Taylor Kidd vs Heritage Village III Homeowners Association (ROOT)

Case Summary

Case ID 24F-H037-REL
Agency ADRE
Tribunal OAH
Decision Date 2024-08-23
Administrative Law Judge Adam D. Stone
Outcome The ALJ found that the Association violated its own CC&Rs (Article VII, Section 1) by failing to incorporate and follow Article III, Section 4 of the McCormick Ranch CC&Rs, which required a two-thirds vote of voting owners for a special assessment for capital improvements. Both petitions were granted, and the Association was ordered to refund the total filing fees of $1,000.00.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Taylor Kidd and Jerome L. Glazer Counsel Patrick T. Nackley
Respondent Heritage Village III Homeowners Association Counsel Tessa Knueppel and Mark K. Sahl

Alleged Violations

McCormick Ranch CC&R Article III, Section 4 and Heritage Village III HO CC&R Article VII, Section 1

Outcome Summary

The ALJ found that the Association violated its own CC&Rs (Article VII, Section 1) by failing to incorporate and follow Article III, Section 4 of the McCormick Ranch CC&Rs, which required a two-thirds vote of voting owners for a special assessment for capital improvements. Both petitions were granted, and the Association was ordered to refund the total filing fees of $1,000.00.

Why this result: Respondent failed to take the required vote regarding the special assessment for the Landscape Improvement Project, in violation of the controlling CC&Rs.

Key Issues & Findings

Violation of CC&Rs by approving a Landscape Improvement Project and potential special assessment for a capital improvement without the required 2/3 membership vote.

The Association violated its CC&Rs by failing to follow the McCormick Ranch CC&R provision requiring the assent of two-thirds (2/3) of the votes cast by Voting Owners for a Special Assessment intended for construction, reconstruction, repair, or replacement of a capital improvement (the Landscape Improvement Project).

Orders: The petitions were granted. Respondent was ordered to reimburse both Petitioners' filing fees pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • McCormick Ranch CC&R Article III, Section 4
  • Association CC&R Article VII, Section 1

Analytics Highlights

Topics: Special Assessment, Capital Improvement, Membership Vote, CC&R Violation, Consolidation, Master Association
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092
  • ARIZ. REV. STAT. § 33-1803.7
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Title 33, Chapter 16, Article 1 of the Arizona Revised Statutes

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Video Overview

Audio Overview

Decision Documents

24F-H037-REL Decision – 1182719.pdf

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24F-H037-REL Decision – 1182767.pdf

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24F-H037-REL Decision – 1182769.pdf

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24F-H037-REL Decision – 1203525.pdf

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24F-H037-REL Decision – 1215299.pdf

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24F-H037-REL Decision – 1226570.pdf

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24F-H037-REL Decision – 1182719.pdf

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24F-H037-REL Decision – 1182767.pdf

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24F-H037-REL Decision – 1182769.pdf

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24F-H037-REL Decision – 1203525.pdf

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24F-H037-REL Decision – 1215299.pdf

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24F-H037-REL Decision – 1226570.pdf

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This summary details the proceedings, key arguments, and final decision in the consolidated matters of *Taylor Kidd and Jerome L. Glazer vs. Heritage Village III Homeowners Association* (Nos. 24F-H037-REL and 24F-H039-REL).

Key Facts and Procedural History

The Petitioners, Taylor Kidd and Jerome L. Glazer, who are members of the Heritage Village III Homeowners Association (Association), filed separate petitions objecting to the Association's approval of a Landscape Improvement Project (LIP). The Association requested, and the Administrative Law Judge (ALJ) granted, consolidation of the two matters due to them involving substantially similar factual or legal issues and for purposes of administrative efficiency. The hearings were continued several times and ultimately held on August 9, 2024.

The LIP involved an estimated cost of $1,557,950.00 (potentially up to $2 million) for the replacement of a 40-year-old irrigation system, grass removal, and replacement with decomposed granite and native plants. The Association communicated in December 2023 that this cost would result in a special assessment of $9,385.24 per homeowner. A request by Petitioner Glazer for a Cease and Desist Order to prevent the expenditure of funds related to the LIP was denied by the ALJ due to a lack of authority in that venue.

