Tag Archives: ARIZ. REV. STAT. § 32-2199 et seq.

Virginia Guest v Bella Tierra Community Association

Posted on by

Case Summary

Case ID 24F-H007-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-11-08
Administrative Law Judge Brian Del Vecchio
Outcome partial
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Virginia Guest Counsel —
Respondent Bella Tierra Community Association Counsel Nicholas C. S. Nogami, Esq.

Alleged Violations

CC&Rs § 5.1, ARIZ. REV. STAT. § 33-1803

Outcome Summary

The petition was granted in part and denied in part. Petitioner won the claim regarding the unauthorized certified letter charges, resulting in removal of the charges and a $500.00 fee refund. Petitioner lost the claims regarding the animal restriction (chickens are banned fowl) and the failure to engage in mediation (ADR provision 9.15 was inapplicable).

Why this result: Petitioner failed to prove violations of CC&Rs § 9.1.1 and CC&Rs § 9.15. Chickens are banned as birds/fowl under CC&Rs § 3.3, and the mediation clause only applies to disputes involving Declarant Parties, not general homeowner disputes.

Key Issues & Findings

Wrongfully charging costs of certified letters/appeal response as a balance forward

Petitioner alleged Respondent wrongfully forwarded the cost of sending certified letters (categorized as a 'balance forward') onto her account without authority in the CC&Rs, violating rules for imposing fines.

Orders: Respondent ordered to pay Petitioner $500.00 of her filing fee and remove the balance forward associated with certified letter costs from her assessment.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&Rs § 5.1
  • ARIZ. REV. STAT. § 33-1803

Analytics Highlights

Topics: animal restriction, HOA enforcement, certified mail fee, dispute resolution, fines
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1803
  • CC&Rs § 9.1.1
  • CC&Rs § 3.3
  • CC&Rs § 9.15
  • CC&Rs § 5.1

Video Overview

Audio Overview

Decision Documents

24F-H007-REL Decision – 1095892.pdf

Uploaded 2026-01-23T18:01:15 (55.6 KB)

24F-H007-REL Decision – 1111192.pdf

Uploaded 2026-01-23T18:01:18 (104.5 KB)

Questions

Question

Can my HOA ban chickens even if I consider them household pets?

Short Answer

Yes. If the CC&Rs explicitly ban 'fowl' or 'poultry,' your subjective belief that they are pets does not override the objective ban.

Detailed Answer

The ALJ determined that even if a homeowner views chickens as pets akin to parakeets, if the CC&Rs explicitly ban 'fowl' or 'poultry,' that ban is enforceable. The specific classification of the animal in the documents overrides the owner's usage of the animal as a pet.

Alj Quote

Petitioner subjectively believes her chickens are pets and therefore qualify for the pet exception of the animal policy; however the CC&Rs plain language objectively bans not only birds but fowl. Chickens are both birds and fowl therefore, homeowners may not have live chickens on their property.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • chickens
  • CC&Rs interpretation
  • violations

Question

Can my HOA charge me for the cost of sending certified letters regarding a violation?

Short Answer

Not unless the CC&Rs explicitly authorize passing those specific administrative costs to the homeowner.

Detailed Answer

The ALJ ruled that an HOA cannot arbitrarily pass on administrative costs, such as certified mail fees for violation notices, unless the governing documents specifically empower them to do so. In this case, the HOA was ordered to remove the charge.

Alj Quote

Respondent failed to establish their CC&Rs empower them to forward the cost of litigation onto Petitioner prior to the completion of hearing. Therefore, Petitioner established Respondent violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803

Legal Basis

CC&Rs § 5.1; A.R.S. § 33-1803

Topic Tags

  • fines
  • fees
  • administrative costs
  • certified mail

Question

Is my HOA required to go to mediation before enforcing a rule violation?

Short Answer

It depends on the specific language of the dispute resolution clause. Some clauses only apply to disputes with the developer (Declarant), not general homeowner enforcement.

Detailed Answer

The homeowner argued that a 'Dispute Notification and Resolution Procedure' required mediation. However, the ALJ found that the specific section cited applied only to 'Declarant Parties' (the developer/builders) regarding construction or design defects, not to standard enforcement actions between the HOA and a homeowner.

Alj Quote

The CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those arising from or related to construction defects or conditions of the Project and not homeowner disputes. Because Petitioner is not a Declarant Party CC&Rs § 9.15 does not apply.

Legal Basis

CC&Rs § 9.15

Topic Tags

  • mediation
  • dispute resolution
  • procedure
  • declarant

Question

Who has the burden of proof when a homeowner challenges an HOA violation?

Short Answer

The homeowner (Petitioner) bears the burden of proving the HOA violated the governing documents or statutes.

Detailed Answer

In an administrative hearing where the homeowner files the petition, the homeowner must prove their case by a 'preponderance of the evidence,' meaning their evidence must be more convincing than the HOA's.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs § 3.3, CC&Rs § 9.15, CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803.

Legal Basis

Standard of Proof

Topic Tags

  • legal standards
  • burden of proof
  • hearings

Question

If I win part of my case against the HOA, can I get my filing fees reimbursed?

Short Answer

The ALJ may order partial reimbursement of filing fees if the petition is granted in part.

Detailed Answer

In this case, the homeowner lost the argument regarding chickens but won the argument regarding improper fees for certified letters. Consequently, the ALJ ordered the HOA to reimburse $500 of the $1500 filing fee.

Alj Quote

IT IS FURTHER ORDERED Respondent is ordered to pay Petitioner $500.00 of her $1500.00 filing fee within 30 days of the mailing date of the Administrative Law Judge Decision entered in this matter.

Legal Basis

ALJ Order

Topic Tags

  • remedies
  • filing fees
  • penalties

Question

Does an exception for 'household birds' in the CC&Rs allow me to keep chickens?

Short Answer

Likely not, if chickens are also defined as 'fowl' which are otherwise banned.

Detailed Answer

The ALJ rejected the argument that chickens fell under the exception for 'parakeets or similar household birds,' finding instead that they fell under the explicit ban on 'fowl.'

Alj Quote

Notwithstanding Petitioner’s argument that her chickens are akin to parakeets, an exception to the no animal rule in the CC&Rs, birds and fowl are explicitly banned.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • CC&Rs interpretation
  • exceptions

Case

Docket No
24F-H007-REL
Case Title
Virginia Guest v Bella Tierra Community Association
Decision Date
2023-11-08
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA ban chickens even if I consider them household pets?

Short Answer

Yes. If the CC&Rs explicitly ban 'fowl' or 'poultry,' your subjective belief that they are pets does not override the objective ban.

Detailed Answer

The ALJ determined that even if a homeowner views chickens as pets akin to parakeets, if the CC&Rs explicitly ban 'fowl' or 'poultry,' that ban is enforceable. The specific classification of the animal in the documents overrides the owner's usage of the animal as a pet.

Alj Quote

Petitioner subjectively believes her chickens are pets and therefore qualify for the pet exception of the animal policy; however the CC&Rs plain language objectively bans not only birds but fowl. Chickens are both birds and fowl therefore, homeowners may not have live chickens on their property.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • chickens
  • CC&Rs interpretation
  • violations

Question

Can my HOA charge me for the cost of sending certified letters regarding a violation?

Short Answer

Not unless the CC&Rs explicitly authorize passing those specific administrative costs to the homeowner.

Detailed Answer

The ALJ ruled that an HOA cannot arbitrarily pass on administrative costs, such as certified mail fees for violation notices, unless the governing documents specifically empower them to do so. In this case, the HOA was ordered to remove the charge.

Alj Quote

Respondent failed to establish their CC&Rs empower them to forward the cost of litigation onto Petitioner prior to the completion of hearing. Therefore, Petitioner established Respondent violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803

Legal Basis

CC&Rs § 5.1; A.R.S. § 33-1803

Topic Tags

  • fines
  • fees
  • administrative costs
  • certified mail

Question

Is my HOA required to go to mediation before enforcing a rule violation?

Short Answer

It depends on the specific language of the dispute resolution clause. Some clauses only apply to disputes with the developer (Declarant), not general homeowner enforcement.

Detailed Answer

The homeowner argued that a 'Dispute Notification and Resolution Procedure' required mediation. However, the ALJ found that the specific section cited applied only to 'Declarant Parties' (the developer/builders) regarding construction or design defects, not to standard enforcement actions between the HOA and a homeowner.

Alj Quote

The CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those arising from or related to construction defects or conditions of the Project and not homeowner disputes. Because Petitioner is not a Declarant Party CC&Rs § 9.15 does not apply.

Legal Basis

CC&Rs § 9.15

Topic Tags

  • mediation
  • dispute resolution
  • procedure
  • declarant

Question

Who has the burden of proof when a homeowner challenges an HOA violation?

Short Answer

The homeowner (Petitioner) bears the burden of proving the HOA violated the governing documents or statutes.

Detailed Answer

In an administrative hearing where the homeowner files the petition, the homeowner must prove their case by a 'preponderance of the evidence,' meaning their evidence must be more convincing than the HOA's.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs § 3.3, CC&Rs § 9.15, CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803.

Legal Basis

Standard of Proof

Topic Tags

  • legal standards
  • burden of proof
  • hearings

Question

If I win part of my case against the HOA, can I get my filing fees reimbursed?

Short Answer

The ALJ may order partial reimbursement of filing fees if the petition is granted in part.

Detailed Answer

In this case, the homeowner lost the argument regarding chickens but won the argument regarding improper fees for certified letters. Consequently, the ALJ ordered the HOA to reimburse $500 of the $1500 filing fee.

