CC&Rs Article 1, Definitions, Area of Association Responsibility
Outcome Summary
The Administrative Law Judge granted the petition, concluding that the HOA CC&Rs mandate that the Association is responsible for replacing individual homeowners' roofs, if needed, primarily by interpreting the contractual term 'repair' to encompass 'replacement,' and noting that the roof is explicitly included under the HOA's maintenance and repair duties while items solely the owner's responsibility (windows, doors, interior plumbing) are specifically excluded from Areas of Association Responsibility.
Key Issues & Findings
Areas of Association Responsibility – Association responsibility for roof replacement by the association not clearly specified as to whether or not it’s an association or homeowner responsibility.
Petitioner sought clarification on whether the HOA's CC&Rs mandate roof replacement as part of 'Areas of Association Responsibility.' The ALJ concluded that the term 'repair' includes 'replacement,' and based on the CC&Rs language regarding maintenance and repair of the roof and the specific exclusion of windows and doors, the HOA is responsible for roof replacement if needed.
Orders: Respondent ordered to reimburse Petitioner’s filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 32-2199.01
CC&Rs Article 1
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
Merriam-Webster dictionary
Analytics Highlights
Topics: HOA Responsibility, Roof Replacement, CC&R Interpretation, Planned Community
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.02
CC&Rs Article 1
CC&Rs Article 5.18
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
In re William L., 211 Ariz. 236, 238 (App. 2005)
Audio Overview
Decision Documents
25F-H051-REL Decision – 1323178.pdf
Uploaded 2026-01-23T18:23:58 (68.2 KB)
25F-H051-REL Decision – 1328240.pdf
Uploaded 2026-01-23T18:24:04 (71.7 KB)
25F-H051-REL Decision – 1353423.pdf
Uploaded 2026-01-23T18:24:09 (167.6 KB)
Briefing Doc – 25F-H051-REL
Briefing Document: Ludden v. Mountain Gate Homeowners Association
Executive Summary
This document synthesizes the proceedings and outcome of the legal dispute between petitioner Michael D. Ludden and the Mountain Gate Homeowners Association (HOA) concerning the responsibility for roof replacement. On September 23, 2025, an Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings issued a final decision, ruling conclusively in favor of the petitioner.
The central finding is that the Mountain Gate HOA is financially responsible for the full replacement of homeowner roofs when necessary, in addition to its acknowledged duties of maintenance and repair. The ruling was based on a close interpretation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the CC&Rs’ definition of an “Improvement” (which includes any building or structure) combined with the Association’s explicit obligation to “maintain, repair and replace” such improvements, established the HOA’s liability for roof replacement.
The dispute arose from ambiguous language within the CC&Rs, which was compounded by conflicting verbal and written promises made by both the original and subsequent developers during home sales. The HOA argued that financial impracticality and a 2010 amendment requiring individual homeowner insurance shifted replacement liability to the owners. However, the ALJ’s decision rejected these arguments, finding the language of the governing documents to be controlling. As a direct result of the ruling, the Mountain Gate HOA must reimburse the petitioner’s $500 filing fee and is legally bound to comply with this interpretation of its responsibilities moving forward.
Case Overview
Legal Proceedings
Case Name
In the Matter of: Michael D. Ludden, Petitioner, v. Mountain Gate Homeowners Association, Respondent.
Case Number
25F-H051-REL
Tribunal
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Nicole Robinson, Administrative Law Judge
Hearing Date
September 3, 2025
Decision Date
September 23, 2025
Parties Involved
Title/Position
Petitioner
Michael D. Ludden
Homeowner and HOA President
Petitioner’s Witness
Brenda Anderson
HOA Secretary Treasurer
Respondent Representative
James “Jim” Pieper
HOA Board Member at Large
Respondent’s Witness
Pablo Martinez
HOA Director at Large
Central Issue
The core of the dispute was the interpretation of the Mountain Gate HOA’s CC&Rs to determine whether the Association is financially responsible for the full replacement of homeowner roofs at the end of their service life, or if its obligation is limited solely to maintenance and repair.
Background and Community History
The dispute is rooted in the development history of the Mountain Gate community, which consists of 42 townhome units in Lakeside, Arizona.
• 2006: The community is established and the association is incorporated as a condominium association.
• 2007: Construction begins on the first 12 units under the original developer.
• 2010: The development is re-platted from condominiums to townhomes, becoming a planned community. The CC&Rs are amended (Article 5.18) to require individual owners to obtain comprehensive insurance for the full replacement cost of their dwelling unit.
• c. 2014: The original developer goes bankrupt. Petitioner Michael Ludden purchases his unit from the developer’s sales agent, Gary Laframboise, who verbally stated that roof maintenance and replacement were the HOA’s responsibility.
• 2016: A new developer, Maebee Mountaingate LLC, purchases the remaining lots and resumes construction.
• 2018: The new developer utilizes sales brochures that explicitly promise roof replacement coverage. One document states, “Roofs last 20 years, replacement can cost $9500. In Mountain Gate part of your homeowner’s dues will be there to replace your roof if it is needed.”
• 2021: The new developer commissions a reserve study which includes line items for roof replacement.
• July 2022: With all 42 units completed, control of the HOA is transitioned from the developer to the homeowners. The Association’s reserve fund has a zero balance at the time of turnover.
• 2024: A homeowner demands the HOA replace his roof, prompting the board to seek a legal opinion and bringing the ambiguity in the CC&Rs to the forefront.
• February 28, 2025: Michael Ludden files a petition with the Arizona Department of Real Estate to seek a formal ruling on the matter.
• September 3, 2025: An evidentiary hearing is conducted by the Office of Administrative Hearings.
Arguments Presented at Hearing
Petitioner’s Position (Michael D. Ludden)
The petitioner argued that the HOA is, and has always been represented as being, responsible for roof replacement.
• Governing Documents (CC&Rs): The primary argument centered on Article 1 of the CC&Rs. It defines “Improvements” as “any building, wall or structure” and states the Association “is obligated to maintain, repair and replace” these improvements. The petitioner asserted that a dwelling unit is an “Improvement,” and therefore its roof is subject to replacement by the HOA.
• Developer Representations: Evidence was presented showing consistent promises from both developers.
◦ A text message from the original developer’s agent, Gary Laframboise, dated October 8, 2024, confirmed, “roof maintenance and replacement is HOA responsibility.”
◦ Sales brochures from the second developer, dated 2018, were used to attract buyers with the explicit promise that HOA dues would cover roof replacement.
• Practical Concerns: It was argued that HOA control over replacement is necessary to maintain aesthetic uniformity and structural standards across the community, preventing homeowners from using substandard materials or unapproved colors (a “purple shingle” scenario was cited).
Respondent’s Position (Mountain Gate HOA)
The respondent, represented by board members, argued that roof replacement is the financial responsibility of the individual homeowner.
• Governing Documents (CC&Rs): The respondent focused on a more specific clause within Article 1 that states the Areas of Association Responsibility “shall include the maintenance and repair of: all exterior walls and the roof of any Dwelling Unit.” They contended that the absence of the word “replace” in this specific clause meant the duty did not exist, superseding the more general language.
• Shift in Liability (2010 Amendment): A key argument was that the 2010 re-platting of the community from condominiums to townhomes fundamentally shifted liability. The accompanying amendment requiring owners to carry their own insurance for the “full replacement cost of the Dwelling Unit” was presented as evidence that the replacement responsibility was transferred to the homeowner and their insurer.
• Financial Impracticality: The board stressed the severe financial burden. With annual dues already at $3,318 with no amenities (e.g., pool, clubhouse), adding the cost of roof replacement would require a further increase estimated at $2,000 to $4,000 per year, which would negatively impact property values and make homes difficult to sell.
• Extraneous Documents: The respondent’s position was that sales brochures and verbal promises are not legally binding and cannot override the language of the recorded CC&Rs.
Final Decision and Legal Rationale
The Administrative Law Judge granted the petitioner’s request, finding that the HOA is responsible for replacing homeowner roofs when necessary.
Outcome:PETITION GRANTED.
Judge’s Rationale
The decision was based primarily on an interpretation of the plain language of the CC&Rs.