Main Issues and Key Arguments

The central legal dispute was whether the Association could approve the LIP and levy the special assessment solely through a Board vote, or if a membership vote was required under the governing documents.

Petitioners' Argument:

Petitioners argued that the LIP was a capital improvement project. They contended that the Association's CC&Rs (Article VII, Section 1) required it to follow the McCormick Ranch CC&Rs (Master Association). The McCormick Ranch CC&Rs (Article III, Section 4) mandate that a special assessment for a capital improvement requires the assent of two-thirds (2/3) of the votes cast by Voting Owners. Petitioners asserted the Board refused to hold this vote.

Respondent's Argument:

The Association argued the Board has the duty and authority to maintain the common area (which included addressing dead/dying grass and a damaged irrigation system), and that the LIP fell under this authority. They claimed the special assessment had not yet been levied. Legally, the Association argued that the requirement for a 2/3 membership vote in the McCormick Ranch documents applied only to the Master Association itself (referenced by the capitalized word "Association") and did not govern subsidiary associations like Heritage Village III, whose own documents were silent on requiring a member vote for such projects.

Final Decision and Outcome

The ALJ, Adam D. Stone, issued a decision on August 23, 2024.

Legal Conclusion: The ALJ found that the Petitioners met their burden of proof. The decision hinged on the interpretation of Article VII, Section 1 of the Association’s CC&Rs, which states that McCormick Ranch provisions apply, "including but not limited to" the assessment, lien, and collection of dues.

The ALJ ruled it would be inconsistent to assume that the section requiring a 2/3 vote for capital improvements (McCormick Ranch CC&R Article III, Section 4) would be excluded.

Outcome:

IT IS ORDERED that Petitioners’ petitions in these matters are granted. The Association was found to have violated McCormick Ranch CC&R’s Article III, Section 4, and its own CC&R’s Article VII, Section 1, by failing to take the required vote. The Respondent was ordered to reimburse both Petitioners’ filing fees.

A Motion for Rehearing filed by a party was later noted by the ALJ as not being considered, directing that such requests must be made directly to the Arizona Department of Real Estate.

Questions

Question

Can I petition the Arizona Department of Real Estate for a hearing if my HOA violates the CC&Rs?

Short Answer

Yes, owners may petition the department for hearings regarding violations of community documents or statutes regulating planned communities.

Detailed Answer

The Department has jurisdiction over disputes between owners and associations. An owner can petition for a hearing concerning violations of the community's governing documents (CC&Rs) or state statutes, provided they file the petition and pay the required fee.

Alj Quote

regarding a dispute between an owner and a planned community association, the owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee

Legal Basis

ARIZ. REV. STAT. §§ 32-2102 and 32-2199

Topic Tags

  • jurisdiction
  • homeowner rights
  • petition process

Question

What is the standard of proof I must meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probably true than not.

Detailed Answer

The burden of proof lies with the petitioner (the homeowner). They must demonstrate that the violation occurred by a preponderance of the evidence, which is defined as evidence that convinces the judge that the claim is more likely true than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence… '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

  • legal standards
  • burden of proof
  • evidence

Question

If my specific subdivision's CC&Rs are silent on a rule, but the Master Association's CC&Rs address it, which rules apply?

Short Answer

The Master Association's rules likely apply if your subdivision's CC&Rs reference or incorporate the Master documents.

Detailed Answer

In this case, the sub-association's CC&Rs did not explicitly require a vote for capital improvements, but the Master Association's CC&Rs did. Because the sub-association's documents contained language incorporating the Master provisions ('including but not limited to'), the Master Association's requirement for a homeowner vote applied.

Alj Quote

Based upon the foregoing, Petitioners met their burdens of proof in demonstrating that the Association was in violation the CC&R’s as it would be inconsistent to assume that only part of Article III of the McCormick Ranch’s CC&R’s would apply to the Association while Section 4 would somehow be excluded.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&Rs
  • master association
  • governing documents

Question

Does the HOA need a homeowner vote to pass a special assessment for a capital improvement?

Short Answer

Yes, if the controlling CC&Rs require it. In this case, a 2/3 vote of voting owners was required.

