Bylaws Article II, Section 8, as amended October 18, 2000
Outcome Summary
The Administrative Law Judge determined that Petitioner failed to sustain the burden of proof required to show the Association violated the purported Bylaws amendment, and therefore, the petition was denied.
Why this result: Petitioner failed to prove the validity or implementation of the purported Bylaws amendment, and the language of the amendment itself was found not to be compulsory in requiring a subsequent meeting.
Key Issues & Findings
Alleged failure to hold a second and subsequent meeting of the membership with a diminished quorum.
Petitioner alleged the Association violated its Bylaws by failing to hold a second meeting with a diminished 15% quorum after failing to meet the initial 25% quorum at the Annual Meeting on January 16, 2024, despite a motion and second being made to adjourn and reset the meeting.
Orders: Petitioner's petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 33-1802(1)
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. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Analytics Highlights
Topics: HOA Bylaws, Quorum, Annual Meeting, Burden of Proof, Invalid Document, Continuance
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(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1802(1)
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H035-REL Decision – 1163387.pdf
Uploaded 2026-01-23T18:06:04 (48.4 KB)
24F-H035-REL Decision – 1163395.pdf
Uploaded 2026-01-23T18:06:08 (7.2 KB)
24F-H035-REL Decision – 1165696.pdf
Uploaded 2026-01-23T18:06:11 (49.1 KB)
24F-H035-REL Decision – 1165699.pdf
Uploaded 2026-01-23T18:06:13 (7.3 KB)
24F-H035-REL Decision – 1179128.pdf
Uploaded 2026-01-23T18:06:15 (53.7 KB)
24F-H035-REL Decision – 1179136.pdf
Uploaded 2026-01-23T18:06:19 (7.6 KB)
24F-H035-REL Decision – 1209016.pdf
Uploaded 2026-01-23T18:06:23 (146.3 KB)
Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the 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
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the 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
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Jesse Freeman(petitioner) Millett Ranch Homeowners’ Association Member Spelling varies as 'Jesse Freemen' in some sources; also served as Treasurer on the Board 2017-2018.
Nicholas Belisi(witness) Potential witness for Petitioner; seconded the motion to adjourn and reconvene the meeting.
Respondent Side
Augustus H. Shaw IV(HOA attorney) Shaw & Lines, LLC Counsel for Respondent Millett Ranch Homeowners’ Association.
Brandon David Moore(senior community manager/witness) Brown Property Management Senior Community Manager for Respondent Millett Ranch HOA, testified as a witness.
Christopher Redden(Board President/witness) Millett Ranch Homeowners’ Association Former Board President (9 years) and Board Member (13-14 years), testified as a witness.
Mark Saul(HOA attorney) Millett Ranch Homeowners’ Association Identified by Petitioner as the association's attorney who abruptly ended the January 16, 2024 meeting.
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(Commissioner) ADRE
vnunez(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
djones(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
labril(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
mneat(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
akowaleski(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
gosborn(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
The Administrative Law Judge denied the Petitioners' petition, concluding they failed to meet their burden of proving a violation of ARIZ. REV. STAT. § 33-1248 regarding the May 19, 2023, Executive Board Meeting.
Why this result: Petitioners failed to prove the statutory violation by a preponderance of the evidence, as the Executive Session was deemed appropriate for receiving legal advice or conducting discussion related thereto, which falls under ARIZ. REV. STAT. § 33-1248(A)(1).
Key Issues & Findings
Alleged violation of open meeting law concerning Executive Board Meeting on May 19, 2023
Petitioners alleged the Association violated ARS § 33-1248 by improperly conducting business (Code of Conduct review and vote on minutes) in a closed Executive Session on May 19, 2023, and by failing to provide 48-hour notice.
Orders: Petitioners' petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1248
ARIZ. REV. STAT. § 33-1248(A)(1)
Analytics Highlights
Topics: HOA Open Meeting Law, Executive Session, Legal Advice Exception, Code of Conduct, Burden of Proof, Condominium Association Statute, Filing Fee
Additional Citations:
ARIZ. REV. STAT. § 33-1248
ARIZ. REV. STAT. § 33-1248(A)(1)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
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.
Video Overview
Audio Overview
Decision Documents
24F-H024-REL Decision – 1138580.pdf
Uploaded 2026-01-23T18:03:38 (54.3 KB)
24F-H024-REL Decision – 1144884.pdf
Uploaded 2026-01-23T18:03:41 (50.1 KB)
24F-H024-REL Decision – 1146526.pdf
Uploaded 2026-01-23T18:03:44 (61.9 KB)
24F-H024-REL Decision – 1161533.pdf
Uploaded 2026-01-23T18:03:47 (48.9 KB)
24F-H024-REL Decision – 1179547.pdf
Uploaded 2026-01-23T18:03:52 (132.9 KB)
Questions
Question
Who is responsible for proving that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. This means showing that the claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Preponderance of the Evidence
Topic Tags
burden of proof
legal standards
procedure
Question
Can the HOA board go into a closed executive session to get legal advice?
Short Answer
Yes, the board may close a meeting to receive legal advice from the association's attorney.
Detailed Answer
State statute explicitly allows portions of meetings to be closed if limited to consideration of legal advice from an attorney for the board or association. Legal advice is defined broadly as guidance given by lawyers to their clients.
Alj Quote
ARIZ. REV. STAT. § 33-1248(A)(1) provides, in pertinent part, that 'Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following: (1) legal advice from an attorney for the board or the association.'
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
executive session
legal advice
open meeting laws
Question
If I file a petition for one specific violation, can I bring up other issues during the hearing?
Short Answer
No, the tribunal will generally only address the specific issue paid for in the petition.
Detailed Answer
The ALJ may refuse to address tangential issues or additional complaints raised during the hearing if the petitioner only paid the filing fee for the adjudication of a single specific issue.
Alj Quote
Because Petitioners only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioners raised during the presentation of their case or closing arguments, including whether the Association properly provided notice of its May 19, 2023, Board Meeting.
Legal Basis
Procedural Scope
Topic Tags
hearing procedure
filing fees
scope of hearing
Question
Does draft language stating a policy 'has been approved' prove the board secretly voted on it?
Short Answer
No, the tense used in a draft document is considered irrelevant if the document was not actually adopted.
Detailed Answer
Even if a proposed document uses language like 'The Board… has approved,' this is considered a 'red herring' if the evidence shows the document was merely a proposal that board members were advised to sign but ultimately declined.
Alj Quote
The fact that language in the proposal used current language, rather than future tense, is a Red Herring argument and irrelevant.
Legal Basis
N/A
Topic Tags
evidence
board documents
voting
Question
Is it a violation for the board to discuss public materials (like a website printout) in executive session?
