Tag Archives: Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Quail Creek Villas Association, Inc. v. Randall & Gisela White

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Case Summary

Case ID 23F-H042-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-05-09
Administrative Law Judge Jenna Clark
Outcome The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.
Filing Fees Refunded $500.00
Civil Penalties $100.00

Parties & Counsel

Petitioner Quail Creek Villas Association, Inc. Counsel Michael Shupe, Esq.
Respondent Randall & Gisela White Counsel —

Alleged Violations

CC&Rs Section 3(j)

Outcome Summary

The HOA's petition was granted. Respondents were found to have violated CC&Rs Section 3(j) by installing tile without approval and were ordered to comply with the CC&Rs, reimburse the $500 filing fee, and pay a $100 civil penalty.

Why this result: Respondents admitted to the alleged conduct and failed to establish a sufficient affirmative defense (incomplete CC&Rs) against the violation, as the recorded CC&Rs provided constructive notice of all provisions. Respondents' conduct during testimony was also considered a factor in aggravation.

Key Issues & Findings

Unauthorized exterior modification (tile installation)

Respondents permanently installed tile on their front porch entryway without obtaining prior written approval. The ALJ rejected the Respondents' defense regarding missing CC&R pages, noting the HOA sustained its burden of proving a community document violation by a preponderance of the evidence.

Orders: Respondents must henceforth abide by CC&Rs Section 3(j), reimburse the Petitioner $500.00 for the filing fee, and pay a $100.00 civil penalty to the Department.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $100.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Analytics Highlights

Topics: CC&R violation, Architectural Review Committee (ALC), exterior modification, tile installation, constructive notice, affirmative defense, HOA maintenance
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. § 33-1805
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1803
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • Federoff v. Pioneer Title & Trust Co., 166 Ariz. 393 (1990)
  • Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330 (App. 1977)
  • Flying Diamond Air Park LLC v. Minenberg, 215 Ariz. 44 (App. 2007)

Video Overview

Audio Overview

Decision Documents

23F-H042-REL Decision – 1048063.pdf

Uploaded 2026-04-24T12:07:08 (55.7 KB)

23F-H042-REL Decision – 1055060.pdf

Uploaded 2026-04-24T12:07:25 (219.4 KB)

23F-H042-REL Decision – 1048063.pdf

Uploaded 2026-01-23T17:56:08 (55.7 KB)

23F-H042-REL Decision – 1055060.pdf

Uploaded 2026-01-23T17:56:11 (219.4 KB)

This summary addresses the legal case hearing concerning the Quail Creek Villas Association, Inc. (Petitioner) versus Randall and Gisela White (Respondents) regarding compliance with community documents, held remotely before Administrative Law Judge (ALJ) Jenna Clark on April 27, 2023, under Docket No. 23F-H042-REL.

Key Facts and Main Issues

The central issue was whether the Respondents violated Section 3(j) of the Covenants, Conditions, and Restrictions (CC&Rs) by installing permanent tile on their front porch entryway without prior written approval from the Association's Board of Directors. The Petitioner sought an order confirming the violation, requiring compliance, and imposing a civil penalty.

The key facts were largely undisputed:

  1. Respondents installed large, permanent tile squares in their entryway around May/June 2022.
  2. The Association’s management (Cadden Community Management) advised Mr. White in May 2022 that an Architectural Landscape Committee (ALC) form was required for any exterior modifications.
  3. The Association has a duty to maintain the structural integrity of the concrete, which the Board contended the permanent tile placement compromised, increasing maintenance costs and creating a potential trip hazard.
  4. The Association provided multiple violation notices and extended the compliance deadline from August 2022 to January 31, 2023.

Key Arguments

Petitioner's Arguments (HOA):

Petitioner argued that the Respondents acted in knowing disregard of their obligation to seek approval for exterior modifications, thereby violating the CC&Rs. They asserted that the recorded CC&Rs provide constructive notice of all provisions to all purchasers as a matter of Arizona law, regardless of any perceived defect in the documents provided at closing.

Respondents' Defense (Owners):

Mr. White acknowledged installing the tile but maintained an affirmative defense that the CC&Rs set provided during his closing was "flawed," missing pages 4 and 6, which included the foundational Section 3(j). He claimed that he had no duty to comply with documents he had not received. Mr. White also argued that the tile was not visible (covered by a rug) and that its removal, based on his engineering knowledge, would cause severe damage to the underlying post-tension concrete slab, making enforcement punitive.

Final Decision and Legal Outcome

The ALJ found that the Petitioner established a community document violation by a preponderance of the evidence.

Focus on Legal Points:

The ALJ concluded that the Respondents’ defense regarding the missing CC&Rs pages was insufficient because the Pima County recorded CC&Rs provided constructive notice of all provisions, and the CC&Rs constitute a contract binding upon the owners. Furthermore, Mr. White’s own communications referenced Section 3(j) prior to the permanent installation, confirming actual knowledge of the approval requirement. The ALJ found that allowing the tile to remain would violate the CC&Rs requirements for architectural approval and compatibility/uniformity within the Villas Property.

Outcome and Order:

The ALJ Decision, dated May 9, 2023, granted the petition. The final order mandates that Respondents:

  1. Abide by CC&Rs Section 3(j) henceforth.
  2. Reimburse the Petitioner $500.00 for its filing fee.
  3. Pay a $100.00 civil penalty to the Arizona Department of Real Estate.

Questions

Question

Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?

Short Answer

No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.

Detailed Answer

The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.

Alj Quote

The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents

Legal Basis

Constructive Notice

Topic Tags

  • CC&Rs
  • disclosure
  • compliance

Question

Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?

Short Answer

Yes, especially if the HOA is responsible for maintaining the exterior surfaces.

Detailed Answer

The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.

Alj Quote

Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.

Legal Basis

CC&Rs Contractual Obligations

Topic Tags

  • architectural control
  • maintenance
  • visibility

Question

Can I fix a violation for unapproved flooring by simply covering it with a rug?

Short Answer

No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.

Detailed Answer

The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.

Alj Quote

The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.

Legal Basis

Remedy of Violation

Topic Tags

  • violations
  • remedies
  • architectural control

Question

Who has the burden of proof in an administrative hearing regarding an HOA dispute?

Short Answer

The Petitioner (the party bringing the case) bears the burden of proof.

Detailed Answer

The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • procedural
  • burden of proof
  • evidence

Question

If I lose the hearing, do I have to reimburse the HOA for their filing fee?

Short Answer

Yes. The prevailing party is typically entitled to reimbursement of the filing fee.

Detailed Answer

The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • fees
  • costs
  • penalties

Question

Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?

Short Answer

Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.

Detailed Answer

In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalty
  • fines
  • ADRE

Question

Does my behavior during the dispute process affect the judge's decision?

Short Answer

Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.

Detailed Answer

The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.

Alj Quote

Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.

Legal Basis

Judicial Discretion

Topic Tags

  • conduct
  • hearing process
  • aggravating factors

Case

Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Am I excused from HOA rules if pages were missing from the copy of the CC&Rs I received at closing?

Short Answer

No. Recorded CC&Rs provide constructive notice of all provisions to homeowners, regardless of errors in the specific copy provided at closing.

Detailed Answer

The ALJ ruled that missing pages in the document package provided by a disclosure company or previous owner do not excuse a homeowner from compliance. Because CC&Rs are recorded public documents, homeowners are deemed to have 'constructive notice' of all rules contained within the recorded version.

Alj Quote

The Tribunal is not swayed by Mr. White’s incorrect legal interpretations regarding the annotated CC&Rs received by HomeWise, as the Pima County recorded CC&Rs provide constructive notice of all provisions contained within the community documents

Legal Basis

Constructive Notice

Topic Tags

  • CC&Rs
  • disclosure
  • compliance

Question

Can the HOA regulate changes to my property even if they aren't visible from the street or neighboring properties?

Short Answer

Yes, especially if the HOA is responsible for maintaining the exterior surfaces.

Detailed Answer

The decision upheld the HOA's authority to regulate exterior modifications regardless of visibility, particularly noting that when an owner acquires a lot where the HOA performs maintenance, they may give up rights to control the appearance of those areas.

Alj Quote

Each Owner of a Villas Lot understands, acknowledges and agrees that by acquiring an interest in a Lot in which landscaping and exterior maintenance is performed or arranged by the Villas Association, such Owner is giving up rights to control the appearance and use of the outside areas of such Owner’s Villas Lot.

Legal Basis

CC&Rs Contractual Obligations

Topic Tags

  • architectural control
  • maintenance
  • visibility

Question

Can I fix a violation for unapproved flooring by simply covering it with a rug?

Short Answer

No. Covering an unapproved permanent installation with a removable item like a rug does not cure the underlying violation.

Detailed Answer

The ALJ rejected the homeowner's argument that placing a custom rug over unapproved tiles resolved the issue. The violation (the unapproved installation) persisted despite being hidden from view.

Alj Quote

The Tribunal is not swayed… by Mr. White’s placement of a custom cut rug in lieu of paying the fine to the Association.

Legal Basis

Remedy of Violation

Topic Tags

  • violations
  • remedies
  • architectural control

Question

Who has the burden of proof in an administrative hearing regarding an HOA dispute?

Short Answer

The Petitioner (the party bringing the case) bears the burden of proof.

Detailed Answer

The Petitioner must prove their case by a 'preponderance of the evidence' (meaning it is more likely true than not). Conversely, if the Respondent claims an affirmative defense (a legal excuse), they bear the burden of proving that defense.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805. Respondents bear the burden of establishing any affirmative defenses by the same evidentiary burden.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • procedural
  • burden of proof
  • evidence

Question

If I lose the hearing, do I have to reimburse the HOA for their filing fee?

Short Answer

Yes. The prevailing party is typically entitled to reimbursement of the filing fee.

Detailed Answer

The ALJ ordered the losing homeowner to reimburse the HOA for the $500 filing fee they paid to bring the case. This is a statutory requirement under Arizona law.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall reimburse Petitioner its filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this ORDER, as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

A.R.S. § 32-2199.01

Topic Tags

  • fees
  • costs
  • penalties

Question

Can the ALJ order me to pay a penalty to the state in addition to reimbursing the HOA?

Short Answer

Yes. The ALJ has the authority to impose a civil penalty payable to the Arizona Department of Real Estate.

Detailed Answer

In this decision, in addition to ordering compliance and fee reimbursement to the HOA, the ALJ ordered the homeowner to pay a $100 civil penalty directly to the Department of Real Estate.

Alj Quote

IT IS FURTHER ORDERED that Respondents shall pay a $100.00 civil penalty in certified funds to the Department within thirty (30) days of this ORDER, as authorized by ARIZ. REV. STAT. § 32-2199.02.

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • civil penalty
  • fines
  • ADRE

Question

Does my behavior during the dispute process affect the judge's decision?

Short Answer

Yes. Obfuscating or evasive conduct can be considered an aggravating factor against you.

Detailed Answer

The ALJ specifically noted that the homeowner's conduct during testimony was 'obfuscating' (confusing or unclear) and weighed this as a factor in aggravation when making the final ruling.

Alj Quote

Moreover, Mr. White’s conduct during the testimony was obfuscating, and is considered a factor in aggravation.

