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)
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)
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)
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.
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
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Today • 11:01 AM
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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
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
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
The petition was denied because Petitioner failed to sustain her burden of proof that the Association violated Community Bylaws 3.03, as the issue regarding a special meeting was found to be unripe. Other alleged statutory violations were inapplicable.
Why this result: Petitioner did not sustain the burden of proof (preponderance of the evidence) on the Bylaws violation because the condition precedent (requesting or holding a special meeting) had not occurred, rendering the issue unripe. The statutory violations cited were inapplicable to the Association.
Key Issues & Findings
Whether Foothills Townhomes Association, Inc. violated Community Bylaws 3.03 and ARIZ. REV. STAT. §§ 33-1248(A), 33-1248(B), and 33-1261(D).
Petitioner alleged the Association violated Community Bylaws 3.03 when it drafted and posted a letter directed to Petitioner on its online platform, in response to private correspondence (a draft special meeting request) that had not yet been submitted to the Board, which Petitioner perceived as an attempt to dismantle a platform for discussion and retaliate against her.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Community Bylaws 3.03
ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)
Analytics Highlights
Topics: HOA Dispute, Planned Community, Bylaws Violation, Jurisdiction, Unripe Issue, Special Meeting, Filing Fee Paid
Additional Citations:
ARIZ. REV. STAT. §§ 33-1248(A)
ARIZ. REV. STAT. §§ 33-1248(B)
ARIZ. REV. STAT. §§ 33-1261(D)
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Community Bylaws 3.03
Video Overview
Audio Overview
Decision Documents
21F-H2121048-REL Decision – 906190.pdf
Uploaded 2026-01-23T17:37:43 (117.4 KB)
Questions
Question
If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?
Short Answer
No. The tribunal is limited to the specific issue paid for and filed.
Detailed Answer
If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
procedure
jurisdiction
filing fees
Question
What happens if I cite Condominium statutes in a dispute regarding a Planned Community?
Short Answer
The claims will likely be dismissed as moot or inapplicable.
Detailed Answer
Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.
Alj Quote
However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.
Legal Basis
ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16
Topic Tags
legal standards
statutes
planned communities
Question
Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?
Short Answer
No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.
Detailed Answer
While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.
Alj Quote
Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.
Legal Basis
Bylaws Section 3.03
Topic Tags
privacy
bylaws
communications
Question
Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?
Short Answer
No. The Department's jurisdiction is limited to violations of community documents and specific statutes.
Detailed Answer
The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.
Alj Quote
Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…
Legal Basis
ARIZ. REV. STAT. §§ 32-2102, 32-2199
Topic Tags
jurisdiction
constitutional rights
adre authority
Question
Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?
Short Answer
No. The issue is considered 'unripe' if no meeting was actually requested or held.
Detailed Answer
A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.
Alj Quote
No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.
Legal Basis
ripeness doctrine
Topic Tags
meetings
procedural requirements
violations
Question
What is the standard of proof required for a homeowner to win an administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
Are the CC&Rs considered a legal contract between me and the HOA?
Short Answer
Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.
Detailed Answer
When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.
Legal Basis
Contract Law Principles
Topic Tags
CC&Rs
contracts
enforcement
Case
Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
Decision Date
2021-08-23
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If I pay for a single-issue petition, can the judge rule on other grievances I mention during the hearing?
Short Answer
No. The tribunal is limited to the specific issue paid for and filed.
Detailed Answer
If a petitioner only pays the filing fee for the adjudication of one issue, the Administrative Law Judge cannot address other issues raised in the petition or during testimony.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the issues Petitioner raised in her petition or during her testimony.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
procedure
jurisdiction
filing fees
Question
What happens if I cite Condominium statutes in a dispute regarding a Planned Community?
Short Answer
The claims will likely be dismissed as moot or inapplicable.
Detailed Answer
Different statutes regulate Condominiums (Title 33, Chapter 9) and Planned Communities (Title 33, Chapter 16). If a homeowner alleges violations of statutes that do not govern their specific type of association, the burden of proof is not met and the concerns are rendered moot.
Alj Quote
However, because Petitioner’s amended petition specifically alleges violations of ARIZ. REV. STAT. § 33-1248(A), 33-1248(B) and 33-1261(D), which are inapplicable as the Association is not subject to governance or regulation by these statutes, the concerns are rendered moot.
Legal Basis
ARIZ. REV. STAT. Title 33, Chapter 9 vs. Chapter 16
Topic Tags
legal standards
statutes
planned communities
Question
Does the HOA posting my private correspondence on the community website violate bylaws regarding special meetings?
Short Answer
No. Public dissemination of private letters does not violate bylaws strictly governing the calling of meetings.
Detailed Answer
While a homeowner may feel that publishing private correspondence is retaliatory or malicious, it does not constitute a violation of bylaws specifically designed to regulate the calling and holding of special meetings.
Alj Quote
Instead, Petitioner’s grievance is the Association’s public dissemination and address of her private correspondence; which is not a violation of Bylaws Section 3.03.
Legal Basis
Bylaws Section 3.03
Topic Tags
privacy
bylaws
communications
Question
Can the ADRE hear claims regarding my constitutional rights or general 'rights as a homeowner'?
Short Answer
No. The Department's jurisdiction is limited to violations of community documents and specific statutes.
Detailed Answer
The Department lacks jurisdiction over broad claims such as constitutional rights, general homeowner rights, or fiduciary responsibilities unless they are framed as specific violations of the community documents or relevant statutes.
Alj Quote
Petitioner also alleged no less than four (4) additional violations in her Amended Petition that the Department has no jurisdiction over or she lacked standing to bring, such as (1) 'my rights as a homeowner,' (2) 'my constitutional rights as an American citizen'…
Legal Basis
ARIZ. REV. STAT. §§ 32-2102, 32-2199
Topic Tags
jurisdiction
constitutional rights
adre authority
Question
Can I claim the HOA violated the rules for calling a special meeting if I never formally requested one?
Short Answer
No. The issue is considered 'unripe' if no meeting was actually requested or held.
Detailed Answer
A violation regarding the calling of a special meeting cannot be established if the homeowner never submitted the request for the meeting prior to filing the petition. The tribunal cannot rule on a hypothetical refusal.
Alj Quote
No violation of Bylaws Section 3.03 exists because the issue is unripe. Here, the record reflects that a special meeting was not held, nor had Petitioner requested one prior to the filing of her petition in this matter.
Legal Basis
ripeness doctrine
Topic Tags
meetings
procedural requirements
violations
Question
What is the standard of proof required for a homeowner to win an administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner must provide enough evidence to convince the judge that their contention is 'more probably true than not.' It requires superior evidentiary weight, not necessarily a greater number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
Are the CC&Rs considered a legal contract between me and the HOA?
Short Answer
Yes. CC&Rs form an enforceable contract that binds the owner upon purchase.
Detailed Answer
When a party purchases a property within the development, they agree to be bound by the terms of the CC&Rs and Bylaws, creating a contractual relationship.
Alj Quote
Thus, the CC&Rs form an enforceable contract between the Association and each property owner, and the Bylaws outline how the Association is permitted to operate.