Detailed Answer

The decision affirmed that the Association violated the governing documents by failing to hold a vote. The controlling Master CC&Rs specifically required approval by two-thirds of the voting owners for special assessments related to the construction, repair, or replacement of capital improvements.

Alj Quote

provided that any such assessment shall have the assent of two-thirds (2/3) of the votes cast by Voting Owners in person or by proxy at a meeting duly called for such purpose

Legal Basis

Master CC&R Article III, Section 4

Topic Tags

  • special assessments
  • voting rights
  • capital improvements

Question

If I successfully prove my HOA violated the rules, can I get my filing fees back?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fees.

Detailed Answer

Upon finding that the Association violated the CC&Rs, the judge ordered the Respondent (the HOA) to reimburse the filing fees paid by the Petitioners to the Department of Real Estate.

Alj Quote

Respondent shall reimburse both Petitioner’s filing fees as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01

Topic Tags

  • penalties
  • reimbursement
  • fees

Case

Docket No
24F-H037-REL, 24F-H039-REL
Case Title
Taylor Kidd and Jerome L. Glazer vs Heritage Village III Homeowners Association
Decision Date
2024-08-23
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I petition the Arizona Department of Real Estate for a hearing if my HOA violates the CC&Rs?

Short Answer

Yes, owners may petition the department for hearings regarding violations of community documents or statutes regulating planned communities.

Detailed Answer

The Department has jurisdiction over disputes between owners and associations. An owner can petition for a hearing concerning violations of the community's governing documents (CC&Rs) or state statutes, provided they file the petition and pay the required fee.

Alj Quote

regarding a dispute between an owner and a planned community association, the owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee

Legal Basis

ARIZ. REV. STAT. §§ 32-2102 and 32-2199

Topic Tags

  • jurisdiction
  • homeowner rights
  • petition process

Question

What is the standard of proof I must meet to win a hearing against my HOA?

Short Answer

You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probably true than not.

Detailed Answer

The burden of proof lies with the petitioner (the homeowner). They must demonstrate that the violation occurred by a preponderance of the evidence, which is defined as evidence that convinces the judge that the claim is more likely true than not.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence… '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

  • legal standards
  • burden of proof
  • evidence

Question

If my specific subdivision's CC&Rs are silent on a rule, but the Master Association's CC&Rs address it, which rules apply?

Short Answer

The Master Association's rules likely apply if your subdivision's CC&Rs reference or incorporate the Master documents.

Detailed Answer

In this case, the sub-association's CC&Rs did not explicitly require a vote for capital improvements, but the Master Association's CC&Rs did. Because the sub-association's documents contained language incorporating the Master provisions ('including but not limited to'), the Master Association's requirement for a homeowner vote applied.

Alj Quote

Based upon the foregoing, Petitioners met their burdens of proof in demonstrating that the Association was in violation the CC&R’s as it would be inconsistent to assume that only part of Article III of the McCormick Ranch’s CC&R’s would apply to the Association while Section 4 would somehow be excluded.

Legal Basis

CC&R Interpretation

Topic Tags

  • CC&Rs
  • master association
  • governing documents

Question

Does the HOA need a homeowner vote to pass a special assessment for a capital improvement?

Short Answer

Yes, if the controlling CC&Rs require it. In this case, a 2/3 vote of voting owners was required.

Detailed Answer

The decision affirmed that the Association violated the governing documents by failing to hold a vote. The controlling Master CC&Rs specifically required approval by two-thirds of the voting owners for special assessments related to the construction, repair, or replacement of capital improvements.

Alj Quote

provided that any such assessment shall have the assent of two-thirds (2/3) of the votes cast by Voting Owners in person or by proxy at a meeting duly called for such purpose

Legal Basis

Master CC&R Article III, Section 4

Topic Tags

  • special assessments
  • voting rights
  • capital improvements

Question

If I successfully prove my HOA violated the rules, can I get my filing fees back?

Short Answer

Yes, the Administrative Law Judge can order the HOA to reimburse the filing fees.

Detailed Answer

Upon finding that the Association violated the CC&Rs, the judge ordered the Respondent (the HOA) to reimburse the filing fees paid by the Petitioners to the Department of Real Estate.

