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
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24F-H035-REL Decision – 1165696.pdf
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24F-H035-REL Decision – 1165699.pdf
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24F-H035-REL Decision – 1179128.pdf
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24F-H035-REL Decision – 1179136.pdf
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24F-H035-REL Decision – 1209016.pdf
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Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Jesse Freeman(petitioner) Millett Ranch Homeowners’ Association Member Spelling varies as 'Jesse Freemen' in some sources; also served as Treasurer on the Board 2017-2018.
Nicholas Belisi(witness) Potential witness for Petitioner; seconded the motion to adjourn and reconvene the meeting.
Respondent Side
Augustus H. Shaw IV(HOA attorney) Shaw & Lines, LLC Counsel for Respondent Millett Ranch Homeowners’ Association.
Brandon David Moore(senior community manager/witness) Brown Property Management Senior Community Manager for Respondent Millett Ranch HOA, testified as a witness.
Christopher Redden(Board President/witness) Millett Ranch Homeowners’ Association Former Board President (9 years) and Board Member (13-14 years), testified as a witness.
Mark Saul(HOA attorney) Millett Ranch Homeowners’ Association Identified by Petitioner as the association's attorney who abruptly ended the January 16, 2024 meeting.
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(Commissioner) ADRE
vnunez(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
djones(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
labril(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
mneat(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
akowaleski(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
gosborn(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
The Administrative Law Judge dismissed the Petitioner's petition, concluding that Petitioner failed to meet her burden of proof that the Rovey Farm Estates Homeowners Association engaged in selective enforcement regarding the shed constructed without prior approval, which violated the CC&Rs and design guidelines.
Why this result: Petitioner failed to provide sufficient evidence of selective enforcement. She admitted her shed was built without prior approval, was taller than the fence line, and was visible from the street, all of which violated the CC&Rs. The evidence presented by the Respondent showed consistent enforcement actions regarding similar violations.
Key Issues & Findings
Alleged selective, arbitrary, and capricious enforcement of CC&Rs regarding shed construction and prior approval.
Petitioner alleged that the HOA selectively enforced its shed policy against her, claiming that her denial for a shed built without prior approval and exceeding the fence height should be excused because other, similar non-compliant sheds existed in the community and were not consistently cited.
Orders: Petitioner's petition was dismissed. Petitioner's request to levy a civil penalty against Respondent was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
CC&Rs Article 2 §§ 3.2, 3.3, and 3.11
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
23F-H055-REL Decision – 1062778.pdf
Uploaded 2026-01-23T17:57:44 (44.1 KB)
23F-H055-REL Decision – 1086088.pdf
Uploaded 2026-01-23T17:57:46 (110.9 KB)
Questions
Question
If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?
Short Answer
The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.
Detailed Answer
In an administrative hearing regarding HOA disputes, the burden falls on the homeowner to provide sufficient evidence that the HOA violated its own CC&Rs or acted arbitrarily. Merely alleging selective enforcement without sufficient proof is not enough to win the case.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs… Petitioner alleged but failed to provide sufficient evidence of Respondent’s supposed selective enforcement.
Legal Basis
Burden of Proof
Topic Tags
selective enforcement
burden of proof
legal procedure
Question
Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?
Short Answer
Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.
Detailed Answer
Most CC&Rs explicitly state that no construction or modification can occur without prior written approval. Admitting to building a structure without this approval constitutes a violation in itself. If the structure also violates design guidelines (e.g., height or visibility), the HOA can enforce the rules against it.
Alj Quote
Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.
Legal Basis
CC&R Violation
Topic Tags
architectural approval
unauthorized construction
violations
Question
If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?
Short Answer
No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.
Detailed Answer
The ALJ decision accepted testimony that while enforcement might have been reduced during a specific event like the COVID-19 pandemic, the HOA is entitled to resume enforcement of rules (such as design guidelines) once normal operations return.
Alj Quote
Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.
Legal Basis
Enforcement Discretion
Topic Tags
waiver
enforcement history
COVID-19
Question
Can the HOA deny my shed if it is visible from the street or taller than the fence line?
Short Answer
Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.
Detailed Answer
Violating specific physical constraints listed in the community documents, such as height restrictions relative to a fence line or visibility from public streets, are valid grounds for the HOA to find a violation and deny approval.
Alj Quote
Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.
Legal Basis
Design Guidelines
Topic Tags
architectural standards
sheds
visibility
Question
What is the 'standard of proof' used in these HOA hearings?
Short Answer
The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.
Detailed Answer
To win an administrative hearing against an HOA, a homeowner does not need to prove their case beyond a reasonable doubt. They must simply show that their claim is 'more probably true than not'—essentially carrying greater evidentiary weight than the opposing side.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Evidentiary Standard
Topic Tags
legal definitions
evidence
hearings
Question
Where can I file a legal dispute against my HOA without going to civil court?
Short Answer
Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.
Detailed Answer
The ADRE has jurisdiction over disputes between owners and planned community associations regarding violations of community documents or statutes. The case is then typically heard by the Office of Administrative Hearings.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department…
Legal Basis
A.R.S. § 32-2199
Topic Tags
jurisdiction
ADRE
dispute resolution
Case
Docket No
23F-H055-REL
Case Title
Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date
2023-08-22
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
If I claim my HOA is engaging in 'selective enforcement', do I have to prove it, or do they have to prove they aren't?
Short Answer
The homeowner (Petitioner) bears the burden of proving selective enforcement by a preponderance of the evidence.
Detailed Answer
In an administrative hearing regarding HOA disputes, the burden falls on the homeowner to provide sufficient evidence that the HOA violated its own CC&Rs or acted arbitrarily. Merely alleging selective enforcement without sufficient proof is not enough to win the case.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs… Petitioner alleged but failed to provide sufficient evidence of Respondent’s supposed selective enforcement.
Legal Basis
Burden of Proof
Topic Tags
selective enforcement
burden of proof
legal procedure
Question
Can my HOA punish me for building a structure (like a shed) without prior approval, even if I apply for approval after building it?
Short Answer
Yes. Building without prior written approval violates standard CC&Rs, and a subsequent application denial is valid if the structure violates guidelines.
Detailed Answer
Most CC&Rs explicitly state that no construction or modification can occur without prior written approval. Admitting to building a structure without this approval constitutes a violation in itself. If the structure also violates design guidelines (e.g., height or visibility), the HOA can enforce the rules against it.
Alj Quote
Petitioner admitted she built her shed without prior approval from the Design Review Committee… all of which are violations of the CC&Rs.
Legal Basis
CC&R Violation
Topic Tags
architectural approval
unauthorized construction
violations
Question
If my HOA relaxed enforcement during a specific period (like the COVID-19 pandemic), does that mean they can never enforce those rules again?
Short Answer
No. A temporary reduction in enforcement during a crisis does not prevent the HOA from resuming enforcement later.
Detailed Answer
The ALJ decision accepted testimony that while enforcement might have been reduced during a specific event like the COVID-19 pandemic, the HOA is entitled to resume enforcement of rules (such as design guidelines) once normal operations return.
Alj Quote
Respondent’s witness testified during COVID enforcement was reduced, however, following the reopening of the economy post-COVID, enforcement was resumed.
Legal Basis
Enforcement Discretion
Topic Tags
waiver
enforcement history
COVID-19
Question
Can the HOA deny my shed if it is visible from the street or taller than the fence line?
Short Answer
Yes, if the CC&Rs or Design Guidelines prohibit structures that are taller than the fence or visible from the street.
Detailed Answer
Violating specific physical constraints listed in the community documents, such as height restrictions relative to a fence line or visibility from public streets, are valid grounds for the HOA to find a violation and deny approval.
