CC&Rs Article 1, Definitions, Area of Association Responsibility
Outcome Summary
The Administrative Law Judge granted the petition, concluding that the HOA CC&Rs mandate that the Association is responsible for replacing individual homeowners' roofs, if needed, primarily by interpreting the contractual term 'repair' to encompass 'replacement,' and noting that the roof is explicitly included under the HOA's maintenance and repair duties while items solely the owner's responsibility (windows, doors, interior plumbing) are specifically excluded from Areas of Association Responsibility.
Key Issues & Findings
Areas of Association Responsibility – Association responsibility for roof replacement by the association not clearly specified as to whether or not it’s an association or homeowner responsibility.
Petitioner sought clarification on whether the HOA's CC&Rs mandate roof replacement as part of 'Areas of Association Responsibility.' The ALJ concluded that the term 'repair' includes 'replacement,' and based on the CC&Rs language regarding maintenance and repair of the roof and the specific exclusion of windows and doors, the HOA is responsible for roof replacement if needed.
Orders: Respondent ordered to reimburse Petitioner’s filing fee of $500.00 in certified funds and henceforth comply with the provisions of the governing documents.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 32-2199.01
CC&Rs Article 1
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
Merriam-Webster dictionary
Analytics Highlights
Topics: HOA Responsibility, Roof Replacement, CC&R Interpretation, Planned Community
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.02
CC&Rs Article 1
CC&Rs Article 5.18
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
In re William L., 211 Ariz. 236, 238 (App. 2005)
Audio Overview
Decision Documents
25F-H051-REL Decision – 1323178.pdf
Uploaded 2026-01-23T18:23:58 (68.2 KB)
25F-H051-REL Decision – 1328240.pdf
Uploaded 2026-01-23T18:24:04 (71.7 KB)
25F-H051-REL Decision – 1353423.pdf
Uploaded 2026-01-23T18:24:09 (167.6 KB)
Briefing Doc – 25F-H051-REL
Briefing Document: Ludden v. Mountain Gate Homeowners Association
Executive Summary
This document synthesizes the proceedings and outcome of the legal dispute between petitioner Michael D. Ludden and the Mountain Gate Homeowners Association (HOA) concerning the responsibility for roof replacement. On September 23, 2025, an Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings issued a final decision, ruling conclusively in favor of the petitioner.
The central finding is that the Mountain Gate HOA is financially responsible for the full replacement of homeowner roofs when necessary, in addition to its acknowledged duties of maintenance and repair. The ruling was based on a close interpretation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the CC&Rs’ definition of an “Improvement” (which includes any building or structure) combined with the Association’s explicit obligation to “maintain, repair and replace” such improvements, established the HOA’s liability for roof replacement.
The dispute arose from ambiguous language within the CC&Rs, which was compounded by conflicting verbal and written promises made by both the original and subsequent developers during home sales. The HOA argued that financial impracticality and a 2010 amendment requiring individual homeowner insurance shifted replacement liability to the owners. However, the ALJ’s decision rejected these arguments, finding the language of the governing documents to be controlling. As a direct result of the ruling, the Mountain Gate HOA must reimburse the petitioner’s $500 filing fee and is legally bound to comply with this interpretation of its responsibilities moving forward.
Case Overview
Legal Proceedings
Case Name
In the Matter of: Michael D. Ludden, Petitioner, v. Mountain Gate Homeowners Association, Respondent.
Case Number
25F-H051-REL
Tribunal
Arizona Office of Administrative Hearings (OAH)
Presiding Judge
Nicole Robinson, Administrative Law Judge
Hearing Date
September 3, 2025
Decision Date
September 23, 2025
Parties Involved
Title/Position
Petitioner
Michael D. Ludden
Homeowner and HOA President
Petitioner’s Witness
Brenda Anderson
HOA Secretary Treasurer
Respondent Representative
James “Jim” Pieper
HOA Board Member at Large
Respondent’s Witness
Pablo Martinez
HOA Director at Large
Central Issue
The core of the dispute was the interpretation of the Mountain Gate HOA’s CC&Rs to determine whether the Association is financially responsible for the full replacement of homeowner roofs at the end of their service life, or if its obligation is limited solely to maintenance and repair.
Background and Community History
The dispute is rooted in the development history of the Mountain Gate community, which consists of 42 townhome units in Lakeside, Arizona.
• 2006: The community is established and the association is incorporated as a condominium association.
• 2007: Construction begins on the first 12 units under the original developer.
• 2010: The development is re-platted from condominiums to townhomes, becoming a planned community. The CC&Rs are amended (Article 5.18) to require individual owners to obtain comprehensive insurance for the full replacement cost of their dwelling unit.
• c. 2014: The original developer goes bankrupt. Petitioner Michael Ludden purchases his unit from the developer’s sales agent, Gary Laframboise, who verbally stated that roof maintenance and replacement were the HOA’s responsibility.
• 2016: A new developer, Maebee Mountaingate LLC, purchases the remaining lots and resumes construction.
• 2018: The new developer utilizes sales brochures that explicitly promise roof replacement coverage. One document states, “Roofs last 20 years, replacement can cost $9500. In Mountain Gate part of your homeowner’s dues will be there to replace your roof if it is needed.”
• 2021: The new developer commissions a reserve study which includes line items for roof replacement.
• July 2022: With all 42 units completed, control of the HOA is transitioned from the developer to the homeowners. The Association’s reserve fund has a zero balance at the time of turnover.
• 2024: A homeowner demands the HOA replace his roof, prompting the board to seek a legal opinion and bringing the ambiguity in the CC&Rs to the forefront.
• February 28, 2025: Michael Ludden files a petition with the Arizona Department of Real Estate to seek a formal ruling on the matter.
• September 3, 2025: An evidentiary hearing is conducted by the Office of Administrative Hearings.
Arguments Presented at Hearing
Petitioner’s Position (Michael D. Ludden)
The petitioner argued that the HOA is, and has always been represented as being, responsible for roof replacement.
• Governing Documents (CC&Rs): The primary argument centered on Article 1 of the CC&Rs. It defines “Improvements” as “any building, wall or structure” and states the Association “is obligated to maintain, repair and replace” these improvements. The petitioner asserted that a dwelling unit is an “Improvement,” and therefore its roof is subject to replacement by the HOA.