Legal Basis
Contract Law Principles
Topic Tags
CC&Rs
contracts
enforcement
Case
Docket No
21F-H2121048-REL
Case Title
Nancy Bender vs. Foothills Townhomes Association, Inc.
ARIZ. REV. STAT. § 33-1805; Association Bylaws Article 11.3
Outcome Summary
The Administrative Law Judge denied the petition in its entirety, concluding that the Petitioner failed to meet the burden of proof required to show that the El Rio Community Association violated statutory or community document requirements regarding access to records.
Why this result: Petitioner failed to prove the alleged violations by a preponderance of the evidence.
Key Issues & Findings
Failure to fulfill a records request
Petitioner, a member and Board Director, requested to inspect Association books and records on March 30, 2021. Petitioner alleged the Association failed to completely fulfill the request. The ALJ determined that Petitioner failed to meet the burden of proof to demonstrate a violation of the governing statute or bylaws.
Orders: Petitioner's petition and request to levy a civil penalty against Respondent were denied. Respondent was not ordered to reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1805
Association Bylaws Article 11.3
Analytics Highlights
Topics: Records Request, HOA Bylaws, A.R.S. 33-1805
Additional Citations:
ARIZ. REV. STAT. § 33-1805
Association Bylaws Article 11.3
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
21F-H2121053-REL Decision – 904187.pdf
Uploaded 2026-01-23T17:38:10 (114.1 KB)
Questions
Question
How long does my HOA have to fulfill a request to examine records?
Short Answer
The HOA has ten business days to fulfill a request for examination.
Detailed Answer
According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
timelines
HOA obligations
Question
Can the HOA charge me a fee to simply look at the books and records?
Short Answer
No, the HOA cannot charge a member for making material available for review.
Detailed Answer
State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
homeowner rights
Question
How much can the HOA charge me if I want copies of the records?
Short Answer
The HOA may charge up to fifteen cents per page for copies.
Detailed Answer
While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
copies
Question
Is the HOA allowed to withhold certain records from me?
Short Answer
Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.
Detailed Answer
The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
records request
exclusions
privacy
Question
Can I see records regarding complaints against specific HOA employees?
Short Answer
No, records regarding specific complaints against individual employees can be withheld.
Detailed Answer
The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.
Alj Quote
Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].
Legal Basis
A.R.S. § 33-1805(B)(5)
Topic Tags
records request
employees
privacy
Question
What standard of proof do I need to meet to win a dispute hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Conclusion of Law 3
Topic Tags
hearing procedure
burden of proof
legal standards
Question
If I believe documents are missing from my request, is my belief enough to prove a violation?
Short Answer
No, you must present credible evidence that the specific undisclosed documents actually exist.
Detailed Answer
Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.
Alj Quote
Petitioner presented no credible evidence that documents existed which were not disclosed.
Legal Basis
Findings of Fact 18
Topic Tags
evidence
records request
burden of proof
Question
Does an HOA Director have different inspection rights than a regular homeowner?
Short Answer
Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.
Detailed Answer
Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.
Alj Quote
Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.
Legal Basis
Association Bylaws Article 11.3
Topic Tags
board members
directors
inspection rights
Case
Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
How long does my HOA have to fulfill a request to examine records?
Short Answer
The HOA has ten business days to fulfill a request for examination.
Detailed Answer
According to Arizona statute, an association is granted a period of ten business days to comply with a member's request to examine financial and other records.
Alj Quote
The association shall have ten business days to fulfill a request for examination.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
timelines
HOA obligations
Question
Can the HOA charge me a fee to simply look at the books and records?
Short Answer
No, the HOA cannot charge a member for making material available for review.
Detailed Answer
State law prohibits the association from charging a member (or their designated representative) any fee for the act of making records available for inspection.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
homeowner rights
Question
How much can the HOA charge me if I want copies of the records?
Short Answer
The HOA may charge up to fifteen cents per page for copies.
Detailed Answer
While review is free, if a member requests physical copies of records, the association is legally permitted to charge a fee, capped at fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805(A)
Topic Tags
records request
fees
copies
Question
Is the HOA allowed to withhold certain records from me?
Short Answer
Yes, specific categories of records, such as privileged attorney communications or employee records, can be withheld.
Detailed Answer
The law provides exceptions to disclosure for sensitive information, including privileged attorney-client communications, pending litigation, closed session minutes, and personal or financial records of individual members or employees.
Alj Quote
Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association.
Legal Basis
A.R.S. § 33-1805(B)
Topic Tags
records request
exclusions
privacy
Question
Can I see records regarding complaints against specific HOA employees?
Short Answer
No, records regarding specific complaints against individual employees can be withheld.
Detailed Answer
The HOA is not required to disclose records that relate to specific complaints against an individual employee of the association or a contractor.
Alj Quote
Records relating to… specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association [may be withheld].
Legal Basis
A.R.S. § 33-1805(B)(5)
Topic Tags
records request
employees
privacy
Question
What standard of proof do I need to meet to win a dispute hearing against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) bears the burden of proof. This means you must provide enough evidence to convince the judge that your claim is more probably true than not.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Conclusion of Law 3
Topic Tags
hearing procedure
burden of proof
legal standards
Question
If I believe documents are missing from my request, is my belief enough to prove a violation?
Short Answer
No, you must present credible evidence that the specific undisclosed documents actually exist.
Detailed Answer
Merely alleging that documents are missing is insufficient. The homeowner must provide credible evidence demonstrating that the documents requested actually exist and were withheld.
Alj Quote
Petitioner presented no credible evidence that documents existed which were not disclosed.
Legal Basis
Findings of Fact 18
Topic Tags
evidence
records request
burden of proof
Question
Does an HOA Director have different inspection rights than a regular homeowner?
Short Answer
Yes, Directors generally have an absolute right to inspect all books and records at any reasonable time.
Detailed Answer
Association bylaws often grant Directors broader access than general members, allowing them the absolute right to inspect all documents and physical properties at reasonable times.
Alj Quote
Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.
Legal Basis
Association Bylaws Article 11.3
Topic Tags
board members
directors
inspection rights
Case
Docket No
21F-H2121053-REL
Case Title
Michael E Palacios vs. El Rio Community Association
Decision Date
2021-08-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael E Palacios(petitioner) Property owner and member of the Association; was appointed to the Board,
Respondent Side
Quinten T. Cupps(HOA attorney) Represented El Rio Community Association
Denise Ferreira(property manager, witness) D & E Management Owns D & E Management and was the manager for the Association
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2020049-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2021-03-08
Administrative Law Judge
Jenna Clark
Outcome
loss
Filing Fees Refunded
$500.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Michael J Stoltenberg
Counsel
—
Respondent
Rancho Del Oro Homeowners Association
Counsel
Nicole Payne, Esq.
Alleged Violations
CC&Rs Section 14.8
Outcome Summary
The Administrative Law Judge denied the Petitioner's petition following a rehearing. The ALJ concluded that the Petitioner failed to sustain the burden of proof that the Association violated CC&Rs Section 14.8, as that section applies only to the Association's notice obligation to members and not to assessment payments sent by members to the Association.