1. Controlling Language of the CC&Rs: The judge found the broader definition in Article 1 to be controlling. Because an “Improvement” is defined as a “building,” and the Association is obligated to “maintain, repair and replace” such Improvements, the responsibility for roof replacement was established.
2. Definition of “Repair”: The judge cited the Merriam-Webster dictionary definition of “repair” as “to restore by replacing a part or putting together what is torn or broken.” From this, she concluded that “a repair could come through replacement,” further blurring the distinction the respondent tried to make.
3. The Window Hypothetical: The judge used a hypothetical scenario to illustrate the legal reasoning. The CC&Rs state that owners are solely responsible for the “maintenance and repair” of their windows. If a window needed to be replaced, the responsibility would clearly fall on the owner, even though the word “replace” is absent. The judge reasoned the inverse is true for the roof: since the roof is explicitly listed as an Area of Association Responsibility, that responsibility logically includes replacement when a simple repair is insufficient.
4. Rejection of Respondent’s Arguments: The judge determined that the 2010 amendment requiring individual homeowner insurance “still does not relieve the HOA from repairing and maintaining the roof” and, by extension, replacing it under its CC&R-defined duties. The developer’s promises were noted as supportive but were not the primary basis for the decision.
Direct Orders Issued
Based on the findings, the Administrative Law Judge issued the following orders:
1. IT IS ORDERED that Petitioner’s petition be GRANTED.
2. IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.
3. IT IS FURTHER ORDERED that Respondent shall henceforth comply with the provisions of the governing documents as interpreted in the decision.
Case Participants
Petitioner Side
Michael D. Ludden(petitioner) Mountain Gate Homeowners Association HOA President and Property Owner
Brenda Anderson(witness) Mountain Gate Homeowners Association HOA Secretary-Treasurer
Respondent Side
James Pieper(respondent) Mountain Gate Homeowners Association HOA Director-at-Large
Pablo Martinez(witness) Mountain Gate Homeowners Association HOA Director-at-Large
The Administrative Law Judge granted the petition filed by the Cross Creek Ranch Community Association, finding that Turquoise Textures, LLC violated CC&Rs Article 3, Section 3.1.3 and Article 7, Section 7.5 by clear cutting old growth trees and vegetation in violation of approved plans. Respondent was ordered to reimburse the $500 filing fee and comply with governing documents.
Key Issues & Findings
Violation of Covenants, Conditions, and Restrictions (CC&Rs) by clear cutting old growth trees and vegetation contrary to approved plans.
Petitioner alleged Respondent clear cut approximately 30 old growth trees and native vegetation, violating approved plans and governing documents, and presenting a nuisance. The Administrative Law Judge concluded that Petitioner sustained its burden of proof that Respondent violated the Association’s governing documents, regardless of whether Respondent directed the general contractor, and granted the petition.
Orders: Respondent ordered to reimburse Petitioner's filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.
Briefing Document: Cross Creek Ranch Community Association vs. Turquoise Textures, LLC
Executive Summary
This briefing document synthesizes the proceedings and outcome of the case Cross Creek Ranch Community Association vs. Turquoise Textures, LLC (No. 25F-H005-REL), heard by the Arizona Office of Administrative Hearings (OAH). The central dispute involved the unauthorized clear-cutting of approximately 30 old-growth trees and native vegetation from a lot owned by William D. Durham, principal of Turquoise Textures, LLC.
The Administrative Law Judge (ALJ), Nicole Robinson, ultimately ruled in favor of the Petitioner, the Cross Creek Ranch Community Association (HOA). The decision found that Mr. Durham violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) and Design Guidelines. While Mr. Durham’s primary defense was to blame his general contractor, the ALJ’s decision was based on credible testimony from the contractor implicating Mr. Durham, a documented pattern of non-compliance by Mr. Durham, and his own admission that the lot was cleared in violation of his approved plans.
The HOA sought a court order compelling Mr. Durham to plant 30 trees, 10-12 feet in height, by March 15, 2025. The final OAH order granted the HOA’s petition, requiring Mr. Durham to comply with the governing documents and reimburse the association’s $500 filing fee.
Case Overview
Parties Involved
Name / Entity
Key Role/Witness For
Petitioner
Cross Creek Ranch Community Association
Homeowners’ Association alleging violation of governing documents.
Respondent
Turquoise Textures, LLC (William D. Durham)
Property owner accused of violating governing documents.
Adjudicator
Nicole Robinson
Administrative Law Judge, Office of Administrative Hearings.
Witness
Greg Chambers
Petitioner; HOA Board Member.
Witness
Steve Germaine
Petitioner; Member of Architectural Review Committee (ARC), former ARC Chair.
Witness
Daniel Donahghue
Petitioner; Current ARC Chair and Board Member.
Witness
Jeffrey Penchina
Petitioner; Member of the ARC.
Witness
Timothy Smith
Petitioner; General Contractor hired by William Durham.
Core Allegation and Relief Sought
The HOA filed a petition on July 16, 2024, alleging that in September 2023, the Respondent clear-cut his lot of 20-30 old-growth trees (Junipers and Pinions) and native vegetation. This action was in direct violation of his ARC-approved plans, which were contingent on those plantings remaining in place. The HOA contended this violated:
• CC&Rs Article 3, Section 3.1.3: Pertaining to architectural approval and control.
• CC&Rs Article 7, Section 7.5: Pertaining to improper maintenance and use of lots.
The HOA argued that the clear-cutting was done to improve Mr. Durham’s view and detrimentally affected the community’s appearance and value. The specific relief requested was an order compelling Mr. Durham to plant 30 trees (10 to 12 feet in size) and replace additional vegetation by March 15, 2025.
Chronology of Key Events
• April 18, 2021: Prior to purchasing the lot, William Durham meets with ARC member Steve Germaine and is informed via a follow-up email that “The ARC does not approve the removal of trees… solely for the purpose of preserving or improving a view.”
• May 3, 2021: William Durham purchases Lot 62 in Cross Creek Ranch.
• July 7, 2022: Mr. Durham receives permission from the ARC to remove four specific dead trees.
• July 9, 2022: Mr. Germaine observes Mr. Durham removing more than the four approved dead trees and instructs him to stop.
• June 7, 2023: The ARC approves Mr. Durham’s residential and landscape plans, which show the preservation of existing trees and vegetation in the “transitional area.”
• August 29, 2023: A pre-construction meeting is held with Mr. Durham, his General Contractor (GC) Timothy Smith, and ARC members. ARC member Jeffrey Penchina testified that Mr. Durham personally assured him no trees outside the construction envelope would be removed.
• September 2023: Over approximately three days, Mr. Smith’s company clear-cuts the lot of 30+ old-growth trees and shrubs.
• October 2023: Following the discovery of the clearing, the ARC sends a letter to Mr. Durham to cease construction.
• October 6, 2023: Mr. Durham files a complaint with the Arizona Registrar of Contractors (ROC) against Tim Smith, blaming him for the tree removal.
• February 9, 2024: Mr. Durham transfers the property title to Turquoise Textures, LLC.
• July 16, 2024: The HOA files its petition with the Arizona Department of Real Estate.
• October 15, 2024: Mr. Durham submits a revised landscape plan to the HOA.
• November 4, 2024: The HOA responds to the plan, requiring 10-12 foot trees for remediation.
• November 11, 2024: Mr. Durham sends a detailed email responding to the HOA’s requirements.
• November 26, 2024: The OAH hearing is conducted virtually.
• December 16, 2024: The ALJ issues a final decision granting the HOA’s petition. A separate minute entry notes that documents filed by Mr. Durham after the hearing record closed would not be considered.
Key Testimony and Arguments
Petitioner’s Case (Cross Creek Ranch HOA)
The HOA presented a case built on documented warnings, contractual obligations, and direct eyewitness testimony.
• Established Pattern of Non-Compliance: Witness Steve Germaine testified that he warned Mr. Durham about the rules regarding tree removal for views even before the lot was purchased in April 2021. He further testified to the incident on July 9, 2022, where he witnessed Mr. Durham cutting down live trees without authorization, beyond the four dead trees he had permission for.