Alj Quote

IT IS FURTHER ORDERED Respondent is ordered to pay Petitioner $500.00 of her $1500.00 filing fee within 30 days of the mailing date of the Administrative Law Judge Decision entered in this matter.

Legal Basis

ALJ Order

Topic Tags

  • remedies
  • filing fees
  • penalties

Question

Does an exception for 'household birds' in the CC&Rs allow me to keep chickens?

Short Answer

Likely not, if chickens are also defined as 'fowl' which are otherwise banned.

Detailed Answer

The ALJ rejected the argument that chickens fell under the exception for 'parakeets or similar household birds,' finding instead that they fell under the explicit ban on 'fowl.'

Alj Quote

Notwithstanding Petitioner’s argument that her chickens are akin to parakeets, an exception to the no animal rule in the CC&Rs, birds and fowl are explicitly banned.

Legal Basis

CC&Rs § 3.3

Topic Tags

  • animals
  • CC&Rs interpretation
  • exceptions

Case

Docket No
24F-H007-REL
Case Title
Virginia Guest v Bella Tierra Community Association
Decision Date
2023-11-08
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Virginia Guest (petitioner)
    Appeared on her own behalf

Respondent Side

  • Nicholas C. S. Nogami (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Marcus R. Martinez (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Jamie Petty (association manager / witness)
    Platinum Management
    Association manager for Bella Tierra Community Association; also referenced as Jamie Teddy/Miss Teddy
  • Sean Moynihan (HOA attorney)
    Senology
    General counsel for Respondent; referenced in Petitioner's claims; also referred to as John Moahan

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge for the hearing and decision
  • Jenna Clark (ALJ)
    OAH
    Administrative Law Judge who issued the September 22, 2023 Order
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Email recipient of decisions/orders

Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners

Posted on by

Case Summary

Case ID 24F-H001-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-10-16
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kristeen L. Herron Counsel —
Respondent The Villages at Rancho El Dorado Homeowners Association Counsel Lydia Linsmeier

Alleged Violations

CC&Rs Article 4.4

Outcome Summary

The Administrative Law Judge concluded that Petitioner failed to establish a violation of Article 4.4 of the CC&Rs, finding that the Association's regulation of the lap pool temperature was authorized and reasonable, and dismissed the petition.

Why this result: Petitioner failed to sustain her burden of proof by a preponderance of the evidence that the Association violated CC&Rs Article 4.4. Petitioner's preference for warmer water did not establish discrimination or a rule violation.

Key Issues & Findings

Whether The Villages at Rancho El Dorado Homeowners Association (Respondent) is in violation of CC&Rs Article 4.4 for “turning off the lap pool heater … [f]or approximately one month” which Petitioner further alleges constitutes discrimination against senior residents.

Petitioner alleged the HOA violated CC&Rs Article 4.4 by turning off the lap pool heater around mid-April 2023, making the temperature too cold for her use and constituting discrimination against senior residents who rely on the pool for exercise. The ALJ found Petitioner failed to prove a violation of CC&Rs Article 4.4 or age-based discrimination.

Orders: Petitioner's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs Article 4.4
  • The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7(e)
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA Dispute, CC&R Violation, Pool Heating, Discrimination Claim, Common Area Use, 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. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-106
  • ARIZ. ADMIN. CODE R2-19-119
  • CC&Rs Article 4.4
  • CC&Rs 8.2(c)(12)
  • The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

24F-H001-REL Decision – 1089588.pdf

Uploaded 2026-01-23T18:00:27 (52.0 KB)

24F-H001-REL Decision – 1102316.pdf

Uploaded 2026-01-23T18:00:31 (136.7 KB)





Study Guide – 24F-H001-REL


{ “case”: { “docket_no”: “24F-H001-REL”, “case_title”: “Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners Association”, “decision_date”: “2023-10-16”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “In an administrative hearing, the petitioner (homeowner) is responsible for proving that the HOA violated a community document. The standard of proof is ‘preponderance of the evidence,’ which 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 violated a community document.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA rule regarding amenity usage constitute discrimination if it negatively affects senior citizens’ preferences?”, “short_answer”: “No, if the rule is applied neutrally and is within the HOA’s authority, personal preference does not equate to discrimination.”, “detailed_answer”: “The ALJ ruled that rules regarding common area maintenance (such as pool temperature) do not amount to age-based discrimination simply because they do not meet the personal preferences of senior residents, provided the HOA has the authority to govern the property use.”, “alj_quote”: “Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her preference does not amount to age-based discrimination.”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “discrimination”, “common areas”, “amenities” ] }, { “question”: “Can an HOA board adopt rules that restrict the use of common areas like pools?”, “short_answer”: “Yes, the CC&Rs typically grant the Board the power to adopt rules governing property use.”, “detailed_answer”: “The decision affirms that the HOA Board has the authority to adopt, amend, and repeal rules regarding the use of the property, including common areas, as long as those rules do not discriminate among owners and are consistent with the declaration.”, “alj_quote”: “By action of the Board, the Association may, from time to time and subject to the provisions of this Declaration, adopt, amend, and repeal rules and regulations to be known as the ‘Rules.’ The Rules may restrict and govern the use of the Property”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “HOA authority”, “rules and regulations”, “common areas” ] }, { “question”: “Does the administrative court have the power to interpret the CC&Rs as a contract?”, “short_answer”: “Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.”, “detailed_answer”: “The ALJ confirmed that the CC&Rs form an enforceable contract between the Association and the property owner, and the OAH has the legal authority to interpret this contract during a dispute.”, “alj_quote”: “Thus, the CC&Rs form an enforceable contract between the Association and each property owner… OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195”, “topic_tags”: [ “contract law”, “jurisdiction”, “CC&Rs” ] }, { “question”: “If the HOA follows its written rules regarding maintenance (e.g., heating schedules), is it liable for a violation?”, “short_answer”: “No, if the HOA acts in accordance with the established rules, there is no violation.”, “detailed_answer”: “In this case, the HOA rules specified heating the pool during the ‘winter season’ to a specific range. Because there was no evidence the HOA failed to meet these specific written requirements, the ALJ found no violation.”, “alj_quote”: “There is no evidence in the record that would support the contention that the Association failed to do so through April 2023.”, “legal_basis”: “Recreation Center Complex Rule 3.5.7(e)”, “topic_tags”: [ “maintenance”, “compliance”, “violations” ] }, { “question”: “What is the definition of ‘preponderance of the evidence’?”, “short_answer”: “It is evidence that convinces the judge the claim is ‘more probably true than not.'”, “detailed_answer”: “The decision defines this legal standard as the greater weight of the evidence, which inclines a fair mind to one side of the issue, even if it doesn’t wholly free the mind from 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”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “Does a homeowner have to pay a fee to file a petition against their HOA?”, “short_answer”: “Yes, a filing fee is required by statute.”, “detailed_answer”: “The petitioner in this case was required to tender a $500.00 filing fee to the Department of Real Estate when submitting their petition.”, “alj_quote”: “On July 07, 2023, tendered $500.00 to the Department as a filing fee for the petition at issue.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.05”, “topic_tags”: [ “fees”, “filing process”, “procedure” ] } ] }






Blog Post – 24F-H001-REL


{ “case”: { “docket_no”: “24F-H001-REL”, “case_title”: “Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners Association”, “decision_date”: “2023-10-16”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “In an administrative hearing, the petitioner (homeowner) is responsible for proving that the HOA violated a community document. The standard of proof is ‘preponderance of the evidence,’ which 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 violated a community document.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA rule regarding amenity usage constitute discrimination if it negatively affects senior citizens’ preferences?”, “short_answer”: “No, if the rule is applied neutrally and is within the HOA’s authority, personal preference does not equate to discrimination.”, “detailed_answer”: “The ALJ ruled that rules regarding common area maintenance (such as pool temperature) do not amount to age-based discrimination simply because they do not meet the personal preferences of senior residents, provided the HOA has the authority to govern the property use.”, “alj_quote”: “Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her preference does not amount to age-based discrimination.”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “discrimination”, “common areas”, “amenities” ] }, { “question”: “Can an HOA board adopt rules that restrict the use of common areas like pools?”, “short_answer”: “Yes, the CC&Rs typically grant the Board the power to adopt rules governing property use.”, “detailed_answer”: “The decision affirms that the HOA Board has the authority to adopt, amend, and repeal rules regarding the use of the property, including common areas, as long as those rules do not discriminate among owners and are consistent with the declaration.”, “alj_quote”: “By action of the Board, the Association may, from time to time and subject to the provisions of this Declaration, adopt, amend, and repeal rules and regulations to be known as the ‘Rules.’ The Rules may restrict and govern the use of the Property”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “HOA authority”, “rules and regulations”, “common areas” ] }, { “question”: “Does the administrative court have the power to interpret the CC&Rs as a contract?”, “short_answer”: “Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.”, “detailed_answer”: “The ALJ confirmed that the CC&Rs form an enforceable contract between the Association and the property owner, and the OAH has the legal authority to interpret this contract during a dispute.”, “alj_quote”: “Thus, the CC&Rs form an enforceable contract between the Association and each property owner… OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195”, “topic_tags”: [ “contract law”, “jurisdiction”, “CC&Rs” ] }, { “question”: “If the HOA follows its written rules regarding maintenance (e.g., heating schedules), is it liable for a violation?”, “short_answer”: “No, if the HOA acts in accordance with the established rules, there is no violation.”, “detailed_answer”: “In this case, the HOA rules specified heating the pool during the ‘winter season’ to a specific range. Because there was no evidence the HOA failed to meet these specific written requirements, the ALJ found no violation.”, “alj_quote”: “There is no evidence in the record that would support the contention that the Association failed to do so through April 2023.”, “legal_basis”: “Recreation Center Complex Rule 3.5.7(e)”, “topic_tags”: [ “maintenance”, “compliance”, “violations” ] }, { “question”: “What is the definition of ‘preponderance of the evidence’?”, “short_answer”: “It is evidence that convinces the judge the claim is ‘more probably true than not.'”, “detailed_answer”: “The decision defines this legal standard as the greater weight of the evidence, which inclines a fair mind to one side of the issue, even if it doesn’t wholly free the mind from 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”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “Does a homeowner have to pay a fee to file a petition against their HOA?”, “short_answer”: “Yes, a filing fee is required by statute.”, “detailed_answer”: “The petitioner in this case was required to tender a $500.00 filing fee to the Department of Real Estate when submitting their petition.”, “alj_quote”: “On July 07, 2023, tendered $500.00 to the Department as a filing fee for the petition at issue.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.05”, “topic_tags”: [ “fees”, “filing process”, “procedure” ] } ] }