• Developer Representations: Evidence was presented showing consistent promises from both developers.
◦ A text message from the original developer’s agent, Gary Laframboise, dated October 8, 2024, confirmed, “roof maintenance and replacement is HOA responsibility.”
◦ Sales brochures from the second developer, dated 2018, were used to attract buyers with the explicit promise that HOA dues would cover roof replacement.
• Practical Concerns: It was argued that HOA control over replacement is necessary to maintain aesthetic uniformity and structural standards across the community, preventing homeowners from using substandard materials or unapproved colors (a “purple shingle” scenario was cited).
Respondent’s Position (Mountain Gate HOA)
The respondent, represented by board members, argued that roof replacement is the financial responsibility of the individual homeowner.
• Governing Documents (CC&Rs): The respondent focused on a more specific clause within Article 1 that states the Areas of Association Responsibility “shall include the maintenance and repair of: all exterior walls and the roof of any Dwelling Unit.” They contended that the absence of the word “replace” in this specific clause meant the duty did not exist, superseding the more general language.
• Shift in Liability (2010 Amendment): A key argument was that the 2010 re-platting of the community from condominiums to townhomes fundamentally shifted liability. The accompanying amendment requiring owners to carry their own insurance for the “full replacement cost of the Dwelling Unit” was presented as evidence that the replacement responsibility was transferred to the homeowner and their insurer.
• Financial Impracticality: The board stressed the severe financial burden. With annual dues already at $3,318 with no amenities (e.g., pool, clubhouse), adding the cost of roof replacement would require a further increase estimated at $2,000 to $4,000 per year, which would negatively impact property values and make homes difficult to sell.
• Extraneous Documents: The respondent’s position was that sales brochures and verbal promises are not legally binding and cannot override the language of the recorded CC&Rs.
Final Decision and Legal Rationale
The Administrative Law Judge granted the petitioner’s request, finding that the HOA is responsible for replacing homeowner roofs when necessary.
Outcome:PETITION GRANTED.
Judge’s Rationale
The decision was based primarily on an interpretation of the plain language of the CC&Rs.
1. Controlling Language of the CC&Rs: The judge found the broader definition in Article 1 to be controlling. Because an “Improvement” is defined as a “building,” and the Association is obligated to “maintain, repair and replace” such Improvements, the responsibility for roof replacement was established.
2. Definition of “Repair”: The judge cited the Merriam-Webster dictionary definition of “repair” as “to restore by replacing a part or putting together what is torn or broken.” From this, she concluded that “a repair could come through replacement,” further blurring the distinction the respondent tried to make.
3. The Window Hypothetical: The judge used a hypothetical scenario to illustrate the legal reasoning. The CC&Rs state that owners are solely responsible for the “maintenance and repair” of their windows. If a window needed to be replaced, the responsibility would clearly fall on the owner, even though the word “replace” is absent. The judge reasoned the inverse is true for the roof: since the roof is explicitly listed as an Area of Association Responsibility, that responsibility logically includes replacement when a simple repair is insufficient.
4. Rejection of Respondent’s Arguments: The judge determined that the 2010 amendment requiring individual homeowner insurance “still does not relieve the HOA from repairing and maintaining the roof” and, by extension, replacing it under its CC&R-defined duties. The developer’s promises were noted as supportive but were not the primary basis for the decision.
Direct Orders Issued
Based on the findings, the Administrative Law Judge issued the following orders:
1. IT IS ORDERED that Petitioner’s petition be GRANTED.
2. IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.
3. IT IS FURTHER ORDERED that Respondent shall henceforth comply with the provisions of the governing documents as interpreted in the decision.
Case Participants
Petitioner Side
Michael D. Ludden(petitioner) Mountain Gate Homeowners Association HOA President and Property Owner
Brenda Anderson(witness) Mountain Gate Homeowners Association HOA Secretary-Treasurer
Respondent Side
James Pieper(respondent) Mountain Gate Homeowners Association HOA Director-at-Large
Pablo Martinez(witness) Mountain Gate Homeowners Association HOA Director-at-Large
ARIZ. REV. STAT. § 33-1811 Paragraph 19 of the CC&Rs ARIZ. REV. STAT. § 33-1804 (A) and (F) ARIZ. REV. STAT. § 10-830(A)
Outcome Summary
Petitioner's petition was DENIED because Petitioner failed to meet her burden of proving by a preponderance of the evidence that Respondent committed the alleged violations, and the Tribunal lacked jurisdiction to enforce the alleged violation of ARIZ. REV. STAT. § 10-830(A).
Why this result: Petitioner failed to meet her burden of proof on all four issues. Issues 1, 2, and 3 lacked sufficient evidentiary support or statutory violation proof. Issue 4 was dismissed due to lack of OAH jurisdiction over ARS § 10-830.
Key Issues & Findings
The HOA failed to disclose conflicts-of-interest when hiring an HOA property manager to manage the HOA which is a violation of ARS 33-1811.
Petitioner alleged that the hiring of TRT (Tucson Realty & Trust Company, Management Services, LLC) as the HOA manager constituted an undisclosed conflict of interest because TRT also managed individual townhouses within the community.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1811
The HOA has violated paragraph 19 of the CC&Rs by directing an HOA property manager to pursue an unsanctioned project for individual townhouses which is beyond the scope of HOA management for common areas.
The HOA manager solicited bids to paint the exteriors of all townhouses. Petitioner argued the HOA lacked authority to manage improvements for individual units, as Paragraph 19 limits HOA authority to common areas.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Paragraph 19 of the CC&Rs
The board has violated the open meeting laws of ARS 33-1804 (A) and (F) by holding a private board meeting without notice; failing to provide material information, minutes, financial statements, and a budget upon request; and by failing to communicate via the designated representative.
Petitioner alleged the HOA violated open meeting laws by failing to provide proper notice for meetings and failing to provide requested documentation (minutes, financial statements, etc.).
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804
The board has violated ARS 10-830(A) by failing to act in good faith with the care an ordinarily prudent person in a like position would act by failing to perform their duties.
