The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.
Why this result: The Bylaws did not strictly require elections be held, and Petitioner failed to object to the board remaining in place to oversee the dissolution.
Key Issues & Findings
Annual meeting
Petitioner alleged the HOA violated Article 2.1 of the Bylaws by failing to hold Board of Directors elections at the 2021 annual meeting. Respondent argued the language ('for the purpose of electing or announcing the results') did not require elections and that the dissolution vote superseded the immediate need for elections, especially since no one objected at the meeting.
Orders: Petitioner’s petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Decision Documents
23F-H031-REL Decision – 1035344.pdf
Uploaded 2026-01-23T17:53:49 (51.8 KB)
23F-H031-REL Decision – 1049021.pdf
Uploaded 2026-01-23T17:53:51 (114.7 KB)
Study Guide – 23F-H031-REL
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These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.
What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.
Thursday, February 12
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Today • 2:17 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 23F-H031-REL
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1035344.pdf
1045278.aac
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23F-H031-REL
3 sources
These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.
What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.
Thursday, February 12
Save to note
Today • 2:17 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Clifford S. Burnes(petitioner) Saguaro Crest Homeowners' Association Member Also referred to as Clifford (Norm) Burnes.
Respondent Side
John T. Crotty(HOA attorney) Saguaro Crest Homeowners' Association
Esmerina Martinez(board member) Saguaro Crest Homeowners' Association President; referred to as Serena Martinez or Esmerelda Martinez in sources.
Dave Madill(board member) Saguaro Crest Homeowners' Association Vice President; referred to as Dave Matt or Dave Mel in testimony.
Joseph Martinez(board member) Saguaro Crest Homeowners' Association
Neutral Parties
Adam D. Stone(ALJ) OAH
Susan Nicolson(Commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
djones(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
labril(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
The Administrative Law Judge denied Petitioner Michael H. Jahr's petition, concluding that he failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1816, because a clothesline is not a 'solar energy device' under ARS § 44-1761, and ARS § 33-439(a) was inapplicable.
Why this result: Petitioner failed to sustain his burden of proof that the Association violated ARS § 33-1816. The Tribunal determined that a clothesline does not meet the statutory definition of a solar energy device.
Key Issues & Findings
Alleged violation of ARS § 33-1816 regarding denial of utilizing solar means to reduce energy consumption.
Petitioner alleged the Association violated ARS § 33-1816 by refusing him the ability to utilize solar means (a clothesline) to reduce energy consumption, arguing the clothesline met the definition of a 'solar energy device' under ARS § 44-1761, which the HOA cannot prohibit.
Orders: Petitioner's petition was denied. Respondent was ordered not to owe Petitioner any reimbursement for fees incurred.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1816(a-b)
ARIZ. REV. STAT. § 44-1761
ARIZ. REV. STAT. § 33-439(a)
Association Rules & Regulations 2-304(D)
Analytics Highlights
Topics: HOA Dispute, Solar Energy Device, Clothesline, Planned Community, Statutory Interpretation, Burden of Proof
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. § 32-2199.04
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 33-439(a)
ARIZ. REV. STAT. § 33-1808(a)
ARIZ. REV. STAT. § 33-1816(a-b)
ARIZ. REV. STAT. § 44-1761
ARIZ. ADMIN. CODE R2-19-111(4)
Association Rules & Regulations 2-304(D)
Video Overview
Audio Overview
Decision Documents
23F-H032-REL Decision – 1041743.pdf
Uploaded 2026-01-23T17:53:59 (161.1 KB)
23F-H032-REL Decision – 1057366.pdf
Uploaded 2026-01-23T17:54:04 (55.7 KB)
Questions
Question
Can my HOA prohibit me from using a clothesline in my backyard?
Short Answer
Yes, if the community rules prohibit them.
Detailed Answer
The ALJ determined that an HOA can prohibit clotheslines because they do not qualify as protected solar energy devices under Arizona law. In this case, the association's rules explicitly prohibited clotheslines visible from outside the residence.
Alj Quote
Based on the relevant and credible evidence of record… the Tribunal finds that a clothesline is not a solar energy device. Moreover, Petitioner knew or should have known that clotheslines were prohibited by the Association under Rules & Regulations 2-304(D).
Legal Basis
Rules & Regulations 2-304(D); ARS 33-1816
Topic Tags
architectural_control
prohibited_items
solar_energy
Question
Is a clothesline considered a 'solar energy device' legally protected by Arizona statute?
Short Answer
No, a clothesline does not meet the statutory definition of a solar energy device.
Detailed Answer
The decision clarified that a clothesline does not fit the legal definition of a 'solar energy device' (specifically a 'system or series of mechanisms') under A.R.S. § 44-1761, and therefore does not enjoy the statutory protection that voids HOA restrictions on solar devices.
Alj Quote
Based on the relevant and credible evidence of record, including the aforementioned germane statutory definitions, and lacking any binding citations offered from a court of competent jurisdiction, the Tribunal finds that a clothesline is not a solar energy device.
Legal Basis
ARS 44-1761(8); ARS 33-439(a)
Topic Tags
solar_energy
definitions
statutory_interpretation
Question
What is the burden of proof for a homeowner challenging an HOA decision?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
When a homeowner petitions for a hearing, they bear the burden of proving that the HOA violated community documents or statutes. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden_of_proof
legal_standards
hearing_procedure
Question
Can I be reimbursed for my filing fees if I lose the hearing?
Short Answer
No, reimbursement is generally not awarded if the petition is denied.
Detailed Answer
The ALJ ordered that because the petition was denied, the HOA did not owe the homeowner any reimbursement for fees incurred during the filing process.
Alj Quote
IT IS FURTHER ORDERED that Respondent does not owe Petitioner any reimbursement(s) for fees incurred in association with the filing of this petition.
Legal Basis
Order
Topic Tags
fees
reimbursement
penalties
Question
Are CC&Rs considered a binding contract?
Short Answer
Yes, CC&Rs form an enforceable contract between the HOA and the homeowner.
Detailed Answer
The decision affirms that when a property is purchased within a planned community, the buyer agrees to be bound by the CC&Rs, which function as a contract.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner.
Legal Basis
Common Law
Topic Tags
cc&rs
contract_law
governing_documents
Question
Can I use a flag pole sleeve for something other than a flag, like a clothesline?
Short Answer
No, if the permit was granted specifically for a flag pole.
Detailed Answer
In this case, the homeowner obtained a permit for a flag pole sleeve but used it for a clothesline. The HOA was entitled to issue a violation notice because the use differed from the approved purpose and violated other rules.