Why this result: The Petitioner failed to meet the burden of proof because the CC&R provision cited was inapplicable to the dispute. Additionally, the Petitioner was found to have inadvertently caused delays in payment receipt by using restricted delivery, contrary to instructions.
Key Issues & Findings
Whether the Association violated CC&Rs 14.8.
Petitioner alleged the Association violated CC&Rs Section 14.8 by failing to handle his monthly assessment payments correctly, resulting in late fees and threats of foreclosure. The ALJ found that Section 14.8 governs the Association's notice obligations to members and is inapplicable to the Petitioner's delivery of assessment payments to the Association.
Orders: Petitioner's petition was denied on rehearing.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1243
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Analytics Highlights
Topics: CC&Rs, Assessments, Late Fees, Notice Provision, Burden of Proof, Rehearing
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 33-1243
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association
Executive Summary
This document synthesizes the findings and conclusions from two administrative law judge decisions concerning a dispute between homeowner Michael J. Stoltenberg (Petitioner) and the Rancho Del Oro Homeowners Association (Respondent). The Petitioner’s complaint, alleging the Association violated its governing documents and acted in bad faith regarding the handling of his monthly assessment payments, was comprehensively reviewed and ultimately denied. This denial was subsequently affirmed in a rehearing.
The core of the dispute centered on the Petitioner’s unilateral decision to send his monthly payments via restricted U.S. Postal Service delivery to a specific, unpaid volunteer board member. This action, taken despite clear instructions to mail payments to the Association’s P.O. Box, resulted in delayed receipt and returned mail, leading to the imposition of late fees and threats of foreclosure against the Petitioner.
The Administrative Law Judge’s central finding was that the Petitioner fundamentally misinterpreted Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs). The judge concluded this section is unambiguously applicable only to notices sent from the Association to its members, and imposes no obligations on the Association regarding mail received from members. The payment delays and resulting penalties were determined to be the direct consequence of the Petitioner’s own “volitionally took” actions, for which the Association bore no responsibility. Furthermore, the Petitioner’s claims of “bad faith” under Arizona’s nonprofit corporation statutes were dismissed as falling outside the jurisdictional authority of the Arizona Department of Real Estate and the Office of Administrative Hearings.
I. Case Overview
The legal matter concerns a petition filed by a homeowner against his condominium association, alleging violations of the community’s governing documents and state law.
Case Number
20F-H2020049-REL / 20F-H2020049-REL-RHG
Petitioner
Michael J. Stoltenberg
Respondent
Rancho Del Oro Homeowners Association
Adjudicating Body
Arizona Office of Administrative Hearings (OAH)
Administrative Law Judge
Jenna Clark
The Petitioner’s initial complaint, filed on March 2, 2020, alleged that the Association “fail to do their job, and are acting in bad faith,” specifically citing violations of ARIZ. REV. STAT. §§ 10-3842 and 10-801, and Section 14.8 of the Association’s CC&Rs. He sought an order compelling the Association’s compliance and the issuance of a civil penalty.
II. Procedural History and Timeline
The dispute progressed through an initial hearing, a decision, a granted request for rehearing, and a final binding order.
• March 2, 2020: Petitioner files a single-issue petition with the Arizona Department of Real Estate (“Department”).
• March 24, 2020: Respondent files an ANSWER, denying all complaint items.
• April 1, 2020: The Department refers the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
• July 14, 2020: The initial evidentiary hearing is held.
• August 3, 2020: An AMENDED ADMINISTRATIVE LAW JUDGE DECISION is issued, denying the Petitioner’s petition.
• August 28, 2020: Petitioner submits a request for a rehearing.
• September 9, 2020: The Petitioner’s request for a rehearing is granted.
• February 16, 2021: A rehearing is held before the same Administrative Law Judge.
• March 8, 2021: A final ADMINISTRATIVE LAW JUDGE DECISION is issued, again denying the Petitioner’s petition.
III. Central Dispute: Assessment Payments and CC&R Section 14.8
The conflict originated from the Petitioner’s method of submitting monthly assessment payments and his interpretation of the Association’s obligations under its CC&Rs.
The Petitioner’s Actions and Their Consequences
• Instruction: On January 4, 2016, the Petitioner was advised that the Association’s “primary address for receiving all correspondence and all assessment payments from its members” was PO Box 4333, Yuma, Arizona 85366.
• Unilateral Change in Method: Beginning in November 2019, the Petitioner began sending his monthly payments via restricted delivery through the United States Postal Service (USPS), designated for “board member Rhea Carlisle’s pickup only.”
• Petitioner’s Rationale: He took this action based on a belief that an agent of the Association’s property management company had previously thrown away one of his mailed payments.
• Petitioner’s Acknowledged Awareness: The Petitioner was aware that the Association employed a property management company to collect mail and that Ms. Carlisle was an “unpaid volunteer board member,” not an employee of that company.
• Resulting Delays and Penalties: This restricted delivery method caused significant issues.
◦ One payment was returned by USPS on January 25, 2020.
◦ Another was returned by USPS on June 8, 2020.
◦ Other payments were picked up late on various dates.
◦ For each instance where the payment was received late, the Petitioner was assessed a late fee and his residence was placed in danger of foreclosure.
The Disputed Provision: CC&Rs Section 14.8
The legal basis for the Petitioner’s claim rested on his interpretation of Section 14.8 of the Association’s Bylaws.
• Full Text of Section 14.8, Notices:
• Respondent’s Argument: The Association argued that this section was “inapplicable to the facts as presented” because it governs the Association’s obligation when sending notices to homeowners, not the other way around.
IV. Administrative Law Judge’s Findings and Conclusions
Across two separate decisions, the Administrative Law Judge (ALJ) consistently found that the Petitioner failed to meet his burden of proof and that his interpretation of the governing documents was incorrect.
Initial Decision (August 3, 2020)
• Inapplicability of Section 14.8: The ALJ’s primary conclusion was a complete rejection of the Petitioner’s legal argument.
• Petitioner’s Culpability: The ALJ placed the responsibility for the late payments squarely on the Petitioner.
• Outcome: The petition was denied.
Rehearing Decision (March 8, 2021)
The rehearing was granted on the Petitioner’s grounds of an alleged “Error in the admission or rejection of evidence or other errors of law” and that the initial decision was “arbitrary, capricious, or an abuse of discretion.” The ALJ found no merit in these claims.
• Reaffirmation of Core Finding: The ALJ reiterated and strengthened the conclusion regarding Section 14.8.
• Jurisdictional Ruling: The ALJ explicitly addressed the Petitioner’s “bad faith” claim by citing ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers of nonprofit corporations.
• Failure to Support Rehearing Claims: The ALJ noted a complete lack of new evidence to justify the rehearing.
• Final Outcome: The petition was again denied. The order was made final and binding, with any further appeal requiring judicial review in superior court.
Study Guide – 20F-H2020049-REL-RHG
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based entirely on the provided legal documents.
1. Who are the two primary parties in case No. 20F-H2020049-REL, and what are their respective roles?
2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?