Alj Quote
Here, Petitioner admitted… her shed is taller than the current fence line, and the shed can be seen from the street; all of which are violations of the CC&Rs.
Legal Basis
Design Guidelines
Topic Tags
architectural standards
sheds
visibility
Question
What is the 'standard of proof' used in these HOA hearings?
Short Answer
The standard is 'preponderance of the evidence,' which means showing something is more probably true than not.
Detailed Answer
To win an administrative hearing against an HOA, a homeowner does not need to prove their case beyond a reasonable doubt. They must simply show that their claim is 'more probably true than not'—essentially carrying greater evidentiary weight than the opposing side.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Evidentiary Standard
Topic Tags
legal definitions
evidence
hearings
Question
Where can I file a legal dispute against my HOA without going to civil court?
Short Answer
Arizona homeowners can petition the Arizona Department of Real Estate (ADRE) for a hearing.
Detailed Answer
The ADRE has jurisdiction over disputes between owners and planned community associations regarding violations of community documents or statutes. The case is then typically heard by the Office of Administrative Hearings.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department…
Legal Basis
A.R.S. § 32-2199
Topic Tags
jurisdiction
ADRE
dispute resolution
Case
Docket No
23F-H055-REL
Case Title
Rosalie Lynne Emmons vs Rovey Farm Estates Homeowners Association
Decision Date
2023-08-22
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Rosalie Lynne Emmons(petitioner) Rovey Farm Estates property owner; appeared on her own behalf
Respondent Side
Michael S. McLeran(HOA attorney) Childers Hanlon & Hudson, PLC Appeared on behalf of Rovey Farm Estates Homeowners Association
Matt Johnson(community manager/witness) Envision Community Management Community Manager for Rovey Farm Estate; Appeared as a witness for the Association
Mark Schmidt(HOA staff) Envision Community Management Completed exhibit list (Exhibit 7) used by Respondent
Carrie Schmidt(compliance officer) Envision Community Management Compliance inspector responsible for citing violations
Neutral Parties
Brian Del Vecchio(ALJ) OAH Administrative Law Judge
Susan Nicolson(Commissioner) ADRE Arizona Department of Real Estate Commissioner
Other Participants
AHansen(ADRE staff) ADRE Recipient of decision transmission
vnunez(ADRE staff) ADRE Recipient of decision transmission
djones(ADRE staff) ADRE Recipient of decision transmission
labril(ADRE staff) ADRE Recipient of decision transmission
Jose Garcia(homeowner/applicant) Rovey Farm Estates Homeowner whose shed application was denied
The Administrative Law Judge dismissed the petition, finding that Petitioner Harry G. Turner failed to meet his burden of proof to demonstrate that the Mountain Gate Home Owners Association, Inc. violated Article 10 Section 4 of the CC&Rs by planning drainage construction in Tract H.
Why this result: Petitioner failed to provide sufficient evidence to reconcile conflicting designations of Tract H in the plat map (Preserved/Active Open Space vs. Drainage), thus failing to prove that the drainage ditch constituted a prohibited change of use.
Key Issues & Findings
Required membership vote for common area use change (Tract H drainage ditch)
Petitioner alleged the HOA (Respondent) violated CC&Rs Article 10 Section 4 by planning to dig a drainage ditch in Tract H, arguing this was a change of use requiring a 2/3rds membership vote. Respondent argued Tract H was already designated for drainage in the 'Conveyance and Dedication' portion of the plat map, negating the need for a vote.
Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project
Analytics Highlights
Topics: HOA, CC&R, Drainage, Common Area, Change of Use, Burden of Proof, Planned Community, Plat Map
Additional Citations:
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Article 10 Section 4 of the Declaration of Covenants, Conditions, Restrictions and Easements for Mountain Gate Homes, a Townhouse Project
Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.
Legal Basis
Burden of Proof
Topic Tags
legal standards
procedure
Question
What is the legal standard of evidence required to win a case against an HOA?
Short Answer
The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.
Detailed Answer
The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.
Alj Quote
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Legal Basis
Preponderance of Evidence
Topic Tags
evidence
legal definitions
Question
What happens if community documents (like a plat map) contain conflicting descriptions of a common area?
Short Answer
If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.
Detailed Answer
In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.
Alj Quote
Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.
Legal Basis
Burden of Proof
Topic Tags
document interpretation
common areas
Question
Does the Department of Real Estate have jurisdiction over CC&R disputes?
Short Answer
Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.
Detailed Answer
Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.
Alj Quote
This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
A.R.S. § 32-2199
Topic Tags
jurisdiction
regulatory authority
Question
If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?
Short Answer
Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.
Detailed Answer
The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.
Alj Quote
Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.
Legal Basis
CC&R Interpretation
Topic Tags
common areas
voting rights
Question
Can I request a civil penalty be levied against my HOA?
Short Answer
You can request it, but it will be denied if you fail to prove the violation.
Detailed Answer
In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Order
Topic Tags
penalties
remedies
Case
Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Who is responsible for proving that an HOA violated the community's CC&Rs in an administrative hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In a hearing before the Office of Administrative Hearings, it is not the HOA's job to disprove the allegations initially. The homeowner must provide sufficient evidence to prove the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 10 Section 4 of the CC&Rs.
Legal Basis
Burden of Proof
Topic Tags
legal standards
procedure
Question
What is the legal standard of evidence required to win a case against an HOA?
Short Answer
The standard is a 'preponderance of the evidence,' meaning the claim is more probable than not.
Detailed Answer
The homeowner does not need to prove the violation beyond a reasonable doubt. They must simply show that their version of events or interpretation of the documents is more likely true than the HOA's version.
Alj Quote
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Legal Basis
Preponderance of Evidence
Topic Tags
evidence
legal definitions
Question
What happens if community documents (like a plat map) contain conflicting descriptions of a common area?
Short Answer
If the homeowner cannot prove why their preferred description should control, they fail to meet their burden of proof, and the case may be dismissed.
Detailed Answer
In this case, one section of the plat map described the land as 'Open Space' while another described it as 'Drainage.' Because the homeowner could not legally establish why the 'Open Space' description superseded the 'Drainage' description, the judge ruled against them.
Alj Quote
Neither party presented sufficient evidence to determine why their characterization of Tract “H” controlled. Petitioner bears the burden of proof and has failed to provide sufficient evidence to meet his burden.
Legal Basis
Burden of Proof
Topic Tags
document interpretation
common areas
Question
Does the Department of Real Estate have jurisdiction over CC&R disputes?
Short Answer
Yes, they have jurisdiction over disputes between owners and associations regarding violations of community documents or statutes.
Detailed Answer
Homeowners can petition the department for a hearing regarding alleged violations of the community's governing documents (CC&Rs) or state laws regulating planned communities.
Alj Quote
This matter lies within the Department’s jurisdiction… regarding a dispute between an owner and a planned community association. The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
A.R.S. § 32-2199
Topic Tags
jurisdiction
regulatory authority
Question
If an HOA modifies a common area (e.g., digging a ditch), does it always require a member vote?
Short Answer
Not necessarily. If the modification aligns with a designated use in the governing documents (like 'drainage'), it may not constitute a 'change of use' requiring a vote.
Detailed Answer
The homeowner argued a vote was required to change 'Open Space' to a drainage ditch. The HOA argued the land was already dedicated for 'drainage,' so no use change occurred. The judge dismissed the complaint because the homeowner failed to prove it wasn't already a drainage area.
Alj Quote
Respondent argued it did not violate the CC&Rs because it did not change the characteristic of the common area and therefore no change protocols needed to be observed… Petitioner failed to meet his burden.