Alj Quote
Respondent did, however, grant Petitioner’s sleeve request with the explicit instruction that its use was for the purpose of flag display… As such, the Association’s October 31, 2022, VIOLATION NOTICE was not issued unlawfully or in error.
Legal Basis
ARS 33-1808(a)
Topic Tags
architectural_requests
permits
flag_poles
Question
How do courts interpret words in statutes that aren't explicitly defined?
Short Answer
They use the ordinary meaning of the words, often consulting dictionaries.
Detailed Answer
The ALJ looked to the 'natural, obvious, and ordinary meaning' of words. Since the statute did not define 'clothesline,' the judge consulted Merriam Webster to define terms like 'system' and 'mechanism' to see if a clothesline fit the description.
Alj Quote
Words should be given 'their natural, obvious, and ordinary meaning.'… BLACK’S LAW DICTIONARY does not define 'clothesline' or 'solar energy device.' Per Merriam Webster, however, 'system' means a regularly interacting or interdependent group of items forming a unified whole
Legal Basis
Statutory Construction Principles
Topic Tags
legal_standards
definitions
interpretation
Question
What is the deadline for filing a request for a rehearing?
Short Answer
30 days from the service of the order.
Detailed Answer
If a party wishes to request a rehearing, they must file it with the Commissioner of the Arizona Department of Real Estate within 30 days of the decision.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of this ORDER upon the parties.
Legal Basis
ARS 41-1092.09
Topic Tags
appeals
deadlines
procedural_requirements
Case
Docket No
23F-H032-REL
Case Title
Michael H. Jahr vs. Leisure World Community Association
Decision Date
2023-03-14
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA prohibit me from using a clothesline in my backyard?
Short Answer
Yes, if the community rules prohibit them.
Detailed Answer
The ALJ determined that an HOA can prohibit clotheslines because they do not qualify as protected solar energy devices under Arizona law. In this case, the association's rules explicitly prohibited clotheslines visible from outside the residence.
Alj Quote
Based on the relevant and credible evidence of record… the Tribunal finds that a clothesline is not a solar energy device. Moreover, Petitioner knew or should have known that clotheslines were prohibited by the Association under Rules & Regulations 2-304(D).
Legal Basis
Rules & Regulations 2-304(D); ARS 33-1816
Topic Tags
architectural_control
prohibited_items
solar_energy
Question
Is a clothesline considered a 'solar energy device' legally protected by Arizona statute?
Short Answer
No, a clothesline does not meet the statutory definition of a solar energy device.
Detailed Answer
The decision clarified that a clothesline does not fit the legal definition of a 'solar energy device' (specifically a 'system or series of mechanisms') under A.R.S. § 44-1761, and therefore does not enjoy the statutory protection that voids HOA restrictions on solar devices.
Alj Quote
Based on the relevant and credible evidence of record, including the aforementioned germane statutory definitions, and lacking any binding citations offered from a court of competent jurisdiction, the Tribunal finds that a clothesline is not a solar energy device.
Legal Basis
ARS 44-1761(8); ARS 33-439(a)
Topic Tags
solar_energy
definitions
statutory_interpretation
Question
What is the burden of proof for a homeowner challenging an HOA decision?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
When a homeowner petitions for a hearing, they bear the burden of proving that the HOA violated community documents or statutes. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden_of_proof
legal_standards
hearing_procedure
Question
Can I be reimbursed for my filing fees if I lose the hearing?
Short Answer
No, reimbursement is generally not awarded if the petition is denied.
Detailed Answer
The ALJ ordered that because the petition was denied, the HOA did not owe the homeowner any reimbursement for fees incurred during the filing process.
Alj Quote
IT IS FURTHER ORDERED that Respondent does not owe Petitioner any reimbursement(s) for fees incurred in association with the filing of this petition.
Legal Basis
Order
Topic Tags
fees
reimbursement
penalties
Question
Are CC&Rs considered a binding contract?
Short Answer
Yes, CC&Rs form an enforceable contract between the HOA and the homeowner.
Detailed Answer
The decision affirms that when a property is purchased within a planned community, the buyer agrees to be bound by the CC&Rs, which function as a contract.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner.
Legal Basis
Common Law
Topic Tags
cc&rs
contract_law
governing_documents
Question
Can I use a flag pole sleeve for something other than a flag, like a clothesline?
Short Answer
No, if the permit was granted specifically for a flag pole.
Detailed Answer
In this case, the homeowner obtained a permit for a flag pole sleeve but used it for a clothesline. The HOA was entitled to issue a violation notice because the use differed from the approved purpose and violated other rules.
Alj Quote
Respondent did, however, grant Petitioner’s sleeve request with the explicit instruction that its use was for the purpose of flag display… As such, the Association’s October 31, 2022, VIOLATION NOTICE was not issued unlawfully or in error.
Legal Basis
ARS 33-1808(a)
Topic Tags
architectural_requests
permits
flag_poles
Question
How do courts interpret words in statutes that aren't explicitly defined?
Short Answer
They use the ordinary meaning of the words, often consulting dictionaries.
Detailed Answer
The ALJ looked to the 'natural, obvious, and ordinary meaning' of words. Since the statute did not define 'clothesline,' the judge consulted Merriam Webster to define terms like 'system' and 'mechanism' to see if a clothesline fit the description.
Alj Quote
Words should be given 'their natural, obvious, and ordinary meaning.'… BLACK’S LAW DICTIONARY does not define 'clothesline' or 'solar energy device.' Per Merriam Webster, however, 'system' means a regularly interacting or interdependent group of items forming a unified whole
Legal Basis
Statutory Construction Principles
Topic Tags
legal_standards
definitions
interpretation
Question
What is the deadline for filing a request for a rehearing?
Short Answer
30 days from the service of the order.
Detailed Answer
If a party wishes to request a rehearing, they must file it with the Commissioner of the Arizona Department of Real Estate within 30 days of the decision.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of this ORDER upon the parties.
Legal Basis
ARS 41-1092.09
Topic Tags
appeals
deadlines
procedural_requirements
Case
Docket No
23F-H032-REL
Case Title
Michael H. Jahr vs. Leisure World Community Association
Decision Date
2023-03-14
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael H. Jahr(petitioner)
Respondent Side
Daniel Clark Collier(assistant community manager) Leisure World Community Association Appeared on behalf of Respondent and testified as a witness
Regis Salazar(witness) Testified for Respondent
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(commissioner) ADRE Recipient of recommended decision
Other Participants
AHansen(ADRE staff) ADRE Recipient of electronic transmission
vnunez(ADRE staff) ADRE Recipient of electronic transmission
djones(ADRE staff) ADRE Recipient of electronic transmission
labril(ADRE staff) ADRE Recipient of electronic transmission
The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1805, concluding that the requested materials lists and specifications were not 'financial and other records of the association' that the HOA was legally required to possess and provide within 10 business days.