Legal Basis

Judicial Discretion

Topic Tags

  • conduct
  • hearing process
  • aggravating factors

Case

Docket No
23F-H042-REL
Case Title
Quail Creek Villas Association, Inc. vs. Randall & Gisela White
Decision Date
2023-05-09
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Michael Shupe (HOA attorney)
    Goldschmidt Shupe, PLLC
    Appeared as counsel for Petitioner
  • Carolyn B. Goldschmidt (HOA attorney)
    Goldschmidt Shupe, PLLC
    Legal counsel for the Association; communication contact listed
  • Lori Don Woullet (Property Manager/Witness)
    Cadden Community Management
    Senior Community Association Manager
  • Diane Patricia Weber (Former Board Member/Witness)
    Quail Creek Villas Association, Inc.
    Former Board Treasurer
  • Lynn Birleffi (Witness)
    Quail Creek Villas Association, Inc.
    Called as a witness for Petitioner

Respondent Side

  • Randall White (Respondent)
    Quail Creek Villas Association, Inc.
    Appeared pro se and testified
  • Gisela White (Respondent)
    Quail Creek Villas Association, Inc.
    Appearance waived

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate

Clifford S Burnes V. Saguaro Crest Homeowners’ Association

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Case Summary

Case ID 23F-H031-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-04-13
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford S Burnes Counsel —
Respondent Saguaro Crest Homeowners' Association Counsel John T. Crotty

Alleged Violations

SCHA Bylaws Article 2.1

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to meet the burden of proof that the Saguaro Crest Homeowners Association violated Article 2.1 of the Bylaws by not holding elections. The Bylaw states the annual meeting is for the purpose of 'electing or announcing the results of the election of Directors' and transacting 'other business' (which included dissolution), and the HOA was not required to hold elections if results could have been announced or if dissolution proceedings were underway.

Why this result: The Bylaws did not strictly require elections be held, and Petitioner failed to object to the board remaining in place to oversee the dissolution.

Key Issues & Findings

Annual meeting

Petitioner alleged the HOA violated Article 2.1 of the Bylaws by failing to hold Board of Directors elections at the 2021 annual meeting. Respondent argued the language ('for the purpose of electing or announcing the results') did not require elections and that the dissolution vote superseded the immediate need for elections, especially since no one objected at the meeting.

Orders: Petitioner’s petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Analytics Highlights

Topics: HOA, Bylaws, Election Dispute, Dissolution, Annual Meeting, Burden of Proof, Waiver
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)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Decision Documents

23F-H031-REL Decision – 1035344.pdf

Uploaded 2026-04-24T12:01:26 (51.8 KB)

23F-H031-REL Decision – 1049021.pdf

Uploaded 2026-04-24T12:01:32 (114.7 KB)

23F-H031-REL Decision – 1035344.pdf

Uploaded 2026-01-23T17:53:49 (51.8 KB)

23F-H031-REL Decision – 1049021.pdf

Uploaded 2026-01-23T17:53:51 (114.7 KB)

This summary concerns the hearing held before Administrative Law Judge (ALJ) Adam D. Stone of the Office of Administrative Hearings (OAH) on March 29, 2023, in the matter of *Clifford S Burnes v. Saguaro Crest Homeowners' Association* (SCHA), Docket No. 23F-H031-REL.

Key Facts and Main Issues

The central issue was whether the Saguaro Crest Homeowners' Association (Respondent) violated its Bylaws, specifically Article 2.1, by failing to hold Board of Directors elections at the annual meeting on December 11, 2021.

Article 2.1 mandates that an annual meeting "shall be held at least every twelve (12) months… for the purpose of electing or announcing the results of the election of Directors and transacting such other business as may properly come before the meeting".

Key facts established during the hearing include:

  1. The annual meeting was held on December 11, 2021.
  2. At that meeting, the voting members properly approved a vote to dissolve the SCHA.
  3. The Board President and Vice President, whose terms were ending, volunteered to remain in their positions to oversee the dissolution process.
  4. No elections were held for the subsequent 2022 calendar year.
  5. Petitioner Clifford S. Burnes was present at the meeting but did not voice an objection to the board members remaining or to the lack of elections at that time.

Key Arguments

Petitioner's Argument: Petitioner Burnes argued that the use of the word "shall" and the phrase "for the purpose of electing" in Article 2.1 constituted a requirement for elections to be held annually, and the SCHA violated this bylaw. Mr. Burnes requested that the ALJ find in his favor, require the SCHA to comply, reimburse his filing fee, and impose a civil fine on the HOA.

Respondent's Argument: The SCHA, represented by John T. Crotty, denied the claim. The Respondent argued that Article 2.1 provided options: either holding elections *or* announcing the results of elections, and also permitted transacting "such other business," which included the majority-approved dissolution. The SCHA argued that had the dissolution vote failed, an election would have been held. Crucially, the SCHA argued that Mr. Burnes waived his claim of violation by failing to object at the meeting, despite his familiarity with the governing documents.

Legal Outcome and Final Decision

The ALJ determined that the Petitioner bore the burden of proving the violation of Article 2.1 by a preponderance of the evidence.

The ALJ concluded that the Petitioner failed to meet his burden of proof. The legal analysis found that Article 2.1, as written, did not strictly require elections to be held at the meeting itself, as it allowed for results to be announced. Furthermore, the ALJ noted that the clear approval of the dissolution vote meant there would be no need for a new board once the process was complete. The ALJ deemed the Petitioner’s failure to raise an objection at the meeting to be "most harmful" to his claim.

The ALJ issued an Order denying the Petitioner’s petition.

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23F-H031-REL

3 sources

These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.

What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.

Thursday, February 12

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23F-H031-REL

3 sources

These sources document a legal dispute between Clifford S. Burnes and the Saguaro Crest Homeowners’ Association regarding an alleged violation of community bylaws. The conflict centers on a December 2021 annual meeting where the association voted to dissolve the organization but did not hold new elections for its leadership. Burnes argued that Article 2.1 of the bylaws mandated an election, while the association maintained that the dissolution vote rendered new elections unnecessary. An administrative hearing transcript captures the testimony of both parties, highlighting disagreements over meeting procedures and the legal interpretation of governing documents. Ultimately, the Administrative Law Judge ruled in favor of the association, concluding that no mandatory election requirement was violated. The final decision emphasizes that the petitioner failed to object during the meeting and did not meet the burden of proof for his claims.

What are the legal arguments for and against dissolving the HOA?
How did the judge interpret the ‘purpose’ of the annual meeting?
Explain the role of the Arizona Office of Administrative Hearings.

Thursday, February 12

Save to note

Today • 2:17 PM

3 sources

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Clifford S. Burnes (petitioner)
    Saguaro Crest Homeowners' Association Member
    Also referred to as Clifford (Norm) Burnes.

Respondent Side

  • John T. Crotty (HOA attorney)
    Saguaro Crest Homeowners' Association
  • Esmerina Martinez (board member)
    Saguaro Crest Homeowners' Association
    President; referred to as Serena Martinez or Esmerelda Martinez in sources.
  • Dave Madill (board member)
    Saguaro Crest Homeowners' Association
    Vice President; referred to as Dave Matt or Dave Mel in testimony.
  • Joseph Martinez (board member)
    Saguaro Crest Homeowners' Association

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official transmittal.

Matthew E Thompson v. Deer Valley Homeowners Association Inc

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Case Summary

Case ID 23F-H003-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-12-20
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the petition, concluding Petitioner failed to sustain the burden of proof that the Association violated community documents by failing to replace trees on Member lots. The CC&Rs did not establish a duty for the HOA to replace homeowner trees.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Matthew E Thompson Counsel —
Respondent Deer Valley Homeowners Association Inc. Counsel Beth Mulcahy, Esq. & Haidyn Di Lorenzo, Esq.

Alleged Violations

Sun City West Dec CC&Rs Article 4.2(F); Deer Valley CC&Rs Articles 1.16, 6.2, 2.3, 7.1, 7.3; Deer Valley HOA Rules & Regulations ¶ 7.1 and 7.2

Outcome Summary

The Administrative Law Judge denied the petition, concluding Petitioner failed to sustain the burden of proof that the Association violated community documents by failing to replace trees on Member lots. The CC&Rs did not establish a duty for the HOA to replace homeowner trees.

Why this result: Petitioner failed to meet the burden of proof; Petitioner was not an aggrieved party; Petitioner failed to establish causation by Respondent or duty to act by Respondent; trees belong to homeowners, and the Deer Valley CC&Rs do not require the HOA to replace trees under its maintenance obligations.

Key Issues & Findings

Whether Respondent is responsible for replacing dead and/or dying trees on all Member Lots in accordance with cited community documents.

Petitioner alleged the HOA violated governing documents by failing to replace dead trees on member lots, and sought an order compelling the replacement of 59 missing trees (at a rate of 10 per year).

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Sun City West Dec CC&Rs Article 4.2(F)
  • Deer Valley CC&Rs Article 1.16
  • Deer Valley CC&Rs Article 6.2
  • Deer Valley CC&Rs Article 2.3
  • Deer Valley CC&Rs Article 7.1
  • Deer Valley CC&Rs Article 7.3
  • Deer Valley HOA Rules & Regulations ¶ 7.1
  • Deer Valley HOA Rules & Regulations ¶ 7.2

Analytics Highlights

Topics: HOA dispute, Landscape maintenance, Tree replacement, Burden of proof, Standing
Additional Citations:

  • ARIZ. REV. STAT. §§ 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.09
  • ARIZ. REV. STAT. Title 33, Chapter 16, Article 1
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

23F-H003-REL Decision – 1001043.pdf

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23F-H003-REL Decision – 1001154.pdf

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23F-H003-REL Decision – 1021049.pdf

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23F-H003-REL Decision – 999666.pdf

Uploaded 2026-04-24T11:56:09 (53.9 KB)

23F-H003-REL Decision – 1001043.pdf

Uploaded 2026-01-23T17:50:08 (58.8 KB)

23F-H003-REL Decision – 1001154.pdf

Uploaded 2026-01-23T17:50:14 (7.1 KB)

23F-H003-REL Decision – 1021049.pdf

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23F-H003-REL Decision – 999666.pdf

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This is a summary of the administrative hearing proceedings in the matter of *Matthew E Thompson, Petitioner, vs. Deer Valley Homeowners Association Inc., Respondent* (No. 23F-H003-REL). The hearing, presided over by Administrative Law Judge (ALJ) Jenna Clark, was held on December 12, 2022.

Key Facts and Main Issue

The Petitioner, Matthew Thompson (a homeowner and former Board member), filed a single-issue petition alleging the Deer Valley Homeowners Association (HOA) violated community documents by failing to replace dead trees within the community. Petitioner paid a $500 filing fee for the adjudication of this single issue.

Petitioner's Position: The HOA has an obligation to replace dead or missing trees, relying on provisions within the Deer Valley CC&Rs (subdivision declaration) and the Deer Valley HOA Rules & Regulations concerning "maintenance" and the Board's role in setting "priorities for plant and tree replacement". Petitioner asserted that the value of his property was negatively impacted by the approximately 59 missing or dying trees on neighboring lots, arguing he has standing because he pays common assessments for landscape maintenance.

Respondent's Position: The HOA denied the allegations. The current Board interprets the Deer Valley CC&Rs as *not* requiring tree replacement, noting that the documents only mention maintenance and specifically limit replacement obligations to irrigation parts. The Board's policy is to replace trees only if the death or damage is proven to be caused by the Association’s negligence or willful maintenance.

Hearing Proceedings and Key Arguments

Procedural Matters: At the outset, Respondent's counsel raised motions to dismiss.