Short Answer
Not necessarily, provided that discussing those materials was not the sole purpose of the closed session.
Detailed Answer
While discussing public materials alone is technically not legal advice, it does not invalidate an executive session if the session also included legitimate purposes, such as receiving counsel's advice on other matters.
Alj Quote
While it is accurate that going into Executive Session for the purpose of discussing reading materials printed from a public website regarding revision of Association’s governing documents is not technically legal advice, as it is inherently unprivileged documentation, this record reflects that this was not the sole purpose of closing the Board Meeting from the public.
Legal Basis
A.R.S. § 33-1248
Topic Tags
executive session
public records
violations
Question
What is the standard of proof required to win an HOA dispute case?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires proof that convinces the judge that the claim is 'more probably true than not.' It is based on the convincing force and weight of the evidence, not just the 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
Standard of Proof
Topic Tags
legal standards
evidence
Question
Can the board discuss a Code of Conduct in executive session?
Short Answer
Yes, if the discussion involves receiving legal advice or guidance from the association's attorney.
Detailed Answer
The ALJ found no violation when the board went into executive session to discuss a Code of Conduct because the board members were receiving information, asking questions, and being advised by counsel regarding the document.
Alj Quote
The crux of the underlying issue is that newly elected Board Members, Petitioners, were provided with information regarding the Code of Conduct, the opportunity to discuss and ask questions privately, and advised to sign by Counsel for the Association; which they declined as was their right.
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
code of conduct
executive session
board meetings
Case
Docket No
24F-H024-REL
Case Title
Jeffrey Connell & Corey Cox v. Casa Del Monte, Inc.
Decision Date
2024-05-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Who is responsible for proving that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. This means showing that the claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Preponderance of the Evidence
Topic Tags
burden of proof
legal standards
procedure
Question
Can the HOA board go into a closed executive session to get legal advice?
Short Answer
Yes, the board may close a meeting to receive legal advice from the association's attorney.
Detailed Answer
State statute explicitly allows portions of meetings to be closed if limited to consideration of legal advice from an attorney for the board or association. Legal advice is defined broadly as guidance given by lawyers to their clients.
Alj Quote
ARIZ. REV. STAT. § 33-1248(A)(1) provides, in pertinent part, that 'Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following: (1) legal advice from an attorney for the board or the association.'
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
executive session
legal advice
open meeting laws
Question
If I file a petition for one specific violation, can I bring up other issues during the hearing?
Short Answer
No, the tribunal will generally only address the specific issue paid for in the petition.
Detailed Answer
The ALJ may refuse to address tangential issues or additional complaints raised during the hearing if the petitioner only paid the filing fee for the adjudication of a single specific issue.
Alj Quote
Because Petitioners only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioners raised during the presentation of their case or closing arguments, including whether the Association properly provided notice of its May 19, 2023, Board Meeting.
Legal Basis
Procedural Scope
Topic Tags
hearing procedure
filing fees
scope of hearing
Question
Does draft language stating a policy 'has been approved' prove the board secretly voted on it?
Short Answer
No, the tense used in a draft document is considered irrelevant if the document was not actually adopted.
Detailed Answer
Even if a proposed document uses language like 'The Board… has approved,' this is considered a 'red herring' if the evidence shows the document was merely a proposal that board members were advised to sign but ultimately declined.
Alj Quote
The fact that language in the proposal used current language, rather than future tense, is a Red Herring argument and irrelevant.
Legal Basis
N/A
Topic Tags
evidence
board documents
voting
Question
Is it a violation for the board to discuss public materials (like a website printout) in executive session?
Short Answer
Not necessarily, provided that discussing those materials was not the sole purpose of the closed session.
Detailed Answer
While discussing public materials alone is technically not legal advice, it does not invalidate an executive session if the session also included legitimate purposes, such as receiving counsel's advice on other matters.
Alj Quote
While it is accurate that going into Executive Session for the purpose of discussing reading materials printed from a public website regarding revision of Association’s governing documents is not technically legal advice, as it is inherently unprivileged documentation, this record reflects that this was not the sole purpose of closing the Board Meeting from the public.
Legal Basis
A.R.S. § 33-1248
Topic Tags
executive session
public records
violations
Question
What is the standard of proof required to win an HOA dispute case?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires proof that convinces the judge that the claim is 'more probably true than not.' It is based on the convincing force and weight of the evidence, not just the 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
Standard of Proof
Topic Tags
legal standards
evidence
Question
Can the board discuss a Code of Conduct in executive session?
Short Answer
Yes, if the discussion involves receiving legal advice or guidance from the association's attorney.
Detailed Answer
The ALJ found no violation when the board went into executive session to discuss a Code of Conduct because the board members were receiving information, asking questions, and being advised by counsel regarding the document.
Alj Quote
The crux of the underlying issue is that newly elected Board Members, Petitioners, were provided with information regarding the Code of Conduct, the opportunity to discuss and ask questions privately, and advised to sign by Counsel for the Association; which they declined as was their right.
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
code of conduct
executive session
board meetings
Case
Docket No
24F-H024-REL
Case Title
Jeffrey Connell & Corey Cox v. Casa Del Monte, Inc.
Decision Date
2024-05-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Jeffrey Connell(petitioner) Casa Del Monte, Inc. HOA Also served as a board member.
Corey Cox(petitioner) Casa Del Monte, Inc. HOA Also served as a board member.
Ross Meyer(attorney) Meyer & Partners, PLLC; Enara Law PLLC Counsel for Petitioners.
Jonathan Dessaules(witness) The Sol Law Group Testified as a subject matter expert/HOA attorney.
Matthew Elias(attorney) Enara Law PLLC Counsel for Petitioners; listed in final decision transmittal.
Respondent Side
Lori N. Brown(attorney) Gordon Rees Scully Mansukahani, LLP Counsel for Respondent.
Benjamin Bednarek(attorney) Gordon Rees Scully Mansukahani, LLP Counsel for Respondent.
Curtis Ekmark(HOA attorney) Casa Del Monte, Inc. HOA Association Corporate Counsel/General Counsel.
Solomon Krotzer(attorney) Gordon Rees Scully Mansukahani, LLP Counsel for Respondent; appeared at hearing (referred to as 'Paulo' once).
Mary Lou Ehmann(property manager) Pride Management Former Community Manager for Casa Del Monte; provided testimony.
Jonathan Ryder(board president) Casa Del Monte, Inc. HOA Also referred to as John Ryder.
Jean Yen(board member) Casa Del Monte, Inc. HOA Also referred to as Jeannie Yen; Treasurer.
Bill McMichael(board member) Casa Del Monte, Inc. HOA Vice President.
