Tag Archives: ARIZ. REV. STAT. § 32-2199(2)

John J Balaco v. Sun City Oro Valley Community Association, Inc.

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Case Summary

Case ID 22F-H2221011-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-21
Administrative Law Judge Jenna Clark
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John J Balaco Counsel —
Respondent Sun City Oro Valley Community Association, Inc. Counsel Nicholas Nogami, Esq. & Sami Farhat, Esq.

Alleged Violations

5th Amended Master Declaration Article 6.7

Outcome Summary

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

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Decision Documents

22F-H2221011-REL Decision – 935334.pdf

Uploaded 2026-04-24T11:39:39 (49.3 KB)

22F-H2221011-REL Decision – 956246.pdf

Uploaded 2026-04-24T11:39:42 (138.2 KB)

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)

The legal case involved Petitioner John J Balaco challenging the Sun City Oro Valley Community Association, Inc. (Respondent). The hearing took place over two sessions, on December 29, 2021, and a further hearing on March 1, 2022, presided over by Administrative Law Judge Jenna Clark.

Key Facts and Main Issues

The central legal issue was whether the Association violated Article 6.7 of the 5th Amended Master Declaration for substantially changing the use of a portion of the Common Area without approval of at least 60% of Members voting on the matter.

The specific action challenged was the modification of plans to renovate the 34-year-old Activity Center's coffee bar (approximately 1,400 square feet) to include the sale of alcoholic beverages, creating a café wine bar component.

Hearing Proceedings and Key Arguments

  1. Association's (Respondent's) Position:
  • The Association argued that offering wine sales was a minor component of the overall renovation of the approximately 22,000 square foot Activity Center and did not constitute a substantial change in use.
  • Association witnesses (including General Manager Mark Wade and Controller/Liquor License Agent Randy Trenary) testified that information regarding the renovation, including the wine bar component, was presented to members via multiple forums, presentations, and weekly newsletters.
  • Crucially, the membership voted on the renovation project, including the wine bar, on March 23, 2021. The vote passed with 1,121 votes (65%) in favor (only 859 votes were required to pass), thereby satisfying and exceeding the 60% requirement stipulated in Article 6.7.
  1. Petitioner's Position:
  • Petitioner Balaco argued that adding an Arizona liquor license to any portion of the common area significantly changes the character and nature of its use.
  • He contended that the license imposes restrictions, such as prohibiting the consumption of personal alcohol (BYOB) in the designated area and restricting access for minors unless accompanied by an adult 21 or older, thus restricting use residents had previously enjoyed.
  • Petitioner also argued that the board made a mistake, asserting that the area was covered by an existing license when, in fact, the Department of Liquor License and Control later confirmed no part of the activity center was currently covered. Petitioner requested an order requiring a specific resident vote prior to the board applying for any liquor license extension.

Final Decision and Legal Points

The Administrative Law Judge (ALJ) concluded that the Petitioner did not sustain his burden of proving a violation of Article 6.7 by a preponderance of the evidence.

The ALJ emphasized the following legal points:

  • The Petitioner’s argument was not ripe.
  • As of the hearing date, no construction or structural modification of the coffee bar had taken place, and the Association had not submitted a new application to the DLLC to extend its liquor service area.
  • The ALJ found that the crux of the Petitioner’s grievance was "theoretical and predicated on action(s) that have yet to occur".
  • Therefore, the ALJ could not reasonably conclude that the Association had "substantially changed the use of a portion of a common area".

Outcome: The Petitioner’s petition was denied. The matter was taken under advisement on March 1, 2022, and the decision was issued on March 21, 2022.

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

Other Participants

  • Marla Balaco (observer)
  • Janet Ambrosio (observer)
  • Sheila Helmuth (observer)
  • Sherokee Ilse (observer)
  • Edward Zwerling (observer)
  • Robin Coulter (observer)
  • Rocky Gedrose (observer)
  • Thelma LaFleur (observer)
  • Tim Kelley (observer)
  • Vicki McFadden (observer)
  • Allan Mashburn (observer)
  • Cathy Winje (observer)
  • Chris Ludwig (observer)
  • Dan Edward (observer)
  • Dibri Ruiz (observer)
  • Donna Harting (observer)
  • Eric Meyers (observer)
  • Anthony Denaro (observer)
  • Melanie Stenson (observer)
  • Bertha Medina (observer)
  • Carol Johnson (observer)
  • Rita Petterson (observer)
  • David Sullivan (observer)
  • Gary Lurch (observer)
  • Janet Keller (observer)
  • Joanne Keck (observer)
  • Kaaren Brent (observer)
  • Karen Roche (observer)
  • Ken Sandrick (observer)
  • Kristi Halverson (observer)
  • Lindsay Welbers (observer)
  • Marie Scarpulla (observer)
  • Maxine Yunker (observer)
  • Pamela Sarpalius (observer)
  • Phyliss Austin (observer)
  • Robert Watson (observer)
  • Sandra Fischer (observer)
  • Sharon Kennedy (observer)
  • Vicki McFadin (observer)
  • William Whitney (observer)

Nancy L Pope v. La Vida Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2221013-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-03-02
Administrative Law Judge Tammy L. Eigenheer
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Nancy L Pope Counsel —
Respondent La Vida Homeowners Association Counsel Erik J. Stone

Alleged Violations

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.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(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. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY 1220