  1. Jurisdiction/Relief: Counsel sought clarification that the Arizona Department of Real Estate (ADRE) and OAH lacked jurisdiction to grant injunctive relief or monetary damages. The ALJ confirmed that the only relief available was an order for a party to abide by specific documents, denying the requested injunctive relief of compelling the HOA to plant 10 trees annually.
  2. Standing (Injury in Fact): Respondent argued Petitioner lacked standing because he failed to allege a personalized injury, as no trees were missing or dead on his personal lot, and he cannot pursue disputes on behalf of other homeowners.
  3. Wrong Party: Respondent argued that the minimum tree requirement cited by Petitioner originated in the Sun City West Declaration (the Master Association), which Deer Valley HOA (the sub-association) is not responsible for enforcing.

Motion for Summary Judgment: After Petitioner presented his case-in-chief, Respondent renewed the motion, arguing that the evidence showed, as a matter of law, that the Deer Valley CC&Rs do not require tree replacement.

ALJ Ruling on Motions: The ALJ denied the motions to dismiss/summary judgment, citing an issue of fact regarding the interpretation of the CC&Rs and the necessity of establishing a definitive record.

Witness Testimony: The HOA Board President, Charles Dean Otto, testified that the Board does not interpret replacement as a requirement and respects homeowners who do not want more trees on their lots. He noted that the requirement of four trees per lot was in the Master Association documents, potentially intended for marketing, and was not intended to be maintained in perpetuity by the Deer Valley HOA.

Legal Points and Final Outcome

The ALJ, after reviewing the record, issued a FINAL ORDER denying the Petitioner's petition.

Legal Conclusions:

  • Burden of Proof: Petitioner failed to sustain his burden of proving by a preponderance of the evidence that the Association violated the cited community documents.
  • Lack of Standing (Aggrieved Party): Petitioner was found not to be an "aggrieved party" because he admitted that he brought the petition "on behalf of all community members" and did not have a dead, dying, or missing tree on his

Questions

Question

If the CC&Rs require the HOA to perform 'maintenance', does that legally obligate them to replace dead plants or trees?

Short Answer

Not necessarily. The term 'maintenance' does not automatically include 'replacement' unless specified in the governing documents.

Detailed Answer

In this case, the HOA was found not to be in violation for refusing to replace trees because the CC&Rs governed 'maintenance,' which was interpreted as distinct from a requirement to replace items owned by the homeowner. The ALJ ruled the homeowner failed to prove the HOA had a duty to replace the trees.

Alj Quote

The Board declined Petitioner’s request, as it had concluded that the Deer Valley CC&Rs did not require replacement of trees under its maintenance obligations.

Legal Basis

Contract Interpretation / CC&Rs

Topic Tags

  • Maintenance vs Replacement
  • CC&Rs
  • Landscaping

Question

Can I file a petition against my HOA on behalf of the entire community regarding a general issue?

Short Answer

No. You must be an 'aggrieved party' with a specific injury to yourself or your property.

Detailed Answer

A homeowner cannot sue on behalf of other community members. To have standing, the petitioner must demonstrate that they personally suffered an injury. In this case, the petitioner had no dead trees on his own lot, so he was not considered an aggrieved party.

Alj Quote

Here, Petitioner is not an aggrieved party. Petitioner admitted that he brought forth his petition 'on behalf of all community members' and did not have a dead, dying, or missing tree on his lot.

Legal Basis

Standing / Aggrieved Party Status

Topic Tags

  • Standing
  • Procedural Requirements

Question

Can I argue that my neighbor's violations are diminishing my property value in an administrative hearing?

Short Answer

Generally, no, unless you have concrete evidence and it is a justiciable issue.

Detailed Answer

Claims that a neighbor's lack of maintenance (like dead trees) negatively impacts your property value may be dismissed as irrelevant or unsupported without significant proof. The tribunal may consider this non-justiciable.

Alj Quote

Notably, Petitioner’s allegation that his lot’s value has been diminished by neighboring lots due to their dead, dying, and/or missing trees is irrelevant, not supported by the record, and is not a justiciable issue for this tribunal.

Legal Basis

Evidence / Justiciable Issues

Topic Tags

  • Property Value
  • Evidence

Question

If I pay a filing fee for one issue, can I add other complaints to the hearing later?

Short Answer

No. The tribunal will only address the specific issue for which the filing fee was paid.

Detailed Answer

Administrative hearings are limited in scope to the specific issues properly petitioned and paid for. Tangential issues raised in addendums or during the hearing will likely not be adjudicated if a separate fee was not paid.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioner raised in the addendum to his petition.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

  • Filing Fees
  • Scope of Hearing

Question

Does the HOA have the authority to remove items (like trees) from my private lot without permission?

Short Answer

No, unless the governing documents explicitly grant that authority.

Detailed Answer

The HOA generally cannot enter a homeowner's lot to remove property, such as trees, without the owner's permission, unless the record establishes specific authority to do so.

Alj Quote

There is nothing in the record that establishes Respondent has the authority to remove a tree from a homeowner’s lot without permission, or that Respondent has done so in the past.

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • Homeowner Rights
  • Trespass/Authority

Question

What level of proof is required for a homeowner to win a case against their HOA?

Short Answer

The standard is 'preponderance of the evidence'.

Detailed Answer

The petitioner must prove that their claim is more likely true than not. This is a lower standard than 'beyond a reasonable doubt' used in criminal cases, but still requires superior evidentiary weight.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Evidence

Question

Can I base my claim on the 'Master Association' CC&Rs if my specific HOA CC&Rs say something different?

Short Answer

Generally, the specific HOA CC&Rs form the enforceable contract for maintenance issues within that specific subdivision.

Detailed Answer

While a Master Association may have its own rules, the specific subdivision's CC&Rs are often the controlling documents regarding maintenance obligations for lots within that subdivision. The ALJ focused on the specific HOA's documents to determine liability.

Alj Quote

The record reflects that the Deer Valley CC&Rs govern landscaping maintenance for the Association… [and] did not require Respondent to replace dead, dying, or missing trees within the Association

Legal Basis

Governing Documents Hierarchy

Topic Tags

  • CC&Rs
  • Master Association

Case

Docket No
23F-H003-REL
Case Title
Matthew E Thompson vs. Deer Valley Homeowners Association Inc.
Decision Date
2022-12-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

If the CC&Rs require the HOA to perform 'maintenance', does that legally obligate them to replace dead plants or trees?

Short Answer

Not necessarily. The term 'maintenance' does not automatically include 'replacement' unless specified in the governing documents.

Detailed Answer

In this case, the HOA was found not to be in violation for refusing to replace trees because the CC&Rs governed 'maintenance,' which was interpreted as distinct from a requirement to replace items owned by the homeowner. The ALJ ruled the homeowner failed to prove the HOA had a duty to replace the trees.

Alj Quote

The Board declined Petitioner’s request, as it had concluded that the Deer Valley CC&Rs did not require replacement of trees under its maintenance obligations.

Legal Basis

Contract Interpretation / CC&Rs

Topic Tags

  • Maintenance vs Replacement
  • CC&Rs
  • Landscaping

Question

Can I file a petition against my HOA on behalf of the entire community regarding a general issue?

Short Answer

No. You must be an 'aggrieved party' with a specific injury to yourself or your property.

Detailed Answer

A homeowner cannot sue on behalf of other community members. To have standing, the petitioner must demonstrate that they personally suffered an injury. In this case, the petitioner had no dead trees on his own lot, so he was not considered an aggrieved party.

Alj Quote

Here, Petitioner is not an aggrieved party. Petitioner admitted that he brought forth his petition 'on behalf of all community members' and did not have a dead, dying, or missing tree on his lot.

Legal Basis

Standing / Aggrieved Party Status

Topic Tags

  • Standing
  • Procedural Requirements

Question

Can I argue that my neighbor's violations are diminishing my property value in an administrative hearing?

Short Answer

Generally, no, unless you have concrete evidence and it is a justiciable issue.

Detailed Answer

Claims that a neighbor's lack of maintenance (like dead trees) negatively impacts your property value may be dismissed as irrelevant or unsupported without significant proof. The tribunal may consider this non-justiciable.

Alj Quote

Notably, Petitioner’s allegation that his lot’s value has been diminished by neighboring lots due to their dead, dying, and/or missing trees is irrelevant, not supported by the record, and is not a justiciable issue for this tribunal.

Legal Basis

Evidence / Justiciable Issues

Topic Tags

  • Property Value
  • Evidence

Question

If I pay a filing fee for one issue, can I add other complaints to the hearing later?

Short Answer

No. The tribunal will only address the specific issue for which the filing fee was paid.

Detailed Answer

Administrative hearings are limited in scope to the specific issues properly petitioned and paid for. Tangential issues raised in addendums or during the hearing will likely not be adjudicated if a separate fee was not paid.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioner raised in the addendum to his petition.

Legal Basis

ARIZ. REV. STAT. § 32-2199.05

Topic Tags

  • Filing Fees
  • Scope of Hearing

Question

Does the HOA have the authority to remove items (like trees) from my private lot without permission?

Short Answer

No, unless the governing documents explicitly grant that authority.

Detailed Answer

The HOA generally cannot enter a homeowner's lot to remove property, such as trees, without the owner's permission, unless the record establishes specific authority to do so.

Alj Quote

There is nothing in the record that establishes Respondent has the authority to remove a tree from a homeowner’s lot without permission, or that Respondent has done so in the past.

Legal Basis

Property Rights / HOA Authority

Topic Tags

  • Homeowner Rights
  • Trespass/Authority

Question

What level of proof is required for a homeowner to win a case against their HOA?

Short Answer

The standard is 'preponderance of the evidence'.

Detailed Answer

The petitioner must prove that their claim is more likely true than not. This is a lower standard than 'beyond a reasonable doubt' used in criminal cases, but still requires superior evidentiary weight.

Alj Quote

A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Evidence

Question

Can I base my claim on the 'Master Association' CC&Rs if my specific HOA CC&Rs say something different?

Short Answer

Generally, the specific HOA CC&Rs form the enforceable contract for maintenance issues within that specific subdivision.

Detailed Answer

While a Master Association may have its own rules, the specific subdivision's CC&Rs are often the controlling documents regarding maintenance obligations for lots within that subdivision. The ALJ focused on the specific HOA's documents to determine liability.

Alj Quote

The record reflects that the Deer Valley CC&Rs govern landscaping maintenance for the Association… [and] did not require Respondent to replace dead, dying, or missing trees within the Association

Legal Basis

Governing Documents Hierarchy

Topic Tags

  • CC&Rs
  • Master Association

Case

Docket No
23F-H003-REL
Case Title
Matthew E Thompson vs. Deer Valley Homeowners Association Inc.
Decision Date
2022-12-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Matthew E Thompson (petitioner)
    Also referred to as Mathew E. Thompson; Appeared on his own behalf

Respondent Side

  • Beth Mulcahy (HOA attorney)
    Mulcahy Law Firm, PC
    Also referred to as Beth Mohei, Beth Moi, or Beth Mali
  • Haidyn DiLorenzo (HOA attorney)
    Mulcahy Law Firm, PC
    Also referred to as Hayden Dorenzo
  • Charles Dean Otto (Board President; witness)
    Deer Valley Homeowners Association Inc.
    Also referred to as Charles Deano; President of the board of management

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Administrative Law Judge

Other Participants

  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • Dan Gardener (ADRE staff)
    Arizona Department of Real Estate
    Constituent Services Manager
  • Miranda Alvarez (Legal Secretary)
    Transmitted electronic order
  • c. serrano (OAH staff)
    OAH
    Transmitted Minute Entry
  • Sam Muza (Contractor President)
    Verde Valley Landscape Services
    Signed contract with HOA
  • Charlene Frost (homeowner)
    Filed Request for Exterior Change application
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official correspondence

Evin Abromowitz v. The Meadows Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2222038-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-08-22
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge denied the homeowner's petition, finding that the homeowner failed to prove the HOA violated CC&Rs Sections 3.5 or 3.6 regarding its authority to enact or enforce the rules and regulations that were at issue.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Evin Abromowitz Counsel —
Respondent The Meadows Homeowners Association Counsel Nicholas Nogami, Esq.