Alj Quote

Respondent shall reimburse both Petitioner’s filing fees as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01

Topic Tags

  • penalties
  • reimbursement
  • fees

Case

Docket No
24F-H037-REL, 24F-H039-REL
Case Title
Taylor Kidd and Jerome L. Glazer vs Heritage Village III Homeowners Association
Decision Date
2024-08-23
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Taylor Kidd (petitioner)
  • Jerome L. Glazer (petitioner)
    Appeared on his own behalf
  • Patrick T. Nackley (petitioner attorney)
    MEDALIST LEGAL PLC
    Represented Petitioner Taylor Kidd
  • Brandon P. Bodea (petitioner attorney)
    MEDALIST LEGAL PLC
  • Jack Sales (homeowner)
    Co-authored a letter to the Board with Petitioner Glazer

Respondent Side

  • Jennifer Hutsko (board member/witness)
    Heritage Village III Homeowners Association
    Director and member of the Community Planning Committee
  • Glenn Martyr (board member)
    Heritage Village III Homeowners Association
    Seconded motion in meeting minutes
  • Steve Wolf (board member)
    Heritage Village III Homeowners Association
    Seconded motion in meeting minutes
  • Tessa Knueppel (respondent attorney)
    CHDB Law LLP
    Represented Respondent at hearing
  • Mark K. Sahl (respondent attorney)
    CHDB Law LLP
    Represented Respondent at hearing
  • Charles H. Oldham (respondent attorney)
    CHDB Law LLP
  • Josh Bolen (respondent attorney)
    CHDB Law LLP

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
    Conducted hearing and issued Decision
  • Tammy L. Eigenheer (ALJ)
    OAH
    Signed consolidation order
  • Susan Nicolson (Commissioner)
    ADRE

Jennifer J Sullivan v. The Village at Elk Run Homeowners Association,

Case Summary

Case ID 23F-H043-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-08
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the Petitioner's petition, finding that the HOA's CC&Rs (Section 4.1) prohibited nonresidential use, including short-term renting (deemed a business by the tribunal), unless the lot was rented or leased for month-to-month or longer terms. Therefore, rentals shorter than a month were prohibited.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jennifer J Sullivan Counsel
Respondent The Village at Elk Run Homeowners Association, Inc. Counsel Michael S. McLeran

Alleged Violations

Article 4, Section 4.1 of the Community’s CC&Rs; ARIZ. REV. STAT. § 33-1804(D)

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA's CC&Rs (Section 4.1) prohibited nonresidential use, including short-term renting (deemed a business by the tribunal), unless the lot was rented or leased for month-to-month or longer terms. Therefore, rentals shorter than a month were prohibited.

Why this result: The tribunal determined the Petitioner failed to meet her burden, as her short-term rental operation constituted a prohibited nonresidential use/business under Section 4.1 of the CC&Rs, which only permits leasing for Month to Month or Longer Terms.

Key Issues & Findings

Challenging HOA Violation Notice for Short-Term Rental Restriction

Petitioner challenged the Courtesy Violation Notice issued by the HOA for operating a short-term rental (Airbnb) with a minimum rental period less than month-to-month, arguing the CC&Rs did not explicitly prohibit such rentals. The HOA maintained that Section 4.1 prohibited nonresidential use, unless leased for month-to-month or longer terms, thereby prohibiting short-term rentals/business use.

Orders: Petitioner’s petition was denied. Respondent shall not reimburse Petitioner’s filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • PAL versus Washburn 211 Arizona 553 2006
  • Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Analytics Highlights

Topics: HOA governance, short-term rental, CC&R interpretation, business use, 30-day minimum
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(D)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.01
  • PAL versus Washburn 211 Arizona 553 2006
  • Burke versus Voiceream Wireless Corporation 2 2007 Arizona 393 quarter of appeal 2004
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(D), 32-2199.02, and 41-1092

Video Overview

Audio Overview

Decision Documents

23F-H043-REL Decision – 1050430.pdf

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23F-H043-REL Decision – 1081482.pdf

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23F-H043-REL Decision – 1081483.pdf

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23F-H043-REL Decision – 1050430.pdf

Uploaded 2026-01-23T17:56:20 (47.3 KB)

23F-H043-REL Decision – 1081482.pdf

Uploaded 2026-01-23T17:56:23 (59.0 KB)

23F-H043-REL Decision – 1081483.pdf

Uploaded 2026-01-23T17:56:27 (117.7 KB)

Case Summary: Jennifer J. Sullivan vs. The Village at Elk Run Homeowners Association, Inc.