Petitioner alleged the board failed to perform required duties in a timely or prudent manner, including failing to elect officers, manage the bank account, check the post office box, and schedule a backflow test.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 10-830
Analytics Highlights
Topics: HOA Management, Conflict of Interest, Open Meeting Law, Jurisdiction, Planned Community, CC&Rs, Director Duty, Burden of Proof
Additional Citations:
ARIZ. REV. STAT. § 33-1811
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 10-830
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 41-1092
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Declaration of Covenants, Conditions and Restrictions for Park Association
Audio Overview
Decision Documents
25F-H050-REL Decision – 1336348.pdf
Uploaded 2026-01-23T18:23:33 (157.7 KB)
25F-H050-REL Decision – 1348020.pdf
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25F-H050-REL Decision – 1380164.pdf
Uploaded 2026-01-23T18:23:41 (51.8 KB)
25F-H050-REL Decision – 1384549.pdf
Uploaded 2026-01-23T18:23:45 (49.0 KB)
25F-H050-REL Decision – 1384804.pdf
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25F-H050-REL Decision – 1393862.pdf
Uploaded 2026-02-12T19:19:32 (59.6 KB)
Briefing Doc – 25F-H050-REL
Briefing Document: Fogelsong vs. Park Townhouses Homeowners Association (Docket No. 25F-H050-REL)
Executive Summary
This document synthesizes the proceedings and outcome of the legal dispute between Marilyn J. Fogelsong (“Petitioner”) and the Park Townhouses Homeowners Association, Inc. (“Respondent”). The case was adjudicated by the Arizona Office of Administrative Hearings (OAH).
The Petitioner, a co-owner of a unit in the eight-unit Park Townhouses community, filed a petition on or about March 31, 2025, alleging four distinct violations by the HOA board. These allegations included failure to disclose a conflict of interest in hiring an HOA manager, violating the community’s CC&Rs by pursuing projects for individual units, violating state open meeting laws, and failing to act in good faith as fiduciaries.
An evidentiary hearing was conducted on July 16, 2025, before Administrative Law Judge (ALJ) Nicole Robinson. The Respondent did not appear at the hearing, and the Petitioner provided sole testimony.
On August 5, 2025, the ALJ issued a decision denying the Petitioner’s petition in its entirety. The judge concluded that the Petitioner failed to meet her burden of proof by a preponderance of the evidence for three of the four issues. The fourth issue was dismissed on the grounds that the OAH lacked the jurisdiction to enforce the specific statute cited (A.R.S. § 10-830). A subsequent request for a rehearing filed by the Petitioner was rejected by the OAH as it was submitted to the incorrect office after the OAH’s jurisdiction had ended.
Case Overview
Case Number
25F-H050-REL
Adjudicating Body
Arizona Office of Administrative Hearings (OAH)
Administrative Law Judge
Nicole Robinson
Petitioner
Marilyn J. Fogelsong
Respondent
Park Townhouses Homeowners Association, Inc.
Subject Property
Park Townhouses, an 8-unit planned community in Tucson, AZ
Petition Filed
On or about March 31, 2025
Hearing Date
July 16, 2025
Decision Issued
August 5, 2025
Final Outcome
Petition DENIED
The Parties and Property
• Petitioner Marilyn J. Fogelsong: A partial owner of unit 2467 East 1st Street since April 2021, co-owning with her 39-year-old son who resides in the unit. Fogelsong previously served as the HOA board president for three years, with her last term ending in September 2024.
• Respondent Park Townhouses HOA: A planned community association for an eight-unit townhouse development in Tucson, Arizona. Each unit owner is responsible for their own structure and lot.
• The Property: The community consists of two buildings, each with four townhouses facing each other across a 20-foot wide common driveway.
Petitioner’s Allegations and Testimony
During the July 16, 2025 hearing, Ms. Fogelsong, representing herself, presented testimony on the four issues outlined in her petition. The HOA did not appear.
Issue #1: Conflict of Interest (A.R.S. § 33-1811)
The Petitioner alleged that the HOA failed to disclose conflicts of interest when hiring Tucson Realty & Trust Company (TRT) as the HOA property manager, rendering the contract void.
• Core Allegation: On February 17, 2025, the HOA board presented only one proposal—from TRT—and asked homeowners to approve the hire without disclosing pertinent conflicts.
• Identified Conflicts:
◦ TRT’s property management division manages two units within the community (2463 and 2467) owned by then-current board members Mark Schlang (Treasurer) and Gerald Schwarzenb[erger] (Secretary).
◦ Both the property management and HOA management divisions of TRT operate under the same broker, Deborah Garcia.
• History of Misconduct by TRT: The Petitioner testified to a history of issues with TRT that she believed constituted conflicts of interest:
◦ TRT collected parking violation fines from a tenant but failed to remit them to the HOA.
◦ TRT failed to provide tenant contact information to the HOA upon request, which is a violation of Arizona law.
◦ TRT’s attorney, BL Edmonson, sent a “cease and desist” letter to Fogelsong and then invoiced the HOA for the legal fees, which Fogelsong, as president at the time, rejected. The invoice was resubmitted to the HOA 18 months later.
Issue #2: CC&R Violation (Paragraph 19)
The Petitioner alleged the HOA violated Paragraph 19 of the Covenants, Conditions, and Restrictions (CC&Rs) by directing the HOA manager to pursue an “unsanctioned project for individual townhouses.”
• Core Allegation: The HOA manager (TRT) met with a painting company on March 31, 2025, to solicit bids for painting the exteriors of all townhouses. The Petitioner argued this action is beyond the scope of the HOA’s authority, which is limited to maintaining common areas.
• Supporting Evidence:
◦ The Petitioner cited a legal opinion she obtained from an HOA attorney, Jason Smith, which concluded that the HOA does not have the right to conduct repairs on individual units.
◦ She referenced a past incident where another homeowner, David Zinfeld, paid an assessment for awning wood repair “under protest” because the funds were being used for an individual unit, not a common area.
Issue #3: Open Meeting Law Violations (A.R.S. § 33-1804)
The Petitioner claimed the board violated Arizona’s open meeting laws through multiple actions.
• Secret Meeting: The board held a private meeting to approve TRT as the manager before the February 17, 2025, homeowners meeting where the vote occurred. No notice of this prior board meeting was given to homeowners.
• Failure to Provide Information: The Petitioner made multiple requests for documents that were ignored. She requested management proposals on February 4, 2025, and later requested minutes, financial statements, and property management agreements, none of which were provided.