3. Why did the Petitioner, beginning in November 2019, change the way he mailed his monthly assessment payments?
4. What is the specific subject of Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs)?
5. What were the consequences for the Petitioner each time the Association received his monthly assessment payment late?
6. According to the Administrative Law Judge, why was Section 14.8 of the CC&Rs inapplicable to the facts of this case?
7. What was the legal standard of proof the Petitioner was required to meet, and what is its definition?
8. On what grounds did the Petitioner request and receive a rehearing after the initial decision was issued?
9. Why did the Administrative Law Judge dismiss the Petitioner’s argument regarding Arizona Revised Statutes § 10-3842 during the rehearing?
10. What was the final outcome of both the initial hearing on July 14, 2020, and the rehearing on February 16, 2021?
——————————————————————————–
Quiz Answer Key
1. The primary parties are Michael J Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” The Petitioner is a condominium owner and member of the Association who filed a petition alleging violations, while the Respondent is the homeowners’ association that governs the development.
2. The Petitioner alleged that the Association was in violation of Arizona Revised Statutes §§ 10-3842 and 10-801, and section 14.8 of the Association’s CC&Rs. Specifically, he alleged that the Association “fail to do their job, and are acting in bad faith.”
3. The Petitioner changed his mailing method because he believed an agent of the Association’s property management company had thrown away one of his mailed payments. As a result, he began sending payments via restricted delivery by the USPS, for board member Rhea Carlisle’s pickup only.
4. Section 14.8, titled “Notices,” pertains to any notice permitted or required by the Declaration or Bylaws. It specifically addresses the Association’s notice obligation to its members when mailing them information, outlining when such notices are deemed delivered.
5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence put his residence in danger of foreclosure by the Association.
6. The Judge concluded Section 14.8 was inapplicable because its language speaks specifically to the Association’s obligation to provide notice to its members. The section has no binding authority or control over homeowners sending mail to the Association.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as “proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with the most convincing force that inclines an impartial mind to one side of an issue.
8. The Petitioner’s rehearing request was granted on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.” He also claimed that the initial findings of fact or decision were “arbitrary, capricious, or an abuse of discretion.”
9. The argument regarding ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers, was dismissed because it falls outside of the Department of Real Estate’s jurisdiction. The Petitioner had been advised of the Department’s jurisdictional limitations when he first filed his petition.
10. In both the initial decision (dated August 03, 2020) and the final order after the rehearing (dated March 08, 2021), the Administrative Law Judge denied the Petitioner’s petition. The Judge concluded in both instances that the Petitioner failed to sustain his burden of proof.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed to be answered in a detailed essay format, synthesizing information from across the provided documents. Answers are not provided.
1. Analyze the legal reasoning used by Administrative Law Judge Jenna Clark to deny the Petitioner’s claims in both the initial hearing and the rehearing. Discuss the interpretation of CC&R Section 14.8, the concept of burden of proof, and jurisdictional limitations.
2. Trace the complete procedural history of case No. 20F-H2020049-REL from the filing of the petition to the final order. Include all key dates, actions taken by the parties and the Department, and the specific reasons for each major step, such as the granting of the rehearing.
3. Evaluate the actions taken by the Petitioner, Michael Stoltenberg, regarding his assessment payments. Explain why his unilateral decision to use restricted mail delivery, despite being aware of the Association’s procedures, ultimately caused the negative outcomes he sought to avoid.
4. Explain the contractual relationship between a homeowners’ association and a property owner as described in the legal documents. How do the CC&Rs function as an enforceable contract, and how was this concept central to the dispute?
5. Discuss the roles and authorities of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH) in resolving HOA disputes, as demonstrated by this case. What are their powers, and what specific limitations on their jurisdiction are identified in the text?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues findings of fact, conclusions of law, and an order. In this case, the ALJ was Jenna Clark.
Arizona Department of Real Estate (Department)
The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Association
The Rancho Del Oro Homeowners Association, a condominium association whose membership is comprised of the condominium owners in the Rancho Del Oro residential real estate development in Yuma, Arizona.
Board of Directors (the Board)
The body that oversees the Homeowners Association.
Burden of Proof
The obligation of a party in a legal proceeding to prove their contention. In this case, the Petitioner bore the burden of proving the Respondent violated the CC&Rs.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These governing documents form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate refers matters for an evidentiary hearing. The OAH has the authority to hear and decide contested cases and interpret the contract (CC&Rs) between parties.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael J Stoltenberg, a homeowner and member of the Association.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.
Statutory Agent
An individual listed as an official agent for an entity. For the years 2019 and 2020, Diana Crites was listed as the Association’s Statutory Agent.
Abbreviation for the United States Postal Service.
Blog Post – 20F-H2020049-REL-RHG
Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based entirely on the provided legal documents.
1. Who are the two primary parties in case No. 20F-H2020049-REL, and what are their respective roles?
2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?
3. Why did the Petitioner, beginning in November 2019, change the way he mailed his monthly assessment payments?
4. What is the specific subject of Section 14.8 of the Association’s Covenants, Conditions, and Restrictions (CC&Rs)?
5. What were the consequences for the Petitioner each time the Association received his monthly assessment payment late?
6. According to the Administrative Law Judge, why was Section 14.8 of the CC&Rs inapplicable to the facts of this case?
7. What was the legal standard of proof the Petitioner was required to meet, and what is its definition?
8. On what grounds did the Petitioner request and receive a rehearing after the initial decision was issued?
9. Why did the Administrative Law Judge dismiss the Petitioner’s argument regarding Arizona Revised Statutes § 10-3842 during the rehearing?
10. What was the final outcome of both the initial hearing on July 14, 2020, and the rehearing on February 16, 2021?
——————————————————————————–
Quiz Answer Key
1. The primary parties are Michael J Stoltenberg, the “Petitioner,” and the Rancho Del Oro Homeowners Association, the “Respondent.” The Petitioner is a condominium owner and member of the Association who filed a petition alleging violations, while the Respondent is the homeowners’ association that governs the development.
2. The Petitioner alleged that the Association was in violation of Arizona Revised Statutes §§ 10-3842 and 10-801, and section 14.8 of the Association’s CC&Rs. Specifically, he alleged that the Association “fail to do their job, and are acting in bad faith.”
3. The Petitioner changed his mailing method because he believed an agent of the Association’s property management company had thrown away one of his mailed payments. As a result, he began sending payments via restricted delivery by the USPS, for board member Rhea Carlisle’s pickup only.
4. Section 14.8, titled “Notices,” pertains to any notice permitted or required by the Declaration or Bylaws. It specifically addresses the Association’s notice obligation to its members when mailing them information, outlining when such notices are deemed delivered.
5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence put his residence in danger of foreclosure by the Association.
6. The Judge concluded Section 14.8 was inapplicable because its language speaks specifically to the Association’s obligation to provide notice to its members. The section has no binding authority or control over homeowners sending mail to the Association.
7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as “proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with the most convincing force that inclines an impartial mind to one side of an issue.
8. The Petitioner’s rehearing request was granted on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding.” He also claimed that the initial findings of fact or decision were “arbitrary, capricious, or an abuse of discretion.”