Case Participants

Petitioner Side

  • Kristeen L. Herron (petitioner)
    The Villages at Rancho El Dorado Homeowners Association
    Property owner and member of the Association
  • Karen Ellis (witness)
    The Villages at Rancho El Dorado Homeowners Association
    Witness for Petitioner; property owner/member
  • LouAnne Schmidt (observer)
    Potential witness for Petitioner, not permitted to testify

Respondent Side

  • Lydia Linsmeier (HOA attorney)
    Carpenter Hazelwood Delgado & Bolen
  • Eden Cohen (HOA attorney)
    Carpenter Hazelwood Delgado & Bolen
  • April Lord (witness)
    City Property Management
    Vice President of Management Services
  • Christiano Monteiro (board member)
    The Villages at Rancho El Dorado Homeowners Association
    Board President; Testified as witness for Respondent
  • John Deck (maintenance technician)
    The Villages at Rancho El Dorado Homeowners Association
    Director of Maintenance
  • Mark (board member)
    The Villages at Rancho El Dorado Homeowners Association
    Board member mentioned making a motion
  • Heather Tiveres (property manager)
    City Property Management
    Former managing agent employee whose name was clarified in testimony

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Rosalie Lynne Emmons v. Rovey Farm Estates Homeowners Association

Posted on by

Case Summary

Case ID 23F-H055-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-22
Administrative Law Judge Brian Del Vecchio
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rosalie Lynne Emmons Counsel —
Respondent Rovey Farm Estates Homeowners Association Counsel Michael S. McLeran

Alleged Violations

CC&Rs Article 2 §§ 3.2, 3.3, and 3.11

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's petition, concluding that Petitioner failed to meet her burden of proof that the Rovey Farm Estates Homeowners Association engaged in selective enforcement regarding the shed constructed without prior approval, which violated the CC&Rs and design guidelines.

Why this result: Petitioner failed to provide sufficient evidence of selective enforcement. She admitted her shed was built without prior approval, was taller than the fence line, and was visible from the street, all of which violated the CC&Rs. The evidence presented by the Respondent showed consistent enforcement actions regarding similar violations.

Key Issues & Findings

Alleged selective, arbitrary, and capricious enforcement of CC&Rs regarding shed construction and prior approval.

Petitioner alleged that the HOA selectively enforced its shed policy against her, claiming that her denial for a shed built without prior approval and exceeding the fence height should be excused because other, similar non-compliant sheds existed in the community and were not consistently cited.

Orders: Petitioner's petition was dismissed. Petitioner's request to levy a civil penalty against Respondent was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • CC&Rs Article 2 §§ 3.2, 3.3, and 3.11
  • 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 Enforcement, Selective Enforcement, Shed, Design Guidelines, CC&Rs, Prior Approval
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.
  • CC&Rs Article 2 §§ 3.2, 3.3, and 3.11
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H055-REL Decision – 1062778.pdf

Uploaded 2026-01-23T17:57:44 (44.1 KB)

23F-H055-REL Decision – 1086088.pdf

Uploaded 2026-01-23T17:57:46 (110.9 KB)

Questions

Question

If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?

Short Answer

The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding HOA disputes, the burden falls on the homeowner to provide sufficient evidence that the HOA violated its own CC&Rs or acted arbitrarily. Merely alleging selective enforcement without sufficient proof is not enough to win the case.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs… Petitioner alleged but failed to provide sufficient evidence of Respondent’s supposed selective enforcement.

Legal Basis

Burden of Proof

Topic Tags

  • selective enforcement
  • burden of proof
  • legal procedure

Question

Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?

Short Answer

Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.

Detailed Answer

Most CC&Rs explicitly state that no construction or modification can occur without prior written approval. Admitting to building a structure without this approval constitutes a violation in itself. If the structure also violates design guidelines (e.g., height or visibility), the HOA can enforce the rules against it.

Alj Quote

Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.

Legal Basis

CC&R Violation

Topic Tags

  • architectural approval
  • unauthorized construction
  • violations

Question

If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?

Short Answer

No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.

Detailed Answer

The ALJ decision accepted testimony that while enforcement might have been reduced during a specific event like the COVID-19 pandemic, the HOA is entitled to resume enforcement of rules (such as design guidelines) once normal operations return.

Alj Quote

Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.

Legal Basis

Enforcement Discretion

Topic Tags

  • waiver
  • enforcement history
  • COVID-19

Question

Can the HOA deny my shed if it is visible from the street or taller than the fence line?

Short Answer

Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.

Detailed Answer

Violating specific physical constraints listed in the community documents, such as height restrictions relative to a fence line or visibility from public streets, are valid grounds for the HOA to find a violation and deny approval.

Alj Quote

Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.

Legal Basis

Design Guidelines

Topic Tags

  • architectural standards
  • sheds
  • visibility

Question

What is the 'standard of proof' used in these HOA hearings?

Short Answer

The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.

Detailed Answer

To win an administrative hearing against an HOA, a homeowner does not need to prove their case beyond a reasonable doubt. They must simply show that their claim is 'more probably true than not'—essentially carrying greater evidentiary weight than the opposing side.

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

Evidentiary Standard

Topic Tags

  • legal definitions
  • evidence
  • hearings

Question

Where can I file a legal dispute against my HOA without going to civil court?

Short Answer

Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.

Detailed Answer

The ADRE has jurisdiction over disputes between owners and planned community associations regarding violations of community documents or statutes. The case is then typically heard by the Office of Administrative Hearings.

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…

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • ADRE
  • dispute resolution

Case

Docket No
23F-H055-REL
Case Title
Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date
2023-08-22
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?

Short Answer

The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding HOA disputes, the burden falls on the homeowner to provide sufficient evidence that the HOA violated its own CC&Rs or acted arbitrarily. Merely alleging selective enforcement without sufficient proof is not enough to win the case.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs… Petitioner alleged but failed to provide sufficient evidence of Respondent’s supposed selective enforcement.

Legal Basis

Burden of Proof

Topic Tags

  • selective enforcement
  • burden of proof
  • legal procedure

Question

Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?

Short Answer

Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.

Detailed Answer

Most CC&Rs explicitly state that no construction or modification can occur without prior written approval. Admitting to building a structure without this approval constitutes a violation in itself. If the structure also violates design guidelines (e.g., height or visibility), the HOA can enforce the rules against it.

Alj Quote

Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.

Legal Basis

CC&R Violation

Topic Tags

  • architectural approval
  • unauthorized construction
  • violations

Question

If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?

Short Answer

No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.

Detailed Answer

The ALJ decision accepted testimony that while enforcement might have been reduced during a specific event like the COVID-19 pandemic, the HOA is entitled to resume enforcement of rules (such as design guidelines) once normal operations return.

Alj Quote

Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.

Legal Basis

Enforcement Discretion

Topic Tags

  • waiver
  • enforcement history
  • COVID-19

Question

Can the HOA deny my shed if it is visible from the street or taller than the fence line?

Short Answer

Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.

Detailed Answer

Violating specific physical constraints listed in the community documents, such as height restrictions relative to a fence line or visibility from public streets, are valid grounds for the HOA to find a violation and deny approval.

Alj Quote

Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.

Legal Basis

Design Guidelines

Topic Tags

  • architectural standards
  • sheds
  • visibility

Question

What is the 'standard of proof' used in these HOA hearings?

Short Answer

The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.

Detailed Answer

To win an administrative hearing against an HOA, a homeowner does not need to prove their case beyond a reasonable doubt. They must simply show that their claim is 'more probably true than not'—essentially carrying greater evidentiary weight than the opposing side.

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

Evidentiary Standard

Topic Tags

  • legal definitions
  • evidence
  • hearings

Question

Where can I file a legal dispute against my HOA without going to civil court?

Short Answer

Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.

Detailed Answer

The ADRE has jurisdiction over disputes between owners and planned community associations regarding violations of community documents or statutes. The case is then typically heard by the Office of Administrative Hearings.

