Case Summary
| Case ID | 25F-H001-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2024-11-12 |
| Administrative Law Judge | Samuel Fox |
| Outcome | partial |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | R.L. Whitmer | Counsel | — |
|---|---|---|---|
| Respondent | Hilton Casitas Council of Homeowners | Counsel | Emily H. Mann |
Alleged Violations
A.R.S. § 33-1215(A)(1)
Outcome Summary
The Administrative Law Judge found the Respondent HOA in violation of A.R.S. § 33-1215(A)(1) for failing to contain the name of the association in the Declaration. The Petitioner was deemed the prevailing party and awarded the $500.00 filing fee, but no civil penalty was imposed.
Key Issues & Findings
Declaration requirements for naming the condominium and association.
Petitioner claimed the Declaration failed to comply with A.R.S. § 33-1215(A)(1) because it lacked the formal name of the association. Respondent argued the existing reference to the 'Council of Co-owners' was sufficient because case law established the current association was the successor entity. The Tribunal found the Declaration did not contain the name of the association as required.
Orders: Respondent shall pay Petitioner the filing fee of $500.00 within thirty (30) days and shall comply with A.R.S. § 33-1215(A)(1) going forward.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. § 33-1215(A)(1)
- A.R.S. § 12-550
- A.R.S. § 33-1202(15)
- A.R.S. § 33-1219(A)
- London v Carrick
- Schaefer v Pro Keanti AZ2 LP
- Eli v Cro County A
Analytics Highlights
- A.R.S. § 33-1215(A)(1)
- A.R.S. § 12-550
- A.R.S. § 33-1202(15)
- A.R.S. § 33-1219(A)
- A.R.S. § 32-2199
- A.R.S. § 41-1092
- London v Carrick
- Schaefer v Pro Keanti AZ2 LP
- Eli v Cro County A
Audio Overview
Decision Documents
25F-H001-REL Decision – 1235116.pdf
25F-H001-REL Decision – 1241814.pdf
Briefing on Administrative Hearing Case No. 25F-H001-REL
Executive Summary
This briefing document synthesizes the proceedings and outcome of the administrative hearing case R.L. Whitmer v. Hilton Casitas Council of Homeowners (No. 25F-H001-REL). The central issue was whether the Respondent Homeowners Association’s (HOA) governing Declaration complied with Arizona Revised Statutes (A.R.S.) § 33-1215(A)(1), which mandates that the Declaration contain both the name of the condominium (with the word “condominium”) and the specific name of the association.
In a decision issued on November 12, 2024, Administrative Law Judge (ALJ) Samuel Fox ruled in favor of the Petitioner, R.L. Whitmer. The ALJ found that while the Declaration’s associated plat satisfied the requirement for the condominium’s name, the Declaration failed to contain the association’s actual, current legal name, “Hilton Casitas Council of Homeowners.”
The Respondent HOA advanced three primary defenses, all of which were rejected by the tribunal:
1. Constructive Compliance: The HOA argued that the Declaration’s reference to its predecessor entity (“Council of Co-owners”), combined with numerous court rulings affirming the current HOA as its legal successor, constituted compliance. The ALJ dismissed this, stating the statute requires the actual name to be present and that “constructive compliance” is not sufficient.
2. Statute of Limitations: The HOA claimed the petition was barred by a four-year statute of limitations (A.R.S. § 12-550), as the Petitioner had notice of the Declaration’s contents since 2014. The ALJ ruled that this statute applies only to “actions” in a “court,” and that proceedings before the Office of Administrative Hearings (OAH), an executive branch agency, do not qualify.
3. Impossibility of Unilateral Action: The HOA contended that it could not be ordered to amend the Declaration because such an action requires a membership vote and is not unilaterally achievable. The ALJ found this was not a valid legal defense, as the procedural requirements for achieving statutory compliance do not excuse non-compliance.
The final order declared the Petitioner the prevailing party, ordered the Respondent to pay the Petitioner’s $500 filing fee, and mandated that the Respondent comply with A.R.S. § 33-1215(A)(1). No civil penalty was imposed.
Case Overview
• Case Number: 25F-H001-REL
• Forum: Office of Administrative Hearings (OAH), State of Arizona
• Petitioner: R.L. Whitmer
• Respondent: Hilton Casitas Council of Homeowners
• Presiding Judge: Administrative Law Judge Samuel Fox
• Respondent’s Counsel: Emily H. Mann
• Core Legal Issue: Whether the Respondent’s Declaration of Horizontal Property Regime for Hilton Casitas violates A.R.S. § 33-1215(A)(1), which states:
Procedural History
• Petition Filed: On or about June 27, 2024, R.L. Whitmer filed a petition with the Arizona Department of Real Estate alleging the violation.
