Tag Archives: ARIZ. REV. STAT. § 32-2199.01(D)

Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

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Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 20F-H2020049-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-08
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J Stoltenberg Counsel —
Respondent Rancho Del Oro Homeowners Association Counsel Nicole Payne, Esq.

Alleged Violations

CC&Rs Section 14.8

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition following a rehearing. The ALJ concluded that the Petitioner failed to sustain the burden of proof that the Association violated CC&Rs Section 14.8, as that section applies only to the Association's notice obligation to members and not to assessment payments sent by members to the Association.

Why this result: The Petitioner failed to meet the burden of proof because the CC&R provision cited was inapplicable to the dispute. Additionally, the Petitioner was found to have inadvertently caused delays in payment receipt by using restricted delivery, contrary to instructions.

Key Issues & Findings

Whether the Association violated CC&Rs 14.8.

Petitioner alleged the Association violated CC&Rs Section 14.8 by failing to handle his monthly assessment payments correctly, resulting in late fees and threats of foreclosure. The ALJ found that Section 14.8 governs the Association's notice obligations to members and is inapplicable to the Petitioner's delivery of assessment payments to the Association.

Orders: Petitioner's petition was denied on rehearing.

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.
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. ADMIN. CODE R2-19-119
  • 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: CC&Rs, Assessments, Late Fees, Notice Provision, Burden of Proof, Rehearing
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. § 33-1243
  • ARIZ. ADMIN. CODE R2-19-119
  • 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

20F-H2020049-REL-RHG Decision – 861466.pdf

Uploaded 2025-10-09T03:35:03 (145.6 KB)

20F-H2020049-REL-RHG Decision – ../20F-H2020049-REL/811290.pdf

Uploaded 2026-01-20T13:56:54 (131.7 KB)





Briefing Doc – 20F-H2020049-REL-RHG


Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The Petitioner’s complaint, alleging the Association violated its governing documents and acted in bad faith regarding the handling of his monthly assessment payments, was comprehensively reviewed and ultimately denied. This denial was subsequently affirmed in a rehearing.

The core of the dispute centered on the Petitioner’s unilateral decision to send his monthly payments via restricted U.S. Postal Service delivery to a specific, unpaid volunteer board member. This action, taken despite clear instructions to mail payments to the Association’s P.O. Box, resulted in delayed receipt and returned mail, leading to the imposition of late fees and threats of foreclosure against the Petitioner.

The Administrative Law Judge’s central finding was that the Petitioner fundamentally misinterpreted Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs). The judge concluded this section is unambiguously applicable only to notices sent from the Association to its members, and imposes no obligations on the Association regarding mail received from members. The payment delays and resulting penalties were determined to be the direct consequence of the Petitioner’s own “volitionally took” actions, for which the Association bore no responsibility. Furthermore, the Petitioner’s claims of “bad faith” under Arizona’s nonprofit corporation statutes were dismissed as falling outside the jurisdictional authority of the Arizona Department of Real Estate and the Office of Administrative Hearings.

I. Case Overview

The legal matter concerns a petition filed by a homeowner against his condominium association, alleging violations of the community’s governing documents and state law.

Case Number

20F-H2020049-REL / 20F-H2020049-REL-RHG

Petitioner

Michael J. Stoltenberg

Respondent

Rancho Del Oro Homeowners Association

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Administrative Law Judge

Jenna Clark

The Petitioner’s initial complaint, filed on March 2, 2020, alleged that the Association “fail to do their job, and are acting in bad faith,” specifically citing violations of ARIZ. REV. STAT. §§ 10-3842 and 10-801, and Section 14.8 of the Association’s CC&Rs. He sought an order compelling the Association’s compliance and the issuance of a civil penalty.

II. Procedural History and Timeline

The dispute progressed through an initial hearing, a decision, a granted request for rehearing, and a final binding order.

• March 2, 2020: Petitioner files a single-issue petition with the Arizona Department of Real Estate (“Department”).

• March 24, 2020: Respondent files an ANSWER, denying all complaint items.

• April 1, 2020: The Department refers the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

• July 14, 2020: The initial evidentiary hearing is held.

• August 3, 2020: An AMENDED ADMINISTRATIVE LAW JUDGE DECISION is issued, denying the Petitioner’s petition.

• August 28, 2020: Petitioner submits a request for a rehearing.

• September 9, 2020: The Petitioner’s request for a rehearing is granted.

• February 16, 2021: A rehearing is held before the same Administrative Law Judge.

• March 8, 2021: A final ADMINISTRATIVE LAW JUDGE DECISION is issued, again denying the Petitioner’s petition.

III. Central Dispute: Assessment Payments and CC&R Section 14.8

The conflict originated from the Petitioner’s method of submitting monthly assessment payments and his interpretation of the Association’s obligations under its CC&Rs.

The Petitioner’s Actions and Their Consequences

• Instruction: On January 4, 2016, the Petitioner was advised that the Association’s “primary address for receiving all correspondence and all assessment payments from its members” was PO Box 4333, Yuma, Arizona 85366.

• Unilateral Change in Method: Beginning in November 2019, the Petitioner began sending his monthly payments via restricted delivery through the United States Postal Service (USPS), designated for “board member Rhea Carlisle’s pickup only.”

• Petitioner’s Rationale: He took this action based on a belief that an agent of the Association’s property management company had previously thrown away one of his mailed payments.

• Petitioner’s Acknowledged Awareness: The Petitioner was aware that the Association employed a property management company to collect mail and that Ms. Carlisle was an “unpaid volunteer board member,” not an employee of that company.

• Resulting Delays and Penalties: This restricted delivery method caused significant issues.

◦ One payment was returned by USPS on January 25, 2020.

◦ Another was returned by USPS on June 8, 2020.

◦ Other payments were picked up late on various dates.

◦ For each instance where the payment was received late, the Petitioner was assessed a late fee and his residence was placed in danger of foreclosure.

The Disputed Provision: CC&Rs Section 14.8

The legal basis for the Petitioner’s claim rested on his interpretation of Section 14.8 of the Association’s Bylaws.

• Full Text of Section 14.8, Notices:

• Respondent’s Argument: The Association argued that this section was “inapplicable to the facts as presented” because it governs the Association’s obligation when sending notices to homeowners, not the other way around.

IV. Administrative Law Judge’s Findings and Conclusions

Across two separate decisions, the Administrative Law Judge (ALJ) consistently found that the Petitioner failed to meet his burden of proof and that his interpretation of the governing documents was incorrect.

Initial Decision (August 3, 2020)

• Inapplicability of Section 14.8: The ALJ’s primary conclusion was a complete rejection of the Petitioner’s legal argument.

• Petitioner’s Culpability: The ALJ placed the responsibility for the late payments squarely on the Petitioner.

• Outcome: The petition was denied.

Rehearing Decision (March 8, 2021)

The rehearing was granted on the Petitioner’s grounds of an alleged “Error in the admission or rejection of evidence or other errors of law” and that the initial decision was “arbitrary, capricious, or an abuse of discretion.” The ALJ found no merit in these claims.

• Reaffirmation of Core Finding: The ALJ reiterated and strengthened the conclusion regarding Section 14.8.

• Jurisdictional Ruling: The ALJ explicitly addressed the Petitioner’s “bad faith” claim by citing ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers of nonprofit corporations.

• Failure to Support Rehearing Claims: The ALJ noted a complete lack of new evidence to justify the rehearing.

• Final Outcome: The petition was again denied. The order was made final and binding, with any further appeal requiring judicial review in superior court.






Study Guide – 20F-H2020049-REL-RHG


Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, based entirely on the provided legal documents.

1. Who are the two primary parties in case No. 20F-H2020049-REL, and what are their respective roles?

2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?

3. Why did the Petitioner, beginning in November 2019, change the way he mailed his monthly assessment payments?

4. What is the specific subject of Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs)?

5. What were the consequences for the Petitioner each time the Association received his monthly assessment payment late?

6. According to the Administrative Law Judge, why was Section 14.8 of the CC&Rs inapplicable to the facts of this case?

7. What was the legal standard of proof the Petitioner was required to meet, and what is its definition?

8. On what grounds did the Petitioner request and receive a rehearing after the initial decision was issued?

9. Why did the Administrative Law Judge dismiss the Petitioner’s argument regarding Arizona Revised Statutes § 10-3842 during the rehearing?

10. What was the final outcome of both the initial hearing on July 14, 2020, and the rehearing on February 16, 2021?

——————————————————————————–

Quiz Answer Key

1. The primary parties are Michael J Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” The Petitioner is a condominium owner and member of the Association who filed a petition alleging violations, while the Respondent is the homeowners’ association that governs the development.

2. The Petitioner alleged that the Association was in violation of Arizona Revised Statutes §§ 10-3842 and 10-801, and section 14.8 of the Association’s CC&Rs. Specifically, he alleged that the Association “fail to do their job, and are acting in bad faith.”

3. The Petitioner changed his mailing method because he believed an agent of the Association’s property management company had thrown away one of his mailed payments. As a result, he began sending payments via restricted delivery by the USPS, for board member Rhea Carlisle’s pickup only.

4. Section 14.8, titled “Notices,” pertains to any notice permitted or required by the Declaration or Bylaws. It specifically addresses the Association’s notice obligation to its members when mailing them information, outlining when such notices are deemed delivered.

5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence put his residence in danger of foreclosure by the Association.

6. The Judge concluded Section 14.8 was inapplicable because its language speaks specifically to the Association’s obligation to provide notice to its members. The section has no binding authority or control over homeowners sending mail to the Association.

7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as “proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with the most convincing force that inclines an impartial mind to one side of an issue.

8. The Petitioner’s rehearing request was granted on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.” He also claimed that the initial findings of fact or decision were “arbitrary, capricious, or an abuse of discretion.”

9. The argument regarding ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers, was dismissed because it falls outside of the Department of Real Estate’s jurisdiction. The Petitioner had been advised of the Department’s jurisdictional limitations when he first filed his petition.

10. In both the initial decision (dated August 03, 2020) and the final order after the rehearing (dated March 08, 2021), the Administrative Law Judge denied the Petitioner’s petition. The Judge concluded in both instances that the Petitioner failed to sustain his burden of proof.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to be answered in a detailed essay format, synthesizing information from across the provided documents. Answers are not provided.

1. Analyze the legal reasoning used by Administrative Law Judge Jenna Clark to deny the Petitioner’s claims in both the initial hearing and the rehearing. Discuss the interpretation of CC&R Section 14.8, the concept of burden of proof, and jurisdictional limitations.

2. Trace the complete procedural history of case No. 20F-H2020049-REL from the filing of the petition to the final order. Include all key dates, actions taken by the parties and the Department, and the specific reasons for each major step, such as the granting of the rehearing.

3. Evaluate the actions taken by the Petitioner, Michael Stoltenberg, regarding his assessment payments. Explain why his unilateral decision to use restricted mail delivery, despite being aware of the Association’s procedures, ultimately caused the negative outcomes he sought to avoid.

4. Explain the contractual relationship between a homeowners’ association and a property owner as described in the legal documents. How do the CC&Rs function as an enforceable contract, and how was this concept central to the dispute?

5. Discuss the roles and authorities of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH) in resolving HOA disputes, as demonstrated by this case. What are their powers, and what specific limitations on their jurisdiction are identified in the text?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues findings of fact, conclusions of law, and an order. In this case, the ALJ was Jenna Clark.

Arizona Department of Real Estate (Department)

The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Association

The Rancho Del Oro Homeowners Association, a condominium association whose membership is comprised of the condominium owners in the Rancho Del Oro residential real estate development in Yuma, Arizona.

Board of Directors (the Board)

The body that oversees the Homeowners Association.

Burden of Proof

The obligation of a party in a legal proceeding to prove their contention. In this case, the Petitioner bore the burden of proving the Respondent violated the CC&Rs.

An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These governing documents form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.

Office of Administrative Hearings (OAH)

An independent state agency to which the Department of Real Estate refers matters for an evidentiary hearing. The OAH has the authority to hear and decide contested cases and interpret the contract (CC&Rs) between parties.

Petitioner

The party who files a petition initiating a legal action. In this case, Michael J Stoltenberg, a homeowner and member of the Association.

Preponderance of the Evidence

The standard of proof required in this proceeding. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”

Respondent

The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.

Statutory Agent

An individual listed as an official agent for an entity. For the years 2019 and 2020, Diana Crites was listed as the Association’s Statutory Agent.

Abbreviation for the United States Postal Service.






Blog Post – 20F-H2020049-REL-RHG


Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, based entirely on the provided legal documents.

1. Who are the two primary parties in case No. 20F-H2020049-REL, and what are their respective roles?

2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?

3. Why did the Petitioner, beginning in November 2019, change the way he mailed his monthly assessment payments?

4. What is the specific subject of Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs)?

5. What were the consequences for the Petitioner each time the Association received his monthly assessment payment late?

6. According to the Administrative Law Judge, why was Section 14.8 of the CC&Rs inapplicable to the facts of this case?

7. What was the legal standard of proof the Petitioner was required to meet, and what is its definition?

8. On what grounds did the Petitioner request and receive a rehearing after the initial decision was issued?

9. Why did the Administrative Law Judge dismiss the Petitioner’s argument regarding Arizona Revised Statutes § 10-3842 during the rehearing?

10. What was the final outcome of both the initial hearing on July 14, 2020, and the rehearing on February 16, 2021?

——————————————————————————–

Quiz Answer Key

1. The primary parties are Michael J Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” The Petitioner is a condominium owner and member of the Association who filed a petition alleging violations, while the Respondent is the homeowners’ association that governs the development.

2. The Petitioner alleged that the Association was in violation of Arizona Revised Statutes §§ 10-3842 and 10-801, and section 14.8 of the Association’s CC&Rs. Specifically, he alleged that the Association “fail to do their job, and are acting in bad faith.”

3. The Petitioner changed his mailing method because he believed an agent of the Association’s property management company had thrown away one of his mailed payments. As a result, he began sending payments via restricted delivery by the USPS, for board member Rhea Carlisle’s pickup only.

4. Section 14.8, titled “Notices,” pertains to any notice permitted or required by the Declaration or Bylaws. It specifically addresses the Association’s notice obligation to its members when mailing them information, outlining when such notices are deemed delivered.

5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence put his residence in danger of foreclosure by the Association.

6. The Judge concluded Section 14.8 was inapplicable because its language speaks specifically to the Association’s obligation to provide notice to its members. The section has no binding authority or control over homeowners sending mail to the Association.

7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as “proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with the most convincing force that inclines an impartial mind to one side of an issue.

8. The Petitioner’s rehearing request was granted on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.” He also claimed that the initial findings of fact or decision were “arbitrary, capricious, or an abuse of discretion.”

9. The argument regarding ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers, was dismissed because it falls outside of the Department of Real Estate’s jurisdiction. The Petitioner had been advised of the Department’s jurisdictional limitations when he first filed his petition.

10. In both the initial decision (dated August 03, 2020) and the final order after the rehearing (dated March 08, 2021), the Administrative Law Judge denied the Petitioner’s petition. The Judge concluded in both instances that the Petitioner failed to sustain his burden of proof.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to be answered in a detailed essay format, synthesizing information from across the provided documents. Answers are not provided.

1. Analyze the legal reasoning used by Administrative Law Judge Jenna Clark to deny the Petitioner’s claims in both the initial hearing and the rehearing. Discuss the interpretation of CC&R Section 14.8, the concept of burden of proof, and jurisdictional limitations.

2. Trace the complete procedural history of case No. 20F-H2020049-REL from the filing of the petition to the final order. Include all key dates, actions taken by the parties and the Department, and the specific reasons for each major step, such as the granting of the rehearing.

3. Evaluate the actions taken by the Petitioner, Michael Stoltenberg, regarding his assessment payments. Explain why his unilateral decision to use restricted mail delivery, despite being aware of the Association’s procedures, ultimately caused the negative outcomes he sought to avoid.

4. Explain the contractual relationship between a homeowners’ association and a property owner as described in the legal documents. How do the CC&Rs function as an enforceable contract, and how was this concept central to the dispute?

5. Discuss the roles and authorities of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH) in resolving HOA disputes, as demonstrated by this case. What are their powers, and what specific limitations on their jurisdiction are identified in the text?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues findings of fact, conclusions of law, and an order. In this case, the ALJ was Jenna Clark.

Arizona Department of Real Estate (Department)

The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Association

The Rancho Del Oro Homeowners Association, a condominium association whose membership is comprised of the condominium owners in the Rancho Del Oro residential real estate development in Yuma, Arizona.

Board of Directors (the Board)

The body that oversees the Homeowners Association.

Burden of Proof

The obligation of a party in a legal proceeding to prove their contention. In this case, the Petitioner bore the burden of proving the Respondent violated the CC&Rs.

An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These governing documents form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.

Office of Administrative Hearings (OAH)

An independent state agency to which the Department of Real Estate refers matters for an evidentiary hearing. The OAH has the authority to hear and decide contested cases and interpret the contract (CC&Rs) between parties.

Petitioner

The party who files a petition initiating a legal action. In this case, Michael J Stoltenberg, a homeowner and member of the Association.

Preponderance of the Evidence

The standard of proof required in this proceeding. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”

Respondent

The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.

Statutory Agent

An individual listed as an official agent for an entity. For the years 2019 and 2020, Diana Crites was listed as the Association’s Statutory Agent.