Analytics Highlights

Topics: homeowner rights, maintenance violation, root damage, planned community, bottle tree, CC&Rs
Additional Citations:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY 1220

Video Overview

Audio Overview

Decision Documents

22F-H2221013-REL Decision – 932121.pdf

Uploaded 2026-04-30T09:52:28 (43.6 KB)

22F-H2221013-REL Decision – 932140.pdf

Uploaded 2026-04-30T09:52:34 (5.8 KB)

22F-H2221013-REL Decision – 951381.pdf

Uploaded 2026-04-30T09:52:42 (122.2 KB)

22F-H2221013-REL Decision – 954163.pdf

Uploaded 2026-04-30T09:52:48 (46.1 KB)

22F-H2221013-REL Decision – 932121.pdf

Uploaded 2026-01-23T17:41:00 (43.6 KB)

22F-H2221013-REL Decision – 932140.pdf

Uploaded 2026-01-23T17:41:05 (5.8 KB)

22F-H2221013-REL Decision – 951381.pdf

Uploaded 2026-01-23T17:41:08 (122.2 KB)

22F-H2221013-REL Decision – 954163.pdf

Uploaded 2026-01-23T17:41:10 (46.1 KB)

This summary details the hearing proceedings, key arguments, and final decision in the case of Nancy L. Pope v. La Vida Homeowners Association (No. 22F-H2221013-REL).

Key Facts and Issues

Petitioner Nancy L. Pope, a homeowner in the La Vida subdivision, filed a petition against the La Vida Homeowners Association (HOA), alleging violations of the HOA's Bylaws (Article IV, Section 2c) and CC&Rs (Article V, Section 1; Article VI, Section 1a). The central dispute stemmed from the HOA’s alleged failure to maintain or remove a bottle tree located on the Common Area adjacent to Petitioner’s property, resulting in root intrusion that caused heaving and cracking of Petitioner’s concrete slab and patio.

The damage was discovered in June 2021 during a home remodel, when Petitioner’s contractor tore up the concrete slab and found a substantial web of roots from the bottle tree. Petitioner sought total damages of $28,487, covering floor repair, patio replacement, grinding, and the $550.00 cost Petitioner incurred to remove the bottle tree.

Key Arguments

  1. Petitioner's Argument (Negligence and Maintenance Duty): Petitioner argued the HOA was negligent in its maintenance duty. Testimony established that bottle trees are known for their aggressive root systems, which can spread up to 100 feet, and should generally be planted at least 25 to 30 feet from structures. Petitioner argued that the HOA, responsible for common area maintenance, should have been aware of the risks posed by the bottle tree planted close to her home. Petitioner also cited the delay of several months in authorizing the removal of the tree as contributing to increased damages.
  2. Respondent's Argument (Lack of Knowledge and Origin): The HOA denied negligence, arguing they had fulfilled their duty by trimming the trees. Respondent asserted that the trees were planted by a predecessor homeowner, not the HOA or developer, and that Petitioner's own irrigation system had watered them. Crucially, the HOA argued that it was not negligent because it "did not know or have reason to know" of the subterranean root intrusion prior to the damage discovery in June 2021, and proactive root maintenance was not an industry standard.

Outcome and Legal Decision

The Administrative Law Judge (ALJ) found that the Petitioner sustained her burden of proving a community document violation by a preponderance of the evidence.

The ALJ granted Petitioner’s petition, concluding that the Respondent violated CC&Rs Article V section 1, Article VI section 1a, and Bylaws Article IV, Section 2c. The ALJ held that the HOA's duty to maintain the Common Area did not end at the boundary line. The core legal finding was that "But for the bottle tree being situated where it was and in the state it was in, there would not be roots coming onto Petitioner’s property to such an extent that caused any amount of damage or harm".

However, in a subsequent order clarifying the scope of authority, the ALJ noted that the statutes governing these disputes (A.R.S. § 32-2199 et seq.) do not grant the Administrative Law Judge authority to award compensatory damages, injunctive relief, or declaratory judgments.

The final *Order* required the Respondent to abide by the community documents and statutes specified. Specifically, the Respondent was ordered to pay Petitioner her filing fee of $500.00.

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

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

Dean A Yelenik v. Meridian Condominiums Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2221021-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-02-18
Administrative Law Judge Jenna Clark
Outcome The ALJ found the Board acted within its lawful authority because the governing documents and statute cited did not explicitly prohibit a Board Member from resigning and immediately being appointed to fill an unexpired term to elongate their service, and Petitioner failed to meet the burden of proof.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Dean A Yelenik Counsel —
Respondent Meridian Condominiums Homeowners Association Counsel Nick Eicher, Esq.

Alleged Violations

ARIZ. REV. STAT. §§ 33-1243(B) and Community Bylaws 3.1 and 3.6

Outcome Summary

The ALJ found the Board acted within its lawful authority because the governing documents and statute cited did not explicitly prohibit a Board Member from resigning and immediately being appointed to fill an unexpired term to elongate their service, and Petitioner failed to meet the burden of proof.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6. The Tribunal found the Board’s action, though potentially questionable, was not unlawful.

Key Issues & Findings

Whether the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6 by appointing an existing board member to fill a vacancy, effectively extending her term.