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…

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • ADRE
  • dispute resolution

Case

Docket No
23F-H055-REL
Case Title
Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date
2023-08-22
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Rosalie Lynne Emmons (petitioner)
    Rovey Farm Estates property owner; appeared on her own behalf

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon & Hudson, PLC
    Appeared on behalf of Rovey Farm Estates Homeowners Association
  • Matt Johnson (community manager/witness)
    Envision Community Management
    Community Manager for Rovey Farm Estate; Appeared as a witness for the Association
  • Mark Schmidt (HOA staff)
    Envision Community Management
    Completed exhibit list (Exhibit 7) used by Respondent
  • Carrie Schmidt (compliance officer)
    Envision Community Management
    Compliance inspector responsible for citing violations

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    ADRE
    Arizona Department of Real Estate Commissioner

Other Participants

  • AHansen (ADRE staff)
    ADRE
    Recipient of decision transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of decision transmission
  • djones (ADRE staff)
    ADRE
    Recipient of decision transmission
  • labril (ADRE staff)
    ADRE
    Recipient of decision transmission
  • Jose Garcia (homeowner/applicant)
    Rovey Farm Estates Homeowner whose shed application was denied
  • Gilbert Bar (homeowner/applicant)
    Rovey Farm Estates Homeowner whose shed application was denied
  • Jane Kim (homeowner/applicant)
    Rovey Farm Estates Homeowner whose shed application (with MJ Kim) was denied
  • MJ Kim (homeowner/applicant)
    Rovey Farm Estates Homeowner whose shed application (with Jane Kim) was denied

Harry G. Turner v. MountainGate Home Owners Association, Inc.

Posted on by

Case Summary

Case ID 23F-H045-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-14
Administrative Law Judge Brian Del Vecchio
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Harry G. Turner Counsel —
Respondent Mountain Gate Home Owners Association, Inc. Counsel —

Alleged Violations

Article 10 Section 4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Harry G. Turner failed to meet his burden of proof to demonstrate that the Mountain Gate Home Owners Association, Inc. violated Article 10 Section 4 of the CC&Rs by planning drainage construction in Tract H.

Why this result: Petitioner failed to provide sufficient evidence to reconcile conflicting designations of Tract H in the plat map (Preserved/Active Open Space vs. Drainage), thus failing to prove that the drainage ditch constituted a prohibited change of use.

Key Issues & Findings

Required membership vote for common area use change (Tract H drainage ditch)

Petitioner alleged the HOA (Respondent) violated CC&Rs Article 10 Section 4 by planning to dig a drainage ditch in Tract H, arguing this was a change of use requiring a 2/3rds membership vote. Respondent argued Tract H was already designated for drainage in the 'Conveyance and Dedication' portion of the plat map, negating the need for a vote.

Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1804
  • 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.
  • 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)
  • Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project

Analytics Highlights

Topics: HOA, CC&R, Drainage, Common Area, Change of Use, Burden of Proof, Planned Community, Plat Map
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 33-1804
  • 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.
  • 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)
  • Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project

Video Overview

Audio Overview

https://open.spotify.com/episode/1KAeIyRL8kVCBXnkJx4Gy7

Decision Documents

23F-H045-REL Decision – 1055488.pdf

Uploaded 2026-01-23T17:56:36 (49.7 KB)

23F-H045-REL Decision – 1057334.pdf

Uploaded 2026-01-23T17:56:40 (43.7 KB)

23F-H045-REL Decision – 1083773.pdf

Uploaded 2026-01-23T17:56:42 (105.1 KB)

Questions

Question

Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • legal standards
  • procedure

Question

What is the legal standard of evidence required to win a case against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.

Detailed Answer

The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.

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

Preponderance of Evidence

Topic Tags

  • evidence
  • legal definitions

Question

What happens if community documents (like a plat map) contain conflicting descriptions of a common area?

Short Answer

If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.

Detailed Answer

In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.

Alj Quote

Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.

Legal Basis

Burden of Proof

Topic Tags

  • document interpretation
  • common areas

Question

Does the Department of Real Estate have jurisdiction over CC&R disputes?

Short Answer

Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.

Detailed Answer

Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.

Alj Quote

This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • regulatory authority

Question

If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?

Short Answer

Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.

Detailed Answer

The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.

Alj Quote

Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.

Legal Basis

CC&R Interpretation

Topic Tags

  • common areas
  • voting rights

Question

Can I request a civil penalty be levied against my HOA?

Short Answer

You can request it, but it will be denied if you fail to prove the violation.

Detailed Answer

In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • remedies

Case

Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • legal standards
  • procedure

Question

What is the legal standard of evidence required to win a case against an HOA?

Short Answer

The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.

Detailed Answer

The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.

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

Preponderance of Evidence

Topic Tags

  • evidence
  • legal definitions

Question

What happens if community documents (like a plat map) contain conflicting descriptions of a common area?

Short Answer

If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.

Detailed Answer

In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.

Alj Quote

Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.

Legal Basis

Burden of Proof

Topic Tags

  • document interpretation
  • common areas

Question

Does the Department of Real Estate have jurisdiction over CC&R disputes?

Short Answer

Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.

Detailed Answer

Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.

Alj Quote

This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • jurisdiction
  • regulatory authority

Question

If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?

Short Answer

Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.

Detailed Answer

The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.

Alj Quote

Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.

Legal Basis

CC&R Interpretation

Topic Tags

  • common areas
  • voting rights

Question

Can I request a civil penalty be levied against my HOA?

Short Answer

You can request it, but it will be denied if you fail to prove the violation.

Detailed Answer

In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Order

Topic Tags

  • penalties
  • remedies

Case

Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Harry G. Turner (petitioner)
    Appeared on his own behalf

Respondent Side

  • Michael Luden (president/representative)
    Mountain Gate Home Owners Association, Inc.
    Appeared on behalf of Respondent. Identified as President of the Homeowners Association
  • Brenda Anderson (witness/secretary)
    Mountain Gate Home Owners Association, Inc.
    Witness for Respondent; Secretary of Mountain Gate Homeowners Association
  • Kelly Callahan (HOA attorney)
    HOA's attorney who wrote an email regarding the drainage ditch proposal

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Listed in transmission list
  • Jeremiah Lloyd (Community Development Director)
    Pinetop Lakeside
    Community Development Director for Pinetop Lakeside
  • Bill Best (County Engineer)
    Navajo County
    Navajo County Engineer
  • Emory Ellsworth (engineer)
    Painted Sky Engineering and Surveying
    Engineer consulted by Petitioner
  • John Murphy (engineer)
    Murphy Engineering Group
    Engineer whose company provided original certified plans

Other Participants

  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Listed in transmission list
  • Ken Anderson (community member)
    Mentioned as being present when a document was allegedly falsified
  • Gary Lao (developer)
    Original developer

Brenda Norman v. Rancho Del Lago Community Association

Posted on by

Case Summary

Case ID 23F-H046-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-11
Administrative Law Judge Jenna Clark
Outcome no
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brenda Norman Counsel —
Respondent Rancho Del Lago Community Association Counsel Michael S. McLeran, Esq.

Alleged Violations

Appendix B, Section 5

Outcome Summary

The petition was dismissed with prejudice because Petitioner failed to meet her burden of proof that the HOA violated the community documents. The ALJ found that forcing enforcement of a discretionary restriction after decades of inaction would be unreasonable and that the matter was essentially a neighbor-to-neighbor dispute.

Why this result: Petitioner failed to establish a community document violation by a preponderance of the evidence; enforcement would be an unreasonable exercise of discretion due to long-standing inaction; and there was no legal avenue for the HOA to compel removal of the private property (trees).

Key Issues & Findings

Failure to enforce Prohibited Plant List (Oleanders and Palm Trees exceeding 10 feet)

Petitioner alleged the HOA violated Appendix B, Section 5 of the CC&Rs by failing to enforce the Prohibited Plant List and require her rear neighbors to remove oleander and palm trees that exceeded height guidelines and caused nuisance and damage.

Orders: Petitioner’s petition is dismissed with prejudice.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01(A)(1)
  • 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: homeowner dispute, prohibited plants, HOA discretion, failure to enforce, neighbor dispute, CC&Rs, oleander, palm trees
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.01(A)(1)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H046-REL Decision – 1049756.pdf

Uploaded 2026-01-23T17:56:49 (41.2 KB)

23F-H046-REL Decision – 1049882.pdf

Uploaded 2026-01-23T17:56:52 (47.2 KB)

23F-H046-REL Decision – 1055238.pdf

Uploaded 2026-01-23T17:56:55 (50.0 KB)

23F-H046-REL Decision – 1057283.pdf

Uploaded 2026-01-23T17:56:58 (50.3 KB)

23F-H046-REL Decision – 1058121.pdf

Uploaded 2026-01-23T17:57:01 (52.9 KB)

23F-H046-REL Decision – 1059849.pdf

Uploaded 2026-01-23T17:57:04 (52.5 KB)

23F-H046-REL Decision – 1072130.pdf

Uploaded 2026-01-23T17:57:08 (49.8 KB)

23F-H046-REL Decision – 1082955.pdf

Uploaded 2026-01-23T17:57:11 (155.5 KB)

Questions

Question

Can I force my HOA to remove a neighbor's plants that violate the community's design guidelines?

Short Answer

Generally, no. The HOA often lacks the legal authority to enter private property to remove landscaping, even if it violates guidelines.

Detailed Answer

The ALJ found that there was no legal way for the HOA to remove trees or shrubs from a neighbor's private backyard, nor compel them to be removed, particularly when the HOA does not own or maintain that specific property.

Alj Quote

Regardless, there is no legal avenue by which Respondent could legally remove Neighbors’ backyard Oleanders and/or Palm Trees, or have them removed.

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • enforcement
  • landscaping
  • private property

Question

Does the HOA have to enforce a rule if they haven't enforced it for many years?

Short Answer

No. Sudden enforcement after long periods of inaction may be considered unreasonable.

Detailed Answer

If an HOA has ignored a specific restriction (like a height limit on plants) for decades, enforcing it suddenly against a single homeowner can be seen as an unreasonable exercise of authority and a violation of due process.

Alj Quote

Enforcement, in the face of decades of intentional inaction, would be an unreasonable exercise of authority and a likely deprivation of Neighbors’ due process rights.

