Case Summary
| Case ID | 21F-H2120030-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2021-04-14 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | partial |
| Filing Fees Refunded | $1,000.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Kristina K. Merkle | Counsel | — |
|---|---|---|---|
| Respondent | Desert Palms Village Condominium Association | Counsel | Quinten Cupps |
Alleged Violations
CC&R § 7.13
A.R.S. § 33-1258
Outcome Summary
The ALJ ruled in favor of Petitioner regarding the HOA's failure to conduct a reserve study every three years as required by CC&R § 7.13, ordering compliance and a $500 filing fee reimbursement. However, the ALJ ruled in favor of Respondent on the records request issue, finding Petitioner failed to prove documents in the HOA's possession were withheld.
Why this result: Petitioner did not provide sufficient evidence to prove Respondent withheld documents that were actually in its possession at the time of her request.
Key Issues & Findings
Failure to complete reserve study
Petitioner alleged Respondent violated CC&R § 7.13 by failing to complete a required reserve study every three years.
Orders: Respondent ordered to fully comply with CC&R 7.13 in the future and to pay Petitioner her filing fee of $500.00.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- CC&R 7.13
Failure to provide requested documents
Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested documents within 10 business days.
Orders: Petition is denied regarding the alleged violation of A.R.S. § 33-1258.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1258
Decision Documents
21F-H2120030-REL Decision – 872292.pdf
**Case Title:** 21F-H2120030-REL
**Background and Main Issues:**
This administrative hearing took place on March 25, 2021, before Administrative Law Judge Velva Moses-Thompson. The case involves Petitioner Kristina K. Merkle, a condominium unit owner, against Respondent Desert Palms Village Condominium Association. The Petitioner alleged two primary violations:
1. The Respondent violated Covenants, Conditions, and Restrictions (CC&Rs) § 7.13 by failing to conduct a mandatory reserve study every three years, noting that the last study was completed in 2016.
2. The Respondent violated A.R.S. § 33-1258 by failing to provide requested association documents within 10 business days.
**Hearing Proceedings and Key Arguments:**
The legal standard required the Petitioner to prove her claims by a "preponderance of the evidence" (meaning the claims are more probably true than not).
During the hearing, the Petitioner testified to her allegations but provided no other testimony. The Respondent disputed the document-related violation; the Community Manager and the Association's attorney testified that they had provided all requested documents that were in their possession at the time.
Regarding the reserve study, it was undisputed that the Respondent had not completed one since 2016. However, the Respondent argued that they had made numerous repairs and replacements listed in the 2016 study and asserted that completing a new reserve study at that time would not be cost-effective.
**Final Decision and Outcome:**
The Judge split the decision between the two main claims:
* **Document Violation:** The Petitioner failed to establish that the Respondent violated A.R.S. § 33-1258, as she did not prove they withheld documents within their possession.
* **Reserve Study Violation:** The preponderance of the evidence established that the Respondent failed to complete a reserve study, officially violating CC&R § 7.13.
**Final Orders:**
The Judge deemed the Petitioner the prevailing party regarding the CC&R 7.13 violation. The Judge issued the following orders:
1. The Respondent must fully comply with CC&R 7.13 in the future.
2. The Respondent must pay the Petitioner $500.00 (half of her $1,000.00 filing fee) within 30 days of the Order.
3. In all other respects, the petition was denied.
Case Participants
Petitioner Side
- Kristina K. Merkle (petitioner)
Appeared on behalf of herself and testified at the hearing
Respondent Side
- Quinten Cupps (HOA attorney)
Desert Palms Village Condominium Association
Appeared on behalf of Respondent - Becky Stowers (property manager)
Desert Palms Village Condominium Association
Community Manager who presented testimony for Respondent - Kelly Oetinger (HOA attorney)
Desert Palms Village Condominium Association
Respondent's attorney who also provided testimony regarding document requests
Neutral Parties
- Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Administrative Law Judge who authored the decision - Judy Lowe (commissioner)
Arizona Department of Real Estate
Commissioner to whom the decision was electronically transmitted