Jim Burton(board member) Casa Del Monte, Inc. HOA Secretary.
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(Commissioner) ADRE
AHansen(ADRE staff) ADRE Recipient of official case transmission.
vnunez(ADRE staff) ADRE Recipient of official case transmission.
djones(ADRE staff) ADRE Recipient of official case transmission.
labril(ADRE staff) ADRE Recipient of official case transmission.
kvanfredenberg(ADRE staff) ADRE Recipient of official case transmission.
Petitioner sustained its burden of proof establishing that Respondents violated CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 by operating a cat rescue business (VKNR) from their residence, which involved unauthorized commercial activity, excessive non-pet animals, and creating a nuisance. Violation of 7.29 was not established. The petition was granted.
Key Issues & Findings
Violation of CC&Rs by operating an unauthorized business out of their home and housing dozens of cats in excess of a reasonable number of household pets, creating a nuisance.
Respondents operated a nonprofit cat rescue (VKNR) from their single-family residence, housing 50+ cats in a 3-car garage, which constituted an unauthorized commercial use, exceeded a reasonable number of pets, and created traffic and waste nuisances.
Orders: Petitioner's petition is granted. Respondents must henceforth abide by CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs section 7.2
CC&Rs section 7.3
CC&Rs section 7.25
CC&Rs section 7.26
CC&Rs section 7.28
CC&Rs section 7.31
Analytics Highlights
Topics: Home Business, Pets/Animals, Nuisance, CC&Rs, Enforcement, HOA
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(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. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H003-REL Decision – 1094853.pdf
Uploaded 2026-01-23T18:00:39 (51.0 KB)
24F-H003-REL Decision – 1113338.pdf
Uploaded 2026-01-23T18:00:44 (49.4 KB)
24F-H003-REL Decision – 1125372.pdf
Uploaded 2026-01-23T18:00:48 (65.5 KB)
24F-H003-REL Decision – 1147484.pdf
Uploaded 2026-01-23T18:00:51 (184.8 KB)
Study Guide – 24F-H003-REL
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24F-H003-REL
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In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
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Today • 3:04 PM
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Mind Map
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Data Table
Blog Post – 24F-H003-REL
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24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Anthony Rossetti(petitioner attorney, property manager) Rossetti Management & Realty Services Represented Petitioner and owned the newly hired management company.
Douglas Karolak(witness, homeowner) VVE-Casa Grande HOA Member Testified on behalf of Petitioner.
Nicole Elliot(property manager) Norris Management Former HOA management committee/manager who issued warning letters.
CD Mai(homeowner/neighbor) VVE-Casa Grande HOA Member Mentioned by Karolak as a vocal opponent/adjacent neighbor to the Eitels.
Respondent Side
Duane Eitel(respondent, witness) VVE-Casa Grande HOA Member Referred to as Duane S Eitel in earlier documents; DE in the decision.
Mary Eitel(respondent) VVE-Casa Grande HOA Member, CEO/Director of Valley Kitten Nursery & Rescue Inc. Referred to as Mary L Eitel in earlier documents.
Kevin Harper(respondent attorney) Harper Law, PLC
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Susan Nicolson(commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
vnunez(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
labril(ADRE staff) Arizona Department of Real Estate
Christopher Sinco(code compliance officer) Pinal County Animal Control Involved in the 2017/2018 county inspection.
Other Participants
Scott Lenderman(property manager) HOA management administrator (prior to Rossetti) Mentioned as the first HOA management administrator.
Petitioner met the burden of proof for both alleged violations: violation of the Declaration (not enforcing the 25ft setback) and violation of A.R.S. § 33-1805 (failing to provide documents). The petition was granted, and Respondent was ordered to reimburse the $1,000.00 filing fee.
Key Issues & Findings
Failure to provide documents
Respondent failed to produce documents requested by Petitioner, specifically meeting minutes discussing the investigative report, within the statutory timeframe, violating A.R.S. § 33-1805.
Orders: Respondent was found in violation of A.R.S. § 33-1805 and Declaration Section F. Respondent shall reimburse Petitioner’s filing fee of $1,000.00.
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “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”, “records inspection”, “bylaws” ] } ] }
Blog Post – 24F-H015-REL
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “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”, “records inspection”, “bylaws” ] } ] }
Case Participants
Petitioner Side
Teri S. Morcomb(petitioner) Lot 8 owner, testified
J. Ted Morcomb(petitioner) Lot 8 owner
Jeffrey T. Brei(petitioner attorney)
Tracy Allen Bogardis(witness) Civil Engineer Testified regarding drainage/hydrology
Respondent Side
Phillip Brown(HOA attorney)
Kelly Oetinger(HOA attorney)
Robert Leuen(board president) Sierra Tortuga HOA Testified
Marcella Bernadette Aguilar(witness) Sierra Tortuga HOA Lot 9 owner, testified
Abel Sodto(lot owner) Sierra Tortuga HOA Lot 9 owner, former Board/ARC member, subject of violation
Clint Stoddard(board member) Sierra Tortuga HOA Investigator
Benny Medina(board member) Sierra Tortuga HOA Investigator, former president
Joseph D. Martino(ARC member) Sierra Tortuga HOA Former Architectural Committee Head
Chris Stler(board member) Sierra Tortuga HOA Vice President of HOA
Yvon Posche(board member) Sierra Tortuga HOA Secretary of HOA
Steve Brockam(board member) Sierra Tortuga HOA Board Director
Perry Terren(ARC chair) Sierra Tortuga HOA ARC Chairman and Board Director
Jeremy Thompson(law clerk) HOA Attorney's office
Mike Shupe(former HOA attorney)
Neutral Parties
Adam D. Stone(ALJ) OAH
Tim Ross(board member) Sierra Tortuga HOA Former board/investigator, criticized current board actions
The Administrative Law Judge denied the petition, concluding that the homeowner failed to meet the burden of proof to show the HOA violated its documents. The Declaration and Rules unambiguously prohibited hard floor coverings (including vinyl) in the Petitioner's third-floor unit, and the Petitioner admitted installing the flooring without seeking approval.
Why this result: Petitioner failed to meet the burden of proof. Petitioner received the governing documents prior to closing, failed to fully read them, and failed to seek permission from the Association prior to installing the prohibited Luxury Vinyl Plank flooring.
Key Issues & Findings
Flooring Restriction for New Units
Petitioner challenged the Association's enforcement of a declaration rule prohibiting hard floor coverings (like LVP) in his third-floor unit, arguing his chosen flooring had sufficient soundproofing. The Association argued the rule was clear, unambiguous, and mandatory for enforcement.