Alleged Violations

CC&Rs, Section 3.5 and 3.6

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the homeowner failed to prove the HOA violated CC&Rs Sections 3.5 or 3.6 regarding its authority to enact or enforce the rules and regulations that were at issue.

Why this result: Petitioner failed to sustain her burden of proving by a preponderance of the evidence that the Respondent violated CC&Rs Section 3.5 or 3.6. The ALJ concluded that the HOA was authorized to enact rules relating to the operation of the association and to enforce them.

Key Issues & Findings

Petitioner claimed Respondent violated CC&Rs 3.5 and 3.6 regarding its power to adopt and enforce rules by applying rules allegedly unrelated to the operation of the association and/or failing to follow protocol.

Petitioner challenged the HOA's authority to enact (3.5) and enforce (3.6) specific rules, arguing they were not related to association operation (e.g., controlling off-site email communication or fining for vendor interaction) and that enforcement protocols were violated. The ALJ denied the petition, finding the HOA was authorized to enact and enforce rules related to the operation of the association, and Petitioner failed to meet her burden of proof.

Orders: Petitioner's petition is 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.
  • 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 rules and regulations, CC&Rs, Enforcement authority, Burden of Proof, Planned community association dispute
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. 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

22F-H2222038-REL Decision – 966844.pdf

Uploaded 2026-04-24T11:48:55 (48.2 KB)

22F-H2222038-REL Decision – 969590.pdf

Uploaded 2026-04-24T11:48:58 (44.1 KB)

22F-H2222038-REL Decision – 994145.pdf

Uploaded 2026-04-24T11:49:02 (145.3 KB)

22F-H2222038-REL Decision – 966844.pdf

Uploaded 2026-01-23T17:45:56 (48.2 KB)

22F-H2222038-REL Decision – 969590.pdf

Uploaded 2026-01-23T17:46:01 (44.1 KB)

22F-H2222038-REL Decision – 994145.pdf

Uploaded 2026-01-23T17:46:05 (145.3 KB)

This summary addresses the hearing proceedings, key arguments, and final decision in the matter of *Evin Abromowitz vs The Meadows Homeowners Association*, Docket No. 22F-H2222038-REL.

Key Facts and Procedural History

The Petitioner, Evin Abromowitz, is a property owner and member of the Respondent Homeowners Association (HOA). The case was heard by Administrative Law Judge (ALJ) Tammy L. Eigenheer at the Office of Administrative Hearings (OAH) on July 20, 2022. The Petitioner contested fines levied by the HOA, which stemmed from alleged conduct including sending derogatory emails to the HOA President/Manager and assistant community manager (carrying $500.00 fines each), and hindering a hired vendor ($100.00 fine). The Petitioner did not attend the scheduled HOA violation hearing, instead filing a petition with the Department of Real Estate.

Main Legal Issues

The core legal issue was whether the Respondent HOA violated specific sections of its Covenants, Conditions, and Restrictions (CC&Rs) through the enactment and enforcement of its rules. Specifically, the Petitioner alleged violations of CC&Rs Section 3.5 (Power to Adopt Rules and Regulations) and Section 3.6 (Power to Enforce Declaration and Rules & Regulations). The Petitioner bore the burden of proving these alleged violations by a preponderance of the evidence.

Key Arguments

  • Petitioner's Argument: Petitioner argued the rules regarding "derogatory language" were unrelated to the operation of the association or property, especially since the communication occurred via off-site email, thereby violating Section 3.5. Regarding Section 3.6, Petitioner argued the HOA failed to follow its own enforcement protocol by not providing violation notices or courtesy notifications, and by issuing one fine 47 days after the alleged event. Petitioner also characterized the enforcement measures as retaliation.
  • Respondent's Argument: The Respondent, represented by Nicholas Nogami, argued that the rules drafted and promulgated were certainly relevant to the association's business and well within its authority pursuant to the declaration. The HOA presented testimony from its manager/president, Lynn Mater, confirming the rules were duly approved by the Board in August 2021 and reviewed by legal counsel. The HOA maintained that the rules related to association operations and governance. The ALJ clarified throughout the hearing that the focus was strictly on the HOA's authority to adopt and enforce the rules (3.5 and 3.6), not on the individual facts of the alleged violations against the Petitioner.

Outcome and Final Decision

The ALJ issued the Administrative Law Judge Decision on August 22, 2022, ordering that the Petitioner’s petition be denied.

The ALJ concluded that the Petitioner failed to sustain her burden of proof. The decision held that the material facts were clear: the Respondent was authorized to enact rules and regulations relating to the operation of the association, and the rules at issue do relate to the operation of the association. Furthermore, the Respondent was authorized to enforce the rules it promulgated. Since the Petitioner failed to establish a violation of either Section 3.5 or 3.6 of the CC&Rs, the petition was denied.

Questions

Question

Are the CC&Rs considered a legally binding contract?

Short Answer

Yes, CC&Rs are an enforceable contract between the HOA and the homeowner.

Detailed Answer

When a person purchases a property within an HOA, they agree to be bound by the terms of the CC&Rs. The decision explicitly states that this document constitutes a contract.

Alj Quote

Thus, the CC&Rs form an enforceable contract between Respondent and each property owner.

Legal Basis

Contract Law Principles / CC&Rs

Topic Tags

  • CC&Rs
  • Legal Status
  • Contract

Question

Can an HOA create rules regarding behavior toward staff and board members?

Short Answer

Yes, rules prohibiting harassment or abuse of staff and board members are valid.

Detailed Answer

The ALJ determined that rules governing conduct towards the board and management relate to the operation of the association and are therefore within the HOA's authority to enact.

Alj Quote

Respondent was authorized to enact rules and regulations relating to the operation of the association. The rules at issue in this matter relate to the operation of the association.

Legal Basis

Authority to Adopt Rules

Topic Tags

  • Rules and Regulations
  • Harassment
  • Board Authority

Question

Must the HOA provide a hearing before assessing a fine?

Short Answer

Yes, due written notice and an opportunity for a hearing are generally required.

Detailed Answer

The decision cites the HOA's specific fine guidelines which mandate that a member must be given notice and a chance to be heard before a fine is assessed.

Alj Quote

No fine shall be assessed until the Member who has committed a violation has been given due written notice and an opportunity for a hearing.

Legal Basis

Due Process / Fine Guidelines

Topic Tags

  • Fines
  • Due Process
  • Hearings

Question

What is the burden of proof for a homeowner suing their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove that their contention is more likely true than not. The burden is on the petitioner to prove the HOA violated its documents.

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

Standard of Proof

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can the HOA fine me for interrupting or hindering vendors?

Short Answer

Yes, rules prohibiting the hindering of vendors are enforceable.

Detailed Answer

The ALJ upheld the HOA's authority to enforce rules that include fines for hindering hired vendors, as these rules relate to the association's operations.

Alj Quote

Hindering a hired vendor from their work at another property in The Meadows. This violation carries a $100.00 fine.

Legal Basis

Enforcement of Rules

Topic Tags

  • Vendors
  • Interference
  • Fines

Question

If I challenge the validity of a rule, will the judge also decide if I am guilty of the specific violation?

Short Answer

Not necessarily; the judge only decides the issues raised in the petition.

Detailed Answer

If a homeowner's petition only challenges the HOA's authority to make a rule, the ALJ will not rule on the facts of the specific violation (e.g., whether the conduct actually happened) if that issue was not explicitly raised.

Alj Quote

While Petitioner may have wanted to argue that the alleged violations brought against her were not proper, she did not raise that issue in her Petition.

Legal Basis

Scope of Hearing

Topic Tags

  • Petition Scope
  • Legal Procedure
  • Defense

Question

Does the HOA have the power to enforce rules that are not explicitly detailed in the original CC&Rs?

Short Answer

Yes, if the CC&Rs grant the power to adopt and enforce new rules.

Detailed Answer

The CC&Rs in this case allowed the Association to adopt new rules deemed necessary for the operation of the association, and gave them the same force as the Declaration.

Alj Quote

The Association shall have the power to enforce the provisions of this Declaration and of Rules & Regulations by any lawful remedy or means…

Legal Basis

CC&R Section 3.6

Topic Tags

  • Rulemaking
  • Enforcement
  • Governing Documents

Case

Docket No
22F-H2222038-REL
Case Title
Evin Abromowitz vs The Meadows Homeowners Association
Decision Date
2022-08-22
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Are the CC&Rs considered a legally binding contract?

Short Answer

Yes, CC&Rs are an enforceable contract between the HOA and the homeowner.

Detailed Answer

When a person purchases a property within an HOA, they agree to be bound by the terms of the CC&Rs. The decision explicitly states that this document constitutes a contract.

Alj Quote

Thus, the CC&Rs form an enforceable contract between Respondent and each property owner.

Legal Basis

Contract Law Principles / CC&Rs

Topic Tags

  • CC&Rs
  • Legal Status
  • Contract

Question

Can an HOA create rules regarding behavior toward staff and board members?

Short Answer

Yes, rules prohibiting harassment or abuse of staff and board members are valid.

Detailed Answer

The ALJ determined that rules governing conduct towards the board and management relate to the operation of the association and are therefore within the HOA's authority to enact.

Alj Quote

Respondent was authorized to enact rules and regulations relating to the operation of the association. The rules at issue in this matter relate to the operation of the association.

Legal Basis

Authority to Adopt Rules

Topic Tags

  • Rules and Regulations
  • Harassment
  • Board Authority

Question

Must the HOA provide a hearing before assessing a fine?

Short Answer

Yes, due written notice and an opportunity for a hearing are generally required.

Detailed Answer

The decision cites the HOA's specific fine guidelines which mandate that a member must be given notice and a chance to be heard before a fine is assessed.

Alj Quote

No fine shall be assessed until the Member who has committed a violation has been given due written notice and an opportunity for a hearing.

Legal Basis

Due Process / Fine Guidelines

Topic Tags

  • Fines
  • Due Process
  • Hearings

Question

What is the burden of proof for a homeowner suing their HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove that their contention is more likely true than not. The burden is on the petitioner to prove the HOA violated its documents.

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

Standard of Proof

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can the HOA fine me for interrupting or hindering vendors?

Short Answer

Yes, rules prohibiting the hindering of vendors are enforceable.

Detailed Answer

The ALJ upheld the HOA's authority to enforce rules that include fines for hindering hired vendors, as these rules relate to the association's operations.

Alj Quote

Hindering a hired vendor from their work at another property in The Meadows. This violation carries a $100.00 fine.