9. The argument regarding ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers, was dismissed because it falls outside of the Department of Real Estate’s jurisdiction. The Petitioner had been advised of the Department’s jurisdictional limitations when he first filed his petition.
10. In both the initial decision (dated August 03, 2020) and the final order after the rehearing (dated March 08, 2021), the Administrative Law Judge denied the Petitioner’s petition. The Judge concluded in both instances that the Petitioner failed to sustain his burden of proof.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed to be answered in a detailed essay format, synthesizing information from across the provided documents. Answers are not provided.
1. Analyze the legal reasoning used by Administrative Law Judge Jenna Clark to deny the Petitioner’s claims in both the initial hearing and the rehearing. Discuss the interpretation of CC&R Section 14.8, the concept of burden of proof, and jurisdictional limitations.
2. Trace the complete procedural history of case No. 20F-H2020049-REL from the filing of the petition to the final order. Include all key dates, actions taken by the parties and the Department, and the specific reasons for each major step, such as the granting of the rehearing.
3. Evaluate the actions taken by the Petitioner, Michael Stoltenberg, regarding his assessment payments. Explain why his unilateral decision to use restricted mail delivery, despite being aware of the Association’s procedures, ultimately caused the negative outcomes he sought to avoid.
4. Explain the contractual relationship between a homeowners’ association and a property owner as described in the legal documents. How do the CC&Rs function as an enforceable contract, and how was this concept central to the dispute?
5. Discuss the roles and authorities of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH) in resolving HOA disputes, as demonstrated by this case. What are their powers, and what specific limitations on their jurisdiction are identified in the text?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues findings of fact, conclusions of law, and an order. In this case, the ALJ was Jenna Clark.
Arizona Department of Real Estate (Department)
The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations in Arizona.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Association
The Rancho Del Oro Homeowners Association, a condominium association whose membership is comprised of the condominium owners in the Rancho Del Oro residential real estate development in Yuma, Arizona.
Board of Directors (the Board)
The body that oversees the Homeowners Association.
Burden of Proof
The obligation of a party in a legal proceeding to prove their contention. In this case, the Petitioner bore the burden of proving the Respondent violated the CC&Rs.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These governing documents form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate refers matters for an evidentiary hearing. The OAH has the authority to hear and decide contested cases and interpret the contract (CC&Rs) between parties.
Petitioner
The party who files a petition initiating a legal action. In this case, Michael J Stoltenberg, a homeowner and member of the Association.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and is considered the “greater weight of the evidence.”
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.
Statutory Agent
An individual listed as an official agent for an entity. For the years 2019 and 2020, Diana Crites was listed as the Association’s Statutory Agent.
Abbreviation for the United States Postal Service.
Case Participants
Petitioner Side
Michael J Stoltenberg(petitioner) Rancho Del Oro condominium owner Appeared on his own behalf,
Respondent Side
Nicole Payne(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Appeared on behalf of Rancho Del Oro Homeowners Association,,
Rhea Carlisle(board member) Rancho Del Oro Homeowners Association Unpaid volunteer board member; Petitioner directed mail specifically to her,,,
Diana Crites(statutory agent) Rancho Del Oro Homeowners Association Statutory Agent for 2019 and 2020,
Lydia Peirce(HOA attorney staff/contact) Linsmeier Carpenter, Hazlewood, Delgado & Bolen, LLP Listed as contact for Respondent in 2020 decision transmission
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE commissioner) Arizona Department of Real Estate Commissioner receiving the OAH order,
Dan Gardner(HOA coordinator) Arizona Department of Real Estate HOA Coordinator contact for the Commissioner
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.
Briefing Document: Abbass v. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the Association to exercise its authority under the community’s Covenants, Conditions, and Restrictions (CC&Rs) to enter a neighboring property to inspect the source of a persistent water leak affecting the Petitioner’s home.
The ALJ ultimately denied the Petitioner’s petition and subsequent appeal. The central conclusion across both hearings was that while the Association’s CC&Rs grant it the right to enter a member’s property under specific circumstances (such as for inspections or emergencies), they do not impose an obligation or duty to do so. The Petitioner failed to meet the burden of proof required to demonstrate that the Association violated any provision of the CC&Rs. The ALJ characterized the situation as a “neighbor versus neighbor dispute” and determined that the Association acted within its business judgment by requiring more definitive proof of the leak’s source before authorizing entry, citing concerns over potential liability.
Case Overview
This matter involves a single-issue petition filed by a homeowner against her Homeowners Association (HOA) with the Arizona Department of Real Estate. The case was referred to the Office of Administrative Hearings for adjudication.
Case Details
Information
Case Number
20F-H2020057-REL
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association
Administrative Law Judge
Adam D. Stone
Initial Hearing Date
July 28, 2020
Rehearing Date
November 24, 2020
Core Allegation
The Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) & 4 by failing to grant access to a neighbor’s property to investigate a water leak.
Chronology of Key Events
1. November 14, 2019: Ronald Pick, residing with the Petitioner, discovers the home office carpet is “completely soaked with water.” He determines the drainage issue originates from the neighboring property.
2. November 2019: After the neighbor refuses to cooperate, the Petitioner contacts Robert Kersten, the Association’s Community Manager. Kersten sends a violation notice to the neighbor.
3. January 2020: The Association’s Board of Directors informs Kersten that they will handle the matter directly, and he ceases interaction with the Petitioner.
4. May 5, 2020: The Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500.00 fee.
5. July 28, 2020: The initial evidentiary hearing is held before an Administrative Law Judge.
6. August 17, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding she failed to meet her burden of proof.
7. August 31, 2020: The Petitioner files a request for a rehearing.
8. October 14, 2020: The Commissioner of the Arizona Department of Real Estate grants the request for a rehearing.
9. November 24, 2020: The rehearing is conducted.
10. December 1, 2020: The ALJ issues a final decision, again finding for the Respondent and dismissing the Petitioner’s appeal.
Summary of Arguments
Petitioner’s Position (Susan E. Abbass)
• The Problem: A water leak originating from a neighboring property caused damage, with recurring water intrusion during rainfall.
• Attempted Resolution: The Petitioner and Mr. Pick attempted to work with the neighbor, who was uncooperative on the advice of her insurance company. They then sought the Association’s help to gain access for inspection.
• Core Argument: The Petitioner argued that the water leak constituted an “emergency situation” and that the Association had an obligation under the CC&Rs to grant access to the neighbor’s property for inspection.
• Evidence Provided: The Petitioner provided the Association with all available evidence, including a report from the City of Phoenix.
• Financial Responsibility: The Petitioner offered to pay for a geotechnical engineer and any associated costs for the inspection.
• Legal Basis: The Petitioner claimed the Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
Respondent’s Position (10000 North Central HOA)
• Actions Taken: The Association, through its manager Robert Kersten, acknowledged the complaint and sent a violation notice to the neighbor regarding improper vegetation. They also contacted the neighbor to request access.
• Core Argument: The Association contended that the CC&Rs do not allow its manager to authorize entry “whenever they feel like it.” Entry requires “reasonable justification” and “some type of proof,” which the Board determined had not been provided by the Petitioner.