The Board appointed existing Board member Joan Robley to fill the unexpired term of Board Member Gallu (expiring Jan 2023) immediately after she resigned her own seat (expiring Jan 2021), which Petitioner alleged violated governing documents by extending her term and not genuinely filling a vacancy.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1243(B)
  • Community Bylaws 3.1
  • Community Bylaws 3.6
  • ARIZ. REV. STAT. § 32-2199.05

Analytics Highlights

Topics: Board Vacancy, Term Extension, Bylaw Interpretation, Resignation and Reappointment, ARS 33-1243(B)
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243(B)
  • Community Bylaws 3.1
  • Community Bylaws 3.6
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

22F-H2221021-REL Decision – 948752.pdf

Uploaded 2026-04-24T11:41:34 (130.2 KB)

22F-H2221021-REL Decision – 948752.pdf

Uploaded 2026-01-23T17:42:33 (130.2 KB)

This matter was an administrative hearing held on February 1, 2022, before Administrative Law Judge (ALJ) Jenna Clark, regarding a dispute between Petitioner Arthur Dean Yelenik and Respondent Meridian Condominiums Homeowners Association (the Association). Petitioner alleged the Association violated Arizona Revised Statute (ARS) § 33-1243(B) and Community Bylaws Sections 3.1 and 3.6.

Key Facts

The dispute centered on the Board of Directors' actions following the resignation of Board Member Chris Gallu in September 2020, whose term had approximately two years and three months remaining. At an October 2020 Board meeting, the Board filled this vacancy by appointing existing Board Member Joan Robley. To facilitate this, Ms. Robley resigned from her existing seat (which had only three months remaining before the January 2021 election) and was immediately appointed to Mr. Gallu’s unexpired term, effectively extending her service by two years and avoiding scheduled re-election by the homeowners. The Board operated with four members for approximately three months until the subsequent annual meeting.

Main Issues and Legal Arguments

The crux of the inquiry was whether a Board Member may resign and be immediately appointed to fill a Board vacancy on the same day, thereby elongating their term of service.

Petitioner's Argument:

The Petitioner argued that the Board's action was an illegitimate "board term swap," not a valid process for filling a vacancy.

  1. Bylaw 3.1 Violation: Bylaw 3.1 requires the Board to be an odd number (historically five members). Petitioner argued that since Ms. Robley was already a member, her reappointment did not increase the total number of board members, thus failing to “fill a vacancy in the board” and rendering Bylaw 3.1 meaningless.
  2. ARS § 33-1243(B) Violation: This statute prohibits the Board from electing members or "determin[ing] the terms of office of the board of director members". Petitioner argued the Board violated this by determining Ms. Robley's term of office (changing it from 3 months to over 2 years).

Respondent's Argument:

The Association argued it acted within its lawful authority, prioritizing the Association's best interest by retaining Ms. Robley's 15 years of continuous experience, particularly since three members were "freshmen".

  1. Bylaw 3.6 Authority: Bylaw 3.6 grants the board the authority to fill vacancies. Neither the Bylaws nor the statute explicitly prohibit appointing a former or existing board member to fill a vacancy. The sole requisite for service is unit ownership, which Ms. Robley met.
  2. Quorum Maintained: The Board maintained a quorum (three members out of five positions) at all relevant times.
  3. Statute Compliance: The Board did not violate ARS § 33-1243(B) because the terms of office (three-year staggered terms) were set by the membership in 2005, not by the Board as a matter of general policy. The statute allows the board to "fill vacancies in its membership for the unexpired portion of any term".

Outcome and Final Decision

The ALJ found that the Petitioner did not sustain his burden of proof by a preponderance of the evidence. The Tribunal concluded that the Board acted within its lawful authority. The decision stated that neither Bylaw Section 3.6 nor ARS § 33-1243(B) implicitly or explicitly prohibit the occurrence. The ALJ also rejected the argument that there is a presumption of "new blood" required for appointments. Petitioner's petition was therefore denied.

Questions

Question

Can a board member resign and immediately be appointed to a different vacancy to get a longer term?

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.

Alj Quote

Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.

Legal Basis

A.R.S. § 33-1243(B); Bylaws Section 3.6

Topic Tags

  • Board Vacancies
  • Term Limits
  • Board Appointments

Question

Does the HOA board have to choose a new person ('new blood') when filling a vacancy?

Short Answer

No, the board is not required to select a new person.

Detailed Answer

There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.

Alj Quote

There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Qualifications
  • Vacancies

Question

Does the board have the authority to fill vacancies without holding a general membership election?

Short Answer

Yes, the board generally has the statutory authority to appoint members to fill vacancies.

Detailed Answer

Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.

Alj Quote

The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

  • Elections
  • Board Authority

Question

Is a board decision illegal just because it is 'questionable' or unpopular?

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.

Alj Quote

Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.

Legal Basis

Board Discretion

Topic Tags

  • Board Conduct
  • Decision Making

Question

What burden of proof does a homeowner have when challenging an HOA in a hearing?

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Hearings

Question

Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?

Short Answer

Yes, the OAH tribunal can interpret the contract between the parties.

Detailed Answer

The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Jurisdiction
  • Contract Interpretation

Question

If I pay for a single-issue petition, can the judge rule on other related issues?

Short Answer

No, the tribunal is limited to the specific issue paid for.

Detailed Answer

The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

  • Procedure
  • Fees

Case

Docket No
22F-H2221021-REL
Case Title
Dean A Yelenik vs. Meridian Condominiums Homeowners Association
Decision Date
2022-02-18
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can a board member resign and immediately be appointed to a different vacancy to get a longer term?