Orders: Petitioner's petition is denied. Respondent shall not reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
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
Analytics Highlights
Topics: Flooring Restriction, Luxury Vinyl Plank (LVP), CCNR Enforcement, Third Floor Unit, Prior Approval
Additional Citations:
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
Video Overview
Audio Overview
Decision Documents
23F-H066-REL Decision – 1085177.pdf
Uploaded 2026-01-23T18:00:06 (48.3 KB)
23F-H066-REL Decision – 1112087.pdf
Uploaded 2026-01-23T18:00:14 (110.4 KB)
Questions
Question
Can I install hard flooring like vinyl or hardwood in my upper-floor condo unit?
Short Answer
Not if the CC&Rs specifically prohibit it to mitigate noise, even if the product is high quality.
Detailed Answer
If the governing documents explicitly prohibit hard floor coverings in specific units (such as second or third-floor units) to mitigate noise, the HOA can enforce this restriction regardless of the quality or sound rating of the material installed.
Alj Quote
Except for entry areas where hard floor coverings have been installed by Declarant, and except for kitchen, bathroom and laundry areas, hard floor coverings (e.g., ceramic tile, natural stone, vinyl, hardwood or laminated flooring) shall be prohibited in all other areas… and all third floor Units.
Legal Basis
CC&Rs Section 4.24
Topic Tags
architectural restrictions
flooring
noise mitigation
Question
Is it a valid defense that I didn't read the CC&Rs before making a change?
Short Answer
No. If you received the documents, you are responsible for knowing the rules.
Detailed Answer
Admitting that you received the Declaration and Rules but did not read them is not a valid defense against a violation. The tribunal will likely find against a homeowner who had the opportunity to review the restrictions but failed to do so.
Alj Quote
Petitioner admitted in his testimony that he timely received a copy of the Declaration and Rules approximately a week prior to closing. Petitioner also admitted that he did not fully read the same… The tribunal finds that Petitioner has not met his burden.
Legal Basis
Contractual Obligation / Constructive Notice
Topic Tags
homeowner responsibilities
CC&Rs
ignorance of law
Question
Does my HOA have to approve a renovation if the new material is 'better' or more valuable than what is required?
Short Answer
No. Clear rules in the CC&Rs override arguments about aesthetics or resale value.
Detailed Answer
Even if a homeowner presents valid points about the superior look or potential resale value of a prohibited improvement (like LVP flooring vs. carpet), the ALJ will enforce the clear and unambiguous language of the governing documents.
Alj Quote
While Petitioner probably had valid points about the look and potential value of LVP flooring versus carpeting, unfortunately, the Declarations and Rules are clear and unambiguous…
Legal Basis
Enforcement of Governing Documents
Topic Tags
architectural control
property value
renovations
Question
What happens if I start a renovation without asking for HOA permission first?
Short Answer
You risk violating rules you weren't aware of and may be forced to stop or reverse the work.
Detailed Answer
Skipping the approval process is risky. If a homeowner fails to seek permission, they miss the opportunity to be informed of specific prohibitions before spending money on installation.
Alj Quote
Petitioner admitted that he did not seek permission from the Association to install the LVP flooring, which had he done, he probably would have been informed that the Rules did not allow for the same.
Legal Basis
Architectural Review Process
Topic Tags
procedural requirements
renovations
violations
Question
Who has to prove their case in an HOA dispute hearing?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove by a 'preponderance of the evidence' that the HOA violated the governing documents or laws.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the Declarations and Association Rules.
Legal Basis
Burden of Proof (ARIZ. ADMIN. CODE R2-19-119)
Topic Tags
legal procedure
burden of proof
hearings
Question
What does 'preponderance of the evidence' mean?
Short Answer
It means the evidence shows the claim is more likely true than not.
Detailed Answer
The standard involves superior evidentiary weight that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
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
Legal Standard of Evidence
Topic Tags
legal definitions
evidence
Question
If I lose my case against the HOA, will I get my filing fee back?
Short Answer
No. Reimbursement is generally denied if the petition is denied.
Detailed Answer
If the ALJ rules against the homeowner and denies the petition, the order will typically state that the Respondent (HOA) is not required to reimburse the filing fee.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee…
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
costs
penalties
fees
Case
Docket No
23F-H066-REL
Case Title
Sebastien Verstraet v. Monterey Ridge Condominium Association
Decision Date
2023-11-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can I install hard flooring like vinyl or hardwood in my upper-floor condo unit?
Short Answer
Not if the CC&Rs specifically prohibit it to mitigate noise, even if the product is high quality.
Detailed Answer
If the governing documents explicitly prohibit hard floor coverings in specific units (such as second or third-floor units) to mitigate noise, the HOA can enforce this restriction regardless of the quality or sound rating of the material installed.
Alj Quote
Except for entry areas where hard floor coverings have been installed by Declarant, and except for kitchen, bathroom and laundry areas, hard floor coverings (e.g., ceramic tile, natural stone, vinyl, hardwood or laminated flooring) shall be prohibited in all other areas… and all third floor Units.
Legal Basis
CC&Rs Section 4.24
Topic Tags
architectural restrictions
flooring
noise mitigation
Question
Is it a valid defense that I didn't read the CC&Rs before making a change?
Short Answer
No. If you received the documents, you are responsible for knowing the rules.
Detailed Answer
Admitting that you received the Declaration and Rules but did not read them is not a valid defense against a violation. The tribunal will likely find against a homeowner who had the opportunity to review the restrictions but failed to do so.
Alj Quote
Petitioner admitted in his testimony that he timely received a copy of the Declaration and Rules approximately a week prior to closing. Petitioner also admitted that he did not fully read the same… The tribunal finds that Petitioner has not met his burden.
Legal Basis
Contractual Obligation / Constructive Notice
Topic Tags
homeowner responsibilities
CC&Rs
ignorance of law
Question
Does my HOA have to approve a renovation if the new material is 'better' or more valuable than what is required?
Short Answer
No. Clear rules in the CC&Rs override arguments about aesthetics or resale value.
Detailed Answer
Even if a homeowner presents valid points about the superior look or potential resale value of a prohibited improvement (like LVP flooring vs. carpet), the ALJ will enforce the clear and unambiguous language of the governing documents.
Alj Quote
While Petitioner probably had valid points about the look and potential value of LVP flooring versus carpeting, unfortunately, the Declarations and Rules are clear and unambiguous…
Legal Basis
Enforcement of Governing Documents
Topic Tags
architectural control
property value
renovations
Question
What happens if I start a renovation without asking for HOA permission first?
Short Answer
You risk violating rules you weren't aware of and may be forced to stop or reverse the work.
Detailed Answer
Skipping the approval process is risky. If a homeowner fails to seek permission, they miss the opportunity to be informed of specific prohibitions before spending money on installation.