Why this result: Petitioner failed to sustain the burden of proof that the Respondent violated the records request statute.
Key Issues & Findings
Alleged violation of records request statute (failure to timely provide materials lists/specifications related to roof replacement/repairs).
Petitioner requested materials lists and specifications regarding recent (Sept 2021) and past (since 1986) roof work on February 27, 2022. The Association provided a scope of work document from the vendor on May 11, 2022, after the petition was filed. The ALJ determined the requested documents were not established to be 'financial and other records of the association' as contemplated by the statute, and TMT was not in possession of them at the time of the request.
Orders: Petitioner's petition and request for a civil penalty were denied. Respondent was not ordered to reimburse Petitioner's filing fee.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1805 A
ARIZ. REV. STAT. § 32-2199.02 A
ARIZ. REV. STAT. § 32-2199.05
Analytics Highlights
Topics: HOA records request, Planned Community Act, Roof Repair/Replacement, Condominium, Burden of Proof
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.02
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. § 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2222048-REL Decision – 1003691.pdf
Uploaded 2026-01-23T17:48:15 (160.6 KB)
22F-H2222048-REL Decision – 979940.pdf
Uploaded 2026-01-23T17:48:17 (49.4 KB)
22F-H2222048-REL Decision – 979959.pdf
Uploaded 2026-01-23T17:48:18 (7.1 KB)
22F-H2222048-REL Decision – 985762.pdf
Uploaded 2026-01-23T17:48:20 (52.8 KB)
22F-H2222048-REL Decision – 986375.pdf
Uploaded 2026-01-23T17:48:22 (52.8 KB)
Study Guide – 22F-H2222048-REL
{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }
Blog Post – 22F-H2222048-REL
{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }
Case Participants
Petitioner Side
Robert C. Ochs(petitioner) Appeared on his own behalf
Respondent Side
Ashley N. Moscarello(HOA attorney) Goodman Holmgren Appeared on behalf of respondent
Carl Westlund(witness) The Management Trust Division Vice President of Community Management at TMT
Shauna Carr(property manager) The Management Trust Former executive community manager for Camel View Greens
Dameon Cons(HOA attorney) Goodman Holmgren Sent response letter to Petitioner
Mark A. Holmgren(HOA attorney) Goodman Holmgren Counsel for Respondent listed on transmittals
Neutral Parties
Jenna Clark(ALJ) OAH
Louis Dettorre(Commissioner) ADRE
Miranda Alvarez(Legal Secretary) OAH Transmitted orders/minute entries
AHansen(ADRE Staff) ADRE Recipient of official documents
vnunez(ADRE Staff) ADRE Recipient of official documents
djones(ADRE Staff) ADRE Recipient of official documents
labril(ADRE Staff) ADRE Recipient of official documents
Other Participants
Jeff Centers(vendor/project manager) Vendor Contractor hired by the community
The Petitioner's claim was denied because the ALJ concluded that the alleged violation of the 5th Amended Master Declaration Article 6.7 was not proven by a preponderance of the evidence; the argument was premature as the action (substantial change in use) had not yet come to fruition.
Why this result: Petitioner failed to meet the burden of proof; the argument was not ripe and predicated on actions that have yet to occur.
Key Issues & Findings
Change in Use of Common Area
Petitioner alleged that the Association violated Article 6.7 by modifying renovation plans for the Activity Center's coffee bar to include the sale of alcoholic beverages (cafe wine bar) without the requisite 60% membership vote, arguing this converted common area into a restricted commercial bar.
Orders: Petitioners' 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. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
5th Amended Master Declaration Article 6.7
Analytics Highlights
Topics: HOA, Master Declaration, Change of Use, Common Area, Liquor License, Renovation, Ripeness, Cafe Wine Bar
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. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2221011-REL Decision – 935334.pdf
Uploaded 2026-01-23T17:40:43 (49.3 KB)
22F-H2221011-REL Decision – 956246.pdf
Uploaded 2026-01-23T17:40:48 (138.2 KB)
Questions
Question
Who is responsible for proving that the HOA violated the community documents?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
procedure
Question
How much evidence is required to win a case against an HOA?
Short Answer
A preponderance of the evidence.
Detailed Answer
The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
Topic Tags
evidence
legal standards
Question
Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?
Short Answer
Generally, no. The dispute must be 'ripe' and not theoretical.
Detailed Answer
Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.
Alj Quote
The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.
Legal Basis
Ripeness Doctrine
Topic Tags
ripeness
future violations
construction
Question
Can the Administrative Law Judge order an injunction to stop the HOA from doing something?
Short Answer
No, injunctive relief is unavailable in this administrative process.
Detailed Answer
The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.
Alj Quote
Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.
Legal Basis
Administrative Hearing Limits
Topic Tags
injunctions
remedies
legal relief
Question
Does a renovation of a common area facility automatically count as a 'substantial change in use'?
Short Answer
Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.
Detailed Answer
Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.
Alj Quote
Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.
Legal Basis
Master Declaration Article 6.7 (cited in decision)
Topic Tags
common areas
renovations
change of use
Question
Is the decision made by the Administrative Law Judge final and binding?
Short Answer
Yes, unless a rehearing is granted.
Detailed Answer
The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(B)
Topic Tags
appeals
binding order
procedure
Case
Docket No
22F-H2221011-REL
Case Title
John J Balaco vs. Sun City Oro Valley Community Association, Inc.
Decision Date
2022-03-21
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Who is responsible for proving that the HOA violated the community documents?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden falls on the homeowner filing the petition to prove that a violation occurred. The HOA does not have to disprove the claim; the petitioner must provide sufficient evidence to support their allegations.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
procedure
Question
How much evidence is required to win a case against an HOA?
Short Answer
A preponderance of the evidence.
Detailed Answer
The standard of proof is 'preponderance of the evidence,' which means the evidence must show that the homeowner's claim is more likely true than not. It is based on the convincing force of the evidence rather than the quantity of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
Topic Tags
evidence
legal standards
Question
Can I file a petition against my HOA for a violation that hasn't happened yet but is planned?
Short Answer
Generally, no. The dispute must be 'ripe' and not theoretical.
Detailed Answer
Administrative Law Judges generally cannot rule on grievances that are theoretical or based on actions that have not yet occurred. If a construction project or change has not physically started, a claim that it 'will' cause a violation may be dismissed as not ripe.
Alj Quote
The crux of Petitioner’s is theoretical and predicated on action(s) that have yet to occur… Therefore, it cannot reasonably be concluded that the Association substantially changed the use of a portion of a common area.