Legal Basis
CC&R Interpretation
Topic Tags
common areas
voting rights
Question
Can I request a civil penalty be levied against my HOA?
Short Answer
You can request it, but it will be denied if you fail to prove the violation.
Detailed Answer
In this decision, the judge explicitly denied the petitioner's request for a civil penalty after dismissing the petition.
Alj Quote
IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.
Legal Basis
Administrative Order
Topic Tags
penalties
remedies
Case
Docket No
23F-H045-REL
Case Title
Harry G. Turner v Mountain Gate Home Owners Association, Inc.
Decision Date
2023-08-14
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Harry G. Turner(petitioner) Appeared on his own behalf
Respondent Side
Michael Luden(president/representative) Mountain Gate Home Owners Association, Inc. Appeared on behalf of Respondent. Identified as President of the Homeowners Association
Brenda Anderson(witness/secretary) Mountain Gate Home Owners Association, Inc. Witness for Respondent; Secretary of Mountain Gate Homeowners Association
Kelly Callahan(HOA attorney) HOA's attorney who wrote an email regarding the drainage ditch proposal
Neutral Parties
Brian Del Vecchio(ALJ) OAH Administrative Law Judge
Susan Nicolson(Commissioner) Arizona Department of Real Estate Listed in transmission list
Jeremiah Lloyd(Community Development Director) Pinetop Lakeside Community Development Director for Pinetop Lakeside
Bill Best(County Engineer) Navajo County Navajo County Engineer
Emory Ellsworth(engineer) Painted Sky Engineering and Surveying Engineer consulted by Petitioner
John Murphy(engineer) Murphy Engineering Group Engineer whose company provided original certified plans
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Listed in transmission list
vnunez(ADRE staff) Arizona Department of Real Estate Listed in transmission list
djones(ADRE staff) Arizona Department of Real Estate Listed in transmission list
labril(ADRE staff) Arizona Department of Real Estate Listed in transmission list
Ken Anderson(community member) Mentioned as being present when a document was allegedly falsified
The Administrative Law Judge dismissed the Petitioner’s petition because the Petitioner failed to meet her burden of proving that the HOA violated ARS § 33-1804 by failing to hold a properly noticed open board meeting prior to the March 2, 2023, special assessment vote. Evidence suggested issues were discussed in prior committee and board meetings, and Petitioner did not prove informal discussions constituted a violation requiring a finding against the Respondent.
Why this result: Petitioner failed to meet her burden of proof by a preponderance of the evidence that the Respondent's conduct violated ARS § 33-1804.
Key Issues & Findings
Failure to hold open board meeting prior to special assessment meeting
Petitioner alleged the HOA violated open meeting law (ARS § 33-1804) by failing to hold an open board meeting prior to the March 2, 2023, special meeting where members voted on a special assessment, arguing that preliminary discussions and decisions were made unilaterally in supposed closed-door meetings or through email/informal discussions.
Orders: Petitioner's petition is dismissed. Petitioner's request to levy a civil penalty against Respondent is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804
Analytics Highlights
Topics: Open Meeting Law, Special Assessment, Board Meetings, HOA Governance, Committee Meeting
Additional Citations:
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
Tierra Ranchos Homeowners Ass'n v. Kitchukov
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
23F-H057-REL Decision – 1071114.pdf
Uploaded 2026-01-23T17:58:11 (5884.7 KB)
23F-H057-REL Decision – 1071115.pdf
Uploaded 2026-01-23T17:58:14 (7935.6 KB)
23F-H057-REL Decision – 1071120.pdf
Uploaded 2026-01-23T17:58:19 (1989.0 KB)
23F-H057-REL Decision – 1071121.pdf
Uploaded 2026-01-23T17:58:23 (4055.1 KB)
23F-H057-REL Decision – 1071122.pdf
Uploaded 2026-01-23T17:58:27 (676.0 KB)
23F-H057-REL Decision – 1071126.pdf
Uploaded 2026-01-23T17:58:31 (3343.5 KB)
23F-H057-REL Decision – 1071127.pdf
Uploaded 2026-01-23T17:58:36 (3328.5 KB)
23F-H057-REL Decision – 1071503.pdf
Uploaded 2026-01-23T17:58:39 (49.2 KB)
23F-H057-REL Decision – 1079574.pdf
Uploaded 2026-01-23T17:58:42 (114.8 KB)
Questions
Question
What is the burden of proof for a homeowner alleging a violation against their HOA?
Short Answer
The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."
Detailed Answer
In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
legal standards
burden of proof
procedure
Question
Do informal discussions or emails between board members automatically violate open meeting laws?
Short Answer
Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.
Detailed Answer
While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.
Alj Quote
The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
open meetings
emails
board communication
Question
What evidence is required to prove the board held a 'secret' meeting?
Short Answer
The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.
Detailed Answer
Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.
Alj Quote
Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
evidence
secret meetings
quorum
Question
Can a special assessment vote be based on recommendations from a committee meeting held months earlier?
Short Answer
Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.
Detailed Answer
In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.
Alj Quote
The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
special assessments
committees
voting
Question
What does 'preponderance of the evidence' mean in an HOA hearing?
Short Answer
It means the evidence shows the claim is more probably true than not.
Detailed Answer
This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.
Alj Quote
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
legal definitions
evidence
Question
Which HOA meetings are required by law to be open to all members?
Short Answer
Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.
Detailed Answer
Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.
Alj Quote
Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.
Legal Basis
ARIZ. REV. STAT. § 33-1804(A)
Topic Tags
open meetings
homeowner rights
statutes
Case
Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
What is the burden of proof for a homeowner alleging a violation against their HOA?
Short Answer
The homeowner (Petitioner) must prove the violation by a "preponderance of the evidence."
Detailed Answer
In an administrative hearing, the burden is on the homeowner to prove their case. The standard used is 'preponderance of the evidence,' meaning the homeowner must show that their claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1804.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
legal standards
burden of proof
procedure
Question
Do informal discussions or emails between board members automatically violate open meeting laws?
Short Answer
Not necessarily. To constitute a violation, there must be proof that a quorum was present and that board business was actually conducted.
Detailed Answer
While informal discussions or emails might technically constitute a meeting, the homeowner must provide sufficient evidence that a quorum of board members was involved and that they were conducting actual board business to prove a violation of the open meeting statute.
Alj Quote
The informal discussions and emails between board members may have constituted board meetings under ARIZ. REV. STAT. § 33-1804, however, Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
open meetings
emails
board communication
Question
What evidence is required to prove the board held a 'secret' meeting?
Short Answer
The homeowner must provide sufficient evidence that a quorum met and that specific board business was conducted.
Detailed Answer
Allegations of closed-door meetings fail if the homeowner cannot prove that enough board members were present to form a quorum and that they engaged in board business during that time.
Alj Quote
Petitioner failed to provide sufficient evidence the number of board members meeting constituted a quorum which would thereby require notice to homeowners. Furthermore, Petitioner failed to provide sufficient evidence board business was conducted during these putative board meetings.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
evidence
secret meetings
quorum
Question
Can a special assessment vote be based on recommendations from a committee meeting held months earlier?
Short Answer
Yes, if the committee meeting was valid, its recommendations can serve as the basis for a later vote.
Detailed Answer
In this decision, the ALJ found that a special assessment vote in March 2023 was validly based on maintenance recommendations generated during an architectural committee meeting held the previous August.
Alj Quote
The special assessment which was voted on during the March 2, 2023, special meeting were maintenance recommendations from the architectural committee meeting on August 18, 2022.
Legal Basis
ARIZ. REV. STAT. § 33-1804
Topic Tags
special assessments
committees
voting
Question
What does 'preponderance of the evidence' mean in an HOA hearing?