• Disregarded Standing: In its written response to the petition, the HOA claimed the Petitioner lacked “sufficient standing” due to her “limited ownership stake,” a position the Petitioner refutes based on her recorded deed.
Issue #4: Failure to Act in Good Faith (A.R.S. § 10-830A)
The Petitioner alleged the board failed to perform its duties with the care an “ordinarily prudent person” would exercise.
• Dereliction of Duties:
◦ The board, elected in September 2024, waited 10 weeks to meet and elect officers.
◦ The board failed to take control of the HOA bank account until March 2025, approximately six months into its one-year term.
◦ It failed to schedule a required annual backflow test for the irrigation system, resulting in the water being shut off.
◦ It failed to replace a dead tree that was on the agenda for replacement in fall 2024.
◦ It failed to check the HOA’s post office box, leading to the return of dues checks from homeowners.
◦ It did not abate new graffiti for six weeks, at which point the Petitioner did so herself after receiving permission.
Respondent’s Position
Although the HOA was not present at the hearing, its positions were articulated in a five-page written response submitted to the Department of Real Estate on May 8, 2025, and were referenced during the hearing.
• Denial of Claims: The Respondent denied all of the Petitioner’s claims.
• Challenge to Standing: The HOA’s formal position was that Ms. Fogelsong lacked sufficient standing due to her “limited ownership stake.”
• Allegation of Ulterior Motive: The Respondent accused the Petitioner of a “calculated and systematic attempt to devalue the property and agitate the owners to possibly sell their respective units to Miss Fogong [sic] and her son at a below market value.” They claimed several owners could testify to her “repeated suggestions and solicitations to sell.”
• Claim of Non-cooperation: The HOA stated that the Petitioner had “not been fully cooperative in the transition process” regarding missing documentation after her term as president ended.
Administrative Law Judge’s Decision
On August 5, 2025, ALJ Nicole Robinson issued a decision denying the petition. The core finding was that the Petitioner failed to meet her burden of proving the violations by a preponderance of the evidence.
Findings on Each Issue
• Issue #1 (Conflict of Interest):No Violation Found. The ALJ concluded that the Petitioner failed to prove the hiring of TRT constituted a conflict of interest as defined by A.R.S. § 33-1811. The evidence showed that a prior management company (McElwain) also managed individual units while serving as the HOA manager, suggesting this was an established practice. The statute specifically addresses benefits to board members or their families, which was not sufficiently established by the evidence presented.
• Issue #2 (CC&R Violation):No Violation Found. The decision stated that the Petitioner failed to submit the entirety of the CC&Rs and Bylaws, providing only “snippets.” Without the complete governing documents, the tribunal could not definitively determine the scope of the HOA’s authority regarding projects on individual units. Furthermore, the evidence only showed that a bid was solicited for painting; there was no evidence that work was actually performed.
• Issue #3 (Open Meeting Law):No Violation Found. The ALJ found that the February 17, 2025, meeting was properly noticed via email. Regarding a March 5, 2025, email the Petitioner did not receive, the evidence showed her co-owner son did receive it, meaning the unit was properly notified. A December 2024 meeting was deemed emergent, for which the statute does not require prior notice.
• Issue #4 (Failure to Act in Good Faith):No Jurisdiction. The ALJ concluded that the Office of Administrative Hearings lacks jurisdiction to enforce A.R.S. § 10-830. The OAH’s authority is limited by statute to adjudicating violations of Title 33 (Planned Communities and Condominiums) and community documents, not Title 10 (Corporations and Associations).
Post-Decision Events
• On August 26, 2025, the Petitioner filed a request for a rehearing.
• On September 8, 2025, the OAH issued a Minute Entry stating that the request would not be considered because it was “inappropriately sent to the Office of Administrative Hearings.”
• The OAH’s jurisdiction over the matter had concluded with the August 5 decision. The Petitioner was advised to address any further requests to the Arizona Department of Real Estate.
Case Participants
Petitioner Side
Marilyn J. Fogelsong(petitioner) Park Townhouses HOA Represented herself; former HOA President/Treasurer
Levi Benjamin Lazarus(co-owner/son of petitioner) Park Townhouses HOA Co-owner of petitioner's unit
Jason Smith(HOA attorney) Consulted by petitioner regarding CC&R interpretation for unit repairs
Respondent Side
Gerald Schwarzenb(board member/Secretary) Park Townhouses HOA Current HOA board member; his unit managed by TRT
Mark Schlang(board member/Treasurer/architect) Park Townhouses HOA Current HOA board member; his unit managed by TRT
Deborah Garcia(broker/HOA manager) TRT Property Management Broker of TRT; homeowners voted to accept her as HOA manager
Andrew Viscara(HOA property manager) TRT Property Management TRT representative designated for Park Townhouses HOA management
Mary Lord Lr(property manager) TRT Property Management Property manager for unit 2465
B.L. Edmonson(attorney) TRT Property Management Wrote cease and desist letter to petitioner; billed HOA
Neutral Parties
Nicole Robinson(ALJ) OAH
Susan Nicolson(Commissioner) ADRE
Other Participants
David Zinfeld(homeowner/former Treasurer) Park Townhouses HOA Property owner; prior treasurer during self-managed period; paid assessment under protest
Ray Floyd(former board member) Park Townhouses HOA Served on board with petitioner during self-managed period
Sasha Flores(bank account signer) Park Townhouses HOA Wife of Rick Flores; co-signer on HOA bank account
Rick Flores(homeowner/delegate) Park Townhouses HOA Delegated authority to wife Sasha Flores for bank account deeds
ARIZ. REV. STAT. § 33-1811 Paragraph 19 of the CC&Rs ARIZ. REV. STAT. § 33-1804 (A) and (F) ARIZ. REV. STAT. § 10-830(A)
Outcome Summary
Petitioner's petition was DENIED because Petitioner failed to meet her burden of proving by a preponderance of the evidence that Respondent committed the alleged violations, and the Tribunal lacked jurisdiction to enforce the alleged violation of ARIZ. REV. STAT. § 10-830(A).
Why this result: Petitioner failed to meet her burden of proof on all four issues. Issues 1, 2, and 3 lacked sufficient evidentiary support or statutory violation proof. Issue 4 was dismissed due to lack of OAH jurisdiction over ARS § 10-830.
Key Issues & Findings
The HOA failed to disclose conflicts-of-interest when hiring an HOA property manager to manage the HOA which is a violation of ARS 33-1811.