Legal Basis

Enforcement of Rules

Topic Tags

  • Vendors
  • Interference
  • Fines

Question

If I challenge the validity of a rule, will the judge also decide if I am guilty of the specific violation?

Short Answer

Not necessarily; the judge only decides the issues raised in the petition.

Detailed Answer

If a homeowner's petition only challenges the HOA's authority to make a rule, the ALJ will not rule on the facts of the specific violation (e.g., whether the conduct actually happened) if that issue was not explicitly raised.

Alj Quote

While Petitioner may have wanted to argue that the alleged violations brought against her were not proper, she did not raise that issue in her Petition.

Legal Basis

Scope of Hearing

Topic Tags

  • Petition Scope
  • Legal Procedure
  • Defense

Question

Does the HOA have the power to enforce rules that are not explicitly detailed in the original CC&Rs?

Short Answer

Yes, if the CC&Rs grant the power to adopt and enforce new rules.

Detailed Answer

The CC&Rs in this case allowed the Association to adopt new rules deemed necessary for the operation of the association, and gave them the same force as the Declaration.

Alj Quote

The Association shall have the power to enforce the provisions of this Declaration and of Rules & Regulations by any lawful remedy or means…

Legal Basis

CC&R Section 3.6

Topic Tags

  • Rulemaking
  • Enforcement
  • Governing Documents

Case

Docket No
22F-H2222038-REL
Case Title
Evin Abromowitz vs The Meadows Homeowners Association
Decision Date
2022-08-22
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Evin Abromowitz (petitioner)
    Property owner and member of The Meadows Homeowners Association.
  • Carolyn C. E. Davis (witness)
    Known as Carrie Davis.
  • Shannon Kelsey (witness)
    Former employee of the association.
  • Patrick Scott (witness)
    Witness for Petitioner.

Respondent Side

  • Nicholas Nogami (HOA attorney)
    Carpenter Hazlewood Delgado & Bolen, LLP
    Represented The Meadows Homeowners Association.
  • Lynn Mater (HOA President/manager/witness)
    The Meadows Homeowners Association/ADAM LLC
    Testified for Respondent.
  • Jacqueline Conoy (assistant community manager)
    ADAM LLC/The Meadows Homeowners Association
    Recipient of emails from Petitioner.
  • Omid (board member)
    The Meadows Homeowners Association
    Mentioned in relation to drafting rules with Lynn.
  • Hiker (attorney associate)
    Carpenter Hazlewood Delgado & Bolen, LLP (implied)
    Appeared on the call with Nicholas Nogami.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Administrative Law Judge.
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • c. serrano (OAH administrative staff)
    OAH
    Signed transmission.
  • Miranda Alvarez (legal secretary)
    Signed transmission.

Dean A Yelenik v. Meridian Condominiums Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2221021-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-02-18
Administrative Law Judge Jenna Clark
Outcome The ALJ found the Board acted within its lawful authority because the governing documents and statute cited did not explicitly prohibit a Board Member from resigning and immediately being appointed to fill an unexpired term to elongate their service, and Petitioner failed to meet the burden of proof.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Dean A Yelenik Counsel —
Respondent Meridian Condominiums Homeowners Association Counsel Nick Eicher, Esq.

Alleged Violations

ARIZ. REV. STAT. §§ 33-1243(B) and Community Bylaws 3.1 and 3.6

Outcome Summary

The ALJ found the Board acted within its lawful authority because the governing documents and statute cited did not explicitly prohibit a Board Member from resigning and immediately being appointed to fill an unexpired term to elongate their service, and Petitioner failed to meet the burden of proof.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6. The Tribunal found the Board’s action, though potentially questionable, was not unlawful.

Key Issues & Findings

Whether the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6 by appointing an existing board member to fill a vacancy, effectively extending her term.

The Board appointed existing Board member Joan Robley to fill the unexpired term of Board Member Gallu (expiring Jan 2023) immediately after she resigned her own seat (expiring Jan 2021), which Petitioner alleged violated governing documents by extending her term and not genuinely filling a vacancy.

Orders: Petitioner's petition was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1243(B)
  • Community Bylaws 3.1
  • Community Bylaws 3.6
  • ARIZ. REV. STAT. § 32-2199.05

Analytics Highlights

Topics: Board Vacancy, Term Extension, Bylaw Interpretation, Resignation and Reappointment, ARS 33-1243(B)
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243(B)
  • Community Bylaws 3.1
  • Community Bylaws 3.6
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

22F-H2221021-REL Decision – 948752.pdf

Uploaded 2026-04-24T11:41:34 (130.2 KB)

22F-H2221021-REL Decision – 948752.pdf

Uploaded 2026-01-23T17:42:33 (130.2 KB)

This matter was an administrative hearing held on February 1, 2022, before Administrative Law Judge (ALJ) Jenna Clark, regarding a dispute between Petitioner Arthur Dean Yelenik and Respondent Meridian Condominiums Homeowners Association (the Association). Petitioner alleged the Association violated Arizona Revised Statute (ARS) § 33-1243(B) and Community Bylaws Sections 3.1 and 3.6.

Key Facts

The dispute centered on the Board of Directors' actions following the resignation of Board Member Chris Gallu in September 2020, whose term had approximately two years and three months remaining. At an October 2020 Board meeting, the Board filled this vacancy by appointing existing Board Member Joan Robley. To facilitate this, Ms. Robley resigned from her existing seat (which had only three months remaining before the January 2021 election) and was immediately appointed to Mr. Gallu’s unexpired term, effectively extending her service by two years and avoiding scheduled re-election by the homeowners. The Board operated with four members for approximately three months until the subsequent annual meeting.

Main Issues and Legal Arguments

The crux of the inquiry was whether a Board Member may resign and be immediately appointed to fill a Board vacancy on the same day, thereby elongating their term of service.

Petitioner's Argument:

The Petitioner argued that the Board's action was an illegitimate "board term swap," not a valid process for filling a vacancy.

  1. Bylaw 3.1 Violation: Bylaw 3.1 requires the Board to be an odd number (historically five members). Petitioner argued that since Ms. Robley was already a member, her reappointment did not increase the total number of board members, thus failing to “fill a vacancy in the board” and rendering Bylaw 3.1 meaningless.
  2. ARS § 33-1243(B) Violation: This statute prohibits the Board from electing members or "determin[ing] the terms of office of the board of director members". Petitioner argued the Board violated this by determining Ms. Robley's term of office (changing it from 3 months to over 2 years).

Respondent's Argument:

The Association argued it acted within its lawful authority, prioritizing the Association's best interest by retaining Ms. Robley's 15 years of continuous experience, particularly since three members were "freshmen".

  1. Bylaw 3.6 Authority: Bylaw 3.6 grants the board the authority to fill vacancies. Neither the Bylaws nor the statute explicitly prohibit appointing a former or existing board member to fill a vacancy. The sole requisite for service is unit ownership, which Ms. Robley met.
  2. Quorum Maintained: The Board maintained a quorum (three members out of five positions) at all relevant times.
  3. Statute Compliance: The Board did not violate ARS § 33-1243(B) because the terms of office (three-year staggered terms) were set by the membership in 2005, not by the Board as a matter of general policy. The statute allows the board to "fill vacancies in its membership for the unexpired portion of any term".

Outcome and Final Decision

The ALJ found that the Petitioner did not sustain his burden of proof by a preponderance of the evidence. The Tribunal concluded that the Board acted within its lawful authority. The decision stated that neither Bylaw Section 3.6 nor ARS § 33-1243(B) implicitly or explicitly prohibit the occurrence. The ALJ also rejected the argument that there is a presumption of "new blood" required for appointments. Petitioner's petition was therefore denied.

Questions

Question

Can a board member resign and immediately be appointed to a different vacancy to get a longer term?

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.

Alj Quote

Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.

Legal Basis

A.R.S. § 33-1243(B); Bylaws Section 3.6

Topic Tags

  • Board Vacancies
  • Term Limits
  • Board Appointments

Question

Does the HOA board have to choose a new person ('new blood') when filling a vacancy?

Short Answer

No, the board is not required to select a new person.

Detailed Answer

There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.

Alj Quote

There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Qualifications
  • Vacancies

Question

Does the board have the authority to fill vacancies without holding a general membership election?

Short Answer

Yes, the board generally has the statutory authority to appoint members to fill vacancies.

Detailed Answer

Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.

Alj Quote

The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

  • Elections
  • Board Authority

Question

Is a board decision illegal just because it is 'questionable' or unpopular?

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.

Alj Quote

Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.

Legal Basis

Board Discretion

Topic Tags

  • Board Conduct
  • Decision Making

Question

What burden of proof does a homeowner have when challenging an HOA in a hearing?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence.'

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Hearings

Question

Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?

Short Answer

Yes, the OAH tribunal can interpret the contract between the parties.

Detailed Answer

The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Jurisdiction
  • Contract Interpretation

Question

If I pay for a single-issue petition, can the judge rule on other related issues?

Short Answer

No, the tribunal is limited to the specific issue paid for.

Detailed Answer

The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

  • Procedure
  • Fees

Case

Docket No
22F-H2221021-REL
Case Title
Dean A Yelenik vs. Meridian Condominiums Homeowners Association
Decision Date
2022-02-18
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can a board member resign and immediately be appointed to a different vacancy to get a longer term?

Short Answer

Yes, unless the governing documents specifically prohibit it.

Detailed Answer

The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.

Alj Quote

Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.

Legal Basis

A.R.S. § 33-1243(B); Bylaws Section 3.6

Topic Tags

  • Board Vacancies
  • Term Limits
  • Board Appointments

Question

Does the HOA board have to choose a new person ('new blood') when filling a vacancy?

Short Answer

No, the board is not required to select a new person.

Detailed Answer

There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.

Alj Quote

There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Qualifications
  • Vacancies

Question

Does the board have the authority to fill vacancies without holding a general membership election?

Short Answer

Yes, the board generally has the statutory authority to appoint members to fill vacancies.

Detailed Answer

Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.

Alj Quote

The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'

Legal Basis

A.R.S. § 33-1243(B)

Topic Tags

  • Elections
  • Board Authority

Question

Is a board decision illegal just because it is 'questionable' or unpopular?

Short Answer

No, a questionable choice is not necessarily unlawful.

Detailed Answer

The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.

Alj Quote

Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.

Legal Basis

Board Discretion

Topic Tags

  • Board Conduct
  • Decision Making

Question

What burden of proof does a homeowner have when challenging an HOA in a hearing?

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence.'

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.

Alj Quote

Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • Legal Standards
  • Hearings

Question

Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?

Short Answer

Yes, the OAH tribunal can interpret the contract between the parties.

Detailed Answer

The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.

Alj Quote

OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.

Legal Basis

A.R.S. § 32-2199 et seq.

Topic Tags

  • Jurisdiction
  • Contract Interpretation

Question

If I pay for a single-issue petition, can the judge rule on other related issues?

Short Answer

No, the tribunal is limited to the specific issue paid for.

Detailed Answer

The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.

Alj Quote

Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.