• Violation of Approved Plans: Daniel Donahghue and Jeffrey Penchina testified that during the pre-construction meeting on August 29, 2023, the rules were clearly explained. Mr. Penchina stated, “he assured me that nothing outside of the construction envelope would be removed.” The approved plans, entered as evidence, explicitly showed the preservation of the natural landscape in the transitional area.
• Direct Culpability via GC Testimony: The general contractor, Timothy Smith, provided critical testimony directly contradicting Mr. Durham’s defense.
◦ Mr. Smith stated that Mr. Durham directed the clear-cutting: “he started to point out at trees that were in disturbing the… surrounding views… I let him know, well, now we’re going outside of the construction envelope. And he said he doesn’t really care.”
◦ He testified that Mr. Durham was on-site during the three-day clearing process and that the business relationship fractured later over non-payment for subsequent work, not over the tree removal.
Respondent’s Defense (William D. Durham)
Mr. Durham admitted the plans were violated but placed all blame on his general contractor and portrayed the HOA as a hostile and unresponsive entity.
• Blame Assigned to General Contractor: Mr. Durham’s central argument was that his GC acted against instructions. He stated, “I was forced to have a GC that I didn’t need, and the GC insisted on doing all the initial work… He ignored all the directives from Mark and from me.” He testified that he “absolutely not” directed Mr. Smith to clear the land and claimed to be out of town for most of the clearing.
• Allegations of HOA Harassment and Inefficiency: Mr. Durham repeatedly described the HOA as slow, uncooperative, and corrupt.
◦ He claimed he was trying to remediate the issue but the HOA was “very very very slow to ever get back to me.”
◦ He accused the HOA of “moving the goalposts” by demanding 10-12 foot trees, a requirement he said was never mentioned until the hearing.
◦ He testified he was facing over “$40,000 in fines” and was being harassed by specific members. He stated, “There’s a degree of corruption and cronyism in this HOA that is deeply disturbing.”
• Proactive Remediation Efforts: Mr. Durham asserted he had been proactive, submitting a new landscape plan with 32 plants. He testified, “all I need is their input back that’s helpful to resolve everything.” He repeatedly requested a single liaison from the ARC to facilitate faster solutions.
Administrative Law Judge’s Decision
The ALJ’s decision, issued December 16, 2024, was a conclusive victory for the Petitioner.
Findings of Fact
The ALJ established a clear factual record that supported the HOA’s position, highlighting:
• The pre-purchase warning to Mr. Durham in April 2021 regarding tree removal.
• The unauthorized removal of viable trees in July 2022.
• The September 2023 clear-cutting incident, which the judge factually concluded occurred at Mr. Durham’s direction. Finding #15 states: “Mr. Smith, the general contractor, cleared Lot 64 of approximately 30 plus trees and shrubs that were not included in the approved plans per Respondent’s instruction.”
Conclusions of Law
Based on the evidence, the ALJ made the following legal conclusions:
• The Petitioner (HOA) successfully met its burden of proving by a preponderance of the evidence that the Respondent violated the governing documents.
• The ALJ identified a clear “pattern” of behavior, noting Mr. Durham began “failing to heed the ARC’s directions in July 2022.”
• Critically, the judge determined that even without the GC’s testimony, Mr. Durham’s own admission was sufficient for a finding of violation: “Respondent admitted what happened to his Lot was not a part of the approved plan and, hence, was a violation of Petitioner’s CC&Rs and Design Guidelines.”
Final Order
The OAH issued the following orders:
1. IT IS ORDERED that Petitioner’s petition be granted.
2. IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00.
3. IT IS FURTHER ORDERED that Respondent shall henceforth comply with the provisions of the governing documents.
Study Guide – 25F-H005-REL
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25F-H005-REL
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These sources document a legal dispute and administrative hearing between the Cross Creek Ranch Community Association and homeowner William Durham, operating as Turquoise Textures LLC. The association alleged that Durham violated community governing documents by clear-cutting approximately 30 protected old-growth trees to improve his property’s view, contradicting his approved landscape plans. While Durham blamed his general contractor for the unauthorized removal, testimony from the contractor and association members suggested Durham directed the clearing personally. The Office of Administrative Hearings ultimately ruled in favor of the association, finding Durham in violation of the CC&Rs and Design Guidelines. Consequently, the court ordered Durham to reimburse filing fees and mandated future compliance with community standards, which included a demand for the replanting of mature trees by March 2025.
What are the specific landscaping violations alleged by the Association?
How did the dispute over clear-cutting trees affect the build?
What final ruling did the Administrative Law Judge issue?
Thursday, February 12
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Video Overview
Mind Map
Reports
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Quiz
Infographic
Slide Deck
Data Table
Blog Post – 25F-H005-REL
Select all sources
1246254.pdf
1246768.aac
1246769.aac
1252576.pdf
1252586.pdf
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25F-H005-REL
5 sources
These sources document a legal dispute and administrative hearing between the Cross Creek Ranch Community Association and homeowner William Durham, operating as Turquoise Textures LLC. The association alleged that Durham violated community governing documents by clear-cutting approximately 30 protected old-growth trees to improve his property’s view, contradicting his approved landscape plans. While Durham blamed his general contractor for the unauthorized removal, testimony from the contractor and association members suggested Durham directed the clearing personally. The Office of Administrative Hearings ultimately ruled in favor of the association, finding Durham in violation of the CC&Rs and Design Guidelines. Consequently, the court ordered Durham to reimburse filing fees and mandated future compliance with community standards, which included a demand for the replanting of mature trees by March 2025.
What are the specific landscaping violations alleged by the Association?
How did the dispute over clear-cutting trees affect the build?
What final ruling did the Administrative Law Judge issue?
Thursday, February 12
Save to note
Today • 5:13 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
John Kalinich(representative) Cross Creek Ranch Community Association
Greg Chambers(board member / witness) Cross Creek Ranch Community Association
Daniel K. Donahghue(board member / witness) Cross Creek Ranch Community Association ARC Chair
Steven M. Germaine(ARC member / witness) Cross Creek Ranch Community Association
Jeffrey Panchina(ARC member / witness) Cross Creek Ranch Community Association
Timothy C. Smith(witness (GC)) Former General Contractor for Respondent
Respondent Side
William D. Durham(respondent (principal)) Turquoise Textures, LLC
The Administrative Law Judge denied the petition, concluding that the Association was in compliance with ARIZ. REV. STAT. § 33-1812(7) by providing the electronic data lists received from the voting vendor (Vote HOA Now), as the statute requires storage of 'electronic votes' not necessarily 'electronic ballots' (images).
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Key Issues & Findings
Failure to provide voting records (electronic ballots) for inspection
Petitioner alleged the Association failed to provide all voting materials, specifically images of each actual online ballot, in response to the February 28, 2024, inspection request, arguing this violated ARIZ. REV. STAT. § 33-1812(A)(7).
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
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.
Analytics Highlights
Topics: Voting Records, Electronic Voting, HOA Records Inspection, Statutory Interpretation, ARS 33-1812
Additional Citations:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. § 32-2199.04
Video Overview
Audio Overview
Decision Documents
24F-H047-REL-RMD Decision – 1240168.pdf
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24F-H047-REL-RMD Decision – 1330098.pdf
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24F-H047-REL-RMD Decision – 1330115.pdf
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24F-H047-REL-RMD Decision – 1338932.pdf
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24F-H047-REL-RMD Decision – 1340272.pdf
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24F-H047-REL-RMD Decision – 1357165.pdf
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24F-H047-REL-RMD Decision – 1358023.pdf
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Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John F. Sullivan(Petitioner Attorney) AZNH Revocable Trust Counsel for Susan Sullivan/AZNH Trust
Susan Sullivan(Petitioner Trustee) AZNH Revocable Trust
Respondent Side
Chad M. Gallacher(Respondent Attorney) Sunland Springs Village Homeowners Association Affiliated with MAXWELL & MORGAN, P.C.