Petitioner alleged that the hiring of TRT (Tucson Realty & Trust Company, Management Services, LLC) as the HOA manager constituted an undisclosed conflict of interest because TRT also managed individual townhouses within the community.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1811
The HOA has violated paragraph 19 of the CC&Rs by directing an HOA property manager to pursue an unsanctioned project for individual townhouses which is beyond the scope of HOA management for common areas.
The HOA manager solicited bids to paint the exteriors of all townhouses. Petitioner argued the HOA lacked authority to manage improvements for individual units, as Paragraph 19 limits HOA authority to common areas.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Paragraph 19 of the CC&Rs
The board has violated the open meeting laws of ARS 33-1804 (A) and (F) by holding a private board meeting without notice; failing to provide material information, minutes, financial statements, and a budget upon request; and by failing to communicate via the designated representative.
Petitioner alleged the HOA violated open meeting laws by failing to provide proper notice for meetings and failing to provide requested documentation (minutes, financial statements, etc.).
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804
The board has violated ARS 10-830(A) by failing to act in good faith with the care an ordinarily prudent person in a like position would act by failing to perform their duties.
Petitioner alleged the board failed to perform required duties in a timely or prudent manner, including failing to elect officers, manage the bank account, check the post office box, and schedule a backflow test.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 10-830
Analytics Highlights
Topics: HOA Management, Conflict of Interest, Open Meeting Law, Jurisdiction, Planned Community, CC&Rs, Director Duty, Burden of Proof
Additional Citations:
ARIZ. REV. STAT. § 33-1811
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 10-830
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 41-1092
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Declaration of Covenants, Conditions and Restrictions for Park Association
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
25F-H050-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2025-08-05
Administrative Law Judge
Nicole Robinson
Outcome
loss
Filing Fees Refunded
$2,000.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Marilyn J. Fogelsong
Counsel
—
Respondent
Park Townhouses Homeowners Association, INC.
Counsel
—
Alleged Violations
ARIZ. REV. STAT. § 33-1811 Paragraph 19 of the CC&Rs ARIZ. REV. STAT. § 33-1804 (A) and (F) ARIZ. REV. STAT. § 10-830(A)
Outcome Summary
Petitioner's petition was DENIED because Petitioner failed to meet her burden of proving by a preponderance of the evidence that Respondent committed the alleged violations, and the Tribunal lacked jurisdiction to enforce the alleged violation of ARIZ. REV. STAT. § 10-830(A).
Why this result: Petitioner failed to meet her burden of proof on all four issues. Issues 1, 2, and 3 lacked sufficient evidentiary support or statutory violation proof. Issue 4 was dismissed due to lack of OAH jurisdiction over ARS § 10-830.
Key Issues & Findings
The HOA failed to disclose conflicts-of-interest when hiring an HOA property manager to manage the HOA which is a violation of ARS 33-1811.
Petitioner alleged that the hiring of TRT (Tucson Realty & Trust Company, Management Services, LLC) as the HOA manager constituted an undisclosed conflict of interest because TRT also managed individual townhouses within the community.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1811
The HOA has violated paragraph 19 of the CC&Rs by directing an HOA property manager to pursue an unsanctioned project for individual townhouses which is beyond the scope of HOA management for common areas.
The HOA manager solicited bids to paint the exteriors of all townhouses. Petitioner argued the HOA lacked authority to manage improvements for individual units, as Paragraph 19 limits HOA authority to common areas.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
Paragraph 19 of the CC&Rs
The board has violated the open meeting laws of ARS 33-1804 (A) and (F) by holding a private board meeting without notice; failing to provide material information, minutes, financial statements, and a budget upon request; and by failing to communicate via the designated representative.
Petitioner alleged the HOA violated open meeting laws by failing to provide proper notice for meetings and failing to provide requested documentation (minutes, financial statements, etc.).
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804
The board has violated ARS 10-830(A) by failing to act in good faith with the care an ordinarily prudent person in a like position would act by failing to perform their duties.
Petitioner alleged the board failed to perform required duties in a timely or prudent manner, including failing to elect officers, manage the bank account, check the post office box, and schedule a backflow test.
Orders: N/A
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 10-830
Analytics Highlights
Topics: HOA Management, Conflict of Interest, Open Meeting Law, Jurisdiction, Planned Community, CC&Rs, Director Duty, Burden of Proof
Additional Citations:
ARIZ. REV. STAT. § 33-1811
ARIZ. REV. STAT. § 33-1804
ARIZ. REV. STAT. § 10-830
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 41-1092
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Declaration of Covenants, Conditions and Restrictions for Park Association
Bylaws Article II, Section 8, as amended October 18, 2000
Outcome Summary
The Administrative Law Judge determined that Petitioner failed to sustain the burden of proof required to show the Association violated the purported Bylaws amendment, and therefore, the petition was denied.
Why this result: Petitioner failed to prove the validity or implementation of the purported Bylaws amendment, and the language of the amendment itself was found not to be compulsory in requiring a subsequent meeting.
Key Issues & Findings
Alleged failure to hold a second and subsequent meeting of the membership with a diminished quorum.
Petitioner alleged the Association violated its Bylaws by failing to hold a second meeting with a diminished 15% quorum after failing to meet the initial 25% quorum at the Annual Meeting on January 16, 2024, despite a motion and second being made to adjourn and reset the meeting.
Orders: Petitioner's petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 33-1802(1)
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Analytics Highlights
Topics: HOA Bylaws, Quorum, Annual Meeting, Burden of Proof, Invalid Document, Continuance
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1802(1)
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H035-REL Decision – 1163387.pdf
Uploaded 2026-01-23T18:06:04 (48.4 KB)
24F-H035-REL Decision – 1163395.pdf
Uploaded 2026-01-23T18:06:08 (7.2 KB)
24F-H035-REL Decision – 1165696.pdf
Uploaded 2026-01-23T18:06:11 (49.1 KB)
24F-H035-REL Decision – 1165699.pdf
Uploaded 2026-01-23T18:06:13 (7.3 KB)
24F-H035-REL Decision – 1179128.pdf
Uploaded 2026-01-23T18:06:15 (53.7 KB)
24F-H035-REL Decision – 1179136.pdf
Uploaded 2026-01-23T18:06:19 (7.6 KB)
24F-H035-REL Decision – 1209016.pdf
Uploaded 2026-01-23T18:06:23 (146.3 KB)
Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
If a document appears on the HOA's website, is it automatically considered a valid governing document?
