CC&Rs Page 2, Section A; and Management Agreement, Pages 33-34, Clause Four, subsection a., b., and f.
Outcome Summary
The Administrative Law Judge denied the two-issue Petition, concluding that the Petitioner failed to meet the burden of proving by a preponderance of the evidence that the Tanglewood Association violated its Covenants, Conditions, and Restrictions (CC&Rs) or Management Agreement. The HOA was declared the prevailing party.
Why this result: Petitioner failed to meet the burden of proof. Regarding the plumbing maintenance (Issue #1), the HOA demonstrated they took action but were legally constrained by contract limitations requiring Board approval/owner vote for costly repairs ($5,000 threshold). Regarding the failure to hire a property manager (Issue #2), the governing documents were vague, and the violation was not proven.
Key Issues & Findings
Failure to maintain Association standards of acceptable living standards and make proper repairs to plumbing in the properties.
Petitioner filed a two-issue petition alleging HOA failed to timely fix a major plumbing issue (Issue #1) that caused flooding/sink backup, making his unit uninhabitable and resulting in lost rent. The second issue (Issue #2) alleged the HOA failed to hire a property management company, which Petitioner claimed led to the untimely handling of Issue #1. The HOA responded that repairs were delayed due to financial constraints requiring a successful special assessment vote.
Orders: The Petition was denied, and the HOA was determined to be the prevailing party. Petitioner was ordered to bear his filing fees. OAH cannot award damages, such as lost rent reimbursement.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
CC&Rs Page 2, Section A
Management Agreement, Pages 33-34, Clause Four, subsection a., b., and f.
Briefing Document: Nicholas Thomas v. Tanglewood Association (Case No. 25F-H037-REL)
Executive Summary
This briefing document synthesizes the proceedings and outcome of Case No. 25F-H037-REL, a dispute between property owner Nicholas Thomas (Petitioner) and the Tanglewood Association (HOA/Respondent). The case was adjudicated by the Arizona Office of Administrative Hearings, with a final decision issued on July 13, 2025.
The Petitioner filed a two-issue petition alleging that the HOA (1) failed in its duty to perform timely plumbing repairs, rendering his unit uninhabitable, and (2) failed to hire a professional property management company, leading to systemic financial and operational issues.
The HOA countered that the repair delays were not due to inaction but to severe financial constraints and the procedural necessity of securing a majority vote from homeowners for a special assessment. This funding was required for the extensive and costly repairs needed for the property’s aging infrastructure. The HOA highlighted that the Petitioner had never participated in these critical votes.
The Administrative Law Judge ultimately denied the petition in its entirety, finding that the Petitioner had not met his burden of proof. The decision concluded that the HOA’s actions were constrained by its financial reality and governing documents, not a breach of duty. The delays were attributed to the failed attempts to secure owner-approved funding via special assessment votes in prior years. The HOA was determined to be the prevailing party, and the Petitioner was ordered to bear his own filing fees.
I. Case Overview
• Case Number: 25F-H037-REL
• Parties:
◦ Petitioner: Nicholas Thomas, owner of Unit 141, Building 4
◦ Respondent: Tanglewood Association (HOA), represented by Co-President Hector Saavedra
• Adjudicating Body: Arizona Office of Administrative Hearings (OAH)
• Presiding Judge: Administrative Law Judge Kay A. Abramsohn
• Timeline:
◦ Petition Filed: February 7, 2025
◦ Hearing Date: May 16, 2025
◦ Decision Issued: July 13, 2025
The Petitioner filed a petition with the Arizona Department of Real Estate alleging the HOA violated its CC&Rs by failing to maintain the property and by not hiring professional management. The matter was referred to the OAH for an evidentiary hearing.
II. Complaint #1: Failure to Repair Plumbing Issue
Petitioner’s Position
The central claim was that the HOA failed to address a severe plumbing issue in a timely manner, which stemmed from common lines outside the Petitioner’s unit.
• Timeline of Events:
◦ October 2024: The Petitioner first became aware of a plumbing issue causing the kitchen sink to back up. A private plumber determined the issue was external to the unit.
◦ November 18, 2024: The HOA was formally notified of the problem.
◦ January/February 2025: Communication from the HOA ceased, prompting the Petitioner to file his complaint.
◦ February 18, 2025: The Petitioner canceled the lease with his tenants as the unit was deemed “uninhabitable” due to flooding and a non-functional sink.
• Consequences: The Petitioner cited damage to the kitchen floor and walls, the loss of rental income, and the ongoing uninhabitable state of the unit. The water line to the sink was eventually capped in February 2025 to stop the flooding, but this did not resolve the underlying issue.
• Key Quote: “The plumbing issue has been in place for 7 months. It has not been addressed. The house is currently unlivable, uninhabitable, still has damage in it. Um, and I do believe the HOA has failed in its required responsibilities to address this issue.” – Nicholas Thomas
• Requested Relief:
1. An order for the HOA to fix the plumbing with a specific timeline.
2. Reimbursement of the $500 portion of the filing fee for this complaint.
3. Reimbursement for lost rent.
Respondent’s Position (Tanglewood HOA)
The HOA argued that the delay was a direct result of financial insolvency and procedural requirements stipulated in its governing documents, not negligence.
• Systemic Problem: The plumbing issues were not isolated to the Petitioner’s unit but were part of a larger problem with the property’s aging infrastructure, dating back to 1965. A similar issue in another building cost $15,000 to repair two years prior.
• Financial & Procedural Hurdles: The estimated cost for the current repairs was initially $15,000 but rose to $50,000. The HOA stated it was “flat broke” with minimal reserves. The CC&Rs mandate a majority vote of over 50% (50.1%) of owners to approve a special assessment for such funding.
• Key Quote: “It should be noted that the board cannot increase the dues of the HOA or or ask for an special assessment unless we have a 50.01% vote from the owners. Mr. Thomas hasn’t voted in two three years and the things that he’s been asking for need their vote to make them happen.” – Hector Saavedra
• Voting History: Attempts to pass a special assessment failed in 2022 and 2023 due to a lack of owner participation. The Petitioner acknowledged he had never voted.
• Eventual Success: In 2025, after significant effort, the HOA secured a 50.35% vote to approve a $70,000 special assessment. This was structured in three phases to ease the financial burden on owners.
• Current Action Plan: At the time of the hearing, the HOA had collected approximately $40,000, made a $15,000 down payment to a plumbing contractor, and was scheduling the work. The repairs were set to begin with Building 4, which includes the Petitioner’s unit and was identified as having the most severe damage.
III. Complaint #2: Lack of Professional Management
Petitioner’s Position
This complaint asserted that the root cause of the HOA’s problems was its self-managed, volunteer-run structure, which was incapable of handling the property’s complex needs.
• Core Argument: A volunteer board lacks the time, expertise, and resources for effective financial management, enforcement of dues collection (including foreclosure on delinquent owners), and timely handling of maintenance. The Petitioner’s brother, Lucas Thomas, testified that in his 15 years as a property manager, he has consistently seen self-managed HOAs fail to operate correctly.
• Alleged Financial Mismanagement: The Petitioner argued the HOA should have been proactively increasing dues up to the 20% annual limit allowed by Arizona Revised Statutes (A.R.S. § 33-1803) without an owner vote, which would have built necessary reserves.
• Key Quote: “Every time that there is a self-managed HOA, the volunteers just don’t have the knowledge or the knowhow or the connections to locals that they need to properly facilitate a giant management especially for 42 units.” – Lucas Thomas
• Requested Relief:
1. An order for the HOA to hire a professional property management company.
2. Reimbursement of the $500 portion of the filing fee for this complaint.
Respondent’s Position (Tanglewood HOA)
The HOA acknowledged the challenges of a volunteer board but maintained that its primary obstacle was financial, not a lack of willingness to act.
• Affordability: The board had discussed hiring a professional management company but concluded it could not afford the expense. They feared that passing the cost to owners would result in even greater delinquency in dues payments.
• Volunteer Effort and Investment: The board is comprised of unpaid owner volunteers who live on the property and are personally impacted by the issues. Mr. Saavedra noted the immense personal time and stress involved, stating, “We are working we understand there’s around seven units right now that are vacant just like Mr. Thomas’s. We understand the pain of not being able to collect money from that from rent.”
• Invitation to Participate: The HOA extended an invitation to Mr. Thomas to join the board and contribute to finding solutions.
IV. Administrative Law Judge’s Decision & Rationale
The Administrative Law Judge (ALJ) denied the Petitioner’s petition on all counts, finding the evidence did not support a conclusion that the HOA had violated its duties.
• Final Order:
◦ The Petitioner’s Petition is denied.
◦ The HOA is the prevailing party.
◦ The Petitioner shall bear his own filing fees ($1,000.00).
◦ The OAH does not have the authority to award damages, such as lost rent.
• Rationale for Denying Complaint #1 (Plumbing Repair):
◦ The Petitioner failed to meet the burden of proving the HOA was not performing its duties.
◦ The evidence demonstrated that upon receiving complaints, the HOA hired a vendor and investigated the issue. The subsequent delay was a direct result of the high cost of repair and the HOA’s lack of funds.
◦ The HOA’s governing documents prevent a property manager or agent from spending more than $5,000, even in an emergency, without Board approval. Therefore, an immediate, large-scale repair was contractually and financially impossible without the owner-approved special assessment. The delay was thus a consequence of procedural and financial constraints, not a failure of duty.
• Rationale for Denying Complaint #2 (Professional Management):
◦ The ALJ found the hearing record to be “simply vague” on this issue.
◦ It could not be determined whether the HOA ever had a property manager in the past or to whom the “Management Agreement” clauses in the CC&Rs currently apply. Without a clearer record, a violation could not be established.
V. Key Participants & Testimony
Participant
Key Testimony & Contributions
Nicholas Thomas
Petitioner, Owner of Unit 141
Outlined the 7-month timeline of the plumbing failure, the resulting uninhabitability of his unit, and the financial losses incurred. Argued for professional management and acknowledged he had never voted in HOA elections or assessments.