Alj Quote
Petitioner admitted that he did not seek permission from the Association to install the LVP flooring, which had he done, he probably would have been informed that the Rules did not allow for the same.
Legal Basis
Architectural Review Process
Topic Tags
procedural requirements
renovations
violations
Question
Who has to prove their case in an HOA dispute hearing?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove by a 'preponderance of the evidence' that the HOA violated the governing documents or laws.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the Declarations and Association Rules.
Legal Basis
Burden of Proof (ARIZ. ADMIN. CODE R2-19-119)
Topic Tags
legal procedure
burden of proof
hearings
Question
What does 'preponderance of the evidence' mean?
Short Answer
It means the evidence shows the claim is more likely true than not.
Detailed Answer
The standard involves superior evidentiary weight that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
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
Legal Standard of Evidence
Topic Tags
legal definitions
evidence
Question
If I lose my case against the HOA, will I get my filing fee back?
Short Answer
No. Reimbursement is generally denied if the petition is denied.
Detailed Answer
If the ALJ rules against the homeowner and denies the petition, the order will typically state that the Respondent (HOA) is not required to reimburse the filing fee.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee…
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
costs
penalties
fees
Case
Docket No
23F-H066-REL
Case Title
Sebastien Verstraet v. Monterey Ridge Condominium Association
Decision Date
2023-11-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Sebastien Verstraet(petitioner) Appeared on his own behalf
Ron Riecks(witness) Flooring installer for Petitioner; also referred to as Ron Reichkes
Respondent Side
Joshua M. Bolen(attorney) Carpenter Hazlewood
Marcus R. Martinez(attorney) Carpenter Hazlewood
Robert Stein(property manager) City Property Management Testified as a witness for Respondent
Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs)
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's petition, finding that the Petitioner failed to prove that the Association violated CC&Rs Section 2.1 by adopting the Residential Parking Policy. The Policy was deemed a valid clarification authorized by existing CC&R provisions (4.2(t) and 5.3).
Why this result: Petitioner failed to meet the burden of proof required to establish a violation of the governing documents.
Key Issues & Findings
Violation of CC&Rs Section 2.1 regarding adoption of Residential Parking Policy
Petitioner alleged that the Association's adoption of the Residential Parking Policy violated CC&Rs Section 2.1 because the policy used the unauthorized term 'Rules and Regulations' rather than 'restrictions,' thereby attempting to amend the CC&Rs without following the proper process, particularly concerning the use of government-owned property.
Orders: Petitioner's petition was dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
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. REV. STAT. § 41-1092.09
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, CC&Rs, Parking Policy, Rules vs Restrictions, Burden of Proof, Planned Community
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(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. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H009-REL Decision – 1101544.pdf
Uploaded 2026-01-23T18:01:45 (47.0 KB)
24F-H009-REL Decision – 1111460.pdf
Uploaded 2026-01-23T18:01:48 (102.6 KB)
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
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
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
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
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Thomas P. Hommrich(petitioner) Property owner, appeared on his own behalf
Respondent Side
Quinten Cupps(HOA attorney) VIal Fotheringham, LLP Represented The Lakewood Community Association
Sandra Smith(community manager) Lakewood Community Association Witness who testified on behalf of Respondent
Neutral Parties
Brian Del Vecchio(ALJ) Office of Administrative Hearings Administrative Law Judge for the hearing and final decision
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Administrative Law Judge who issued the October 12, 2023 Order
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Moses Thompson(Judge) Judge cited in precedent case (Brian Seatic v Lake Resort Condominium)
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
labril(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
Brian Seatic(party) Party in precedent case (Brian Seatic v Lake Resort Condominium) cited during the hearing
Woodland Valley Ranch Property Owners Association, Inc.
Counsel
Kyle A. von Johnson and Edith I. Rudder
Alleged Violations
CC&Rs, Article 3, Section G
Outcome Summary
The ALJ affirmed the petition, finding the Respondent HOA violated CC&Rs, Article 3, Section G by failing to provide 30 days' notice prior to the 2023 assessment increase. The Respondent was ordered to reimburse the Petitioner's filing fee.
Key Issues & Findings
Failure to provide 30-day notice for 2023 dues increase
The HOA increased annual dues from $200.00 to $240.00 effective 1/1/2023 due to a financial crisis caused by embezzlement, but failed to provide the required 30-day written notice as mandated by the CC&Rs. Although the increase was later refunded, the ALJ affirmed the petition finding the HOA failed to comply with the CC&Rs.
Orders: Petitioner's petition is affirmed. Respondent is ordered to reimburse Petitioner's $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs, Article 3, Section G
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
Analytics Highlights
Topics: HOA Dues Increase, Notice Violation, CC&R Violation, Embezzlement, Filing Fee Refund, Assessment Timing
Additional Citations:
CC&Rs, Article 3, Section G
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 33-1804(D)
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. § 41-1092
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
23F-H061-REL Decision – 1077230.pdf
Uploaded 2026-01-23T17:59:31 (41.5 KB)
23F-H061-REL Decision – 1095389.pdf
Uploaded 2026-01-23T17:59:34 (44.3 KB)
23F-H061-REL Decision – 1095762.pdf
Uploaded 2026-01-23T17:59:37 (6.7 KB)
23F-H061-REL Decision – 1102356.pdf
Uploaded 2026-01-23T17:59:42 (110.9 KB)
Questions
Question
Can my HOA raise dues without proper notice if they are facing a severe financial emergency?
Short Answer
No, financial crises do not exempt the HOA from following the notice timelines in the CC&Rs.
Detailed Answer
The ALJ ruled that even though the HOA was in an 'untenable' position due to embezzlement and urgent debts, they were still strictly bound to provide the specific notice (30 days in this case) required by the governing documents before increasing assessments.
Alj Quote
First, while the tribunal sympathizes with the untenable and horrible position that the Association was facing, it still failed to comply with the CCR’s, by not providing the 30 day notice prior to the 2023 yearly Assessment.
Legal Basis
CC&Rs Compliance
Topic Tags
Assessments
Emergency Powers
Notice Requirements
Question
If I win my hearing, will I get my filing fee back even if I tell the judge I don't want it?
Short Answer
Yes, the statute requires the filing fee to be reimbursed if the petitioner prevails, regardless of their personal preference.
Detailed Answer
The judge ordered the HOA to reimburse the $500 filing fee because the relevant statute (A.R.S. § 32-2199.01) binds the tribunal to order reimbursement when the petitioner wins, even though the homeowner explicitly testified she did not wish to recover it.