Short Answer
It means the evidence shows the claim is more probably true than not.
Detailed Answer
This legal standard requires evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue, even if it doesn't remove all reasonable doubt.
Alj Quote
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
legal definitions
evidence
Question
Which HOA meetings are required by law to be open to all members?
Short Answer
Meetings of the members, the board of directors, and any regularly scheduled committee meetings must be open.
Detailed Answer
Arizona statute explicitly requires that meetings of the members' association, the board of directors, and regularly scheduled committee meetings be open to all association members, notwithstanding contrary bylaws.
Alj Quote
Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association.
Legal Basis
ARIZ. REV. STAT. § 33-1804(A)
Topic Tags
open meetings
homeowner rights
statutes
Case
Docket No
23F-H057-REL
Case Title
Wanda Swartling v Val Vista Park Townhome Association of Mesa
Decision Date
2023-08-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Wanda Swartling(petitioner) Val Vista Park Townhome Association Homeowner, VVP Unit 82
Respondent Side
Chad Gallacher(HOA attorney) Maxwell & Morgan, P.C.
Steve Cheff(property manager / witness) Heywood Community Management Also community manager
Patti Locks(board member) Val Vista Park HOA Also listed as candidate/incumbent
Stephanie Hamrock(board member / witness) Val Vista Park HOA
Troy Goudeau(board member) Val Vista Park HOA Elected director
Paul Wilcox(board member) Val Vista Park HOA Elected director
Bettie Smiley(board member) Val Vista Park HOA
Carlee Collins(administrative assistant) Heywood Community Management
Paradise Park Condominiums Phase II Homeowners Association
Counsel
Ashley N. Moscarello
Alleged Violations
Article II Section 3 of Respondent’s bylaws
Outcome Summary
The Administrative Law Judge affirmed the Petitioner's claim, finding that the HOA violated Article II Section 3 of its bylaws by failing to hold the Annual Meeting on the second Monday of March (March 13, 2023). The HOA was ordered to reimburse the Petitioner's $500.00 filing fee, but a request for a civil penalty was denied.
Key Issues & Findings
Failure to hold an annual meeting as required by bylaws
The HOA failed to hold the mandatory annual meeting on March 13, 2023, as explicitly required by the amended bylaws (Article II Section 3). The meeting was subsequently scheduled for May 8, 2023, 56 days late, constituting a violation, even though the later meeting failed to meet quorum.
Orders: Petitioner’s petition is affirmed. Respondent shall reimburse Petitioner’s filing fee of $500.00. Petitioner’s request to levy a civil penalty against Respondent is denied.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
23F-H053-REL Decision – 1072068.pdf
Uploaded 2026-01-23T17:57:32 (115.3 KB)
Study Guide – 23F-H053-REL
{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }
Blog Post – 23F-H053-REL
{ “case”: { “docket_no”: “23F-H053-REL”, “case_title”: “Deborah L. Masear v. Paradise Park Condominiums Phase II Homeowners Association”, “decision_date”: “2023-07-10”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If the bylaws state a specific date for the annual meeting, can the HOA board reschedule it to a different month?”, “short_answer”: “No. If the bylaws use mandatory language like “shall,” the HOA cannot change the date.”, “detailed_answer”: “The ALJ determined that when bylaws state a meeting “shall be held” on a specific date, this language is mandatory and not permissive. The HOA does not have the discretion to change the date of the annual meeting if the governing documents specify exactly when it must occur.”, “alj_quote”: “Respondent’s Bylaws state, ‘[t]he annual meeting of the members shall be held,’ at the designated date and time annually. The phrase ‘shall be held’ is not permissive; there is no changing the date of the annual meeting.”, “legal_basis”: “Bylaws Article II Section 3”, “topic_tags”: [ “Annual Meetings”, “Bylaws Interpretation”, “HOA Obligations” ] }, { “question”: “Does a meeting count as being ‘held’ if the HOA schedules it but fails to reach a quorum?”, “short_answer”: “No. If a quorum is not present, the meeting is legally considered not to have been held.”, “detailed_answer”: “Even if the HOA sends notice and attempts to convene, the failure to achieve a quorum means the meeting cannot conduct business. The ALJ ruled that in such cases, the meeting was not actually held, resulting in a violation if the bylaws required a meeting on that date.”, “alj_quote”: “Respondent attempted to hold an annual meeting on May 8, 2023, and but for the lack of quorum, the meeting was not held.”, “legal_basis”: “Findings of Fact”, “topic_tags”: [ “Quorum”, “Annual Meetings”, “Procedural Requirements” ] }, { “question”: “If I win my dispute against the HOA, will I get my $500 filing fee back?”, “short_answer”: “Yes. The ALJ has the authority to order the HOA to reimburse the filing fee to the prevailing homeowner.”, “detailed_answer”: “In this decision, after ruling in favor of the homeowner regarding the failure to hold the annual meeting, the judge ordered the HOA to reimburse the $500 filing fee the homeowner paid to initiate the case.”, “alj_quote”: “IT IS FURTHER ORDERED Respondent shall reimburse Petitioner’s filing fee of $500.00 pursuant to ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.02(A)”, “topic_tags”: [ “Remedies”, “Filing Fees”, “Costs” ] }, { “question”: “Will the HOA automatically be fined a civil penalty if they are found to have violated the bylaws?”, “short_answer”: “No. The ALJ may deny a request for civil penalties even if they find that a violation occurred.”, “detailed_answer”: “While the homeowner in this case requested a civil penalty be levied against the HOA for the violation, the ALJ explicitly denied this request in the final order, despite ruling that the HOA had violated the bylaws.”, “alj_quote”: “IT IS FURTHER ORDERED that Petitioner’s request to levy a civil penalty against Respondent is denied.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “Penalties”, “Remedies”, “Enforcement” ] }, { “question”: “Who has to prove that the HOA violated the rules?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing before the OAH, the person bringing the complaint must prove their case by a ‘preponderance of the evidence.’ It is not up to the HOA to prove they are innocent; the homeowner must prove the violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article II Section 3 of the Bylaws.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “Burden of Proof”, “Legal Standards”, “Hearing Procedures” ] }, { “question”: “What kind of HOA disputes can I file with the Arizona Department of Real Estate?”, “short_answer”: “You can file petitions regarding violations of community documents (CC&Rs, bylaws) or state statutes regulating planned communities.”, “detailed_answer”: “The Department has jurisdiction to hear disputes between owners and associations specifically concerning violations of the community’s governing documents or the relevant Arizona statutes regulating these communities.”, “alj_quote”: “The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities…”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.”, “topic_tags”: [ “Jurisdiction”, “ADRE”, “Filing a Complaint” ] } ] }
Case Participants
Petitioner Side
Deborah Masear(petitioner) Paradise Park Condominiums Phase II HOA Member Also referred to as Deborah Maer
Respondent Side
Ashley Moscarello(HOA attorney) Goodman Law Group Appeared on behalf of Respondent
Carl Westlund(witness) Management Trust Community Manager for the HOA
Neutral Parties
Brian Del Vecchio(ALJ) OAH Also referred to as Judge Delio
The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.
Why this result: Respondents admitted to the alleged conduct and failed to establish a sufficient affirmative defense (incomplete CC&Rs) against the violation, as the recorded CC&Rs provided constructive notice of all provisions. Respondents' conduct during testimony was also considered a factor in aggravation.
Respondents permanently installed tile on their front porch entryway without obtaining prior written approval. The ALJ rejected the Respondents' defense regarding missing CC&R pages, noting the HOA sustained its burden of proving a community document violation by a preponderance of the evidence.