Hector Saavedra
Respondent, Co-President of Tanglewood HOA
Explained the HOA’s financial insolvency, the procedural requirement for a majority owner vote to pass special assessments, and the history of failed votes. Detailed the successful 2025 vote and the current plan to begin repairs. Invited the Petitioner to join the board.
Carl Kesler
Petitioner’s Property Manager
Corroborated the timeline of events and communications with the HOA. Confirmed the plumbing issue was localized to the kitchen and stemmed from a mainline sewer problem. Stated he had never been to the unit in person and did not forward all HOA correspondence to the Petitioner.
Lucas Thomas
Petitioner’s Brother, Former Property Manager
Testified from his 15 years of experience that self-managed HOAs are typically ineffective. Argued that a professional firm is necessary for proper financial management and maintenance, citing a past lawsuit where he forced another HOA to hire a management company, which turned the property around.
Study Guide – 25F-H037-REL
{ “case”: { “docket_no”: “25F-H037-REL”, “case_title”: “Nicholas Thomas v. Tanglewood Association”, “decision_date”: “2025-07-13”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I get monetary damages (like lost rent) from my HOA through an administrative hearing?”, “short_answer”: “No, the Office of Administrative Hearings (OAH) does not have the legal authority to award damages.”, “detailed_answer”: “While the OAH can order an HOA to follow its governing documents, it cannot award financial compensation for losses such as lost rent or property damage.”, “alj_quote”: “OAH does not have authority to award damages.”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2199 et seq.”, “topic_tags”: [ “damages”, “jurisdiction”, “compensation” ] }, { “question”: “If my HOA fails to make repairs due to lack of funds, is it considered a violation?”, “short_answer”: “Not necessarily, especially if the HOA is taking steps to secure funding through a special assessment.”, “detailed_answer”: “In this case, the ALJ found that the HOA could not be held in violation for failing to make immediate repairs when it lacked the necessary funds and was actively seeking a special assessment vote from owners to cover the costs.”, “alj_quote”: “Given its financial situation, HOA determined the overall plumbing issues could not be repaired absent a special assessment to cover those specific and projected expenses… Therefore, the hearing record demonstrates that more immediate action to repair either Petitioner’s plumbing issues or the overall plumbing issues could not have been taken.”, “legal_basis”: “Governing Documents / Financial Feasibility”, “topic_tags”: [ “repairs”, “finances”, “special assessment” ] }, { “question”: “Who acts as the ‘burden of proof’ in a hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) must prove the violation occurred.”, “detailed_answer”: “The homeowner must prove by a ‘preponderance of the evidence’ that the HOA violated its community documents or relevant statutes.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent HOA violated the alleged CC&R provisions.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “procedure” ] }, { “question”: “Can I force my HOA board to hire a professional property management company?”, “short_answer”: “Likely no, unless you can prove a specific requirement in the governing documents is being violated.”, “detailed_answer”: “The ALJ ruled that the homeowner did not meet the burden of proof to show that the HOA was violating its duties by not hiring a property manager, noting the evidence regarding the requirement was vague.”, “alj_quote”: “The Tribunal concludes that Petitioner has not met his burden to demonstrate by a preponderance of the evidence that HOA was not timely performing ‘their duties outlined’ in CC&Rs Page 2, Section A; and Management Agreement… regarding property management, the hearing record is simply vague.”, “legal_basis”: “CC&Rs / Management Agreement”, “topic_tags”: [ “property management”, “board duties”, “self-management” ] }, { “question”: “Does an HOA manager have unlimited spending power for emergency repairs?”, “short_answer”: “No, governing documents often place specific dollar limits on spending without board/association approval.”, “detailed_answer”: “The decision cites a management agreement that limits emergency repair spending (e.g., to $5,000) without prior approval from the Association.”, “alj_quote”: “Agent shall not incur liabilities (direct or contingent) which will at any time exceed the aggregate of $5,000.00 … without first obtaining the approval of the Association.”, “legal_basis”: “Management Agreement Contracts”, “topic_tags”: [ “spending limits”, “emergency repairs”, “budget” ] }, { “question”: “If I lose my case against the HOA, do I get my filing fee back?”, “short_answer”: “No, if the petition is denied, the petitioner is typically responsible for their own filing fees.”, “detailed_answer”: “The ALJ ordered that the Petitioner bear his own filing fees after Tanglewood Association was determined to be the prevailing party.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner shall bear his filing fees.”, “legal_basis”: “Administrative Order”, “topic_tags”: [ “fees”, “costs”, “penalties” ] } ] }
Blog Post – 25F-H037-REL
{ “case”: { “docket_no”: “25F-H037-REL”, “case_title”: “Nicholas Thomas v. Tanglewood Association”, “decision_date”: “2025-07-13”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can I get monetary damages (like lost rent) from my HOA through an administrative hearing?”, “short_answer”: “No, the Office of Administrative Hearings (OAH) does not have the legal authority to award damages.”, “detailed_answer”: “While the OAH can order an HOA to follow its governing documents, it cannot award financial compensation for losses such as lost rent or property damage.”, “alj_quote”: “OAH does not have authority to award damages.”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2199 et seq.”, “topic_tags”: [ “damages”, “jurisdiction”, “compensation” ] }, { “question”: “If my HOA fails to make repairs due to lack of funds, is it considered a violation?”, “short_answer”: “Not necessarily, especially if the HOA is taking steps to secure funding through a special assessment.”, “detailed_answer”: “In this case, the ALJ found that the HOA could not be held in violation for failing to make immediate repairs when it lacked the necessary funds and was actively seeking a special assessment vote from owners to cover the costs.”, “alj_quote”: “Given its financial situation, HOA determined the overall plumbing issues could not be repaired absent a special assessment to cover those specific and projected expenses… Therefore, the hearing record demonstrates that more immediate action to repair either Petitioner’s plumbing issues or the overall plumbing issues could not have been taken.”, “legal_basis”: “Governing Documents / Financial Feasibility”, “topic_tags”: [ “repairs”, “finances”, “special assessment” ] }, { “question”: “Who acts as the ‘burden of proof’ in a hearing against an HOA?”, “short_answer”: “The homeowner (Petitioner) must prove the violation occurred.”, “detailed_answer”: “The homeowner must prove by a ‘preponderance of the evidence’ that the HOA violated its community documents or relevant statutes.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent HOA violated the alleged CC&R provisions.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “procedure” ] }, { “question”: “Can I force my HOA board to hire a professional property management company?”, “short_answer”: “Likely no, unless you can prove a specific requirement in the governing documents is being violated.”, “detailed_answer”: “The ALJ ruled that the homeowner did not meet the burden of proof to show that the HOA was violating its duties by not hiring a property manager, noting the evidence regarding the requirement was vague.”, “alj_quote”: “The Tribunal concludes that Petitioner has not met his burden to demonstrate by a preponderance of the evidence that HOA was not timely performing ‘their duties outlined’ in CC&Rs Page 2, Section A; and Management Agreement… regarding property management, the hearing record is simply vague.”, “legal_basis”: “CC&Rs / Management Agreement”, “topic_tags”: [ “property management”, “board duties”, “self-management” ] }, { “question”: “Does an HOA manager have unlimited spending power for emergency repairs?”, “short_answer”: “No, governing documents often place specific dollar limits on spending without board/association approval.”, “detailed_answer”: “The decision cites a management agreement that limits emergency repair spending (e.g., to $5,000) without prior approval from the Association.”, “alj_quote”: “Agent shall not incur liabilities (direct or contingent) which will at any time exceed the aggregate of $5,000.00 … without first obtaining the approval of the Association.”, “legal_basis”: “Management Agreement Contracts”, “topic_tags”: [ “spending limits”, “emergency repairs”, “budget” ] }, { “question”: “If I lose my case against the HOA, do I get my filing fee back?”, “short_answer”: “No, if the petition is denied, the petitioner is typically responsible for their own filing fees.”, “detailed_answer”: “The ALJ ordered that the Petitioner bear his own filing fees after Tanglewood Association was determined to be the prevailing party.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner shall bear his filing fees.”, “legal_basis”: “Administrative Order”, “topic_tags”: [ “fees”, “costs”, “penalties” ] } ] }
Case Participants
Petitioner Side
Nicholas Thomas(petitioner) Represented self; Unit owner
Carl Kesler(property manager) Managed Petitioner's unit; testified as witness
Lucas Thomas(witness) Brother of Petitioner; former property manager of the unit
Respondent Side
Hector Saavedra(board member) Tanglewood Association Co-President; represented the Respondent Association
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings Also referred to as K. Abramson
Susan Nicolson(Commissioner) Arizona Department of Real Estate Recipient of the decision
John R. Krahn Living Trust/Janet Krahn Living Trust
Counsel
—
Respondent
Tonto Forest Estates Homeowners Association
Counsel
—
Alleged Violations
CC&R 5.3
Outcome Summary
The Administrative Law Judge granted the Petitioner’s single-issue petition because the HOA Board had not appointed a third member to the Architectural Committee (ARC) to comply with CC&R 5.3 until March 17, 2025. The HOA was ordered to reimburse the Petitioner’s $500.00 filing fee, but no civil penalty was awarded.
Key Issues & Findings
Architectural Committee Composition Requirement
Petitioner alleged violation of CC&R Article 5.3, which mandates the Architectural Committee (ARC) shall consist of three regular members, because the HOA only had two members on the ARC as of the petition date (February 5, 2025). The Tribunal found the HOA failed to appoint a third member to the ARC until March 17, 2025, granting the petition.
Orders: Petition granted; Respondent ordered to reimburse Petitioner's $500.00 filing fee. No civil penalty was awarded.
Briefing Document: Krahn Living Trust v. Tonto Forest Estates Homeowners Association (Case No. 25F-H036-REL)
Executive Summary
This document synthesizes the proceedings and outcome of the administrative case John R Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association, Case No. 25F-H036-REL, held before the Arizona Office of Administrative Hearings. The central dispute involved an allegation by the Petitioner that the Tonto Forest Estates Homeowners Association (HOA) violated Article 5.3 of its Covenants, Codes, and Restrictions (CC&Rs), which mandates that its Architectural Committee (ARC) “shall consist of three (3) regular members.”
