The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.
Key Issues & Findings
Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.
Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.
Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.
Key Issues & Findings
Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.
Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.
Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.
Key Issues & Findings
Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.
Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.
Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.
Key Issues & Findings
Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.
Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.
Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.
Key Issues & Findings
Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.
Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.
Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
The Administrative Law Judge denied the Petition, finding that Petitioners failed to sustain their burden of proof that the Association violated state statute or community documents. The Association's Architectural Review Committee (ARC) refusal to approve the wall modification request was deemed reasonable because Petitioners failed to provide the supplemental information requested by the ARC.
Why this result: The record did not establish violation(s) of ARIZ. REV. STAT. § 33-1817(B)(3) or CC&Rs Article VII, Section 2 by a preponderance of the evidence. Petitioners did not provide sufficient and/or requisite information necessary for the ARC to make a reasonably objective determination, nor did they attempt to cure the deficient application.
Key Issues & Findings
Arbitrary and capricious denial of architectural request to move garage-side yard block wall and install a double-wide gate.
Petitioners alleged the Association (ARC) arbitrarily and capriciously rejected their request to move their garage-side yard wall eight (8) feet forward on their property, using the same materials as the existing wall, except replacing the single-wide gate with a double-wide gate previously approved by Respondent.
This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.
What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?
Thursday, February 12
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This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.
What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?
Thursday, February 12
Save to note
Today • 11:01 AM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Arthur Fisenko(petitioner) Testified on behalf of Petitioners
Viktoriya Tkach-Fisenko(petitioner)
Laurence Stevens(petitioner attorney) Stevens & Van Cott, PLLC
Respondent Side
Jamie Palfai(HOA attorney) O’Hagan Meyer LLC
Samuel Truett(witness) Bellvue Homeowners Association Witness for Bellvue Homeowners Association
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.
Why this result: Petitioner did not sustain the burden of proof (preponderance of the evidence) on the Bylaws violation because the condition precedent (requesting or holding a special meeting) had not occurred, rendering the issue unripe. The statutory violations cited were inapplicable to the Association.
Key Issues & Findings
Whether Foothills Townhomes Association, Inc. violated Community Bylaws 3.03 and ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D).
Petitioner alleged the Association violated Community Bylaws 3.03 when it drafted and posted a letter directed to Petitioner on its online platform, in response to private correspondence (a draft special meeting request) that had not yet been submitted to the Board, which Petitioner perceived as an attempt to dismantle a platform for discussion and retaliate against her.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Community Bylaws 3.03
ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)
Analytics Highlights
Topics: HOA Dispute, Planned Community, Bylaws Violation, Jurisdiction, Unripe Issue, Special Meeting, Filing Fee Paid
Additional Citations:
ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Community Bylaws 3.03
Video Overview
Audio Overview
Decision Documents
21F-H2121048-REL Decision – 906190.pdf
Uploaded 2026-01-23T17:37:43 (117.4 KB)
Questions
Question
If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?
Short Answer
No. The tribunal is limited to the specific issue paid for and filed.
Detailed Answer
If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
procedure
jurisdiction
filing fees
Question
What happens if I cite Condominium statutes in a dispute regarding a Planned Community?
Short Answer
The claims will likely be dismissed as moot or inapplicable.
Detailed Answer
Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.
Alj Quote
However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.
Legal Basis
ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16
Topic Tags
legal standards
statutes
planned communities
Question
Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?
Short Answer
No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.
Detailed Answer
While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.
Alj Quote
Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.
Legal Basis
Bylaws Section 3.03
Topic Tags
privacy
bylaws
communications
Question
Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?
Short Answer
No. The Department's jurisdiction is limited to violations of community documents and specific statutes.
Detailed Answer
The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.
Alj Quote
Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…
Legal Basis
ARIZ. REV. STAT. §§ 32-2102, 32-2199
Topic Tags
jurisdiction
constitutional rights
adre authority
Question
Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?
Short Answer
No. The issue is considered 'unripe' if no meeting was actually requested or held.
Detailed Answer
A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.
Alj Quote
No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.
Legal Basis
ripeness doctrine
Topic Tags
meetings
procedural requirements
violations
Question
What is the standard of proof required for a homeowner to win an administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
Are the CC&Rs considered a legal contract between me and the HOA?
Short Answer
Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.
Detailed Answer
When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.
Legal Basis
Contract Law Principles
Topic Tags
CC&Rs
contracts
enforcement
Case
Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date
2021-08-23
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?
Short Answer
No. The tribunal is limited to the specific issue paid for and filed.
Detailed Answer
If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
procedure
jurisdiction
filing fees
Question
What happens if I cite Condominium statutes in a dispute regarding a Planned Community?
Short Answer
The claims will likely be dismissed as moot or inapplicable.
Detailed Answer
Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.
Alj Quote
However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.
Legal Basis
ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16
Topic Tags
legal standards
statutes
planned communities
Question
Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?
Short Answer
No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.
Detailed Answer
While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.
Alj Quote
Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.
Legal Basis
Bylaws Section 3.03
Topic Tags
privacy
bylaws
communications
Question
Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?
Short Answer
No. The Department's jurisdiction is limited to violations of community documents and specific statutes.
Detailed Answer
The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.