Legal Basis

A.R.S. § 32-2199.05

Topic Tags

  • Procedure
  • Fees

Case

Docket No
22F-H2221021-REL
Case Title
Dean A Yelenik vs. Meridian Condominiums Homeowners Association
Decision Date
2022-02-18
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Arthur Dean Yelenik (petitioner)
    Also goes by Dean Yelenik
  • Kristen Terry Beloo (homeowner/past board president)
    Part of petitioner's working group; Past president (6 years)
  • Kathleen Moles (homeowner/past board president)
    Part of petitioner's working group; Past president (3 years)
  • David Moles (homeowner)
    Part of petitioner's working group

Respondent Side

  • Eadie Rudder (respondent attorney)
  • Nick Eicher (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Margo McInnis (board president/witness)
    Meridian Condominiums Homeowners Association
    Testified for Respondent
  • Joan Robley (board member)
    Meridian Condominiums Homeowners Association
    Appointment subject of dispute
  • Annette (property manager)
    Century Management
    Referred to as Community Manager
  • Quinton Phillips (HOA attorney)
    Attorney for the Association

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Dan Gardner (HOA Coordinator)
    Arizona Department of Real Estate

Other Participants

  • Chris Gallu (former board member)
    Meridian Condominiums Homeowners Association
    Resignation created the contested vacancy; referred to as Mr. Beloo/Blue in transcript
  • Fran McGovern (board member)
    Meridian Condominiums Homeowners Association
    Elected to Robley's former seat in Jan 2021

Clifford Burnes v. Saguaro Crest Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 22F-H2221010-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-12-09
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ granted the Petitioner's petition, finding the Respondent HOA violated A.R.S. § 33-1805 by requiring the Petitioner to inspect records before providing copies and failing to comply with the 10-day statutory deadline. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Clifford Burnes Counsel —
Respondent Saguaro Crest Homeowners Association, Inc. Counsel John T. Crotty

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The ALJ granted the Petitioner's petition, finding the Respondent HOA violated A.R.S. § 33-1805 by requiring the Petitioner to inspect records before providing copies and failing to comply with the 10-day statutory deadline. The HOA was ordered to reimburse the Petitioner's $500.00 filing fee.

Key Issues & Findings

Failure to fulfill records request

Petitioner alleged the Association failed to fulfill his request for copies of records within the statutory 10-day period because the Association improperly required him to inspect the documents first. The ALJ found the Association violated A.R.S. § 33-1805, as the statute does not permit an HOA to mandate prior inspection before providing requested copies.

Orders: Petition granted. Respondent ordered to reimburse Petitioner's filing fee of $500.00 in certified funds and ordered to henceforth comply with ARIZ. REV. STAT. § 33-1805.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 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)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • ARIZ. REV. STAT. §32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Analytics Highlights

Topics: HOA, Records Request, ARS 33-1805, Records Inspection, Timeliness, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2), 32-2199.01(A), 32-2199.01(D), 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)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
  • Arpaio v. Steinle, 201 Ariz. 353, 355 ¶ 5, 35 P.3d 114, 116 (App. 2001)
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)
  • ARIZ. REV. STAT. §32-2199.02(B)
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2221010-REL Decision – 930949.pdf

Uploaded 2026-04-24T11:39:31 (139.0 KB)

22F-H2221010-REL Decision – 930949.pdf

Uploaded 2026-01-23T17:40:34 (139.0 KB)

This summary outlines the Administrative Law Judge Decision in the case of Clifford Burnes v. Saguaro Crest Homeowners Association, Inc..

Key Facts and Background

Petitioner Clifford Burnes, a member of the Saguaro Crest Homeowners Association (HOA), filed a petition alleging the HOA failed to fulfill his request for records in violation of ARIZ. REV. STAT. § 33-1805.

On or about December 31, 2020, Petitioner submitted a certified letter and email requesting COPIES of specific Association documents and acknowledged the statutory fee of fifteen cents per page. The Association received the request on January 5, 2021, meaning the statutory 10-business-day deadline to provide copies expired on or about January 15, 2021.

The Association failed to provide the documents within this deadline. Instead, the HOA made delayed and erroneous attempts to schedule document review and send copies. Early communications were misaddressed or misnamed (using "Norm Burnes" or an incorrect address), delaying the Petitioner's ability to review or receive documents. Petitioner only had the opportunity to inspect the records on February 4, 2021, and did not receive copies until February 27, 2021, after the Association resent the package using his correct legal name, Clifford Burnes.

Main Issues and Arguments

The core legal issue was whether the Respondent HOA violated A.R.S. § 33-1805 by failing to provide copies of requested records within ten business days.

  • Petitioner’s Argument: Petitioner asserted the Association wrongly required him to inspect the documents prior to providing copies and failed to provide copies within the statutory ten-day period. Petitioner sought an order requiring compliance, reimbursement of his filing fee, and imposition of a civil fine.
  • Respondent’s Argument: The Association argued that it interpreted A.R.S. § 33-1805 to allow them to require a homeowner to inspect documents before providing copies for "efficiency". The HOA claimed to have acted in good faith, attempting to shift the blame for mailing errors to the Petitioner's inconsistent use of the name "Norm Burnes," although counsel acknowledged the HOA possessed the Petitioner's correct legal name and address.

Legal Conclusion and Outcome

The Administrative Law Judge (ALJ) concluded that nothing in ARIZ. REV. STAT. § 33-1805 permits a homeowners’ association to require members to first inspect records before providing copies requested by members.

Since the Petitioner specifically requested copies and the statute clearly states the association has ten business days to provide copies "On request for purchase of copies of records," the Association was determined to have failed to comply with the statutory mandate.

The ALJ found that Petitioner sustained his burden of proof by a preponderance of the evidence, establishing that the Association violated A.R.S. § 33-1805.

Final Decision

The Petitioner’s petition was granted.

The Administrative Law Judge ORDERED:

  1. Respondent must reimburse Petitioner’s filing fee of $500.00 in certified funds.
  2. Respondent shall henceforth comply with ARIZ. REV. STAT. § 33-1805.

Questions

Question

Can my HOA force me to inspect records in person before they will provide me with copies?

Short Answer

No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.

Detailed Answer

The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.

Alj Quote

Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • inspection
  • homeowner rights

Question

How many days does the HOA have to provide copies of records I requested?

Short Answer

The HOA must provide copies within 10 business days.

Detailed Answer

Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.

Alj Quote

On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • deadlines
  • records request
  • HOA obligations

Question

What is the maximum amount the HOA can charge me for copies of records?

Short Answer

The HOA cannot charge more than 15 cents per page.

Detailed Answer

The statute limits the fee an association may charge for copying records to a maximum of fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records request
  • costs

Question

Can the HOA charge me a fee just to look at or review records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records review
  • homeowner rights

Question

If I win my hearing against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the judge can order the HOA to reimburse your filing fee.

Detailed Answer

In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Order

Topic Tags

  • reimbursement
  • penalties
  • legal costs

Question

Can I authorize someone else to look at the HOA records for me?

Short Answer

Yes, if you designate them in writing.

Detailed Answer

The statute allows records to be examined by the member or any person the member designates in writing as their representative.

Alj Quote

…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • representation
  • records request
  • homeowner rights

Question

What standard of proof do I need to meet to win a case against my HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

Legal Standard

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?

Short Answer

No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.

Detailed Answer

The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.

Alj Quote

Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • excuses
  • mailing
  • HOA obligations

Case

Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA force me to inspect records in person before they will provide me with copies?

Short Answer

No. The HOA cannot require an in-person inspection as a prerequisite to providing copies.

Detailed Answer

The Administrative Law Judge ruled that Arizona statute allows homeowners to request copies directly. While the HOA can make records available for inspection, they cannot force a member to inspect them first if the member has requested copies. Doing so violates the statutory requirement to provide copies within ten business days.

Alj Quote

Nothing in ARIZ. REV. STAT. § 33-1805 can be read to permit an HOA to require members to first inspect records before it provides copies of records requested by members.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • inspection
  • homeowner rights

Question

How many days does the HOA have to provide copies of records I requested?

Short Answer

The HOA must provide copies within 10 business days.

Detailed Answer

Under Arizona law, once a member requests to purchase copies of records, the association has a strict deadline of ten business days to fulfill that request.

Alj Quote

On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • deadlines
  • records request
  • HOA obligations

Question

What is the maximum amount the HOA can charge me for copies of records?

Short Answer

The HOA cannot charge more than 15 cents per page.

Detailed Answer

The statute limits the fee an association may charge for copying records to a maximum of fifteen cents per page.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records request
  • costs

Question

Can the HOA charge me a fee just to look at or review records?

Short Answer

No. The HOA cannot charge for making materials available for review.

Detailed Answer

While the HOA can charge for copies, they are explicitly prohibited from charging a member for the act of making the material available for examination/review.

Alj Quote

The association shall not charge a member or any person designated by the member in writing for making material available for review.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • fees
  • records review
  • homeowner rights

Question

If I win my hearing against the HOA, can I get my $500 filing fee back?

Short Answer

Yes, the judge can order the HOA to reimburse your filing fee.

Detailed Answer

In this case, because the homeowner prevailed in proving the violation, the Administrative Law Judge ordered the HOA to reimburse the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent reimburse Petitioner’s filing fee of $500.00 in certified funds.

Legal Basis

Order

Topic Tags

  • reimbursement
  • penalties
  • legal costs

Question

Can I authorize someone else to look at the HOA records for me?

Short Answer

Yes, if you designate them in writing.

Detailed Answer

The statute allows records to be examined by the member or any person the member designates in writing as their representative.

Alj Quote

…all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • representation
  • records request
  • homeowner rights

Question

What standard of proof do I need to meet to win a case against my HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

The petitioner (homeowner) must prove that their contention is more probably true than not. It requires superior evidentiary weight, though not necessarily freedom from all doubt.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.

Legal Basis

Legal Standard

Topic Tags

  • burden of proof
  • legal standards
  • hearing procedure

Question

Is it a valid excuse if the HOA says mailing the records to the wrong name/address was just a mistake?

Short Answer

No. If the HOA has the correct legal name and address on file, mailing to a nickname or wrong address does not satisfy the requirement to provide records on time.

Detailed Answer

The HOA attempted to shift blame to the homeowner for using a nickname in emails, but the judge noted the HOA had the official member list with the legal name. Failing to use the correct information resulted in a violation of the 10-day deadline.

Alj Quote

Respondent cannot be said to have provided Petitioner with copies of the records he requested within 10 days of his request.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • excuses
  • mailing
  • HOA obligations

Case

Docket No
22F-H2221010-REL
Case Title
Clifford Burnes vs. Saguaro Crest Homeowners Association, Inc.
Decision Date
2021-12-09
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Clifford Burnes (petitioner)
    Appeared on his own behalf; also identified as Clifford (Norm) Burnes or Norm Burnes,,,.

Respondent Side

  • John T. Crotty (respondent attorney)
    Farley, Choate & Wood
    Represented Saguaro Crest Homeowners Association,,.

Neutral Parties

  • Jenna Clark (ALJ)
    Listed as Administrative Law Judge.
  • Tammy L. Eigenheer (ALJ)
    Signed the Administrative Law Judge Decision.
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Recipient of transmission of the Decision.
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email contact listed for transmission ([email protected]).

Other Participants

  • Joseph Martinez (unknown)
    Petitioner verbally notified him regarding the undelivered certified mail package.

Rodney F Kirby v. Dove Cove Estates Homeowners Association

Posted on by

Case Summary

Case ID 21F-H2121049-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-10-12
Administrative Law Judge Jenna Clark
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rodney & Patricia Kirby Counsel —
Respondent Dove Cove Estates Homeowners Association Counsel Lydia Peirce Linsmeier and Kaylee Ivy

Alleged Violations

CC&Rs Article IV, Section 4.1.1

Outcome Summary

The ALJ granted the Petitioners' petition, finding that the HOA violated CC&Rs Article IV section 4.1.1 by failing its duty to maintain common area landscaping (sissoo trees) in a state that did not cause damage or undue financial/health burden to the Petitioners' property. The HOA was ordered to refund the Petitioners' $500.00 filing fee.