The Petitioner, John R. Krahn, filed a single-issue petition on February 5, 2025, asserting that the ARC was operating with only two members, thereby violating the governing documents. The Petitioner argued that this violation had persisted for an extended period and that the HOA Board had ignored his own application to fill the vacancy, constituting punitive behavior that warranted civil penalties.
The Respondent, represented by Board President Dwight Jolivette, contended that the governing documents allow for flexibility and that no violation occurred while the Board was actively recruiting a third member. The HOA argued that its interpretation was practical, in the best interest of the homeowners, and consistent with the practices of previous boards.
The Administrative Law Judge (ALJ), Kay A. Abramsohn, ruled in favor of the Petitioner. The decision, issued on June 8, 2025, found that the HOA was in violation of CC&R 5.3 at the time the petition was filed. The ruling was narrowly focused on the number of ARC members and explicitly declined to address secondary arguments about the validity of member appointments, as those were outside the scope of the single-issue petition. Consequently, the HOA was ordered to reimburse the Petitioner’s $500 filing fee. The Petitioner’s request for a civil penalty was denied.
——————————————————————————–
Case Overview
Case Number
25F-H036-REL
Petitioner
John R Krahn Living Trust / Janet Krahn Living Trust (Represented by John R. Krahn)
Respondent
Tonto Forest Estates Homeowners Association (Represented by Dwight Jolivette, Board President)
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Administrative Law Judge Kay A. Abramsohn
Hearing Date
May 14, 2025
Decision Date
June 8, 2025
Central Dispute: Violation of CC&R Article 5.3
The core of the dispute was the interpretation and application of CC&R Article 5.3 concerning the composition of the Architectural Committee (ARC).
Relevant Text of CC&R 5.3:
“After such time as the rights of Declarant to appoint the members of the Architectural Committee expire or are relinquished by the Declarant, the Architectural Committee shall consist of three (3) regular members, each of whom shall be appointed by the Board. In the event the Board does not appoint an Architectural Committee for any reason, the Board shall exercise the authority granted to the Architectural Committee under this Declaration…”
The Petitioner filed a single-issue petition on February 5, 2025, alleging the HOA was in violation of this article by operating the ARC with only two members.
Petitioner’s Position and Key Arguments
The Petitioner, John R. Krahn, who previously served as ARC Chairman (2019-2021) and Board Secretary (2019-2021), presented the following arguments:
• Mandatory Requirement: The term “shall” in CC&R 5.3 creates a mandatory, non-discretionary obligation for the ARC to have exactly three members.
• Prolonged Non-Compliance: The ARC operated with only two members for approximately 17 months, from at least October 2023 until March 17, 2025. Krahn further argued the period of non-compliance was potentially 42 months, claiming ARC member Mike Ackerly was never lawfully appointed by a formal Board vote in an open meeting.
• Failure to Correct: The HOA Board acknowledged the vacancy at a November 19, 2024 meeting and called for volunteers. Krahn submitted his resume the next day but his application was never discussed or voted upon. He contended this was a missed opportunity to bring the ARC into compliance.
• Punitive Behavior: The Board’s failure to consider his candidacy was described as “personal retaliation” and “punitive governance,” for which a civil penalty was warranted.
• Corrective Action as Admission: The Board’s appointment of a third member on March 17, 2025—after the complaint was filed—was presented as proof of the underlying violation.
Key Testimony (Krahn):“This is not a matter of opinion or interpretation. It’s a binary question of fact and by respondent’s own admission are operating for many months with other than three members.”
Respondent’s Position and Key Arguments
The HOA, represented by Board President Dwight Jolivette, countered with the following arguments:
• Reasonable Interpretation: No board has ever interpreted CC&R 5.3 to mean the ARC is non-viable or must be dissolved if it temporarily falls below three members.
• Active Recruitment: The Board was actively recruiting for the vacant position, as evidenced by the public call for volunteers. During this recruitment period, the two-member committee’s continued function was reasonable and in the community’s best interest.
• Board Authority: The Board has the authority under CC&R 12.5 to interpret the governing documents. Its interpretation that the committee could function with two members during a vacancy was a valid exercise of that authority.
• Appointment Process: The governing documents require members to be “appointed by the Board” but do not explicitly mandate a formal vote.
• Past Precedent: Jolivette argued that the ARC had operated with fewer than three members under prior boards, including one on which Krahn himself served.
Key Testimony (Jolivette):“Our position is that two members is not not necessarily a violation of 5.3 if and when you’re actively recruiting for another member… Nothing in the governing document states that an appointment is equivalent to a vote.”
Hearing and Procedural Timeline
Nov 19, 2024
The HOA Board acknowledges an ARC vacancy and calls for volunteers.
Nov 20, 2024
Petitioner John Krahn submits his resume for the ARC position.
Jan 22, 2025
The HOA’s Community Manager confirms in an email that the ARC has two members: Steve Gauer and Mike Ackerly.
Feb 5, 2025
The Petitioner files a single-issue petition with the Arizona Department of Real Estate.
Mar 17, 2025
The HOA Board formally appoints Alan Damon to the ARC via motion and vote, bringing its membership to three.
May 14, 2025
An evidentiary administrative hearing is held virtually before ALJ Kay Abramsohn.
June 8, 2025
The Administrative Law Judge Decision is issued.
June 29, 2025
An Order Nunc Pro Tunc is issued to correct the number of admitted petitioner exhibits in the original decision.
Administrative Law Judge’s Decision and Order
The ALJ’s decision, issued on June 8, 2025, resolved the dispute by granting the petition but denying the request for a civil penalty.
• Violation Confirmed: The ALJ concluded that the Petitioner met the burden of proof to demonstrate that as of the petition’s filing date (February 5, 2025), the HOA Board had not appointed a third member to the ARC. This constituted a violation of CC&R 5.3.
• Corrective Action Timing: The decision noted that a third member was not appointed until March 17, 2025, more than a month after the petition was filed.
• Limitation of Scope: The ALJ explicitly stated that the Petitioner’s arguments regarding the validity of Mike Ackerly’s appointment process were not addressed. The ruling was confined to the single issue presented in the original petition: whether the ARC had the required number of members. The decision stated, “Petitioner’s arguments regarding the appointment process are not addressed.”
The ALJ issued a three-part order:
1. Petition Granted: The Petitioner’s petition in case 25F-H036-REL was granted on the grounds that the HOA had not appointed a third member to the ARC to comply with CC&R 5.3 until March 17, 2025.
2. Filing Fee Reimbursed: The Respondent (HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. Civil Penalty Denied: No civil penalty was awarded.
An Order Nunc Pro Tunc was later issued on June 29, 2025, to correct a clerical error in the original decision, changing the record of admitted evidence from “Petitioner’s Exhibits 1 through 22” to “Petitioner’s Exhibits 1 through 26.” This correction was retroactive to the date of the original decision.
Study Guide – 25F-H036-REL
{ “case”: { “docket_no”: “25F-H036-REL”, “case_title”: “John R. Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association”, “decision_date”: “2025-06-08”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the CC&Rs state a committee ‘shall’ have a specific number of members, is the HOA in violation if they operate with fewer?”, “short_answer”: “Yes. If the governing documents mandate a specific number of members (e.g., three), failing to appoint that number is a violation.”, “detailed_answer”: “The ALJ ruled that the HOA violated the CC&Rs because the documents required the Architectural Committee to consist of three members, but the Board had failed to appoint a third member for a period of time. The use of ‘shall consist’ in the CC&Rs created a mandatory requirement.”, “alj_quote”: “IT IS ORDERED that Petitioner’s petition in 25F-H036-REL be granted because the newly elected HOA Board had yet appointed a third member to the ARC in order to comply with CC&R 5.3 until March 17, 2025.”, “legal_basis”: “CC&R 5.3”, “topic_tags”: [ “CC&Rs”, “Committee Requirements”, “Governance” ] }, { “question”: “If the HOA fixes the violation after I file my complaint, do I still win the hearing?”, “short_answer”: “Yes. Correcting the issue after the petition is filed does not erase the fact that the violation existed at the time of filing.”, “detailed_answer”: “The homeowner filed the petition in February. The HOA appointed the missing committee member in March (before the May hearing). The ALJ still granted the petition because the HOA was not in compliance at the time the dispute arose and the petition was filed.”, “alj_quote”: “The Tribunal concludes that that Petitioner has met his burden to demonstrate that, as of February 5, 2025, the newly elected HOA Board had not yet appointed a third member to the ARC… IT IS ORDERED that Petitioner’s petition… be granted because the newly elected HOA Board had yet appointed a third member to the ARC… until March 17, 2025.”, “legal_basis”: “Administrative Law Standards”, “topic_tags”: [ “Procedural”, “Compliance”, “Dispute Resolution” ] }, { “question”: “Will the HOA have to pay me back for the filing fee if I win?”, “short_answer”: “Yes. The ALJ typically orders the HOA to reimburse the filing fee if the homeowner prevails.”, “detailed_answer”: “Upon granting the petition and finding the HOA in violation, the judge ordered the HOA to reimburse the homeowner’s $500 filing fee as required by Arizona statute.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “Filing Fees”, “Remedies”, “Costs” ] }, { “question”: “Does the law require a Board member to serve on the Architectural Committee?”, “short_answer”: “Yes. Arizona statute mandates that at least one board member serve as the chairperson of the design review or architectural committee.”, “detailed_answer”: “Regardless of what the specific community documents say, Arizona state law (A.R.S. § 33-1817) overrides them to require that a board member serve as the chairperson of the architectural committee.”, “alj_quote”: “Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1817(B)(1)”, “topic_tags”: [ “Architectural Committee”, “Board of Directors”, “Statutory Requirements” ] }, { “question”: “Will I automatically be awarded civil penalties (fines against the HOA) if I prove a violation?”, “short_answer”: “No. Proving a violation does not guarantee that the judge will impose a civil penalty.”, “detailed_answer”: “Although the homeowner successfully proved the HOA violated the CC&Rs regarding committee membership, the ALJ explicitly declined to award any civil penalties.”, “alj_quote”: “IT IS FURTHER ORDERED that no civil penalty is awarded.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Civil Penalty” ] }, { “question”: “What is the standard of proof for a homeowner in an HOA administrative hearing?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The homeowner must prove that their claim is ‘more probably true than not.’ It is based on the convincing force and superior weight of the evidence, not just the number of witnesses.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&R 5.3… ‘A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Evidence” ] }, { “question”: “How long do I have to request a rehearing if I am unhappy with the decision?”, “short_answer”: “30 days.”, “detailed_answer”: “Any party wishing to request a rehearing must file the request with the Commissioner of the Department of Real Estate within 30 days of the service of the order.”, “alj_quote”: “Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.”, “legal_basis”: “ARIZ. REV. STAT. § 41-1092.09”, “topic_tags”: [ “Appeals”, “Rehearing”, “Procedure” ] } ] }