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.

Alj Quote

Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.

Legal Basis

A.R.S. § 33-1243(B); Bylaws Section 3.6

Topic Tags

  • Board Vacancies
  • Term Limits
  • Board Appointments

Question

Does the HOA board have to choose a new person ('new blood') when filling a vacancy?

Short Answer

No, the board is not required to select a new person.

Detailed Answer

There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.

Alj Quote

There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Qualifications
  • Vacancies

Question

Does the board have the authority to fill vacancies without holding a general membership election?

Short Answer

Yes, the board generally has the statutory authority to appoint members to fill vacancies.

Detailed Answer

Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.

Alj Quote

The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

  • Elections
  • Board Authority

Question

Is a board decision illegal just because it is 'questionable' or unpopular?

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.

Alj Quote

Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.

Legal Basis

Board Discretion

Topic Tags

  • Board Conduct
  • Decision Making

Question

What burden of proof does a homeowner have when challenging an HOA in a hearing?

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Hearings

Question

Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?

Short Answer

Yes, the OAH tribunal can interpret the contract between the parties.

Detailed Answer

The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Jurisdiction
  • Contract Interpretation

Question

If I pay for a single-issue petition, can the judge rule on other related issues?

Short Answer

No, the tribunal is limited to the specific issue paid for.

Detailed Answer

The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

  • Procedure
  • Fees

Case

Docket No
22F-H2221021-REL
Case Title
Dean A Yelenik vs. Meridian Condominiums Homeowners Association
Decision Date
2022-02-18
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Arthur Dean Yelenik (petitioner)
    Also goes by Dean Yelenik
  • Kristen Terry Beloo (homeowner/past board president)
    Part of petitioner's working group; Past president (6 years)
  • Kathleen Moles (homeowner/past board president)
    Part of petitioner's working group; Past president (3 years)
  • David Moles (homeowner)
    Part of petitioner's working group

Respondent Side

  • Eadie Rudder (respondent attorney)
  • Nick Eicher (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Margo McInnis (board president/witness)
    Meridian Condominiums Homeowners Association
    Testified for Respondent
  • Joan Robley (board member)
    Meridian Condominiums Homeowners Association
    Appointment subject of dispute
  • Annette (property manager)
    Century Management
    Referred to as Community Manager
  • Quinton Phillips (HOA attorney)
    Attorney for the Association

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Dan Gardner (HOA Coordinator)
    Arizona Department of Real Estate

Other Participants

  • Chris Gallu (former board member)
    Meridian Condominiums Homeowners Association
    Resignation created the contested vacancy; referred to as Mr. Beloo/Blue in transcript
  • Fran McGovern (board member)
    Meridian Condominiums Homeowners Association
    Elected to Robley's former seat in Jan 2021

Rodney F Kirby v. Dove Cove Estates Homeowners Association

Posted on by

Case Summary

Case ID 21F-H2121049-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-10-12
Administrative Law Judge Jenna Clark
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rodney & Patricia Kirby Counsel —
Respondent Dove Cove Estates Homeowners Association Counsel Lydia Peirce Linsmeier and Kaylee Ivy

Alleged Violations

CC&Rs Article IV, Section 4.1.1

Outcome Summary

The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.

Key Issues & Findings

Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.

Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.

Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2121049-REL Decision – 940829.pdf

Uploaded 2026-04-24T11:35:22 (47.0 KB)

21F-H2121049-REL Decision – 950132.pdf

Uploaded 2026-04-24T11:35:29 (41.0 KB)

21F-H2121049-REL Decision – 916848.pdf

Uploaded 2026-04-24T11:35:33 (118.5 KB)

21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-04-24T11:35:36 (124.9 KB)

21F-H2121049-REL Decision – 916848.pdf

Uploaded 2026-01-23T17:37:48 (118.5 KB)

21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-01-23T17:37:51 (124.9 KB)

This summary details the hearing before Administrative Law Judge Jenna Clark at the Office of Administrative Hearings (OAH) on September 22, 2021, concerning a dispute between homeowners and their association.

Key Facts and Parties

The Petitioners, Rodney and Patricia Kirby, are property owners and members of the Dove Cove Estates Homeowners Association (HOA/Respondent). The Petitioners, who are retired and use their pool daily for exercise, filed a petition alleging the Association violated its Covenants, Conditions, and Restrictions (CC&Rs). The dispute centered on the Association's refusal to remove two sissoo trees, approximately 35 feet high, located on Common Area property just behind the Petitioners’ residence.

The Petitioners testified that since around 2017, the trees caused substantial problems: debris, including leaves and small dead animals, fell into their pool, clogging the pump, which had to be replaced multiple times. Furthermore, roots from the trees caused damage to their retaining wall and back patio slab.

Main Issue and Arguments

The core issue was whether the Association was in violation of CC&Rs Article IV, Sections 4.1 and 4.1.1 for failing to remove the two sissoo trees. CC&R Article IV required the Association to maintain and keep in good condition and repair the Common Area, including the maintenance, repair, and replacement of all landscaping and structures situated upon it.

The Respondent (HOA) denied the complaint, arguing that its duty of maintenance was fulfilled through its landscaping contractor, ProQual Landscaping. The HOA contended that it reasonably relied on ProQual's expert advice; ProQual had inspected the trees in April 2021 and advised that removal was unnecessary, instead leaving them on a regular trimming schedule.