Legal Basis
Ripeness Doctrine
Topic Tags
ripeness
future violations
construction
Question
Can the Administrative Law Judge order an injunction to stop the HOA from doing something?
Short Answer
No, injunctive relief is unavailable in this administrative process.
Detailed Answer
The administrative hearing process in Arizona for HOA disputes does not grant the ALJ the authority to issue injunctions (orders to stop an action) or declaratory relief. The ALJ determines if a violation occurred based on past or present facts.
Alj Quote
Based on Petitioner’s arguments in closing, it is apparent that he is seeking injunctive and/or declaratory relief that is unavailable for litigants in the administrative hearing process in the State of Arizona.
Legal Basis
Administrative Hearing Limits
Topic Tags
injunctions
remedies
legal relief
Question
Does a renovation of a common area facility automatically count as a 'substantial change in use'?
Short Answer
Not necessarily, especially if the change hasn't occurred yet or doesn't alter the character of the area.
Detailed Answer
Whether a renovation is a 'substantial change in use' (which often requires a member vote) depends on if it changes the character and nature of the area. However, if the project is not yet built, an ALJ may be unable to determine if the change is substantial.
Alj Quote
Notably, the undersigned cannot make any determinations about whether the Association’s proposed voter-approved construction would alter the character and nature of the common area to such an extent that it would create a “substantial change of use” to the area.
Legal Basis
Master Declaration Article 6.7 (cited in decision)
Topic Tags
common areas
renovations
change of use
Question
Is the decision made by the Administrative Law Judge final and binding?
Short Answer
Yes, unless a rehearing is granted.
Detailed Answer
The ALJ's order is binding on both the homeowner and the HOA unless one party successfully files for a rehearing within 30 days of service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to ARIZ. REV. STAT. § 32-2199.04.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(B)
Topic Tags
appeals
binding order
procedure
Case
Docket No
22F-H2221011-REL
Case Title
John J Balaco vs. Sun City Oro Valley Community Association, Inc.
Decision Date
2022-03-21
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John J Balaco(petitioner)
Diane Paton(witness)
James Gearhart(helper / observer) Assisted Petitioner with documents; observed hearing
Respondent Side
Nicholas Nogami(attorney) Carpenter Hazlewood Delgado & Bolen LLP Counsel for Respondent
Sami Farhat(attorney) Carpenter Hazlewood Delgado & Bolen LLP Counsel for Respondent
Mark Wade(general manager / witness)
Randall Jean Trenary(controller / witness) Liquor license agent
James Henry Mitchell(witness) Also referred to as Jim Mitchell or Randall James Mitchell
Neutral Parties
Jenna Clark(ALJ) OAH
Louis Dettorre(Commissioner) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate Contact for appeal procedure
c. serrano(OAH staff) OAH Transmitter of Minute Entry
Miranda Alvarez(OAH staff) OAH Transmitter of ALJ Decision
CC&Rs Article V Section 1, CC&Rs Article VI Section 1a, and Bylaws Article IV Section 2c
Outcome Summary
The Administrative Law Judge granted Petitioner's request, finding that the HOA violated its community documents regarding common area maintenance because a bottle tree in the common area caused damage to Petitioner's property. The ALJ ordered the HOA to comply with the relevant community document provisions and refund the Petitioner's $500.00 filing fee. The ALJ noted she lacked statutory authority to award the approximately $28,486.00 in monetary damages requested by Petitioner.
Key Issues & Findings
HOA failure to maintain common area landscaping resulting in root damage to homeowner property.
The Respondent HOA violated its community document obligations for common area maintenance (including landscaping) because a bottle tree located in the common area caused substantial root intrusion damage (lifting and heaving) to the Petitioner's patio and concrete slab.
Orders: Petition granted. Respondent ordered to abide by CC&Rs Article V Section 1, CC&Rs Article VI Section 1a, and Bylaws Article IV Section 2c. Respondent ordered to pay Petitioner the filing fee of $500.00 within thirty (30) days. No civil penalty imposed.
If a tree in the HOA common area damages my home, is the HOA responsible even if the tree was planted by a previous homeowner?
Short Answer
Yes. The HOA's duty to maintain the common area applies regardless of who originally planted the tree.
Detailed Answer
The ALJ determined that even though the parties presumed the trees were planted by an original homeowner decades ago, the HOA still had an obligation to maintain the common area. The HOA was found in violation of the CC&Rs because the tree located in the common area caused damage to the homeowner's property.
Alj Quote
Respondent’s duty to maintain the Common Area did not end at the boundary line of the Common Area. A tree in Respondent’s Common Area caused damage to Petitioner’s property.
Legal Basis
CC&Rs Article V Section 1; Article VI Section 1a
Topic Tags
common area maintenance
property damage
landscaping
liability
Question
Can the Administrative Law Judge award me money (damages) to cover the cost of repairs to my home?
Short Answer
No. The ALJ does not have the statutory authority to award monetary damages or injunctive relief.
Detailed Answer
While the ALJ can determine that a violation occurred and order the HOA to abide by the community documents, they cannot order the HOA to pay for the repairs (damages). The homeowner may need to pursue a separate civil action for monetary compensation beyond the filing fee.
Alj Quote
Nothing in the statutes applicable to these disputes provides the Administrative Law Judge with any additional authority to award damages, injunction relief, or declaratory judgments.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
damages
remedies
jurisdiction
repairs
Question
If I win my hearing against the HOA, will I get my filing fee back?
Short Answer
Yes. If the petitioner prevails, the ALJ is required to order the respondent to pay the filing fee.
Detailed Answer
The decision explicitly ordered the HOA to reimburse the homeowner for the $500 filing fee because the petition was granted. This is a statutory requirement when the petitioner wins.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner her filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
filing fees
reimbursement
costs
Question
Does the HOA's duty to 'maintain' landscaping include preventing root damage, or just trimming trees?
Short Answer
The duty to maintain includes preventing damage. Regular trimming is not sufficient if the roots are causing damage.
Detailed Answer
The HOA argued that they fulfilled their duty by having a landscaper trim the trees. However, the ALJ found that despite this regular maintenance, the HOA violated the CC&Rs because the tree's existence and condition caused damage to the adjacent property.
Alj Quote
Despite Respondent’s contract with CityScape for regular arbor maintenance, the bottle tree’s roots caused lifting and heaving of Petitioner’s patio and concrete slab.
Legal Basis
CC&Rs Article V Section 1
Topic Tags
maintenance definition
landscaping
negligence defense
Question
What is the standard of proof I need to meet to win a hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner bears the burden of proof. This standard means you must show that your claim is 'more probably true than not' or carries the greater weight of the evidence.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
A.R.S. § 41-1092.07
Topic Tags
burden of proof
legal standards
evidence
Question
Is the HOA liable if they claim they didn't know the roots were causing problems?