Blog Post – 25F-H036-REL
{ “case”: { “docket_no”: “25F-H036-REL”, “case_title”: “John R. Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association”, “decision_date”: “2025-06-08”, “alj_name”: “Kay A. Abramsohn”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the CC&Rs state a committee ‘shall’ have a specific number of members, is the HOA in violation if they operate with fewer?”, “short_answer”: “Yes. If the governing documents mandate a specific number of members (e.g., three), failing to appoint that number is a violation.”, “detailed_answer”: “The ALJ ruled that the HOA violated the CC&Rs because the documents required the Architectural Committee to consist of three members, but the Board had failed to appoint a third member for a period of time. The use of ‘shall consist’ in the CC&Rs created a mandatory requirement.”, “alj_quote”: “IT IS ORDERED that Petitioner’s petition in 25F-H036-REL be granted because the newly elected HOA Board had yet appointed a third member to the ARC in order to comply with CC&R 5.3 until March 17, 2025.”, “legal_basis”: “CC&R 5.3”, “topic_tags”: [ “CC&Rs”, “Committee Requirements”, “Governance” ] }, { “question”: “If the HOA fixes the violation after I file my complaint, do I still win the hearing?”, “short_answer”: “Yes. Correcting the issue after the petition is filed does not erase the fact that the violation existed at the time of filing.”, “detailed_answer”: “The homeowner filed the petition in February. The HOA appointed the missing committee member in March (before the May hearing). The ALJ still granted the petition because the HOA was not in compliance at the time the dispute arose and the petition was filed.”, “alj_quote”: “The Tribunal concludes that that Petitioner has met his burden to demonstrate that, as of February 5, 2025, the newly elected HOA Board had not yet appointed a third member to the ARC… IT IS ORDERED that Petitioner’s petition… be granted because the newly elected HOA Board had yet appointed a third member to the ARC… until March 17, 2025.”, “legal_basis”: “Administrative Law Standards”, “topic_tags”: [ “Procedural”, “Compliance”, “Dispute Resolution” ] }, { “question”: “Will the HOA have to pay me back for the filing fee if I win?”, “short_answer”: “Yes. The ALJ typically orders the HOA to reimburse the filing fee if the homeowner prevails.”, “detailed_answer”: “Upon granting the petition and finding the HOA in violation, the judge ordered the HOA to reimburse the homeowner’s $500 filing fee as required by Arizona statute.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.01”, “topic_tags”: [ “Filing Fees”, “Remedies”, “Costs” ] }, { “question”: “Does the law require a Board member to serve on the Architectural Committee?”, “short_answer”: “Yes. Arizona statute mandates that at least one board member serve as the chairperson of the design review or architectural committee.”, “detailed_answer”: “Regardless of what the specific community documents say, Arizona state law (A.R.S. § 33-1817) overrides them to require that a board member serve as the chairperson of the architectural committee.”, “alj_quote”: “Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1817(B)(1)”, “topic_tags”: [ “Architectural Committee”, “Board of Directors”, “Statutory Requirements” ] }, { “question”: “Will I automatically be awarded civil penalties (fines against the HOA) if I prove a violation?”, “short_answer”: “No. Proving a violation does not guarantee that the judge will impose a civil penalty.”, “detailed_answer”: “Although the homeowner successfully proved the HOA violated the CC&Rs regarding committee membership, the ALJ explicitly declined to award any civil penalties.”, “alj_quote”: “IT IS FURTHER ORDERED that no civil penalty is awarded.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Civil Penalty” ] }, { “question”: “What is the standard of proof for a homeowner in an HOA administrative hearing?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The homeowner must prove that their claim is ‘more probably true than not.’ It is based on the convincing force and superior weight of the evidence, not just the number of witnesses.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&R 5.3… ‘A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Evidence” ] }, { “question”: “How long do I have to request a rehearing if I am unhappy with the decision?”, “short_answer”: “30 days.”, “detailed_answer”: “Any party wishing to request a rehearing must file the request with the Commissioner of the Department of Real Estate within 30 days of the service of the order.”, “alj_quote”: “Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.”, “legal_basis”: “ARIZ. REV. STAT. § 41-1092.09”, “topic_tags”: [ “Appeals”, “Rehearing”, “Procedure” ] } ] }
Case Participants
Petitioner Side
John R. Krahn(petitioner/representative) John R Krahn Living Trust Appeared on Petitioners’ behalf; former ARC Chairman and Board Secretary.
Janet Krahn(petitioner) Janet Krahn Living Trust Named party in the case title.
Respondent Side
Dwight Jolivette(board president/HOA representative) Tonto Forest Estates Homeowners Association Appeared on Respondent's behalf.
Barbara Bonilla(property manager) Ogden & Company Community Manager for the HOA.
Steve Gauer(board treasurer/ARC member) Tonto Forest Estates Homeowners Association Became Board Treasurer in November 2024; served on ARC.
Mike Ackerly(ARC member) Tonto Forest Estates Homeowners Association Joined the ARC in February 2022.
Alan Damon(ARC member) Tonto Forest Estates Homeowners Association Appointed to the ARC on March 17, 2025.
Kenneth Riley(ARC member (former)) Tonto Forest Estates Homeowners Association Indicated as an ARC member between July and November 2024.
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings (OAH)
Susan Nicolson(commissioner) Arizona Department of Real Estate (ADRE)
Other Participants
Joe Burns(attendee) Attended the hearing virtually; did not give testimony.
John Fris(ARC member (former)) Mentioned as a former ARC member appointed in February 2021.
Brett(ARC member (former)) Mentioned as a former ARC member whom John (Fris) replaced.
John R. Krahn Living Trust/Janet Krahn Living Trust
Counsel
—
Respondent
Tonto Forest Estates Homeowners Association
Counsel
—
Alleged Violations
CC&R 5.3
Outcome Summary
The Administrative Law Judge granted the Petitioner’s single-issue petition because the HOA Board had not appointed a third member to the Architectural Committee (ARC) to comply with CC&R 5.3 until March 17, 2025. The HOA was ordered to reimburse the Petitioner’s $500.00 filing fee, but no civil penalty was awarded.
Key Issues & Findings
Architectural Committee Composition Requirement
Petitioner alleged violation of CC&R Article 5.3, which mandates the Architectural Committee (ARC) shall consist of three regular members, because the HOA only had two members on the ARC as of the petition date (February 5, 2025). The Tribunal found the HOA failed to appoint a third member to the ARC until March 17, 2025, granting the petition.
Orders: Petition granted; Respondent ordered to reimburse Petitioner's $500.00 filing fee. No civil penalty was awarded.
Briefing Document: Krahn Living Trust v. Tonto Forest Estates Homeowners Association (Case No. 25F-H036-REL)
Executive Summary
This document synthesizes the proceedings and outcome of the administrative case John R Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association, Case No. 25F-H036-REL, held before the Arizona Office of Administrative Hearings. The central dispute involved an allegation by the Petitioner that the Tonto Forest Estates Homeowners Association (HOA) violated Article 5.3 of its Covenants, Codes, and Restrictions (CC&Rs), which mandates that its Architectural Committee (ARC) “shall consist of three (3) regular members.”
The Petitioner, John R. Krahn, filed a single-issue petition on February 5, 2025, asserting that the ARC was operating with only two members, thereby violating the governing documents. The Petitioner argued that this violation had persisted for an extended period and that the HOA Board had ignored his own application to fill the vacancy, constituting punitive behavior that warranted civil penalties.
The Respondent, represented by Board President Dwight Jolivette, contended that the governing documents allow for flexibility and that no violation occurred while the Board was actively recruiting a third member. The HOA argued that its interpretation was practical, in the best interest of the homeowners, and consistent with the practices of previous boards.
The Administrative Law Judge (ALJ), Kay A. Abramsohn, ruled in favor of the Petitioner. The decision, issued on June 8, 2025, found that the HOA was in violation of CC&R 5.3 at the time the petition was filed. The ruling was narrowly focused on the number of ARC members and explicitly declined to address secondary arguments about the validity of member appointments, as those were outside the scope of the single-issue petition. Consequently, the HOA was ordered to reimburse the Petitioner’s $500 filing fee. The Petitioner’s request for a civil penalty was denied.
——————————————————————————–
Case Overview
Case Number
25F-H036-REL
Petitioner
John R Krahn Living Trust / Janet Krahn Living Trust (Represented by John R. Krahn)
Respondent
Tonto Forest Estates Homeowners Association (Represented by Dwight Jolivette, Board President)
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Administrative Law Judge Kay A. Abramsohn
Hearing Date
May 14, 2025
Decision Date
June 8, 2025
Central Dispute: Violation of CC&R Article 5.3
The core of the dispute was the interpretation and application of CC&R Article 5.3 concerning the composition of the Architectural Committee (ARC).