Abbreviation for the United States Postal Service.


Case Participants

Petitioner Side

  • Michael J Stoltenberg (petitioner)
    Rancho Del Oro condominium owner
    Appeared on his own behalf,

Respondent Side

  • Nicole Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Appeared on behalf of Rancho Del Oro Homeowners Association,,
  • Rhea Carlisle (board member)
    Rancho Del Oro Homeowners Association
    Unpaid volunteer board member; Petitioner directed mail specifically to her,,,
  • Diana Crites (statutory agent)
    Rancho Del Oro Homeowners Association
    Statutory Agent for 2019 and 2020,
  • Lydia Peirce (HOA attorney staff/contact)
    Linsmeier Carpenter, Hazlewood, Delgado & Bolen, LLP
    Listed as contact for Respondent in 2020 decision transmission

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE commissioner)
    Arizona Department of Real Estate
    Commissioner receiving the OAH order,
  • Dan Gardner (HOA coordinator)
    Arizona Department of Real Estate
    HOA Coordinator contact for the Commissioner

Susan E Abbass v. 10000 North Central Homeowners Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 20F-H2020057-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-08-17
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susan E Abbass Counsel —
Respondent 10000 North Central Homeowners Association Counsel Blake Johnson, Esq.

Alleged Violations

CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4

Outcome Summary

The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.

Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.

Key Issues & Findings

Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.

Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.

Orders: Petitioner's petition in this matter was denied.

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
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Analytics Highlights

Topics: HOA, CC&R, Easement, Maintenance, Drainage, Property Access, Burden of Proof
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. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Video Overview

Audio Overview

Decision Documents

20F-H2020057-REL-RHG Decision – 839845.pdf

Uploaded 2026-01-23T17:33:10 (108.6 KB)

20F-H2020057-REL-RHG Decision – ../20F-H2020057-REL/815490.pdf

Uploaded 2026-01-23T17:33:15 (135.6 KB)





Briefing Doc – 20F-H2020057-REL-RHG


Briefing Document: Abbass v. 10000 North Central Homeowners Association

Executive Summary

This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the Association to exercise its authority under the community’s Covenants, Conditions, and Restrictions (CC&Rs) to enter a neighboring property to inspect the source of a persistent water leak affecting the Petitioner’s home.

The ALJ ultimately denied the Petitioner’s petition and subsequent appeal. The central conclusion across both hearings was that while the Association’s CC&Rs grant it the right to enter a member’s property under specific circumstances (such as for inspections or emergencies), they do not impose an obligation or duty to do so. The Petitioner failed to meet the burden of proof required to demonstrate that the Association violated any provision of the CC&Rs. The ALJ characterized the situation as a “neighbor versus neighbor dispute” and determined that the Association acted within its business judgment by requiring more definitive proof of the leak’s source before authorizing entry, citing concerns over potential liability.

Case Overview

This matter involves a single-issue petition filed by a homeowner against her Homeowners Association (HOA) with the Arizona Department of Real Estate. The case was referred to the Office of Administrative Hearings for adjudication.

Case Details

Information

Case Number

20F-H2020057-REL

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association

Administrative Law Judge

Adam D. Stone

Initial Hearing Date

July 28, 2020

Rehearing Date

November 24, 2020

Core Allegation

The Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) & 4 by failing to grant access to a neighbor’s property to investigate a water leak.

Chronology of Key Events

1. November 14, 2019: Ronald Pick, residing with the Petitioner, discovers the home office carpet is “completely soaked with water.” He determines the drainage issue originates from the neighboring property.

2. November 2019: After the neighbor refuses to cooperate, the Petitioner contacts Robert Kersten, the Association’s Community Manager. Kersten sends a violation notice to the neighbor.

3. January 2020: The Association’s Board of Directors informs Kersten that they will handle the matter directly, and he ceases interaction with the Petitioner.

4. May 5, 2020: The Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500.00 fee.

5. July 28, 2020: The initial evidentiary hearing is held before an Administrative Law Judge.

6. August 17, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding she failed to meet her burden of proof.

7. August 31, 2020: The Petitioner files a request for a rehearing.

8. October 14, 2020: The Commissioner of the Arizona Department of Real Estate grants the request for a rehearing.

9. November 24, 2020: The rehearing is conducted.

10. December 1, 2020: The ALJ issues a final decision, again finding for the Respondent and dismissing the Petitioner’s appeal.

Summary of Arguments

Petitioner’s Position (Susan E. Abbass)

• The Problem: A water leak originating from a neighboring property caused damage, with recurring water intrusion during rainfall.

• Attempted Resolution: The Petitioner and Mr. Pick attempted to work with the neighbor, who was uncooperative on the advice of her insurance company. They then sought the Association’s help to gain access for inspection.

• Core Argument: The Petitioner argued that the water leak constituted an “emergency situation” and that the Association had an obligation under the CC&Rs to grant access to the neighbor’s property for inspection.

• Evidence Provided: The Petitioner provided the Association with all available evidence, including a report from the City of Phoenix.

• Financial Responsibility: The Petitioner offered to pay for a geotechnical engineer and any associated costs for the inspection.

• Legal Basis: The Petitioner claimed the Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

Respondent’s Position (10000 North Central HOA)

• Actions Taken: The Association, through its manager Robert Kersten, acknowledged the complaint and sent a violation notice to the neighbor regarding improper vegetation. They also contacted the neighbor to request access.

• Core Argument: The Association contended that the CC&Rs do not allow its manager to authorize entry “whenever they feel like it.” Entry requires “reasonable justification” and “some type of proof,” which the Board determined had not been provided by the Petitioner.

• Business Judgment and Liability: Respondent’s counsel argued the Board was exercising its business judgment to avoid potential liability that could arise from granting third-party access to a member’s property without sufficient cause.

• Neighbor’s Actions: The Association stated that, to its knowledge, the neighbor’s insurance company inspected the water flow and determined the neighbor was not at fault.

• Evidence Provided: At the rehearing, the Association submitted photographs (Exhibits K, L, M) purportedly showing a fixed pipe and drainage flowing away from the Petitioner’s property.

Analysis of CC&R Provisions

The dispute centered on the interpretation of specific articles within the Association’s Covenants, Conditions, and Restrictions.

Article

Provision Summary

XII, Section 6

Easement in Favor of Association: Grants the Association and its agents the right to enter Lots for specific purposes, including: (a) inspection of owner maintenance, (c) correction of emergency conditions, and (d) exercising its powers and duties.

XIII, Section 1(d)

Drainage Flow: States that “nothing shall be erected, planted or maintained to impede or interrupt said or normal drainage flow” in patio or yard areas that have been graded for drainage.

XIII, Section 4

Owner Maintenance and Association’s Right to Enter: Requires owners to keep their Lot in good order and repair. If an owner fails, the Association “shall have the right to enter upon said Lot or Patio to correct drainage and to repair, maintain and restore the Lot…” after providing notice to the owner and receiving approval from the Board.

Administrative Law Judge’s Findings and Rulings

The ALJ’s conclusions were consistent across both the initial decision and the rehearing. The Petitioner bore the burden of proving by a “preponderance of the evidence” that the Association violated the CC&Rs.

Key Findings from the Initial Decision (August 17, 2020)

• Right vs. Obligation: The judge’s central finding was that the Petitioner was “incorrect that the Respondent has an ‘obligation’ to enter the property.” The CC&Rs grant the Association a right to enter but do not impose a duty or obligation to do so.

• Lack of “True Emergency”: While Mr. Pick testified about water damage during rain, the judge noted a lack of testimony on the extent of the damage. The fact that over eight months had passed since the initial leak discovery indicated there was “no true emergency situation.”

• Stalemate and Business Judgment: The judge acknowledged the “stalemate” where the Petitioner could not obtain more proof without access, and the Association would not grant access without more proof. The Association’s decision was framed as an exercise of business judgment based on its determination that the submitted proof did not meet its standard for entry.

• Nature of the Dispute: The matter was characterized as a “neighbor versus neighbor dispute,” implying the Association was not the proper party to compel action.

• Conclusion: The Petitioner failed to meet her burden of proof.

Key Findings from the Rehearing Decision (December 1, 2020)

• No New Evidence: The Petitioner “failed to provide new evidence or witness testimony” that would alter the original conclusion.

• Petitioner’s Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

• Respondent’s Compliance: The ALJ concluded that the Association “acted in compliance with the CC&Rs.” It was “receptive to the information provided by Petitioner and requested the neighboring property owners cooperation.” The lack of the neighbor’s full cooperation did not constitute a violation by the Association.

• Jurisdictional Limits: The judge stated that under statute A.R.S. § 32-2199.02(A), an ALJ can only order a party to abide by the community documents. The judge “cannot force the neighbor or the Respondent to grant access to the property.”

• Incorrect Venue: The decision noted that “it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”

Final Disposition

IT IS ORDERED that Petitioner’s petition in this matter be denied. The final decision from the rehearing on December 1, 2020, named the Respondent as the prevailing party and dismissed the Petitioner’s appeal. This order is binding on the parties, with any further appeal requiring judicial review in the superior court within thirty-five days of the order being served.






Study Guide – 20F-H2020057-REL-RHG


Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.

1. Who are the primary parties in this case, and what are their respective roles?

2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?

3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.

4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?

5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?

6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?

7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?

8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.

9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?

10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?

——————————————————————————–

Answer Key

1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.

2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.

3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.

4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.

5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.

6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.

7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.

9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.

2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”

3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?

4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.

5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.

Arizona Department of Real Estate

The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.

Burden of Proof

The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.

Easement

A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.

Jurisdiction

The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.

Petitioner

The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Prevailing Party

The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.

Rehearing

A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.






Blog Post – 20F-H2020057-REL-RHG


Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.

1. Who are the primary parties in this case, and what are their respective roles?

2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?

3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.

4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?

5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?

6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?

7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?

8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.

9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?

10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?

——————————————————————————–

Answer Key

1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.

2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.

3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.

4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.

5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.

6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.

7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.

9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.

2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”

3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?

4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.

5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.

Arizona Department of Real Estate

The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.

Burden of Proof

The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.

Easement

A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.

Jurisdiction

The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.

Petitioner

The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Prevailing Party

The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.

Rehearing

A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.


Case Participants

Petitioner Side

  • Susan E Abbass (petitioner)
  • Ronald Pick (witness)
    witness for Petitioner

Respondent Side

  • Blake Johnson (HOA attorney)
    Brown Olcott, PLLC
  • Robert Kersten (property manager)
    witness for Respondent
  • Kelly Oetinger (HOA attorney)
    Brown Olcott, PLLC

Neutral Parties

  • Adam D. Stone (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (staff)
    electronic transmission staff

Lori & James Jordan v. The Pines at Show Low Condominium Owners’

Posted on by

Case Summary

Case ID 21F-H2120014-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-12-01
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lori & James Jordan Counsel —
Respondent The Pines at Show Low Condominium Owners' Association, Inc. Counsel —

Alleged Violations

CC&Rs Sections 3.04, 3.07 & 3.09; 2012 Rules and Regulations Section 19

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the Association violated the CC&Rs regarding sewer maintenance or deductible apportionment, finding that the Association properly applied its 2012 Rules and Regulations.

Why this result: Petitioner failed to meet her burden of proof that the Respondent violated the CC&Rs in apportioning a proportionate share of the insurance deductible.

Key Issues & Findings

Dispute over apportionment of insurance deductible following sewer backup damage in a common area.

Petitioner challenged the Association's decision to apportion 43.84% ($10,958.96) of the insurance deductible to her unit following damage caused by a main sewer line blockage in a common area.

Orders: Petitioner’s petition is 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(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • Title 33, Chapter 9 of the Arizona Revised Statutes
  • CC&Rs Sections 3.04, 3.07, 3.09
  • 2012 Rules and Regulations Section 19

Analytics Highlights

Topics: Deductible Apportionment, Sewer Maintenance, Common Area, Condominium Documents, Rules and Regulations
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • Title 33, Chapter 9 of the Arizona Revised Statutes

Video Overview

Audio Overview

Decision Documents

21F-H2120014-REL Decision – 840033.pdf

Uploaded 2026-01-23T17:35:25 (138.3 KB)

Questions

Question

Can the HOA require a homeowner to pay a portion of the association's insurance deductible for damage caused by a common element failure?

Short Answer

Yes, if the community Rules and Regulations authorize the Board to apportion the deductible based on repair costs.

Detailed Answer

The ALJ found that the Association's Board had the authority to adopt rules regarding insurance deductibles. Specifically, the rules allowed the Board to apportion the deductible among unit owners and the association based on the proportion of repair costs when damage affects multiple units and common areas, even if the damage originated from a common element like a sewer line.

Alj Quote

Sections 19(b) and (c) appears to have anticipated the present scenario. There was damaged caused to two units and the common area, and Petitioner was apportioned 43.84% of the deductible. From the evidence presented, the Association also properly applied the applicable Rules and Regulations.

Legal Basis

Rules and Regulations Section 19

Topic Tags

  • insurance
  • deductible
  • assessments
  • common elements

Question

Who is responsible for ensuring insurance coverage for the 'gap' created by an HOA's insurance deductible?

Short Answer

The homeowner is responsible for obtaining personal insurance to cover the gap.

Detailed Answer

The decision highlights that governing documents or rules may explicitly state that owners must be aware of the deductible amount and secure their own coverage to handle that cost if assessed.

Alj Quote

Each Owner needs to be aware of the amount of the Association’s insurance deductible so that the Owner can determine that their personal insurance coverage will cover any gap.

Legal Basis

Rules and Regulations Section 19(e)

Topic Tags

  • insurance
  • homeowner responsibilities

Question

If the HOA fixes a maintenance issue after it occurs (like a sewer backup), can I still claim they violated their maintenance duty to avoid paying the deductible?

Short Answer

Likely no, as long as the HOA coordinated and accomplished the repairs.

Detailed Answer

The ALJ ruled that because the Association coordinated and completed the repairs once the issue occurred, the homeowner failed to prove that the Association neglected its maintenance duties under the CC&Rs. Therefore, the assessment of the deductible was not invalidated by a failure to maintain.

Alj Quote

Once the sewer backed up, the Association coordinated the repairs and accomplished the same. Petitioner failed to demonstrate that the Association failed to properly attend to the maintenance and/or repair of the sewer lines.

Legal Basis

CC&Rs Section 3.09

Topic Tags

  • maintenance
  • repairs
  • negligence

Question

What is the burden of proof for a homeowner challenging an HOA decision in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is 'preponderance of the evidence,' meaning the claim must be shown to be 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 CC&Rs… '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 Evidence

Topic Tags

  • legal procedure
  • evidence
  • burden of proof

Question

Can the HOA Board create rules that change how financial liabilities (like deductibles) are handled without amending the CC&Rs?

Short Answer

Yes, if the CC&Rs grant the Board the authority to adopt rules for the regulation of the property.

Detailed Answer

The decision upheld the enforcement of a rule regarding insurance deductibles found in the 'Rules and Regulations,' noting that the CC&Rs granted the authority to adopt such rules.

Alj Quote

Section 4.10 of the CC&Rs granted authority to adopt rules 'for the regulation and operation of the Property…'

Legal Basis

CC&Rs Section 4.10

Topic Tags

  • rulemaking
  • board authority
  • governing documents

Case

Docket No
21F-H2120014-REL
Case Title
Lori & James Jordan vs. The Pines at Show Low Condominium Owners' Association, Inc.
Decision Date
2020-12-01
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the HOA require a homeowner to pay a portion of the association's insurance deductible for damage caused by a common element failure?

Short Answer

Yes, if the community Rules and Regulations authorize the Board to apportion the deductible based on repair costs.

Detailed Answer

The ALJ found that the Association's Board had the authority to adopt rules regarding insurance deductibles. Specifically, the rules allowed the Board to apportion the deductible among unit owners and the association based on the proportion of repair costs when damage affects multiple units and common areas, even if the damage originated from a common element like a sewer line.

Alj Quote

Sections 19(b) and (c) appears to have anticipated the present scenario. There was damaged caused to two units and the common area, and Petitioner was apportioned 43.84% of the deductible. From the evidence presented, the Association also properly applied the applicable Rules and Regulations.

Legal Basis

Rules and Regulations Section 19

Topic Tags

  • insurance
  • deductible
  • assessments
  • common elements

Question

Who is responsible for ensuring insurance coverage for the 'gap' created by an HOA's insurance deductible?

Short Answer

The homeowner is responsible for obtaining personal insurance to cover the gap.

Detailed Answer

The decision highlights that governing documents or rules may explicitly state that owners must be aware of the deductible amount and secure their own coverage to handle that cost if assessed.

Alj Quote

Each Owner needs to be aware of the amount of the Association’s insurance deductible so that the Owner can determine that their personal insurance coverage will cover any gap.

Legal Basis

Rules and Regulations Section 19(e)

Topic Tags

  • insurance
  • homeowner responsibilities

Question

If the HOA fixes a maintenance issue after it occurs (like a sewer backup), can I still claim they violated their maintenance duty to avoid paying the deductible?

Short Answer

Likely no, as long as the HOA coordinated and accomplished the repairs.

Detailed Answer

The ALJ ruled that because the Association coordinated and completed the repairs once the issue occurred, the homeowner failed to prove that the Association neglected its maintenance duties under the CC&Rs. Therefore, the assessment of the deductible was not invalidated by a failure to maintain.