Short Answer
Yes. Lack of knowledge or 'negligence' is not necessarily the standard for a CC&R violation in this context.
Detailed Answer
The HOA argued they were not negligent because they did not know about the root intrusion. The ALJ ruled against them anyway, basing the decision on the strict violation of the duty to maintain the common area which resulted in damage, effectively setting aside the 'we didn't know' defense.
Alj Quote
Respondent further argued that because it did not know or have reason to know of the root intrusion, Respondent was not negligent… [However,] the undersigned Administrative Law Judge concludes that… Petitioner established a violation… her petition must be granted.
Legal Basis
CC&Rs Article V Section 1
Topic Tags
negligence
liability
defense arguments
Case
Docket No
22F-H2221013-REL
Case Title
Nancy L. Pope vs. La Vida Homeowners Association
Decision Date
2022-03-02
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE
Questions
Question
If a tree in the HOA common area damages my home, is the HOA responsible even if the tree was planted by a previous homeowner?
Short Answer
Yes. The HOA's duty to maintain the common area applies regardless of who originally planted the tree.
Detailed Answer
The ALJ determined that even though the parties presumed the trees were planted by an original homeowner decades ago, the HOA still had an obligation to maintain the common area. The HOA was found in violation of the CC&Rs because the tree located in the common area caused damage to the homeowner's property.
Alj Quote
Respondent’s duty to maintain the Common Area did not end at the boundary line of the Common Area. A tree in Respondent’s Common Area caused damage to Petitioner’s property.
Legal Basis
CC&Rs Article V Section 1; Article VI Section 1a
Topic Tags
common area maintenance
property damage
landscaping
liability
Question
Can the Administrative Law Judge award me money (damages) to cover the cost of repairs to my home?
Short Answer
No. The ALJ does not have the statutory authority to award monetary damages or injunctive relief.
Detailed Answer
While the ALJ can determine that a violation occurred and order the HOA to abide by the community documents, they cannot order the HOA to pay for the repairs (damages). The homeowner may need to pursue a separate civil action for monetary compensation beyond the filing fee.
Alj Quote
Nothing in the statutes applicable to these disputes provides the Administrative Law Judge with any additional authority to award damages, injunction relief, or declaratory judgments.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
damages
remedies
jurisdiction
repairs
Question
If I win my hearing against the HOA, will I get my filing fee back?
Short Answer
Yes. If the petitioner prevails, the ALJ is required to order the respondent to pay the filing fee.
Detailed Answer
The decision explicitly ordered the HOA to reimburse the homeowner for the $500 filing fee because the petition was granted. This is a statutory requirement when the petitioner wins.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner her filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
filing fees
reimbursement
costs
Question
Does the HOA's duty to 'maintain' landscaping include preventing root damage, or just trimming trees?
Short Answer
The duty to maintain includes preventing damage. Regular trimming is not sufficient if the roots are causing damage.
Detailed Answer
The HOA argued that they fulfilled their duty by having a landscaper trim the trees. However, the ALJ found that despite this regular maintenance, the HOA violated the CC&Rs because the tree's existence and condition caused damage to the adjacent property.
Alj Quote
Despite Respondent’s contract with CityScape for regular arbor maintenance, the bottle tree’s roots caused lifting and heaving of Petitioner’s patio and concrete slab.
Legal Basis
CC&Rs Article V Section 1
Topic Tags
maintenance definition
landscaping
negligence defense
Question
What is the standard of proof I need to meet to win a hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner bears the burden of proof. This standard means you must show that your claim is 'more probably true than not' or carries the greater weight of the evidence.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.
Legal Basis
A.R.S. § 41-1092.07
Topic Tags
burden of proof
legal standards
evidence
Question
Is the HOA liable if they claim they didn't know the roots were causing problems?
Short Answer
Yes. Lack of knowledge or 'negligence' is not necessarily the standard for a CC&R violation in this context.
Detailed Answer
The HOA argued they were not negligent because they did not know about the root intrusion. The ALJ ruled against them anyway, basing the decision on the strict violation of the duty to maintain the common area which resulted in damage, effectively setting aside the 'we didn't know' defense.
Alj Quote
Respondent further argued that because it did not know or have reason to know of the root intrusion, Respondent was not negligent… [However,] the undersigned Administrative Law Judge concludes that… Petitioner established a violation… her petition must be granted.
Legal Basis
CC&Rs Article V Section 1
Topic Tags
negligence
liability
defense arguments
Case
Docket No
22F-H2221013-REL
Case Title
Nancy L. Pope vs. La Vida Homeowners Association
Decision Date
2022-03-02
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Nancy L Pope(petitioner)
Ed Humston(witness) H&H Enterprises of Arizona Petitioner's Contractor
Respondent Side
Erik J. Stone(HOA attorney) Jones, Skelton & Hochuli, P.L.C.
Gabrielle Sherwood(property manager) City Property Management Community Manager for La Vida HOA
Debbie Duffy(board member) La Vida Homeowners Association Board Secretary
Lawrence Oliva(board member) La Vida Homeowners Association Board President
Barbara(board member) La Vida Homeowners Association Mentioned in email correspondence
Neutral Parties
Tammy L. Eigenheer(ALJ) OAH
Louis Dettorre(Commissioner) ADRE
Santos Diaz(witness) CareScape Area Manager for CareScape, Respondent's landscaper
c. serrano(unknown) Transmitted documents
Miranda Alvarez(unknown) Transmitted documents
AHansen(unknown) ADRE staff Recipient of transmission
djones(unknown) ADRE staff Recipient of transmission
DGardner(unknown) ADRE staff Recipient of transmission
vnunez(unknown) ADRE staff Recipient of transmission
tandert(unknown) ADRE staff Recipient of transmission
The ALJ granted the Petitioner's petition, finding the Respondent HOA violated A.R.S. § 33-1805 by requiring the Petitioner to inspect records before providing copies and failing to comply with the 10-day statutory deadline. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee.
Key Issues & Findings
Failure to fulfill records request
Petitioner alleged the Association failed to fulfill his request for copies of records within the statutory 10-day period because the Association improperly required him to inspect the documents first. The ALJ found the Association violated A.R.S. § 33-1805, as the statute does not permit an HOA to mandate prior inspection before providing requested copies.
Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee of $500.00 in certified funds and ordered to henceforth comply with ARIZ. REV. STAT. § 33-1805.
State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
ARIZ. REV. STAT. §32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2221010-REL Decision – 930949.pdf
Uploaded 2026-01-23T17:40:34 (139.0 KB)
Questions
Question
Can my HOA force me to inspect records in person before they will provide me with copies?
Short Answer
No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.