Relevant Text of CC&R 5.3:
“After such time as the rights of Declarant to appoint the members of the Architectural Committee expire or are relinquished by the Declarant, the Architectural Committee shall consist of three (3) regular members, each of whom shall be appointed by the Board. In the event the Board does not appoint an Architectural Committee for any reason, the Board shall exercise the authority granted to the Architectural Committee under this Declaration…”
The Petitioner filed a single-issue petition on February 5, 2025, alleging the HOA was in violation of this article by operating the ARC with only two members.
Petitioner’s Position and Key Arguments
The Petitioner, John R. Krahn, who previously served as ARC Chairman (2019-2021) and Board Secretary (2019-2021), presented the following arguments:
• Mandatory Requirement: The term “shall” in CC&R 5.3 creates a mandatory, non-discretionary obligation for the ARC to have exactly three members.
• Prolonged Non-Compliance: The ARC operated with only two members for approximately 17 months, from at least October 2023 until March 17, 2025. Krahn further argued the period of non-compliance was potentially 42 months, claiming ARC member Mike Ackerly was never lawfully appointed by a formal Board vote in an open meeting.
• Failure to Correct: The HOA Board acknowledged the vacancy at a November 19, 2024 meeting and called for volunteers. Krahn submitted his resume the next day but his application was never discussed or voted upon. He contended this was a missed opportunity to bring the ARC into compliance.
• Punitive Behavior: The Board’s failure to consider his candidacy was described as “personal retaliation” and “punitive governance,” for which a civil penalty was warranted.
• Corrective Action as Admission: The Board’s appointment of a third member on March 17, 2025—after the complaint was filed—was presented as proof of the underlying violation.
Key Testimony (Krahn):“This is not a matter of opinion or interpretation. It’s a binary question of fact and by respondent’s own admission are operating for many months with other than three members.”
Respondent’s Position and Key Arguments
The HOA, represented by Board President Dwight Jolivette, countered with the following arguments:
• Reasonable Interpretation: No board has ever interpreted CC&R 5.3 to mean the ARC is non-viable or must be dissolved if it temporarily falls below three members.
• Active Recruitment: The Board was actively recruiting for the vacant position, as evidenced by the public call for volunteers. During this recruitment period, the two-member committee’s continued function was reasonable and in the community’s best interest.
• Board Authority: The Board has the authority under CC&R 12.5 to interpret the governing documents. Its interpretation that the committee could function with two members during a vacancy was a valid exercise of that authority.
• Appointment Process: The governing documents require members to be “appointed by the Board” but do not explicitly mandate a formal vote.
• Past Precedent: Jolivette argued that the ARC had operated with fewer than three members under prior boards, including one on which Krahn himself served.
Key Testimony (Jolivette):“Our position is that two members is not not necessarily a violation of 5.3 if and when you’re actively recruiting for another member… Nothing in the governing document states that an appointment is equivalent to a vote.”
Hearing and Procedural Timeline
Nov 19, 2024
The HOA Board acknowledges an ARC vacancy and calls for volunteers.
Nov 20, 2024
Petitioner John Krahn submits his resume for the ARC position.
Jan 22, 2025
The HOA’s Community Manager confirms in an email that the ARC has two members: Steve Gauer and Mike Ackerly.
Feb 5, 2025
The Petitioner files a single-issue petition with the Arizona Department of Real Estate.
Mar 17, 2025
The HOA Board formally appoints Alan Damon to the ARC via motion and vote, bringing its membership to three.
May 14, 2025
An evidentiary administrative hearing is held virtually before ALJ Kay Abramsohn.
June 8, 2025
The Administrative Law Judge Decision is issued.
June 29, 2025
An Order Nunc Pro Tunc is issued to correct the number of admitted petitioner exhibits in the original decision.
Administrative Law Judge’s Decision and Order
The ALJ’s decision, issued on June 8, 2025, resolved the dispute by granting the petition but denying the request for a civil penalty.
• Violation Confirmed: The ALJ concluded that the Petitioner met the burden of proof to demonstrate that as of the petition’s filing date (February 5, 2025), the HOA Board had not appointed a third member to the ARC. This constituted a violation of CC&R 5.3.
• Corrective Action Timing: The decision noted that a third member was not appointed until March 17, 2025, more than a month after the petition was filed.
• Limitation of Scope: The ALJ explicitly stated that the Petitioner’s arguments regarding the validity of Mike Ackerly’s appointment process were not addressed. The ruling was confined to the single issue presented in the original petition: whether the ARC had the required number of members. The decision stated, “Petitioner’s arguments regarding the appointment process are not addressed.”
The ALJ issued a three-part order:
1. Petition Granted: The Petitioner’s petition in case 25F-H036-REL was granted on the grounds that the HOA had not appointed a third member to the ARC to comply with CC&R 5.3 until March 17, 2025.
2. Filing Fee Reimbursed: The Respondent (HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.
3. Civil Penalty Denied: No civil penalty was awarded.
An Order Nunc Pro Tunc was later issued on June 29, 2025, to correct a clerical error in the original decision, changing the record of admitted evidence from “Petitioner’s Exhibits 1 through 22” to “Petitioner’s Exhibits 1 through 26.” This correction was retroactive to the date of the original decision.
Questions
Question
If the CC&Rs state a committee 'shall' have a specific number of members, is the HOA in violation if they operate with fewer?
Short Answer
Yes. If the governing documents mandate a specific number of members (e.g., three), failing to appoint that number is a violation.
Detailed Answer
The ALJ ruled that the HOA violated the CC&Rs because the documents required the Architectural Committee to consist of three members, but the Board had failed to appoint a third member for a period of time. The use of 'shall consist' in the CC&Rs created a mandatory requirement.
Alj Quote
IT IS ORDERED that Petitioner’s petition in 25F-H036-REL be granted because the newly elected HOA Board had yet appointed a third member to the ARC in order to comply with CC&R 5.3 until March 17, 2025.
Legal Basis
CC&R 5.3
Topic Tags
CC&Rs
Committee Requirements
Governance
Question
If the HOA fixes the violation after I file my complaint, do I still win the hearing?
Short Answer
Yes. Correcting the issue after the petition is filed does not erase the fact that the violation existed at the time of filing.
Detailed Answer
The homeowner filed the petition in February. The HOA appointed the missing committee member in March (before the May hearing). The ALJ still granted the petition because the HOA was not in compliance at the time the dispute arose and the petition was filed.
Alj Quote
The Tribunal concludes that that Petitioner has met his burden to demonstrate that, as of February 5, 2025, the newly elected HOA Board had not yet appointed a third member to the ARC… IT IS ORDERED that Petitioner’s petition… be granted because the newly elected HOA Board had yet appointed a third member to the ARC… until March 17, 2025.
Legal Basis
Administrative Law Standards
Topic Tags
Procedural
Compliance
Dispute Resolution
Question
Will the HOA have to pay me back for the filing fee if I win?
Short Answer
Yes. The ALJ typically orders the HOA to reimburse the filing fee if the homeowner prevails.
Detailed Answer
Upon granting the petition and finding the HOA in violation, the judge ordered the HOA to reimburse the homeowner's $500 filing fee as required by Arizona statute.
Alj Quote
IT IS FURTHER ORDERED that Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.01
Topic Tags
Filing Fees
Remedies
Costs
Question
Does the law require a Board member to serve on the Architectural Committee?
Short Answer
Yes. Arizona statute mandates that at least one board member serve as the chairperson of the design review or architectural committee.
Detailed Answer
Regardless of what the specific community documents say, Arizona state law (A.R.S. § 33-1817) overrides them to require that a board member serve as the chairperson of the architectural committee.
Alj Quote
Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.
Legal Basis
ARIZ. REV. STAT. § 33-1817(B)(1)
Topic Tags
Architectural Committee
Board of Directors
Statutory Requirements
Question
Will I automatically be awarded civil penalties (fines against the HOA) if I prove a violation?
Short Answer
No. Proving a violation does not guarantee that the judge will impose a civil penalty.
Detailed Answer
Although the homeowner successfully proved the HOA violated the CC&Rs regarding committee membership, the ALJ explicitly declined to award any civil penalties.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty is awarded.
Legal Basis
Administrative Discretion
Topic Tags
Penalties
Remedies
Civil Penalty
Question
What is the standard of proof for a homeowner in an HOA administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner must prove that their claim is 'more probably true than not.' It is based on the convincing force and superior weight of the evidence, not just the number of witnesses.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&R 5.3… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
Burden of Proof
Legal Standards
Evidence
Question
How long do I have to request a rehearing if I am unhappy with the decision?
Short Answer
30 days.
Detailed Answer
Any party wishing to request a rehearing must file the request with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
ARIZ. REV. STAT. § 41-1092.09
Topic Tags
Appeals
Rehearing
Procedure
Case
Docket No
25F-H036-REL
Case Title
John R. Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association
Decision Date
2025-06-08
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If the CC&Rs state a committee 'shall' have a specific number of members, is the HOA in violation if they operate with fewer?
Short Answer
Yes. If the governing documents mandate a specific number of members (e.g., three), failing to appoint that number is a violation.
Detailed Answer
The ALJ ruled that the HOA violated the CC&Rs because the documents required the Architectural Committee to consist of three members, but the Board had failed to appoint a third member for a period of time. The use of 'shall consist' in the CC&Rs created a mandatory requirement.
Alj Quote
IT IS ORDERED that Petitioner’s petition in 25F-H036-REL be granted because the newly elected HOA Board had yet appointed a third member to the ARC in order to comply with CC&R 5.3 until March 17, 2025.
Legal Basis
CC&R 5.3
Topic Tags
CC&Rs
Committee Requirements
Governance
Question
If the HOA fixes the violation after I file my complaint, do I still win the hearing?
Short Answer
Yes. Correcting the issue after the petition is filed does not erase the fact that the violation existed at the time of filing.
Detailed Answer
The homeowner filed the petition in February. The HOA appointed the missing committee member in March (before the May hearing). The ALJ still granted the petition because the HOA was not in compliance at the time the dispute arose and the petition was filed.
Alj Quote
The Tribunal concludes that that Petitioner has met his burden to demonstrate that, as of February 5, 2025, the newly elected HOA Board had not yet appointed a third member to the ARC… IT IS ORDERED that Petitioner’s petition… be granted because the newly elected HOA Board had yet appointed a third member to the ARC… until March 17, 2025.