• Motion to Dismiss: On October 1, 2024, the Respondent filed a motion for summary judgment (or to dismiss), which was denied by the OAH on October 18, 2024.
• Evidentiary Hearing: A hearing was held on October 25, 2024, though the hearing transcript is dated October 26, 2024.
• ALJ Decision Issued: The final Administrative Law Judge Decision was issued on November 12, 2024.
Analysis of Key Arguments and Rulings
The case centered on three distinct legal arguments presented by the Respondent HOA and the subsequent rulings by the ALJ.
1. Statutory Compliance of the Declaration
The fundamental dispute was whether the Declaration, as written, satisfied the plain language of A.R.S. § 33-1215(A)(1).
Argument / Position
Supporting Evidence / Rationale
Petitioner (Whitmer)
The Declaration is non-compliant because the legal name “Hilton Casitas Council of Homeowners” is not present anywhere in the document.
The Declaration refers to the “Council of Co-owners,” an unincorporated association created in 1972. The current non-profit corporation, formed in 1994, is not named. The Petitioner argued, “It’s just not there.”
Respondent (HOA)
The Declaration is compliant when its constituent parts are read together with established case law.
1. Condominium Name: The plat, which is legally part of the Declaration per A.R.S. § 33-1219(A), contains the phrase “HILTON CASITAS A CONDOMINIUM DEVELOPMENT.”
2. Association Name: Section 1.4 of the Declaration defines “Council” as the “Council of Co-owners.” Multiple Arizona Court of Appeals decisions have held that the “Hilton Casitas Council of Homeowners” is the legal successor entity to the “Council of Co-owners.” Therefore, a reference to the old name legally constitutes a reference to the current name.
ALJ Ruling
Violation Established. The Declaration does not contain the name of the association as required.
The ALJ agreed with the Respondent that the plat satisfied the condominium name requirement. However, the judge rejected the “successor entity” argument for the association’s name, concluding: > “The statute requires ‘the name of the association,’ not merely a reference to it. Even if the current association was the entity with standing, its name was not present in the Declaration. Assuming that there is some purpose for the statutory requirement, a reader should be able to identify the association from the declaration. Accordingly, the Tribunal is not willing to accept constructive compliance.”
2. The Statute of Limitations Defense
The Respondent argued that even if a violation existed, the Petitioner’s claim was filed too late.
Argument / Position
Supporting Evidence / Rationale
Petitioner (Whitmer)
The statute of limitations does not apply because the violation is a continuous act.
The Petitioner framed the non-compliant Declaration as a “cloud on the title,” a type of defect to which a statute of limitations is never a bar.
Respondent (HOA)
The claim is time-barred by the four-year default statute of limitations under A.R.S. § 12-550.
The Petitioner acquired his property in August 2014 and thus had constructive notice of the Declaration’s contents. The four-year period to file a claim expired in August 2018, making the 2024 petition six years too late.
ALJ Ruling
Defense Rejected. The statute of limitations does not apply to OAH proceedings.
The ALJ performed a statutory analysis, noting that A.R.S. § 12-550 applies to an “action” which is defined as “any matter or proceeding in a court.” Because the OAH is an agency of the executive branch and not a court, its proceedings are not “actions” under the statute. Therefore, the general statute of limitations is inapplicable.
3. The “Impossibility” of Unilateral Compliance
The Respondent argued that the relief sought by the Petitioner—an order to amend the Declaration—was not something the tribunal could grant because the HOA Board could not comply on its own.
Argument / Position
Supporting Evidence / Rationale
Petitioner (Whitmer)
The HOA has a clear path to compliance.
The Petitioner stated that the HOA simply needs to “call the election, amend the… or propose an amendment that cures this problem and ask the membership to approve it.” He offered to stipulate that he would not seek a contempt order if the HOA made a good-faith effort.
Respondent (HOA)
An order to amend would be inappropriate because the HOA cannot unilaterally amend the Declaration.
Amending the Declaration requires a vote of the membership (either 51% or 67%) and consent from an entity referred to as “the corporation.” If a vote failed, the HOA could not comply with the order, exposing it to further litigation from the Petitioner seeking to hold it in contempt.
ALJ Ruling
Defense Rejected. Procedural requirements for compliance do not constitute a legal defense against non-compliance.
The ALJ noted that it is ordinary for an HOA board or membership to have to vote to enact compliance with a statute. The ruling states: > “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.” The tribunal’s role is to determine compliance and order it where it is lacking.
Final Order
The Administrative Law Judge Decision concluded with the following orders:
1. Prevailing Party: The Petitioner, R.L. Whitmer, is deemed the prevailing party.
2. Filing Fee: The Respondent must pay the Petitioner the filing fee of $500.00 within thirty days of the order.
3. Compliance: The Respondent shall comply with A.R.S. § 33-1215(A)(1) going forward.
4. Civil Penalty: No civil penalty was found to be appropriate in the matter.
The decision is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days.