The Petitioners argued that the Association’s inadequate maintenance endangered their health and welfare due to the debris and financial burdens incurred from pool and pump repairs and increased cleaning costs. They asserted that the Association had not given their request proper consideration.

Legal Points and Outcome

The OAH determined it had jurisdiction to hear the dispute and interpret the CC&Rs, which form an enforceable contract between the Association and property owners. Petitioners bore the burden of proof by a preponderance of the evidence.

The ALJ concluded that Petitioners sustained their burden of proof. The decision emphasized that the Association's duty to maintain the Common Area does not end at the boundary line. The evidence established that *but for* the sissoo trees being situated and maintained in their current state, the degree of debris causing damage or harm to Petitioners’ property would not exist.

Final Decision

The ALJ concluded that the Association had violated Article IV section 4.1.1 of the CC&Rs.

IT IS ORDERED that Petitioners’ petition is granted. The Respondent was FURTHER ORDERED to pay Petitioners their filing fee of $500.00 within thirty days. The OAH clarified that while it lacked statutory authority to grant declaratory or injunctive relief, the decision acts to "Order Respondent to abide by the section of the planned community specified".

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

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
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

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

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

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
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Rodney Kirby (petitioner)
  • Patricia Kirby (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Kaylee Ivy (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Regis Salazar (witness)

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Arthur Fisenko & Viktoriya Tkach-Fisenko v. Bellvue Homeowners

Posted on by

Case Summary

Case ID 21F-H2121046-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-20
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the Petition, finding that Petitioners failed to sustain their burden of proof that the Association violated state statute or community documents. The Association's Architectural Review Committee (ARC) refusal to approve the wall modification request was deemed reasonable because Petitioners failed to provide the supplemental information requested by the ARC.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Arthur Fisenko & Viktoriya Tkach-Fisenko Counsel Laurence Stevens, Esq.
Respondent Bellvue Homeowners Association Counsel Jamie B. Palfai, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1817(B)(3) and CC&Rs Article VII, Section 2

Outcome Summary

The Administrative Law Judge denied the Petition, finding that Petitioners failed to sustain their burden of proof that the Association violated state statute or community documents. The Association's Architectural Review Committee (ARC) refusal to approve the wall modification request was deemed reasonable because Petitioners failed to provide the supplemental information requested by the ARC.

Why this result: The record did not establish violation(s) of ARIZ. REV. STAT. § 33-1817(B)(3) or CC&Rs Article VII, Section 2 by a preponderance of the evidence. Petitioners did not provide sufficient and/or requisite information necessary for the ARC to make a reasonably objective determination, nor did they attempt to cure the deficient application.

Key Issues & Findings

Arbitrary and capricious denial of architectural request to move garage-side yard block wall and install a double-wide gate.

Petitioners alleged the Association (ARC) arbitrarily and capriciously rejected their request to move their garage-side yard wall eight (8) feet forward on their property, using the same materials as the existing wall, except replacing the single-wide gate with a double-wide gate previously approved by Respondent.

Orders: Petitioners’ petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • CC&Rs Article VII, Section 2

Analytics Highlights

Topics: HOA, Architectural Request, Block Wall, Architectural Review Committee (ARC), A.R.S. 33-1817
Additional Citations:

  • ARIZ. REV. STAT. § 33-1817(B)(3)
  • CC&Rs Article VII, Section 2
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

21F-H2121046-REL Decision – 912007.pdf

Uploaded 2026-04-24T11:35:00 (138.0 KB)

21F-H2121046-REL Decision – 912007.pdf

Uploaded 2026-01-23T17:37:39 (138.0 KB)

This is a summary of the Administrative Law Judge Decision in *Arthur Fisenko & Viktoriya Tkach-Fisenko vs. Bellvue Homeowners Association* (No. 21F-H2121046-REL), heard on August 30, 2021.

Key Facts and Proceedings

The dispute involved Arthur Fisenko and Viktoriya Tkach-Fisenko (Petitioners), property owners in the Bellvue subdivision, and the Bellvue Homeowners Association (Respondent). The case was heard by the Office of Administrative Hearings (OAH) pursuant to Arizona statutes governing disputes between owners and planned community associations.

Petitioners initially filed a two-issue petition with the Arizona Department of Real Estate alleging that the Association's Architectural Review Committee (ARC) arbitrarily and capriciously rejected landscaping modification requests. By July 30, 2021, the issue concerning the installation of pavers and artificial grass became moot when the Respondent reversed its initial denial.

The main issue for the hearing was whether the Association violated ARIZ. REV. STAT. § 33-1817(B)(3) and/or CC&Rs Article VII, Section 2, by denying Petitioners’ request to move their garage-side yard wall eight (8) feet forward on their property. The proposal included using the same materials and replacing an existing single-wide gate with a previously approved double-wide gate.

Key Arguments

  1. Petitioners’ Argument: Petitioners asserted that the Association's denial was arbitrary and capricious, noting that the ARC had approved the paver/artificial grass portion of their request without requiring supplemental information. They argued that their initial Architectural Request Form, filled out without counsel, should have been approved despite any technical omissions.
  2. Respondent’s Argument: The Association contended that the Petitioners' Architectural Request Form was deficient and incomplete because crucial and relevant information was missing. Specifically, after the initial denial in February 2021 (citing concerns over length and neighbor impact), Petitioners were instructed in March 2021 to submit a complete form, a plot plan, elevation plans, and specifications. Respondent argued that because Petitioners failed to provide this specific supplemental information, the ARC was unable to make a reasonably objective determination necessary for approval.