Orders: Respondents must henceforth abide by CC&Rs Section 3(j), reimburse the Petitioner $500.00 for the filing fee, and pay a $100.00 civil penalty to the Department.
Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?
Short Answer
No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.
Detailed Answer
The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.
Alj Quote
The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents
Legal Basis
Constructive Notice
Topic Tags
CC&Rs
disclosure
compliance
Question
Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?
Short Answer
Yes, especially if the HOA is responsible for maintaining the exterior surfaces.
Detailed Answer
The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.
Alj Quote
Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.
Legal Basis
CC&Rs Contractual Obligations
Topic Tags
architectural control
maintenance
visibility
Question
Can I fix a violation for unapproved flooring by simply covering it with a rug?
Short Answer
No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.
Detailed Answer
The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.
Alj Quote
The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.
Legal Basis
Remedy of Violation
Topic Tags
violations
remedies
architectural control
Question
Who has the burden of proof in an administrative hearing regarding an HOA dispute?
Short Answer
The Petitioner (the party bringing the case) bears the burden of proof.
Detailed Answer
The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
evidence
Question
If I lose the hearing, do I have to reimburse the HOA for their filing fee?
Short Answer
Yes. The prevailing party is typically entitled to reimbursement of the filing fee.
Detailed Answer
The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.01
Topic Tags
fees
costs
penalties
Question
Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?
Short Answer
Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.
Detailed Answer
In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
civil penalty
fines
ADRE
Question
Does my behavior during the dispute process affect the judge's decision?
Short Answer
Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.
Detailed Answer
The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.
Alj Quote
Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.
Legal Basis
Judicial Discretion
Topic Tags
conduct
hearing process
aggravating factors
Case
Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?
Short Answer
No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.
Detailed Answer
The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.
Alj Quote
The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents
Legal Basis
Constructive Notice
Topic Tags
CC&Rs
disclosure
compliance
Question
Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?
Short Answer
Yes, especially if the HOA is responsible for maintaining the exterior surfaces.
Detailed Answer
The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.
Alj Quote
Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.
Legal Basis
CC&Rs Contractual Obligations
Topic Tags
architectural control
maintenance
visibility
Question
Can I fix a violation for unapproved flooring by simply covering it with a rug?
Short Answer
No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.
Detailed Answer
The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.
Alj Quote
The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.
Legal Basis
Remedy of Violation
Topic Tags
violations
remedies
architectural control
Question
Who has the burden of proof in an administrative hearing regarding an HOA dispute?
Short Answer
The Petitioner (the party bringing the case) bears the burden of proof.
Detailed Answer
The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
evidence
Question
If I lose the hearing, do I have to reimburse the HOA for their filing fee?
Short Answer
Yes. The prevailing party is typically entitled to reimbursement of the filing fee.
Detailed Answer
The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.01
Topic Tags
fees
costs
penalties
Question
Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?
Short Answer
Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.
Detailed Answer
In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
civil penalty
fines
ADRE
Question
Does my behavior during the dispute process affect the judge's decision?
Short Answer
Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.
Detailed Answer
The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.
Alj Quote
Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.
Legal Basis
Judicial Discretion
Topic Tags
conduct
hearing process
aggravating factors
Case
Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael Shupe(HOA attorney) Goldschmidt Shupe, PLLC Appeared as counsel for Petitioner
Carolyn B. Goldschmidt(HOA attorney) Goldschmidt Shupe, PLLC Legal counsel for the Association; communication contact listed
Lori Don Woullet(Property Manager/Witness) Cadden Community Management Senior Community Association Manager
Diane Patricia Weber(Former Board Member/Witness) Quail Creek Villas Association, Inc. Former Board Treasurer
Lynn Birleffi(Witness) Quail Creek Villas Association, Inc. Called as a witness for Petitioner
Respondent Side
Randall White(Respondent) Quail Creek Villas Association, Inc. Appeared pro se and testified
Gisela White(Respondent) Quail Creek Villas Association, Inc. Appearance waived
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings Presiding Administrative Law Judge
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate
The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.
Why this result: The Bylaws did not strictly require elections be held, and Petitioner failed to object to the board remaining in place to oversee the dissolution.
Key Issues & Findings
Annual meeting
Petitioner alleged the HOA violated Article 2.1 of the Bylaws by failing to hold Board of Directors elections at the 2021 annual meeting. Respondent argued the language ('for the purpose of electing or announcing the results') did not require elections and that the dissolution vote superseded the immediate need for elections, especially since no one objected at 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. § 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)
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)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Decision Documents
23F-H031-REL Decision – 1035344.pdf
Uploaded 2026-01-23T17:53:49 (51.8 KB)
23F-H031-REL Decision – 1049021.pdf
Uploaded 2026-01-23T17:53:51 (114.7 KB)
Study Guide – 23F-H031-REL
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23F-H031-REL
3 sources
These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.
What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.
Thursday, February 12
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Today • 2:17 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 23F-H031-REL
Select all sources
1035344.pdf
1045278.aac
1049021.pdf
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23F-H031-REL
3 sources
These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.
What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.
Thursday, February 12
Save to note
Today • 2:17 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Clifford S. Burnes(petitioner) Saguaro Crest Homeowners' Association Member Also referred to as Clifford (Norm) Burnes.
Respondent Side
John T. Crotty(HOA attorney) Saguaro Crest Homeowners' Association
Esmerina Martinez(board member) Saguaro Crest Homeowners' Association President; referred to as Serena Martinez or Esmerelda Martinez in sources.
Dave Madill(board member) Saguaro Crest Homeowners' Association Vice President; referred to as Dave Matt or Dave Mel in testimony.
Joseph Martinez(board member) Saguaro Crest Homeowners' Association
Neutral Parties
Adam D. Stone(ALJ) OAH
Susan Nicolson(Commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
djones(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
labril(ADRE staff) Arizona Department of Real Estate Recipient of official transmittal.
Sun City West Dec CC&Rs Article 4.2(F); Deer Valley CC&Rs Articles 1.16, 6.2, 2.3, 7.1, 7.3; Deer Valley HOA Rules & Regulations ¶ 7.1 and 7.2
Outcome Summary
The Administrative Law Judge denied the petition, concluding Petitioner failed to sustain the burden of proof that the Association violated community documents by failing to replace trees on Member lots. The CC&Rs did not establish a duty for the HOA to replace homeowner trees.
Why this result: Petitioner failed to meet the burden of proof; Petitioner was not an aggrieved party; Petitioner failed to establish causation by Respondent or duty to act by Respondent; trees belong to homeowners, and the Deer Valley CC&Rs do not require the HOA to replace trees under its maintenance obligations.
Key Issues & Findings
Whether Respondent is responsible for replacing dead and/or dying trees on all Member Lots in accordance with cited community documents.
Petitioner alleged the HOA violated governing documents by failing to replace dead trees on member lots, and sought an order compelling the replacement of 59 missing trees (at a rate of 10 per year).
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
Sun City West Dec CC&Rs Article 4.2(F)
Deer Valley CC&Rs Article 1.16
Deer Valley CC&Rs Article 6.2
Deer Valley CC&Rs Article 2.3
Deer Valley CC&Rs Article 7.1
Deer Valley CC&Rs Article 7.3
Deer Valley HOA Rules & Regulations ¶ 7.1
Deer Valley HOA Rules & Regulations ¶ 7.2
Analytics Highlights
Topics: HOA dispute, Landscape maintenance, Tree replacement, Burden of proof, Standing
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. REV. STAT. Title 33, Chapter 16, Article 1
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)
If the CC&Rs require the HOA to perform 'maintenance', does that legally obligate them to replace dead plants or trees?
Short Answer
Not necessarily. The term 'maintenance' does not automatically include 'replacement' unless specified in the governing documents.