Alj Quote
Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…
Legal Basis
ARIZ. REV. STAT. §§ 32-2102, 32-2199
Topic Tags
jurisdiction
constitutional rights
adre authority
Question
Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?
Short Answer
No. The issue is considered 'unripe' if no meeting was actually requested or held.
Detailed Answer
A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.
Alj Quote
No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.
Legal Basis
ripeness doctrine
Topic Tags
meetings
procedural requirements
violations
Question
What is the standard of proof required for a homeowner to win an administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
Are the CC&Rs considered a legal contract between me and the HOA?
Short Answer
Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.
Detailed Answer
When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.
Legal Basis
Contract Law Principles
Topic Tags
CC&Rs
contracts
enforcement
Case
Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
ARIZ. REV. STAT. § 33-1805; Association Bylaws Article 11.3
Outcome Summary
The Administrative Law Judge denied the petition in its entirety, concluding that the Petitioner failed to meet the burden of proof required to show that the El Rio Community Association violated statutory or community document requirements regarding access to records.
Why this result: Petitioner failed to prove the alleged violations by a preponderance of the evidence.
Key Issues & Findings
Failure to fulfill a records request
Petitioner, a member and Board Director, requested to inspect Association books and records on March 30, 2021. Petitioner alleged the Association failed to completely fulfill the request. The ALJ determined that Petitioner failed to meet the burden of proof to demonstrate a violation of the governing statute or bylaws.
Orders: Petitioner's petition and request to levy a civil penalty against Respondent were denied. Respondent was not ordered to reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1805
Association Bylaws Article 11.3
Analytics Highlights
Topics: Records Request, HOA Bylaws, A.R.S. 33-1805
Additional Citations:
ARIZ. REV. STAT. § 33-1805
Association Bylaws Article 11.3
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
21F-H2121053-REL Decision – 904187.pdf
Uploaded 2026-01-23T17:38:10 (114.1 KB)
Questions
Question
How long does my HOA have to fulfill a request to examine records?
Short Answer
The HOA has ten business days to fulfill a request for examination.
Detailed Answer
According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
timelines
HOA obligations
Question
Can the HOA charge me a fee to simply look at the books and records?
Short Answer
No, the HOA cannot charge a member for making material available for review.
Detailed Answer
State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
homeowner rights
Question
How much can the HOA charge me if I want copies of the records?
Short Answer
The HOA may charge up to fifteen cents per page for copies.
Detailed Answer
While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
copies
Question
Is the HOA allowed to withhold certain records from me?
Short Answer
Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.
Detailed Answer
The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
records request
exclusions
privacy
Question
Can I see records regarding complaints against specific HOA employees?
Short Answer
No, records regarding specific complaints against individual employees can be withheld.
Detailed Answer
The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.
Alj Quote
Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].
Legal Basis
A.R.S. § 33-1805(B)(5)
Topic Tags
records request
employees
privacy
Question
What standard of proof do I need to meet to win a dispute hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Conclusion of Law 3
Topic Tags
hearing procedure
burden of proof
legal standards
Question
If I believe documents are missing from my request, is my belief enough to prove a violation?
Short Answer
No, you must present credible evidence that the specific undisclosed documents actually exist.
Detailed Answer
Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.
Alj Quote
Petitioner presented no credible evidence that documents existed which were not disclosed.
Legal Basis
Findings of Fact 18
Topic Tags
evidence
records request
burden of proof
Question
Does an HOA Director have different inspection rights than a regular homeowner?
Short Answer
Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.
Detailed Answer
Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.
Alj Quote
Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.
Legal Basis
Association Bylaws Article 11.3
Topic Tags
board members
directors
inspection rights
Case
Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
How long does my HOA have to fulfill a request to examine records?
Short Answer
The HOA has ten business days to fulfill a request for examination.
Detailed Answer
According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
timelines
HOA obligations
Question
Can the HOA charge me a fee to simply look at the books and records?
Short Answer
No, the HOA cannot charge a member for making material available for review.
Detailed Answer
State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
homeowner rights
Question
How much can the HOA charge me if I want copies of the records?
Short Answer
The HOA may charge up to fifteen cents per page for copies.
Detailed Answer
While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
copies
Question
Is the HOA allowed to withhold certain records from me?
Short Answer
Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.
Detailed Answer
The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
records request
exclusions
privacy
Question
Can I see records regarding complaints against specific HOA employees?
Short Answer
No, records regarding specific complaints against individual employees can be withheld.
Detailed Answer
The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.
Alj Quote
Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].
Legal Basis
A.R.S. § 33-1805(B)(5)
Topic Tags
records request
employees
privacy
Question
What standard of proof do I need to meet to win a dispute hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Conclusion of Law 3
Topic Tags
hearing procedure
burden of proof
legal standards
Question
If I believe documents are missing from my request, is my belief enough to prove a violation?
Short Answer
No, you must present credible evidence that the specific undisclosed documents actually exist.
Detailed Answer
Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.
Alj Quote
Petitioner presented no credible evidence that documents existed which were not disclosed.
Legal Basis
Findings of Fact 18
Topic Tags
evidence
records request
burden of proof
Question
Does an HOA Director have different inspection rights than a regular homeowner?
Short Answer
Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.