Legal Basis
Administrative Law Standards
Topic Tags
Procedural
Compliance
Dispute Resolution
Question
Will the HOA have to pay me back for the filing fee if I win?
Short Answer
Yes. The ALJ typically orders the HOA to reimburse the filing fee if the homeowner prevails.
Detailed Answer
Upon granting the petition and finding the HOA in violation, the judge ordered the HOA to reimburse the homeowner's $500 filing fee as required by Arizona statute.
Alj Quote
IT IS FURTHER ORDERED that Respondent shall reimburse Petitioner’s $500.00 filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.01
Topic Tags
Filing Fees
Remedies
Costs
Question
Does the law require a Board member to serve on the Architectural Committee?
Short Answer
Yes. Arizona statute mandates that at least one board member serve as the chairperson of the design review or architectural committee.
Detailed Answer
Regardless of what the specific community documents say, Arizona state law (A.R.S. § 33-1817) overrides them to require that a board member serve as the chairperson of the architectural committee.
Alj Quote
Membership on a design review committee, an architectural committee or a committee that performs similar functions, however denominated, for the planned community shall include at least one member of the board of directors who shall serve as chairperson of the committee.
Legal Basis
ARIZ. REV. STAT. § 33-1817(B)(1)
Topic Tags
Architectural Committee
Board of Directors
Statutory Requirements
Question
Will I automatically be awarded civil penalties (fines against the HOA) if I prove a violation?
Short Answer
No. Proving a violation does not guarantee that the judge will impose a civil penalty.
Detailed Answer
Although the homeowner successfully proved the HOA violated the CC&Rs regarding committee membership, the ALJ explicitly declined to award any civil penalties.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty is awarded.
Legal Basis
Administrative Discretion
Topic Tags
Penalties
Remedies
Civil Penalty
Question
What is the standard of proof for a homeowner in an HOA administrative hearing?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner must prove that their claim is 'more probably true than not.' It is based on the convincing force and superior weight of the evidence, not just the number of witnesses.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&R 5.3… 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
Burden of Proof
Legal Standards
Evidence
Question
How long do I have to request a rehearing if I am unhappy with the decision?
Short Answer
30 days.
Detailed Answer
Any party wishing to request a rehearing must file the request with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Alj Quote
Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
ARIZ. REV. STAT. § 41-1092.09
Topic Tags
Appeals
Rehearing
Procedure
Case
Docket No
25F-H036-REL
Case Title
John R. Krahn Living Trust/Janet Krahn Living Trust v. Tonto Forest Estates Homeowners Association
The Administrative Law Judge denied the petition, concluding that the Association was in compliance with ARIZ. REV. STAT. § 33-1812(7) by providing the electronic data lists received from the voting vendor (Vote HOA Now), as the statute requires storage of 'electronic votes' not necessarily 'electronic ballots' (images).
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Key Issues & Findings
Failure to provide voting records (electronic ballots) for inspection
Petitioner alleged the Association failed to provide all voting materials, specifically images of each actual online ballot, in response to the February 28, 2024, inspection request, arguing this violated ARIZ. REV. STAT. § 33-1812(A)(7).
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
Analytics Highlights
Topics: Voting Records, Electronic Voting, HOA Records Inspection, Statutory Interpretation, ARS 33-1812
Additional Citations:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. § 32-2199.04
Video Overview
Audio Overview
Decision Documents
24F-H047-REL-RMD Decision – 1240168.pdf
Uploaded 2026-01-23T18:10:22 (184.8 KB)
24F-H047-REL-RMD Decision – 1330098.pdf
Uploaded 2026-01-23T18:10:26 (48.9 KB)
24F-H047-REL-RMD Decision – 1330115.pdf
Uploaded 2026-01-23T18:10:30 (6.2 KB)
24F-H047-REL-RMD Decision – 1338932.pdf
Uploaded 2026-01-23T18:10:35 (56.6 KB)
24F-H047-REL-RMD Decision – 1340272.pdf
Uploaded 2026-01-23T18:10:38 (53.7 KB)
24F-H047-REL-RMD Decision – 1357165.pdf
Uploaded 2026-01-23T18:10:42 (59.5 KB)
24F-H047-REL-RMD Decision – 1358023.pdf
Uploaded 2026-01-23T18:10:50 (12.1 KB)
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John F. Sullivan(Petitioner Attorney) AZNH Revocable Trust Counsel for Susan Sullivan/AZNH Trust
Susan Sullivan(Petitioner Trustee) AZNH Revocable Trust
Respondent Side
Chad M. Gallacher(Respondent Attorney) Sunland Springs Village Homeowners Association Affiliated with MAXWELL & MORGAN, P.C.
Kathy Fowers(General Manager/Witness) Sunland Springs Village Homeowners Association Custodian of Records
Cathy Braun(Association Secretary/Treasurer) Sunland Springs Village Homeowners Association Referenced in emails regarding documents inspection
Paul Minda(Board President/Board Member) Sunland Springs Village Homeowners Association Present at rehearing
Mar(Board Vice President/Board Member) Sunland Springs Village Homeowners Association Partial name only; present at rehearing
Mrs. Holden(Affiliate/Witness) Sunland Springs Village Homeowners Association Present at Superior Court argument
Neutral Parties
Kay A. Abramsohn(ALJ) Office of Administrative Hearings
Judge McKish(Superior Court Judge) Maricopa County Superior Court Presided over appeal/remand process
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Other Participants
vnunez(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
djones(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
labril(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
mneat(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
lrecchia(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
gosborn(ADRE Staff) Arizona Department of Real Estate Recipient of electronic transmission; partial name
The Administrative Law Judge denied the petition, concluding that the Association was in compliance with ARIZ. REV. STAT. § 33-1812(7) by providing the electronic data lists received from the voting vendor (Vote HOA Now), as the statute requires storage of 'electronic votes' not necessarily 'electronic ballots' (images).
Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Key Issues & Findings
Failure to provide voting records (electronic ballots) for inspection
Petitioner alleged the Association failed to provide all voting materials, specifically images of each actual online ballot, in response to the February 28, 2024, inspection request, arguing this violated ARIZ. REV. STAT. § 33-1812(A)(7).
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812(A)(7)
ARIZ. REV. STAT. § 10-3708(F)
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 33-1258
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
Analytics Highlights
Topics: Voting Records, Electronic Voting, HOA Records Inspection, Statutory Interpretation, ARS 33-1812
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
If I challenge my HOA's election procedures, do I have to prove they did something wrong, or do they have to prove they did it right?
Short Answer
The burden of proof falls on the homeowner (Petitioner) to prove the violation.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition bears the burden of proving, by a preponderance of the evidence, that the HOA violated the relevant statutes.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812(A)(7).
Legal Basis
A.R.S. § 33-1812(A)(7); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Procedure
Question
Is my HOA required to provide me with the actual visual image of every electronic ballot cast in an election?
Short Answer
No. The HOA is only required to store and provide 'electronic votes,' typically in data list format, not the visual 'ballot' image.
Detailed Answer
The ALJ determined that statutes require the storage of 'electronic votes' for inspection, but this does not mean the HOA must retain a visual image of the specific screen or ballot seen by the voter. Data lists that document the vote satisfy the requirement.
Alj Quote
ARIZ. REV. STAT. § 10-3708(F)(4) requires storage of 'electronic votes' not electronic ballots.
Legal Basis
A.R.S. § 10-3708(F)(4)
Topic Tags
Electronic Voting
Records Inspection
Question
Does a spreadsheet or data list of votes count as a valid record of 'ballots' for inspection purposes?
Short Answer
Yes. Data lists generated by voting software are considered compliant records of electronic ballots.
Detailed Answer
When an HOA uses a third-party vendor for online voting, retaining the data lists provided by that vendor (which show member information and votes cast) satisfies the statutory requirement to retain materials in an 'electronic format'.
Alj Quote
Association is in compliance with ARIZ. REV. STAT. § 33-1812(7) by retaining the Vote HOA Now data lists which demonstrate the electronic ballots 'in electronic … format.'
Legal Basis
A.R.S. § 33-1812(7)
Topic Tags
Records Inspection
Electronic Voting
Question
How long must an HOA keep election materials like ballots and sign-in sheets?
Short Answer
The HOA must retain these materials for at least one year.
Detailed Answer
State law mandates that ballots, envelopes, sign-in sheets, and related materials be kept and made available for member inspection for a minimum of one year following the election.
Alj Quote
Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
Legal Basis
A.R.S. § 33-1812(A)(7)
Topic Tags
Record Retention
Elections
Question
What specific features must an online voting system have to be legal?
Short Answer
It must authenticate identity, ensure validity, send a receipt, and store votes.
Detailed Answer
An online voting system is legally permitted if it authenticates the member's identity, ensures the vote is not altered in transit, transmits a receipt to the voter, and stores the electronic votes for recount or inspection.
Alj Quote
online voting system that does all of the following: a. Authenticates the member's identity; b. Authenticates the validity of each electronic vote… c. Transmits a receipt… and d. Stores electronic votes for recount, inspection and review purposes.
Legal Basis
A.R.S. § 10-3708(F)
Topic Tags
Electronic Voting
HOA Obligations
Question
Can I use 'secret ballots' if I am voting by mail or absentee?
Short Answer
Yes, but your name/address must still appear on the envelope.
Detailed Answer
If community documents allow for secret ballots, the ballot itself does not need the voter's signature, but the outer envelope must contain the name, address, and signature to verify eligibility.
Alj Quote
The completed ballot shall contain the name, address and signature of the person voting, except that if the community documents permit secret ballots, only the envelope shall contain the name, address and signature of the voter.
Legal Basis
A.R.S. § 33-1812(A)(6)
Topic Tags
Voting Rights
Privacy
Question
How does the law define 'preponderance of the evidence' in these hearings?
Short Answer
It means the claim is 'more probably true than not'.