Key Issues & Findings

Whether Dove Cove Estates Homeowners Association (Respondent) are in violation of CC&Rs Article IV, Sections 4.1, 4.1.1, 4.1.2, and 4.1.3 for failing to remove two (2) trees on community property, at the rear of Petitioners’ retaining wall, which have caused damage to Petitioners’ pool and patio slab.

Petitioners filed a single-issue petition alleging the Association violated CC&Rs Article IV sections 4.1, 4.1.1, 4.1.2, and 4.1.3 by refusing to remove two sissoo trees located on community property behind Petitioners’ residence, which caused debris, clogged pool pump, and caused complications with their retaining wall and back patio. The ALJ concluded the Association violated Article IV section 4.1.1 because the trees' condition caused damage and financial/health burden to Petitioners.

Orders: Petitioners' petition is granted. Respondent is ordered to pay Petitioners their filing fee of $500.00 within thirty (30) days. The Respondent is ordered to abide by the specified section of the planned community (Article IV section 4.1.1). No civil penalty shall be imposed.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_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.
  • 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 maintenance duty, CC&R violation, sissoo trees, filing fee refund, common area landscaping, pool damage
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(B)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2121049-REL Decision – 940829.pdf

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21F-H2121049-REL Decision – 950132.pdf

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21F-H2121049-REL Decision – 916848.pdf

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21F-H2121049-REL Decision – 917026.pdf

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21F-H2121049-REL Decision – 916848.pdf

Uploaded 2026-01-23T17:37:48 (118.5 KB)

21F-H2121049-REL Decision – 917026.pdf

Uploaded 2026-01-23T17:37:51 (124.9 KB)

This summary details the hearing before Administrative Law Judge Jenna Clark at the Office of Administrative Hearings (OAH) on September 22, 2021, concerning a dispute between homeowners and their association.

Key Facts and Parties

The Petitioners, Rodney and Patricia Kirby, are property owners and members of the Dove Cove Estates Homeowners Association (HOA/Respondent). The Petitioners, who are retired and use their pool daily for exercise, filed a petition alleging the Association violated its Covenants, Conditions, and Restrictions (CC&Rs). The dispute centered on the Association's refusal to remove two sissoo trees, approximately 35 feet high, located on Common Area property just behind the Petitioners’ residence.

The Petitioners testified that since around 2017, the trees caused substantial problems: debris, including leaves and small dead animals, fell into their pool, clogging the pump, which had to be replaced multiple times. Furthermore, roots from the trees caused damage to their retaining wall and back patio slab.

Main Issue and Arguments

The core issue was whether the Association was in violation of CC&Rs Article IV, Sections 4.1 and 4.1.1 for failing to remove the two sissoo trees. CC&R Article IV required the Association to maintain and keep in good condition and repair the Common Area, including the maintenance, repair, and replacement of all landscaping and structures situated upon it.

The Respondent (HOA) denied the complaint, arguing that its duty of maintenance was fulfilled through its landscaping contractor, ProQual Landscaping. The HOA contended that it reasonably relied on ProQual's expert advice; ProQual had inspected the trees in April 2021 and advised that removal was unnecessary, instead leaving them on a regular trimming schedule.

The Petitioners argued that the Association’s inadequate maintenance endangered their health and welfare due to the debris and financial burdens incurred from pool and pump repairs and increased cleaning costs. They asserted that the Association had not given their request proper consideration.

Legal Points and Outcome

The OAH determined it had jurisdiction to hear the dispute and interpret the CC&Rs, which form an enforceable contract between the Association and property owners. Petitioners bore the burden of proof by a preponderance of the evidence.

The ALJ concluded that Petitioners sustained their burden of proof. The decision emphasized that the Association's duty to maintain the Common Area does not end at the boundary line. The evidence established that *but for* the sissoo trees being situated and maintained in their current state, the degree of debris causing damage or harm to Petitioners’ property would not exist.

Final Decision

The ALJ concluded that the Association had violated Article IV section 4.1.1 of the CC&Rs.

IT IS ORDERED that Petitioners’ petition is granted. The Respondent was FURTHER ORDERED to pay Petitioners their filing fee of $500.00 within thirty days. The OAH clarified that while it lacked statutory authority to grant declaratory or injunctive relief, the decision acts to "Order Respondent to abide by the section of the planned community specified".

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

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
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Does the HOA's duty to maintain common areas end strictly at the property line?

Short Answer

No. The HOA is responsible if common area elements (like trees) cause damage to adjacent private property.

Detailed Answer

The ALJ determined that the Association's responsibility for maintenance extends beyond the physical boundary if conditions on the common area negatively impact a homeowner's property. In this case, debris from common area trees caused damage to a private pool and patio.

Alj Quote

The Association’s duty to maintain the Common Area does not end at the boundary line of the Common Area.

Legal Basis

CC&Rs Article IV

Topic Tags

  • maintenance
  • common_area
  • liability

Question

Can the HOA avoid liability for damage by claiming they relied on a professional landscaping company's advice?

Short Answer

Not necessarily. Even if the HOA pays for regular maintenance and follows vendor advice, they may still be in violation if damage persists.

Detailed Answer

The HOA argued it was not in violation because it relied on its landscaper's (arborist's) recommendation not to remove the trees. The ALJ rejected this, ruling that despite the payments and advice, the damage caused to the homeowner proved a failure to maintain the common area properly under the CC&Rs.

Alj Quote

Despite the Association’s payment to ProQual for regular arbor maintenance, the sissoo trees still caused debris of all kinds to fill Petitioners’ pool and backyard… Petitioners established a violation of Article IV section 4.1.1 of the CC&Rs

Legal Basis

Contract Law / CC&Rs

Topic Tags

  • vendor_reliance
  • negligence
  • defenses

Question

What is the 'burden of proof' for a homeowner in an administrative hearing?

Short Answer

The homeowner must prove their case by a 'preponderance of the evidence'.

Detailed Answer

The petitioner (homeowner) is responsible for providing enough evidence to show that their claim is more likely true than not. It is not based on the number of witnesses, but the convincing force of the evidence.

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
  • evidence
  • procedure

Question

Can the Administrative Law Judge order the HOA to perform a specific act, like cutting down a tree?

Short Answer

Generally, no. The Tribunal lacks statutory authority to grant injunctive relief.

Detailed Answer

The ALJ cannot issue an injunction or declaratory relief (specific orders to do or not do a specific act). Instead, the order generally directs the HOA to 'abide by' the specific section of the community documents, leaving the specific method of compliance somewhat open.

Alj Quote

Because this Tribunal has no statutory authority to grant Petitioners’ declaratory or injunctive relief, this decision is expressly issued to 'Order Respondent to abide by the section of the planned community specified.'

Legal Basis

Statutory Authority

Topic Tags

  • remedies
  • injunctive_relief
  • alj_powers

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes, the ALJ can order the HOA to reimburse the filing fee.

Detailed Answer

In this decision, the ALJ ordered the Association to pay the $500.00 filing fee directly to the Petitioners within 30 days.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00, to be paid directly to Petitioners within thirty (30) days of this ORDER.

Legal Basis

Administrative Order

Topic Tags

  • fees
  • reimbursement
  • costs

Question

What kind of damage is required to prove the HOA failed to maintain the common area?

Short Answer

The homeowner must show actual damage, harm, or financial burden caused by the condition.

Detailed Answer

The decision noted that the debris caused a financial burden (cleaning costs, pump replacement) and potential health risks. The mere presence of trees wasn't the issue; it was the specific damage and harm resulting from them.

Alj Quote

The record does reflect that, but for the sissoo trees being situated where they are and in the state they are in, there would not be debris to a degree on Petitioners’ property that caused any amount of damage or harm.

Legal Basis

Evidence of Damages

Topic Tags

  • damages
  • nuisance
  • evidence

Question

Who has the authority to hear disputes between a homeowner and an HOA?

Short Answer

The Arizona Department of Real Estate (ADRE) and the Office of Administrative Hearings (OAH).

Detailed Answer

Statutes authorize the Department to receive petitions regarding violations of community documents or statutes regulating planned communities.

Alj Quote

The Department is authorized by statute to receive and to decide petitions for hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Legal Basis

ARIZ. REV. STAT. §§ 32-2102

Topic Tags

  • jurisdiction
  • adre
  • oah

Case

Docket No
21F-H2121049-REL
Case Title
Rodney & Patricia Kirby vs. Dove Cove Estates Homeowners Association
Decision Date
2021-10-12
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Rodney Kirby (petitioner)
  • Patricia Kirby (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Kaylee Ivy (HOA attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
  • Regis Salazar (witness)

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Steven Kramer vs. Camelback House, Inc.

Posted on by

Case Summary

Case ID 21F-H2121063-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-27
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge found that the Respondent, Camelback House, Inc., violated ARIZ. REV. STAT. § 33-1242(C) by failing to properly and timely respond to the Petitioner's response to a Notice of Violation. Petitioner Steven Kramer was deemed the prevailing party and was awarded the reimbursement of his $500.00 filing fee.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Steven Kramer Counsel —
Respondent Camelback House, Inc. Counsel Emily Cooper, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1242(C)

Outcome Summary

The Administrative Law Judge found that the Respondent, Camelback House, Inc., violated ARIZ. REV. STAT. § 33-1242(C) by failing to properly and timely respond to the Petitioner's response to a Notice of Violation. Petitioner Steven Kramer was deemed the prevailing party and was awarded the reimbursement of his $500.00 filing fee.

Key Issues & Findings

Failure to properly respond to Petitioner's response to a Notice of Violation

The Respondent violated the statute by failing to provide a timely written response to the unit owner (Petitioner) within ten business days of receiving the unit owner's response to a Notice of Violation. The Tribunal also concluded that the original Notice of Violation failed to sufficiently identify the first and last name of the person who observed the violation, as required by the statute.

Orders: Respondent must reimburse the Petitioner the filing fees of $500.00 within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1242(C)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA violation response time, notice of violation requirements, filing fee refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1242(C)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Video Overview

Audio Overview

Decision Documents

21F-H2121063-REL Decision – 913417.pdf

Uploaded 2026-04-24T11:37:31 (113.9 KB)

21F-H2121063-REL Decision – 913417.pdf

Uploaded 2026-01-23T17:39:01 (113.9 KB)

This summary outlines the administrative hearing decision in the matter of *Steven Kramer v. Camelback House, Inc.*, decided by Administrative Law Judge Adam D. Stone on September 27, 2021.

Case Summary: Steven Kramer v. Camelback House, Inc.

Key Facts and Background

The Petitioner, Steven Kramer, is a condominium owner and member of the Respondent, Camelback House, Inc. (the Association). The dispute arose after the Petitioner received a Notice of Violation (NOV) on or about July 20, 2020, regarding Pencil Cactus plants located at his unit. The Petitioner timely submitted a response to the NOV on August 14, 2020. Following this response, the Petitioner failed to hear anything further from the Association for approximately eight months, until the matter was noted for discussion at an April 2021 Board meeting.