Detailed Answer
In this case, the HOA was found not to be in violation for refusing to replace trees because the CC&Rs governed 'maintenance,' which was interpreted as distinct from a requirement to replace items owned by the homeowner. The ALJ ruled the homeowner failed to prove the HOA had a duty to replace the trees.
Alj Quote
The Board declined Petitioner’s request, as it had concluded that the Deer Valley CC&Rs did not require replacement of trees under its maintenance obligations.
Legal Basis
Contract Interpretation / CC&Rs
Topic Tags
Maintenance vs Replacement
CC&Rs
Landscaping
Question
Can I file a petition against my HOA on behalf of the entire community regarding a general issue?
Short Answer
No. You must be an 'aggrieved party' with a specific injury to yourself or your property.
Detailed Answer
A homeowner cannot sue on behalf of other community members. To have standing, the petitioner must demonstrate that they personally suffered an injury. In this case, the petitioner had no dead trees on his own lot, so he was not considered an aggrieved party.
Alj Quote
Here, Petitioner is not an aggrieved party. Petitioner admitted that he brought forth his petition 'on behalf of all community members' and did not have a dead, dying, or missing tree on his lot.
Legal Basis
Standing / Aggrieved Party Status
Topic Tags
Standing
Procedural Requirements
Question
Can I argue that my neighbor's violations are diminishing my property value in an administrative hearing?
Short Answer
Generally, no, unless you have concrete evidence and it is a justiciable issue.
Detailed Answer
Claims that a neighbor's lack of maintenance (like dead trees) negatively impacts your property value may be dismissed as irrelevant or unsupported without significant proof. The tribunal may consider this non-justiciable.
Alj Quote
Notably, Petitioner’s allegation that his lot’s value has been diminished by neighboring lots due to their dead, dying, and/or missing trees is irrelevant, not supported by the record, and is not a justiciable issue for this tribunal.
Legal Basis
Evidence / Justiciable Issues
Topic Tags
Property Value
Evidence
Question
If I pay a filing fee for one issue, can I add other complaints to the hearing later?
Short Answer
No. The tribunal will only address the specific issue for which the filing fee was paid.
Detailed Answer
Administrative hearings are limited in scope to the specific issues properly petitioned and paid for. Tangential issues raised in addendums or during the hearing will likely not be adjudicated if a separate fee was not paid.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioner raised in the addendum to his petition.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
Filing Fees
Scope of Hearing
Question
Does the HOA have the authority to remove items (like trees) from my private lot without permission?
Short Answer
No, unless the governing documents explicitly grant that authority.
Detailed Answer
The HOA generally cannot enter a homeowner's lot to remove property, such as trees, without the owner's permission, unless the record establishes specific authority to do so.
Alj Quote
There is nothing in the record that establishes Respondent has the authority to remove a tree from a homeowner’s lot without permission, or that Respondent has done so in the past.
Legal Basis
Property Rights / HOA Authority
Topic Tags
Homeowner Rights
Trespass/Authority
Question
What level of proof is required for a homeowner to win a case against their HOA?
Short Answer
The standard is 'preponderance of the evidence'.
Detailed Answer
The petitioner must prove that their claim is more likely true than not. This is a lower standard than 'beyond a reasonable doubt' used in criminal cases, but still requires superior evidentiary weight.
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
Burden of Proof
Topic Tags
Legal Standards
Evidence
Question
Can I base my claim on the 'Master Association' CC&Rs if my specific HOA CC&Rs say something different?
Short Answer
Generally, the specific HOA CC&Rs form the enforceable contract for maintenance issues within that specific subdivision.
Detailed Answer
While a Master Association may have its own rules, the specific subdivision's CC&Rs are often the controlling documents regarding maintenance obligations for lots within that subdivision. The ALJ focused on the specific HOA's documents to determine liability.
Alj Quote
The record reflects that the Deer Valley CC&Rs govern landscaping maintenance for the Association… [and] did not require Respondent to replace dead, dying, or missing trees within the Association
Legal Basis
Governing Documents Hierarchy
Topic Tags
CC&Rs
Master Association
Case
Docket No
23F-H003-REL
Case Title
Matthew E Thompson vs. Deer Valley Homeowners Association Inc.
Decision Date
2022-12-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If the CC&Rs require the HOA to perform 'maintenance', does that legally obligate them to replace dead plants or trees?
Short Answer
Not necessarily. The term 'maintenance' does not automatically include 'replacement' unless specified in the governing documents.
Detailed Answer
In this case, the HOA was found not to be in violation for refusing to replace trees because the CC&Rs governed 'maintenance,' which was interpreted as distinct from a requirement to replace items owned by the homeowner. The ALJ ruled the homeowner failed to prove the HOA had a duty to replace the trees.
Alj Quote
The Board declined Petitioner’s request, as it had concluded that the Deer Valley CC&Rs did not require replacement of trees under its maintenance obligations.
Legal Basis
Contract Interpretation / CC&Rs
Topic Tags
Maintenance vs Replacement
CC&Rs
Landscaping
Question
Can I file a petition against my HOA on behalf of the entire community regarding a general issue?
Short Answer
No. You must be an 'aggrieved party' with a specific injury to yourself or your property.
Detailed Answer
A homeowner cannot sue on behalf of other community members. To have standing, the petitioner must demonstrate that they personally suffered an injury. In this case, the petitioner had no dead trees on his own lot, so he was not considered an aggrieved party.
Alj Quote
Here, Petitioner is not an aggrieved party. Petitioner admitted that he brought forth his petition 'on behalf of all community members' and did not have a dead, dying, or missing tree on his lot.
Legal Basis
Standing / Aggrieved Party Status
Topic Tags
Standing
Procedural Requirements
Question
Can I argue that my neighbor's violations are diminishing my property value in an administrative hearing?
Short Answer
Generally, no, unless you have concrete evidence and it is a justiciable issue.
Detailed Answer
Claims that a neighbor's lack of maintenance (like dead trees) negatively impacts your property value may be dismissed as irrelevant or unsupported without significant proof. The tribunal may consider this non-justiciable.
Alj Quote
Notably, Petitioner’s allegation that his lot’s value has been diminished by neighboring lots due to their dead, dying, and/or missing trees is irrelevant, not supported by the record, and is not a justiciable issue for this tribunal.
Legal Basis
Evidence / Justiciable Issues
Topic Tags
Property Value
Evidence
Question
If I pay a filing fee for one issue, can I add other complaints to the hearing later?
Short Answer
No. The tribunal will only address the specific issue for which the filing fee was paid.
Detailed Answer
Administrative hearings are limited in scope to the specific issues properly petitioned and paid for. Tangential issues raised in addendums or during the hearing will likely not be adjudicated if a separate fee was not paid.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioner raised in the addendum to his petition.
Legal Basis
ARIZ. REV. STAT. § 32-2199.05
Topic Tags
Filing Fees
Scope of Hearing
Question
Does the HOA have the authority to remove items (like trees) from my private lot without permission?
Short Answer
No, unless the governing documents explicitly grant that authority.
Detailed Answer
The HOA generally cannot enter a homeowner's lot to remove property, such as trees, without the owner's permission, unless the record establishes specific authority to do so.
Alj Quote
There is nothing in the record that establishes Respondent has the authority to remove a tree from a homeowner’s lot without permission, or that Respondent has done so in the past.
Legal Basis
Property Rights / HOA Authority
Topic Tags
Homeowner Rights
Trespass/Authority
Question
What level of proof is required for a homeowner to win a case against their HOA?
Short Answer
The standard is 'preponderance of the evidence'.