Legal Points and Outcome

The Petitioners bore the burden of proving, by a preponderance of the evidence, that the Association violated ARIZ. REV. STAT. § 33-1817(B)(3) (which mandates that architectural approval "shall not unreasonably be withheld") or CC&Rs Article VII, Section 2.

The Administrative Law Judge concluded that Petitioners failed to sustain their burden of proof. The decision rested on the finding that the Petitioners did not provide sufficient and/or requisite information necessary for the ARC to reasonably evaluate the wall modification request. Furthermore, the record established that Petitioners were specifically advised what supplemental information was required but failed to cure their application deficiencies.

The final decision held that the Respondent’s refusal to grant the Architectural Request was neither arbitrary nor capricious. Therefore, the Petitioners’ petition was denied.

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21F-H2121046-REL

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This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.

What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?

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21F-H2121046-REL

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This administrative law decision outlines a legal dispute between homeowners Arthur and Viktoriya Fisenko and the Bellvue Homeowners Association regarding property modifications. The petitioners alleged that the association’s Architectural Committee unfairly rejected their request to extend a boundary wall and install a double-wide gate. While the parties resolved disagreements over landscaping materials like artificial grass and pavers before the hearing, the conflict regarding the wall remained. The Administrative Law Judge ultimately ruled in favor of the Homeowners Association, finding that the residents failed to provide the specific plans and technical data required for approval. Consequently, the court determined the association did not act arbitrarily or capriciously in its refusal, leading to the formal denial of the petition.

What was the core legal dispute between the Fisenkos and the HOA?
Why did the Administrative Law Judge ultimately rule against the homeowners?
How do Arizona statutes regulate the architectural approval process for HOAs?

Thursday, February 12

Save to note

Today • 11:01 AM

1 source

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Arthur Fisenko (petitioner)
    Testified on behalf of Petitioners
  • Viktoriya Tkach-Fisenko (petitioner)
  • Laurence Stevens (petitioner attorney)
    Stevens & Van Cott, PLLC

Respondent Side

  • Jamie Palfai (HOA attorney)
    O’Hagan Meyer LLC
  • Samuel Truett (witness)
    Bellvue Homeowners Association
    Witness for Bellvue Homeowners Association

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate

Nancy Bender v. Foothills Townhomes Association, Inc.

Posted on by

Case Summary

Case ID 21F-H2121048-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-08-23
Administrative Law Judge Jenna Clark
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Nancy Bender Counsel —
Respondent Foothills Townhomes Association, Inc. Counsel Jason Smith, Esq.

Alleged Violations

Community Bylaws 3.03

Outcome Summary

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)

This is a concise summary of the Administrative Law Judge Decision in the case of Nancy Bender v. Foothills Townhomes Association, Inc. (No. 21F-H2121048-REL), heard on August 2, 2021, by Administrative Law Judge Jenna Clark.

Key Facts and Background

The Petitioner, Nancy Bender, is an owner and member of the Foothills Townhomes Association, Inc. (Respondent), a planned community association in Arizona. The Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which form an enforceable contract between the Association and its members.

The dispute arose after the Petitioner drafted a letter, along with other homeowners, intended to request a special meeting to discuss issues such as meeting minutes, water bills, financial statements, and due increases. Although this draft letter was never formally submitted to the Board to schedule a special meeting, the Association came into possession of the draft. On February 15, 2021, the Board posted the Petitioner’s draft letter on the HOA’s online platform, along with a written response directed to the Petitioner by the Association’s attorney. Petitioner alleged that this conduct was an act of retaliation intended to dismantle a platform for discussion and that the Association breached its fiduciary duty.

Main Issues and Legal Arguments

Petitioner filed an amended single-issue petition alleging the Association violated Community Bylaws 3.03 and specific Arizona statutes: ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D). The Administrative Law Judge (ALJ) had jurisdiction over disputes between owners and planned community associations regarding violations of community documents or regulating statutes. The Petitioner bore the burden of proving the violation by a preponderance of the evidence.

Key Legal Points and Findings

  1. Statutory Claims Dismissed as Inapplicable: The Tribunal found that the alleged statutory violations (ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D)) were inapplicable because the Respondent Association is not subject to governance or regulation by those statutes, thus rendering those concerns moot.
  2. Focus on Bylaws 3.03: Because the statutory claims were moot and Petitioner paid for adjudication of only one issue, the ALJ focused solely on whether the Association violated Community Bylaws Section 3.03. Bylaws Section 3.03 governs the procedure for calling a special meeting of homeowners.
  3. Issue Found Unripe: The ALJ determined that no violation of Bylaws Section 3.03 existed because the issue was unripe. The record showed that a special meeting was *not* held, nor had the Petitioner formally requested one prior to filing her petition. The Petitioner’s actual grievance—the Association’s public dissemination and address of her private correspondence—was determined *not* to be a violation of Bylaws Section 3.03.

Outcome and Decision

The Administrative Law Judge concluded that the Petitioner failed to sustain her burden of proof by a preponderance of the evidence that the Association violated Bylaws Section 3.03. Therefore, the Petitioner's petition was denied.

