to the Amendment
In his petition, MacLeod argued the Amendment fundamentally and unreasonably altered the original covenants:
• It “substantially alters” the covenants for Tract Hangar/Homes by imposing the new four-month temporary living limit where unrestricted usage was previously allowed.
• It replaced the allowance for “Guest Homes with Kitchens” with “Guest Quarters without Kitchens,” impacting Tract G.
• It created a “large burden upon me to buy or build an additional home that I do not want and do not need.”
Background and History of the Dispute
• Property Acquisition: MacLeod purchased Tract G from his brother, Pat MacLeod, in February 2017 with the stated expectation of living in the hangar/home full-time.
• Occupancy: After acquiring the property, MacLeod made interior improvements and began living full-time in the aircraft hangar.
• Conflict Origin: The issue of MacLeod’s full-time residency first arose in May 2017 when he requested to build a group home for disabled veterans, a request that drew opposition from other lot owners.
• Initial Violation Notice: On September 18, 2017, MAP’s Architectural Committee sent MacLeod a letter notifying him that living full-time in a hangar intended for aircraft storage was a violation and requested he vacate within 60 days.
• Formal Non-Compliance Notices & Fines:
◦ December 29, 2018: MAP issued a “First Notice of Non-Compliance,” imposing a $100 fine.
◦ April 29, 2019: MAP issued a “Second Notice: Non-Compliance,” imposing an additional $200 fine if the violation was not remedied.
Legal Framework and Adjudicated Issues
The central legal question was the standard of approval required to pass the Amendment. The parties stipulated that the core dispute was whether a 75% approval or a unanimous approval was necessary.
Stipulated Fact #11
The parties agreed to the following crucial point, which narrowed the scope of the legal argument:
“The AMENDMENT contains at least the required minimum signatures and authorizations from the Lot Owners in Unit IVB to adopt the AMENDMENT, provided that unanimous approval of all affected property owners was not required.”
Conflicting Legal Standards
• Declaration Requirement (75% Rule): The original Declaration states it can be amended “by an instrument in writing, executed and acknowledged by the owners of not less than three-fourths of the lots in said subdivision…”
• Arizona Statute (Unanimous Rule): A.R.S. § 33-1817(A)(2) requires unanimous “affirmative vote or written consent of all of the owners of the lots or property to which the amendment applies” if the amendment “apply to fewer than all of the lots or less than all of the property that is bound by the Declaration.”
Parties’ Core Arguments
• MacLeod’s Position: The Amendment required unanimous approval under A.R.S. § 33-1817(A)(2) because it applied to “fewer than all the lots,” specifically pointing out that Tract B (a common area) was not included.
• MAP’s Position: The 75% rule under A.R.S. § 33-1817(A)(1) was the applicable standard. MAP argued that Tract B was a common area not subject to the Declaration’s conditions, so its exclusion from an amendment concerning residential use was irrelevant and did not trigger the unanimity requirement.
Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions systematically addressed each petition.
Ruling on Petition #19 (Amendment Validity)
• Conclusion: The Amendment was properly adopted.
• Rationale: The ALJ concluded that the 75% approval threshold, as specified in the Declaration and permitted by A.R.S. § 33-1817(A)(1), was the correct standard. Because the parties stipulated that the 75% threshold had been met, MAP was not in violation of the statute.
• Outcome: Petition #19 was dismissed.
Ruling on Petition #34 (MacLeod’s Violations)
• Conclusion on Full-Time Occupancy: MacLeod was in violation of the Amendment by living full-time in the Tract G Hangar/Home.
• Rationale: MacLeod acknowledged living there full-time. His testimony regarding when he ceased this practice was found to be “widely inconsistent,” and the ALJ could not conclude that the violation had stopped by the time MAP filed its petition.
• Outcome: This allegation in Petition #34 was affirmed.
• Conclusion on Living Space Requirement: MAP failed to prove its allegation that the living space was less than the required 1,200 square feet.
• Rationale: MAP did not clearly document or otherwise prove its claim that the living space was only 549 square feet. MacLeod, in contrast, cited a 2007 architectural committee sign-off indicating 1,656 square feet.
• Outcome: This allegation in Petition #34 was dismissed.
• Conclusion on Injunctive Relief: The Tribunal lacked the authority to grant the requested relief.
• Rationale: MAP “cited no statutory authority of this Tribunal with regard to ‘enforcement’ of a homeowner’s association governing documents or with regard to any injunctive relief.”
Final Order
1. Prevailing Party: Mogollon Airpark, Inc. (MAP) is deemed the prevailing party in the cross-petitions.
2. Petition #19 (MacLeod v. MAP): Dismissed.
3. Petition #34 (MAP v. MacLeod):
◦ Partially affirmed as to the allegation of MacLeod living full-time in the Tract G Hangar/Home in violation of the Amendment.