Detailed Answer
The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.
Alj Quote
Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.
Legal Basis
A.R.S. § 33-1805
Topic Tags
records request
inspection
homeowner rights
Question
How many days does the HOA have to provide copies of records I requested?
Short Answer
The HOA must provide copies within 10 business days.
Detailed Answer
Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.
Alj Quote
On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.
Legal Basis
A.R.S. § 33-1805
Topic Tags
deadlines
records request
HOA obligations
Question
What is the maximum amount the HOA can charge me for copies of records?
Short Answer
The HOA cannot charge more than 15 cents per page.
Detailed Answer
The statute limits the fee an association may charge for copying records to a maximum of fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805
Topic Tags
fees
records request
costs
Question
Can the HOA charge me a fee just to look at or review records?
Short Answer
No. The HOA cannot charge for making materials available for review.
Detailed Answer
While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805
Topic Tags
fees
records review
homeowner rights
Question
If I win my hearing against the HOA, can I get my $500 filing fee back?
Short Answer
Yes, the judge can order the HOA to reimburse your filing fee.
Detailed Answer
In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.
Legal Basis
Order
Topic Tags
reimbursement
penalties
legal costs
Question
Can I authorize someone else to look at the HOA records for me?
Short Answer
Yes, if you designate them in writing.
Detailed Answer
The statute allows records to be examined by the member or any person the member designates in writing as their representative.
Alj Quote
…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.
Legal Basis
A.R.S. § 33-1805
Topic Tags
representation
records request
homeowner rights
Question
What standard of proof do I need to meet to win a case against my HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Legal Standard
Topic Tags
burden of proof
legal standards
hearing procedure
Question
Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?
Short Answer
No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.
Detailed Answer
The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.
Alj Quote
Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.
Legal Basis
A.R.S. § 33-1805
Topic Tags
excuses
mailing
HOA obligations
Case
Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA force me to inspect records in person before they will provide me with copies?
Short Answer
No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.
Detailed Answer
The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.
Alj Quote
Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.
Legal Basis
A.R.S. § 33-1805
Topic Tags
records request
inspection
homeowner rights
Question
How many days does the HOA have to provide copies of records I requested?
Short Answer
The HOA must provide copies within 10 business days.
Detailed Answer
Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.
Alj Quote
On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.
Legal Basis
A.R.S. § 33-1805
Topic Tags
deadlines
records request
HOA obligations
Question
What is the maximum amount the HOA can charge me for copies of records?
Short Answer
The HOA cannot charge more than 15 cents per page.
Detailed Answer
The statute limits the fee an association may charge for copying records to a maximum of fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805
Topic Tags
fees
records request
costs
Question
Can the HOA charge me a fee just to look at or review records?
Short Answer
No. The HOA cannot charge for making materials available for review.
Detailed Answer
While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805
Topic Tags
fees
records review
homeowner rights
Question
If I win my hearing against the HOA, can I get my $500 filing fee back?
Short Answer
Yes, the judge can order the HOA to reimburse your filing fee.
Detailed Answer
In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.
Legal Basis
Order
Topic Tags
reimbursement
penalties
legal costs
Question
Can I authorize someone else to look at the HOA records for me?
Short Answer
Yes, if you designate them in writing.
Detailed Answer
The statute allows records to be examined by the member or any person the member designates in writing as their representative.
Alj Quote
…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.
Legal Basis
A.R.S. § 33-1805
Topic Tags
representation
records request
homeowner rights
Question
What standard of proof do I need to meet to win a case against my HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Legal Standard
Topic Tags
burden of proof
legal standards
hearing procedure
Question
Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?
Short Answer
No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.
Detailed Answer
The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.
Alj Quote
Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.
Legal Basis
A.R.S. § 33-1805
Topic Tags
excuses
mailing
HOA obligations
Case
Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Clifford Burnes(petitioner) Appeared on his own behalf; also identified as Clifford (Norm) Burnes or Norm Burnes,,,.
Respondent Side
John T. Crotty(respondent attorney) Farley, Choate & Wood Represented Saguaro Crest Homeowners Association,,.
Neutral Parties
Jenna Clark(ALJ) Listed as Administrative Law Judge.
Tammy L. Eigenheer(ALJ) Signed the Administrative Law Judge Decision.
Louis Dettorre(Commissioner) Arizona Department of Real Estate Recipient of transmission of the Decision.
AHansen(ADRE staff) Arizona Department of Real Estate Email contact listed for transmission ([email protected]).
djones(ADRE staff) Arizona Department of Real Estate Email contact listed for transmission ([email protected]).
DGardner(ADRE staff) Arizona Department of Real Estate Email contact listed for transmission ([email protected]).
vnunez(ADRE staff) Arizona Department of Real Estate Email contact listed for transmission ([email protected]).
Other Participants
Joseph Martinez(unknown) Petitioner verbally notified him regarding the undelivered certified mail package.
The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.
Why this result: Petitioner did not sustain the burden of proof (preponderance of the evidence) on the Bylaws violation because the condition precedent (requesting or holding a special meeting) had not occurred, rendering the issue unripe. The statutory violations cited were inapplicable to the Association.
Key Issues & Findings
Whether Foothills Townhomes Association, Inc. violated Community Bylaws 3.03 and ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D).
Petitioner alleged the Association violated Community Bylaws 3.03 when it drafted and posted a letter directed to Petitioner on its online platform, in response to private correspondence (a draft special meeting request) that had not yet been submitted to the Board, which Petitioner perceived as an attempt to dismantle a platform for discussion and retaliate against her.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Community Bylaws 3.03
ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)
Analytics Highlights
Topics: HOA Dispute, Planned Community, Bylaws Violation, Jurisdiction, Unripe Issue, Special Meeting, Filing Fee Paid
Additional Citations:
ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Community Bylaws 3.03
Video Overview
Audio Overview
Decision Documents
21F-H2121048-REL Decision – 906190.pdf
Uploaded 2026-01-23T17:37:43 (117.4 KB)
Questions
Question
If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?
Short Answer
No. The tribunal is limited to the specific issue paid for and filed.
Detailed Answer
If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
procedure
jurisdiction
filing fees
Question
What happens if I cite Condominium statutes in a dispute regarding a Planned Community?
Short Answer
The claims will likely be dismissed as moot or inapplicable.
Detailed Answer
Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.
Alj Quote
However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.
Legal Basis
ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16
Topic Tags
legal standards
statutes
planned communities
Question
Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?
Short Answer
No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.
Detailed Answer
While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.
Alj Quote
Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.
Legal Basis
Bylaws Section 3.03
Topic Tags
privacy
bylaws
communications
Question
Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?
Short Answer
No. The Department's jurisdiction is limited to violations of community documents and specific statutes.