Detailed Answer
The standard of proof requires evidence that has the most convincing force and inclines a fair mind to one side of the issue, even if it doesn't remove all doubt.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Case Law (Morris K. Udall)
Topic Tags
Legal Standards
Definitions
Case
Docket No
24F-H047-REL
Case Title
AZNH Revocable Trust v. Sunland Springs Village Homeowners Association
Decision Date
2024-11-05
Alj Name
Kay A. Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
John F. Sullivan(Attorney) AZNH Revocable Trust Counsel for Petitioner
Susan Sullivan(Petitioner Trustee) AZNH Revocable Trust Filed motion for peremptory change of judge
Respondent Side
Chad M. Gallacher(HOA attorney) MAXWELL & MORGAN, P.C. Counsel for Sunland Springs Village Homeowners Association
Kathy Fowers(General Manager) Sunland Springs Village Homeowners Association Custodian of Records; Present at hearing
Paul Minda(board member) Sunland Springs Village Homeowners Association Board President
Mar(board member) Sunland Springs Village Homeowners Association Vice President (Partial name identified)
Cathy Braun(Association Secretary/Treasurer) Sunland Springs Village Homeowners Association Exchanged emails with Petitioner regarding inspection request
Neutral Parties
Kay A. Abramsohn(ALJ) OAH Administrative Law Judge
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
Judge McKish(Judge) Superior Court Superior Court Judge who handled remand; also referred to as Judge McKittish
Other Participants
Mrs. Holden(witness) Present at Superior Court argument with Respondent representatives
Bylaws Article II, Section 8, as amended October 18, 2000
Outcome Summary
The Administrative Law Judge determined that Petitioner failed to sustain the burden of proof required to show the Association violated the purported Bylaws amendment, and therefore, the petition was denied.
Why this result: Petitioner failed to prove the validity or implementation of the purported Bylaws amendment, and the language of the amendment itself was found not to be compulsory in requiring a subsequent meeting.
Key Issues & Findings
Alleged failure to hold a second and subsequent meeting of the membership with a diminished quorum.
Petitioner alleged the Association violated its Bylaws by failing to hold a second meeting with a diminished 15% quorum after failing to meet the initial 25% quorum at the Annual Meeting on January 16, 2024, despite a motion and second being made to adjourn and reset the meeting.
Orders: Petitioner's petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 33-1802(1)
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Analytics Highlights
Topics: HOA Bylaws, Quorum, Annual Meeting, Burden of Proof, Invalid Document, Continuance
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1802(1)
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H035-REL Decision – 1163387.pdf
Uploaded 2026-01-23T18:06:04 (48.4 KB)
24F-H035-REL Decision – 1163395.pdf
Uploaded 2026-01-23T18:06:08 (7.2 KB)
24F-H035-REL Decision – 1165696.pdf
Uploaded 2026-01-23T18:06:11 (49.1 KB)
24F-H035-REL Decision – 1165699.pdf
Uploaded 2026-01-23T18:06:13 (7.3 KB)
24F-H035-REL Decision – 1179128.pdf
Uploaded 2026-01-23T18:06:15 (53.7 KB)
24F-H035-REL Decision – 1179136.pdf
Uploaded 2026-01-23T18:06:19 (7.6 KB)
24F-H035-REL Decision – 1209016.pdf
Uploaded 2026-01-23T18:06:23 (146.3 KB)
Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Jesse Freeman(petitioner) Millett Ranch Homeowners’ Association Member Spelling varies as 'Jesse Freemen' in some sources; also served as Treasurer on the Board 2017-2018.
Nicholas Belisi(witness) Potential witness for Petitioner; seconded the motion to adjourn and reconvene the meeting.
Respondent Side
Augustus H. Shaw IV(HOA attorney) Shaw & Lines, LLC Counsel for Respondent Millett Ranch Homeowners’ Association.
Brandon David Moore(senior community manager/witness) Brown Property Management Senior Community Manager for Respondent Millett Ranch HOA, testified as a witness.
Christopher Redden(Board President/witness) Millett Ranch Homeowners’ Association Former Board President (9 years) and Board Member (13-14 years), testified as a witness.
Mark Saul(HOA attorney) Millett Ranch Homeowners’ Association Identified by Petitioner as the association's attorney who abruptly ended the January 16, 2024 meeting.
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(Commissioner) ADRE
vnunez(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
djones(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
labril(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
mneat(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
akowaleski(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
gosborn(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
Petitioner sustained its burden of proof establishing that Respondents violated CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 by operating a cat rescue business (VKNR) from their residence, which involved unauthorized commercial activity, excessive non-pet animals, and creating a nuisance. Violation of 7.29 was not established. The petition was granted.
Key Issues & Findings
Violation of CC&Rs by operating an unauthorized business out of their home and housing dozens of cats in excess of a reasonable number of household pets, creating a nuisance.
Respondents operated a nonprofit cat rescue (VKNR) from their single-family residence, housing 50+ cats in a 3-car garage, which constituted an unauthorized commercial use, exceeded a reasonable number of pets, and created traffic and waste nuisances.
Orders: Petitioner's petition is granted. Respondents must henceforth abide by CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs section 7.2
CC&Rs section 7.3
CC&Rs section 7.25
CC&Rs section 7.26
CC&Rs section 7.28
CC&Rs section 7.31
Analytics Highlights
Topics: Home Business, Pets/Animals, Nuisance, CC&Rs, Enforcement, HOA
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H003-REL Decision – 1094853.pdf
Uploaded 2026-01-23T18:00:39 (51.0 KB)
24F-H003-REL Decision – 1113338.pdf
Uploaded 2026-01-23T18:00:44 (49.4 KB)
24F-H003-REL Decision – 1125372.pdf
Uploaded 2026-01-23T18:00:48 (65.5 KB)
24F-H003-REL Decision – 1147484.pdf
Uploaded 2026-01-23T18:00:51 (184.8 KB)
Study Guide – 24F-H003-REL
Select all sources
1094853.pdf
1113338.pdf
1113415.aac
1113416.aac
1113417.aac
1125372.pdf
1147484.pdf
No emoji found
Loading
24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 24F-H003-REL
Select all sources
1094853.pdf
1113338.pdf
1113415.aac
1113416.aac
1113417.aac
1125372.pdf
1147484.pdf
No emoji found
Loading
24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Anthony Rossetti(petitioner attorney, property manager) Rossetti Management & Realty Services Represented Petitioner and owned the newly hired management company.
Douglas Karolak(witness, homeowner) VVE-Casa Grande HOA Member Testified on behalf of Petitioner.
Nicole Elliot(property manager) Norris Management Former HOA management committee/manager who issued warning letters.
CD Mai(homeowner/neighbor) VVE-Casa Grande HOA Member Mentioned by Karolak as a vocal opponent/adjacent neighbor to the Eitels.
Respondent Side
Duane Eitel(respondent, witness) VVE-Casa Grande HOA Member Referred to as Duane S Eitel in earlier documents; DE in the decision.
Mary Eitel(respondent) VVE-Casa Grande HOA Member, CEO/Director of Valley Kitten Nursery & Rescue Inc. Referred to as Mary L Eitel in earlier documents.
Kevin Harper(respondent attorney) Harper Law, PLC
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Susan Nicolson(commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
vnunez(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
labril(ADRE staff) Arizona Department of Real Estate
Christopher Sinco(code compliance officer) Pinal County Animal Control Involved in the 2017/2018 county inspection.
Other Participants
Scott Lenderman(property manager) HOA management administrator (prior to Rossetti) Mentioned as the first HOA management administrator.
Petitioner met the burden of proof for both alleged violations: violation of the Declaration (not enforcing the 25ft setback) and violation of A.R.S. § 33-1805 (failing to provide documents). The petition was granted, and Respondent was ordered to reimburse the $1,000.00 filing fee.
Key Issues & Findings
Failure to provide documents
Respondent failed to produce documents requested by Petitioner, specifically meeting minutes discussing the investigative report, within the statutory timeframe, violating A.R.S. § 33-1805.
Orders: Respondent was found in violation of A.R.S. § 33-1805 and Declaration Section F. Respondent shall reimburse Petitioner’s filing fee of $1,000.00.
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }
Blog Post – 24F-H015-REL
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }
Case Participants
Petitioner Side
Teri S. Morcomb(petitioner) Lot 8 owner, testified
J. Ted Morcomb(petitioner) Lot 8 owner
Jeffrey T. Brei(petitioner attorney)
Tracy Allen Bogardis(witness) Civil Engineer Testified regarding drainage/hydrology
Respondent Side
Phillip Brown(HOA attorney)
Kelly Oetinger(HOA attorney)
Robert Leuen(board president) Sierra Tortuga HOA Testified
Marcella Bernadette Aguilar(witness) Sierra Tortuga HOA Lot 9 owner, testified
Abel Sodto(lot owner) Sierra Tortuga HOA Lot 9 owner, former Board/ARC member, subject of violation
Clint Stoddard(board member) Sierra Tortuga HOA Investigator
Benny Medina(board member) Sierra Tortuga HOA Investigator, former president
Joseph D. Martino(ARC member) Sierra Tortuga HOA Former Architectural Committee Head
Chris Stler(board member) Sierra Tortuga HOA Vice President of HOA
Yvon Posche(board member) Sierra Tortuga HOA Secretary of HOA
Steve Brockam(board member) Sierra Tortuga HOA Board Director
Perry Terren(ARC chair) Sierra Tortuga HOA ARC Chairman and Board Director
Jeremy Thompson(law clerk) HOA Attorney's office
Mike Shupe(former HOA attorney)
Neutral Parties
Adam D. Stone(ALJ) OAH
Tim Ross(board member) Sierra Tortuga HOA Former board/investigator, criticized current board actions
Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs)
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's petition, finding that the Petitioner failed to prove that the Association violated CC&Rs Section 2.1 by adopting the Residential Parking Policy. The Policy was deemed a valid clarification authorized by existing CC&R provisions (4.2(t) and 5.3).
Why this result: Petitioner failed to meet the burden of proof required to establish a violation of the governing documents.