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.
Decision Date
2021-08-23
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Nancy Bender (petitioner)
    Foothills Townhomes owner/member

Respondent Side

  • Jason Smith (respondent attorney)
    Goodman Holmgren Smith

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Dan Gardener (Constituent Services Manager)
    Arizona Department of Real Estate

Michael E Palacios v. El Rio Community Association

Posted on by

Case Summary

Case ID 21F-H2121053-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-08-13
Administrative Law Judge Adam D. Stone
Outcome 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.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael E Palacios Counsel —
Respondent El Rio Community Association Counsel Quinten T. Cupps

Alleged Violations

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)

This summary details the Administrative Law Judge (ALJ) Decision in the case of Michael E Palacios v. El Rio Community Association, No. 21F-H2121053-REL. The hearing took place on August 4, 2021, before Administrative Law Judge Adam D. Stone.

Key Facts and Proceedings

The Petitioner, Michael E. Palacios, is a property owner and member of the El Rio Community Association (Association). After being appointed to the Board on March 24, 2021, the Petitioner filed a single-issue petition with the Department of Real Estate on May 10, 2021, asserting that the Association failed to fulfill a records request made on March 30, 2021. The Respondent Association denied all claims. The Department referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing. OAH has the authority to hear contested cases concerning disputes between an owner and a planned community association regarding violations of community documents or statutes.

Main Issue and Legal Points

The central issue addressed was whether the Association violated A.R.S. § 33-1805 and the Association Bylaws Article 11.3 by failing to fulfill the records request. Under the relevant statute, associations must make financial and other records reasonably available to members, typically within ten business days. The Association Bylaws Article 11.3 further grants every Director (which the Petitioner was) an absolute right to inspect all books and records. Petitioner bore the burden of proving the violation by a preponderance of the evidence.

Key Arguments

  1. Petitioner’s Arguments: Petitioner Palacios testified that the Association failed to completely fulfill his March 30 request, alleging he received only about 5% of the documents initially. Specifically, he claimed he did not receive the property management contract (D & E Management), attorney contracts, landscaper contracts, Board minutes, cancelled checks, and ledgers. He also asserted that some provided documents might be false or forged because they contained the incorrect association name ("El Rio Estates Homeowners Association").
  1. Respondent’s Arguments: Denise Ferreira, the manager for the Association's management company (D & E), testified that the Association fully complied with the request, though the compliance was untimely regarding copies of checks due to the bank needing time to prepare the large request. Ferreira explained that there were no ongoing contracts with attorneys or landscapers, and payments related to these services were disclosed through the checks and ledgers provided. Regarding the incorrect name, Ferreira attributed it to an ongoing controversy where some Board members attempted to change the name, but instructions were given to cease using the incorrect name until it was formally modified.

Outcome and Final Decision

The Administrative Law Judge determined that the material facts were not in dispute. The ALJ found that the Petitioner had made a proper request, and the Respondent timely responded, informing the Petitioner of potential delays. Crucially, the ALJ concluded that Petitioner presented no credible evidence that documents existed which were not disclosed.

Therefore, the Petitioner failed to meet the burden of proof required to demonstrate that the Association violated ARIZ. REV. STAT. § 33-1805 or Article 11.3 of the Bylaws.

The final order denied the Petitioner’s petition and his request to levy a civil penalty against the Respondent. Furthermore, the Respondent was not required to reimburse the Petitioner’s filing fee. The decision was transmitted on August 13, 2021.

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

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

Posted on by

Case Summary

Case ID 21F-H2120014-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-12-01
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the Association violated the CC&Rs regarding sewer maintenance or deductible apportionment, finding that the Association properly applied its 2012 Rules and Regulations.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • Title 33, Chapter 9 of the Arizona Revised Statutes
  • CC&Rs Sections 3.04, 3.07, 3.09
  • 2012 Rules and Regulations Section 19

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

21F-H2120014-REL Decision – 840033.pdf

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

This summary details the Administrative Law Judge Decision in the case of Lori & James Jordan vs. The Pines at Show Low Condominium Owners' Association, Inc.. The hearing was held on November 23, 2020, before Administrative Law Judge Adam D. Stone.

Key Facts and Main Issue

The Petitioner, Lori Jordan, is a property owner and member of The Pines at Show Low Condominium Owners' Association (“Association”). The dispute centered on damage caused to her unit (Unit 1006) around October 2018 due to a sewer backup in the main sewer line, which was allegedly caused by tree root growth in a common area.

The core issue was whether the Association violated its Community Documents—specifically CC&Rs Sections 3.04, 3.07, and 3.09—by apportioning a share of the insurance deductible to the Petitioner. Petitioner's unit was apportioned 43.84% of the deductible, totaling $10,958.96.

Key Arguments and Proceedings

  1. Petitioner's Argument: Petitioner Lori Jordan and witness Chuck Stewart argued that the sewer line blockage occurred in the common area, and because the CC&Rs (Section 3.09) made the Association responsible for the maintenance and repair of the "sewer collection system within the Property," the Association should bear the full insurance deductible.
  2. Respondent's Argument: Sean Lissarrague, Vice President of the Board, testified that the Board fulfilled its obligations under the CC&Rs by paying for the line repairs. He argued that the apportionment of the deductible was proper based on Section 19 of the 2012 Rules and Regulations. Section 19(b) and (c) grant the Board the authority to apportion the deductible when damage occurs to more than one unit and the common areas. The Association also stated that unit owners are responsible for maintaining proper gap insurance coverage.