Detailed Answer
Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.
Alj Quote
Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.
Legal Basis
Association Bylaws Article 11.3
Topic Tags
board members
directors
inspection rights
Case
Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael E Palacios(petitioner) Property owner and member of the Association; was appointed to the Board,
Respondent Side
Quinten T. Cupps(HOA attorney) Represented El Rio Community Association
Denise Ferreira(property manager, witness) D & E Management Owns D & E Management and was the manager for the Association
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The final decision affirmed the denial of Issues 1, 2, and 3, and the granting of Issue 4. The Association was found to have violated ARIZ. REV. STAT. § 33-1805 for failing to provide complete records in a timely manner, resulting in the reimbursement of 1/4 of the filing fee.
Why this result: Petitioners failed to sustain the burden of proof regarding alleged violations of CC&Rs Section 5, Architectural Design Guidelines Section 4.0, and A.R.S. § 33-1804(A), (D), and (E).
Key Issues & Findings
Alleged violation of CC&Rs Section 5
Petitioners alleged that the HOA violated the Covenants, Conditions and Restrictions (CC&Rs), Section 5, by allowing construction on Lot 7 without prior ARC approval of required documents.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
CC&Rs Section 5
Alleged violation of Community Agricultural Design Guidelines Section 4.0
Petitioners alleged that the HOA violated the Architectural Design Guidelines, Section 4.0, by failing to require the required $5,000.00 Construction Compliance Deposit for Lot 7.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Architectural Design Guidelines Section 4.0
ARIZ. REV. STAT. § 10-3821
Alleged violation of A.R.S. § 33-1804(A), (D), and (E)
Petitioners alleged that the Board conducted an unnoticed closed meeting in violation of Arizona open meeting statutes.
Orders: Petition denied.
Filing fee: $125.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 33-1804(E)
ARIZ. REV. STAT § 10-3821
Alleged violation of A.R.S. § 33-1805
Petitioners alleged that the HOA failed to timely and completely fulfill a records request submitted on June 04, 2020, specifically by failing to provide missing email attachments.
Orders: Respondent must reimburse 1/4 of Petitioners' filing fee ($125.00). Respondent must henceforth comply with A.R.S. § 33-1805 and provide the missing email attachments within 10-business days.
Filing fee: $125.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1805
Analytics Highlights
Topics: HOA Statute Violation, Records Request, Filing Fee Refund, Architectural Review, Open Meetings
Briefing Document: Burnes v. Saguaro Crest Homeowners Association
Executive Summary
This document synthesizes the findings and legal proceedings in the case of Clifford (Norm) and Maria Burnes (“Petitioners”) versus the Saguaro Crest Homeowners Association, Inc. (“Respondent”). The dispute, adjudicated by the Arizona Office of Administrative Hearings (OAH), centered on a four-issue petition filed by the Burnes on July 17, 2020. The allegations concerned construction on a neighboring property (Lot 7), specifically violations of architectural rules, failure to collect a construction deposit, violations of open meeting laws, and failure to fulfill a records request.
The Administrative Law Judge (ALJ) found in favor of the Respondent on the first three issues, concluding that the association had not violated its Covenants, Conditions, and Restrictions (CC&Rs) regarding architectural control, had properly honored a waiver for the construction deposit, and had not violated state open meeting laws. However, the ALJ found that the Respondent did violate Arizona Revised Statute § 33-1805 by failing to provide copies of requested records within the statutory 10-day deadline and by providing an incomplete set of documents.
Following the initial decision, the Petitioners were granted a rehearing on the grounds of newly discovered evidence and an allegedly arbitrary decision. The rehearing affirmed the original findings, as the Petitioners conceded they possessed no new evidence that could not have been produced at the original hearing.
The final order requires the Respondent to reimburse the Petitioners for a portion of their filing fee, to comply with the records request statute moving forward, and to provide the specific missing documents from the original request.
Case Background and Procedural History
The case involves property owners Clifford (Norm) and Maria Burnes, who own Lot 6 in the Saguaro Crest subdivision in Tucson, Arizona, and their homeowners’ association. The dispute arose from the construction of a new home on the adjacent Lot 7.
• July 17, 2020: The Petitioners filed a four-issue petition with the Arizona Department of Real Estate.
• August 11, 2020: The Respondent HOA filed its answer, denying all four claims.
• August 19, 2020: The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
• December 2020 & March 2021: Hearings were conducted before Administrative Law Judge Jenna Clark.
• March 22, 2021: The initial ALJ Decision was issued, denying the Petitioners’ claims on three issues but granting their petition on the fourth issue concerning the records request.
• April 28, 2021: The Petitioners filed a Dispute Rehearing Request on the grounds of “Newly discovered material evidence” and that the decision was “arbitrary, capricious, or an abuse of discretion.”
• May 21, 2021: The Commissioner of the Department of Real Estate granted the rehearing request.
• July 20, 2021: The rehearing was conducted.
• August 09, 2021: A Final Administrative Law Judge Decision was issued, affirming the original decision in its entirety.
Analysis of Allegations and Findings
The petition presented four distinct issues for adjudication. The findings for each are detailed below, based on the evidence presented in the hearings.