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{ “case”: { “docket_no”: “25F-H001-REL”, “case_title”: “R.L. Whitmer v. Hilton Casitas Council of Homeowners”, “decision_date”: “2024-11-12”, “alj_name”: “Samuel Fox”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the 4-year statute of limitations for civil lawsuits apply to HOA disputes filed with the Arizona Department of Real Estate?”, “short_answer”: “No. The general statute of limitations applies to court ‘actions,’ and administrative hearings are not considered court actions.”, “detailed_answer”: “The Administrative Law Judge ruled that the general 4-year statute of limitations (A.R.S. § 12-550) does not apply to petitions filed with the Department of Real Estate/OAH. This is because the Office of Administrative Hearings is part of the executive branch, not the judicial branch, and its proceedings are not defined as ‘actions’ by the legislature.”, “alj_quote”: “Accordingly, proceedings before OAH are not ‘actions’ as defined by the legislature, and the general statute of limitations does not apply.”, “legal_basis”: “A.R.S. § 12-550; A.R.S. § 1-215”, “topic_tags”: [ “statute of limitations”, “jurisdiction”, “filing deadlines” ] }, { “question”: “Must the HOA’s Declaration explicitly state the full legal name of the Association?”, “short_answer”: “Yes. The Declaration must contain the actual name of the association, not just a definition or reference like ‘The Council’.”, “detailed_answer”: “State law requires the Declaration to contain the specific name of the association. The Judge rejected the argument that defining a term like ‘Council’ to mean the association was sufficient. The actual name must appear to ensure a reader can identify the association from the document.”, “alj_quote”: “The statute requires ‘the name of the association,’ not merely a reference to it. The name of the association as stated in the defined term ‘Council’ is not the name of the association.”, “legal_basis”: “A.R.S. § 33-1215(A)(1)”, “topic_tags”: [ “CC&Rs”, “governing documents”, “HOA name” ] }, { “question”: “Can an HOA avoid an order to amend its documents by claiming it requires a vote of the membership?”, “short_answer”: “No. Procedural difficulties, such as needing a membership vote, are not a valid legal defense for non-compliant documents.”, “detailed_answer”: “An HOA cannot use the difficulty of obtaining a membership vote as a defense against a violation finding. If the documents are non-compliant with state law, the Tribunal can order compliance regardless of the internal procedures required to fix them.”, “alj_quote”: “Technical procedures and responsibility for amending the Declaration, under a condominium’s documents and Arizona statues, is not a legal defense in this matter.”, “legal_basis”: “Administrative Authority”, “topic_tags”: [ “amendments”, “voting”, “defenses” ] }, { “question”: “If I win my case against the HOA, will I be reimbursed for the filing fee?”, “short_answer”: “Yes, the Judge can order the HOA to reimburse the $500 filing fee to the prevailing homeowner.”, “detailed_answer”: “When a homeowner prevails in proving a violation, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee directly to the Petitioner.”, “alj_quote”: “IT IS ORDERED that Respondent pay Petitioner the filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.”, “legal_basis”: “Administrative Remedy”, “topic_tags”: [ “fees”, “remedies”, “costs” ] }, { “question”: “Does proving an HOA violation automatically result in a civil penalty (fine) against the Association?”, “short_answer”: “No. A violation does not automatically trigger a civil penalty unless the Judge deems it appropriate.”, “detailed_answer”: “Even if a homeowner proves that the HOA violated a statute or the community documents, the Judge has discretion regarding civil penalties. In this case, despite finding a violation regarding the naming in the Declaration, the Judge decided no civil penalty was necessary.”, “alj_quote”: “No Civil Penalty is found to be appropriate in this matter.”, “legal_basis”: “Administrative Discretion”, “topic_tags”: [ “fines”, “civil penalties”, “enforcement” ] }, { “question”: “What is the burden of proof for a homeowner filing a petition against their HOA?”, “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 show that their contention is ‘more probably true than not.'”, “alj_quote”: “Petitioner bore the burden of proof to establish that Respondent violated applicable statutes by a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119(A)”, “topic_tags”: [ “evidence”, “burden of proof”, “legal standards” ] } ] }
Case Participants
Petitioner Side
- R.L. Whitmer (petitioner)
fulcrumgroup.biz
Respondent Side
- Emily H. Mann Phillips (HOA attorney)
Phillips, Maceyko & Battock, PLLC - Robert Westbrook (HOA president)
Hilton Casitas Council of Homeowners
Neutral Parties
- Samuel Fox (ALJ)
Office of Administrative Hearings - Susan Nicolson (Commissioner)
Arizona Department of Real Estate (ADRE)