Kathy Fowers(General Manager/Witness) Sunland Springs Village Homeowners Association Custodian of Records
Cathy Braun(Association Secretary/Treasurer) Sunland Springs Village Homeowners Association Referenced in emails regarding documents inspection
Paul Minda(Board President/Board Member) Sunland Springs Village Homeowners Association Present at rehearing
Mar(Board Vice President/Board Member) Sunland Springs Village Homeowners Association Partial name only; present at rehearing
Mrs. Holden(Affiliate/Witness) Sunland Springs Village Homeowners Association Present at Superior Court argument
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings
Judge McKish(Superior Court Judge) Maricopa County Superior Court Presided over appeal/remand process
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Other Participants
vnunez(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
djones(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
labril(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
mneat(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
lrecchia(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
gosborn(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
The Administrative Law Judge denied the petition, concluding that the Association was in compliance with ARIZ. REV. STAT. § 33-1812(7) by providing the electronic data lists received from the voting vendor (Vote HOA Now), as the statute requires storage of 'electronic votes' not necessarily 'electronic ballots' (images).
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Key Issues & Findings
Failure to provide voting records (electronic ballots) for inspection
Petitioner alleged the Association failed to provide all voting materials, specifically images of each actual online ballot, in response to the February 28, 2024, inspection request, arguing this violated ARIZ. REV. STAT. § 33-1812(A)(7).
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
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.
Analytics Highlights
Topics: Voting Records, Electronic Voting, HOA Records Inspection, Statutory Interpretation, ARS 33-1812
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
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
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John F. Sullivan(Attorney) AZNH Revocable Trust Counsel for Petitioner
Susan Sullivan(Petitioner Trustee) AZNH Revocable Trust Filed motion for peremptory change of judge
Respondent Side
Chad M. Gallacher(HOA attorney) MAXWELL & MORGAN, P.C. Counsel for Sunland Springs Village Homeowners Association
Kathy Fowers(General Manager) Sunland Springs Village Homeowners Association Custodian of Records; Present at hearing
Paul Minda(board member) Sunland Springs Village Homeowners Association Board President
Mar(board member) Sunland Springs Village Homeowners Association Vice President (Partial name identified)
Cathy Braun(Association Secretary/Treasurer) Sunland Springs Village Homeowners Association Exchanged emails with Petitioner regarding inspection request
Neutral Parties
Kay A. Abramsohn(ALJ) OAH Administrative Law Judge
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Judge McKish(Judge) Superior Court Superior Court Judge who handled remand; also referred to as Judge McKittish
Other Participants
Mrs. Holden(witness) Present at Superior Court argument with Respondent representatives
Bylaws Article II, Section 8, as amended October 18, 2000
Outcome Summary
The Administrative Law Judge determined that Petitioner failed to sustain the burden of proof required to show the Association violated the purported Bylaws amendment, and therefore, the petition was denied.
Why this result: Petitioner failed to prove the validity or implementation of the purported Bylaws amendment, and the language of the amendment itself was found not to be compulsory in requiring a subsequent meeting.
Key Issues & Findings
Alleged failure to hold a second and subsequent meeting of the membership with a diminished quorum.
Petitioner alleged the Association violated its Bylaws by failing to hold a second meeting with a diminished 15% quorum after failing to meet the initial 25% quorum at the Annual Meeting on January 16, 2024, despite a motion and second being made to adjourn and reset the meeting.
Orders: Petitioner's petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 33-1802(1)
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. § 41-1092.09
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: HOA Bylaws, Quorum, Annual Meeting, Burden of Proof, Invalid Document, Continuance
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1802(1)
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H035-REL Decision – 1163387.pdf
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24F-H035-REL Decision – 1163395.pdf
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24F-H035-REL Decision – 1165696.pdf
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24F-H035-REL Decision – 1209016.pdf
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Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the 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
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the 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
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Jesse Freeman(petitioner) Millett Ranch Homeowners’ Association Member Spelling varies as 'Jesse Freemen' in some sources; also served as Treasurer on the Board 2017-2018.
Nicholas Belisi(witness) Potential witness for Petitioner; seconded the motion to adjourn and reconvene the meeting.
Respondent Side
Augustus H. Shaw IV(HOA attorney) Shaw & Lines, LLC Counsel for Respondent Millett Ranch Homeowners’ Association.
Brandon David Moore(senior community manager/witness) Brown Property Management Senior Community Manager for Respondent Millett Ranch HOA, testified as a witness.
Christopher Redden(Board President/witness) Millett Ranch Homeowners’ Association Former Board President (9 years) and Board Member (13-14 years), testified as a witness.
Mark Saul(HOA attorney) Millett Ranch Homeowners’ Association Identified by Petitioner as the association's attorney who abruptly ended the January 16, 2024 meeting.
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(Commissioner) ADRE
vnunez(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
djones(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
labril(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
mneat(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
akowaleski(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
gosborn(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
The Administrative Law Judge denied the Petitioners' petition, concluding they failed to meet their burden of proving a violation of ARIZ. REV. STAT. § 33-1248 regarding the May 19, 2023, Executive Board Meeting.
Why this result: Petitioners failed to prove the statutory violation by a preponderance of the evidence, as the Executive Session was deemed appropriate for receiving legal advice or conducting discussion related thereto, which falls under ARIZ. REV. STAT. § 33-1248(A)(1).
Key Issues & Findings
Alleged violation of open meeting law concerning Executive Board Meeting on May 19, 2023
Petitioners alleged the Association violated ARS § 33-1248 by improperly conducting business (Code of Conduct review and vote on minutes) in a closed Executive Session on May 19, 2023, and by failing to provide 48-hour notice.
Orders: Petitioners' petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1248
ARIZ. REV. STAT. § 33-1248(A)(1)
Analytics Highlights
Topics: HOA Open Meeting Law, Executive Session, Legal Advice Exception, Code of Conduct, Burden of Proof, Condominium Association Statute, Filing Fee
Additional Citations:
ARIZ. REV. STAT. § 33-1248
ARIZ. REV. STAT. § 33-1248(A)(1)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
Video Overview
Audio Overview
Decision Documents
24F-H024-REL Decision – 1138580.pdf
Uploaded 2026-01-23T18:03:38 (54.3 KB)
24F-H024-REL Decision – 1144884.pdf
Uploaded 2026-01-23T18:03:41 (50.1 KB)
24F-H024-REL Decision – 1146526.pdf
Uploaded 2026-01-23T18:03:44 (61.9 KB)
24F-H024-REL Decision – 1161533.pdf
Uploaded 2026-01-23T18:03:47 (48.9 KB)
24F-H024-REL Decision – 1179547.pdf
Uploaded 2026-01-23T18:03:52 (132.9 KB)
Questions
Question
Who is responsible for proving that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. This means showing that the claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Preponderance of the Evidence
Topic Tags
burden of proof
legal standards
procedure
Question
Can the HOA board go into a closed executive session to get legal advice?
Short Answer
Yes, the board may close a meeting to receive legal advice from the association's attorney.
Detailed Answer
State statute explicitly allows portions of meetings to be closed if limited to consideration of legal advice from an attorney for the board or association. Legal advice is defined broadly as guidance given by lawyers to their clients.
Alj Quote
ARIZ. REV. STAT. § 33-1248(A)(1) provides, in pertinent part, that 'Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following: (1) legal advice from an attorney for the board or the association.'
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
executive session
legal advice
open meeting laws
Question
If I file a petition for one specific violation, can I bring up other issues during the hearing?
Short Answer
No, the tribunal will generally only address the specific issue paid for in the petition.
Detailed Answer
The ALJ may refuse to address tangential issues or additional complaints raised during the hearing if the petitioner only paid the filing fee for the adjudication of a single specific issue.
Alj Quote
Because Petitioners only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioners raised during the presentation of their case or closing arguments, including whether the Association properly provided notice of its May 19, 2023, Board Meeting.
Legal Basis
Procedural Scope
Topic Tags
hearing procedure
filing fees
scope of hearing
Question
Does draft language stating a policy 'has been approved' prove the board secretly voted on it?
Short Answer
No, the tense used in a draft document is considered irrelevant if the document was not actually adopted.
Detailed Answer
Even if a proposed document uses language like 'The Board… has approved,' this is considered a 'red herring' if the evidence shows the document was merely a proposal that board members were advised to sign but ultimately declined.
Alj Quote
The fact that language in the proposal used current language, rather than future tense, is a Red Herring argument and irrelevant.