Detailed Answer
The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.
Alj Quote
Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…
Legal Basis
ARIZ. REV. STAT. §§ 32-2102, 32-2199
Topic Tags
jurisdiction
constitutional rights
adre authority
Question
Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?
Short Answer
No. The issue is considered 'unripe' if no meeting was actually requested or held.
Detailed Answer
A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.
Alj Quote
No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.
Legal Basis
ripeness doctrine
Topic Tags
meetings
procedural requirements
violations
Question
What is the standard of proof required for a homeowner to win an administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
Are the CC&Rs considered a legal contract between me and the HOA?
Short Answer
Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.
Detailed Answer
When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.
Legal Basis
Contract Law Principles
Topic Tags
CC&Rs
contracts
enforcement
Case
Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date
2021-08-23
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?
Short Answer
No. The tribunal is limited to the specific issue paid for and filed.
Detailed Answer
If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
procedure
jurisdiction
filing fees
Question
What happens if I cite Condominium statutes in a dispute regarding a Planned Community?
Short Answer
The claims will likely be dismissed as moot or inapplicable.
Detailed Answer
Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.
Alj Quote
However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.
Legal Basis
ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16
Topic Tags
legal standards
statutes
planned communities
Question
Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?
Short Answer
No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.
Detailed Answer
While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.
Alj Quote
Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.
Legal Basis
Bylaws Section 3.03
Topic Tags
privacy
bylaws
communications
Question
Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?
Short Answer
No. The Department's jurisdiction is limited to violations of community documents and specific statutes.
Detailed Answer
The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.
Alj Quote
Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…
Legal Basis
ARIZ. REV. STAT. §§ 32-2102, 32-2199
Topic Tags
jurisdiction
constitutional rights
adre authority
Question
Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?
Short Answer
No. The issue is considered 'unripe' if no meeting was actually requested or held.
Detailed Answer
A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.
Alj Quote
No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.
Legal Basis
ripeness doctrine
Topic Tags
meetings
procedural requirements
violations
Question
What is the standard of proof required for a homeowner to win an administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
Are the CC&Rs considered a legal contract between me and the HOA?
Short Answer
Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.
Detailed Answer
When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.
Legal Basis
Contract Law Principles
Topic Tags
CC&Rs
contracts
enforcement
Case
Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
ARIZ. REV. STAT. § 33-1805; Association Bylaws Article 11.3
Outcome Summary
The Administrative Law Judge denied the petition in its entirety, concluding that the Petitioner failed to meet the burden of proof required to show that the El Rio Community Association violated statutory or community document requirements regarding access to records.
Why this result: Petitioner failed to prove the alleged violations by a preponderance of the evidence.
Key Issues & Findings
Failure to fulfill a records request
Petitioner, a member and Board Director, requested to inspect Association books and records on March 30, 2021. Petitioner alleged the Association failed to completely fulfill the request. The ALJ determined that Petitioner failed to meet the burden of proof to demonstrate a violation of the governing statute or bylaws.
Orders: Petitioner's petition and request to levy a civil penalty against Respondent were denied. Respondent was not ordered to reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1805
Association Bylaws Article 11.3
Analytics Highlights
Topics: Records Request, HOA Bylaws, A.R.S. 33-1805
Additional Citations:
ARIZ. REV. STAT. § 33-1805
Association Bylaws Article 11.3
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
21F-H2121053-REL Decision – 904187.pdf
Uploaded 2026-01-23T17:38:10 (114.1 KB)
Questions
Question
How long does my HOA have to fulfill a request to examine records?
Short Answer
The HOA has ten business days to fulfill a request for examination.
Detailed Answer
According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
timelines
HOA obligations
Question
Can the HOA charge me a fee to simply look at the books and records?
Short Answer
No, the HOA cannot charge a member for making material available for review.
Detailed Answer
State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
homeowner rights
Question
How much can the HOA charge me if I want copies of the records?
Short Answer
The HOA may charge up to fifteen cents per page for copies.
Detailed Answer
While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
copies
Question
Is the HOA allowed to withhold certain records from me?
Short Answer
Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.
Detailed Answer
The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
records request
exclusions
privacy
Question
Can I see records regarding complaints against specific HOA employees?
Short Answer
No, records regarding specific complaints against individual employees can be withheld.
Detailed Answer
The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.
Alj Quote
Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].
Legal Basis
A.R.S. § 33-1805(B)(5)
Topic Tags
records request
employees
privacy
Question
What standard of proof do I need to meet to win a dispute hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Conclusion of Law 3
Topic Tags
hearing procedure
burden of proof
legal standards
Question
If I believe documents are missing from my request, is my belief enough to prove a violation?
Short Answer
No, you must present credible evidence that the specific undisclosed documents actually exist.
Detailed Answer
Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.
Alj Quote
Petitioner presented no credible evidence that documents existed which were not disclosed.
Legal Basis
Findings of Fact 18
Topic Tags
evidence
records request
burden of proof
Question
Does an HOA Director have different inspection rights than a regular homeowner?
Short Answer
Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.
Detailed Answer
Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.
Alj Quote
Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.
Legal Basis
Association Bylaws Article 11.3
Topic Tags
board members
directors
inspection rights
Case
Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
How long does my HOA have to fulfill a request to examine records?
Short Answer
The HOA has ten business days to fulfill a request for examination.
Detailed Answer
According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
timelines
HOA obligations
Question
Can the HOA charge me a fee to simply look at the books and records?
Short Answer
No, the HOA cannot charge a member for making material available for review.
Detailed Answer
State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
homeowner rights
Question
How much can the HOA charge me if I want copies of the records?
Short Answer
The HOA may charge up to fifteen cents per page for copies.
Detailed Answer
While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
copies
Question
Is the HOA allowed to withhold certain records from me?
Short Answer
Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.
Detailed Answer
The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
records request
exclusions
privacy
Question
Can I see records regarding complaints against specific HOA employees?
Short Answer
No, records regarding specific complaints against individual employees can be withheld.
Detailed Answer
The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.
Alj Quote
Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].
Legal Basis
A.R.S. § 33-1805(B)(5)
Topic Tags
records request
employees
privacy
Question
What standard of proof do I need to meet to win a dispute hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Conclusion of Law 3
Topic Tags
hearing procedure
burden of proof
legal standards
Question
If I believe documents are missing from my request, is my belief enough to prove a violation?
Short Answer
No, you must present credible evidence that the specific undisclosed documents actually exist.
Detailed Answer
Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.
Alj Quote
Petitioner presented no credible evidence that documents existed which were not disclosed.
Legal Basis
Findings of Fact 18
Topic Tags
evidence
records request
burden of proof
Question
Does an HOA Director have different inspection rights than a regular homeowner?
Short Answer
Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.