Alj Quote

Once the sewer backed up, the Association coordinated the repairs and accomplished the same. Petitioner failed to demonstrate that the Association failed to properly attend to the maintenance and/or repair of the sewer lines.

Legal Basis

CC&Rs Section 3.09

Topic Tags

  • maintenance
  • repairs
  • negligence

Question

What is the burden of proof for a homeowner challenging an HOA decision in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is 'preponderance of the evidence,' meaning the claim must be shown to be 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 CC&Rs… '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 Evidence

Topic Tags

  • legal procedure
  • evidence
  • burden of proof

Question

Can the HOA Board create rules that change how financial liabilities (like deductibles) are handled without amending the CC&Rs?

Short Answer

Yes, if the CC&Rs grant the Board the authority to adopt rules for the regulation of the property.

Detailed Answer

The decision upheld the enforcement of a rule regarding insurance deductibles found in the 'Rules and Regulations,' noting that the CC&Rs granted the authority to adopt such rules.

Alj Quote

Section 4.10 of the CC&Rs granted authority to adopt rules 'for the regulation and operation of the Property…'

Legal Basis

CC&Rs Section 4.10

Topic Tags

  • rulemaking
  • board authority
  • governing documents

Case

Docket No
21F-H2120014-REL
Case Title
Lori & James Jordan vs. The Pines at Show Low Condominium Owners' Association, Inc.
Decision Date
2020-12-01
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Lori Jordan (petitioner)
    Appeared and testified at the hearing
  • James Jordan (petitioner)
  • Chuck Stewart (witness)
    The Pines at Show Low Condominium Owners' Association, Inc. Board
    Testified for Petitioner; later joined Board and voted against apportionment

Respondent Side

  • Sean Lissarrague (board member)
    The Pines at Show Low Condominium Owners' Association, Inc.
    Vice President of the Board; appeared and testified for Respondent

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Received electronic transmission of the decision

Other Participants

  • c. serrano (administrative staff)
    Transmitted the electronic decision

Susan E Abbass v. 10000 North Central Homeowners Assocciation

Posted on by

Case Summary

Case ID 20F-H2020057-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-08-17
Administrative Law Judge Adam D. Stone
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Susan E Abbass Counsel —
Respondent 10000 North Central Homeowners Association Counsel Blake Johnson, Esq.

Alleged Violations

CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4

Outcome Summary

The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.

Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.

Key Issues & Findings

Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.

Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.

Orders: Petitioner's petition in this matter was denied.

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
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Analytics Highlights

Topics: HOA, CC&R, Easement, Maintenance, Drainage, Property Access, Burden of Proof
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. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Video Overview

Audio Overview

Decision Documents

20F-H2020057-REL Decision – 839845.pdf

Uploaded 2026-01-23T17:32:59 (108.6 KB)

20F-H2020057-REL Decision – ../20F-H2020057-REL/815490.pdf

Uploaded 2026-01-23T17:33:02 (135.6 KB)





Briefing Doc – 20F-H2020057-REL


Briefing Document: Abbass vs. 10000 North Central Homeowners Association

Executive Summary

This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.

The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.

Case Overview

Case Name

Susan E Abbass vs. 10000 North Central Homeowners Association

Case Number

20F-H2020057-REL-RHG

Jurisdiction

In the Office of Administrative Hearings (Arizona)

Administrative Law Judge

Adam D. Stone

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)

Hearing Date

November 24, 2020 (Rehearing)

Decision Date

December 1, 2020

Core Dispute and Allegations

Petitioner’s Central Claim

The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.

• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.

Petitioner’s Position and Evidence

• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”

• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.

• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.

• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

Respondent’s Defense and Actions

Respondent’s Position

The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.

• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.

• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”

Actions Taken by the HOA

Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:

• It reached out to the neighboring property owner to request access.

• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.

• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.

• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.

Procedural History and Rehearing

1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.

2. Initial Hearing (July 28, 2020): The first hearing was conducted.

3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.

4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”

5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.

6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.

Administrative Law Judge’s Findings and Conclusions

Burden of Proof

The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”

Key Judicial Determinations

• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.

• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”

• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”

• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”

Final Order and Implications

• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”

• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.






Study Guide – 20F-H2020057-REL


Study Guide: Abbass v. 10000 North Central Homeowners Association

This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 20F-H2020057-REL-RHG, involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It includes a short-answer quiz with an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.

——————————————————————————–

Short Answer Quiz

Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case document.

1. Who were the primary parties in this case, and what was the central dispute?

2. What specific articles of the community documents did the Petitioner allege the Respondent had violated?

3. What was the outcome of the initial administrative hearing held on July 28, 2020?

4. On what legal grounds did the Petitioner successfully request a rehearing of the case?

5. What was the Respondent’s main argument for not forcing an inspection of the neighboring property?

6. What key point regarding the Respondent’s authority did the Petitioner concede during the rehearing?

7. According to the decision, who bears the burden of proof, and what is the evidentiary standard required to meet it?

8. What evidence did the Respondent introduce during the rehearing on November 24, 2020?

9. What was the final ruling of the Administrative Law Judge, and what did the order state?

10. What specific limitation on the Administrative Law Judge’s power is cited in the Conclusions of Law?

——————————————————————————–

Answer Key

1. The primary parties were the Petitioner, Susan E. Abbass, and the Respondent, 10000 North Central Homeowners Association. The central dispute was the Petitioner’s claim that the Respondent failed to fulfill its duty by not allowing an inspection on a neighboring property to find the source of a water leak affecting the Petitioner’s home.

2. The Petitioner alleged that the Respondent had violated Article XII, Section 6 and Article XIII, Sections 1(d) and 4 of the Covenants, Conditions, and Restrictions (CCR’s).

3. Following the July 28, 2020 hearing, the Administrative Law Judge issued a decision on August 17, 2020, concluding that the Petitioner had failed to meet her burden of proof. The judge found that the Respondent only had the right to enter the neighboring property, not an obligation to do so.

4. The Petitioner’s request for rehearing was granted based on her claims that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”

5. The Respondent argued that the Petitioner had not provided sufficient proof of the neighbor’s fault to justify forcing access. The Respondent was also concerned that overstepping its authority could expose the association to other legal actions.

6. During the rehearing, the Petitioner agreed with the Respondent’s position that the association does not have an obligation to enter the neighboring property, only the right to do so.

7. The Petitioner bears the burden of proof. The evidentiary standard is “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not.

8. At the rehearing, the Respondent introduced Exhibits K, L, and M. These were photographs that purportedly showed where a pipe was fixed and how drainage moves away from the Petitioner’s property.

9. The final ruling concluded that the Respondent had not violated the CCR’s and was the prevailing party. The order dismissed the Petitioner’s appeal.

10. The decision cites A.R.S. § 32-2199.02(A), which states that an Administrative Law Judge may only order a party to abide by the statutes, community documents, or contract provisions at issue. The judge cannot force the Respondent or the neighbor to grant access to the property.

——————————————————————————–

Suggested Essay Questions

Instructions: The following questions are designed for a more in-depth, essay-format response. Answers are not provided.

1. Analyze the legal distinction between a “right” and an “obligation” as it pertains to the Homeowners Association’s authority under the CCR’s in this case. How was this distinction central to the Administrative Law Judge’s final decision?

2. Discuss the concept of “preponderance of the evidence” as defined in the legal decision. Detail the evidence and arguments presented by both the Petitioner and Respondent, and explain why the judge ultimately concluded that the Petitioner failed to meet this standard.

3. Trace the complete procedural history of this case, from the filing of the initial petition to the final order. Identify the key dates, actions taken by each party, and the rulings made at each stage of the administrative process.

4. Evaluate the actions taken by the Respondent (10000 North Central Homeowners Association) in response to the Petitioner’s complaint. Based on the Findings of Fact, did the association act reasonably and in compliance with the CCR’s?

5. Explain the jurisdiction and statutory limitations of the Office of Administrative Hearings in resolving disputes between homeowners and their associations, as outlined in the decision. What remedies were available to the Petitioner through this venue, and why was the specific relief she sought beyond the judge’s power to grant?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, considers evidence, and issues a legal decision. In this case, the ALJ was Adam D. Stone.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.

Arizona Department of Real Estate

The state agency authorized by statute to receive and decide petitions for hearings involving homeowners’ associations in Arizona.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.

An abbreviation for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or subdivision.

Office of Administrative Hearings

The government office where administrative law judges hear disputes concerning state agencies.

Order Granting Rehearing

A formal order issued by the Commissioner of the Arizona Department of Real Estate that approved the Petitioner’s request for a second hearing.

Petitioner

The party who initiates a legal action or files a petition. In this case, the Petitioner was Susan E. Abbass.

Planned Community

A real estate development that includes common property and is governed by a homeowners’ association.

Preponderance of the Evidence

The standard of proof required in this case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Prevailing Party

The party who wins a legal case or dispute. In the final decision, the Respondent was named the prevailing party.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the 10000 North Central Homeowners Association.

Tribunal

A body established to settle certain types of disputes. In this context, it refers to the Office of Administrative Hearings where the case was heard.






Blog Post – 20F-H2020057-REL


Briefing Document: Abbass vs. 10000 North Central Homeowners Association

Executive Summary

This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.

The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.

Case Overview

Case Name

Susan E Abbass vs. 10000 North Central Homeowners Association

Case Number

20F-H2020057-REL-RHG

Jurisdiction

In the Office of Administrative Hearings (Arizona)

Administrative Law Judge

Adam D. Stone

Petitioner

Susan E. Abbass

Respondent

10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)

Hearing Date

November 24, 2020 (Rehearing)

Decision Date

December 1, 2020

Core Dispute and Allegations

Petitioner’s Central Claim

The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.

• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.

• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.

Petitioner’s Position and Evidence

• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”

• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.

• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.

• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”

Respondent’s Defense and Actions

Respondent’s Position

The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.

• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.

• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”

Actions Taken by the HOA

Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:

• It reached out to the neighboring property owner to request access.

• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.

• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.

• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.

Procedural History and Rehearing

1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.

2. Initial Hearing (July 28, 2020): The first hearing was conducted.

3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.

4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”

5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.

6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.

Administrative Law Judge’s Findings and Conclusions

Burden of Proof

The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”

Key Judicial Determinations

• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.

• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”

• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”

• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”

Final Order and Implications

• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”

• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.


Case Participants

Petitioner Side

  • Susan E Abbass (petitioner)
  • Ronald Pick (witness)
    Witness for Petitioner

Respondent Side

  • Blake Johnson (attorney)
    Brown Olcott, PLLC
    Represented Respondent
  • Robert Kersten (property manager)
    Property manager, appeared as a witness for Respondent
  • Kelly Oetinger (attorney)
    Brown Olcott, PLLC

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
  • c. serrano (staff)
    Electronic transmission sender

Werner A Reis v. Canyon Mesa Townhouse Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 20F-H2019026-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-07-14
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Werner A Reis Counsel —
Respondent Canyon Mesa Townhouse Association Counsel Edward O’Brien, Esq.

Alleged Violations

CC&Rs Article III, section 1

Outcome Summary

The Administrative Law Judge denied the Petitioner's claim (on rehearing) finding that the Canyon Mesa Townhouse Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the Board acted within its authority to maintain and manage Common Areas, and members' nonexclusive perpetual easement rights were not infringed.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the Association violated Article III section 1 of the CC&Rs. The undisputed facts showed the Association had authority to paint the lines, access was maintained for all members, and one tennis court was always available for tennis use.

Key Issues & Findings

Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.

Petitioner alleged the Association violated CC&Rs Article III section 1 by painting pickleball lines on one tennis court, arguing this constituted an infringement or impediment of enjoyment rights for tennis players by restricting use of the Common Area easement.

Orders: The Administrative Law Judge concluded that Petitioner failed to sustain the burden of proof that the Association violated CC&Rs Article III section 1, and the petition was denied. The Association's governing documents authorized the Board to maintain and manage Common Areas, and Petitioner's easement rights were not violated.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1243
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA Governance, Common Area Use, Easement Rights, CC&Rs Interpretation, Recreational Facilities, Pickleball
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. § 33-1243
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119

Video Overview

Audio Overview

Decision Documents

20F-H2019026-REL-RHG Decision – 792741.pdf

Uploaded 2025-10-09T03:34:43 (47.0 KB)

20F-H2019026-REL-RHG Decision – 806920.pdf

Uploaded 2025-10-09T03:34:43 (175.9 KB)

20F-H2019026-REL-RHG Decision – ../20F-H2019026-REL/770924.pdf

Uploaded 2026-01-20T13:54:56 (153.6 KB)





Briefing Doc – 20F-H2019026-REL-RHG


Briefing Document: Reis v. Canyon Mesa Townhouse Association

Executive Summary

This document synthesizes the legal dispute between homeowner Werner A. Reis (Petitioner) and the Canyon Mesa Townhouse Association (Respondent) concerning the modification of a common area tennis court. The core of the dispute, adjudicated under case numbers 20F-H2019026-REL and 20F-H2019026-REL-RHG, was the Association’s decision in June 2019 to paint pickleball lines on one of its two community tennis courts. The Petitioner alleged this action violated Article III, section 1 of the community’s Covenants, Conditions, and Restrictions (CC&Rs), infringing upon his nonexclusive perpetual easement of use and enjoyment. The Association contended that its Board of Directors acted within its authority, as granted by the CC&Rs, to manage, maintain, and improve common areas for the benefit of all members.

Following an evidentiary hearing and a subsequent rehearing, Administrative Law Judge Jenna Clark ruled decisively in favor of the Association. The Judge found that the Petitioner failed to meet his burden of proof by a preponderance of the evidence. Key findings established that the Board was fully authorized to make the modification without a member vote, that tennis play was not restricted, and that the Petitioner’s easement rights were not violated. The Petitioner’s arguments, based on a potential future conflict rather than an actual experienced impediment, were deemed “unfounded” and “without merit.” The final order, issued on July 14, 2020, denied the petition, affirming the Association’s right to manage the recreational facilities in this manner.

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I. Case Overview

This matter involves a formal complaint by a homeowner against his townhouse association, brought before the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings (OAH).

Case Detail

Information

Case Numbers

20F-H2019026-REL, 20F-H2019026-REL-RHG (Rehearing)

Petitioner

Werner A. Reis

Respondent

Canyon Mesa Townhouse Association

Adjudicator

Administrative Law Judge (ALJ) Jenna Clark

Core Issue

Whether the Canyon Mesa Townhouse Association violated community documents (CC&Rs Article III, section 1) by adding pickleball lines to one of two community tennis courts.

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II. Procedural History

The dispute progressed through a formal administrative hearing process, including a petition, a hearing, a decision, a request for rehearing, and a final order.

• November 18, 2019: Werner Reis files a single-issue petition with the Arizona Department of Real Estate.

• December 4, 2019: The Association files its ANSWER, denying all complaint items.

• January 31, 2020: An evidentiary hearing is held before ALJ Jenna Clark.

• February 20, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding he failed to sustain his burden of proof.

• March 26, 2020: The Petitioner submits a REQUEST FOR REHEARING to the Department.

• April 22, 2020: The Department grants the Petitioner’s request for a rehearing.

• May 20, 2020: During a prehearing conference, both parties stipulate that no factual dispute exists and agree to adopt the prior hearing record and submit written closing arguments in lieu of a new hearing.

• June 24, 2020: Deadline for written closing arguments. The Association submits a 17-page argument; the OAH receives no closing argument from the Petitioner.

• July 14, 2020: The ALJ issues a final decision, again denying the petition and ordering that the initial decision from February be the final order in the matter.

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III. Analysis of the Dispute

The central conflict was the interpretation of the Association’s CC&Rs regarding the Board’s authority to modify common areas versus a member’s right to their use and enjoyment.

Petitioner’s Position (Werner A. Reis)

The Petitioner’s case was built on the premise that adding pickleball as a competing use for a tennis court fundamentally diminished the rights of tennis-playing members.

• Core Allegation: The Association violated Article III, section 1 of the CC&Rs, which grants every member a “nonexclusive perpetual easement of use and enjoyment in and to the Common Areas.”

• Argument on Infringement: The Petitioner argued the Association created a situation where “Members have the right to play tennis unless pickleball is in play,” which he claimed “constitutes an infringement of tennis players’ right of use and enjoyment.”

• Impediment of Enjoyment: He contended that reducing the number of exclusively available tennis courts from two to one amounts to “an impediment of enjoyment rights.”

• Creation of Competition: He accused the Association of “creating a new class of people” (pickleball players) who could access the courts, creating new competition for members on a first-come, first-served basis.

• Hypothetical Conflict: The “crux” of his complaint was the possible future conflict between his desire to play two singles matches simultaneously and up to sixteen “outsiders playing a raucous game of pickleball on the other designated tennis court.”

• Requested Remedy: The Petitioner requested an order requiring the Association to designate the courts for tennis playing only.

Respondent’s Position (Canyon Mesa Townhouse Association)

The Association defended its decision as a reasonable exercise of the Board’s authority to manage community property for the benefit of all residents.

• Board Authority: The Board asserted that its decision was permitted by Article II, section 1 of the CC&Rs, which grants it the authority to “manage, maintain, repair, replace and improve the Common Areas” without requiring a member vote. Article VI further requires the Board to maintain and manage recreational facilities.