This matter (No. 23F-H043-REL) was a contested case before the Office of Administrative Hearings (OAH), heard on July 24, 2023, by Administrative Law Judge (ALJ) Adam D. Stone. Petitioner Jennifer J. Sullivan, a homeowner in The Village at Elk Run Homeowners Association, Inc. (Respondent), challenged a violation notice she received for operating a short-term rental (Airbnb).

Key Facts and Background

Petitioner Sullivan had owned her townhome since 2006 and began renting it on a short-term basis (minimum 3 days) through Airbnb in September 2021. She testified that she had registered for a Transaction Privilege Tax number and was pursuing a license under new city rules, acknowledging that the rental was a business. The Association issued a Courtesy Violation Notice on November 22, 2022, citing a violation of Article 4, Section 4.1 of the community's Covenants, Conditions, and Restrictions (CC&Rs) due to the short-term rental operation.

Main Issues and Arguments

The core legal issue centered on the interpretation of CC&R Section 4.1, titled "Residential Use":

> "All Lots shall be used, improved and devoted exclusively to Single family Residential Use. No gainful occupation, profession, trade or other nonresidential use shall be conducted on any Lot. This Section shall not preclude the Residential Leasing or Renting of a Lot for Month to Month or Longer Terms".

  1. Petitioner's Argument: Sullivan contended that the CC&Rs do not contain an explicit minimum rental period, and therefore, rentals shorter than 30 days are permissible. She argued that Arizona law (ARS 33-1806.01) requires HOAs to list a minimum rental period if they intend to restrict short-term leasing, which the Elk Run CC&Rs failed to do. She asserted that renting a home is considered a residential use.
  1. Respondent's Argument: The Association, represented by Michael McLeran, argued that Section 4.1 must be read in its entirety to uphold the community's character. They asserted that operating a short-term rental for profit (as evidenced by Petitioner's tax licensing) constitutes a "gainful occupation, profession, trade or other nonresidential use," which is prohibited. The final sentence of Section 4.1 allowing "Month to Month or Longer Terms" clarifies the *only* exception where renting for profit is permitted, thereby implicitly prohibiting shorter-term rentals. Testimony from the original CC&R signatory, John Vail, supported the intent for a minimum 30-day rental period.

Outcome and Legal Decision

The ALJ issued a Decision on August 8, 2023, denying the Petitioner's petition.

The ALJ found that Petitioner Sullivan failed to meet her burden of proving that the Association violated relevant statutes or documents. The tribunal concluded that Sullivan was "clearly running a business out of the home".

The ALJ adopted the Respondent's interpretation of Section 4.1: nonresidential use (i.e., operating a rental business for gainful occupation) is *only* permitted if the lots are rented or leased for month to month or longer terms. Thus, the ALJ ruled that, as currently written, any renting or leasing shorter than a month was prohibited.

The Petitioner's request for reimbursement of her $500 filing fee was also denied.

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Even if the CC&Rs do not explicitly state 'no short-term rentals', a clause permitting 'month to month or longer' terms generally implies that shorter terms are not permitted under the restrictions against non-residential use.

Alj Quote

Rather the tribunal reads the section to mean that nonresidential use is only permitted if the lots were rented or leased for month to month or longer terms. … Thus, as currently written, any renting or leasing shorted than a month was prohibited.

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

  • short-term rentals
  • CC&R interpretation
  • Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

The ALJ found that applying for a municipal business license and paying transaction taxes (which are typical for rentals) demonstrated that the homeowner was using the property for a gainful occupation or business, rather than simple residential use.

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

  • business use
  • taxes
  • commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

The ALJ rejected the argument that short-term rentals were allowed simply because the CC&Rs didn't explicitly name and ban them. The restrictions on non-residential use and specific permissions for monthly rentals were sufficient to create the ban.