Detailed Answer
Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.
Alj Quote
Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.
Legal Basis
Association Bylaws Article 11.3
Topic Tags
board members
directors
inspection rights
Case
Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael E Palacios(petitioner) Property owner and member of the Association; was appointed to the Board,
Respondent Side
Quinten T. Cupps(HOA attorney) Represented El Rio Community Association
Denise Ferreira(property manager, witness) D & E Management Owns D & E Management and was the manager for the Association
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.
Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.
Key Issues & Findings
Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver
Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Analytics Highlights
Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020043-REL Decision – 820839.pdf
Uploaded 2026-01-23T17:31:39 (95.4 KB)
Briefing Doc – 20F-H2020043-REL
Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)
Executive Summary
This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.
The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.
Case Background
• Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.
• Respondent: Vincenz Homeowners’ Association (VHA).
• Tribunal: Arizona Office of Administrative Hearings (OAH).
• Presiding Judge: Administrative Law Judge Velva Moses-Thompson.
• Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.
• Hearing Date: An evidentiary hearing was held on August 19, 2020.
• Decision Date: The final decision was issued on September 8, 2020.
The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.
Central Dispute: CC&R Article 10, Section 10.11.1
The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.
Article 10 § 10.11.1 provides:
Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.
This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.
Positions of the Parties
Petitioner’s Position (Wendy Ellsworth)
Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.
• Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.
• Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”
• Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.
Respondent’s Position (Vincenz Homeowners’ Association)
The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.
• Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.
• Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.
• Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.
Administrative Law Judge’s Findings and Conclusions
The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.
Legal Standards Applied
Standard
Description
Burden of Proof
The Petitioner bears the burden to prove a violation by a preponderance of the evidence.
Preponderance of the Evidence
Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”
Covenant Interpretation
In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.
Conclusion 1: Failure to Establish a Violation
The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:
• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.
Conclusion 2: Lack of Jurisdiction
The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.
• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.
Final Order and Implications
Based on the findings, the final order was unambiguous:
“IT IS ORDERED, the petition is dismissed.”
The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2020043-REL
Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).
——————————————————————————–
Review 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 were their respective roles?
2. What specific rule, or covenant, was at the center of the dispute?
3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?
4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?
5. What change occurred in Ms. Ellsworth’s testimony during the hearing?
6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?
7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?
8. What two key reasons did the Administrative Law Judge give for dismissing the petition?
9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?
10. What action could the parties take after the order was issued, and within what timeframe?
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Answer Key
1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.
2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.
3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.
4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.
5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.
6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.
7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.
8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.
9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).
10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.
1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?
2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.
3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.
4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?
5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.
Affirmative Defense
A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.
ARIZ. REV. STAT. (A.R.S.)
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.
Declaratory Judgment
A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.
Jurisdiction
The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.
Office of Administrative Hearings (OAH)
The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.
Petitioner
The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.
Preponderance of the Evidence
The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”
Respondent
The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.
Restrictive Covenant
A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.
Waiver
The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.
Blog Post – 20F-H2020043-REL
Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons
The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).
Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.
Lesson 1: You Must Accuse the Right Party of the Right Violation
Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.
This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:
“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.
Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase
In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”
The court defined this standard as:
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”
The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.
Lesson 3: You Have to Knock on the Right Legal Door
The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.
The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.
The Administrative Law Judge made this point unequivocally:
“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.
Conclusion: Thinking Like a Lawyer, Not Just a Homeowner
Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.
While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?
Case Participants
Petitioner Side
Wendy Ellsworth(petitioner) Testified at hearing
Brian Hatch(petitioner attorney) Brian A. Hatch PLLC
Respondent Side
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.
Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.
Key Issues & Findings
Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver
Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Analytics Highlights
Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020043-REL Decision – 820839.pdf
Uploaded 2025-10-09T03:34:53 (95.4 KB)
Briefing Doc – 20F-H2020043-REL
Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)
Executive Summary
This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.
The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.
Case Background
• Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.
• Respondent: Vincenz Homeowners’ Association (VHA).
• Tribunal: Arizona Office of Administrative Hearings (OAH).
• Presiding Judge: Administrative Law Judge Velva Moses-Thompson.
• Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.
• Hearing Date: An evidentiary hearing was held on August 19, 2020.
• Decision Date: The final decision was issued on September 8, 2020.
The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.
Central Dispute: CC&R Article 10, Section 10.11.1
The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.
Article 10 § 10.11.1 provides:
Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.
This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.
Positions of the Parties
Petitioner’s Position (Wendy Ellsworth)
Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.
• Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.
• Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”
• Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.
Respondent’s Position (Vincenz Homeowners’ Association)
The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.
• Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.
• Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.
• Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.
Administrative Law Judge’s Findings and Conclusions
The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.
Legal Standards Applied
Standard
Description
Burden of Proof
The Petitioner bears the burden to prove a violation by a preponderance of the evidence.
Preponderance of the Evidence
Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”
Covenant Interpretation
In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.
Conclusion 1: Failure to Establish a Violation
The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:
• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.
Conclusion 2: Lack of Jurisdiction
The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.
• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.
Final Order and Implications
Based on the findings, the final order was unambiguous:
“IT IS ORDERED, the petition is dismissed.”
The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2020043-REL
Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).
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Review 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 were their respective roles?
2. What specific rule, or covenant, was at the center of the dispute?
3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?
4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?
5. What change occurred in Ms. Ellsworth’s testimony during the hearing?
6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?
7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?
8. What two key reasons did the Administrative Law Judge give for dismissing the petition?
9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?
10. What action could the parties take after the order was issued, and within what timeframe?
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Answer Key
1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.
2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.
3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.
4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.
5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.
6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.
7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.
8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.
9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).
10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.
1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?
2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.
3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.
4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?
5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.
Affirmative Defense
A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.
ARIZ. REV. STAT. (A.R.S.)
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.
Declaratory Judgment
A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.
Jurisdiction
The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.
Office of Administrative Hearings (OAH)
The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.
Petitioner
The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.
Preponderance of the Evidence
The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”
Respondent
The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.
Restrictive Covenant
A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.
Waiver
The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.
Blog Post – 20F-H2020043-REL
Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons
The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).
Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.
Lesson 1: You Must Accuse the Right Party of the Right Violation
Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.
This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:
“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.
Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase
In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”
The court defined this standard as:
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”
The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.
Lesson 3: You Have to Knock on the Right Legal Door
The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.
The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.
The Administrative Law Judge made this point unequivocally:
“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.
Conclusion: Thinking Like a Lawyer, Not Just a Homeowner
Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.
While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?
Case Participants
Petitioner Side
Wendy Ellsworth(petitioner) Testified at hearing
Brian Hatch(petitioner attorney) Brian A. Hatch PLLC
Respondent Side
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