• Benefit to Community: The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests, and was also considered as a potential means to generate revenue.

• No Restriction of Use: The Association maintained that tennis play was not restricted. Both courts remained available seven days a week on a first-come, first-served basis, with no changes to the reservation system. One court remained available exclusively for tennis at all times.

• Nature of Modification: The modification involved painting lines and using portable nets, which must be detached after play. The permanent tennis nets on both courts remained in place.

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IV. Summary of Evidence and Testimony

Testimony from the Association’s representatives and the Petitioner established the key undisputed facts of the case.

Testimony for the Association (Charles Mitchell & Arland Averell)

• Board Authority Confirmed: Charles Mitchell, the Board Director, testified that CC&Rs Articles II and VI, along with the Association’s Articles of Incorporation, authorize the Board to manage and improve common areas, including painting lines on the tennis courts.

• Historical Context: Arland Averell, a 20-year Board member, explained that a taped pickleball court had existed in 2015 but was damaged. The Board decided in April 2019 to reestablish it with painted lines in response to requests from several families.

• Practical Use: Pickleball is generally played only by a few families, typically on Saturday mornings. When pickleball is being played on the modified court, the other tennis court is always available.

• No Denial of Access: Director Mitchell confirmed that the Petitioner had never been denied access to the tennis courts at any time.

Testimony of the Petitioner (Werner A. Reis)

• Recent Homeowner: The Petitioner described himself as a “snowbird” who had purchased his townhouse in November 2019, shortly before filing his complaint.

• Conflict is Hypothetical: He admitted that he “has not played tennis in ‘years'” and, as a result, “has not yet found himself facing any such actual conflict.”

• No Direct Observation: The Petitioner testified that he had not personally observed contemporaneous tennis and pickleball games being played. His concerns about safety and inconvenience were speculative.

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V. Administrative Law Judge’s Findings and Final Order

The Administrative Law Judge’s decisions consistently found the Petitioner’s arguments to be legally and factually unsupported.

Conclusions of Law

• Undisputed Facts: The Judge concluded that the material facts were not in dispute. The Association’s governing documents clearly authorize the Board to maintain, manage, and improve the Common Areas, including the recreational facilities.

• No Violation of Easement Rights: The ruling stated, “What the evidence of record reflects is that Petitioner’s easement rights have not been violated by the Association because the Board painted blue pickleball lines on one of two tennis courts.”

• Petitioner’s Arguments Dismissed: The Judge found the Petitioner’s arguments to be “unfounded” and “without merit.” Specifically, the claim that the availability of only one dedicated court was an “impediment of enjoyment rights” was rejected.

• Failure to Meet Burden of Proof: In both the initial decision and the final order, the Judge concluded that the “Petitioner has failed to sustain his burden of proof” by a preponderance of the evidence that the Association violated Article III, section 1 of the CC&Rs.

• Failure to Prosecute Rehearing: The final decision noted that the Petitioner “did not provide OAH with a closing argument in support of his request for rehearing.”

Final Disposition

IT IS ORDERED that Petitioner’s petition is denied.

The decision issued on July 14, 2020, affirmed the initial February 24, 2020, decision and was designated as the FINAL ORDER in the matter, binding on both parties.






Study Guide – 20F-H2019026-REL-RHG


Study Guide: Reis vs. Canyon Mesa Townhouse Association

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.

1. What was the specific allegation made by the Petitioner, Werner A. Reis, in his petition filed on November 18, 2019?

2. On what grounds did the Canyon Mesa Townhouse Association’s Board of Directors justify its decision to add pickleball lines to a tennis court?

3. According to the testimony of Arland Averell, what prompted the Board to reestablish a pickleball court in April 2019, and what was a prior experience with a pickleball court?

4. Describe the central, or “crux,” of the Petitioner’s complaint as summarized in the hearing evidence.

5. What key admissions did the Petitioner make during his testimony regarding his own tennis activity and his personal experience with the alleged conflict?

6. According to Director Charles Mitchell’s testimony, what is the physical setup of the nets on the courts, and how does this differ between tennis and pickleball?

7. What was the legal standard of proof the Petitioner was required to meet, and how is that standard defined in the legal documents?

8. What was the outcome of the initial evidentiary hearing held on January 31, 2020, and on what basis did the Administrative Law Judge reach this conclusion?

9. Describe the procedural change that occurred for the rehearing after the parties’ prehearing conference on May 20, 2020.

10. What action, or lack thereof, by the Petitioner on June 24, 2020, contributed to the final ruling in the rehearing?

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Answer Key

1. The Petitioner alleged that the Association violated Article III, section 1 of the Covenants, Conditions, and Restrictions (CC&Rs). The specific violation claimed was the modification of one of the two existing tennis courts for use as a pickleball court.

2. The Association’s Board of Directors justified the decision as an improvement to the Common Areas for the benefit of the Association, which it was permitted to do under Article II, section 1 of the CC&Rs. The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests.

3. Arland Averell testified that in April 2019, the Board decided to reestablish the pickleball court with painted lines after several families requested it, and the Board also saw it as a way to generate additional revenue. A previous pickleball court established in 2015 had lines made of tape which were damaged approximately four months after being applied.

4. The crux of the Petitioner’s complaint was the possible future conflict between his personal desire to play two singles tennis matches on both courts simultaneously and the potential for up to sixteen “outsiders” to be playing a “raucous game of pickleball” on the modified court.

5. The Petitioner admitted that he had not played tennis in “years” and, as a result, had never actually faced the conflict he was complaining about. He also stated he had never been denied access to the courts and had not observed contemporaneous games of tennis and pickleball being played.

6. Director Mitchell testified that both tennis courts have fixed tennis nets. The pickleball court, however, has portable nets which must be attached for use and then detached at the end of play.

7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that the contention is more probably true than not, representing the greater weight of evidence.

8. Following the January 31, 2020, hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge concluded that the Petitioner had failed to sustain his burden of proof and that the evidence showed his easement rights had not been violated, as one tennis court always remained available.

9. During the prehearing conference, the parties stipulated that no factual dispute existed. They agreed to vacate the scheduled rehearing, adopt the evidentiary record from the first hearing without presenting new evidence, and submit written closing arguments instead.

10. On the deadline of June 24, 2020, the Office of Administrative Hearings received a 17-page closing argument from the Respondent (the Association). The Petitioner, Werner A. Reis, failed to submit a closing argument, which was noted in the final decision denying his petition again.

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Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Formulate your answers by synthesizing information from across the case documents. Answers are not provided.

1. Analyze the conflict between the rights granted to members under CC&Rs Article III, section 1 (“easement of use and enjoyment”) and the powers granted to the Board under CC&Rs Article II, section 1 (“manage, maintain, repair, replace and improve the Common Areas”). How did the Administrative Law Judge resolve this apparent tension in the final decision?

2. Discuss the concept of the “burden of proof” as it applied in this case. Explain why Werner Reis’s testimony and arguments ultimately failed to meet the “preponderance of the evidence” standard.

3. Trace the procedural history of this case from the initial petition on November 18, 2019, to the final order on July 14, 2020. Identify the key events and decisions at each stage, including the initial hearing, the request for rehearing, and the final disposition.

4. Evaluate the strength of the Petitioner’s case. Focus specifically on the evidence he presented versus the evidence presented by the Association’s witnesses, Charles Mitchell and Arland Averell.

5. The Petitioner argued that the availability of only one tennis court when pickleball is in play constituted an “impediment of enjoyment rights.” Explain the Association’s counter-arguments and why the Administrative Law Judge ultimately found the Petitioner’s argument to be “unfounded” and “without merit.”

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The presiding official (Jenna Clark) at the Office of Administrative Hearings who reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders and decisions.

ARIZ. REV. STAT.

Abbreviation for the Arizona Revised Statutes, the laws enacted by the Arizona state legislature that regulate planned communities and govern the administrative hearing process.

Association

The Canyon Mesa Townhouse Association, a non-profit Arizona corporation serving as the property owner’s association for the development. In this case, it is the Respondent.

Board of Directors (Board)

The governing body of the Association, empowered by the CC&Rs and Articles of Incorporation to manage, maintain, and improve the Common Areas.

Burden of Proof

The obligation of a party in a trial (in this case, the Petitioner) to produce the degree of evidence required to prove their case. The standard required here was “preponderance of the evidence.”

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents that form an enforceable contract between the Association and each property owner, controlling property use within the development. The Restated Declaration was recorded on June 8, 2015.

Common Areas

Property within the development, such as the tennis courts, for the mutual benefit of all owners. The Association’s Board is granted authority to manage and improve these areas.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings regarding disputes in planned communities.

Easement of use and enjoyment

A non-exclusive, perpetual right granted to every member of the Association to use and enjoy the Common Areas, as established in CC&Rs Article III, section 1.

OAH (Office of Administrative Hearings)

An independent state agency to which the Department refers cases for evidentiary hearings.

Petitioner

The party who filed the petition initiating the legal action. In this case, Werner A. Reis, a townhouse owner and member of the Association.

Preponderance of the evidence

The standard of proof in this case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and representing the “greater weight of the evidence.”

Respondent

The party against whom the petition is filed. In this case, the Canyon Mesa Townhouse Association.

Snowbird

A colloquial term used by the Petitioner to describe himself as an out-of-state retiree who resides in Arizona during the winter months.






Blog Post – 20F-H2019026-REL-RHG


5 Surprising Lessons from a Bizarre HOA Lawsuit Over a Pickleball Court

Introduction: The Battle for the Tennis Court

Disputes with a homeowner association (HOA) are a common feature of suburban life, often revolving around landscaping, paint colors, or parking. But when you combine the rigid world of HOA rules with the explosive popularity of pickleball, you get a conflict that is uniquely modern. In a real-life legal case from Sedona, Arizona, one homeowner took his HOA to court over the decision to add pickleball lines to one of the community’s two tennis courts.

What might seem like a minor neighborhood squabble became a formal legal challenge, complete with hearings, testimony, and an official judicial decision. The court documents from this case offer a surprisingly revealing look into community rules, personal grievances, and the peculiar nature of legal battles. More importantly, they reveal several counter-intuitive lessons for anyone living in a planned community.

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1. You Can Sue Over a Problem That Doesn’t Exist (But You Probably Won’t Win)

The core of the legal challenge was filed by Werner Reis, a new homeowner in the Canyon Mesa Townhouse Association. His complaint was over the modification of one of two community tennis courts to accommodate pickleball. The “crux” of his complaint was a concern over a possible future conflict: a hypothetical scenario where he might want to play two singles tennis matches while a large group of “outsiders” played a “raucous game of pickleball.”

This seems like a specific, if forward-thinking, concern. But the timeline and testimony revealed a truly bizarre situation. According to court records, Reis purchased his townhouse in November 2019 and filed his lawsuit on or about November 18, 2019—meaning he initiated a formal legal action within days or weeks of becoming a member of the community. Even more stunning was this fact from his own testimony:

Petitioner has not played tennis in “years.” As such, Petitioner has not yet found himself facing any such actual conflict.

The entire legal challenge—filed almost immediately upon moving in—was based on a hypothetical grievance for a sport the petitioner hadn’t even played in years. Unsurprisingly, the Administrative Law Judge found his argument “unfounded.” The lesson is clear: a legal claim based on “what if” is unlikely to succeed without any actual harm.

2. Your HOA’s Governing Documents Are a Legally Binding Contract

Many homeowners view their HOA’s rules as guidelines, but legally, they are a binding contract called Covenants, Conditions, and Restrictions (CC&Rs). When you buy a property, you agree to their terms.

In its defense, the HOA pointed directly to its governing documents. Article VI requires the Board to manage all recreational facilities, and Article II, section 1, gives it the explicit authority to “manage, maintain, repair, replace and improve the Common Areas” for the “general welfare and benefit of the Owners”—all without a member vote. This clause was the legal bedrock of the Board’s defense; in the eyes of the law, painting lines to accommodate a popular new sport is not a degradation of an amenity, but an improvement of it, squarely within the Board’s mandate.

The tennis courts are legally defined as “Common Areas.” This gave the Board the unambiguous right to paint new lines on them. This is an impactful takeaway for all homeowners: while you may feel a sense of personal ownership over shared amenities, the Board has broad, legally-defined powers to manage them for the entire community.

3. A Board’s Duty Is to Adapt to the Community’s Evolving Interests

The HOA Board’s decision wasn’t a whim; it was a response to a persistent community interest with a history. Testimony from a 20-year Board member, Arland Averell, revealed that in April 2019, the Board decided to reestablish a pickleball court “after several families requested they do so.” As a secondary benefit, the Board also saw it as a way to “generate additional revenue.”

But this wasn’t the community’s first foray into the sport. Court records show that back in 2015, the association had a pickleball court with taped lines, but it was damaged after only four months. This context is crucial. The 2019 decision to paint permanent lines was not just a reaction to new requests but an institutional lesson learned. It shows the Board was responding to a long-term, evolving interest and choosing a more durable solution, fulfilling its duty to adapt common resources to meet new demands.

4. An “Infringement” Requires an Actual Impediment

The petitioner’s legal argument was very specific. He claimed that adding pickleball “constitutes an infringement of tennis players’ right of use and enjoyment” and that having only one guaranteed tennis court is an “impediment of enjoyment rights.” He summarized his grievance with the line:

“Members have the right to play tennis unless pickleball is in play.”

However, the facts presented in court systematically dismantled this argument. The evidence showed:

• One of the two courts remained exclusively for tennis at all times.

• Both courts were still available for tennis on a first-come, first-served basis.

• The pickleball nets were portable and had to be detached at the end of play, leaving the court ready for tennis.

• Most critically, the petitioner himself testified that he had “never been denied access to the tennis courts at issue at any time.”

The judge determined that no violation occurred because the petitioner’s rights were never actually impeded. This reveals the critical legal distinction between an inconvenience and an infringement. The petitioner’s entire case rested on a hypothetical future inconvenience, but the law requires an actual, demonstrable impediment to rights. Since his own testimony confirmed one had never occurred, his claim was impossible to prove.

5. If You Demand a Rehearing, You Should Probably Show Up with an Argument

In a final, bizarre twist, the story doesn’t end with the initial ruling in February 2020. The petitioner filed a “REQUEST FOR REHEARING,” which the court granted, giving him a second chance to make his case.

To streamline the process, both parties agreed to skip a new evidentiary hearing and instead submit written “Closing Arguments” to the judge. The HOA’s legal team submitted a detailed, 17-page argument. What happened next was documented in the final court order:

OAH did not receive a closing argument from Petitioner.

The petitioner, who had initiated the entire legal process and successfully demanded a second chance, was given the final word. He had the opportunity to submit a closing argument that could have vindicated his entire complaint. Instead, he offered only silence. By ghosting his own rehearing, he left the judge with no choice but to conclude that he had once again “failed to sustain his burden of proof” and make the original ruling against him final.

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Conclusion: The Court of Community Opinion

This case is a fascinating lesson in the difference between a personal annoyance and an actual legal violation. It demonstrates that in the world of HOAs, feelings and hypothetical concerns carry little weight compared to the cold, hard text of the governing documents. Those documents give boards significant power, but also charge them with the difficult task of balancing the desires of all residents, not just the grievance of one.

As pickleball courts continue to replace shuffleboard courts and community gardens pop up in unused green spaces, this story leaves us with a critical question: As our communities change, how do we balance protecting the familiar traditions we love with making space for the new ones our neighbors are asking for?


Case Participants

Petitioner Side

  • Werner A Reis (petitioner)
    Appeared on his own behalf

Respondent Side

  • Edward O’Brien (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Counsel for Canyon Mesa Townhouse Association
  • Mark Sall (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Counsel for Canyon Mesa Townhouse Association (Also cited as Mark Sahl)
  • Charles Mitchell (board member, witness)
    Canyon Mesa Townhouse Association
    Current Director of the Association's Board
  • Arland Averell (board member, witness)
    Canyon Mesa Townhouse Association
    Served on the Board for the past twenty years

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Judy Lowe (commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate
  • DGardner (department contact)
    ADRE
    Electronic contact for ADRE
  • c. serrano (staff)
    OAH
    Administrative staff/Clerk noted on document transmission

Werner A Reis v. Canyon Mesa Townhouse Association

Posted on by

Case Summary

Case ID 20F-H2019026-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-07-14
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Werner A Reis Counsel —
Respondent Canyon Mesa Townhouse Association Counsel Edward O’Brien, Esq.

Alleged Violations

CC&Rs Article III, section 1

Outcome Summary

The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.

Why this result: Petitioner failed to meet the burden of proof by a preponderance of the evidence, and the undisputed material facts supported the finding that the Association's actions were authorized by the governing documents (CC&Rs Articles II and VI) and did not deny or impede member access or use of the Common Areas.

Key Issues & Findings

Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.

Petitioner alleged that the Board's decision to paint pickleball lines on one of two tennis courts constituted an infringement or impediment of enjoyment rights for tennis players, thereby violating CC&Rs Article III section 1.

Orders: The ALJ denied the petition (on rehearing), concluding that Petitioner failed to sustain the burden of proof. The Association was authorized to manage and maintain Common Areas, and members' nonexclusive perpetual easement rights were not violated.