Alj Quote
At hearing, Petitioner testified that she did not wish to recovery her filing fee, the tribunal is bound by the statute to order the same.
Legal Basis
A.R.S. § 32-2199.01; A.R.S. § 32-2199.02(A)
Topic Tags
Filing Fees
Reimbursement
Statutory Mandates
Question
What level of proof do I need to provide to win a dispute against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probable than not.
Detailed Answer
The homeowner bears the burden of proof. The standard is not 'beyond a reasonable doubt' (like in criminal cases), but rather showing that the evidence is sufficient to incline a fair mind to one side over the other.
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
A.R.S. § 33-1804(D); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Standards
Evidence
Question
Will the judge automatically fine the HOA if I prove they violated the rules?
Short Answer
No, if you do not specifically request a civil penalty in your petition, the judge generally will not award one.
Detailed Answer
In this case, although the HOA was found in violation, the judge ordered that no civil penalty be awarded specifically because the petitioner did not include a request for a penalty in her initial paperwork.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty be awarded as Petitioner did not request the same in her Petition.
Legal Basis
Administrative Discretion
Topic Tags
Civil Penalties
Fines
Petition Drafting
Question
If the HOA fixes the problem (like refunding money) before the decision, is the case dismissed?
Short Answer
Not necessarily; the judge may still issue a decision affirming the violation occurred.
Detailed Answer
The HOA had already refunded the improper assessment increase to members before the decision was written. However, the ALJ still issued an order affirming the petition and finding that the HOA had failed to comply with the CC&Rs.
Alj Quote
The tribunal finds that Petitioner has met her burden. … Fortunately for the Association and the homeowners, it … was able to issue a refund of $40.00 to its members.
Legal Basis
Mootness (Implicitly Rejected)
Topic Tags
Refunds
Violations
Case Outcomes
Case
Docket No
23F-H061-REL
Case Title
Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.
Decision Date
2023-10-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA raise dues without proper notice if they are facing a severe financial emergency?
Short Answer
No, financial crises do not exempt the HOA from following the notice timelines in the CC&Rs.
Detailed Answer
The ALJ ruled that even though the HOA was in an 'untenable' position due to embezzlement and urgent debts, they were still strictly bound to provide the specific notice (30 days in this case) required by the governing documents before increasing assessments.
Alj Quote
First, while the tribunal sympathizes with the untenable and horrible position that the Association was facing, it still failed to comply with the CCR’s, by not providing the 30 day notice prior to the 2023 yearly Assessment.
Legal Basis
CC&Rs Compliance
Topic Tags
Assessments
Emergency Powers
Notice Requirements
Question
If I win my hearing, will I get my filing fee back even if I tell the judge I don't want it?
Short Answer
Yes, the statute requires the filing fee to be reimbursed if the petitioner prevails, regardless of their personal preference.
Detailed Answer
The judge ordered the HOA to reimburse the $500 filing fee because the relevant statute (A.R.S. § 32-2199.01) binds the tribunal to order reimbursement when the petitioner wins, even though the homeowner explicitly testified she did not wish to recover it.
Alj Quote
At hearing, Petitioner testified that she did not wish to recovery her filing fee, the tribunal is bound by the statute to order the same.
Legal Basis
A.R.S. § 32-2199.01; A.R.S. § 32-2199.02(A)
Topic Tags
Filing Fees
Reimbursement
Statutory Mandates
Question
What level of proof do I need to provide to win a dispute against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probable than not.
Detailed Answer
The homeowner bears the burden of proof. The standard is not 'beyond a reasonable doubt' (like in criminal cases), but rather showing that the evidence is sufficient to incline a fair mind to one side over the other.
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
A.R.S. § 33-1804(D); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Standards
Evidence
Question
Will the judge automatically fine the HOA if I prove they violated the rules?
Short Answer
No, if you do not specifically request a civil penalty in your petition, the judge generally will not award one.
Detailed Answer
In this case, although the HOA was found in violation, the judge ordered that no civil penalty be awarded specifically because the petitioner did not include a request for a penalty in her initial paperwork.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty be awarded as Petitioner did not request the same in her Petition.
Legal Basis
Administrative Discretion
Topic Tags
Civil Penalties
Fines
Petition Drafting
Question
If the HOA fixes the problem (like refunding money) before the decision, is the case dismissed?
Short Answer
Not necessarily; the judge may still issue a decision affirming the violation occurred.
Detailed Answer
The HOA had already refunded the improper assessment increase to members before the decision was written. However, the ALJ still issued an order affirming the petition and finding that the HOA had failed to comply with the CC&Rs.
Alj Quote
The tribunal finds that Petitioner has met her burden. … Fortunately for the Association and the homeowners, it … was able to issue a refund of $40.00 to its members.
Legal Basis
Mootness (Implicitly Rejected)
Topic Tags
Refunds
Violations
Case Outcomes
Case
Docket No
23F-H061-REL
Case Title
Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.
Decision Date
2023-10-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Megan E Gardner(petitioner) Property owner of Parcel 222
Respondent Side
Kyle A. von Johnson(HOA attorney) Woodland Valley Ranch Property Owners Association, Inc.
Edith I. Rudder(HOA attorney) Woodland Valley Ranch Property Owners Association, Inc.
Ronald Carter(Treasurer/Witness) Woodland Valley Ranch Property Owners Association, Inc. Treasurer since June 2022. Referred to as 'Ronald Cotter' in the ALJ Decision Findings of Fact.
David Goodman(Witness) Woodland Valley Ranch Property Owners Association, Inc. Appeared remotely; recruited to serve as President after previous board members resigned.
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings (OAH)
Susan Nicolson(Commissioner) Arizona Department of Real Estate (ADRE)
AHansen(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
vnunez(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
djones(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
labril(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
Article III Section 3 of the Bylaws of Hilton Casitas Council of Co-owners ARIZ. REV. STAT. § 33-1250(C)
Outcome Summary
The Administrative Law Judge affirmed the petition regarding the Bylaws violation (annual meeting held 27 days late, 23F-H052-REL) but denied the request for civil penalties. The ALJ dismissed the petition regarding the alleged statutory violation of in-person voting requirements (23F-H064-REL), finding Petitioner did not meet his burden of proof. Petitioner was reimbursed the $500 filing fee for the prevailing issue.
Why this result: Petitioner lost the statutory claim (23F-H064-REL) due to failure to provide sufficient evidence for a narrow interpretation of 'in person' voting. Petitioner failed to prove that civil penalties were warranted for the Bylaws violation (23F-H052-REL).
Key Issues & Findings
Failure to hold the annual meeting prior to March 31, 2023 (23F-H052-REL)
Petitioner alleged Respondent failed to hold the annual meeting by the Bylaws' deadline of March 31, 2023. Respondent stipulated that the meeting, held on April 27, 2023, was late, constituting a violation.