Legal Basis

Due Process / Laches / Waiver

Topic Tags

  • selective enforcement
  • waiver
  • due process

Question

Will the Arizona Department of Real Estate resolve a dispute between me and my neighbor?

Short Answer

No. The Department does not have jurisdiction over disputes solely between homeowners.

Detailed Answer

The administrative hearing process is for disputes between a homeowner and the association. It does not cover disputes between two owners where the association is not a party.

Alj Quote

The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01(A)(1)

Topic Tags

  • jurisdiction
  • neighbor disputes
  • ADRE

Question

Is the HOA required to mediate disputes between neighbors?

Short Answer

Typically, no. Governing documents usually do not require the HOA to pick sides or resolve neighbor conflicts.

Detailed Answer

Unless the CC&Rs or guidelines specifically state otherwise, the HOA is not obligated to resolve disputes between neighbors or take one side.

Alj Quote

Moreover, neither the CC&Rs nor the Design Guidelines require Respondent to mediate or resolve a dispute between neighbors by taking one side or the other.

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

  • mediation
  • neighbor disputes
  • HOA obligations

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

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

Detailed Answer

The petitioner (homeowner) must show that it is more likely than not that the HOA violated the governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated one or more provisions of the Association’s Design Guidelines.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

If my neighbor's trees are causing a nuisance (like debris in my pool), does the HOA have to act?

Short Answer

Not necessarily. Subjective hardship does not automatically mandate HOA enforcement if the rules are discretionary.

Detailed Answer

Even if a neighbor's landscaping causes inconvenience or subjective hardship to another homeowner, the HOA is not required to enforce discretionary guidelines, especially if they have historically not done so.

Alj Quote

It is clear that plant debris from Neighbors’ backyard is causing Petitioner subjective hardship(s) and inconveniences, which amount to a perceived nuisance… [however] Respondent is not required to enforce a flora/height restriction in this instance.

Legal Basis

Discretionary Enforcement

Topic Tags

  • nuisance
  • maintenance
  • discretion

Case

Docket No
23F-H046-REL
Case Title
Brenda Norman vs. Rancho Del Lago Community Association
Decision Date
2023-08-11
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can I force my HOA to remove a neighbor's plants that violate the community's design guidelines?

Short Answer

Generally, no. The HOA often lacks the legal authority to enter private property to remove landscaping, even if it violates guidelines.

Detailed Answer

The ALJ found that there was no legal way for the HOA to remove trees or shrubs from a neighbor's private backyard, nor compel them to be removed, particularly when the HOA does not own or maintain that specific property.

Alj Quote

Regardless, there is no legal avenue by which Respondent could legally remove Neighbors’ backyard Oleanders and/or Palm Trees, or have them removed.

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • enforcement
  • landscaping
  • private property

Question

Does the HOA have to enforce a rule if they haven't enforced it for many years?

Short Answer

No. Sudden enforcement after long periods of inaction may be considered unreasonable.

Detailed Answer

If an HOA has ignored a specific restriction (like a height limit on plants) for decades, enforcing it suddenly against a single homeowner can be seen as an unreasonable exercise of authority and a violation of due process.

Alj Quote

Enforcement, in the face of decades of intentional inaction, would be an unreasonable exercise of authority and a likely deprivation of Neighbors’ due process rights.

Legal Basis

Due Process / Laches / Waiver

Topic Tags

  • selective enforcement
  • waiver
  • due process

Question

Will the Arizona Department of Real Estate resolve a dispute between me and my neighbor?

Short Answer

No. The Department does not have jurisdiction over disputes solely between homeowners.

Detailed Answer

The administrative hearing process is for disputes between a homeowner and the association. It does not cover disputes between two owners where the association is not a party.

Alj Quote

The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.

Legal Basis

ARIZ. REV. STAT. § 32-2199.01(A)(1)

Topic Tags

  • jurisdiction
  • neighbor disputes
  • ADRE

Question

Is the HOA required to mediate disputes between neighbors?

Short Answer

Typically, no. Governing documents usually do not require the HOA to pick sides or resolve neighbor conflicts.

Detailed Answer

Unless the CC&Rs or guidelines specifically state otherwise, the HOA is not obligated to resolve disputes between neighbors or take one side.

Alj Quote

Moreover, neither the CC&Rs nor the Design Guidelines require Respondent to mediate or resolve a dispute between neighbors by taking one side or the other.

Legal Basis

CC&Rs / Design Guidelines

Topic Tags

  • mediation
  • neighbor disputes
  • HOA obligations

Question

What is the burden of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

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

Detailed Answer

The petitioner (homeowner) must show that it is more likely than not that the HOA violated the governing documents.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated one or more provisions of the Association’s Design Guidelines.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • procedure

Question

If my neighbor's trees are causing a nuisance (like debris in my pool), does the HOA have to act?

Short Answer

Not necessarily. Subjective hardship does not automatically mandate HOA enforcement if the rules are discretionary.

Detailed Answer

Even if a neighbor's landscaping causes inconvenience or subjective hardship to another homeowner, the HOA is not required to enforce discretionary guidelines, especially if they have historically not done so.

Alj Quote

It is clear that plant debris from Neighbors’ backyard is causing Petitioner subjective hardship(s) and inconveniences, which amount to a perceived nuisance… [however] Respondent is not required to enforce a flora/height restriction in this instance.

Legal Basis

Discretionary Enforcement

Topic Tags

  • nuisance
  • maintenance
  • discretion

Case

Docket No
23F-H046-REL
Case Title
Brenda Norman vs. Rancho Del Lago Community Association
Decision Date
2023-08-11
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brenda Norman (petitioner)
    Appeared on her own behalf
  • Zvena Norman (potential witness)
    On standby as a potential witness for Petitioner
  • David Norman (associated party)
    Petitioner's husband; co-petitioner in prior litigation referenced during the hearing

Respondent Side

  • Michael S. McLeran (HOA attorney)
    Childers Hanlon 7 Hudson, PLC
    Counsel for Rancho Del Lago Community Association
  • Spencer Broad (witness, property manager)
    HA managed solutions
    Community Manager for Rancho Del Lago Community Association; also spelled Brod
  • Phil Brown (HOA attorney)
    Attorney referenced by Petitioner regarding a 2018 letter
  • Eric (compliance manager)
    HOA management solutions
    Compliance Manager since 2009; full last name withheld from the record

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge presiding over the matter
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Judge Mahalski (ALJ (prior case))
    Office of Administrative Hearings
    Administrative Law Judge in 2019 litigation referenced during the hearing

Other Participants

  • Cindy White (neighbor)
    Owner of the plants subject to the dispute
  • Ray White (neighbor)
    Owner of the plants subject to the dispute
  • Nathan Tennyson (former HOA attorney)
    Former in-house counsel referenced by Petitioner

Richard K. Morris v. The Townes at Paradise Valley Landings

Posted on by

Case Summary

Case ID 23F-H056-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-07
Administrative Law Judge Brian Del Vecchio
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard K. Morris Counsel —
Respondent The Townes at Paradise Valley Landings Counsel —

Alleged Violations

Section 9.2 of the CC&Rs

Outcome Summary

The ALJ affirmed the Petitioner's claim that the HOA violated CC&Rs Section 9.2 by forcing the removal of a previously approved security light. The HOA was ordered to comply with the CC&Rs and reimburse the $500 filing fee. However, the Petitioner's request for a civil penalty was denied.

Key Issues & Findings

Respondent required permanent removal of pre-approved security light in violation of CC&Rs Section 9.2.

Petitioner had Architectural Review Committee (ARC) approval from 2010 to install a security light on the shed fascia (a common area). Respondent HOA later required its removal, arguing their fiduciary duty and a new roofing warranty (2023) voided the prior approval. The ALJ found the HOA failed to perform due diligence regarding the pre-existing ARC approval before contracting the new work and violated CC&Rs Section 9.2, which allows rebuilding in accordance with previously approved plans.

Orders: Respondent is directed to comply with the provisions of Section 9.2 of the CC&Rs and reimburse Petitioner's filing fee of $500.00. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • 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. § 33-1804
  • 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)

Analytics Highlights

Topics: ARC Approval, CC&R Violation, Fiduciary Duty, Homeowner Victory, Warranty Voidance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • 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. § 33-1804
  • 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)

Video Overview

Audio Overview

Decision Documents

23F-H056-REL Decision – 1073539.pdf

Uploaded 2026-01-23T17:57:57 (51.9 KB)

23F-H056-REL Decision – 1080973.pdf

Uploaded 2026-01-23T17:58:02 (110.3 KB)

Questions

Question

Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?

Short Answer

No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.

Detailed Answer

The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.

Alj Quote

While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?

Short Answer

No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.

Detailed Answer

In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.

Alj Quote

No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

The petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely 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. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

Can I be reimbursed for the filing fee if I win my case against the HOA?

Short Answer

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

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Does winning the case automatically mean the HOA will be fined a civil penalty?

Short Answer

No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.

Detailed Answer

Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

Can an HOA claim a new contractor's warranty voids my old approval?

Short Answer

Not if the HOA failed to check for existing approvals before signing the contract.

Detailed Answer

The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.

Alj Quote

Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

Docket No
23F-H056-REL
Case Title
Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date
2023-08-07
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an HOA revoke a previous architectural approval because of a new maintenance policy or warranty?

Short Answer

No, the HOA cannot simply revoke a prior approval to satisfy a new fiduciary duty or warranty if they failed to consider existing approvals first.

Detailed Answer

The ALJ ruled that an HOA cannot claim that its fiduciary duty to protect common area warranties overrides a homeowner's valid, prior architectural authorization. The HOA is responsible for performing due diligence regarding existing approvals before entering into contracts that might conflict with them.