Issue 1: Alleged Violation of CC&Rs Section 5 (Architectural Control)
• Allegation: The Petitioners claimed the HOA allowed construction on Lot 7 to proceed without the required submission of documents to the Architectural Review Committee (ARC) for approval, specifically concerning modifications to the originally approved plans.
• Key Evidence:
◦ Petitioner Norm Burnes was a member of the ARC that unanimously approved the initial construction plans for Lot 7 on January 3, 2018.
◦ On October 21, 2018, and again on April 14, 2020, Mr. Burnes expressed concerns to the HOA Board that the placement of the home on Lot 7 deviated from the approved plans, negatively impacting the view and privacy of his own home on Lot 6.
◦ In a letter, Mr. Burnes stated, “Mr. Martinez did not honer the approved plan and has placed the house in the original position,” which he claimed was disharmonious and destroyed his view.
◦ The evidence showed that no additional or modified plans were ever submitted to the ARC for review after the initial January 2018 approval.
◦ The construction plans for Lot 7 were approved by Pima County on May 4, 2018.
• Conclusion:No violation found. The ALJ concluded that the “ARC cannot approve or deny proposed plans unless they are submitted for review.” Since no modified plans were ever presented, the ARC did not violate the CC&Rs. The decision also noted that the construction complied with the local government’s building authority.
• Allegation: The Petitioners claimed the HOA allowed construction on Lot 7 without collecting the required $5,000 refundable Construction Compliance Deposit.
• Key Evidence:
◦ In a meeting on May 3, 2020, the HOA Board of Directors decided to honor a Construction Compliance Deposit Waiver that had been previously granted to the Martinez family (owners of Lot 7).
◦ The rationale for such waivers was that they were granted during an economic downturn to incentivize property purchases in the subdivision.
◦ Crucially, the HOA “does not possess a corporate record that any such Construction Compliance Deposit Waiver was previously granted to the Martinez family.”
• Conclusion:No violation found. The ALJ determined that it was “clear that Lot 7 was granted a construction compliance deposit waiver.” The lack of a documented record explaining the details of the waiver was acknowledged but considered moot because it was not a specifically “noticed issue” in the petition.
• Allegation: The Petitioners claimed the HOA Board conducted an unnoticed meeting on or about May 20, 2020, to consider matters relevant to Petitioner Norm Burnes, violating state open meeting laws.
• Key Evidence:
◦ On April 18, 2020, Mr. Burnes requested an urgent meeting with the Board, which was held the following day.
◦ On May 20, 2020, the Board acted via unanimous written consent, as permitted under A.R.S § 10-3821, to restrict Mr. Burnes’s participation as an ARC member only on matters related to Lot 7.
◦ The Board’s written consent stated, “[T]he Board of Directors hereby unanimously agree that [Petitioner] be removed as an ARC Member for all ARC related matters concerning Lot 7.” This action was taken due to Mr. Burnes’s personal complaints against the Lot 7 owner, creating a conflict of interest.
• Conclusion:No violation found. The ALJ found that the Board’s failure to notice the April 19 meeting was an excused exception because the Petitioner himself had requested it as an urgent matter. The action on May 20 was not an illegal meeting but a permissible action taken via written consent without a meeting. Furthermore, the Board did not remove Mr. Burnes from the ARC entirely, but only restricted his involvement on the specific issue where he had a conflict.
Issue 4: Alleged Violation of A.R.S. § 33-1805 (Records Request)
• Allegation: The Petitioners claimed the HOA failed to fulfill a records request in accordance with state law.
• Key Evidence:
◦ On June 4, 2020, the Petitioners submitted a comprehensive request to review “ALL of the documents of the HOA” and for copies of documents falling into 17 specific categories, demanding fulfillment within 10 days.
◦ The statutory deadline for the HOA to comply with both the review and copy requests was June 18, 2020.
◦ The HOA made the documents available for review on June 16, 2020 (within the deadline).
◦ However, the HOA provided copies of the documents only on June 24, 2020, six days past the statutory deadline.
◦ Upon receiving the copies, Mr. Burnes notified the HOA the same day that “[S]ome of the attachments for some emails are not included within in this package from this documentation.” [sic]
• Conclusion:Violation found. The ALJ determined that the HOA violated the statute, which requires copies of requested records to be provided within ten business days. The Respondent’s argument that the Petitioner’s clarification on June 16 reset the deadline was explicitly rejected. The decision also noted that the documents provided were incomplete.
The Rehearing
The Petitioners’ request for a rehearing was granted, but it did not alter the case’s outcome.
• Grounds for Rehearing: The request was based on claims of newly discovered evidence and that the original findings on issues 1-3 were arbitrary or capricious.
• Rehearing Proceedings: During the rehearing, the “Petitioners offered no ‘new’ evidence and instead conceded that they wished to present evidence which they had in their possession during the prior hearing, that they markedly had decided not to present.”
• Outcome: Because no new evidence was presented, the Petitioners were precluded from recalling witnesses or offering additional exhibits. The ALJ found no basis to alter the original findings and affirmed the March 22, 2021, decision.