Detailed Answer
The petitioner must prove that their claim is more likely true than not. This is a lower standard than 'beyond a reasonable doubt' used in criminal cases, but still requires superior evidentiary weight.
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
Burden of Proof
Topic Tags
Legal Standards
Evidence
Question
Can I base my claim on the 'Master Association' CC&Rs if my specific HOA CC&Rs say something different?
Short Answer
Generally, the specific HOA CC&Rs form the enforceable contract for maintenance issues within that specific subdivision.
Detailed Answer
While a Master Association may have its own rules, the specific subdivision's CC&Rs are often the controlling documents regarding maintenance obligations for lots within that subdivision. The ALJ focused on the specific HOA's documents to determine liability.
Alj Quote
The record reflects that the Deer Valley CC&Rs govern landscaping maintenance for the Association… [and] did not require Respondent to replace dead, dying, or missing trees within the Association
Legal Basis
Governing Documents Hierarchy
Topic Tags
CC&Rs
Master Association
Case
Docket No
23F-H003-REL
Case Title
Matthew E Thompson vs. Deer Valley Homeowners Association Inc.
Decision Date
2022-12-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Matthew E Thompson(petitioner) Also referred to as Mathew E. Thompson; Appeared on his own behalf
Respondent Side
Beth Mulcahy(HOA attorney) Mulcahy Law Firm, PC Also referred to as Beth Mohei, Beth Moi, or Beth Mali
Haidyn DiLorenzo(HOA attorney) Mulcahy Law Firm, PC Also referred to as Hayden Dorenzo
Charles Dean Otto(Board President; witness) Deer Valley Homeowners Association Inc. Also referred to as Charles Deano; President of the board of management
Neutral Parties
Jenna Clark(ALJ) OAH Administrative Law Judge
Other Participants
Louis Dettorre(ADRE Commissioner) Arizona Department of Real Estate
Dan Gardener(ADRE staff) Arizona Department of Real Estate Constituent Services Manager
Miranda Alvarez(Legal Secretary) Transmitted electronic order
c. serrano(OAH staff) OAH Transmitted Minute Entry
Sam Muza(Contractor President) Verde Valley Landscape Services Signed contract with HOA
Charlene Frost(homeowner) Filed Request for Exterior Change application
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of official correspondence
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of official correspondence
djones(ADRE staff) Arizona Department of Real Estate Recipient of official correspondence
labril(ADRE staff) Arizona Department of Real Estate Recipient of official correspondence
ARIZ. REV. STAT. §§ 33-1243(B) and Community Bylaws 3.1 and 3.6
Outcome Summary
The ALJ found the Board acted within its lawful authority because the governing documents and statute cited did not explicitly prohibit a Board Member from resigning and immediately being appointed to fill an unexpired term to elongate their service, and Petitioner failed to meet the burden of proof.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6. The Tribunal found the Board’s action, though potentially questionable, was not unlawful.
Key Issues & Findings
Whether the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6 by appointing an existing board member to fill a vacancy, effectively extending her term.
The Board appointed existing Board member Joan Robley to fill the unexpired term of Board Member Gallu (expiring Jan 2023) immediately after she resigned her own seat (expiring Jan 2021), which Petitioner alleged violated governing documents by extending her term and not genuinely filling a vacancy.
Orders: Petitioner's petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1243(B)
Community Bylaws 3.1
Community Bylaws 3.6
ARIZ. REV. STAT. § 32-2199.05
Analytics Highlights
Topics: Board Vacancy, Term Extension, Bylaw Interpretation, Resignation and Reappointment, ARS 33-1243(B)
Additional Citations:
ARIZ. REV. STAT. § 33-1243(B)
Community Bylaws 3.1
Community Bylaws 3.6
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
22F-H2221021-REL Decision – 948752.pdf
Uploaded 2026-01-23T17:42:33 (130.2 KB)
Questions
Question
Can a board member resign and immediately be appointed to a different vacancy to get a longer term?
Short Answer
Yes, unless the governing documents specifically prohibit it.
Detailed Answer
The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.
Alj Quote
Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.
Legal Basis
A.R.S. § 33-1243(B); Bylaws Section 3.6
Topic Tags
Board Vacancies
Term Limits
Board Appointments
Question
Does the HOA board have to choose a new person ('new blood') when filling a vacancy?
Short Answer
No, the board is not required to select a new person.
Detailed Answer
There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.
Alj Quote
There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.
Legal Basis
Bylaws Interpretation
Topic Tags
Board Qualifications
Vacancies
Question
Does the board have the authority to fill vacancies without holding a general membership election?
Short Answer
Yes, the board generally has the statutory authority to appoint members to fill vacancies.
Detailed Answer
Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.
Alj Quote
The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'
Legal Basis
A.R.S. § 33-1243(B)
Topic Tags
Elections
Board Authority
Question
Is a board decision illegal just because it is 'questionable' or unpopular?
Short Answer
No, a questionable choice is not necessarily unlawful.
Detailed Answer
The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.
Alj Quote
Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.
Legal Basis
Board Discretion
Topic Tags
Board Conduct
Decision Making
Question
What burden of proof does a homeowner have when challenging an HOA in a hearing?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) is responsible for providing enough evidence to convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
A.A.C. R2-19-119
Topic Tags
Legal Standards
Hearings
Question
Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?
Short Answer
Yes, the OAH tribunal can interpret the contract between the parties.
Detailed Answer
The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.
Alj Quote
OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.
Legal Basis
A.R.S. § 32-2199 et seq.
Topic Tags
Jurisdiction
Contract Interpretation
Question
If I pay for a single-issue petition, can the judge rule on other related issues?
Short Answer
No, the tribunal is limited to the specific issue paid for.
Detailed Answer
The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.
Legal Basis
A.R.S. § 32-2199.05
Topic Tags
Procedure
Fees
Case
Docket No
22F-H2221021-REL
Case Title
Dean A Yelenik vs. Meridian Condominiums Homeowners Association
Decision Date
2022-02-18
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
Can a board member resign and immediately be appointed to a different vacancy to get a longer term?
Short Answer
Yes, unless the governing documents specifically prohibit it.
Detailed Answer
The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.
Alj Quote
Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.
Legal Basis
A.R.S. § 33-1243(B); Bylaws Section 3.6
Topic Tags
Board Vacancies
Term Limits
Board Appointments
Question
Does the HOA board have to choose a new person ('new blood') when filling a vacancy?
Short Answer
No, the board is not required to select a new person.
Detailed Answer
There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.
Alj Quote
There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.
Legal Basis
Bylaws Interpretation
Topic Tags
Board Qualifications
Vacancies
Question
Does the board have the authority to fill vacancies without holding a general membership election?
Short Answer
Yes, the board generally has the statutory authority to appoint members to fill vacancies.
Detailed Answer
Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.
Alj Quote
The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'
Legal Basis
A.R.S. § 33-1243(B)
Topic Tags
Elections
Board Authority
Question
Is a board decision illegal just because it is 'questionable' or unpopular?
Short Answer
No, a questionable choice is not necessarily unlawful.
Detailed Answer
The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.
Alj Quote
Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.
Legal Basis
Board Discretion
Topic Tags
Board Conduct
Decision Making
Question
What burden of proof does a homeowner have when challenging an HOA in a hearing?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) is responsible for providing enough evidence to convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
A.A.C. R2-19-119
Topic Tags
Legal Standards
Hearings
Question
Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?
Short Answer
Yes, the OAH tribunal can interpret the contract between the parties.
Detailed Answer
The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.
Alj Quote
OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.
Legal Basis
A.R.S. § 32-2199 et seq.
Topic Tags
Jurisdiction
Contract Interpretation
Question
If I pay for a single-issue petition, can the judge rule on other related issues?