Filing fee: $0.00, 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. § 33-1243
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA Governance, CC&Rs Interpretation, Common Area Use, Easement Rights, Recreational Facilities, Pickleball
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. § 33-1243
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. §§ 41-1092.04
  • ARIZ. REV. STAT. §§ 41-1092.05(D)
  • ARIZ. REV. STAT. §§ 41-1061(A)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)

Decision Documents

20F-H2019026-REL Decision – 770924.pdf

Uploaded 2025-12-17T18:18:18 (153.6 KB)

Case Participants

Petitioner Side

  • Werner A Reis (petitioner)
    Appeared on his own behalf

Respondent Side

  • Edward O’Brien (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Counsel for Canyon Mesa Townhouse Association
  • Mark Sall (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Counsel for Canyon Mesa Townhouse Association; Mark Sahl is used in some electronic transmissions
  • Charles Mitchell (board member/witness)
    Canyon Mesa Townhouse Association
    Current Director of the Board; testified as a witness in the original hearing
  • Arland Averell (board member/witness)
    Canyon Mesa Townhouse Association
    Served on the Board for twenty years; testified as a witness in the original hearing

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate
  • DGardner (department contact)
    ADRE
    Electronic contact for ADRE transmissions
  • c. serrano (staff/clerk)
    OAH
    Staff noted on document transmission

Werner A Reis v. Canyon Mesa Townhouse Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 20F-H2019026-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-07-14
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Werner A Reis Counsel —
Respondent Canyon Mesa Townhouse Association Counsel Edward O’Brien, Esq.

Alleged Violations

CC&Rs Article III, section 1

Outcome Summary

The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.

Why this result: Petitioner failed to meet the burden of proof by a preponderance of the evidence, and the undisputed material facts supported the finding that the Association's actions were authorized by the governing documents (CC&Rs Articles II and VI) and did not deny or impede member access or use of the Common Areas.

Key Issues & Findings

Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.

Petitioner alleged that the Board's decision to paint pickleball lines on one of two tennis courts constituted an infringement or impediment of enjoyment rights for tennis players, thereby violating CC&Rs Article III section 1.

Orders: The ALJ denied the petition (on rehearing), concluding that Petitioner failed to sustain the burden of proof. The Association was authorized to manage and maintain Common Areas, and members' nonexclusive perpetual easement rights were not violated.

Filing fee: $0.00, 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. § 33-1243
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA Governance, CC&Rs Interpretation, Common Area Use, Easement Rights, Recreational Facilities, Pickleball
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. § 33-1243
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. §§ 41-1092.04
  • ARIZ. REV. STAT. §§ 41-1092.05(D)
  • ARIZ. REV. STAT. §§ 41-1061(A)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

20F-H2019026-REL-RHG Decision – 792741.pdf

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20F-H2019026-REL-RHG Decision – 806920.pdf

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Briefing Doc – 20F-H2019026-REL-RHG


Briefing Document: Reis v. Canyon Mesa Townhouse Association

Executive Summary

This document synthesizes the legal dispute between homeowner Werner A. Reis (Petitioner) and the Canyon Mesa Townhouse Association (Respondent) concerning the modification of a common area tennis court. The core of the dispute, adjudicated under case numbers 20F-H2019026-REL and 20F-H2019026-REL-RHG, was the Association’s decision in June 2019 to paint pickleball lines on one of its two community tennis courts. The Petitioner alleged this action violated Article III, section 1 of the community’s Covenants, Conditions, and Restrictions (CC&Rs), infringing upon his nonexclusive perpetual easement of use and enjoyment. The Association contended that its Board of Directors acted within its authority, as granted by the CC&Rs, to manage, maintain, and improve common areas for the benefit of all members.

Following an evidentiary hearing and a subsequent rehearing, Administrative Law Judge Jenna Clark ruled decisively in favor of the Association. The Judge found that the Petitioner failed to meet his burden of proof by a preponderance of the evidence. Key findings established that the Board was fully authorized to make the modification without a member vote, that tennis play was not restricted, and that the Petitioner’s easement rights were not violated. The Petitioner’s arguments, based on a potential future conflict rather than an actual experienced impediment, were deemed “unfounded” and “without merit.” The final order, issued on July 14, 2020, denied the petition, affirming the Association’s right to manage the recreational facilities in this manner.

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I. Case Overview

This matter involves a formal complaint by a homeowner against his townhouse association, brought before the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings (OAH).

Case Detail

Information

Case Numbers

20F-H2019026-REL, 20F-H2019026-REL-RHG (Rehearing)

Petitioner

Werner A. Reis

Respondent

Canyon Mesa Townhouse Association

Adjudicator

Administrative Law Judge (ALJ) Jenna Clark

Core Issue

Whether the Canyon Mesa Townhouse Association violated community documents (CC&Rs Article III, section 1) by adding pickleball lines to one of two community tennis courts.

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II. Procedural History

The dispute progressed through a formal administrative hearing process, including a petition, a hearing, a decision, a request for rehearing, and a final order.

• November 18, 2019: Werner Reis files a single-issue petition with the Arizona Department of Real Estate.

• December 4, 2019: The Association files its ANSWER, denying all complaint items.

• January 31, 2020: An evidentiary hearing is held before ALJ Jenna Clark.

• February 20, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding he failed to sustain his burden of proof.

• March 26, 2020: The Petitioner submits a REQUEST FOR REHEARING to the Department.

• April 22, 2020: The Department grants the Petitioner’s request for a rehearing.

• May 20, 2020: During a prehearing conference, both parties stipulate that no factual dispute exists and agree to adopt the prior hearing record and submit written closing arguments in lieu of a new hearing.

• June 24, 2020: Deadline for written closing arguments. The Association submits a 17-page argument; the OAH receives no closing argument from the Petitioner.

• July 14, 2020: The ALJ issues a final decision, again denying the petition and ordering that the initial decision from February be the final order in the matter.

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III. Analysis of the Dispute

The central conflict was the interpretation of the Association’s CC&Rs regarding the Board’s authority to modify common areas versus a member’s right to their use and enjoyment.

Petitioner’s Position (Werner A. Reis)

The Petitioner’s case was built on the premise that adding pickleball as a competing use for a tennis court fundamentally diminished the rights of tennis-playing members.

• Core Allegation: The Association violated Article III, section 1 of the CC&Rs, which grants every member a “nonexclusive perpetual easement of use and enjoyment in and to the Common Areas.”

• Argument on Infringement: The Petitioner argued the Association created a situation where “Members have the right to play tennis unless pickleball is in play,” which he claimed “constitutes an infringement of tennis players’ right of use and enjoyment.”

• Impediment of Enjoyment: He contended that reducing the number of exclusively available tennis courts from two to one amounts to “an impediment of enjoyment rights.”

• Creation of Competition: He accused the Association of “creating a new class of people” (pickleball players) who could access the courts, creating new competition for members on a first-come, first-served basis.

• Hypothetical Conflict: The “crux” of his complaint was the possible future conflict between his desire to play two singles matches simultaneously and up to sixteen “outsiders playing a raucous game of pickleball on the other designated tennis court.”

• Requested Remedy: The Petitioner requested an order requiring the Association to designate the courts for tennis playing only.

Respondent’s Position (Canyon Mesa Townhouse Association)

The Association defended its decision as a reasonable exercise of the Board’s authority to manage community property for the benefit of all residents.

• Board Authority: The Board asserted that its decision was permitted by Article II, section 1 of the CC&Rs, which grants it the authority to “manage, maintain, repair, replace and improve the Common Areas” without requiring a member vote. Article VI further requires the Board to maintain and manage recreational facilities.

• Benefit to Community: The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests, and was also considered as a potential means to generate revenue.

• No Restriction of Use: The Association maintained that tennis play was not restricted. Both courts remained available seven days a week on a first-come, first-served basis, with no changes to the reservation system. One court remained available exclusively for tennis at all times.

• Nature of Modification: The modification involved painting lines and using portable nets, which must be detached after play. The permanent tennis nets on both courts remained in place.

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IV. Summary of Evidence and Testimony

Testimony from the Association’s representatives and the Petitioner established the key undisputed facts of the case.

Testimony for the Association (Charles Mitchell & Arland Averell)

• Board Authority Confirmed: Charles Mitchell, the Board Director, testified that CC&Rs Articles II and VI, along with the Association’s Articles of Incorporation, authorize the Board to manage and improve common areas, including painting lines on the tennis courts.

• Historical Context: Arland Averell, a 20-year Board member, explained that a taped pickleball court had existed in 2015 but was damaged. The Board decided in April 2019 to reestablish it with painted lines in response to requests from several families.

• Practical Use: Pickleball is generally played only by a few families, typically on Saturday mornings. When pickleball is being played on the modified court, the other tennis court is always available.

• No Denial of Access: Director Mitchell confirmed that the Petitioner had never been denied access to the tennis courts at any time.

Testimony of the Petitioner (Werner A. Reis)

• Recent Homeowner: The Petitioner described himself as a “snowbird” who had purchased his townhouse in November 2019, shortly before filing his complaint.

• Conflict is Hypothetical: He admitted that he “has not played tennis in ‘years'” and, as a result, “has not yet found himself facing any such actual conflict.”

• No Direct Observation: The Petitioner testified that he had not personally observed contemporaneous tennis and pickleball games being played. His concerns about safety and inconvenience were speculative.

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V. Administrative Law Judge’s Findings and Final Order

The Administrative Law Judge’s decisions consistently found the Petitioner’s arguments to be legally and factually unsupported.

Conclusions of Law

• Undisputed Facts: The Judge concluded that the material facts were not in dispute. The Association’s governing documents clearly authorize the Board to maintain, manage, and improve the Common Areas, including the recreational facilities.

• No Violation of Easement Rights: The ruling stated, “What the evidence of record reflects is that Petitioner’s easement rights have not been violated by the Association because the Board painted blue pickleball lines on one of two tennis courts.”

• Petitioner’s Arguments Dismissed: The Judge found the Petitioner’s arguments to be “unfounded” and “without merit.” Specifically, the claim that the availability of only one dedicated court was an “impediment of enjoyment rights” was rejected.

• Failure to Meet Burden of Proof: In both the initial decision and the final order, the Judge concluded that the “Petitioner has failed to sustain his burden of proof” by a preponderance of the evidence that the Association violated Article III, section 1 of the CC&Rs.

• Failure to Prosecute Rehearing: The final decision noted that the Petitioner “did not provide OAH with a closing argument in support of his request for rehearing.”

Final Disposition

IT IS ORDERED that Petitioner’s petition is denied.

The decision issued on July 14, 2020, affirmed the initial February 24, 2020, decision and was designated as the FINAL ORDER in the matter, binding on both parties.






Study Guide – 20F-H2019026-REL-RHG


Study Guide: Reis vs. Canyon Mesa Townhouse Association

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.

1. What was the specific allegation made by the Petitioner, Werner A. Reis, in his petition filed on November 18, 2019?

2. On what grounds did the Canyon Mesa Townhouse Association’s Board of Directors justify its decision to add pickleball lines to a tennis court?

3. According to the testimony of Arland Averell, what prompted the Board to reestablish a pickleball court in April 2019, and what was a prior experience with a pickleball court?

4. Describe the central, or “crux,” of the Petitioner’s complaint as summarized in the hearing evidence.

5. What key admissions did the Petitioner make during his testimony regarding his own tennis activity and his personal experience with the alleged conflict?

6. According to Director Charles Mitchell’s testimony, what is the physical setup of the nets on the courts, and how does this differ between tennis and pickleball?

7. What was the legal standard of proof the Petitioner was required to meet, and how is that standard defined in the legal documents?

8. What was the outcome of the initial evidentiary hearing held on January 31, 2020, and on what basis did the Administrative Law Judge reach this conclusion?

9. Describe the procedural change that occurred for the rehearing after the parties’ prehearing conference on May 20, 2020.

10. What action, or lack thereof, by the Petitioner on June 24, 2020, contributed to the final ruling in the rehearing?

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Answer Key

1. The Petitioner alleged that the Association violated Article III, section 1 of the Covenants, Conditions, and Restrictions (CC&Rs). The specific violation claimed was the modification of one of the two existing tennis courts for use as a pickleball court.

2. The Association’s Board of Directors justified the decision as an improvement to the Common Areas for the benefit of the Association, which it was permitted to do under Article II, section 1 of the CC&Rs. The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests.

3. Arland Averell testified that in April 2019, the Board decided to reestablish the pickleball court with painted lines after several families requested it, and the Board also saw it as a way to generate additional revenue. A previous pickleball court established in 2015 had lines made of tape which were damaged approximately four months after being applied.

4. The crux of the Petitioner’s complaint was the possible future conflict between his personal desire to play two singles tennis matches on both courts simultaneously and the potential for up to sixteen “outsiders” to be playing a “raucous game of pickleball” on the modified court.

5. The Petitioner admitted that he had not played tennis in “years” and, as a result, had never actually faced the conflict he was complaining about. He also stated he had never been denied access to the courts and had not observed contemporaneous games of tennis and pickleball being played.

6. Director Mitchell testified that both tennis courts have fixed tennis nets. The pickleball court, however, has portable nets which must be attached for use and then detached at the end of play.

7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that the contention is more probably true than not, representing the greater weight of evidence.

8. Following the January 31, 2020, hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge concluded that the Petitioner had failed to sustain his burden of proof and that the evidence showed his easement rights had not been violated, as one tennis court always remained available.

9. During the prehearing conference, the parties stipulated that no factual dispute existed. They agreed to vacate the scheduled rehearing, adopt the evidentiary record from the first hearing without presenting new evidence, and submit written closing arguments instead.

10. On the deadline of June 24, 2020, the Office of Administrative Hearings received a 17-page closing argument from the Respondent (the Association). The Petitioner, Werner A. Reis, failed to submit a closing argument, which was noted in the final decision denying his petition again.

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Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Formulate your answers by synthesizing information from across the case documents. Answers are not provided.

1. Analyze the conflict between the rights granted to members under CC&Rs Article III, section 1 (“easement of use and enjoyment”) and the powers granted to the Board under CC&Rs Article II, section 1 (“manage, maintain, repair, replace and improve the Common Areas”). How did the Administrative Law Judge resolve this apparent tension in the final decision?

2. Discuss the concept of the “burden of proof” as it applied in this case. Explain why Werner Reis’s testimony and arguments ultimately failed to meet the “preponderance of the evidence” standard.

3. Trace the procedural history of this case from the initial petition on November 18, 2019, to the final order on July 14, 2020. Identify the key events and decisions at each stage, including the initial hearing, the request for rehearing, and the final disposition.

4. Evaluate the strength of the Petitioner’s case. Focus specifically on the evidence he presented versus the evidence presented by the Association’s witnesses, Charles Mitchell and Arland Averell.

5. The Petitioner argued that the availability of only one tennis court when pickleball is in play constituted an “impediment of enjoyment rights.” Explain the Association’s counter-arguments and why the Administrative Law Judge ultimately found the Petitioner’s argument to be “unfounded” and “without merit.”

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The presiding official (Jenna Clark) at the Office of Administrative Hearings who reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders and decisions.

ARIZ. REV. STAT.

Abbreviation for the Arizona Revised Statutes, the laws enacted by the Arizona state legislature that regulate planned communities and govern the administrative hearing process.

Association

The Canyon Mesa Townhouse Association, a non-profit Arizona corporation serving as the property owner’s association for the development. In this case, it is the Respondent.

Board of Directors (Board)

The governing body of the Association, empowered by the CC&Rs and Articles of Incorporation to manage, maintain, and improve the Common Areas.

Burden of Proof

The obligation of a party in a trial (in this case, the Petitioner) to produce the degree of evidence required to prove their case. The standard required here was “preponderance of the evidence.”

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents that form an enforceable contract between the Association and each property owner, controlling property use within the development. The Restated Declaration was recorded on June 8, 2015.

Common Areas

Property within the development, such as the tennis courts, for the mutual benefit of all owners. The Association’s Board is granted authority to manage and improve these areas.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings regarding disputes in planned communities.

Easement of use and enjoyment

A non-exclusive, perpetual right granted to every member of the Association to use and enjoy the Common Areas, as established in CC&Rs Article III, section 1.

OAH (Office of Administrative Hearings)

An independent state agency to which the Department refers cases for evidentiary hearings.

Petitioner

The party who filed the petition initiating the legal action. In this case, Werner A. Reis, a townhouse owner and member of the Association.

Preponderance of the evidence

The standard of proof in this case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and representing the “greater weight of the evidence.”

Respondent

The party against whom the petition is filed. In this case, the Canyon Mesa Townhouse Association.

Snowbird

A colloquial term used by the Petitioner to describe himself as an out-of-state retiree who resides in Arizona during the winter months.






Blog Post – 20F-H2019026-REL-RHG


5 Surprising Lessons from a Bizarre HOA Lawsuit Over a Pickleball Court

Introduction: The Battle for the Tennis Court

Disputes with a homeowner association (HOA) are a common feature of suburban life, often revolving around landscaping, paint colors, or parking. But when you combine the rigid world of HOA rules with the explosive popularity of pickleball, you get a conflict that is uniquely modern. In a real-life legal case from Sedona, Arizona, one homeowner took his HOA to court over the decision to add pickleball lines to one of the community’s two tennis courts.