Legal Basis
N/A
Topic Tags
evidence
board documents
voting
Question
Is it a violation for the board to discuss public materials (like a website printout) in executive session?
Short Answer
Not necessarily, provided that discussing those materials was not the sole purpose of the closed session.
Detailed Answer
While discussing public materials alone is technically not legal advice, it does not invalidate an executive session if the session also included legitimate purposes, such as receiving counsel's advice on other matters.
Alj Quote
While it is accurate that going into Executive Session for the purpose of discussing reading materials printed from a public website regarding revision of Association’s governing documents is not technically legal advice, as it is inherently unprivileged documentation, this record reflects that this was not the sole purpose of closing the Board Meeting from the public.
Legal Basis
A.R.S. § 33-1248
Topic Tags
executive session
public records
violations
Question
What is the standard of proof required to win an HOA dispute case?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires proof that convinces the judge that the claim is 'more probably true than not.' It is based on the convincing force and weight of the evidence, not just the 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
Standard of Proof
Topic Tags
legal standards
evidence
Question
Can the board discuss a Code of Conduct in executive session?
Short Answer
Yes, if the discussion involves receiving legal advice or guidance from the association's attorney.
Detailed Answer
The ALJ found no violation when the board went into executive session to discuss a Code of Conduct because the board members were receiving information, asking questions, and being advised by counsel regarding the document.
Alj Quote
The crux of the underlying issue is that newly elected Board Members, Petitioners, were provided with information regarding the Code of Conduct, the opportunity to discuss and ask questions privately, and advised to sign by Counsel for the Association; which they declined as was their right.
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
code of conduct
executive session
board meetings
Case
Docket No
24F-H024-REL
Case Title
Jeffrey Connell & Corey Cox v. Casa Del Monte, Inc.
Decision Date
2024-05-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Who is responsible for proving that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. This means showing that the claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Preponderance of the Evidence
Topic Tags
burden of proof
legal standards
procedure
Question
Can the HOA board go into a closed executive session to get legal advice?
Short Answer
Yes, the board may close a meeting to receive legal advice from the association's attorney.
Detailed Answer
State statute explicitly allows portions of meetings to be closed if limited to consideration of legal advice from an attorney for the board or association. Legal advice is defined broadly as guidance given by lawyers to their clients.
Alj Quote
ARIZ. REV. STAT. § 33-1248(A)(1) provides, in pertinent part, that 'Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following: (1) legal advice from an attorney for the board or the association.'
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
executive session
legal advice
open meeting laws
Question
If I file a petition for one specific violation, can I bring up other issues during the hearing?
Short Answer
No, the tribunal will generally only address the specific issue paid for in the petition.
Detailed Answer
The ALJ may refuse to address tangential issues or additional complaints raised during the hearing if the petitioner only paid the filing fee for the adjudication of a single specific issue.
Alj Quote
Because Petitioners only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioners raised during the presentation of their case or closing arguments, including whether the Association properly provided notice of its May 19, 2023, Board Meeting.
Legal Basis
Procedural Scope
Topic Tags
hearing procedure
filing fees
scope of hearing
Question
Does draft language stating a policy 'has been approved' prove the board secretly voted on it?
Short Answer
No, the tense used in a draft document is considered irrelevant if the document was not actually adopted.
Detailed Answer
Even if a proposed document uses language like 'The Board… has approved,' this is considered a 'red herring' if the evidence shows the document was merely a proposal that board members were advised to sign but ultimately declined.
Alj Quote
The fact that language in the proposal used current language, rather than future tense, is a Red Herring argument and irrelevant.
Legal Basis
N/A
Topic Tags
evidence
board documents
voting
Question
Is it a violation for the board to discuss public materials (like a website printout) in executive session?
Short Answer
Not necessarily, provided that discussing those materials was not the sole purpose of the closed session.
Detailed Answer
While discussing public materials alone is technically not legal advice, it does not invalidate an executive session if the session also included legitimate purposes, such as receiving counsel's advice on other matters.
Alj Quote
While it is accurate that going into Executive Session for the purpose of discussing reading materials printed from a public website regarding revision of Association’s governing documents is not technically legal advice, as it is inherently unprivileged documentation, this record reflects that this was not the sole purpose of closing the Board Meeting from the public.
Legal Basis
A.R.S. § 33-1248
Topic Tags
executive session
public records
violations
Question
What is the standard of proof required to win an HOA dispute case?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires proof that convinces the judge that the claim is 'more probably true than not.' It is based on the convincing force and weight of the evidence, not just the 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
Standard of Proof
Topic Tags
legal standards
evidence
Question
Can the board discuss a Code of Conduct in executive session?
Short Answer
Yes, if the discussion involves receiving legal advice or guidance from the association's attorney.
Detailed Answer
The ALJ found no violation when the board went into executive session to discuss a Code of Conduct because the board members were receiving information, asking questions, and being advised by counsel regarding the document.
Alj Quote
The crux of the underlying issue is that newly elected Board Members, Petitioners, were provided with information regarding the Code of Conduct, the opportunity to discuss and ask questions privately, and advised to sign by Counsel for the Association; which they declined as was their right.
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
code of conduct
executive session
board meetings
Case
Docket No
24F-H024-REL
Case Title
Jeffrey Connell & Corey Cox v. Casa Del Monte, Inc.
Decision Date
2024-05-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Jeffrey Connell(petitioner) Casa Del Monte, Inc. HOA Also served as a board member.
Corey Cox(petitioner) Casa Del Monte, Inc. HOA Also served as a board member.
Ross Meyer(attorney) Meyer & Partners, PLLC; Enara Law PLLC Counsel for Petitioners.
Jonathan Dessaules(witness) The Sol Law Group Testified as a subject matter expert/HOA attorney.
Matthew Elias(attorney) Enara Law PLLC Counsel for Petitioners; listed in final decision transmittal.
Respondent Side
Lori N. Brown(attorney) Gordon Rees Scully Mansukahani, LLP Counsel for Respondent.
Benjamin Bednarek(attorney) Gordon Rees Scully Mansukahani, LLP Counsel for Respondent.
Curtis Ekmark(HOA attorney) Casa Del Monte, Inc. HOA Association Corporate Counsel/General Counsel.
Solomon Krotzer(attorney) Gordon Rees Scully Mansukahani, LLP Counsel for Respondent; appeared at hearing (referred to as 'Paulo' once).
Mary Lou Ehmann(property manager) Pride Management Former Community Manager for Casa Del Monte; provided testimony.
Jonathan Ryder(board president) Casa Del Monte, Inc. HOA Also referred to as John Ryder.
Jean Yen(board member) Casa Del Monte, Inc. HOA Also referred to as Jeannie Yen; Treasurer.
Bill McMichael(board member) Casa Del Monte, Inc. HOA Vice President.
Jim Burton(board member) Casa Del Monte, Inc. HOA Secretary.
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(Commissioner) ADRE
AHansen(ADRE staff) ADRE Recipient of official case transmission.
vnunez(ADRE staff) ADRE Recipient of official case transmission.
djones(ADRE staff) ADRE Recipient of official case transmission.
labril(ADRE staff) ADRE Recipient of official case transmission.
kvanfredenberg(ADRE staff) ADRE Recipient of official case transmission.
The ALJ granted the petition after finding that the Respondent HOA violated ARIZ. REV. STAT. § 33-1258 by failing to fulfill a records request within the statutory ten business days. The HOA was ordered to reimburse the Petitioner's $500 filing fee and comply with the statute, but was not assessed a civil penalty.
Key Issues & Findings
Whether Respondent violated ARIZ. REV. STAT. § 33-1258 because the “HOA has not complied witha [sic] formal records request … regarding damage to homeowner's unit.”
Respondent received Petitioner's records request on November 28, 2023, but did not comply until February 13, 2024, nearly two months later. The Tribunal found no viable justification for the delay, establishing a violation of the statute.