Orders: Respondent violated Article III Section 3 of the Bylaws; Petition affirmed. Petitioner was denied civil penalties but was reimbursed the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 32-2199.02
Alleged violation for failing to allow in-person voting (23F-H064-REL)
Petitioner alleged Respondent violated the statute by allowing voting only through video conferencing and failing to provide an opportunity for in-person voting. The ALJ found Petitioner failed to provide sufficient evidence to support a narrow interpretation of 'in person' that excludes remote video attendance.
Orders: Respondent did not violate ARIZ. REV. STAT. § 33-1250(C). Petition dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1250(C)
Analytics Highlights
Topics: HOA Annual Meeting Deadline, Bylaws Violation, HOA Voting Procedure, In-Person Voting, Video Conferencing Voting, Civil Penalties, Mootness Defense, Waiver Defense
The Administrative Law Judge dismissed the Petitioner's petition, concluding that Petitioner failed to meet her burden of proof that the Rovey Farm Estates Homeowners Association engaged in selective enforcement regarding the shed constructed without prior approval, which violated the CC&Rs and design guidelines.
Why this result: Petitioner failed to provide sufficient evidence of selective enforcement. She admitted her shed was built without prior approval, was taller than the fence line, and was visible from the street, all of which violated the CC&Rs. The evidence presented by the Respondent showed consistent enforcement actions regarding similar violations.
Key Issues & Findings
Alleged selective, arbitrary, and capricious enforcement of CC&Rs regarding shed construction and prior approval.
Petitioner alleged that the HOA selectively enforced its shed policy against her, claiming that her denial for a shed built without prior approval and exceeding the fence height should be excused because other, similar non-compliant sheds existed in the community and were not consistently cited.
Orders: Petitioner's petition was dismissed. Petitioner's request to levy a civil penalty against Respondent was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_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.
CC&Rs Article 2 §§ 3.2, 3.3, and 3.11
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
23F-H055-REL Decision – 1062778.pdf
Uploaded 2026-01-23T17:57:44 (44.1 KB)
23F-H055-REL Decision – 1086088.pdf
Uploaded 2026-01-23T17:57:46 (110.9 KB)
Questions
Question
If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?
Short Answer
The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.
Detailed Answer
In an administrative hearing regarding HOA disputes, the burden falls on the homeowner to provide sufficient evidence that the HOA violated its own CC&Rs or acted arbitrarily. Merely alleging selective enforcement without sufficient proof is not enough to win the case.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs… Petitioner alleged but failed to provide sufficient evidence of Respondent’s supposed selective enforcement.
Legal Basis
Burden of Proof
Topic Tags
selective enforcement
burden of proof
legal procedure
Question
Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?
Short Answer
Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.
Detailed Answer
Most CC&Rs explicitly state that no construction or modification can occur without prior written approval. Admitting to building a structure without this approval constitutes a violation in itself. If the structure also violates design guidelines (e.g., height or visibility), the HOA can enforce the rules against it.
Alj Quote
Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.
Legal Basis
CC&R Violation
Topic Tags
architectural approval
unauthorized construction
violations
Question
If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?
Short Answer
No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.
Detailed Answer
The ALJ decision accepted testimony that while enforcement might have been reduced during a specific event like the COVID-19 pandemic, the HOA is entitled to resume enforcement of rules (such as design guidelines) once normal operations return.
Alj Quote
Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.
Legal Basis
Enforcement Discretion
Topic Tags
waiver
enforcement history
COVID-19
Question
Can the HOA deny my shed if it is visible from the street or taller than the fence line?
Short Answer
Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.
Detailed Answer
Violating specific physical constraints listed in the community documents, such as height restrictions relative to a fence line or visibility from public streets, are valid grounds for the HOA to find a violation and deny approval.
Alj Quote
Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.
Legal Basis
Design Guidelines
Topic Tags
architectural standards
sheds
visibility
Question
What is the 'standard of proof' used in these HOA hearings?
Short Answer
The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.
Detailed Answer
To win an administrative hearing against an HOA, a homeowner does not need to prove their case beyond a reasonable doubt. They must simply show that their claim is 'more probably true than not'—essentially carrying greater evidentiary weight than the opposing side.
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
Evidentiary Standard
Topic Tags
legal definitions
evidence
hearings
Question
Where can I file a legal dispute against my HOA without going to civil court?
Short Answer
Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.
Detailed Answer
The ADRE has jurisdiction over disputes between owners and planned community associations regarding violations of community documents or statutes. The case is then typically heard by the Office of Administrative Hearings.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department…
Legal Basis
A.R.S. § 32-2199
Topic Tags
jurisdiction
ADRE
dispute resolution
Case
Docket No
23F-H055-REL
Case Title
Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date
2023-08-22
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?
Short Answer
The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.
Detailed Answer
In an administrative hearing regarding HOA disputes, the burden falls on the homeowner to provide sufficient evidence that the HOA violated its own CC&Rs or acted arbitrarily. Merely alleging selective enforcement without sufficient proof is not enough to win the case.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs… Petitioner alleged but failed to provide sufficient evidence of Respondent’s supposed selective enforcement.
Legal Basis
Burden of Proof
Topic Tags
selective enforcement
burden of proof
legal procedure
Question
Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?
Short Answer
Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.
Detailed Answer
Most CC&Rs explicitly state that no construction or modification can occur without prior written approval. Admitting to building a structure without this approval constitutes a violation in itself. If the structure also violates design guidelines (e.g., height or visibility), the HOA can enforce the rules against it.
Alj Quote
Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.
Legal Basis
CC&R Violation
Topic Tags
architectural approval
unauthorized construction
violations
Question
If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?
Short Answer
No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.
Detailed Answer
The ALJ decision accepted testimony that while enforcement might have been reduced during a specific event like the COVID-19 pandemic, the HOA is entitled to resume enforcement of rules (such as design guidelines) once normal operations return.
Alj Quote
Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.
Legal Basis
Enforcement Discretion
Topic Tags
waiver
enforcement history
COVID-19
Question
Can the HOA deny my shed if it is visible from the street or taller than the fence line?
Short Answer
Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.
Detailed Answer
Violating specific physical constraints listed in the community documents, such as height restrictions relative to a fence line or visibility from public streets, are valid grounds for the HOA to find a violation and deny approval.
Alj Quote
Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.
Legal Basis
Design Guidelines
Topic Tags
architectural standards
sheds
visibility
Question
What is the 'standard of proof' used in these HOA hearings?
Short Answer
The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.