Final Order
The Final Administrative Law Judge Decision, dated August 9, 2021, affirmed the original order. The Respondent, Saguaro Crest Homeowners Association, is mandated to perform the following actions:
1. Denial and Granting of Petitions: The Petitioners’ petition is denied for Issues 1, 2, and 3. The petition is granted for Issue 4.
2. Reimbursement: The Respondent must reimburse the Petitioners for one-quarter of their filing fee, amounting to $500.00, to be paid in certified funds.
3. Future Compliance: The Respondent must henceforth comply with the requirements of A.R.S. § 33-1805 regarding member access to association records.
4. Provision of Documents: The Respondent must provide the Petitioners with the missing email attachments related to the June 4, 2020, records request within 10 business days of the final order’s effective date.
Study Guide – 21F-H2120002-REL-RHG
Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.
Short-Answer Quiz
Instructions: Answer the following ten questions based on the provided source documents. Each answer should be approximately two to three sentences.
1. Identify the primary parties in this legal dispute and describe their relationship within the Saguaro Crest community.
2. What were the four specific allegations the Petitioners filed against the Respondent on July 17, 2020?
3. Explain Petitioner Norm Burnes’s initial role with the Architectural Review Committee (ARC) and how the Board of Directors later altered his participation.
4. Describe the controversy surrounding the $5,000 Construction Compliance Deposit for the construction on Lot 7.
5. What was the central grievance expressed by the Petitioners regarding the placement and construction of the new home on Lot 7?
6. What action did the Board of Directors take on May 20, 2020, without a formal, noticed meeting, and under what legal authority did they act?
7. Summarize the timeline and outcome of the Petitioners’ June 4, 2020, records request to the Association.
8. Why did the Administrative Law Judge ultimately rule in favor of the Petitioners on Issue 4, regarding the violation of ARIZ. REV. STAT. § 33-1805?
9. On what grounds did the Petitioners request a rehearing, and what was the judge’s finding regarding the “new evidence” they wished to present?
10. What was the final, affirmed order issued by the Administrative Law Judge in this case?
——————————————————————————–
Answer Key
1. The primary parties are Clifford (Norm) S. and Maria Burnes (the “Petitioners”) and the Saguaro Crest Homeowners Association, Inc. (the “Respondent”). The Petitioners are property owners in the Saguaro Crest subdivision, making them members of the Association, which is the governing body for the community.
2. The Petitioners alleged that the Association (1) improperly allowed construction on Lot 7 without required ARC approval in violation of CC&Rs Section 5; (2) allowed this construction without the required Construction Compliance Deposit; (3) conducted an unnoticed meeting in violation of ARIZ. REV. STAT. § 33-1804; and (4) failed to fulfill a records request in violation of ARIZ. REV. STAT. § 33-1805.
3. Petitioner Norm Burnes was named to serve as an Architecture Review Committee (ARC) member effective December 5, 2017, and he participated in the unanimous approval of the Lot 7 construction plans. On May 20, 2020, the Board of Directors restricted his participation as an ARC member for all matters concerning Lot 7 due to his personal complaints, which created a conflict of interest.
4. The Association’s Architectural Design Guidelines require a refundable $5,000 Construction Compliance Deposit. The Board decided to honor a discretionary waiver for Lot 7, which was said to have been granted during an economic downturn to incentivize purchases, though the Association possessed no corporate record of the waiver being granted.
5. The Petitioners’ central grievance was that the house on Lot 7 was placed too close to their backyard (on Lot 6), destroying their views, violating their privacy, and causing stress. They contended that the owner of Lot 7 did not honor the approved plan and built the house in its original, unapproved position.
6. On May 20, 2020, the Board of Directors acted without a noticed meeting to restrict Petitioner Norm Burnes’s participation on the ARC for matters related to Lot 7. They acted under the authority of ARIZ. REV. STAT § 10-3821, which permits action without a meeting if all directors provide written consent, which they obtained via individual signatures.
7. On June 4, 2020, Petitioners requested to review all Association records and receive copies of documents from 17 specific categories. The Association offered a review on June 16 (within the 10-day limit), but did not provide the requested copies until June 24, which was after the statutory deadline of June 18. Furthermore, the copies provided were incomplete, missing some email attachments.
8. The Judge ruled a violation occurred because the Association failed to provide copies of the requested records within the ten business days mandated by the statute. The Judge rejected the Association’s argument that the Petitioner’s clarification on June 16 reset the deadline, stating the Association was obligated to timely clarify and provide the documents.
9. The Petitioners requested a rehearing on the grounds of “Newly discovered material evidence” and that the initial decision was “arbitrary, capricious, or an abuse of discretion.” The judge found that the Petitioners offered no new evidence, but rather wished to present evidence they had possessed but strategically chose not to use in the original hearing.
10. The final, affirmed order granted the Petitioners’ petition regarding Issue 4 and denied it for Issues 1-3. The Respondent was ordered to reimburse the Petitioners for ¼ of their filing fee ($500.00), comply with ARIZ. REV. STAT. § 33-1805 going forward, and provide the missing email attachments from the records request within 10 business days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Answers are not provided.
1. Analyze the legal concept of “burden of proof by a preponderance of the evidence” as it was applied in this case. Explain why the Administrative Law Judge concluded that the Petitioners successfully met this burden for the records request violation but failed to do so for their allegations concerning the CC&Rs, the construction deposit, and the open meeting laws.