Orders: Petitioner's petition is granted. Respondent must reimburse the $500 filing fee in certified funds and must henceforth comply with ARIZ. REV. STAT. § 33-1258. No civil penalty was assessed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1258
Analytics Highlights
Topics: records request, statutory violation, HOA transparency, filing fee reimbursement
Additional Citations:
ARIZ. REV. STAT. § 33-1258
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
Video Overview
Audio Overview
Decision Documents
24F-H032-REL Decision – 1162594.pdf
Uploaded 2026-01-23T18:05:42 (51.3 KB)
24F-H032-REL Decision – 1167907.pdf
Uploaded 2026-01-23T18:05:48 (184.7 KB)
Questions
Question
How long does my HOA have to respond to a formal records request?
Short Answer
The HOA has 10 business days to fulfill a request for examination or to provide copies.
Detailed Answer
Under Arizona law, an association is strictly required to fulfill a request for examination or provide copies of requested records within ten business days. Failure to meet this deadline without a viable justification constitutes a violation of the statute.
Alj Quote
The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
records request
deadlines
HOA obligations
Question
Can my HOA charge me a fee to simply review or inspect records?
Short Answer
No, the HOA cannot charge a fee for making material available for review.
Detailed Answer
The statute explicitly prohibits the association from charging a member for the act of making materials available for review. However, they may charge a specific fee for making actual copies.
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
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
fees
records request
homeowner rights
Question
How much can the HOA charge if I ask for copies of records?
Short Answer
The HOA may charge a fee for copies, but it cannot exceed fifteen cents per page.
Detailed Answer
While review is free, if a homeowner requests physical copies of the records, the association is permitted by statute 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
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
fees
records request
copies
Question
What happens if my HOA responds to my records request weeks or months late?
Short Answer
Responding late without a valid excuse is a violation of the statute.
Detailed Answer
If the HOA fails to provide the records within the statutory 10-business-day window without a viable justification, they are in violation of A.R.S. § 33-1258. In this case, a response provided nearly two months late was deemed a violation.
Alj Quote
The record also reflects that although Petitioner follow-up with Respondent on December 12, 2023, regarding her request, Respondent did not comply until February 13, 2024, nearly two (2) months late… Nothing in the record establishes a viable justification or excuse for Respondent’s inaction and/or lack of performance on Petitioner’s records request during the applicable time period.
Legal Basis
ARIZ. REV. STAT. § 33-1258
Topic Tags
violations
delays
enforcement
Question
Can the HOA be penalized for failing to provide a document that doesn't exist?
Short Answer
No, an HOA cannot be held liable for failing to provide a record that simply does not exist.
Detailed Answer
If a homeowner requests a specific document (like a warranty) and the association does not possess such a document because it never existed, the association is not in violation for failing to provide it.
Alj Quote
Additionally, because the Association never had a “termite warranty,” Respondent was unable to provide Petitioner with something that did not exist.
Legal Basis
ARIZ. REV. STAT. § 33-1258
Topic Tags
records request
defense
HOA obligations
Question
Does it matter if my wording in a records request is vague?
Short Answer
Yes, vague requests may lead to incomplete information, and the HOA might not be faulted for misinterpreting ambiguous terms.
Detailed Answer
Homeowners should be specific. In this case, requesting 'Policy Information' rather than the 'entire policy' was considered vague and ambiguous, which explained why the HOA only provided declarations and exclusion pages rather than the full policy.
Alj Quote
While Petitioner contends that she only received some of the documents she requested, the record further reflects that she never asked for the Association’s entire insurance policy, only “HOA Insurance Policy Information,” which was vague and ambiguous.
Legal Basis
Findings of Fact
Topic Tags
records request
best practices
homeowner responsibilities
Question
If I win my case against the HOA at a hearing, will I get my filing fee back?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse your filing fee.
Detailed Answer
If the petition is granted and a violation is found, the ALJ has the authority to order the Respondent (HOA) to reimburse the Petitioner's filing fee in certified funds.
Alj Quote
IT IS FURTHER ORDERED that Respondent shall reimburse Petitioners’ filing fee (e.g. $500.00) in certified funds.
Legal Basis
Order
Topic Tags
remedies
fees
reimbursement
Question
Will the HOA automatically have to pay a civil penalty if they are found in violation?
Short Answer
Not necessarily. The judge may decide not to assess a civil penalty even if a violation is found.
Detailed Answer
Finding a violation does not automatically result in a fine. The ALJ has discretion regarding civil penalties. In this instance, despite finding a violation regarding records, the judge ordered compliance and fee reimbursement but explicitly chose not to assess a civil penalty.
Alj Quote
IT IS FURTHER ORDERED that a civil penalty shall not be assessed against Respondent in this matter.
Legal Basis
Order
Topic Tags
penalties
civil penalty
enforcement
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The Petitioner (homeowner) bears the burden of proof.
Detailed Answer
The homeowner filing the complaint must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means they must show it is more probable than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1258.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Topic Tags
procedure
burden of proof
evidence
Question
Can I designate someone else to inspect the HOA records for me?
Short Answer
Yes, a member can designate a representative in writing.
Detailed Answer
The statute allows records to be examined by the member or any person designated by the member in writing as their representative.
Alj Quote
[A]ll financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
representation
records request
access
Case
Docket No
24F-H032-REL
Case Title
Laura R. Braglia v. Palo Verde Estates Homeowners Association, Inc.
Decision Date
2024-04-17
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
How long does my HOA have to respond to a formal records request?
Short Answer
The HOA has 10 business days to fulfill a request for examination or to provide copies.
Detailed Answer
Under Arizona law, an association is strictly required to fulfill a request for examination or provide copies of requested records within ten business days. Failure to meet this deadline without a viable justification constitutes a violation of the statute.
Alj Quote
The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
records request
deadlines
HOA obligations
Question
Can my HOA charge me a fee to simply review or inspect records?
Short Answer
No, the HOA cannot charge a fee for making material available for review.
Detailed Answer
The statute explicitly prohibits the association from charging a member for the act of making materials available for review. However, they may charge a specific fee for making actual copies.
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
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
fees
records request
homeowner rights
Question
How much can the HOA charge if I ask for copies of records?
Short Answer
The HOA may charge a fee for copies, but it cannot exceed fifteen cents per page.
Detailed Answer
While review is free, if a homeowner requests physical copies of the records, the association is permitted by statute 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
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
fees
records request
copies
Question
What happens if my HOA responds to my records request weeks or months late?
Short Answer
Responding late without a valid excuse is a violation of the statute.
Detailed Answer
If the HOA fails to provide the records within the statutory 10-business-day window without a viable justification, they are in violation of A.R.S. § 33-1258. In this case, a response provided nearly two months late was deemed a violation.
Alj Quote
The record also reflects that although Petitioner follow-up with Respondent on December 12, 2023, regarding her request, Respondent did not comply until February 13, 2024, nearly two (2) months late… Nothing in the record establishes a viable justification or excuse for Respondent’s inaction and/or lack of performance on Petitioner’s records request during the applicable time period.
Legal Basis
ARIZ. REV. STAT. § 33-1258
Topic Tags
violations
delays
enforcement
Question
Can the HOA be penalized for failing to provide a document that doesn't exist?
Short Answer
No, an HOA cannot be held liable for failing to provide a record that simply does not exist.
Detailed Answer
If a homeowner requests a specific document (like a warranty) and the association does not possess such a document because it never existed, the association is not in violation for failing to provide it.
Alj Quote
Additionally, because the Association never had a “termite warranty,” Respondent was unable to provide Petitioner with something that did not exist.
Legal Basis
ARIZ. REV. STAT. § 33-1258
Topic Tags
records request
defense
HOA obligations
Question
Does it matter if my wording in a records request is vague?
Short Answer
Yes, vague requests may lead to incomplete information, and the HOA might not be faulted for misinterpreting ambiguous terms.
Detailed Answer
Homeowners should be specific. In this case, requesting 'Policy Information' rather than the 'entire policy' was considered vague and ambiguous, which explained why the HOA only provided declarations and exclusion pages rather than the full policy.
Alj Quote
While Petitioner contends that she only received some of the documents she requested, the record further reflects that she never asked for the Association’s entire insurance policy, only “HOA Insurance Policy Information,” which was vague and ambiguous.
Legal Basis
Findings of Fact
Topic Tags
records request
best practices
homeowner responsibilities
Question
If I win my case against the HOA at a hearing, will I get my filing fee back?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse your filing fee.