Short Answer
No. The presence of a document on a website does not prove it was voted on or adopted.
Detailed Answer
The ALJ found that simply finding a document on the association's website is insufficient to prove it is a valid, adopted amendment. There must be evidence that members participated in a vote or that the association officially adopted it.
Alj Quote
The document’s presence on the Association’s website does not establish or tend to suggest that members participated in a vote on or about October 18, 2000, or that the Association adopted an amendment to Bylaw Article II Section 8 thereafter.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
website
validity
Question
What specific features does a bylaw amendment need to be considered valid and enforceable?
Short Answer
It generally requires signatures, stamps, seals, or filing receipts to prove it isn't just a draft.
Detailed Answer
To be considered a valid governing document rather than a failed proposal or draft, the document should ideally have an embossed stamp, seal, or at least one signature indicating it was finalized and adopted.
Alj Quote
Moreover, the document itself does not have an embossed stamp or seal, or reflect at least one (1) signature that would reasonably suggest it was indeed a valid governing document, rather than a failed proposal or draft, which is supported by the fact that a filing receipt was not affixed.
Legal Basis
Findings of Fact No. 7
Topic Tags
governing documents
signatures
enforceability
Question
If the bylaws mention a reduced quorum for a 'second meeting', is the HOA required to hold that second meeting?
Short Answer
Not necessarily. If the language doesn't explicitly say the HOA 'must' hold the meeting, it may be optional.
Detailed Answer
Even if a bylaw provision states that a second meeting 'shall require' a lower quorum, this does not automatically compel the HOA to hold that meeting. Unless words like 'shall' or 'must' apply specifically to the act of holding the meeting itself, the HOA may not be required to schedule it.
Alj Quote
There are no accompanying words that are inherently binding such as shall or must that would require Respondent to hold a second meeting based on the aforementioned verbiage used.
Legal Basis
Findings of Fact No. 8
Topic Tags
meetings
quorum
bylaw interpretation
Question
Who is responsible for proving that an HOA violated the rules?
Short Answer
The petitioner (homeowner) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the homeowner filing the petition is responsible for proving, by a preponderance of the evidence, that the HOA committed the alleged violation.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Conclusions of Law No. 3
Topic Tags
burden of proof
legal standards
procedure
Question
Does it matter if the HOA hasn't followed a specific rule for many years?
Short Answer
Yes. Long-term non-enforcement or lack of awareness by the board can be evidence that the rule was never validly adopted.
Detailed Answer
The ALJ considered the fact that the petitioner and board members were unaware of the amendment for years, and had failed to use it during previous quorum failures, as evidence weighing against the document's validity.
Alj Quote
Petitioner conceded that during his tenure on the Board and thereafter he was unaware of the purported amendment’s existence, notwithstanding several instances over a number of years where voting members failed to meet quorum requirements and did not utilize the provisions of the alleged amendment.
Legal Basis
Findings of Fact No. 7
Topic Tags
past practice
board conduct
validity
Question
What standard of proof is used in these HOA hearings?
Short Answer
Preponderance of the evidence.
Detailed Answer
The standard is 'preponderance of the evidence,' which means showing that a contention is more probably true than not. It is based on the convincing force of the evidence rather than just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Conclusions of Law No. 4
Topic Tags
legal standards
evidence
Case
Docket No
24F-H035-REL
Case Title
Jesse Freeman v. Millett Ranch Homeowners’ Association
Decision Date
2024-08-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Jesse Freeman(petitioner) Millett Ranch Homeowners’ Association Member Spelling varies as 'Jesse Freemen' in some sources; also served as Treasurer on the Board 2017-2018.
Nicholas Belisi(witness) Potential witness for Petitioner; seconded the motion to adjourn and reconvene the meeting.
Respondent Side
Augustus H. Shaw IV(HOA attorney) Shaw & Lines, LLC Counsel for Respondent Millett Ranch Homeowners’ Association.
Brandon David Moore(senior community manager/witness) Brown Property Management Senior Community Manager for Respondent Millett Ranch HOA, testified as a witness.
Christopher Redden(Board President/witness) Millett Ranch Homeowners’ Association Former Board President (9 years) and Board Member (13-14 years), testified as a witness.
Mark Saul(HOA attorney) Millett Ranch Homeowners’ Association Identified by Petitioner as the association's attorney who abruptly ended the January 16, 2024 meeting.
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(Commissioner) ADRE
vnunez(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
djones(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
labril(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
mneat(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
akowaleski(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
gosborn(ADRE staff (Recipient)) ADRE Received transmission of ALJ Decision/Minute Entries.
Petitioner sustained its burden of proof establishing that Respondents violated CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 by operating a cat rescue business (VKNR) from their residence, which involved unauthorized commercial activity, excessive non-pet animals, and creating a nuisance. Violation of 7.29 was not established. The petition was granted.
Key Issues & Findings
Violation of CC&Rs by operating an unauthorized business out of their home and housing dozens of cats in excess of a reasonable number of household pets, creating a nuisance.
Respondents operated a nonprofit cat rescue (VKNR) from their single-family residence, housing 50+ cats in a 3-car garage, which constituted an unauthorized commercial use, exceeded a reasonable number of pets, and created traffic and waste nuisances.
Orders: Petitioner's petition is granted. Respondents must henceforth abide by CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs section 7.2
CC&Rs section 7.3
CC&Rs section 7.25
CC&Rs section 7.26
CC&Rs section 7.28
CC&Rs section 7.31
Analytics Highlights
Topics: Home Business, Pets/Animals, Nuisance, CC&Rs, Enforcement, HOA
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H003-REL Decision – 1094853.pdf
Uploaded 2026-01-23T18:00:39 (51.0 KB)
24F-H003-REL Decision – 1113338.pdf
Uploaded 2026-01-23T18:00:44 (49.4 KB)
24F-H003-REL Decision – 1125372.pdf
Uploaded 2026-01-23T18:00:48 (65.5 KB)
24F-H003-REL Decision – 1147484.pdf
Uploaded 2026-01-23T18:00:51 (184.8 KB)
Study Guide – 24F-H003-REL
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1094853.pdf
1113338.pdf
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1113416.aac
1113417.aac
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24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
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Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 24F-H003-REL
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1113338.pdf
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1113417.aac
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24F-H003-REL
7 sources
In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Anthony Rossetti(petitioner attorney, property manager) Rossetti Management & Realty Services Represented Petitioner and owned the newly hired management company.