What might seem like a minor neighborhood squabble became a formal legal challenge, complete with hearings, testimony, and an official judicial decision. The court documents from this case offer a surprisingly revealing look into community rules, personal grievances, and the peculiar nature of legal battles. More importantly, they reveal several counter-intuitive lessons for anyone living in a planned community.

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1. You Can Sue Over a Problem That Doesn’t Exist (But You Probably Won’t Win)

The core of the legal challenge was filed by Werner Reis, a new homeowner in the Canyon Mesa Townhouse Association. His complaint was over the modification of one of two community tennis courts to accommodate pickleball. The “crux” of his complaint was a concern over a possible future conflict: a hypothetical scenario where he might want to play two singles tennis matches while a large group of “outsiders” played a “raucous game of pickleball.”

This seems like a specific, if forward-thinking, concern. But the timeline and testimony revealed a truly bizarre situation. According to court records, Reis purchased his townhouse in November 2019 and filed his lawsuit on or about November 18, 2019—meaning he initiated a formal legal action within days or weeks of becoming a member of the community. Even more stunning was this fact from his own testimony:

Petitioner has not played tennis in “years.” As such, Petitioner has not yet found himself facing any such actual conflict.

The entire legal challenge—filed almost immediately upon moving in—was based on a hypothetical grievance for a sport the petitioner hadn’t even played in years. Unsurprisingly, the Administrative Law Judge found his argument “unfounded.” The lesson is clear: a legal claim based on “what if” is unlikely to succeed without any actual harm.

2. Your HOA’s Governing Documents Are a Legally Binding Contract

Many homeowners view their HOA’s rules as guidelines, but legally, they are a binding contract called Covenants, Conditions, and Restrictions (CC&Rs). When you buy a property, you agree to their terms.

In its defense, the HOA pointed directly to its governing documents. Article VI requires the Board to manage all recreational facilities, and Article II, section 1, gives it the explicit authority to “manage, maintain, repair, replace and improve the Common Areas” for the “general welfare and benefit of the Owners”—all without a member vote. This clause was the legal bedrock of the Board’s defense; in the eyes of the law, painting lines to accommodate a popular new sport is not a degradation of an amenity, but an improvement of it, squarely within the Board’s mandate.

The tennis courts are legally defined as “Common Areas.” This gave the Board the unambiguous right to paint new lines on them. This is an impactful takeaway for all homeowners: while you may feel a sense of personal ownership over shared amenities, the Board has broad, legally-defined powers to manage them for the entire community.

3. A Board’s Duty Is to Adapt to the Community’s Evolving Interests

The HOA Board’s decision wasn’t a whim; it was a response to a persistent community interest with a history. Testimony from a 20-year Board member, Arland Averell, revealed that in April 2019, the Board decided to reestablish a pickleball court “after several families requested they do so.” As a secondary benefit, the Board also saw it as a way to “generate additional revenue.”

But this wasn’t the community’s first foray into the sport. Court records show that back in 2015, the association had a pickleball court with taped lines, but it was damaged after only four months. This context is crucial. The 2019 decision to paint permanent lines was not just a reaction to new requests but an institutional lesson learned. It shows the Board was responding to a long-term, evolving interest and choosing a more durable solution, fulfilling its duty to adapt common resources to meet new demands.

4. An “Infringement” Requires an Actual Impediment

The petitioner’s legal argument was very specific. He claimed that adding pickleball “constitutes an infringement of tennis players’ right of use and enjoyment” and that having only one guaranteed tennis court is an “impediment of enjoyment rights.” He summarized his grievance with the line:

“Members have the right to play tennis unless pickleball is in play.”

However, the facts presented in court systematically dismantled this argument. The evidence showed:

• One of the two courts remained exclusively for tennis at all times.

• Both courts were still available for tennis on a first-come, first-served basis.

• The pickleball nets were portable and had to be detached at the end of play, leaving the court ready for tennis.

• Most critically, the petitioner himself testified that he had “never been denied access to the tennis courts at issue at any time.”

The judge determined that no violation occurred because the petitioner’s rights were never actually impeded. This reveals the critical legal distinction between an inconvenience and an infringement. The petitioner’s entire case rested on a hypothetical future inconvenience, but the law requires an actual, demonstrable impediment to rights. Since his own testimony confirmed one had never occurred, his claim was impossible to prove.

5. If You Demand a Rehearing, You Should Probably Show Up with an Argument

In a final, bizarre twist, the story doesn’t end with the initial ruling in February 2020. The petitioner filed a “REQUEST FOR REHEARING,” which the court granted, giving him a second chance to make his case.

To streamline the process, both parties agreed to skip a new evidentiary hearing and instead submit written “Closing Arguments” to the judge. The HOA’s legal team submitted a detailed, 17-page argument. What happened next was documented in the final court order:

OAH did not receive a closing argument from Petitioner.

The petitioner, who had initiated the entire legal process and successfully demanded a second chance, was given the final word. He had the opportunity to submit a closing argument that could have vindicated his entire complaint. Instead, he offered only silence. By ghosting his own rehearing, he left the judge with no choice but to conclude that he had once again “failed to sustain his burden of proof” and make the original ruling against him final.

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Conclusion: The Court of Community Opinion

This case is a fascinating lesson in the difference between a personal annoyance and an actual legal violation. It demonstrates that in the world of HOAs, feelings and hypothetical concerns carry little weight compared to the cold, hard text of the governing documents. Those documents give boards significant power, but also charge them with the difficult task of balancing the desires of all residents, not just the grievance of one.

As pickleball courts continue to replace shuffleboard courts and community gardens pop up in unused green spaces, this story leaves us with a critical question: As our communities change, how do we balance protecting the familiar traditions we love with making space for the new ones our neighbors are asking for?


Case Participants

Petitioner Side

  • Werner A Reis (petitioner)
    Appeared on his own behalf

Respondent Side

  • Edward O’Brien (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Counsel for Canyon Mesa Townhouse Association
  • Mark Sall (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Counsel for Canyon Mesa Townhouse Association (Also cited as Mark Sahl)
  • Charles Mitchell (board member, witness)
    Canyon Mesa Townhouse Association
    Current Director of the Association's Board
  • Arland Averell (board member, witness)
    Canyon Mesa Townhouse Association
    Served on the Board for the past twenty years

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Judy Lowe (commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate
  • DGardner (department contact)
    ADRE
    Electronic contact for ADRE
  • c. serrano (staff)
    OAH
    Administrative staff/Clerk noted on document transmission

John H. Kelly v. Cortez Canyon Unit Owners Association

Posted on by

Case Summary

Case ID 19F-H1919060-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-13
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John H. Kelly Counsel —
Respondent Cortez Canyon Unit Owners Association Counsel Jonathan A. Dessaules

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.

Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.

Key Issues & Findings

Alleged violation of failure to call a special meeting to remove a board member.

Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • 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, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • 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

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2025-10-09T03:34:17 (142.6 KB)





Briefing Doc – 19F-H1919060-REL


Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.

The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.

This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.

Case Overview

Parties Involved

Name / Entity

Details

Petitioner

John H. Kelly

A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.

Respondent

Cortez Canyon Unit Owners Association

The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.

Witness

Saundra Garcia

President of the Association’s Board of Directors.

Adjudicator

Jenna Clark

Administrative Law Judge, Arizona Office of Administrative Hearings.

Core Dispute

The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.

Legal and Governance Framework

The dispute was governed by Arizona state law and the Association’s own internal documents.

• Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.

• Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.

• Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.

Petitioner’s Position and Evidence (John H. Kelly)

Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:

• Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.

• Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.

• Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.

• Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.

• Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.

• Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”

Respondent’s Position and Evidence (Cortez Canyon Association)

The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.

• Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.

• Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.

• Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:

◦ 11 signatures were removed because they were from non-owner renters or occupants.

◦ 6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).

◦ 6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.

• Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.

• Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.

Administrative Law Judge’s Findings and Ruling

The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.

Conclusions of Law

• Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

• Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.

• Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”

• Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”

Final Order

Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:

IT IS ORDERED that Petitioner’s petition be denied.






Study Guide – 19F-H1919060-REL


Study Guide: Kelly v. Cortez Canyon Unit Owners Association (Case No. 19F-H1919060-REL)

This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter between Petitioner John H. Kelly and Respondent Cortez Canyon Unit Owners Association. It is designed to test and reinforce understanding of the case’s facts, legal arguments, governing documents, and final outcome.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following ten questions in two to three complete sentences, based solely on the information provided in the case document.

1. Who were the primary parties involved in this hearing, and what were their respective roles?

2. What was the specific violation of Arizona law alleged by the Petitioner in his initial petition to the Department of Real Estate?

3. How many condominium units are in the Cortez Canyon development, and what number of valid signatures was consequently required to compel a special meeting?

4. According to the Association’s Bylaws, what circumstances would cause a Unit Owner to have their voting rights suspended?

5. List the three categories of invalid signatures that the Association identified in its review of the Petitioner’s submission.

6. Who was Jeffery Law, and why was his signature ultimately not counted by the Association?

7. What was the initial assessment given to the Petitioner by the property management group, Golden Valley, and how did it differ from the Association’s final determination?

8. In this type of legal proceeding, who bears the “burden of proof,” and what standard of proof must be met?

9. What was the Administrative Law Judge’s final conclusion regarding the Petitioner’s claim?

10. What was the final ORDER issued by the Administrative Law Judge in this case?

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Part II: Answer Key

1. The primary parties were John H. Kelly, the “Petitioner,” who appeared on his own behalf, and the Cortez Canyon Unit Owners Association, the “Respondent,” which was represented by Jonathan A. Dessaules, Esq. Administrative Law Judge Jenna Clark presided over the hearing. Saundra Garcia, the Association’s Board President, appeared as a witness for the Respondent.

2. The Petitioner alleged that the Association violated ARIZ. REV. STAT. § 33-1243 by failing to call a special meeting for the purpose of removing a board member. He claimed to have collected the required number of signatures from homeowners to compel such a meeting.

3. The Cortez Canyon development has 84 units. Based on the requirement for signatures from 25% of the votes in the Association, a total of 21 valid Unit Owner signatures were required to compel a special meeting.

4. According to Bylaws Article II, Section 7, a Unit Owner’s right to vote is automatically suspended if the owner is in arrears in the payment of any Assessment, monetary penalties, or other fees for a period of fifteen days. This suspension remains in effect until all payments are brought current.

5. The Association determined that of the 36 submitted signatures, 23 were invalid. The categories for invalidation were: eleven signatures from non-owner renters or occupants, six signatures from units where another signature had already been collected, and six signatures from Unit Owners who were ineligible to vote due to being delinquent on payments.

6. Jeffery Law was an Association member and owner of six condominium units. His signature was not counted because the Petitioner secured it after submitting the petition to the management company and never provided it to the Association as part of the formal submission.

7. The former property management group, Golden Valley, initially informed the Petitioner that he had secured enough valid signatures to compel a special meeting. However, after the Association directly reviewed the petition, it determined that only 13 of the signatures were valid, far short of the required 21.

8. In this proceeding, the Petitioner, John H. Kelly, bore the burden of proof. The standard of proof required was a “preponderance of the evidence,” which means providing evidence that is more convincing and has superior weight than the evidence presented by the opposing side.

9. The Administrative Law Judge concluded that the Petitioner failed to sustain his burden of proof. The credible evidence demonstrated that the Petitioner submitted only thirteen valid signatures, which was insufficient to compel the Association to call a special meeting under its Bylaws and state law.

10. The final ORDER, based on the Findings of Fact and Conclusions of Law, was that the Petitioner’s petition be denied.

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Part III: Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. They require a deeper analysis of the case’s themes, legal principles, and procedural elements. Do not provide answers.

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what “preponderance of the evidence” means in this context, who held the burden, and how the failure to meet this standard was the central reason for the judge’s final decision.

2. Discuss the critical importance of an association’s governing documents (CC&Rs and Bylaws) in resolving internal disputes. Use specific articles and sections from the Cortez Canyon Bylaws to illustrate how they definitively established the rules for calling a special meeting and determining voter eligibility, leaving little room for interpretation.

3. Evaluate the Petitioner’s strategy and execution in collecting signatures for his petition. Identify the critical errors he and his assistants made in the process, and outline the specific steps he could have taken to verify signatures and ensure his petition was valid before its submission.

4. Explain the legal and practical distinctions between a Unit Owner, an occupant/renter, and an “eligible voter” within the context of the Cortez Canyon Unit Owners Association. How did the Petitioner’s failure to understand these distinctions become the central point of failure for his petition?

5. Imagine you are advising the Cortez Canyon Board of Directors following this hearing. Based on the evidence and outcome of the case, what recommendations would you make regarding their procedures for validating petitions and their communication with Unit Owners about voting rights, petition requirements, and the consequences of financial delinquency?

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Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Jenna Clark) who presides over hearings at the Office of Administrative Hearings, reviews evidence, and makes legal findings and conclusions.

Answer

The formal written response filed by the Respondent (the Association) on May 28, 2019, denying the Petitioner’s allegations.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The specific statute at issue was § 33-1243.

Association

The Cortez Canyon Unit Owners Association, the governing body for the condominium development, comprised of all unit owners.

Board of Directors (the Board)

The group of individuals that oversees the Association, as empowered by the CC&Rs. The petition sought to remove a member of this board.

Burden of Proof

The legal obligation on one party in a dispute (in this case, the Petitioner) to provide sufficient evidence to prove their claim.

Bylaws

The set of rules adopted by the Association on June 14, 2000, that govern its internal operations, including meetings and voting rights.

Covenants, Conditions, and Restrictions (CC&Rs)

The primary governing documents for the development, recorded on May 9, 2000, which form an enforceable contract between the Association and each property owner.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.

Eligible Votes

A term defined in the Bylaws as the total number of votes that can be lawfully cast, excluding those from members whose voting rights are suspended.

Findings of Fact

The section of the legal decision that outlines the established, undisputed facts of the case based on the hearing evidence.

OAH (Office of Administrative Hearings)

An independent state agency where evidentiary hearings are conducted by Administrative Law Judges.

The final, legally binding command issued by the judge at the conclusion of the decision. In this case, the Order was to deny the petition.

Petitioner

The party who initiates a legal action by filing a petition. In this case, John H. Kelly.

Petition

The formal document filed by the Petitioner on April 29, 2019, with the Department to initiate the hearing process against the Association.

Preponderance of the Evidence

The standard of proof required in this case, meaning that the evidence must be sufficient to convince the judge that the contention is more probably true than not.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Cortez Canyon Unit Owners Association.

Special Meeting

A meeting of Association members called for a specific purpose outside of the regularly scheduled meetings. The petition sought to compel a special meeting to remove a board member.

Unit Owner

An individual who holds legal title to a condominium within the Cortez Canyon development and is a member of the Association.






Blog Post – 19F-H1919060-REL


He Gathered 36 Signatures to Oust His HOA Board. Here’s Why Only 13 Counted.

Introduction: The Power and Pitfalls of Community Action

Many homeowners have felt the frustration of trying to enact change within their community, especially when it involves challenging the decisions of a Homeowners Association (HOA) board. It can feel like an uphill battle, but the right to petition and call for special meetings is a cornerstone of community governance.

However, a real-world case involving homeowner John H. Kelly and the Cortez Canyon Unit Owners Association serves as a critical cautionary tale. Mr. Kelly gathered what he believed were more than enough signatures to force a special meeting to remove a board member. Despite his significant effort, his petition failed spectacularly. This article breaks down the key legal and procedural reasons why, offering essential lessons for every homeowner.

1. Not All Signatures Are Created Equal: The Validity Gauntlet

The core of the issue began with a simple numbers game. The Cortez Canyon HOA has 84 units, meaning a petition required signatures from 25%, or 21, of the unit owners to compel a special meeting. Mr. Kelly successfully collected 36 signatures—a number that seemed to guarantee his success.

In a moment of false victory, the association’s property management company at the time, Golden Valley, informed Mr. Kelly that he had indeed secured enough signatures. But this assurance was short-lived. A new management company took over, and after a formal review, the association delivered devastating news: only 13 of the 36 signatures were valid. The petition was dead on arrival.

The association disqualified 23 signatures for specific, documented reasons:

• Non-Owners: Eleven signatures were from renters or other residential occupants who were not the legal owners of the unit.

• Duplicate Units: Six signatures were removed because another signature had already been collected from the same unit, upholding the “one vote per unit” principle.

• Ineligible Owners: Six signatures were from homeowners who were technically owners but were found to be ineligible to vote at the time they signed.

This reveals the petitioner’s first critical, and ultimately fatal, assumption: that the HOA would do the work of verifying his supporters. In reality, the burden of proof was his alone. The legal findings state it plainly: “Neither Petitioner nor his assistants verified if the signatures that were collected belonged to Unit Owners eligible to vote.” From a governance perspective, this initial culling of signatures is where most grassroots community efforts fail.

2. The Fine Print That Disenfranchises: “Good Standing” and Your Right to Vote

Here, we find the kind of boilerplate legal language that is often ignored by homeowners but wielded with immense power by boards. The ineligibility of six homeowners stemmed from a specific clause in the association’s bylaws related to financial standing.