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

  • CC&R interpretation
  • implicit restrictions
  • rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

Conclusion of Law 3

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
23F-H043-REL
Case Title
Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date
2023-08-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

If my CC&Rs allow leasing for 'month to month or longer terms', does that automatically prohibit short-term rentals like Airbnb?

Short Answer

Yes. The tribunal interprets 'month to month or longer' as an exclusive permission, meaning any rental term shorter than a month is prohibited.

Detailed Answer

Even if the CC&Rs do not explicitly state 'no short-term rentals', a clause permitting 'month to month or longer' terms generally implies that shorter terms are not permitted under the restrictions against non-residential use.

Alj Quote

Rather the tribunal reads the section to mean that nonresidential use is only permitted if the lots were rented or leased for month to month or longer terms. … Thus, as currently written, any renting or leasing shorted than a month was prohibited.

Legal Basis

Contract Interpretation / CC&R Section 4.1

Topic Tags

  • short-term rentals
  • CC&R interpretation
  • Airbnb

Question

Can listing a home on Airbnb be legally considered 'running a business' or 'non-residential use'?

Short Answer

Yes. Applying for a business license and remitting transaction privilege taxes can establish that a homeowner is conducting a business from the home.

Detailed Answer

The ALJ found that applying for a municipal business license and paying transaction taxes (which are typical for rentals) demonstrated that the homeowner was using the property for a gainful occupation or business, rather than simple residential use.

Alj Quote

Petitioner was clearly running a business out of the home, as she has applied for a business license with Flagstaff, and was remitting Transaction Privilege Tax.

Legal Basis

Finding of Fact 6 / Conclusion of Law 6

Topic Tags

  • business use
  • taxes
  • commercial activity

Question

Does an HOA have to explicitly use the phrase 'no short-term rentals' in the CC&Rs to ban them?

Short Answer

No. The absence of a specific exclusion for short-term rentals does not mean they are permitted if other language restricts leasing terms.

Detailed Answer

The ALJ rejected the argument that short-term rentals were allowed simply because the CC&Rs didn't explicitly name and ban them. The restrictions on non-residential use and specific permissions for monthly rentals were sufficient to create the ban.

Alj Quote

Further, tribunal was not convinced that simply because it does not mention the exclusion for short-term rentals that the same was permitted.

Legal Basis

Conclusion of Law 6

Topic Tags

  • CC&R interpretation
  • implicit restrictions
  • rental rules

Question

Who has to prove their case in a hearing regarding an HOA dispute?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

When a homeowner petitions for a hearing alleging the HOA violated statutes or documents, it is the homeowner's responsibility to prove the violation by a preponderance of the evidence.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804(D).

Legal Basis

Conclusion of Law 3

Topic Tags

  • burden of proof
  • legal procedure
  • evidence

Question

If I lose my hearing against the HOA, will I get my $500 filing fee reimbursed?

Short Answer

No. Reimbursement is typically denied if the petition is denied.

Detailed Answer

The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid by the homeowner.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

Order / ARS § 32-2199.02(A)

Topic Tags

  • fees
  • penalties
  • costs

Case

Docket No
23F-H043-REL
Case Title
Jennifer J Sullivan vs The Village at Elk Run Homeowners Association, Inc.
Decision Date
2023-08-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Jennifer J Sullivan (petitioner)
    Appeared on her own behalf
  • David Sheffield (petitioner attorney)
    Provided legal opinion to Petitioner in 2020

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon & Hudson, PLC
    Represented Respondent
  • Teresa Bale (board member)
    The Village at Elk Run Homeowners Association, Inc.
    Board President; Witness for Respondent
  • John R. Bale (developer/witness)
    The Village at Elk Run Homeowners Association, Inc.
    Original developer who drafted/signed CC&Rs; Witness for Respondent
  • Jason Miller (attorney)
    Provided opinion letter regarding CC&Rs to the Board
  • Beth Moly (attorney)
    Issued formal opinion letter regarding Section 4.1
  • Melanie Lashley (property manager)
    Homeco Rent
    Contacted by Petitioner regarding rental rules
  • Betsy Snow (board member)
    The Village at Elk Run Homeowners Association, Inc.
    Won board election against Petitioner

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of decision transmission