• Business Judgment and Liability: Respondent’s counsel argued the Board was exercising its business judgment to avoid potential liability that could arise from granting third-party access to a member’s property without sufficient cause.
• Neighbor’s Actions: The Association stated that, to its knowledge, the neighbor’s insurance company inspected the water flow and determined the neighbor was not at fault.
• Evidence Provided: At the rehearing, the Association submitted photographs (Exhibits K, L, M) purportedly showing a fixed pipe and drainage flowing away from the Petitioner’s property.
Analysis of CC&R Provisions
The dispute centered on the interpretation of specific articles within the Association’s Covenants, Conditions, and Restrictions.
Article
Provision Summary
XII, Section 6
Easement in Favor of Association: Grants the Association and its agents the right to enter Lots for specific purposes, including: (a) inspection of owner maintenance, (c) correction of emergency conditions, and (d) exercising its powers and duties.
XIII, Section 1(d)
Drainage Flow: States that “nothing shall be erected, planted or maintained to impede or interrupt said or normal drainage flow” in patio or yard areas that have been graded for drainage.
XIII, Section 4
Owner Maintenance and Association’s Right to Enter: Requires owners to keep their Lot in good order and repair. If an owner fails, the Association “shall have the right to enter upon said Lot or Patio to correct drainage and to repair, maintain and restore the Lot…” after providing notice to the owner and receiving approval from the Board.
Administrative Law Judge’s Findings and Rulings
The ALJ’s conclusions were consistent across both the initial decision and the rehearing. The Petitioner bore the burden of proving by a “preponderance of the evidence” that the Association violated the CC&Rs.
Key Findings from the Initial Decision (August 17, 2020)
• Right vs. Obligation: The judge’s central finding was that the Petitioner was “incorrect that the Respondent has an ‘obligation’ to enter the property.” The CC&Rs grant the Association a right to enter but do not impose a duty or obligation to do so.
• Lack of “True Emergency”: While Mr. Pick testified about water damage during rain, the judge noted a lack of testimony on the extent of the damage. The fact that over eight months had passed since the initial leak discovery indicated there was “no true emergency situation.”
• Stalemate and Business Judgment: The judge acknowledged the “stalemate” where the Petitioner could not obtain more proof without access, and the Association would not grant access without more proof. The Association’s decision was framed as an exercise of business judgment based on its determination that the submitted proof did not meet its standard for entry.
• Nature of the Dispute: The matter was characterized as a “neighbor versus neighbor dispute,” implying the Association was not the proper party to compel action.
• Conclusion: The Petitioner failed to meet her burden of proof.
Key Findings from the Rehearing Decision (December 1, 2020)
• No New Evidence: The Petitioner “failed to provide new evidence or witness testimony” that would alter the original conclusion.
• Petitioner’s Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
• Respondent’s Compliance: The ALJ concluded that the Association “acted in compliance with the CC&Rs.” It was “receptive to the information provided by Petitioner and requested the neighboring property owners cooperation.” The lack of the neighbor’s full cooperation did not constitute a violation by the Association.
• Jurisdictional Limits: The judge stated that under statute A.R.S. § 32-2199.02(A), an ALJ can only order a party to abide by the community documents. The judge “cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision noted that “it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Disposition
IT IS ORDERED that Petitioner’s petition in this matter be denied. The final decision from the rehearing on December 1, 2020, named the Respondent as the prevailing party and dismissed the Petitioner’s appeal. This order is binding on the parties, with any further appeal requiring judicial review in the superior court within thirty-five days of the order being served.
Study Guide – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
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Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
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Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Blog Post – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
——————————————————————————–
Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Case Participants
Petitioner Side
Susan E Abbass(petitioner)
Ronald Pick(witness) witness for Petitioner
Respondent Side
Blake Johnson(HOA attorney) Brown Olcott, PLLC
Robert Kersten(property manager) witness for Respondent
Kelly Oetinger(HOA attorney) Brown Olcott, PLLC
Neutral Parties
Adam D. Stone(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the Association violated the CC&Rs regarding sewer maintenance or deductible apportionment, finding that the Association properly applied its 2012 Rules and Regulations.
Why this result: Petitioner failed to meet her burden of proof that the Respondent violated the CC&Rs in apportioning a proportionate share of the insurance deductible.
Key Issues & Findings
Dispute over apportionment of insurance deductible following sewer backup damage in a common area.
Petitioner challenged the Association's decision to apportion 43.84% ($10,958.96) of the insurance deductible to her unit following damage caused by a main sewer line blockage in a common area.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 41-1092
ARIZ. REV. STAT. § 41-1092.09
Title 33, Chapter 9 of the Arizona Revised Statutes
CC&Rs Sections 3.04, 3.07, 3.09
2012 Rules and Regulations Section 19
Analytics Highlights
Topics: Deductible Apportionment, Sewer Maintenance, Common Area, Condominium Documents, Rules and Regulations
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 41-1092
ARIZ. REV. STAT. § 41-1092.09
Title 33, Chapter 9 of the Arizona Revised Statutes
Video Overview
Audio Overview
Decision Documents
21F-H2120014-REL Decision – 840033.pdf
Uploaded 2026-01-23T17:35:25 (138.3 KB)
Questions
Question
Can the HOA require a homeowner to pay a portion of the association's insurance deductible for damage caused by a common element failure?
Short Answer
Yes, if the community Rules and Regulations authorize the Board to apportion the deductible based on repair costs.
Detailed Answer
The ALJ found that the Association's Board had the authority to adopt rules regarding insurance deductibles. Specifically, the rules allowed the Board to apportion the deductible among unit owners and the association based on the proportion of repair costs when damage affects multiple units and common areas, even if the damage originated from a common element like a sewer line.
Alj Quote
Sections 19(b) and (c) appears to have anticipated the present scenario. There was damaged caused to two units and the common area, and Petitioner was apportioned 43.84% of the deductible. From the evidence presented, the Association also properly applied the applicable Rules and Regulations.
Legal Basis
Rules and Regulations Section 19
Topic Tags
insurance
deductible
assessments
common elements
Question
Who is responsible for ensuring insurance coverage for the 'gap' created by an HOA's insurance deductible?
Short Answer
The homeowner is responsible for obtaining personal insurance to cover the gap.
Detailed Answer
The decision highlights that governing documents or rules may explicitly state that owners must be aware of the deductible amount and secure their own coverage to handle that cost if assessed.
Alj Quote
Each Owner needs to be aware of the amount of the Association’s insurance deductible so that the Owner can determine that their personal insurance coverage will cover any gap.
Legal Basis
Rules and Regulations Section 19(e)
Topic Tags
insurance
homeowner responsibilities
Question
If the HOA fixes a maintenance issue after it occurs (like a sewer backup), can I still claim they violated their maintenance duty to avoid paying the deductible?
Short Answer
Likely no, as long as the HOA coordinated and accomplished the repairs.
Detailed Answer
The ALJ ruled that because the Association coordinated and completed the repairs once the issue occurred, the homeowner failed to prove that the Association neglected its maintenance duties under the CC&Rs. Therefore, the assessment of the deductible was not invalidated by a failure to maintain.