The bylaw states:

“In the event any Unit Owner is in arrears in the payment of any Assessment, monetary penalties or other fees and charges due under the terms of the Condominium Documents for a period of fifteen (15) days, the Unit Owner’s right to vote as a member of the Association shall be automatically suspended…”

This single provision had a profound impact. Six of the signatures Mr. Kelly collected were from homeowners who were more than 15 days late on their dues or fines. Their voting rights were suspended, and their signatures were rendered invalid. This highlights a crucial preparatory step for any petitioner: confidentially requesting a list of members in good standing from the association before collecting signatures, if the governing documents allow, or at minimum, reminding potential signatories to ensure their accounts are current.

3. Process is Paramount: The Signature That Never Was

Facing a losing battle at the administrative hearing, the petitioner made a final argument to salvage his petition. He contended that he had also secured the signature of a member named Jeffrey Law, who owned six separate units. Mr. Kelly argued this single signature should count as six votes, which would have put him over the required threshold.

However, this argument failed due to a simple but fatal procedural error. According to the court’s findings, the signature from Mr. Law was never actually submitted with the petition to the association.

The Administrative Law Judge’s finding was unambiguous: “The signature Petitioner collected from the multiple unit owner, Jeffrey Law, was not a part of the petition received by the Association and therefore was not counted.” This procedural error, while seemingly minor, is an absolute bar to success in administrative law. Unlike a casual disagreement, there is no room for “I meant to” or “I thought I had.”

Conclusion: Knowledge is Power in an HOA

Because the petitioner could only provide 13 valid signatures instead of the required 21, the Administrative Law Judge denied his petition. The HOA was not required to call the special meeting, and the board member remained in place. Mr. Kelly’s story is a powerful reminder that enthusiasm and effort are not enough to navigate the complexities of community governance. The case provides three clear takeaways for any homeowner:

1. Quality Over Quantity: A short, verified list of eligible voters is infinitely more powerful than a long list of unverified names.

2. Bylaws are Your Battlefield: The governing documents contain the rules of engagement. Ignoring them—especially clauses on voter eligibility—is a unilateral surrender.

3. Documentation is Everything: If it wasn’t formally submitted to the correct party, it legally never happened. Your ability to prove submission is as important as the submission itself.

This case is a powerful reminder that enthusiasm and effort aren’t enough. The real question every homeowner should ask is: Do you truly know the rules that govern your rights in your own community?


Case Participants

Petitioner Side

  • John H. Kelly (petitioner)

Respondent Side

  • Jonathan A. Dessaules (attorney)
    Dessaules Law Group
    Appeared on behalf of Respondent
  • Saundra Garcia (board member)
    Cortez Canyon Unit Owners Association
    Called as a witness and testified as Board President
  • Jacob A. Kubert (attorney)
    Dessaules Law Group
    Counsel receiving notice of decision

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Decision transmitted to Commissioner

Other Participants

  • Jeffery Law (owner)
    Cortez Canyon Unit Owners Association
    Unit owner whose signature Petitioner secured but was not submitted to the Association

John H. Kelly v. Cortez Canyon Unit Owners Association

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Case Summary

Case ID 19F-H1919060-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-13
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John H. Kelly Counsel —
Respondent Cortez Canyon Unit Owners Association Counsel Jonathan A. Dessaules

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.

Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.

Key Issues & Findings

Alleged violation of failure to call a special meeting to remove a board member.

Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • 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, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • 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

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2026-01-23T17:29:30 (142.6 KB)





Briefing Doc – 19F-H1919060-REL


Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.

The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.

This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.

Case Overview

Parties Involved

Name / Entity

Details

Petitioner

John H. Kelly

A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.

Respondent

Cortez Canyon Unit Owners Association

The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.

Witness

Saundra Garcia

President of the Association’s Board of Directors.

Adjudicator

Jenna Clark

Administrative Law Judge, Arizona Office of Administrative Hearings.

Core Dispute

The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.

Legal and Governance Framework

The dispute was governed by Arizona state law and the Association’s own internal documents.

• Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.

• Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.

• Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.

Petitioner’s Position and Evidence (John H. Kelly)

Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:

• Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.

• Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.

• Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.

• Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.

• Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.

• Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”

Respondent’s Position and Evidence (Cortez Canyon Association)

The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.

• Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.

• Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.

• Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:

◦ 11 signatures were removed because they were from non-owner renters or occupants.

◦ 6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).

◦ 6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.

• Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.

• Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.

Administrative Law Judge’s Findings and Ruling

The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.

Conclusions of Law

• Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

• Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.

• Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”

• Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”

Final Order

Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:

IT IS ORDERED that Petitioner’s petition be denied.






Study Guide – 19F-H1919060-REL


Study Guide: Kelly v. Cortez Canyon Unit Owners Association (Case No. 19F-H1919060-REL)

This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter between Petitioner John H. Kelly and Respondent Cortez Canyon Unit Owners Association. It is designed to test and reinforce understanding of the case’s facts, legal arguments, governing documents, and final outcome.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following ten questions in two to three complete sentences, based solely on the information provided in the case document.

1. Who were the primary parties involved in this hearing, and what were their respective roles?

2. What was the specific violation of Arizona law alleged by the Petitioner in his initial petition to the Department of Real Estate?

3. How many condominium units are in the Cortez Canyon development, and what number of valid signatures was consequently required to compel a special meeting?

4. According to the Association’s Bylaws, what circumstances would cause a Unit Owner to have their voting rights suspended?

5. List the three categories of invalid signatures that the Association identified in its review of the Petitioner’s submission.

6. Who was Jeffery Law, and why was his signature ultimately not counted by the Association?

7. What was the initial assessment given to the Petitioner by the property management group, Golden Valley, and how did it differ from the Association’s final determination?

8. In this type of legal proceeding, who bears the “burden of proof,” and what standard of proof must be met?

9. What was the Administrative Law Judge’s final conclusion regarding the Petitioner’s claim?

10. What was the final ORDER issued by the Administrative Law Judge in this case?

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Part II: Answer Key

1. The primary parties were John H. Kelly, the “Petitioner,” who appeared on his own behalf, and the Cortez Canyon Unit Owners Association, the “Respondent,” which was represented by Jonathan A. Dessaules, Esq. Administrative Law Judge Jenna Clark presided over the hearing. Saundra Garcia, the Association’s Board President, appeared as a witness for the Respondent.

2. The Petitioner alleged that the Association violated ARIZ. REV. STAT. § 33-1243 by failing to call a special meeting for the purpose of removing a board member. He claimed to have collected the required number of signatures from homeowners to compel such a meeting.

3. The Cortez Canyon development has 84 units. Based on the requirement for signatures from 25% of the votes in the Association, a total of 21 valid Unit Owner signatures were required to compel a special meeting.

4. According to Bylaws Article II, Section 7, a Unit Owner’s right to vote is automatically suspended if the owner is in arrears in the payment of any Assessment, monetary penalties, or other fees for a period of fifteen days. This suspension remains in effect until all payments are brought current.

5. The Association determined that of the 36 submitted signatures, 23 were invalid. The categories for invalidation were: eleven signatures from non-owner renters or occupants, six signatures from units where another signature had already been collected, and six signatures from Unit Owners who were ineligible to vote due to being delinquent on payments.

6. Jeffery Law was an Association member and owner of six condominium units. His signature was not counted because the Petitioner secured it after submitting the petition to the management company and never provided it to the Association as part of the formal submission.

7. The former property management group, Golden Valley, initially informed the Petitioner that he had secured enough valid signatures to compel a special meeting. However, after the Association directly reviewed the petition, it determined that only 13 of the signatures were valid, far short of the required 21.

8. In this proceeding, the Petitioner, John H. Kelly, bore the burden of proof. The standard of proof required was a “preponderance of the evidence,” which means providing evidence that is more convincing and has superior weight than the evidence presented by the opposing side.

9. The Administrative Law Judge concluded that the Petitioner failed to sustain his burden of proof. The credible evidence demonstrated that the Petitioner submitted only thirteen valid signatures, which was insufficient to compel the Association to call a special meeting under its Bylaws and state law.

10. The final ORDER, based on the Findings of Fact and Conclusions of Law, was that the Petitioner’s petition be denied.

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Part III: Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. They require a deeper analysis of the case’s themes, legal principles, and procedural elements. Do not provide answers.

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what “preponderance of the evidence” means in this context, who held the burden, and how the failure to meet this standard was the central reason for the judge’s final decision.

2. Discuss the critical importance of an association’s governing documents (CC&Rs and Bylaws) in resolving internal disputes. Use specific articles and sections from the Cortez Canyon Bylaws to illustrate how they definitively established the rules for calling a special meeting and determining voter eligibility, leaving little room for interpretation.

3. Evaluate the Petitioner’s strategy and execution in collecting signatures for his petition. Identify the critical errors he and his assistants made in the process, and outline the specific steps he could have taken to verify signatures and ensure his petition was valid before its submission.

4. Explain the legal and practical distinctions between a Unit Owner, an occupant/renter, and an “eligible voter” within the context of the Cortez Canyon Unit Owners Association. How did the Petitioner’s failure to understand these distinctions become the central point of failure for his petition?

5. Imagine you are advising the Cortez Canyon Board of Directors following this hearing. Based on the evidence and outcome of the case, what recommendations would you make regarding their procedures for validating petitions and their communication with Unit Owners about voting rights, petition requirements, and the consequences of financial delinquency?

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Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Jenna Clark) who presides over hearings at the Office of Administrative Hearings, reviews evidence, and makes legal findings and conclusions.

Answer

The formal written response filed by the Respondent (the Association) on May 28, 2019, denying the Petitioner’s allegations.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The specific statute at issue was § 33-1243.

Association

The Cortez Canyon Unit Owners Association, the governing body for the condominium development, comprised of all unit owners.

Board of Directors (the Board)

The group of individuals that oversees the Association, as empowered by the CC&Rs. The petition sought to remove a member of this board.

Burden of Proof

The legal obligation on one party in a dispute (in this case, the Petitioner) to provide sufficient evidence to prove their claim.

Bylaws

The set of rules adopted by the Association on June 14, 2000, that govern its internal operations, including meetings and voting rights.

Covenants, Conditions, and Restrictions (CC&Rs)

The primary governing documents for the development, recorded on May 9, 2000, which form an enforceable contract between the Association and each property owner.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.

Eligible Votes

A term defined in the Bylaws as the total number of votes that can be lawfully cast, excluding those from members whose voting rights are suspended.

Findings of Fact

The section of the legal decision that outlines the established, undisputed facts of the case based on the hearing evidence.

OAH (Office of Administrative Hearings)

An independent state agency where evidentiary hearings are conducted by Administrative Law Judges.

The final, legally binding command issued by the judge at the conclusion of the decision. In this case, the Order was to deny the petition.

Petitioner

The party who initiates a legal action by filing a petition. In this case, John H. Kelly.

Petition

The formal document filed by the Petitioner on April 29, 2019, with the Department to initiate the hearing process against the Association.

Preponderance of the Evidence

The standard of proof required in this case, meaning that the evidence must be sufficient to convince the judge that the contention is more probably true than not.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Cortez Canyon Unit Owners Association.

Special Meeting

A meeting of Association members called for a specific purpose outside of the regularly scheduled meetings. The petition sought to compel a special meeting to remove a board member.

Unit Owner

An individual who holds legal title to a condominium within the Cortez Canyon development and is a member of the Association.






Blog Post – 19F-H1919060-REL


He Gathered 36 Signatures to Oust His HOA Board. Here’s Why Only 13 Counted.

Introduction: The Power and Pitfalls of Community Action

Many homeowners have felt the frustration of trying to enact change within their community, especially when it involves challenging the decisions of a Homeowners Association (HOA) board. It can feel like an uphill battle, but the right to petition and call for special meetings is a cornerstone of community governance.

However, a real-world case involving homeowner John H. Kelly and the Cortez Canyon Unit Owners Association serves as a critical cautionary tale. Mr. Kelly gathered what he believed were more than enough signatures to force a special meeting to remove a board member. Despite his significant effort, his petition failed spectacularly. This article breaks down the key legal and procedural reasons why, offering essential lessons for every homeowner.

1. Not All Signatures Are Created Equal: The Validity Gauntlet

The core of the issue began with a simple numbers game. The Cortez Canyon HOA has 84 units, meaning a petition required signatures from 25%, or 21, of the unit owners to compel a special meeting. Mr. Kelly successfully collected 36 signatures—a number that seemed to guarantee his success.

In a moment of false victory, the association’s property management company at the time, Golden Valley, informed Mr. Kelly that he had indeed secured enough signatures. But this assurance was short-lived. A new management company took over, and after a formal review, the association delivered devastating news: only 13 of the 36 signatures were valid. The petition was dead on arrival.

The association disqualified 23 signatures for specific, documented reasons:

• Non-Owners: Eleven signatures were from renters or other residential occupants who were not the legal owners of the unit.

• Duplicate Units: Six signatures were removed because another signature had already been collected from the same unit, upholding the “one vote per unit” principle.

• Ineligible Owners: Six signatures were from homeowners who were technically owners but were found to be ineligible to vote at the time they signed.

This reveals the petitioner’s first critical, and ultimately fatal, assumption: that the HOA would do the work of verifying his supporters. In reality, the burden of proof was his alone. The legal findings state it plainly: “Neither Petitioner nor his assistants verified if the signatures that were collected belonged to Unit Owners eligible to vote.” From a governance perspective, this initial culling of signatures is where most grassroots community efforts fail.

2. The Fine Print That Disenfranchises: “Good Standing” and Your Right to Vote

Here, we find the kind of boilerplate legal language that is often ignored by homeowners but wielded with immense power by boards. The ineligibility of six homeowners stemmed from a specific clause in the association’s bylaws related to financial standing.

The bylaw states:

“In the event any Unit Owner is in arrears in the payment of any Assessment, monetary penalties or other fees and charges due under the terms of the Condominium Documents for a period of fifteen (15) days, the Unit Owner’s right to vote as a member of the Association shall be automatically suspended…”

This single provision had a profound impact. Six of the signatures Mr. Kelly collected were from homeowners who were more than 15 days late on their dues or fines. Their voting rights were suspended, and their signatures were rendered invalid. This highlights a crucial preparatory step for any petitioner: confidentially requesting a list of members in good standing from the association before collecting signatures, if the governing documents allow, or at minimum, reminding potential signatories to ensure their accounts are current.

3. Process is Paramount: The Signature That Never Was

Facing a losing battle at the administrative hearing, the petitioner made a final argument to salvage his petition. He contended that he had also secured the signature of a member named Jeffrey Law, who owned six separate units. Mr. Kelly argued this single signature should count as six votes, which would have put him over the required threshold.

However, this argument failed due to a simple but fatal procedural error. According to the court’s findings, the signature from Mr. Law was never actually submitted with the petition to the association.

The Administrative Law Judge’s finding was unambiguous: “The signature Petitioner collected from the multiple unit owner, Jeffrey Law, was not a part of the petition received by the Association and therefore was not counted.” This procedural error, while seemingly minor, is an absolute bar to success in administrative law. Unlike a casual disagreement, there is no room for “I meant to” or “I thought I had.”

Conclusion: Knowledge is Power in an HOA

Because the petitioner could only provide 13 valid signatures instead of the required 21, the Administrative Law Judge denied his petition. The HOA was not required to call the special meeting, and the board member remained in place. Mr. Kelly’s story is a powerful reminder that enthusiasm and effort are not enough to navigate the complexities of community governance. The case provides three clear takeaways for any homeowner:

1. Quality Over Quantity: A short, verified list of eligible voters is infinitely more powerful than a long list of unverified names.

2. Bylaws are Your Battlefield: The governing documents contain the rules of engagement. Ignoring them—especially clauses on voter eligibility—is a unilateral surrender.

3. Documentation is Everything: If it wasn’t formally submitted to the correct party, it legally never happened. Your ability to prove submission is as important as the submission itself.

This case is a powerful reminder that enthusiasm and effort aren’t enough. The real question every homeowner should ask is: Do you truly know the rules that govern your rights in your own community?


Case Participants

Petitioner Side

  • John H. Kelly (petitioner)

Respondent Side

  • Jonathan A. Dessaules (attorney)
    Dessaules Law Group
    Appeared on behalf of Respondent
  • Saundra Garcia (board member)
    Cortez Canyon Unit Owners Association
    Called as a witness and testified as Board President
  • Jacob A. Kubert (attorney)
    Dessaules Law Group
    Counsel receiving notice of decision

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Decision transmitted to Commissioner

Other Participants

  • Jeffery Law (owner)
    Cortez Canyon Unit Owners Association
    Unit owner whose signature Petitioner secured but was not submitted to the Association

Tom Barrs v. Desert Ranch Homeowners Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1918037-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-09-12
Administrative Law Judge Jenna Clark
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Tom Barrs Counsel Jonathan A. Dessaules
Respondent Desert Ranch Homeowners Association Counsel B. Austin Baillio

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.

Key Issues & Findings

Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.

The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.

Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 1-243
  • ARIZ. ADMIN. CODE R2-19-107
  • ARIZ. REV. STAT. § 33-1804

Video Overview

Audio Overview

Decision Documents

19F-H1918037-REL-RHG Decision – 737525.pdf

Uploaded 2026-01-23T17:28:11 (176.7 KB)

19F-H1918037-REL-RHG Decision – ../19F-H1918037-REL/700566.pdf

Uploaded 2026-01-23T17:28:13 (149.3 KB)





Briefing Doc – 19F-H1918037-REL-RHG


Briefing on Barrs v. Desert Ranch Homeowners Association

Executive Summary

This briefing synthesizes the legal proceedings and outcomes of case number 19F-H1918037-REL, a dispute between homeowner Tom Barrs (“Petitioner”) and the Desert Ranch Homeowners Association (“Respondent”). The core issue was the Association’s alleged violation of Arizona Revised Statutes (A.R.S.) § 33-1805 for failing to completely fulfill a records request submitted by the Petitioner on November 1, 2018.