2. Discuss the role, authority, and limitations of a Homeowners’ Association’s Architectural Review Committee (ARC) as depicted in the source documents. Evaluate the Saguaro Crest ARC’s actions and failures to act regarding the construction on Lot 7, and explain why the Judge determined that no violation of CC&Rs Section 5 had occurred.
3. Examine the conflict of interest involving Petitioner Norm Burnes’s dual roles as an aggrieved neighbor and a member of the ARC. Detail how this conflict emerged, the specific actions the Board of Directors took to address it, and the legal justification for those actions.
4. Trace the full timeline of events related to the Board of Directors’ meetings in April and May 2020. Analyze the Petitioners’ claim that these constituted a violation of Arizona’s open meeting laws (ARIZ. REV. STAT. § 33-1804) and the Judge’s legal reasoning for concluding that no violation was established.
5. Evaluate the Petitioners’ request for a rehearing. Based on the Final Administrative Law Judge Decision, explain the legal standard for granting a rehearing based on “newly discovered material evidence” and why the Petitioners’ offer of proof failed to meet this standard.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding official (Jenna Clark) at the Office of Administrative Hearings who hears evidence, makes Findings of Fact and Conclusions of Law, and issues orders in the case.
Architectural Review Committee (ARC)
A committee established by the Association’s CC&Rs, charged with implementing Architectural Guidelines to maintain aesthetic standards within the community. In this case, Petitioner Norm Burnes was a member.
Arizona Department of Real Estate (Department)
The state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. Specific statutes, such as § 33-1804 (open meeting laws) and § 33-1805 (records access), were central to this case.
Board of Directors (the Board)
The overseeing body of the Saguaro Crest Homeowners Association, comprised of a President, Vice President, and Treasurer.
Burden of Proof
The obligation of a party in a legal proceeding (in this case, the Petitioners) to produce evidence that proves the claims they have made against the other party.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Saguaro Crest community that form an enforceable contract between the Association and each property owner, controlling aspects of property use.
Construction Compliance Deposit (CCD)
A refundable $5,000.00 deposit required by Section 4.0 of the Association’s Architectural Design Guidelines, which became a point of contention regarding Lot 7.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona where the evidentiary hearings for this case were held.
Petitioners
Clifford (Norm) S. Burnes and Maria Burnes, the property owners of Lot 6 who filed the petition against the Homeowners Association.
Preponderance of the Evidence
The standard of proof required in this proceeding, defined as evidence that is more convincing and has superior weight, making it more probable that a contention is true than not true.
Respondent
The Saguaro Crest Homeowners Association, Inc., the non-profit corporation governing the subdivision and the party against whom the petition was filed.
Blog Post – 21F-H2120002-REL-RHG
He Sued His HOA and Won… Sort Of. 4 Shocking Lessons from a Neighbor vs. HOA Showdown
Introduction: The Neighbor’s Nightmare
It’s a scenario that sparks anxiety for any homeowner: you look out your window and see the first signs of a new construction project on the property next door. The questions immediately flood your mind. Will it block my view? Will I lose my privacy? Will this new structure change the character of the neighborhood I love?
When a decision by a Homeowners’ Association (HOA) feels threatening, the impulse to fight back is strong. But what does that fight actually look like, and what does it mean to “win”?
The real-life case of the Burnes family versus the Saguaro Crest HOA in Arizona provides a masterclass in the unexpected realities of neighbor-versus-HOA disputes. They took their fight to an administrative hearing, and the official legal decision reveals surprising and counter-intuitive lessons for any homeowner. Here are the four most impactful takeaways from that legal showdown—critical warnings for anyone who thinks going to battle with their HOA is a straightforward affair.
1. He Helped Approve the Plans He Grew to Hate
In a turn of profound irony, the petitioner leading the charge against the HOA, Mr. Norm Burnes, was a serving member of the very committee that set the entire conflict in motion: the HOA’s Architectural Review Committee (ARC).
On January 3, 2018, the ARC, including Mr. Burnes, unanimously approved the construction plans for the neighboring home on Lot 7. At the time, they were just plans on paper. But more than two years would pass before Mr. Burnes raised an alarm—long after the abstract lines on a page had become concrete and steel next door. On April 14, 2020, with construction underway, the reality of the new build became a personal grievance. Mr. Burnes wrote to the board, explaining that the new house was a “constant source of stress” for his family, that his privacy was “violated / gone,” and that his cherished views were “destroyed.”
In his own words, the impact was devastating:
“A large part of the value to me for my house was the view from the back patio. That’s gone now. The view from my kitchen and bedroom windows are destroyed.”
This is a powerful lesson in unintended consequences. It reveals how abstract plans can become deeply personal issues once construction begins. More importantly, it highlights the inherent conflict that can arise when a homeowner acts in an official capacity for the community while also trying to protect their own personal interests.
2. The HOA Won on Substance, But Lost on a Technicality
The Burnes family filed a formal petition with four distinct allegations against their HOA. In a striking outcome, the judge sided with the HOA on the three major, substantive issues at the heart of the dispute.