Detailed Answer
If the petition is granted and a violation is found, the ALJ has the authority to order the Respondent (HOA) to reimburse the Petitioner's filing fee in certified funds.
Alj Quote
IT IS FURTHER ORDERED that Respondent shall reimburse Petitioners’ filing fee (e.g. $500.00) in certified funds.
Legal Basis
Order
Topic Tags
remedies
fees
reimbursement
Question
Will the HOA automatically have to pay a civil penalty if they are found in violation?
Short Answer
Not necessarily. The judge may decide not to assess a civil penalty even if a violation is found.
Detailed Answer
Finding a violation does not automatically result in a fine. The ALJ has discretion regarding civil penalties. In this instance, despite finding a violation regarding records, the judge ordered compliance and fee reimbursement but explicitly chose not to assess a civil penalty.
Alj Quote
IT IS FURTHER ORDERED that a civil penalty shall not be assessed against Respondent in this matter.
Legal Basis
Order
Topic Tags
penalties
civil penalty
enforcement
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The Petitioner (homeowner) bears the burden of proof.
Detailed Answer
The homeowner filing the complaint must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means they must show it is more probable than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1258.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Topic Tags
procedure
burden of proof
evidence
Question
Can I designate someone else to inspect the HOA records for me?
Short Answer
Yes, a member can designate a representative in writing.
Detailed Answer
The statute allows records to be examined by the member or any person designated by the member in writing as their representative.
Alj Quote
[A]ll financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
representation
records request
access
Case
Docket No
24F-H032-REL
Case Title
Laura R. Braglia v. Palo Verde Estates Homeowners Association, Inc.
Decision Date
2024-04-17
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Laura R. Braglia(petitioner) Appeared on her own behalf; testified as witness.
Respondent Side
Jacqueline Zipprich(property manager) Desert Realty Association Management Appeared on behalf of Respondent; testified as witness; also served as Statutory Agent for Respondent.
Joe Wolf(HOA president) Palo Verde Estates Homeowners Association, Inc. HOA Board President.
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings Presiding Administrative Law Judge.
Susan Nicolson(commissioner) Arizona Department of Real Estate Recipient of the recommended order.
Vivian Nunes(ADRE staff) Arizona Department of Real Estate Recipient of the recommended order ([email protected]).
D. Jones(ADRE staff) Arizona Department of Real Estate Listed as recipient of the recommended order ([email protected]).
L. Abril(ADRE staff) Arizona Department of Real Estate Listed as recipient of the recommended order ([email protected]).
M. Neat(ADRE staff) Arizona Department of Real Estate Listed as recipient of the recommended order ([email protected]).
A. Kowaleski(ADRE staff) Arizona Department of Real Estate Listed as recipient of the recommended order ([email protected]).
G. Osborn(ADRE staff) Arizona Department of Real Estate Listed as recipient of the recommended order ([email protected]).
Petitioner sustained its burden of proof establishing that Respondents violated CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 by operating a cat rescue business (VKNR) from their residence, which involved unauthorized commercial activity, excessive non-pet animals, and creating a nuisance. Violation of 7.29 was not established. The petition was granted.
Key Issues & Findings
Violation of CC&Rs by operating an unauthorized business out of their home and housing dozens of cats in excess of a reasonable number of household pets, creating a nuisance.
Respondents operated a nonprofit cat rescue (VKNR) from their single-family residence, housing 50+ cats in a 3-car garage, which constituted an unauthorized commercial use, exceeded a reasonable number of pets, and created traffic and waste nuisances.
Orders: Petitioner's petition is granted. Respondents must henceforth abide by CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs section 7.2
CC&Rs section 7.3
CC&Rs section 7.25
CC&Rs section 7.26
CC&Rs section 7.28
CC&Rs section 7.31
Analytics Highlights
Topics: Home Business, Pets/Animals, Nuisance, CC&Rs, Enforcement, HOA
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. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H003-REL Decision – 1094853.pdf
Uploaded 2026-01-23T18:00:39 (51.0 KB)
24F-H003-REL Decision – 1113338.pdf
Uploaded 2026-01-23T18:00:44 (49.4 KB)
24F-H003-REL Decision – 1125372.pdf
Uploaded 2026-01-23T18:00:48 (65.5 KB)
24F-H003-REL Decision – 1147484.pdf
Uploaded 2026-01-23T18:00:51 (184.8 KB)
Study Guide – 24F-H003-REL
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24F-H003-REL
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In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
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Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 24F-H003-REL
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24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Anthony Rossetti(petitioner attorney, property manager) Rossetti Management & Realty Services Represented Petitioner and owned the newly hired management company.
Douglas Karolak(witness, homeowner) VVE-Casa Grande HOA Member Testified on behalf of Petitioner.
Nicole Elliot(property manager) Norris Management Former HOA management committee/manager who issued warning letters.
CD Mai(homeowner/neighbor) VVE-Casa Grande HOA Member Mentioned by Karolak as a vocal opponent/adjacent neighbor to the Eitels.
Respondent Side
Duane Eitel(respondent, witness) VVE-Casa Grande HOA Member Referred to as Duane S Eitel in earlier documents; DE in the decision.
Mary Eitel(respondent) VVE-Casa Grande HOA Member, CEO/Director of Valley Kitten Nursery & Rescue Inc. Referred to as Mary L Eitel in earlier documents.
Kevin Harper(respondent attorney) Harper Law, PLC
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Susan Nicolson(commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
vnunez(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
labril(ADRE staff) Arizona Department of Real Estate
Christopher Sinco(code compliance officer) Pinal County Animal Control Involved in the 2017/2018 county inspection.
Other Participants
Scott Lenderman(property manager) HOA management administrator (prior to Rossetti) Mentioned as the first HOA management administrator.
Petitioners prevailed on both filed issues: the Respondent's conditional approval of the flagpole violated CC&Rs and statute, and the Violation Notice regarding the building envelope was improper as Petitioners were found to be in compliance (17,451 sq ft vs. 22,000 sq ft maximum). Respondent was ordered to reimburse the $1,000 filing fee. Request for civil penalties was denied.
Key Issues & Findings
Conditional approval of portable flagpole
Respondent conditionally approved Petitioners' DMR for a portable flagpole, but the conditions placed (limiting height, restricting mobility, and requiring placement on the side of the house) were outside the authority granted by the CC&Rs and violated ARIZ. REV. STAT. § 33-1808, which protects the display of the American flag in front or back yards. Petitioner sustained burden of proof.
Orders: Respondent must abide by the statute; civil penalty denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1808(B)
CC&Rs Design Guidelines Section II(O)
Violation Notice regarding Building Envelope compliance
Respondent sent a Violation Notice claiming Petitioners' building envelope was 38,000 square feet, exceeding the 22,000 square foot maximum limit defined in DG § III(A). The evidence established Petitioners' actual building envelope was 17,451 square feet, based on a superior 'boots on the ground' survey, proving no violation occurred. Petitioner sustained burden of proof.
Orders: Petitioners' building envelope did not violate the CC&Rs maximum limit; civil penalty denied.
Can my HOA prohibit me from displaying the American flag in my front or back yard?
Short Answer
No. Arizona law prevents HOAs from prohibiting the outdoor display of the American flag in front or back yards, regardless of what community documents say.
Detailed Answer
The decision affirms that notwithstanding community documents, an association cannot prohibit the display of the American flag in the front or backyard. In this case, the HOA's attempt to restrict the flag to the side of the house was found to violate state statute.
Alj Quote
Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor front yard or backyard display of . . . [t]he American flag.
Legal Basis
ARIZ. REV. STAT. § 33-1808(A)
Topic Tags
flags
federal/state rights
homeowner rights
Question
Can the HOA restrict the height or mobility of my flagpole if the CC&Rs don't specifically allow them to?
Short Answer
No. If the CC&Rs do not grant the authority to restrict flagpole height or mobility, the HOA cannot impose those conditions.
Detailed Answer
The ALJ found that the HOA violated the CC&Rs by placing conditions on a flagpole approval—specifically height limits and mobility restrictions—that were not authorized by the governing documents.
Alj Quote
Ms. Rawlette admitted the flag pole height and mobility restrictions were inappropriate because the CC&Rs do not grant Respondent authority to restrict flag poles in this manner.