Detailed Answer
To win an administrative hearing against an HOA, a homeowner does not need to prove their case beyond a reasonable doubt. They must simply show that their claim is 'more probably true than not'—essentially carrying greater evidentiary weight than the opposing side.
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
Evidentiary Standard
Topic Tags
legal definitions
evidence
hearings
Question
Where can I file a legal dispute against my HOA without going to civil court?
Short Answer
Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.
Detailed Answer
The ADRE has jurisdiction over disputes between owners and planned community associations regarding violations of community documents or statutes. The case is then typically heard by the Office of Administrative Hearings.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department…
Legal Basis
A.R.S. § 32-2199
Topic Tags
jurisdiction
ADRE
dispute resolution
Case
Docket No
23F-H055-REL
Case Title
Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date
2023-08-22
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Rosalie Lynne Emmons(petitioner) Rovey Farm Estates property owner; appeared on her own behalf
Respondent Side
Michael S. McLeran(HOA attorney) Childers Hanlon & Hudson, PLC Appeared on behalf of Rovey Farm Estates Homeowners Association
Matt Johnson(community manager/witness) Envision Community Management Community Manager for Rovey Farm Estate; Appeared as a witness for the Association
Mark Schmidt(HOA staff) Envision Community Management Completed exhibit list (Exhibit 7) used by Respondent
Carrie Schmidt(compliance officer) Envision Community Management Compliance inspector responsible for citing violations
Neutral Parties
Brian Del Vecchio(ALJ) OAH Administrative Law Judge
Susan Nicolson(Commissioner) ADRE Arizona Department of Real Estate Commissioner
Other Participants
AHansen(ADRE staff) ADRE Recipient of decision transmission
vnunez(ADRE staff) ADRE Recipient of decision transmission
djones(ADRE staff) ADRE Recipient of decision transmission
labril(ADRE staff) ADRE Recipient of decision transmission
Jose Garcia(homeowner/applicant) Rovey Farm Estates Homeowner whose shed application was denied
The Administrative Law Judge dismissed the petition, finding that Petitioner Harry G. Turner failed to meet his burden of proof to demonstrate that the Mountain Gate Home Owners Association, Inc. violated Article 10 Section 4 of the CC&Rs by planning drainage construction in Tract H.
Why this result: Petitioner failed to provide sufficient evidence to reconcile conflicting designations of Tract H in the plat map (Preserved/Active Open Space vs. Drainage), thus failing to prove that the drainage ditch constituted a prohibited change of use.
Key Issues & Findings
Required membership vote for common area use change (Tract H drainage ditch)
Petitioner alleged the HOA (Respondent) violated CC&Rs Article 10 Section 4 by planning to dig a drainage ditch in Tract H, arguing this was a change of use requiring a 2/3rds membership vote. Respondent argued Tract H was already designated for drainage in the 'Conveyance and Dedication' portion of the plat map, negating the need for a vote.
Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 33-1804
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.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project
Analytics Highlights
Topics: HOA, CC&R, Drainage, Common Area, Change of Use, Burden of Proof, Planned Community, Plat Map
Additional Citations:
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 33-1804
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.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project
Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.
Legal Basis
Burden of Proof
Topic Tags
legal standards
procedure
Question
What is the legal standard of evidence required to win a case against an HOA?
Short Answer
The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.
Detailed Answer
The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.
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
Preponderance of Evidence
Topic Tags
evidence
legal definitions
Question
What happens if community documents (like a plat map) contain conflicting descriptions of a common area?
Short Answer
If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.
Detailed Answer
In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.
Alj Quote
Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.
Legal Basis
Burden of Proof
Topic Tags
document interpretation
common areas
Question
Does the Department of Real Estate have jurisdiction over CC&R disputes?
Short Answer
Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.
Detailed Answer
Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.
Alj Quote
This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
A.R.S. § 32-2199
Topic Tags
jurisdiction
regulatory authority
Question
If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?
Short Answer
Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.
Detailed Answer
The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.
Alj Quote
Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.
Legal Basis
CC&R Interpretation
Topic Tags
common areas
voting rights
Question
Can I request a civil penalty be levied against my HOA?
Short Answer
You can request it, but it will be denied if you fail to prove the violation.
Detailed Answer
In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Order
Topic Tags
penalties
remedies
Case
Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.
Legal Basis
Burden of Proof
Topic Tags
legal standards
procedure
Question
What is the legal standard of evidence required to win a case against an HOA?
Short Answer
The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.
Detailed Answer
The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.
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
Preponderance of Evidence
Topic Tags
evidence
legal definitions
Question
What happens if community documents (like a plat map) contain conflicting descriptions of a common area?
Short Answer
If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.
Detailed Answer
In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.
Alj Quote
Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.
Legal Basis
Burden of Proof
Topic Tags
document interpretation
common areas
Question
Does the Department of Real Estate have jurisdiction over CC&R disputes?
Short Answer
Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.
Detailed Answer
Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.
Alj Quote
This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
A.R.S. § 32-2199
Topic Tags
jurisdiction
regulatory authority
Question
If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?
Short Answer
Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.
Detailed Answer
The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.
Alj Quote
Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.
Legal Basis
CC&R Interpretation
Topic Tags
common areas
voting rights
Question
Can I request a civil penalty be levied against my HOA?
Short Answer
You can request it, but it will be denied if you fail to prove the violation.
Detailed Answer
In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Order
Topic Tags
penalties
remedies
Case
Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Harry G. Turner(petitioner) Appeared on his own behalf
Respondent Side
Michael Luden(president/representative) Mountain Gate Home Owners Association, Inc. Appeared on behalf of Respondent. Identified as President of the Homeowners Association
Brenda Anderson(witness/secretary) Mountain Gate Home Owners Association, Inc. Witness for Respondent; Secretary of Mountain Gate Homeowners Association
Kelly Callahan(HOA attorney) HOA's attorney who wrote an email regarding the drainage ditch proposal
Neutral Parties
Brian Del Vecchio(ALJ) OAH Administrative Law Judge
Susan Nicolson(Commissioner) Arizona Department of Real Estate Listed in transmission list
Jeremiah Lloyd(Community Development Director) Pinetop Lakeside Community Development Director for Pinetop Lakeside
Bill Best(County Engineer) Navajo County Navajo County Engineer
Emory Ellsworth(engineer) Painted Sky Engineering and Surveying Engineer consulted by Petitioner
John Murphy(engineer) Murphy Engineering Group Engineer whose company provided original certified plans
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Listed in transmission list
vnunez(ADRE staff) Arizona Department of Real Estate Listed in transmission list
djones(ADRE staff) Arizona Department of Real Estate Listed in transmission list
labril(ADRE staff) Arizona Department of Real Estate Listed in transmission list
Ken Anderson(community member) Mentioned as being present when a document was allegedly falsified