• Construction Plans: The judge found the HOA was not at fault for the final build. No modified plans were ever submitted for the ARC to review after the initial approval, and the construction itself complied with the local government’s authority.
• $5,000 Deposit: The judge concluded that the Lot 7 owner had been granted a waiver for the required construction deposit, even though the HOA lacked a formal record of it—a stroke of luck for the board that highlights the critical importance of meticulous record-keeping.
• Improper Meeting: The judge determined that the Board had not improperly removed Mr. Burnes from the ARC; they had only “removed [him] as an ARC Member for all ARC related matters concerning Lot 7,” a targeted recusal due to his direct conflict of interest, not a full removal from the committee. Furthermore, the meeting Mr. Burnes complained about was deemed a valid emergency meeting held at his own request.
Despite winning on these core points, the HOA was found in violation of the law on the fourth issue: a simple procedural error. The HOA had violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to provide copies of requested records within the legally mandated 10-business day deadline. While the HOA allowed the Burnes family to review the documents on time (on June 16, within the June 18 deadline), they failed to provide the physical copies until June 24, four business days past the legal deadline.
This demonstrates a critical lesson for any organization. An entity can win the arguments on major issues but still be found in violation of the law for a minor administrative slip-up. Procedural diligence isn’t just good practice; it’s a legal requirement that can define the outcome of a case.
3. A Legal “Victory” Doesn’t Always Solve the Real Problem
So, what did the Burnes family “win” after their long and stressful legal battle? The judge’s final order was clear and specific. They received:
• A reimbursement of 1/4 of their filing fee ($500).
• An order for the HOA to provide the missing email attachments from their records request.
• An order for the HOA to comply with the records-request law in the future.
This outcome stands in stark contrast to Mr. Burnes’s original, deeply personal complaint. His fight began because the new house was a “constant source of stress” and had destroyed his backyard view. The legal ruling, however, did nothing to halt or alter the construction on Lot 7. The neighbor’s house, the very source of the entire conflict, remained exactly where it was.
This is a sobering look at the difference between a legal remedy and a practical solution. Winning in an administrative hearing is defined strictly by the letter of the law. The legal system addresses violations of statutes and governing documents, which may not align with—or offer any solution for—the personal grievance that ignited the conflict in the first place.
4. You Don’t Get a Do-Over for a Bad Strategy
Unhappy with the initial decision, the petitioners filed for a rehearing. The official grounds they cited were serious: they claimed to have “Newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.”
But when the rehearing began, the reality was quite different. As stated in the final decision, the petitioners conceded that they possessed no new evidence at all. Instead, they admitted they had strategically chosen not to present certain evidence during the first hearing and were now asking for a second chance to do so.
The judge’s response was swift and decisive. The petitioners were “precluded from recalling… witnesses, or offering additional exhibits,” and the original decision was affirmed.
This serves as a stark reminder that legal proceedings are formal and final. A trial or administrative hearing is not a practice run. The petitioners’ admission that they deliberately withheld evidence was a fatal strategic error, turning their request for a second chance into a confirmation of their first failure.
Conclusion: The Letter vs. The Spirit of the Law
The showdown between the Burnes family and the Saguaro Crest HOA is a compelling story of unintended consequences, procedural missteps, and strategic blunders. But taken together, the lessons reveal a single, powerful truth: the legal system is designed to correct violations of law, not to soothe personal grievances. The family won on a paperwork technicality but lost on every issue that mattered to their quality of life. The HOA won on the substance of the dispute but was penalized for failing to follow administrative rules.
The case leaves us with a critical question to consider. When you find yourself in a dispute, is it more important to be legally ‘right,’ or to find a practical resolution? As the Burnes family discovered, the two are not always the same thing.
Case Participants
Petitioner Side
Clifford Burnes(petitioner/ARC member) Saguaro Crest Homeowners Association, Inc. Also known as Norm S. Burnes
Maria Burnes(petitioner) Saguaro Crest Homeowners Association, Inc.
Cynthia F. Burnes(petitioner attorney) Counsel for Petitioners
Jacob A. Kubert(petitioner attorney) Counsel for Petitioners
Debora Brown(witness) Witness for Petitioners
Respondent Side
John Crotty(respondent attorney) Law Offices of Farley, Choate & Wood Counsel for Respondent
Kelsea Dressen(respondent attorney) Law Offices of Farley, Choate & Wood Counsel for Respondent (also listed as Kelsey P. Dressen)
Esmerelda Martinez(board member/witness) Saguaro Crest Homeowners Association, Inc. Board President
Dave Madill(board member) Saguaro Crest Homeowners Association, Inc. Board Vice President
Julie Stevens(board member) Saguaro Crest Homeowners Association, Inc. Board Treasurer
Raul Martinez(lot owner) Saguaro Crest Homeowners Association, Inc. Owner of Lot 7
Ramona Martinez(lot owner) Saguaro Crest Homeowners Association, Inc. Owner of Lot 7
Joseph Martinez(ARC member) Saguaro Crest Homeowners Association, Inc.
Jamie Argueta(ARC member) Saguaro Crest Homeowners Association, Inc.
Jesus Carranza(substitute ARC member) Saguaro Crest Homeowners Association, Inc.