Alj Quote

While it may be true Respondent had a fiduciary duty to all the homeowners to protect their investment in maintenance of the common area roofs, this does not entitle Respondent to fail to do their due diligence and disavow prior agreements.

Legal Basis

Contract Law Principles / Due Diligence

Topic Tags

  • architectural approval
  • fiduciary duty
  • maintenance

Question

If I have to remove an approved improvement for HOA repairs, do I need permission to reinstall it?

Short Answer

No, if the CC&Rs state that rebuilding according to previously approved plans does not require new approval.

Detailed Answer

In this case, the CC&Rs explicitly stated that no new permission was needed to rebuild improvements that followed plans previously approved by the committee. Therefore, the homeowner was entitled to reinstall the approved item.

Alj Quote

No permission or approval shall be required to rebuild in accordance with plans and specifications previously approved by the Committee.

Legal Basis

CC&Rs Section 9.2

Topic Tags

  • architectural approval
  • repairs
  • CC&Rs interpretation

Question

Who has the burden of proof in an HOA dispute hearing?

Short Answer

The petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner filing the petition must prove that the HOA violated the statutes or documents. The standard is a 'preponderance of the evidence,' meaning it is more likely 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. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • burden of proof
  • legal procedure

Question

Can I be reimbursed for the filing fee if I win my case against the HOA?

Short Answer

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

Detailed Answer

Upon ruling in favor of the homeowner, the judge ordered the HOA to pay back the $500.00 filing fee the homeowner paid to initiate the hearing.

Alj Quote

IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • fees
  • reimbursement
  • penalties

Question

Does winning the case automatically mean the HOA will be fined a civil penalty?

Short Answer

No, a judge may rule in favor of the homeowner but still deny a request for a civil penalty.

Detailed Answer

Although the ALJ found that the HOA violated the CC&Rs and ordered them to comply, the specific request to levy a civil penalty against the HOA was denied.

Alj Quote

IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.

Legal Basis

Administrative Discretion

Topic Tags

  • civil penalty
  • fines

Question

Can an HOA claim a new contractor's warranty voids my old approval?

Short Answer

Not if the HOA failed to check for existing approvals before signing the contract.

Detailed Answer

The HOA argued that a new roof warranty (which would be voided by penetrations) should extinguish the prior approval. The judge rejected this, noting the HOA admitted they did no due diligence to check for conflicts before signing the roofing contract.

Alj Quote

Furthermore, Respondent admitted no due diligence was performed regarding the existence of Architectural Review Committee approvals which would conflict with potential roof work before a contract was signed.

Legal Basis

Duty of Care / Contract Awareness

Topic Tags

  • warranties
  • contractor
  • due diligence

Case

Docket No
23F-H056-REL
Case Title
Richard K. Morris v The Townes at Paradise Valley Landings
Decision Date
2023-08-07
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Richard K. Morris (petitioner)
    The Townes at Paradise Valley Landings
    Appeared on his own behalf

Respondent Side

  • Joelle Lever (board member)
    The Townes at Paradise Valley Landings
    Represented the Respondent and provided testimony
  • Chelsea Hearn (board member)
    The Townes at Paradise Valley Landings
    Homeowner who complained about the light
  • alice.riesterer (management staff)
    The Management Trust Arizona

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Administrative Law Judge who signed the Order and Decision
  • Judge Svio (hearing officer)
    OAH
    Administrative Law Judge who opened the hearing
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Deborah L (ARC member)
    Association
    Association representative who approved Petitioner's request in 2010
  • AHansen (ADRE staff)
    ADRE
    Recipient of transmission
  • vnunez (ADRE staff)
    ADRE
    Recipient of transmission
  • djones (ADRE staff)
    ADRE
    Recipient of transmission
  • labril (ADRE staff)
    ADRE
    Recipient of transmission

Ryan McMahon v. Alhambra Terrace Condominium Association

Posted on by

Case Summary

Case ID 23F-H060-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-07
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ryan McMahon Counsel —
Respondent Alhambra Terrace Condominium Association Counsel Mike Yohler

Alleged Violations

ARIZ. REV. STAT. § 33-1221

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove by a preponderance of the evidence that the Alhambra Terrace Condominium Association violated ARIZ. REV. STAT. § 33-1221.

Why this result: Petitioner failed to fully satisfy sub-requirements 6, 7, and/or 8 of the Preliminary Architectural Approval Letter, as the documentation provided (specifically from the plumbing company and designer) lacked the necessary professional weight or specificity required by the Association to address structural and plumbing concerns.

Key Issues & Findings

Alleged violation of statute regarding denial of interior modification request.

Petitioner alleged the Association violated ARS § 33-1221 by denying his request to combine two units and add two bathrooms, claiming the denial was unsupported by facts or governing documents. The ALJ found Petitioner failed to prove the violation.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1221
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: condominium modification, HOA denial, structural integrity, plumbing concerns, burden of proof, architectural approval
Additional Citations:

  • ARIZ. REV. STAT. § 33-1221
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. Title 33, Chapter 9, Article 3
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

23F-H060-REL Decision – 1081134.pdf

Uploaded 2026-01-23T17:59:25 (189.0 KB)

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

The homeowner (petitioner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving their case. They must demonstrate that it is more likely than not that the HOA violated the relevant statutes or community documents.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

To win a hearing, the evidence presented must carry more weight than the opposing side's evidence. It doesn't necessarily mean having more witnesses, but rather having evidence with superior convincing force that inclines an impartial mind to one side.

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

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Arizona law allows a unit owner who acquires an adjoining unit to remove or alter intervening partitions. However, this is strictly conditioned on the requirement that such acts do not weaken the building's structural integrity, mechanical systems, or support.

Alj Quote

After acquiring an adjoining unit… [a unit owner] may remove or alter any intervening partition or create apertures in intervening partitions… if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

If an HOA requests a specific type of expert opinion (such as a structural engineer) to ensure the integrity of the building, providing a report from a different type of professional (such as a plumbing company) may be considered insufficient evidence, justifying a denial.

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Submitting an engineer's letter that does not address the specific technical concerns raised by the HOA (such as the condition of pipes or venting plans) may result in a denial because the homeowner failed to meet the burden of proof regarding safety and structural integrity.

Alj Quote

While Mr. Young is undoubtedly a licensed structural engineer… it is unclear if he made determinations regarding the integrity of the Association’s pipes, fans, and vents as required by sub-requirements 6-8 of the Association’s PRELIMINARY ARCHITECTURAL APPROVAL LETTER.

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

Docket No
23F-H060-REL
Case Title
Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date
2023-08-07
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner alleging an HOA violation?

Short Answer

The homeowner (petitioner) bears the burden of proving the violation by a preponderance of the evidence.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving their case. They must demonstrate that it is more likely than not that the HOA violated the relevant statutes or community documents.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. § 33-1243; ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence must show the claim is more probably true than not.

Detailed Answer

To win a hearing, the evidence presented must carry more weight than the opposing side's evidence. It doesn't necessarily mean having more witnesses, but rather having evidence with superior convincing force that inclines an impartial mind to one side.

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

Common Law / Legal Standard

Topic Tags

  • legal standards
  • evidence
  • definitions

Question

Can I combine two adjoining condo units I own by removing the wall between them?

Short Answer

Yes, generally, provided the removal does not impair structural integrity or mechanical systems.

Detailed Answer

Arizona law allows a unit owner who acquires an adjoining unit to remove or alter intervening partitions. However, this is strictly conditioned on the requirement that such acts do not weaken the building's structural integrity, mechanical systems, or support.

Alj Quote

After acquiring an adjoining unit… [a unit owner] may remove or alter any intervening partition or create apertures in intervening partitions… if those acts do not impair the structural integrity or mechanical systems or lessen the support of any portion of the condominium.

Legal Basis

ARIZ. REV. STAT. § 33-1221(3)

Topic Tags

  • homeowner rights
  • renovations
  • condominiums

Question

Does the administrative law judge have the power to interpret the HOA's contract (CC&Rs)?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

When a dispute involves the community documents (like CC&Rs), the Administrative Law Judge has the legal authority to interpret those documents to decide the contested case.

Alj Quote

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

Legal Basis

ARIZ. REV. STAT. §§ 32-2199 et seq.

Topic Tags

  • jurisdiction
  • CC&Rs
  • contract interpretation

Question

Can the HOA reject my renovation if I provide a plumber's report instead of the requested structural engineer's report?

Short Answer

Yes, the HOA can reject the request if the specific professional expertise requested (e.g., structural engineering) is not provided.

Detailed Answer

If an HOA requests a specific type of expert opinion (such as a structural engineer) to ensure the integrity of the building, providing a report from a different type of professional (such as a plumbing company) may be considered insufficient evidence, justifying a denial.

Alj Quote

Paradise Valley Plumbing Company, Inc. is not a licensed structural engineering firm, so unfortunately the attestation of its Qualifying Party cannot be afforded much weight, if any.

Legal Basis

Fact-specific determination / ARIZ. REV. STAT. § 33-1221

Topic Tags

  • renovations
  • architectural committee
  • expert evidence

Question

Do I need written permission from the HOA to change the exterior appearance of my condo?

Short Answer

Yes, changing the exterior appearance or common elements requires written permission.

Detailed Answer

State statute explicitly prohibits unit owners from changing the appearance of common elements or the exterior of a unit without obtaining written permission from the association.