Legal Points and Outcome

The Administrative Law Judge (ALJ) concluded that the matter was within the Department of Real Estate’s jurisdiction. The Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent violated the CC&Rs.

The ALJ made the following crucial findings:

  • No CC&R Violation: Although CC&R Section 3.09 mandates the Association to maintain and repair the sewer collection system, the Association did coordinate and accomplish these repairs. The Petitioner failed to demonstrate that the Association neglected its duty regarding maintenance or repair.
  • Deductible Allocation Upheld: The ALJ recognized that the Petitioner was primarily challenging Section 19 of the 2012 Rules and Regulations. The scenario involved damage to two units and the common area, and the Association properly applied Section 19(b) and (c) of the Rules in apportioning the deductible.

Final Decision: Based on the evidence, the Petitioner failed to meet the burden of proof that the Association violated the CC&Rs by apportioning a share of the insurance deductible. The Petitioner’s petition was therefore denied. This decision is binding unless a rehearing is granted.

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Rules and Regulations Section 19

Topic Tags

  • insurance
  • deductible
  • assessments
  • common elements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Rules and Regulations Section 19(e)

Topic Tags

  • insurance
  • homeowner responsibilities

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 3.09

Topic Tags

  • maintenance
  • repairs
  • negligence

Question

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

Short Answer

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

Detailed Answer

The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is 'preponderance of the evidence,' meaning the claim must be shown to be more probably true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

Standard of Evidence

Topic Tags

  • legal procedure
  • evidence
  • burden of proof

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 4.10

Topic Tags

  • rulemaking
  • board authority
  • governing documents

Case

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

Questions

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Rules and Regulations Section 19

Topic Tags

  • insurance
  • deductible
  • assessments
  • common elements

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

Rules and Regulations Section 19(e)

Topic Tags

  • insurance
  • homeowner responsibilities

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 3.09

Topic Tags

  • maintenance
  • repairs
  • negligence

Question

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

Short Answer

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

Detailed Answer

The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is 'preponderance of the evidence,' meaning the claim must be shown to be more probably true than not.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'

Legal Basis

Standard of Evidence

Topic Tags

  • legal procedure
  • evidence
  • burden of proof

Question

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

Short Answer

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

Detailed Answer

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

Alj Quote

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

Legal Basis

CC&Rs Section 4.10

Topic Tags

  • rulemaking
  • board authority
  • governing documents

Case

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Susan E Abbass v. 10000 North Central Homeowners Assocciation

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Analytics Highlights

Topics: HOA, CC&R, Easement, Maintenance, Drainage, Property Access, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et al.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • CC&R Article XII Section 6
  • CC&R Article XIII Section 1(d)
  • CC&R Article XIII Section 4

Video Overview

Audio Overview

Decision Documents

20F-H2020057-REL Decision – 839845.pdf

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

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

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

Briefing Document: Abbass vs. 10000 North Central Homeowners Association

Executive Summary

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

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

Case Overview

Case Name

Susan E Abbass vs. 10000 North Central Homeowners Association

Case Number

20F-H2020057-REL-RHG

Jurisdiction

In the Office of Administrative Hearings (Arizona)

Administrative Law Judge

Adam D. Stone

Petitioner

Susan E. Abbass

Respondent

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

Hearing Date

November 24, 2020 (Rehearing)

Decision Date

December 1, 2020

Core Dispute and Allegations

Petitioner’s Central Claim

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

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

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

Petitioner’s Position and Evidence

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

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

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

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

Respondent’s Defense and Actions

Respondent’s Position

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

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

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

Actions Taken by the HOA

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

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

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

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

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

Procedural History and Rehearing

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

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

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

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

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

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

Administrative Law Judge’s Findings and Conclusions

Burden of Proof

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

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

Key Judicial Determinations

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

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

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

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

Final Order and Implications

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

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

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

Study Guide: Abbass v. 10000 North Central Homeowners Association

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

——————————————————————————–

Short Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Answer Key

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

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

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

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

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

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

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

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

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

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

——————————————————————————–

Suggested Essay Questions

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

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

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

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

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

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

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

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

A.R.S.

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

Arizona Department of Real Estate

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

Burden of Proof

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

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

Office of Administrative Hearings

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

Order Granting Rehearing

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

Petitioner

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

Planned Community

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

Preponderance of the Evidence

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

Prevailing Party

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

Respondent

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

Tribunal

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

Briefing Document: Abbass vs. 10000 North Central Homeowners Association

Executive Summary

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

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

Case Overview

Case Name

Susan E Abbass vs. 10000 North Central Homeowners Association

Case Number

20F-H2020057-REL-RHG

Jurisdiction

In the Office of Administrative Hearings (Arizona)

Administrative Law Judge

Adam D. Stone

Petitioner

Susan E. Abbass

Respondent

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

Hearing Date

November 24, 2020 (Rehearing)

Decision Date

December 1, 2020

Core Dispute and Allegations

Petitioner’s Central Claim

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

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

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

Petitioner’s Position and Evidence

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

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

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

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

Respondent’s Defense and Actions

Respondent’s Position

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

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

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

Actions Taken by the HOA

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

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

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

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

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

Procedural History and Rehearing

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

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

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

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

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

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

Administrative Law Judge’s Findings and Conclusions

Burden of Proof

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

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

Key Judicial Determinations

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

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

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

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

Final Order and Implications

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

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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