Alj Quote
Once the sewer backed up, the Association coordinated the repairs and accomplished the same. Petitioner failed to demonstrate that the Association failed to properly attend to the maintenance and/or repair of the sewer lines.
Legal Basis
CC&Rs Section 3.09
Topic Tags
maintenance
repairs
negligence
Question
What is the burden of proof for a homeowner challenging an HOA decision in an administrative hearing?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is 'preponderance of the evidence,' meaning the claim must be shown to be more probably true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
Standard of Evidence
Topic Tags
legal procedure
evidence
burden of proof
Question
Can the HOA Board create rules that change how financial liabilities (like deductibles) are handled without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules for the regulation of the property.
Detailed Answer
The decision upheld the enforcement of a rule regarding insurance deductibles found in the 'Rules and Regulations,' noting that the CC&Rs granted the authority to adopt such rules.
Alj Quote
Section 4.10 of the CC&Rs granted authority to adopt rules 'for the regulation and operation of the Property…'
Legal Basis
CC&Rs Section 4.10
Topic Tags
rulemaking
board authority
governing documents
Case
Docket No
21F-H2120014-REL
Case Title
Lori & James Jordan vs. The Pines at Show Low Condominium Owners' Association, Inc.
Decision Date
2020-12-01
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can the HOA require a homeowner to pay a portion of the association's insurance deductible for damage caused by a common element failure?
Short Answer
Yes, if the community Rules and Regulations authorize the Board to apportion the deductible based on repair costs.
Detailed Answer
The ALJ found that the Association's Board had the authority to adopt rules regarding insurance deductibles. Specifically, the rules allowed the Board to apportion the deductible among unit owners and the association based on the proportion of repair costs when damage affects multiple units and common areas, even if the damage originated from a common element like a sewer line.
Alj Quote
Sections 19(b) and (c) appears to have anticipated the present scenario. There was damaged caused to two units and the common area, and Petitioner was apportioned 43.84% of the deductible. From the evidence presented, the Association also properly applied the applicable Rules and Regulations.
Legal Basis
Rules and Regulations Section 19
Topic Tags
insurance
deductible
assessments
common elements
Question
Who is responsible for ensuring insurance coverage for the 'gap' created by an HOA's insurance deductible?
Short Answer
The homeowner is responsible for obtaining personal insurance to cover the gap.
Detailed Answer
The decision highlights that governing documents or rules may explicitly state that owners must be aware of the deductible amount and secure their own coverage to handle that cost if assessed.
Alj Quote
Each Owner needs to be aware of the amount of the Association’s insurance deductible so that the Owner can determine that their personal insurance coverage will cover any gap.
Legal Basis
Rules and Regulations Section 19(e)
Topic Tags
insurance
homeowner responsibilities
Question
If the HOA fixes a maintenance issue after it occurs (like a sewer backup), can I still claim they violated their maintenance duty to avoid paying the deductible?
Short Answer
Likely no, as long as the HOA coordinated and accomplished the repairs.
Detailed Answer
The ALJ ruled that because the Association coordinated and completed the repairs once the issue occurred, the homeowner failed to prove that the Association neglected its maintenance duties under the CC&Rs. Therefore, the assessment of the deductible was not invalidated by a failure to maintain.
Alj Quote
Once the sewer backed up, the Association coordinated the repairs and accomplished the same. Petitioner failed to demonstrate that the Association failed to properly attend to the maintenance and/or repair of the sewer lines.
Legal Basis
CC&Rs Section 3.09
Topic Tags
maintenance
repairs
negligence
Question
What is the burden of proof for a homeowner challenging an HOA decision in an administrative hearing?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is 'preponderance of the evidence,' meaning the claim must be shown to be more probably true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
Standard of Evidence
Topic Tags
legal procedure
evidence
burden of proof
Question
Can the HOA Board create rules that change how financial liabilities (like deductibles) are handled without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules for the regulation of the property.
Detailed Answer
The decision upheld the enforcement of a rule regarding insurance deductibles found in the 'Rules and Regulations,' noting that the CC&Rs granted the authority to adopt such rules.
Alj Quote
Section 4.10 of the CC&Rs granted authority to adopt rules 'for the regulation and operation of the Property…'
Legal Basis
CC&Rs Section 4.10
Topic Tags
rulemaking
board authority
governing documents
Case
Docket No
21F-H2120014-REL
Case Title
Lori & James Jordan vs. The Pines at Show Low Condominium Owners' Association, Inc.
Decision Date
2020-12-01
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Lori Jordan(petitioner) Appeared and testified at the hearing
James Jordan(petitioner)
Chuck Stewart(witness) The Pines at Show Low Condominium Owners' Association, Inc. Board Testified for Petitioner; later joined Board and voted against apportionment
Respondent Side
Sean Lissarrague(board member) The Pines at Show Low Condominium Owners' Association, Inc. Vice President of the Board; appeared and testified for Respondent
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate Received electronic transmission of the decision
Other Participants
c. serrano(administrative staff) Transmitted the electronic decision
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.
Briefing Document: Abbass vs. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.
The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.
Case Overview
Case Name
Susan E Abbass vs. 10000 North Central Homeowners Association
Case Number
20F-H2020057-REL-RHG
Jurisdiction
In the Office of Administrative Hearings (Arizona)
Administrative Law Judge
Adam D. Stone
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)
Hearing Date
November 24, 2020 (Rehearing)
Decision Date
December 1, 2020
Core Dispute and Allegations
Petitioner’s Central Claim
The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.
• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.
Petitioner’s Position and Evidence
• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”
• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.
• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.
• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
Respondent’s Defense and Actions
Respondent’s Position
The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.
• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.
• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”
Actions Taken by the HOA
Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:
• It reached out to the neighboring property owner to request access.
• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.
• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.
• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.
Procedural History and Rehearing
1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.
2. Initial Hearing (July 28, 2020): The first hearing was conducted.
3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.
4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”
5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.
6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.
Administrative Law Judge’s Findings and Conclusions
Burden of Proof
The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”
Key Judicial Determinations
• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.
• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”
• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Order and Implications
• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”
• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.
• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.
Study Guide – 20F-H2020057-REL
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 20F-H2020057-REL-RHG, involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It includes a short-answer quiz with an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
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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?
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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.
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Suggested Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-format response. Answers are not provided.
1. Analyze the legal distinction between a “right” and an “obligation” as it pertains to the Homeowners Association’s authority under the CCR’s in this case. How was this distinction central to the Administrative Law Judge’s final decision?
2. Discuss the concept of “preponderance of the evidence” as defined in the legal decision. Detail the evidence and arguments presented by both the Petitioner and Respondent, and explain why the judge ultimately concluded that the Petitioner failed to meet this standard.
3. Trace the complete procedural history of this case, from the filing of the initial petition to the final order. Identify the key dates, actions taken by each party, and the rulings made at each stage of the administrative process.
4. Evaluate the actions taken by the Respondent (10000 North Central Homeowners Association) in response to the Petitioner’s complaint. Based on the Findings of Fact, did the association act reasonably and in compliance with the CCR’s?