Alj Quote

Shall not change the appearance of the common elements, or the exterior appearance of a unit or any other portion of the condominium, without written permission of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1221(2)

Topic Tags

  • exterior changes
  • architectural control
  • common elements

Question

If I hire a structural engineer, must their report specifically address the HOA's stated concerns?

Short Answer

Yes, simply hiring an engineer is not enough; the report must address the specific items requested by the HOA (e.g., integrity of pipes, fans, vents).

Detailed Answer

Submitting an engineer's letter that does not address the specific technical concerns raised by the HOA (such as the condition of pipes or venting plans) may result in a denial because the homeowner failed to meet the burden of proof regarding safety and structural integrity.

Alj Quote

While Mr. Young is undoubtedly a licensed structural engineer… it is unclear if he made determinations regarding the integrity of the Association’s pipes, fans, and vents as required by sub-requirements 6-8 of the Association’s PRELIMINARY ARCHITECTURAL APPROVAL LETTER.

Legal Basis

Evidence sufficiency

Topic Tags

  • renovations
  • compliance
  • engineering reports

Case

Docket No
23F-H060-REL
Case Title
Ryan McMahon vs. Alhambra Terrace Condominium Association
Decision Date
2023-08-07
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Ryan McMahon (petitioner)
    Full name: Ryan Christopher McMahon
  • Christina Samaras (witness)
    Petitioner's fiance and observer. Also referred to as Christina Cincer.
  • Robert A. Young (engineer/consultant)
    Structural Engineer (PE) providing documentation for Petitioner
  • Scott Olsson (plumber/consultant)
    Paradise Valley Plumbing Company, Inc.
    Licensed plumber/Qualifying Party providing statements for Petitioner
  • Gary Devol (designer/consultant)
    Designs by Devol LLC
    Designer who created the modification plans

Respondent Side

  • Mike Yohler (attorney)
    Farmers Insurance
    Counsel of record for Respondent
  • Kent William Groseth (board member)
    Alhamra Terrace Condominium Association
    Board President and witness
  • Emma (property manager representative)
    AMCOR Property Professionals, Inc.
    Exchanged correspondence with Petitioner regarding denial
  • Mia (board member)
    Alhamra Terrace Condominium Association
    HOA president at the time of initial request
  • Jim Nelson (board member)
    Alhamra Terrace Condominium Association
    Co-vice president
  • Robin (property manager representative)
    AMCOR Property Professionals, Inc.
    Vice President involved in email correspondence
  • Miss Morgan (attorney)
    Previous counsel replaced by Mike Yohler

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Administrative Law Judge
  • Susan Nicolson (Commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate

Wanda Swartling v. Val Vista Park Townhome Association of Mesa

Posted on by

Case Summary

Case ID 23F-H057-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-08-01
Administrative Law Judge Brian Del Vecchio
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Wanda Swartling Counsel —
Respondent Val Vista Park Townhome Association of Mesa Counsel Chad Gallacher

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.

Why this result: Petitioner failed to meet her burden of proof by a preponderance of the evidence that the Respondent's conduct violated ARS § 33-1804.

Key Issues & Findings

Failure to hold open board meeting prior to special assessment meeting

Petitioner alleged the HOA violated open meeting law (ARS § 33-1804) by failing to hold an open board meeting prior to the March 2, 2023, special meeting where members voted on a special assessment, arguing that preliminary discussions and decisions were made unilaterally in supposed closed-door meetings or through email/informal discussions.

Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804

Analytics Highlights

Topics: Open Meeting Law, Special Assessment, Board Meetings, HOA Governance, Committee Meeting
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • 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.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H057-REL Decision – 1071114.pdf

Uploaded 2026-01-23T17:58:11 (5884.7 KB)

23F-H057-REL Decision – 1071115.pdf

Uploaded 2026-01-23T17:58:14 (7935.6 KB)

23F-H057-REL Decision – 1071120.pdf

Uploaded 2026-01-23T17:58:19 (1989.0 KB)

23F-H057-REL Decision – 1071121.pdf

Uploaded 2026-01-23T17:58:23 (4055.1 KB)

23F-H057-REL Decision – 1071122.pdf

Uploaded 2026-01-23T17:58:27 (676.0 KB)

23F-H057-REL Decision – 1071126.pdf

Uploaded 2026-01-23T17:58:31 (3343.5 KB)

23F-H057-REL Decision – 1071127.pdf

Uploaded 2026-01-23T17:58:36 (3328.5 KB)

23F-H057-REL Decision – 1071503.pdf

Uploaded 2026-01-23T17:58:39 (49.2 KB)

23F-H057-REL Decision – 1079574.pdf

Uploaded 2026-01-23T17:58:42 (114.8 KB)

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their 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 violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable 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

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Questions

Question

What is the burden of proof for a homeowner alleging a violation against their HOA?

Short Answer

The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."

Detailed Answer

In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their 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 violated ARIZ. REV. STAT. § 33-1804.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • legal standards
  • burden of proof
  • procedure

Question

Do informal discussions or emails between board members automatically violate open meeting laws?

Short Answer

Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.

Detailed Answer

While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.

Alj Quote

The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • open meetings
  • emails
  • board communication

Question

What evidence is required to prove the board held a 'secret' meeting?

Short Answer

The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.

Detailed Answer

Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.

Alj Quote

Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • evidence
  • secret meetings
  • quorum

Question

Can a special assessment vote be based on recommendations from a committee meeting held months earlier?

Short Answer

Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.

Detailed Answer

In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.

Alj Quote

The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.

Legal Basis

ARIZ. REV. STAT. § 33-1804

Topic Tags

  • special assessments
  • committees
  • voting

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable 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

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal definitions
  • evidence

Question

Which HOA meetings are required by law to be open to all members?

Short Answer

Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.

Detailed Answer

Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.

Alj Quote

Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.

Legal Basis

ARIZ. REV. STAT. § 33-1804(A)

Topic Tags

  • open meetings
  • homeowner rights
  • statutes

Case

Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Wanda Swartling (petitioner)
    Val Vista Park Townhome Association
    Homeowner, VVP Unit 82

Respondent Side

  • Chad Gallacher (HOA attorney)
    Maxwell & Morgan, P.C.
  • Steve Cheff (property manager / witness)
    Heywood Community Management
    Also community manager
  • Patti Locks (board member)
    Val Vista Park HOA
    Also listed as candidate/incumbent
  • Stephanie Hamrock (board member / witness)
    Val Vista Park HOA
  • Troy Goudeau (board member)
    Val Vista Park HOA
    Elected director
  • Paul Wilcox (board member)
    Val Vista Park HOA
    Elected director
  • Bettie Smiley (board member)
    Val Vista Park HOA
  • Carlee Collins (administrative assistant)
    Heywood Community Management
  • Alli (attorney)
    Maxwell & Morgan, P.C.
    Associate attorney

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    ADRE
  • A. Hansen (ADRE staff)
    ADRE
  • V. Nunez (ADRE staff)
    ADRE
  • D. Jones (ADRE staff)
    ADRE
  • L. Abril (ADRE staff)
    ADRE

Other Participants

  • Shelley Dusek (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Lori Solomon (candidate)
    Val Vista Park HOA
    Candidate for Board of Directors
  • Tanya (committee attendee)
    Val Vista Park HOA
    Attended Building Architectural Committee meeting
  • David Clem Sr (homeowner)
    Val Vista Park Townhomes
    Email recipient

Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners

Posted on by

Case Summary

Case ID 23F-H053-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-07-10
Administrative Law Judge Brian Del Vecchio
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah L. Masear Counsel —
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello

Alleged Violations

Article II Section 3 of Respondent’s bylaws

Outcome Summary

The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.

Key Issues & Findings

Failure to hold an annual meeting as required by bylaws

The HOA failed to hold the mandatory annual meeting on March 13, 2023, as explicitly required by the amended bylaws (Article II Section 3). The meeting was subsequently scheduled for May 8, 2023, 56 days late, constituting a violation, even though the later meeting failed to meet quorum.

Orders: Petitioner’s petition is affirmed. Respondent shall reimburse Petitioner’s filing fee of $500.00. Petitioner’s request to levy a civil penalty against Respondent is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.

Analytics Highlights

Topics: HOA, Condominium, Annual Meeting, Bylaw Violation, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H053-REL Decision – 1072068.pdf

Uploaded 2026-01-23T17:57:32 (115.3 KB)





Study Guide – 23F-H053-REL


{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these 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…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }






Blog Post – 23F-H053-REL


{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these 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…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }


Case Participants

Petitioner Side

  • Deborah Masear (petitioner)
    Paradise Park Condominiums Phase II HOA Member
    Also referred to as Deborah Maer

Respondent Side

  • Ashley Moscarello (HOA attorney)
    Goodman Law Group
    Appeared on behalf of Respondent
  • Carl Westlund (witness)
    Management Trust
    Community Manager for the HOA

Neutral Parties

  • Brian Del Vecchio (ALJ)
    OAH
    Also referred to as Judge Delio
  • Susan Nicolson (Commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Recipient of decision
  • vnunez (ADRE staff)
    ADRE
    Recipient of decision
  • djones (ADRE staff)
    ADRE
    Recipient of decision
  • labril (ADRE staff)
    ADRE
    Recipient of decision

Lisa Kittredge v. SunBird Golf Resort Homeowners Association

Posted on by

Case Summary

Case ID 23F-H040-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-06-13
Administrative Law Judge Tammy L. Eigenheer
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lisa Kittredge Counsel —
Respondent SunBird Golf Resort Homeowners Association Counsel Lori N Brown

Alleged Violations

ARIZ. REV. STAT. § 32-2199 et seq.