Douglas Karolak(witness, homeowner) VVE-Casa Grande HOA Member Testified on behalf of Petitioner.
Nicole Elliot(property manager) Norris Management Former HOA management committee/manager who issued warning letters.
CD Mai(homeowner/neighbor) VVE-Casa Grande HOA Member Mentioned by Karolak as a vocal opponent/adjacent neighbor to the Eitels.
Respondent Side
Duane Eitel(respondent, witness) VVE-Casa Grande HOA Member Referred to as Duane S Eitel in earlier documents; DE in the decision.
Mary Eitel(respondent) VVE-Casa Grande HOA Member, CEO/Director of Valley Kitten Nursery & Rescue Inc. Referred to as Mary L Eitel in earlier documents.
Kevin Harper(respondent attorney) Harper Law, PLC
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Susan Nicolson(commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
vnunez(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
labril(ADRE staff) Arizona Department of Real Estate
Christopher Sinco(code compliance officer) Pinal County Animal Control Involved in the 2017/2018 county inspection.
Other Participants
Scott Lenderman(property manager) HOA management administrator (prior to Rossetti) Mentioned as the first HOA management administrator.
Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs)
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's petition, finding that the Petitioner failed to prove that the Association violated CC&Rs Section 2.1 by adopting the Residential Parking Policy. The Policy was deemed a valid clarification authorized by existing CC&R provisions (4.2(t) and 5.3).
Why this result: Petitioner failed to meet the burden of proof required to establish a violation of the governing documents.
Key Issues & Findings
Violation of CC&Rs Section 2.1 regarding adoption of Residential Parking Policy
Petitioner alleged that the Association's adoption of the Residential Parking Policy violated CC&Rs Section 2.1 because the policy used the unauthorized term 'Rules and Regulations' rather than 'restrictions,' thereby attempting to amend the CC&Rs without following the proper process, particularly concerning the use of government-owned property.
Orders: Petitioner's petition was dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA, CC&Rs, Parking Policy, Rules vs Restrictions, Burden of Proof, Planned Community
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H009-REL Decision – 1101544.pdf
Uploaded 2026-01-23T18:01:45 (47.0 KB)
24F-H009-REL Decision – 1111460.pdf
Uploaded 2026-01-23T18:01:48 (102.6 KB)
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Thomas P. Hommrich(petitioner) Property owner, appeared on his own behalf
Respondent Side
Quinten Cupps(HOA attorney) VIal Fotheringham, LLP Represented The Lakewood Community Association
Sandra Smith(community manager) Lakewood Community Association Witness who testified on behalf of Respondent
Neutral Parties
Brian Del Vecchio(ALJ) Office of Administrative Hearings Administrative Law Judge for the hearing and final decision
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Administrative Law Judge who issued the October 12, 2023 Order
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Moses Thompson(Judge) Judge cited in precedent case (Brian Seatic v Lake Resort Condominium)
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
labril(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
Brian Seatic(party) Party in precedent case (Brian Seatic v Lake Resort Condominium) cited during the hearing
The Villages at Rancho El Dorado Homeowners Association
Counsel
Lydia Linsmeier
Alleged Violations
CC&Rs Article 4.4
Outcome Summary
The Administrative Law Judge concluded that Petitioner failed to establish a violation of Article 4.4 of the CC&Rs, finding that the Association's regulation of the lap pool temperature was authorized and reasonable, and dismissed the petition.
Why this result: Petitioner failed to sustain her burden of proof by a preponderance of the evidence that the Association violated CC&Rs Article 4.4. Petitioner's preference for warmer water did not establish discrimination or a rule violation.
Key Issues & Findings
Whether The Villages at Rancho El Dorado Homeowners Association (Respondent) is in violation of CC&Rs Article 4.4 for “turning off the lap pool heater … [f]or approximately one month” which Petitioner further alleges constitutes discrimination against senior residents.
Petitioner alleged the HOA violated CC&Rs Article 4.4 by turning off the lap pool heater around mid-April 2023, making the temperature too cold for her use and constituting discrimination against senior residents who rely on the pool for exercise. The ALJ found Petitioner failed to prove a violation of CC&Rs Article 4.4 or age-based discrimination.