5. Explain the jurisdiction and statutory limitations of the Office of Administrative Hearings in resolving disputes between homeowners and their associations, as outlined in the decision. What remedies were available to the Petitioner through this venue, and why was the specific relief she sought beyond the judge’s power to grant?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, considers evidence, and issues a legal decision. In this case, the ALJ was Adam D. Stone.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Arizona Department of Real Estate
The state agency authorized by statute to receive and decide petitions for hearings involving homeowners’ associations in Arizona.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the burden of proof was on the Petitioner.
An abbreviation for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or subdivision.
Office of Administrative Hearings
The government office where administrative law judges hear disputes concerning state agencies.
Order Granting Rehearing
A formal order issued by the Commissioner of the Arizona Department of Real Estate that approved the Petitioner’s request for a second hearing.
Petitioner
The party who initiates a legal action or files a petition. In this case, the Petitioner was Susan E. Abbass.
Planned Community
A real estate development that includes common property and is governed by a homeowners’ association.
Preponderance of the Evidence
The standard of proof required in this case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Prevailing Party
The party who wins a legal case or dispute. In the final decision, the Respondent was named the prevailing party.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the 10000 North Central Homeowners Association.
Tribunal
A body established to settle certain types of disputes. In this context, it refers to the Office of Administrative Hearings where the case was heard.
Blog Post – 20F-H2020057-REL
Briefing Document: Abbass vs. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings and final order from the Administrative Law Judge (ALJ) in case number 20F-H2020057-REL-RHG, a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the HOA to compel an inspection of a neighboring property, believed to be the source of a recurring water leak into her home.
The ALJ ultimately dismissed the Petitioner’s case, ruling in favor of the Respondent. The decision hinged on a critical distinction within the community’s governing documents (CCR’s): while the HOA possesses the right to enter a property under certain conditions, it does not have an explicit obligation to do so. The Petitioner failed to provide sufficient evidence to prove the HOA had violated the CCR’s. The ALJ concluded that the HOA acted reasonably by contacting the neighbor and reviewing the provided information, and that forcing access without more definitive proof could expose the HOA to legal risk. The decision suggests the Petitioner may be pursuing relief in an incorrect venue or against the incorrect party.
Case Overview
Case Name
Susan E Abbass vs. 10000 North Central Homeowners Association
Case Number
20F-H2020057-REL-RHG
Jurisdiction
In the Office of Administrative Hearings (Arizona)
Administrative Law Judge
Adam D. Stone
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association (represented by Blake Johnson, Esq.)
Hearing Date
November 24, 2020 (Rehearing)
Decision Date
December 1, 2020
Core Dispute and Allegations
Petitioner’s Central Claim
The Petitioner, Susan E. Abbass, alleged that the HOA violated its Covenants, Conditions, and Restrictions (CCR’s) by failing to authorize an inspection on a neighboring property. The Petitioner’s home was experiencing water intrusion every time it rained, and she believed the leak originated from the adjacent lot.
• Alleged Violations: The petition cited violations of the CCR’s Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
• Argument: The Petitioner contended that the recurring water leak constituted an “emergency” situation, obligating the HOA to act.
Petitioner’s Position and Evidence
• Financial Responsibility: The Petitioner stated she was “ready, willing and able to be financially responsible for the cost of any inspections/surveys which needed to be performed on the neighboring property.”
• Due Diligence: Inspections and surveys conducted on her own property determined that the leak was not originating from there.
• Frustration: The Petitioner noted that over a year had passed since the leaking first occurred with no resolution from the HOA or the neighbor.
• Key Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
Respondent’s Defense and Actions
Respondent’s Position
The HOA argued that it did not have sufficient evidence to justify compelling access to the neighboring property. The property manager, Robert Kersten, testified for the Respondent.
• Lack of Proof: The HOA determined that the information provided by the Petitioner did not meet the criteria for forcing entry onto the neighbor’s property.
• Legal Risk: The Respondent expressed concern that if it “overstepped its authority, it could open itself up to other causes of action.”
Actions Taken by the HOA
Despite denying the Petitioner’s request to force an inspection, the HOA took the following steps:
• It reached out to the neighboring property owner to request access.
• It sent a warning letter to the neighbor regarding “improper vegetation” on the property.
• It contacted the neighbor, who, upon information and belief, had her insurance company inspect the water flow. The insurance company reportedly determined the neighbor was not at fault.
• At the rehearing, the Respondent submitted photographic evidence (Exhibits K, L, and M) purportedly showing a fixed pipe and drainage moving away from the Petitioner’s property.
Procedural History and Rehearing
1. Petition Filed (May 5, 2020): Petitioner filed a single-issue petition with the Arizona Department of Real Estate.
2. Initial Hearing (July 28, 2020): The first hearing was conducted.
3. Initial Decision (August 17, 2020): The ALJ issued a decision concluding the Petitioner failed to meet her burden of proof, as the HOA only had the right to enter the property, not an obligation.
4. Rehearing Request (August 31, 2020): Petitioner requested a rehearing, claiming the decision was “arbitrary, capricious, or an abuse of discretion” and “not supported by the evidence or is contrary to law.”
5. Rehearing Granted (October 14, 2020): The Commissioner of the Arizona Department of Real Estate granted the rehearing request.
6. Rehearing Conducted (November 24, 2020): The ALJ conducted a new hearing to reconsider the evidence.
Administrative Law Judge’s Findings and Conclusions
Burden of Proof
The ALJ reiterated that the Petitioner bears the burden to prove the alleged violations by a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
• Conclusion on Evidence: The ALJ found that on rehearing, the “Petitioner failed to provide new evidence or witness testimony demonstrating that Respondent violated Article XII and Article XIII of the CCR’s.”
Key Judicial Determinations
• Right vs. Obligation: The central legal conclusion is that the HOA’s authority is discretionary. The CCR’s grant a right to enter property but do not impose an obligation to do so upon a homeowner’s request.
• HOA’s Conduct: The judge determined that the HOA had acted appropriately and in compliance with the CCR’s. The decision notes, “Respondent was receptive to the information provided by Petitioner and requested the neighboring property owners cooperation. While the neighboring owner may not have fully cooperated to the liking of Petitioner, Respondent still followed the CCR’s to the best of its ability at this point.”
• Statutory Limitations on ALJ: The ALJ is bound by Arizona statute A.R.S. § 32-2199.02(A), which limits the judge’s authority to ordering a party to “abide by the statutes, condominium documents, community documents or contract provision at issue.” The ALJ concluded, “it too cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision strongly suggests the Petitioner is pursuing the wrong legal remedy: “While the possibility of future leaking is certainly frustrating, it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Order and Implications
• Ruling: The ALJ ordered that “the Respondent is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.”
• Binding Nature: As a result of a rehearing, the administrative law judge order is binding on the parties.
• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.
Case Participants
Petitioner Side
Susan E Abbass(petitioner)
Ronald Pick(witness) Witness for Petitioner
Respondent Side
Blake Johnson(attorney) Brown Olcott, PLLC Represented Respondent
Robert Kersten(property manager) Property manager, appeared as a witness for Respondent