Legal Basis
CC&Rs Interpretation
Topic Tags
architectural control
CC&Rs
flags
Question
If I win my hearing against the HOA, do I get my filing fee back?
Short Answer
Yes. If the petitioner prevails in the hearing, the judge is required to order the HOA to reimburse the filing fee.
Detailed Answer
The decision explicitly states that if a petitioner prevails, the administrative law judge shall order the respondent (HOA) to pay the petitioner the filing fee required by statute.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
reimbursement
prevailing party
Question
Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the rules?
Short Answer
No. Civil penalties may be denied if the violation was due to miscommunication or lack of malicious intent rather than ongoing harassment.
Detailed Answer
Even though the HOA violated the statute regarding flags, the judge denied civil penalties because the violation resulted from a miscommunication by the management company rather than a malicious harassment campaign.
Alj Quote
Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties. The flag pole issue was not an ongoing repetitive harassment campaign, rather, it was miscommunication between the Management Company and Respondent.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
civil penalties
fines
harassment
Question
In a dispute over land measurements (like a building envelope), is an aerial survey or an in-person survey better?
Short Answer
An in-person ('boots on the ground') survey is considered superior to an aerial-only survey.
Detailed Answer
When determining if a homeowner exceeded a building envelope, the ALJ found that an in-person survey was more reliable than an analysis based solely on aerial imagery.
Alj Quote
Mr. McLain and Mr. Teague agreed Mr. McLain’s “boots on the ground” survey is superior to an aerial only survey.
Legal Basis
Evidentiary Standards
Topic Tags
evidence
property disputes
surveys
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) has the burden to prove the HOA violated the statute or documents by a preponderance of the evidence.
Detailed Answer
The decision clarifies that the party bringing the case bears the burden of proof. This means the homeowner must show that their claims are more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal procedure
Question
What types of disputes can the Arizona Department of Real Estate hear?
Short Answer
Disputes between owners and associations concerning violations of community documents or statutes regulating planned communities.
Detailed Answer
The Department has jurisdiction to hear petitions from owners or associations regarding violations of CC&Rs or state statutes, provided the proper filing procedures are followed.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
ARIZ. REV. STAT. § 32-2199
Topic Tags
jurisdiction
ADRE authority
Case
Docket No
24F-H019-REL
Case Title
Schafer, Kevin W. & Lawton, Patricia A. v Sycamore Springs Homeowners Association, INC.
Decision Date
2024-01-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA prohibit me from displaying the American flag in my front or back yard?
Short Answer
No. Arizona law prevents HOAs from prohibiting the outdoor display of the American flag in front or back yards, regardless of what community documents say.
Detailed Answer
The decision affirms that notwithstanding community documents, an association cannot prohibit the display of the American flag in the front or backyard. In this case, the HOA's attempt to restrict the flag to the side of the house was found to violate state statute.
Alj Quote
Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor front yard or backyard display of . . . [t]he American flag.
Legal Basis
ARIZ. REV. STAT. § 33-1808(A)
Topic Tags
flags
federal/state rights
homeowner rights
Question
Can the HOA restrict the height or mobility of my flagpole if the CC&Rs don't specifically allow them to?
Short Answer
No. If the CC&Rs do not grant the authority to restrict flagpole height or mobility, the HOA cannot impose those conditions.
Detailed Answer
The ALJ found that the HOA violated the CC&Rs by placing conditions on a flagpole approval—specifically height limits and mobility restrictions—that were not authorized by the governing documents.
Alj Quote
Ms. Rawlette admitted the flag pole height and mobility restrictions were inappropriate because the CC&Rs do not grant Respondent authority to restrict flag poles in this manner.
Legal Basis
CC&Rs Interpretation
Topic Tags
architectural control
CC&Rs
flags
Question
If I win my hearing against the HOA, do I get my filing fee back?
Short Answer
Yes. If the petitioner prevails in the hearing, the judge is required to order the HOA to reimburse the filing fee.
Detailed Answer
The decision explicitly states that if a petitioner prevails, the administrative law judge shall order the respondent (HOA) to pay the petitioner the filing fee required by statute.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
reimbursement
prevailing party
Question
Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the rules?
Short Answer
No. Civil penalties may be denied if the violation was due to miscommunication or lack of malicious intent rather than ongoing harassment.
Detailed Answer
Even though the HOA violated the statute regarding flags, the judge denied civil penalties because the violation resulted from a miscommunication by the management company rather than a malicious harassment campaign.
Alj Quote
Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties. The flag pole issue was not an ongoing repetitive harassment campaign, rather, it was miscommunication between the Management Company and Respondent.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
civil penalties
fines
harassment
Question
In a dispute over land measurements (like a building envelope), is an aerial survey or an in-person survey better?
Short Answer
An in-person ('boots on the ground') survey is considered superior to an aerial-only survey.
Detailed Answer
When determining if a homeowner exceeded a building envelope, the ALJ found that an in-person survey was more reliable than an analysis based solely on aerial imagery.
Alj Quote
Mr. McLain and Mr. Teague agreed Mr. McLain’s “boots on the ground” survey is superior to an aerial only survey.
Legal Basis
Evidentiary Standards
Topic Tags
evidence
property disputes
surveys
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) has the burden to prove the HOA violated the statute or documents by a preponderance of the evidence.
Detailed Answer
The decision clarifies that the party bringing the case bears the burden of proof. This means the homeowner must show that their claims are more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal procedure
Question
What types of disputes can the Arizona Department of Real Estate hear?
Short Answer
Disputes between owners and associations concerning violations of community documents or statutes regulating planned communities.
Detailed Answer
The Department has jurisdiction to hear petitions from owners or associations regarding violations of CC&Rs or state statutes, provided the proper filing procedures are followed.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
ARIZ. REV. STAT. § 32-2199
Topic Tags
jurisdiction
ADRE authority
Case
Docket No
24F-H019-REL
Case Title
Schafer, Kevin W. & Lawton, Patricia A. v Sycamore Springs Homeowners Association, INC.
Decision Date
2024-01-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Schafer, Kevin W.(petitioner)
Lawton, Patricia A.(petitioner/witness)
Cline, Craig L.(petitioner attorney) Udall Law
Mlan, Steven Wallace(witness/surveyor) Tucson Surveying and Mapping Expert witness for Petitioners
Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs)
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's petition, finding that the Petitioner failed to prove that the Association violated CC&Rs Section 2.1 by adopting the Residential Parking Policy. The Policy was deemed a valid clarification authorized by existing CC&R provisions (4.2(t) and 5.3).
Why this result: Petitioner failed to meet the burden of proof required to establish a violation of the governing documents.
Key Issues & Findings
Violation of CC&Rs Section 2.1 regarding adoption of Residential Parking Policy
Petitioner alleged that the Association's adoption of the Residential Parking Policy violated CC&Rs Section 2.1 because the policy used the unauthorized term 'Rules and Regulations' rather than 'restrictions,' thereby attempting to amend the CC&Rs without following the proper process, particularly concerning the use of government-owned property.
Orders: Petitioner's petition was dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA, CC&Rs, Parking Policy, Rules vs Restrictions, Burden of Proof, Planned Community
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. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H009-REL Decision – 1101544.pdf
Uploaded 2026-01-23T18:01:45 (47.0 KB)
24F-H009-REL Decision – 1111460.pdf
Uploaded 2026-01-23T18:01:48 (102.6 KB)
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Thomas P. Hommrich(petitioner) Property owner, appeared on his own behalf
Respondent Side
Quinten Cupps(HOA attorney) VIal Fotheringham, LLP Represented The Lakewood Community Association
Sandra Smith(community manager) Lakewood Community Association Witness who testified on behalf of Respondent
Neutral Parties
Brian Del Vecchio(ALJ) Office of Administrative Hearings Administrative Law Judge for the hearing and final decision
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Administrative Law Judge who issued the October 12, 2023 Order
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Moses Thompson(Judge) Judge cited in precedent case (Brian Seatic v Lake Resort Condominium)
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
labril(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
Brian Seatic(party) Party in precedent case (Brian Seatic v Lake Resort Condominium) cited during the hearing