Neutral Parties
Jenna Clark(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
Dan Gardener(ADRE staff) Arizona Department of Real Estate Recipient of order transmission (listed as DGardner)
c. serrano(administrative staff) Transmitted decision/order
Petitioner was deemed the prevailing party after Respondent was found in violation of A.R.S. § 33-1258(A) for failing to provide specific financial records (bank statements, check copies) and A.R.S. § 33-1243(J) for failing to complete the 2019 financial compilation. The ALJ declined to impose a civil penalty but ordered Respondent to reimburse the Petitioner's filing fees of $1,000.00.
Key Issues & Findings
Failure to disclose records and complete annual financial compilation
Respondent violated A.R.S. § 33-1258(A) by failing to provide bank account statements and check copies, and violated A.R.S. § 33-1243(J) by failing to complete the 2019 financial compilation. Petitioner did not meet the burden regarding the 2018 financial report.
Orders: Respondent was ordered to reimburse Petitioner's filing fees of $1,000.00 within 30 days.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1258(A)
ARIZ. REV. STAT. § 33-1243(J)
Analytics Highlights
Topics: Homeowners Association, Records Access, Financial Compilation, Statutory Violation, Condominium Association
Additional Citations:
ARIZ. REV. STAT. § 33-1258(A)
ARIZ. REV. STAT. § 33-1243(J)
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.05
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
21F-H2120011-REL Decision – 865401.pdf
Uploaded 2026-01-23T17:35:06 (42.0 KB)
21F-H2120011-REL Decision – 872606.pdf
Uploaded 2026-01-23T17:35:09 (153.6 KB)
Questions
Question
Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?
Short Answer
No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.
Detailed Answer
The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.
Alj Quote
Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
records request
board duties
bank statements
Question
What is the deadline for the HOA to complete its annual financial compilation?
Short Answer
The compilation must be completed within 180 days after the fiscal year ends.
Detailed Answer
Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.
Alj Quote
The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available on request to the unit owners within thirty days after its completion.
Legal Basis
ARIZ. REV. STAT. § 33-1243(J)
Topic Tags
financials
deadlines
compilation
Question
Will the judge always fine the HOA if they violate record-keeping laws?
Short Answer
Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.
Detailed Answer
Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.
Alj Quote
That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
civil penalty
fines
enforcement
Question
What happens if I request specific accounting records (like ledgers) that the HOA simply never created?
Short Answer
The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.
Detailed Answer
If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.
Alj Quote
With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
missing records
record keeping
Question
If I win my case against the HOA regarding records, can I get my filing fees back?
Short Answer
Yes, the prevailing party is typically entitled to reimbursement of filing fees.
Detailed Answer
If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.
Alj Quote
IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.
Legal Basis
Order based on prevailing party status
Topic Tags
reimbursement
fees
prevailing party
Question
Does a former Board President have a claim regarding missing financials from their own term?
Short Answer
It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.
Detailed Answer
If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.
Alj Quote
Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.
Legal Basis
Burden of proof standard
Topic Tags
board member rights
fiduciary duty
Case
Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?
Short Answer
No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.
Detailed Answer
The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.
Alj Quote
Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
records request
board duties
bank statements
Question
What is the deadline for the HOA to complete its annual financial compilation?
Short Answer
The compilation must be completed within 180 days after the fiscal year ends.
Detailed Answer
Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.
Alj Quote
The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available on request to the unit owners within thirty days after its completion.
Legal Basis
ARIZ. REV. STAT. § 33-1243(J)
Topic Tags
financials
deadlines
compilation
Question
Will the judge always fine the HOA if they violate record-keeping laws?
Short Answer
Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.
Detailed Answer
Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.
Alj Quote
That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
civil penalty
fines
enforcement
Question
What happens if I request specific accounting records (like ledgers) that the HOA simply never created?
Short Answer
The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.
Detailed Answer
If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.
Alj Quote
With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
missing records
record keeping
Question
If I win my case against the HOA regarding records, can I get my filing fees back?
Short Answer
Yes, the prevailing party is typically entitled to reimbursement of filing fees.
Detailed Answer
If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.
Alj Quote
IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.
Legal Basis
Order based on prevailing party status
Topic Tags
reimbursement
fees
prevailing party
Question
Does a former Board President have a claim regarding missing financials from their own term?
Short Answer
It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.
Detailed Answer
If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.
Alj Quote
Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.
Legal Basis
Burden of proof standard
Topic Tags
board member rights
fiduciary duty
Case
Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Thomas A Bossert(petitioner) Former Board President; testified on own behalf
Jade Bossert(petitioner)
Anthony Tsontakis(petitioner attorney) Tsontakis Law
Barbara Schoneck(witness) Digit & Docs LLC Called by Petitioner
Respondent Side
Nicholas C Nogami(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP
Timothy D Butterfield(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen LLP
Rex Warnix, III(board member; witness) Silverbell West Association, Inc. Current Board President; testified for Respondent/Association
Linda Garner(property manager; witness) Adam LLC Property manager for the Association
Donald Molley(board member; treasurer) Silverbell West Association, Inc. Board Treasurer responsible for financial records
Neutral Parties
Adam D. Stone(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