◦ Partially dismissed as to the allegation regarding the amount of living space within the hangar.
4. Filing Fees: Each party shall bear their own filing fee.
Study Guide – 20F-H2019019-REL
Study Guide: MacLeod v. Mogollon Airpark, Inc.
Short-Answer Quiz
1. What were the two primary allegations made by Mogollon Airpark, Inc. (MAP) in its petition (Petition #34) against Magnus L.D. MacLeod?
2. What was the core argument presented by Magnus L.D. MacLeod in his petition (Petition #19) regarding the October 18, 2018 Amendment?
3. According to the original Declaration, what was the minimum approval threshold required to amend it?
4. How did the Amendment of October 18, 2018 change the rules regarding residency in Hangar Tracts like Tract G?
5. What was the central legal question that the parties stipulated to regarding the adoption of the Amendment?
6. Describe the two notices that MAP issued to MacLeod prior to filing its petition.
7. What argument did MacLeod make regarding A.R.S. § 33-1817(A)(2) and why he believed the Amendment required unanimous approval?
8. Why was MAP’s allegation regarding the living space in MacLeod’s Tract G hangar (that it was only 549 sq. ft.) dismissed by the Administrative Law Judge?
9. What was MacLeod’s testimony regarding his occupancy of the Tract G hangar, and how did the Administrative Law Judge view this testimony?
10. What was the final order of the Administrative Law Judge regarding Petition #19 and Petition #34, and which party was deemed the prevailing party?
Answer Key
1. In Petition #34, MAP first alleged that MacLeod was in continued violation of the Amendment by living full-time in his Tract G aircraft storage hangar. Second, MAP requested enforcement of the Declaration and Amendment, seeking injunctive relief and an award of its attorney’s fees and costs.
2. MacLeod’s petition alleged that the Amendment was unenforceable because it was not properly adopted pursuant to A.R.S. § 33-1817. He argued it did not receive the affirmative vote or written consent of all owners of the property to which the amendment applied, specifically noting that owners of three of the nine affected tracts (G, H, and M) did not consent.
3. The original Declaration stipulated that it could be amended by “an instrument in writing, executed and acknowledged by the owners of not less than three-fourths of the lots in said subdivision.” This represents a 75% approval threshold.
4. The Amendment established that guest quarters in aircraft storage hangars (Tracts E through M) were for “temporary living only,” which was defined as “not longer than four months per calendar year.” It also specified that such quarters could not be used as a permanent residence.
5. The parties stipulated that the central dispute was whether the Amendment required 75% approval from lot owners as specified in the Declaration, or if it required unanimous approval from all affected property owners pursuant to A.R.S. § 33-1817(A)(2).
6. On December 29, 2018, MAP issued a “First Notice of Non-Compliance” with a $100 fine for living full-time in the hangar. On April 29, 2019, MAP issued a “Second Notice: Non-Compliance,” imposing an additional $200 fine if the violation was not remedied.
7. MacLeod argued that pursuant to A.R.S. § 33-1817(A)(2), unanimous approval was required because the Amendment applied to fewer than all the lots bound by the Declaration. He specifically pointed out that Tract B, a common area, was not included in the Amendment.
8. The Administrative Law Judge dismissed this part of MAP’s petition because MAP failed to clearly document or prove its allegation. The judge concluded that MAP did not sufficiently demonstrate that the living space within the Tract G Hangar/Home was less than the required 1,200 square feet.
9. MacLeod gave widely inconsistent dates for his full-time occupancy of the hangar and testified that he had moved to Concho in January 2019. The Administrative Law Judge found his testimony inconsistent and could not conclude that MacLeod had stopped living in the hangar at the time Petition #34 was filed.
10. The judge ordered that MacLeod’s Petition #19 be dismissed entirely. The judge partially dismissed MAP’s Petition #34 regarding the living space allegation but affirmed the allegation that MacLeod was living in the hangar in violation of the Amendment. MAP was deemed the prevailing party in the cross-petitions.
Essay Questions
1. Analyze the conflicting interpretations of A.R.S. § 33-1817 presented by Magnus L.D. MacLeod and Mogollon Airpark, Inc. Explain why the Administrative Law Judge ultimately sided with MAP’s interpretation that A.R.S. § 33-1817(A)(1) was the applicable statute.
2. Trace the timeline of the dispute, starting with MacLeod’s purchase of Tract G and his proposal for a group home. Discuss how the actions and reactions of both parties escalated the conflict, leading to the filing of cross-petitions with the Department of Real Estate.
3. Evaluate the evidence presented by both parties. How did the parties’ joint stipulation of facts narrow the central legal issue? Discuss the impact of MacLeod’s inconsistent testimony on the judge’s final decision regarding his residency.