Key Issues & Findings
Violation of CC&Rs Section 2.1 regarding adoption of Residential Parking Policy
Petitioner alleged that the Association's adoption of the Residential Parking Policy violated CC&Rs Section 2.1 because the policy used the unauthorized term 'Rules and Regulations' rather than 'restrictions,' thereby attempting to amend the CC&Rs without following the proper process, particularly concerning the use of government-owned property.
Orders: Petitioner's petition was dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA, CC&Rs, Parking Policy, Rules vs Restrictions, Burden of Proof, Planned Community
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H009-REL Decision – 1101544.pdf
Uploaded 2026-01-23T18:01:45 (47.0 KB)
24F-H009-REL Decision – 1111460.pdf
Uploaded 2026-01-23T18:01:48 (102.6 KB)
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Thomas P. Hommrich(petitioner) Property owner, appeared on his own behalf
Respondent Side
Quinten Cupps(HOA attorney) VIal Fotheringham, LLP Represented The Lakewood Community Association
Sandra Smith(community manager) Lakewood Community Association Witness who testified on behalf of Respondent
Neutral Parties
Brian Del Vecchio(ALJ) Office of Administrative Hearings Administrative Law Judge for the hearing and final decision
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Administrative Law Judge who issued the October 12, 2023 Order
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Moses Thompson(Judge) Judge cited in precedent case (Brian Seatic v Lake Resort Condominium)
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
labril(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
Brian Seatic(party) Party in precedent case (Brian Seatic v Lake Resort Condominium) cited during the hearing
Woodland Valley Ranch Property Owners Association, Inc.
Counsel
Kyle A. von Johnson and Edith I. Rudder
Alleged Violations
CC&Rs, Article 3, Section G
Outcome Summary
The ALJ affirmed the petition, finding the Respondent HOA violated CC&Rs, Article 3, Section G by failing to provide 30 days' notice prior to the 2023 assessment increase. The Respondent was ordered to reimburse the Petitioner's filing fee.
Key Issues & Findings
Failure to provide 30-day notice for 2023 dues increase
The HOA increased annual dues from $200.00 to $240.00 effective 1/1/2023 due to a financial crisis caused by embezzlement, but failed to provide the required 30-day written notice as mandated by the CC&Rs. Although the increase was later refunded, the ALJ affirmed the petition finding the HOA failed to comply with the CC&Rs.
Orders: Petitioner's petition is affirmed. Respondent is ordered to reimburse Petitioner's $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs, Article 3, Section G
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
Analytics Highlights
Topics: HOA Dues Increase, Notice Violation, CC&R Violation, Embezzlement, Filing Fee Refund, Assessment Timing
Additional Citations:
CC&Rs, Article 3, Section G
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 41-1092
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
23F-H061-REL Decision – 1077230.pdf
Uploaded 2026-01-23T17:59:31 (41.5 KB)
23F-H061-REL Decision – 1095389.pdf
Uploaded 2026-01-23T17:59:34 (44.3 KB)
23F-H061-REL Decision – 1095762.pdf
Uploaded 2026-01-23T17:59:37 (6.7 KB)
23F-H061-REL Decision – 1102356.pdf
Uploaded 2026-01-23T17:59:42 (110.9 KB)
Questions
Question
Can my HOA raise dues without proper notice if they are facing a severe financial emergency?
Short Answer
No, financial crises do not exempt the HOA from following the notice timelines in the CC&Rs.
Detailed Answer
The ALJ ruled that even though the HOA was in an 'untenable' position due to embezzlement and urgent debts, they were still strictly bound to provide the specific notice (30 days in this case) required by the governing documents before increasing assessments.
Alj Quote
First, while the tribunal sympathizes with the untenable and horrible position that the Association was facing, it still failed to comply with the CCR’s, by not providing the 30 day notice prior to the 2023 yearly Assessment.
Legal Basis
CC&Rs Compliance
Topic Tags
Assessments
Emergency Powers
Notice Requirements
Question
If I win my hearing, will I get my filing fee back even if I tell the judge I don't want it?
Short Answer
Yes, the statute requires the filing fee to be reimbursed if the petitioner prevails, regardless of their personal preference.
Detailed Answer
The judge ordered the HOA to reimburse the $500 filing fee because the relevant statute (A.R.S. § 32-2199.01) binds the tribunal to order reimbursement when the petitioner wins, even though the homeowner explicitly testified she did not wish to recover it.
Alj Quote
At hearing, Petitioner testified that she did not wish to recovery her filing fee, the tribunal is bound by the statute to order the same.
Legal Basis
A.R.S. § 32-2199.01; A.R.S. § 32-2199.02(A)
Topic Tags
Filing Fees
Reimbursement
Statutory Mandates
Question
What level of proof do I need to provide to win a dispute against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probable than not.
Detailed Answer
The homeowner bears the burden of proof. The standard is not 'beyond a reasonable doubt' (like in criminal cases), but rather showing that the evidence is sufficient to incline a fair mind to one side over the other.
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
A.R.S. § 33-1804(D); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Standards
Evidence
Question
Will the judge automatically fine the HOA if I prove they violated the rules?
Short Answer
No, if you do not specifically request a civil penalty in your petition, the judge generally will not award one.
Detailed Answer
In this case, although the HOA was found in violation, the judge ordered that no civil penalty be awarded specifically because the petitioner did not include a request for a penalty in her initial paperwork.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty be awarded as Petitioner did not request the same in her Petition.
Legal Basis
Administrative Discretion
Topic Tags
Civil Penalties
Fines
Petition Drafting
Question
If the HOA fixes the problem (like refunding money) before the decision, is the case dismissed?
Short Answer
Not necessarily; the judge may still issue a decision affirming the violation occurred.
Detailed Answer
The HOA had already refunded the improper assessment increase to members before the decision was written. However, the ALJ still issued an order affirming the petition and finding that the HOA had failed to comply with the CC&Rs.
Alj Quote
The tribunal finds that Petitioner has met her burden. … Fortunately for the Association and the homeowners, it … was able to issue a refund of $40.00 to its members.
Legal Basis
Mootness (Implicitly Rejected)
Topic Tags
Refunds
Violations
Case Outcomes
Case
Docket No
23F-H061-REL
Case Title
Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.
Decision Date
2023-10-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA raise dues without proper notice if they are facing a severe financial emergency?
Short Answer
No, financial crises do not exempt the HOA from following the notice timelines in the CC&Rs.
Detailed Answer
The ALJ ruled that even though the HOA was in an 'untenable' position due to embezzlement and urgent debts, they were still strictly bound to provide the specific notice (30 days in this case) required by the governing documents before increasing assessments.
Alj Quote
First, while the tribunal sympathizes with the untenable and horrible position that the Association was facing, it still failed to comply with the CCR’s, by not providing the 30 day notice prior to the 2023 yearly Assessment.
Legal Basis
CC&Rs Compliance
Topic Tags
Assessments
Emergency Powers
Notice Requirements
Question
If I win my hearing, will I get my filing fee back even if I tell the judge I don't want it?
Short Answer
Yes, the statute requires the filing fee to be reimbursed if the petitioner prevails, regardless of their personal preference.
Detailed Answer
The judge ordered the HOA to reimburse the $500 filing fee because the relevant statute (A.R.S. § 32-2199.01) binds the tribunal to order reimbursement when the petitioner wins, even though the homeowner explicitly testified she did not wish to recover it.
Alj Quote
At hearing, Petitioner testified that she did not wish to recovery her filing fee, the tribunal is bound by the statute to order the same.
Legal Basis
A.R.S. § 32-2199.01; A.R.S. § 32-2199.02(A)
Topic Tags
Filing Fees
Reimbursement
Statutory Mandates
Question
What level of proof do I need to provide to win a dispute against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probable than not.
Detailed Answer
The homeowner bears the burden of proof. The standard is not 'beyond a reasonable doubt' (like in criminal cases), but rather showing that the evidence is sufficient to incline a fair mind to one side over the other.
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
A.R.S. § 33-1804(D); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Standards
Evidence
Question
Will the judge automatically fine the HOA if I prove they violated the rules?
Short Answer
No, if you do not specifically request a civil penalty in your petition, the judge generally will not award one.
Detailed Answer
In this case, although the HOA was found in violation, the judge ordered that no civil penalty be awarded specifically because the petitioner did not include a request for a penalty in her initial paperwork.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty be awarded as Petitioner did not request the same in her Petition.
Legal Basis
Administrative Discretion
Topic Tags
Civil Penalties
Fines
Petition Drafting
Question
If the HOA fixes the problem (like refunding money) before the decision, is the case dismissed?
Short Answer
Not necessarily; the judge may still issue a decision affirming the violation occurred.
Detailed Answer
The HOA had already refunded the improper assessment increase to members before the decision was written. However, the ALJ still issued an order affirming the petition and finding that the HOA had failed to comply with the CC&Rs.
Alj Quote
The tribunal finds that Petitioner has met her burden. … Fortunately for the Association and the homeowners, it … was able to issue a refund of $40.00 to its members.
Legal Basis
Mootness (Implicitly Rejected)
Topic Tags
Refunds
Violations
Case Outcomes
Case
Docket No
23F-H061-REL
Case Title
Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.
Decision Date
2023-10-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Megan E Gardner(petitioner) Property owner of Parcel 222
Respondent Side
Kyle A. von Johnson(HOA attorney) Woodland Valley Ranch Property Owners Association, Inc.
Edith I. Rudder(HOA attorney) Woodland Valley Ranch Property Owners Association, Inc.
Ronald Carter(Treasurer/Witness) Woodland Valley Ranch Property Owners Association, Inc. Treasurer since June 2022. Referred to as 'Ronald Cotter' in the ALJ Decision Findings of Fact.
David Goodman(Witness) Woodland Valley Ranch Property Owners Association, Inc. Appeared remotely; recruited to serve as President after previous board members resigned.
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings (OAH)
Susan Nicolson(Commissioner) Arizona Department of Real Estate (ADRE)
AHansen(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
vnunez(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
djones(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
labril(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