Outcome Summary

The Administrative Law Judge granted the petition, finding that the SunBird Golf Resort Homeowners Association violated its governing documents by allocating funds from the HOA Contingency funding stream (general assessments) for drainage issues benefitting the SunBird Golf Club, as the 2015 CC&Rs, as amended in 2021, restricted such expenditures exclusively to funds collected under Section 6.7(C).

Key Issues & Findings

Expenditure of HOA Contingency Funds for Golf Course Drainage Maintenance

Petitioner alleged the HOA improperly used annual assessments (Contingency Fund) to pay $15,968 (capped at $20,000) for cleaning drainage wells on the privately owned SunBird Golf Club property. The ALJ concluded that under the 2015 CC&Rs, as amended in 2021, the HOA was only permitted to expend funds collected specifically pursuant to Section 6.7(C) (Capital Improvement Assessment for Golf Course) for golf course drainage issues, and therefore, using the Contingency fund violated the governing documents.

Orders: Respondent must 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:

  • SunBird Golf Resort Homeowners Association Covenants, Conditions, and Restrictions Section 6.3(A) (2015)
  • 2021 Amendment to 2015 CC&Rs
  • Section 6.7(C) of the 2021 Amendment
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA Governance, CC&R Interpretation, Unauthorized Expenditure, Contingency Fund, Drainage Maintenance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199 et seq.
  • SunBird Golf Resort Homeowners Association Covenants, Conditions, and Restrictions Section 6.3(A) (2015)
  • 2021 Amendment to 2015 CC&Rs
  • Section 6.7(C) of the 2021 Amendment

Video Overview

Audio Overview

https://open.spotify.com/episode/6DiTZ5E9HyIL3tHhYRB9jg

Decision Documents

23F-H040-REL Decision – 1039237.pdf

Uploaded 2026-01-23T17:55:43 (47.3 KB)

23F-H040-REL Decision – 1053619.pdf

Uploaded 2026-01-23T17:55:47 (43.9 KB)

23F-H040-REL Decision – 1064270.pdf

Uploaded 2026-01-23T17:55:51 (155.3 KB)

Questions

Question

If my HOA adopts new CC&Rs, are the old ones still valid if they weren't explicitly listed as replaced?

Short Answer

Likely not. The ALJ determined that a community is not expected to have multiple operative sets of CC&Rs at the same time, implying the new ones supersede the old ones.

Detailed Answer

Even if an older set of CC&Rs is not explicitly listed as being replaced by a newer set, the Tribunal may find that the older set is no longer in effect. The ALJ reasoned that the clear intention of adopting amended and restated CC&Rs is to serve as the current governing documents, and it is unreasonable to expect a community to operate under multiple conflicting sets.

Alj Quote

One would not expect a community to have more than one operative set of CC&Rs at any given time.

Legal Basis

Contract Interpretation / Superseding Documents

Topic Tags

  • CC&Rs
  • Governing Documents
  • Amendments

Question

Can my HOA spend general assessment funds on property it doesn't own, like a private golf course?

Short Answer

No, unless the governing documents explicitly define that property as being 'served by the Association' or allow such spending.

Detailed Answer

The ALJ ruled that the HOA could not spend general funds on the golf course because there was no evidence the golf course was 'served by the Association' as defined in the CC&Rs. Furthermore, because a specific amendment created a dedicated fund for golf course costs, the HOA was restricted to using only that specific fund.

Alj Quote

No evidence was submitted to establish that the SunBird Golf Course was 'served by the Association.'… Accordingly, the Association was not permitted to expend funds collected as assessments to any drainage issues for the SunBird Golf Course other than those assessments collected pursuant to Section 6.7(C) of the 2021 Amendment.

Legal Basis

CC&R Restrictions on Expenditures

Topic Tags

  • Financials
  • Common Expenses
  • Private Property

Question

If the HOA creates a specific fund for a specific project, can they use general contingency funds for it instead?

Short Answer

No. If an amendment restricts spending for a specific purpose to a specific fund, the HOA cannot use general funds.

Detailed Answer

In this case, the HOA passed an amendment allowing expenses for the golf course 'but only from funds collected' via a specific capital improvement assessment. The ALJ ruled that using general contingency funds violated this restriction.

Alj Quote

The 2021 Amendment allowed the Association to use assessments for the golf course, 'but only from funds collected' under the newly created Capital Improvement Assessment for Golf Course.

Legal Basis

Adherence to Specific Amendments

Topic Tags

  • Financials
  • Assessments
  • Contingency Funds

Question

Who has to prove that the HOA violated the rules in an administrative hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence,' meaning it 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 violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • Procedure
  • Legal Standards

Question

If I win my case against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

Upon finding that the HOA violated the governing documents, the ALJ ordered the HOA to reimburse the homeowner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Remedies
  • Filing Fees

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The ALJ defines this standard as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't wholly free the mind from 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

Standard of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Case

Docket No
23F-H040-REL
Case Title
Lisa Kittredge vs SunBird Golf Resort Homeowners Association
Decision Date
2023-06-13
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA adopts new CC&Rs, are the old ones still valid if they weren't explicitly listed as replaced?

Short Answer

Likely not. The ALJ determined that a community is not expected to have multiple operative sets of CC&Rs at the same time, implying the new ones supersede the old ones.

Detailed Answer

Even if an older set of CC&Rs is not explicitly listed as being replaced by a newer set, the Tribunal may find that the older set is no longer in effect. The ALJ reasoned that the clear intention of adopting amended and restated CC&Rs is to serve as the current governing documents, and it is unreasonable to expect a community to operate under multiple conflicting sets.

Alj Quote

One would not expect a community to have more than one operative set of CC&Rs at any given time.

Legal Basis

Contract Interpretation / Superseding Documents

Topic Tags

  • CC&Rs
  • Governing Documents
  • Amendments

Question

Can my HOA spend general assessment funds on property it doesn't own, like a private golf course?

Short Answer

No, unless the governing documents explicitly define that property as being 'served by the Association' or allow such spending.

Detailed Answer

The ALJ ruled that the HOA could not spend general funds on the golf course because there was no evidence the golf course was 'served by the Association' as defined in the CC&Rs. Furthermore, because a specific amendment created a dedicated fund for golf course costs, the HOA was restricted to using only that specific fund.

Alj Quote

No evidence was submitted to establish that the SunBird Golf Course was 'served by the Association.'… Accordingly, the Association was not permitted to expend funds collected as assessments to any drainage issues for the SunBird Golf Course other than those assessments collected pursuant to Section 6.7(C) of the 2021 Amendment.

Legal Basis

CC&R Restrictions on Expenditures

Topic Tags

  • Financials
  • Common Expenses
  • Private Property

Question

If the HOA creates a specific fund for a specific project, can they use general contingency funds for it instead?

Short Answer

No. If an amendment restricts spending for a specific purpose to a specific fund, the HOA cannot use general funds.

Detailed Answer

In this case, the HOA passed an amendment allowing expenses for the golf course 'but only from funds collected' via a specific capital improvement assessment. The ALJ ruled that using general contingency funds violated this restriction.

Alj Quote

The 2021 Amendment allowed the Association to use assessments for the golf course, 'but only from funds collected' under the newly created Capital Improvement Assessment for Golf Course.

Legal Basis

Adherence to Specific Amendments

Topic Tags

  • Financials
  • Assessments
  • Contingency Funds

Question

Who has to prove that the HOA violated the rules in an administrative hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner filing the petition is responsible for proving that the HOA violated the statutes or governing documents. They must prove this by a 'preponderance of the evidence,' meaning it 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 violated ARIZ. REV. STAT. § 33-33-1804(A), (C) and (E) and the CC&Rs.

Legal Basis

Burden of Proof

Topic Tags

  • Procedure
  • Legal Standards

Question

If I win my case against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the ALJ has the authority to order the HOA to reimburse the filing fee.

Detailed Answer

Upon finding that the HOA violated the governing documents, the ALJ ordered the HOA to reimburse the homeowner's filing fee in certified funds.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Remedies
  • Filing Fees

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the claim is 'more probably true than not.'

Detailed Answer

The ALJ defines this standard as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't wholly free the mind from 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

Standard of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Case

Docket No
23F-H040-REL
Case Title
Lisa Kittredge vs SunBird Golf Resort Homeowners Association
Decision Date
2023-06-13
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Lisa Kittredge (petitioner)
    Property owner, appeared on her own behalf.
  • Beth Lockwood (witness)
    Testified for Petitioner.

Respondent Side

  • Lori N. Brown (HOA attorney)
    Gordon Rees Scully Mansukhani LLP
  • Ben Bednarek (HOA attorney)
    Also referred to as Benjamin Dinard and Mr. Venorf/Benark.
  • Layne Barney (General Manager)
    SunBird Golf Resort Homeowners Association
    Also referred to as Layne Varney.
  • Charles Brian Heitbrink (board member)
    SunBird Golf Resort Homeowners Association
    Secretary of the Board of Directors. Also referred to as Charles Height.
  • Dirk (board member)
    SunBird Golf Resort Homeowners Association
    Moved motion regarding drainage in Dec 2022 meeting.
  • Jim (board member)
    SunBird Golf Resort Homeowners Association
    Seconded motion regarding drainage in Dec 2022 meeting.
  • Nancy (board member)
    SunBird Golf Resort Homeowners Association
    Made motion regarding golf purchases in Dec 2022 meeting.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Also referred to as Tammy Igener.
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Recipient of official correspondence.

Other Participants

  • Lewis Ne (Expert (City Engineer))
    City of Chandler
    Consulted regarding storm water drainage.
  • Thomas (Former HOA President)
    Signed 1999 declaration.