4. MacLeod argued that MAP had waived its right to enforce the Amendment due to “longstanding and widespread utilization of Tract Hanger/Homes as full-time residences.” Although the Judge did not address this argument due to jurisdictional limits, construct an argument for or against this claim based on the facts available in the decision.
5. Discuss the scope and limitations of the Administrative Law Judge’s authority in this case. Why was the Judge able to rule on the validity of the Amendment’s adoption and MacLeod’s violation, but not grant MAP’s request for injunctive relief and enforcement?
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The judicial authority, Kay Abramsohn, who presided over the hearing and issued the decision in this case.
A.R.S. § 33-1817
Arizona Revised Statute governing the amendment of a planned community’s Declaration. Subsection (A)(1) allows amendment by the vote specified in the Declaration, while (A)(2) requires unanimous consent of affected owners if the amendment applies to fewer than all lots.
Amendment
The “Amendment to Declaration of Establishment of Conditions, Reservations and Restrictions…” recorded on October 18, 2018. It created categories for Residential and Hangar lots and restricted hangar occupancy to temporary living of no more than four months per year.
A colloquial acronym used by the Petitioner to refer to the original “Declaration of Establishment of Conditions, Reservations and Restrictions and Mutual and Reciprocal Covenants and Liens Running with the Land.”
Declaration
The original governing document for Mogollon Airpark, Inc., establishing conditions, reservations, and restrictions for the properties. It required a three-fourths (75%) vote of lot owners to be amended.
Hangar Tracts
Tracts E through M, inclusive, as designated by the Amendment for the primary purpose of aircraft storage, though guest quarters for temporary living are permitted.
Magnus L.D. MacLeod
The Petitioner in Petition #19 and Respondent in Petition #34. He is the owner of Tract G and resided in the hangar on that property.
Mogollon Airpark, Inc. (MAP)
The Respondent in Petition #19 and Petitioner in Petition #34. It is the planned community association responsible for administering the Declaration.
Petition #19
The petition filed by Magnus L.D. MacLeod on October 15, 2019, alleging MAP improperly adopted the Amendment in violation of Arizona statute.
Petition #34
The petition filed by Mogollon Airpark, Inc. on December 16, 2019, alleging MacLeod was violating the Amendment by living full-time in his hangar.
Preponderance of the evidence
The standard of proof required in the hearing, defined as evidence that is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Residential Lots
Lots numbered 178 through 213, inclusive, as categorized by the Amendment.
Tract G
An aircraft storage hangar lot in Unit 4B owned by Magnus L.D. MacLeod, which was the central property in the dispute.
Unit 4B
The specific subdivision within Mogollon Airpark subject to the Declaration and Amendment. It includes Lots 178-213 and Tracts B, E, F, G, H, I, J, K, L, and M.
Blog Post – 20F-H2019019-REL
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20F-H2019019-REL
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This administrative law judge decision concerns cross-petitions filed by Magnus L.D. MacLeod and Mogollon Airpark, Inc. (MAP) regarding disputes within a planned community association in Arizona. MacLeod’s petition challenged the validity of an amendment to the community’s governing documents (CC&Rs), arguing it was improperly adopted and unreasonably altered prior usage rights for hangar/homes, specifically his Tract G property. MAP’s petition alleged that MacLeod was in continued violation of the amendment by living full-time in his aircraft storage hangar and requested injunctive relief to compel compliance. The judge ruled to dismiss MacLeod’s petition, finding the amendment was properly adopted, and partially affirmed MAP’s petition, concluding that MacLeod had violated the amendment by residing full-time in the hangar. Ultimately, MAP was deemed the prevailing party in the proceedings.
What were the central legal issues and findings in this property dispute case?
How did the contested amendment change the community’s declaration and rules?
What were the core arguments and outcomes for each party involved in this hearing?
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Case Participants
Petitioner Side
Jeffrey M. Proper(attorney) JEFFREY M. PROPER, PLLC Counsel for Magnus L.D. MacLeod
Respondent Side
Gregory A. Stein(attorney) Carpenter, Hazlewood, Delgado & Bolen LLP Counsel for Mogollon Airpark, Inc.
Craig Albright(board member) MAP Board of Directors Then President of the MAP Board of Directors
Neutral Parties
Kay Abramsohn(ALJ)
Judy Lowe(commissioner) Arizona Department of Real Estate
Other Participants
Magnus L.D. MacLeod(party) Petitioner in 20F-H2019019-REL and Respondent in 20F-H2019034-REL
Pat MacLeod(HOA president) HOA Brother of Petitioner; previous owner of Tract G; appeared to be HOA President around 2017