Short Answer
No, the tribunal is limited to the specific issue paid for.
Detailed Answer
The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.
Legal Basis
A.R.S. § 32-2199.05
Topic Tags
Procedure
Fees
Case
Docket No
22F-H2221021-REL
Case Title
Dean A Yelenik vs. Meridian Condominiums Homeowners Association
Decision Date
2022-02-18
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Arthur Dean Yelenik(petitioner) Also goes by Dean Yelenik
Kristen Terry Beloo(homeowner/past board president) Part of petitioner's working group; Past president (6 years)
Kathleen Moles(homeowner/past board president) Part of petitioner's working group; Past president (3 years)
David Moles(homeowner) Part of petitioner's working group
Respondent Side
Eadie Rudder(respondent attorney)
Nick Eicher(respondent attorney) Carpenter, Hazlewood, Delgado & Bolen LLP
Margo McInnis(board president/witness) Meridian Condominiums Homeowners Association Testified for Respondent
Joan Robley(board member) Meridian Condominiums Homeowners Association Appointment subject of dispute
Annette(property manager) Century Management Referred to as Community Manager
Quinton Phillips(HOA attorney) Attorney for the Association
Neutral Parties
Jenna Clark(ALJ) OAH
Louis Dettorre(Commissioner) Arizona Department of Real Estate
Dan Gardner(HOA Coordinator) Arizona Department of Real Estate
Other Participants
Chris Gallu(former board member) Meridian Condominiums Homeowners Association Resignation created the contested vacancy; referred to as Mr. Beloo/Blue in transcript
Fran McGovern(board member) Meridian Condominiums Homeowners Association Elected to Robley's former seat in Jan 2021
The ALJ granted the Petitioner's petition, finding the Respondent HOA violated A.R.S. § 33-1805 by requiring the Petitioner to inspect records before providing copies and failing to comply with the 10-day statutory deadline. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee.
Key Issues & Findings
Failure to fulfill records request
Petitioner alleged the Association failed to fulfill his request for copies of records within the statutory 10-day period because the Association improperly required him to inspect the documents first. The ALJ found the Association violated A.R.S. § 33-1805, as the statute does not permit an HOA to mandate prior inspection before providing requested copies.
Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee of $500.00 in certified funds and ordered to henceforth comply with ARIZ. REV. STAT. § 33-1805.
State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
ARIZ. REV. STAT. §32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2221010-REL Decision – 930949.pdf
Uploaded 2026-01-23T17:40:34 (139.0 KB)
Questions
Question
Can my HOA force me to inspect records in person before they will provide me with copies?
Short Answer
No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.
Detailed Answer
The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.
Alj Quote
Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.
Legal Basis
A.R.S. § 33-1805
Topic Tags
records request
inspection
homeowner rights
Question
How many days does the HOA have to provide copies of records I requested?
Short Answer
The HOA must provide copies within 10 business days.
Detailed Answer
Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.
Alj Quote
On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.
Legal Basis
A.R.S. § 33-1805
Topic Tags
deadlines
records request
HOA obligations
Question
What is the maximum amount the HOA can charge me for copies of records?
Short Answer
The HOA cannot charge more than 15 cents per page.
Detailed Answer
The statute limits the fee an association may charge for copying records to a maximum of fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805
Topic Tags
fees
records request
costs
Question
Can the HOA charge me a fee just to look at or review records?
Short Answer
No. The HOA cannot charge for making materials available for review.
Detailed Answer
While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805
Topic Tags
fees
records review
homeowner rights
Question
If I win my hearing against the HOA, can I get my $500 filing fee back?
Short Answer
Yes, the judge can order the HOA to reimburse your filing fee.
Detailed Answer
In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.
Legal Basis
Order
Topic Tags
reimbursement
penalties
legal costs
Question
Can I authorize someone else to look at the HOA records for me?
Short Answer
Yes, if you designate them in writing.
Detailed Answer
The statute allows records to be examined by the member or any person the member designates in writing as their representative.
Alj Quote
…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.
Legal Basis
A.R.S. § 33-1805
Topic Tags
representation
records request
homeowner rights
Question
What standard of proof do I need to meet to win a case against my HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Legal Standard
Topic Tags
burden of proof
legal standards
hearing procedure
Question
Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?
Short Answer
No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.
Detailed Answer
The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.
Alj Quote
Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.
Legal Basis
A.R.S. § 33-1805
Topic Tags
excuses
mailing
HOA obligations
Case
Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA force me to inspect records in person before they will provide me with copies?
Short Answer
No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.
Detailed Answer
The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.
Alj Quote
Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.
Legal Basis
A.R.S. § 33-1805
Topic Tags
records request
inspection
homeowner rights
Question
How many days does the HOA have to provide copies of records I requested?
Short Answer
The HOA must provide copies within 10 business days.
Detailed Answer
Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.
Alj Quote
On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.
Legal Basis
A.R.S. § 33-1805
Topic Tags
deadlines
records request
HOA obligations
Question
What is the maximum amount the HOA can charge me for copies of records?
Short Answer
The HOA cannot charge more than 15 cents per page.
Detailed Answer
The statute limits the fee an association may charge for copying records to a maximum of fifteen cents per page.
Alj Quote
An association may charge a fee for making copies of not more than fifteen cents per page.
Legal Basis
A.R.S. § 33-1805
Topic Tags
fees
records request
costs
Question
Can the HOA charge me a fee just to look at or review records?
Short Answer
No. The HOA cannot charge for making materials available for review.
Detailed Answer
While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
A.R.S. § 33-1805
Topic Tags
fees
records review
homeowner rights
Question
If I win my hearing against the HOA, can I get my $500 filing fee back?
Short Answer
Yes, the judge can order the HOA to reimburse your filing fee.
Detailed Answer
In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.
Alj Quote
IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.
Legal Basis
Order
Topic Tags
reimbursement
penalties
legal costs
Question
Can I authorize someone else to look at the HOA records for me?
Short Answer
Yes, if you designate them in writing.
Detailed Answer
The statute allows records to be examined by the member or any person the member designates in writing as their representative.
Alj Quote
…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.
Legal Basis
A.R.S. § 33-1805
Topic Tags
representation
records request
homeowner rights
Question
What standard of proof do I need to meet to win a case against my HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
Legal Standard
Topic Tags
burden of proof
legal standards
hearing procedure
Question
Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?
Short Answer
No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.
Detailed Answer
The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.
Alj Quote
Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.
Legal Basis
A.R.S. § 33-1805
Topic Tags
excuses
mailing
HOA obligations
Case
Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Clifford Burnes(petitioner) Appeared on his own behalf; also identified as Clifford (Norm) Burnes or Norm Burnes,,,.
Respondent Side
John T. Crotty(respondent attorney) Farley, Choate & Wood Represented Saguaro Crest Homeowners Association,,.
Neutral Parties
Jenna Clark(ALJ) Listed as Administrative Law Judge.
Tammy L. Eigenheer(ALJ) Signed the Administrative Law Judge Decision.
Louis Dettorre(Commissioner) Arizona Department of Real Estate Recipient of transmission of the Decision.
AHansen(ADRE staff) Arizona Department of Real Estate Email contact listed for transmission ([email protected]).
djones(ADRE staff) Arizona Department of Real Estate Email contact listed for transmission ([email protected]).
DGardner(ADRE staff) Arizona Department of Real Estate Email contact listed for transmission ([email protected]).
vnunez(ADRE staff) Arizona Department of Real Estate Email contact listed for transmission ([email protected]).
Other Participants
Joseph Martinez(unknown) Petitioner verbally notified him regarding the undelivered certified mail package.