Orders: Petitioner's petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
CC&Rs Article 4.4
The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7(e)
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. ADMIN. CODE R2-19-119
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Pool Heating, Discrimination Claim, Common Area Use, Burden of Proof, Planned Community
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-106
ARIZ. ADMIN. CODE R2-19-119
CC&Rs Article 4.4
CC&Rs 8.2(c)(12)
The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H001-REL Decision – 1089588.pdf
Uploaded 2026-01-23T18:00:27 (52.0 KB)
24F-H001-REL Decision – 1102316.pdf
Uploaded 2026-01-23T18:00:31 (136.7 KB)
Study Guide – 24F-H001-REL
{ “case”: { “docket_no”: “24F-H001-REL”, “case_title”: “Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners Association”, “decision_date”: “2023-10-16”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “In an administrative hearing, the petitioner (homeowner) is responsible for proving that the HOA violated a community document. The standard of proof is ‘preponderance of the evidence,’ which means showing that the claim is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA rule regarding amenity usage constitute discrimination if it negatively affects senior citizens’ preferences?”, “short_answer”: “No, if the rule is applied neutrally and is within the HOA’s authority, personal preference does not equate to discrimination.”, “detailed_answer”: “The ALJ ruled that rules regarding common area maintenance (such as pool temperature) do not amount to age-based discrimination simply because they do not meet the personal preferences of senior residents, provided the HOA has the authority to govern the property use.”, “alj_quote”: “Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her preference does not amount to age-based discrimination.”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “discrimination”, “common areas”, “amenities” ] }, { “question”: “Can an HOA board adopt rules that restrict the use of common areas like pools?”, “short_answer”: “Yes, the CC&Rs typically grant the Board the power to adopt rules governing property use.”, “detailed_answer”: “The decision affirms that the HOA Board has the authority to adopt, amend, and repeal rules regarding the use of the property, including common areas, as long as those rules do not discriminate among owners and are consistent with the declaration.”, “alj_quote”: “By action of the Board, the Association may, from time to time and subject to the provisions of this Declaration, adopt, amend, and repeal rules and regulations to be known as the ‘Rules.’ The Rules may restrict and govern the use of the Property”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “HOA authority”, “rules and regulations”, “common areas” ] }, { “question”: “Does the administrative court have the power to interpret the CC&Rs as a contract?”, “short_answer”: “Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.”, “detailed_answer”: “The ALJ confirmed that the CC&Rs form an enforceable contract between the Association and the property owner, and the OAH has the legal authority to interpret this contract during a dispute.”, “alj_quote”: “Thus, the CC&Rs form an enforceable contract between the Association and each property owner… OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195”, “topic_tags”: [ “contract law”, “jurisdiction”, “CC&Rs” ] }, { “question”: “If the HOA follows its written rules regarding maintenance (e.g., heating schedules), is it liable for a violation?”, “short_answer”: “No, if the HOA acts in accordance with the established rules, there is no violation.”, “detailed_answer”: “In this case, the HOA rules specified heating the pool during the ‘winter season’ to a specific range. Because there was no evidence the HOA failed to meet these specific written requirements, the ALJ found no violation.”, “alj_quote”: “There is no evidence in the record that would support the contention that the Association failed to do so through April 2023.”, “legal_basis”: “Recreation Center Complex Rule 3.5.7(e)”, “topic_tags”: [ “maintenance”, “compliance”, “violations” ] }, { “question”: “What is the definition of ‘preponderance of the evidence’?”, “short_answer”: “It is evidence that convinces the judge the claim is ‘more probably true than not.'”, “detailed_answer”: “The decision defines this legal standard as the greater weight of the evidence, which inclines a fair mind to one side of the issue, even if it doesn’t wholly free the mind from doubt.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “Does a homeowner have to pay a fee to file a petition against their HOA?”, “short_answer”: “Yes, a filing fee is required by statute.”, “detailed_answer”: “The petitioner in this case was required to tender a $500.00 filing fee to the Department of Real Estate when submitting their petition.”, “alj_quote”: “On July 07, 2023, tendered $500.00 to the Department as a filing fee for the petition at issue.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.05”, “topic_tags”: [ “fees”, “filing process”, “procedure” ] } ] }
Blog Post – 24F-H001-REL
{ “case”: { “docket_no”: “24F-H001-REL”, “case_title”: “Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners Association”, “decision_date”: “2023-10-16”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “In an administrative hearing, the petitioner (homeowner) is responsible for proving that the HOA violated a community document. The standard of proof is ‘preponderance of the evidence,’ which means showing that the claim is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA rule regarding amenity usage constitute discrimination if it negatively affects senior citizens’ preferences?”, “short_answer”: “No, if the rule is applied neutrally and is within the HOA’s authority, personal preference does not equate to discrimination.”, “detailed_answer”: “The ALJ ruled that rules regarding common area maintenance (such as pool temperature) do not amount to age-based discrimination simply because they do not meet the personal preferences of senior residents, provided the HOA has the authority to govern the property use.”, “alj_quote”: “Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her preference does not amount to age-based discrimination.”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “discrimination”, “common areas”, “amenities” ] }, { “question”: “Can an HOA board adopt rules that restrict the use of common areas like pools?”, “short_answer”: “Yes, the CC&Rs typically grant the Board the power to adopt rules governing property use.”, “detailed_answer”: “The decision affirms that the HOA Board has the authority to adopt, amend, and repeal rules regarding the use of the property, including common areas, as long as those rules do not discriminate among owners and are consistent with the declaration.”, “alj_quote”: “By action of the Board, the Association may, from time to time and subject to the provisions of this Declaration, adopt, amend, and repeal rules and regulations to be known as the ‘Rules.’ The Rules may restrict and govern the use of the Property”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “HOA authority”, “rules and regulations”, “common areas” ] }, { “question”: “Does the administrative court have the power to interpret the CC&Rs as a contract?”, “short_answer”: “Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.”, “detailed_answer”: “The ALJ confirmed that the CC&Rs form an enforceable contract between the Association and the property owner, and the OAH has the legal authority to interpret this contract during a dispute.”, “alj_quote”: “Thus, the CC&Rs form an enforceable contract between the Association and each property owner… OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195”, “topic_tags”: [ “contract law”, “jurisdiction”, “CC&Rs” ] }, { “question”: “If the HOA follows its written rules regarding maintenance (e.g., heating schedules), is it liable for a violation?”, “short_answer”: “No, if the HOA acts in accordance with the established rules, there is no violation.”, “detailed_answer”: “In this case, the HOA rules specified heating the pool during the ‘winter season’ to a specific range. Because there was no evidence the HOA failed to meet these specific written requirements, the ALJ found no violation.”, “alj_quote”: “There is no evidence in the record that would support the contention that the Association failed to do so through April 2023.”, “legal_basis”: “Recreation Center Complex Rule 3.5.7(e)”, “topic_tags”: [ “maintenance”, “compliance”, “violations” ] }, { “question”: “What is the definition of ‘preponderance of the evidence’?”, “short_answer”: “It is evidence that convinces the judge the claim is ‘more probably true than not.'”, “detailed_answer”: “The decision defines this legal standard as the greater weight of the evidence, which inclines a fair mind to one side of the issue, even if it doesn’t wholly free the mind from doubt.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “Does a homeowner have to pay a fee to file a petition against their HOA?”, “short_answer”: “Yes, a filing fee is required by statute.”, “detailed_answer”: “The petitioner in this case was required to tender a $500.00 filing fee to the Department of Real Estate when submitting their petition.”, “alj_quote”: “On July 07, 2023, tendered $500.00 to the Department as a filing fee for the petition at issue.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.05”, “topic_tags”: [ “fees”, “filing process”, “procedure” ] } ] }
Case Participants
Petitioner Side
Kristeen L. Herron(petitioner) The Villages at Rancho El Dorado Homeowners Association Property owner and member of the Association
Karen Ellis(witness) The Villages at Rancho El Dorado Homeowners Association Witness for Petitioner; property owner/member
LouAnne Schmidt(observer) Potential witness for Petitioner, not permitted to testify
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