An initial hearing on March 21, 2019, resulted in a decision in favor of the Association. Administrative Law Judge Jenna Clark found that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and therefore the Association’s provision of a summary table did not constitute a statutory violation.

Following an appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence was introduced demonstrating that the Petitioner had previously been expressly instructed by the Association’s President to direct records requests specifically to the Environmental Design Committee (EDC) Chairman, Brian Schoeffler, a directive the Petitioner followed. Consequently, Judge Clark reversed the initial decision, concluding that the request was properly submitted and the Association’s failure to provide the full records—offering only a summary table—was a clear violation of A.R.S. § 33-1805. The final order granted the Petitioner’s petition, ordered the reimbursement of his $500 filing fee, and levied a $500 civil penalty against the Association.

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Case Overview

Parties Involved

Name/Entity

Key Individuals

Tom Barrs

Petitioner, Homeowner

Represented himself initially; later by Jonathan Dessaules, Esq.

Desert Ranch Homeowners Assoc.

Respondent, HOA

Governed by CC&Rs and a Board of Directors.

Brian Schoeffler

Witness for Respondent

Chairman of the Environmental Design Committee (EDC).

Jenna Clark

Administrative Law Judge

Presided over both the initial hearing and the rehearing.

Catherine Overby

Association President

Appointed Schoeffler as Petitioner’s primary records contact.

Lori Loch-Lee

VP, Associated Asset Management (AAM)

Recipient of records request; AAM acted as the Association’s accounting firm.

Core Legal Issue

The central question adjudicated was whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request. This statute requires that an association’s records be made “reasonably available for examination” and that a request for copies be fulfilled within ten business days.

Timeline of Key Events

July 19, 2017

Association President Catherine Overby appoints EDC Director Brian Schoeffler as Petitioner’s primary records contact.

November 1, 2018

Petitioner emails a records request to Schoeffler, Overby, and Lori Loch-Lee.

November 18, 2018

The Association provides a summary table of EDC actions, not the full records requested.

December 17, 2018

Petitioner files a formal petition against the Association with the Arizona Department of Real Estate.

March 6, 2019

Petitioner follows up via email, specifying the exact communications and documents he is seeking.

March 11, 2019

Schoeffler responds, asserting the request was fulfilled and directing Petitioner to submit a new one.

March 21, 2019

The first evidentiary hearing is held at the Office of Administrative Hearings (OAH).

April 10, 2019

The initial ALJ Decision is issued, denying the petition.

June 10, 2019

Petitioner submits a successful appeal to the Department.

August 27, 2019

A rehearing is held at the OAH.

September 12, 2019

The final ALJ Decision is issued, reversing the prior decision and ruling in favor of the Petitioner.

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Initial Hearing and Decision (No. 19F-H1918037-REL)

Petitioner’s Position (Tom Barrs)

• On November 1, 2018, Barrs requested “a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018.”

• The Association’s response on November 18, 2018, was a “summary table listing of some, not all, EDC actions,” which did not include the totality of communications requested.

• Barrs argued the Association willfully failed to comply, citing a similar previous dispute that required OAH adjudication.

• The dispute was clarified to be about the completeness of the response, not its timeliness.

Respondent’s Position (Desert Ranch HOA)

• Represented by Brian Schoeffler, the HOA argued it had fully, though untimelily, complied with the request.

• The core of the defense was that the request was improperly submitted because Barrs only sent it to two of the four Board members.

• Schoeffler reasoned that the Association’s response was guided by a prior OAH decision in a similar case that had been returned in the Association’s favor.

• Schoeffler also stated that fulfilling the more detailed request from March 6, 2019, could be interpreted as an “admission of guilt,” which is why he asked for a new request.

Initial Findings and Order (April 10, 2019)

• Key Finding: The Administrative Law Judge (ALJ) concluded that the Petitioner failed to properly submit his records request to all members of the Association’s Board.

• Legal Conclusion: “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805 for providing him with a summary table on November 18, 2018.”

• Order: The Petitioner’s petition was denied. His request for a civil penalty and reimbursement of his filing fee was also denied.

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Rehearing and Final Decision (No. 19F-H1918037-REL-RHG)

Basis for Rehearing

The Petitioner successfully appealed the initial decision, leading the Department of Real Estate to refer the matter back to the OAH for a new evidentiary hearing on the same issue.

New Evidence and Revised Testimony

• Petitioner’s New Evidence: Crucially, the Petitioner introduced evidence (Petitioner Exhibit 11) showing that on July 19, 2017, Association President Catherine Overby had appointed Brian Schoeffler as the Petitioner’s primary records request contact.

• Respondent’s Concession: The Association conceded that its governing documents do not require all Board members to be copied on records requests. It also conceded that its own bylaws regarding the submission of forms for records requests were not adhered to or enforced.

• Persistent Failure to Comply: It was established that as of the date of the rehearing (August 27, 2019), the Petitioner had still not received all of the documentation requested on November 1, 2018.

Final Findings and Order (September 12, 2019)

• Revised Key Finding: The ALJ found that the Petitioner’s request was not required to be sent to all Board members. Instead, the Petitioner had “expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”

• Final Legal Conclusion: “Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”

• Final Order:

1. The Petitioner’s petition was granted.

2. The Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee.

3. A civil penalty of $500.00 was levied against the Respondent, payable to the Department of Real Estate.

Key Judicial Quotes

On the Improper Submission Argument (First Decision): “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805…”

On the Proper Submission Argument (Final Decision): “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”

On the Violation (Final Decision): “Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”






Study Guide – 19F-H1918037-REL-RHG


Study Guide: Barrs v. Desert Ranch Homeowners Association

This study guide provides a comprehensive review of the administrative legal case Tom Barrs v. Desert Ranch Homeowners Association, Docket No. 19F-H1918037-REL. It covers the initial hearing, the subsequent rehearing, the key arguments, the relevant statutes, and the final outcome of the dispute. The case centers on a homeowner’s records request and the association’s legal obligations under Arizona state law.

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, drawing all information from the provided case documents.

1. Who are the Petitioner and Respondent in this case, and what is their relationship?

2. What was the central legal issue presented for adjudication at the Office of Administrative Hearings?

3. What specific records did the Petitioner, Tom Barrs, request from the Association on November 1, 2018?

4. What was the Association’s initial response to the Petitioner’s records request, and when was it provided?

5. What was the outcome of the first hearing on March 21, 2019, as detailed in the decision issued on April 10, 2019?

6. Why did the Administrative Law Judge initially rule in favor of the Respondent?

7. What new evidence presented at the rehearing on August 27, 2019, proved critical to reversing the initial decision?

8. According to Arizona Revised Statute § 33-1805, what is the time frame for an association to fulfill a request for examination or copies of records?

9. What was the final outcome of the case after the rehearing, as ordered on September 12, 2019?

10. What specific penalties and reimbursements were levied against the Respondent in the final order?

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Answer Key

1. The Petitioner is Tom Barrs, a property owner in the Desert Ranch subdivision and a member of its homeowners’ association. The Respondent is the Desert Ranch Homeowners Association (“the Association”), the governing body for the subdivision.

2. The central issue was whether the Desert Ranch Homeowners Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to properly and completely fulfill a records request submitted by the Petitioner.

3. The Petitioner requested a copy of all Environmental Design Committee (EDC) actions, written requests, and written approvals from October 2017 through October 2018. He later clarified this included communications like letters, emails, and application forms related to specific EDC decisions.

4. On November 18, 2018, the Association provided the Petitioner with a summary table listing some EDC actions. This response did not include the full scope of communications and underlying documents that the Petitioner had requested.

5. Following the first hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge ruled that the Association’s conduct did not violate A.R.S. § 33-1805, denied the request for a civil penalty, and ordered that the Association did not have to reimburse the Petitioner’s filing fee.

6. The judge initially ruled for the Respondent because the evidence suggested the Petitioner had failed to properly submit his request to all members of the Association’s Board. This procedural error was seen as the reason the Association’s response (the summary table) was not a violation of the statute.

7. At the rehearing, evidence was introduced showing that on July 19, 2017, the Association’s President had explicitly appointed Brian Schoeffler, the EDC Chairman, as the Petitioner’s primary records request contact. This demonstrated that the Petitioner was not required to send his request to all Board members and had followed prior instructions correctly.

8. A.R.S. § 33-1805 states that an association has ten business days to fulfill a request for examination of records. It also specifies that the association has ten business days to provide copies of requested records upon request.

9. After the rehearing, the Administrative Law Judge granted the Petitioner’s petition. The judge concluded that the Association’s conduct did violate A.R.S. § 33-1805 by providing only a summary table instead of the full records requested.

10. In the final order, the Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee. Additionally, a civil penalty of $500.00 was levied against the Respondent, payable to the Arizona Department of Real Estate.

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Essay Questions

Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a detailed response for each, synthesizing facts and arguments presented in the source documents.

1. Compare and contrast the findings of fact and conclusions of law from the first hearing (April 10, 2019 decision) with those from the rehearing (September 12, 2019 decision). What specific evidence or legal reasoning led to the reversal of the initial order?

2. Analyze the arguments presented by both the Petitioner, Tom Barrs, and the Respondent’s representative, Brian Schoeffler. Discuss the strengths and weaknesses of each party’s position across both hearings.

3. Explain the role and significance of Arizona Revised Statute § 33-1805 in this case. How did the interpretation of the Association’s obligations under this statute differ between the initial ruling and the final ruling?

4. Trace the timeline of events from the initial records request on November 1, 2018, to the final order on September 12, 2019. Highlight the key communications and procedural steps that influenced the case’s progression and ultimate outcome.

5. Discuss the legal standard of “preponderance of the evidence” as it is defined in the case documents. How did the Petitioner successfully meet this burden of proof in the rehearing after failing to do so in the initial hearing?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, reviews evidence, makes findings of fact and conclusions of law, and issues orders. In this case, the ALJ was Jenna Clark.

A.R.S. § 33-1805

The section of the Arizona Revised Statutes that governs the rights of homeowners’ association members to access association records. It mandates that records be made “reasonably available for examination” and establishes a ten-business-day deadline for associations to fulfill such requests.

Associated Asset Management (AAM)

The management company that served as the Association’s accounting firm. Petitioner was at one point instructed to direct requests to an AAM representative.

Board of Directors (the Board)

The group that oversees the Desert Ranch Homeowners Association. The dispute involved questions about whether a records request needed to be sent to all members of the Board.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing documents for the Desert Ranch Homeowners Association.

Environmental Design Committee (EDC)

A committee within the Desert Ranch Homeowners Association, chaired by Brian Schoeffler. The records requested by the Petitioner pertained to the actions and decisions of this committee.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for disputes referred by other state agencies, such as the Department of Real Estate.

Petitioner

The party who files a petition initiating a legal action. In this case, Tom Barrs.

Preponderance of the evidence

The burden of proof in this case. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and represents the “greater weight of the evidence.”

Respondent

The party against whom a petition is filed. In this case, the Desert Ranch Homeowners Association.






Blog Post – 19F-H1918037-REL-RHG


He Fought His HOA Over Public Records and Lost. Then One Old Email Changed Everything.

1.0 Introduction: The Familiar Frustration of Fighting the System

Almost everyone has a story about the maddening frustration of dealing with a bureaucratic organization. The rules can seem arbitrary, the answers vague, and the entire process engineered to make you give up. For homeowners, that organization is often their Homeowners Association (HOA). This was precisely the situation for Tom Barrs, a homeowner in Scottsdale, Arizona, when he made what seemed like a simple request for records from his HOA, the Desert Ranch Homeowners Association. His straightforward request ignited a surprising legal battle, where an initial, demoralizing defeat in court was ultimately overturned by a single, crucial piece of evidence exhumed from the past.

2.0 Takeaway 1: The First Verdict Isn’t Always the Final Word

The dispute began with a formal records request. In November 2018, Tom Barrs asked to see documents related to the HOA’s Environmental Design Committee (EDC). His request was clear, specific, and cited the relevant state law:

“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”

The HOA refused to provide the records, and the case went before Administrative Law Judge Jenna Clark on March 21, 2019. The judge denied Mr. Barrs’s petition. The ruling was based on what seemed to be a fatal procedural error: the judge concluded that Mr. Barrs had failed to properly submit his request because he did not email it to all members of the Association’s Board.

Adding a potent dose of irony, the HOA’s representative at the hearing—Brian Schoeffler, the very EDC Chairman to whom Barrs had sent the request—successfully argued that a prior case meant Barrs “knew or should have known the requirements.” For many people, this initial loss, buttressed by the HOA weaponizing their past behavior against them, would have been the end of the road. But for Mr. Barrs, it was only the first chapter.

3.0 Takeaway 2: The Paper Trail is Your Most Powerful Weapon

Unwilling to accept the verdict, Mr. Barrs appealed and was granted a rehearing. The case was heard again before the very same judge, Jenna Clark. This time, however, Mr. Barrs had a new piece of evidence—a single, forgotten email that would force the judge to re-evaluate her own initial conclusion.

The case hinged on a communication from sixteen months prior. In July 2017, the Association’s President, Catherine Overby, had sent an email specifically appointing EDC Chairman Brian Schoeffler as Mr. Barrs’s “primary records request contact.”

This single document completely dismantled the HOA’s central argument. It proved that a specific, documented protocol existed that superseded any unwritten procedure the HOA later tried to enforce. Based on this prior instruction, Judge Clark’s new conclusion was decisive: Mr. Barrs was not required to send his request to the entire board. He had, in fact, followed the HOA’s own explicit directive perfectly. The HOA’s argument, built on chastising Mr. Barrs for not knowing the rules, crumbled under the weight of a rule they themselves had established and forgotten.

4.0 Takeaway 3: A “Summary” Isn’t the Same as “The Records”

Another key issue was the HOA’s attempt to control the information it released. Instead of providing the actual letters, emails, and applications Mr. Barrs had asked for, the HOA sent him a “summary table” of the EDC’s actions.

This defense initially worked. In the first ruling, Judge Clark concluded that because the request itself was improperly submitted, the summary table was not a violation of the statute. The HOA’s failure to provide the actual records was excused on a technicality.

But once the old email proved the request was valid, that technicality vanished and the summary table argument collapsed. In her final ruling, Judge Clark determined that providing a summary was a clear violation of Arizona law (ARIZ. REV. STAT. § 33-1805). The statute is unambiguous: records must be made “reasonably available for examination,” and copies must be provided upon request. The HOA’s attempt to substitute its interpretation of the records for the records themselves was not just unhelpful—it was illegal.

5.0 Takeaway 4: Resistance Can Be More Costly Than Compliance

The final, reversed decision was issued on September 12, 2019. Mr. Barrs’s petition was granted, and the HOA faced direct financial consequences for its stonewalling. The Desert Ranch HOA was ordered to:

• Reimburse Mr. Barrs’s $500.00 filing fee.

• Pay a separate $500.00 civil penalty to the Arizona Department of Real Estate.

For the price of a few photocopies, the HOA chose instead to pay for a protracted legal battle, a public loss, and $1,000 in fees and penalties—a steep cost for refusing transparency. The outcome is a stark reminder that an organization’s attempt to obstruct access to information can be far more damaging to its finances and reputation than simple compliance.

6.0 Conclusion: The Power of a Single Fact

The story of Tom Barrs’s dispute offers powerful, practical lessons for anyone facing a similar challenge. It highlights the importance of persistence, the legal weight of true transparency, and, above all, the critical power of documentation. One old email—one documented fact—was enough to level the playing field, force a judge to reverse her own decision, and ensure the rules were applied fairly. It leaves us with a compelling question to consider.

How might meticulous record-keeping change the outcome of a dispute in your own life?


Case Participants

Petitioner Side

  • Tom Barrs (petitioner/witness)
    Appeared on his own behalf initially; appeared as witness at rehearing
  • Jonathan Dessaules (attorney)
    Dessaules Law Group
    Appeared on behalf of Petitioner at rehearing

Respondent Side

  • Desert Ranch Homeowners Association (respondent)
  • Brian Schoeffler (EDC chairman/witness)
    Desert Ranch Homeowners Association
    Appeared on behalf of Respondent; Chairman of the Association’s EDC
  • Catherine Overby (HOA president)
    Desert Ranch Homeowners Association
    Association President; records request recipient
  • Lori Loch-Lee (VP Client Services)
    Associated Asset Management (AAM)
    Management company contact; records request recipient
  • Amanda Shaw (property manager rep)
    AAM LLC
    Contact for Respondent c/o AAM LLC
  • B. Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate (ADRE)
  • Dan Gardner (HOA Coordinator)
    Arizona Department of Real Estate (ADRE)

Other Participants

  • G. Mangiero (observer)
    Observed initial hearing
  • Peter Ashkin (observer)
  • Stephen Banks (observer)
  • Noah Banks (observer)
  • Gerard Manieri (observer)
    Observed rehearing
  • Stephen Barrs (observer)
    Observed rehearing
  • Abraham Barrs (observer)
    Observed rehearing