Main Issue and Legal Arguments

The central issue was whether the Association violated ARIZ. REV. STAT. § 33-1242(C) by failing to properly respond to the unit owner's response to the Notice of Violation. The Association argued it was excused from compliance with the statute because the initial NOV met all statutory requirements.

ARIZ. REV. STAT. § 33-1242(C) mandates that, within ten business days after receiving the unit owner's response, the association must respond with a written explanation providing specific details, *unless* those details (including the provision violated, the date observed, the process to contest, and crucially, the first and last name of the person(s) who observed the violation) were already provided in the original notice.

Legal Analysis and Decision

The Administrative Law Judge (ALJ) found that the Petitioner sustained the burden of proving a violation by a preponderance of the evidence.

  1. Interpretation of A.R.S. § 33-1242(C): The Tribunal rejected the Association’s primary defense. The ALJ concluded that the "unless previously provided" clause in the statute only excuses the inclusion of the detailed information (items 1-4), but it does not excuse the core requirement for the Association to send a written response to the homeowner within the ten-day statutory window.
  2. Deficiency of the Original Notice (Alternative Finding): Even if the Association’s interpretation of the statute had been correct, the ALJ found the original Notice of Violation was legally deficient because it failed to satisfy requirement number 3: providing the first and last name of the person(s) who observed the violation. Testimony established that the signature on the NOV was "auto-populated" and the notice vaguely referenced observation “[d]uring a recent inspection of the community,” which the ALJ found to be insufficient notice under the statute.

Outcome

The Tribunal concluded that the Respondent violated ARIZ. REV. STAT. § 33-1242(C) for failing to properly and timely respond to the Petitioner's submission. The Petitioner was deemed the prevailing party and was awarded $500.00 in filing fees, which the Respondent was ordered to reimburse within 30 days.

Questions

Question

How long does my HOA have to respond after I send a written response to a violation notice?

Short Answer

The HOA must respond within 10 business days of receiving your certified mail response.

Detailed Answer

Under Arizona law, if a unit owner responds to a violation notice via certified mail, the association is statutorily required to provide a written explanation within ten business days.

Alj Quote

Within ten business days after receipt of the certified mail containing the response from the unit owner, the association shall respond to the unit owner with a written explanation regarding the notice

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)

Topic Tags

  • timelines
  • violation notices
  • communication

Question

If the HOA's original violation notice was perfect, do they still have to reply to my response?

Short Answer

Yes. Even if the original notice contained all required details, the HOA must still send a response letter.

Detailed Answer

The ALJ determined that the statutory phrase 'unless previously provided' only excuses the HOA from repeating specific detailed information (like the date and observer's name) if it was already in the first notice. It does not excuse the HOA from the obligation to send a response letter entirely.

Alj Quote

First, the Tribunal believes that the “unless previously provided in the notice of violation” clause, only excuses the detailed written information, not the letter itself. Thus, the Tribunal believes that the statute requires a written response within 10 days of receiving the homeowner’s response to the notice of violation.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)

Topic Tags

  • legal interpretation
  • HOA obligations
  • violation notices

Question

Does the HOA have to tell me the specific name of the person who reported my violation?

Short Answer

Yes. The notice must include the first and last name of the person who observed the violation.

Detailed Answer

The statute explicitly requires the HOA to provide the first and last name of the observer. A general statement that an item was noted during an inspection is insufficient if it does not identify the specific observer.

Alj Quote

3. The first and last name of the person or persons who observed the violation.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)(3)

Topic Tags

  • due process
  • violation notices
  • observer identity

Question

Is an automated signature on a violation letter enough to identify who saw the violation?

Short Answer

Not necessarily. If the letter doesn't explicitly state that the signer was the one who observed the violation, an auto-signature is insufficient.

Detailed Answer

In this case, the ALJ found that an auto-populated signature at the bottom of a form letter was not sufficient to satisfy the requirement of identifying the observer, particularly when the text only referred vaguely to a 'recent inspection' without stating who performed it.

Alj Quote

The only time a first and last name is used is in the signature block, which Ms. Smith testified was auto-populated. … This does not state who observed the violation. … The Administrative Law Judge does not find this sufficient notice under the statute.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)(3)

Topic Tags

  • evidence
  • violation notices
  • signatures

Question

What happens if I win my hearing against the HOA?

Short Answer

You may be deemed the prevailing party and awarded reimbursement for your filing fees.

Detailed Answer

If the homeowner proves the HOA violated the statute, the ALJ can order the HOA to reimburse the homeowner's filing fees (in this case, $500) within a set timeframe.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $500.00, and Respondent must reimburse the same within 30 days.

Legal Basis

Order

Topic Tags

  • remedies
  • filing fees
  • prevailing party

Question

What is the burden of proof for a homeowner in an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove their case by showing that their contention is more probably true than not. This is based on the weight of the evidence, not just the number of witnesses.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242(C). … “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Case

Docket No
21F-H2121063-REL
Case Title
Steven Kramer vs. Camelback House, Inc.
Decision Date
2021-09-27
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

How long does my HOA have to respond after I send a written response to a violation notice?

Short Answer

The HOA must respond within 10 business days of receiving your certified mail response.

Detailed Answer

Under Arizona law, if a unit owner responds to a violation notice via certified mail, the association is statutorily required to provide a written explanation within ten business days.

Alj Quote

Within ten business days after receipt of the certified mail containing the response from the unit owner, the association shall respond to the unit owner with a written explanation regarding the notice

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)

Topic Tags

  • timelines
  • violation notices
  • communication

Question

If the HOA's original violation notice was perfect, do they still have to reply to my response?

Short Answer

Yes. Even if the original notice contained all required details, the HOA must still send a response letter.

Detailed Answer

The ALJ determined that the statutory phrase 'unless previously provided' only excuses the HOA from repeating specific detailed information (like the date and observer's name) if it was already in the first notice. It does not excuse the HOA from the obligation to send a response letter entirely.

Alj Quote

First, the Tribunal believes that the “unless previously provided in the notice of violation” clause, only excuses the detailed written information, not the letter itself. Thus, the Tribunal believes that the statute requires a written response within 10 days of receiving the homeowner’s response to the notice of violation.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)

Topic Tags

  • legal interpretation
  • HOA obligations
  • violation notices

Question

Does the HOA have to tell me the specific name of the person who reported my violation?

Short Answer

Yes. The notice must include the first and last name of the person who observed the violation.

Detailed Answer

The statute explicitly requires the HOA to provide the first and last name of the observer. A general statement that an item was noted during an inspection is insufficient if it does not identify the specific observer.

Alj Quote

3. The first and last name of the person or persons who observed the violation.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)(3)

Topic Tags

  • due process
  • violation notices
  • observer identity

Question

Is an automated signature on a violation letter enough to identify who saw the violation?

Short Answer

Not necessarily. If the letter doesn't explicitly state that the signer was the one who observed the violation, an auto-signature is insufficient.

Detailed Answer

In this case, the ALJ found that an auto-populated signature at the bottom of a form letter was not sufficient to satisfy the requirement of identifying the observer, particularly when the text only referred vaguely to a 'recent inspection' without stating who performed it.

Alj Quote

The only time a first and last name is used is in the signature block, which Ms. Smith testified was auto-populated. … This does not state who observed the violation. … The Administrative Law Judge does not find this sufficient notice under the statute.

Legal Basis

ARIZ. REV. STAT. § 33-1242(C)(3)

Topic Tags

  • evidence
  • violation notices
  • signatures

Question

What happens if I win my hearing against the HOA?

Short Answer

You may be deemed the prevailing party and awarded reimbursement for your filing fees.

Detailed Answer

If the homeowner proves the HOA violated the statute, the ALJ can order the HOA to reimburse the homeowner's filing fees (in this case, $500) within a set timeframe.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $500.00, and Respondent must reimburse the same within 30 days.

Legal Basis

Order

Topic Tags

  • remedies
  • filing fees
  • prevailing party

Question

What is the burden of proof for a homeowner in an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner must prove their case by showing that their contention is more probably true than not. This is based on the weight of the evidence, not just the number of witnesses.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242(C). … “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Case

Docket No
21F-H2121063-REL
Case Title
Steven Kramer vs. Camelback House, Inc.
Decision Date
2021-09-27
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Steven Kramer (petitioner)
    Appeared and testified on his own behalf.

Respondent Side

  • Emily Cooper (attorney)
    Camelback House, Inc.
  • Laura Smith (witness, community manager)
    Camelback House, Inc.
    Current Community Manager for the Association since February 2021.
  • Rick Williams (community manager)
    Association
    Community Manager for the Association who sent the Notice of Violation in July 2020; signature on the notice was automated.

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of the transmitted order.
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of the transmitted order.
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of the transmitted order.

Thomas A & Jade Bossert v. Silverbell West Association, Inc.

Posted on by

Case Summary

Case ID 21F-H2120011-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-04-16
Administrative Law Judge Adam D. Stone
Outcome Petitioner was deemed the prevailing party after Respondent was found in violation of A.R.S. § 33-1258(A) for failing to provide specific financial records (bank statements, check copies) and A.R.S. § 33-1243(J) for failing to complete the 2019 financial compilation. The ALJ declined to impose a civil penalty but ordered Respondent to reimburse the Petitioner's filing fees of $1,000.00.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas A & Jade Bossert Counsel Anthony Tsontakis
Respondent Silverbell West Association, Inc. Counsel Nicholas C Nogami & Timothy D Butterfield

Alleged Violations

ARIZ. REV. STAT. § 33-1258(A) & ARIZ. REV. STAT. § 33-1243(J)

Outcome Summary

Petitioner was deemed the prevailing party after Respondent was found in violation of A.R.S. § 33-1258(A) for failing to provide specific financial records (bank statements, check copies) and A.R.S. § 33-1243(J) for failing to complete the 2019 financial compilation. The ALJ declined to impose a civil penalty but ordered Respondent to reimburse the Petitioner's filing fees of $1,000.00.

Key Issues & Findings

Failure to disclose records and complete annual financial compilation

Respondent violated A.R.S. § 33-1258(A) by failing to provide bank account statements and check copies, and violated A.R.S. § 33-1243(J) by failing to complete the 2019 financial compilation. Petitioner did not meet the burden regarding the 2018 financial report.

Orders: Respondent was ordered to reimburse Petitioner's filing fees of $1,000.00 within 30 days.

Filing fee: $1,000.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1258(A)
  • ARIZ. REV. STAT. § 33-1243(J)

Analytics Highlights

Topics: Homeowners Association, Records Access, Financial Compilation, Statutory Violation, Condominium Association
Additional Citations:

  • ARIZ. REV. STAT. § 33-1258(A)
  • ARIZ. REV. STAT. § 33-1243(J)
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.05
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

21F-H2120011-REL Decision – 865401.pdf

Uploaded 2026-04-27T09:41:32 (42.0 KB)

21F-H2120011-REL Decision – 872606.pdf

Uploaded 2026-04-27T09:41:35 (153.6 KB)

21F-H2120011-REL Decision – 865401.pdf

Uploaded 2026-01-23T17:35:06 (42.0 KB)

21F-H2120011-REL Decision – 872606.pdf

Uploaded 2026-01-23T17:35:09 (153.6 KB)

This summary details the administrative hearing proceedings in the matter of *Thomas A & Jade Bossert vs. Silverbell West Association, Inc.*

Case Summary: Bossert v. Silverbell West Association, Inc.

Key Facts and Parties

The Petitioner, Thomas A. and Jade Bossert, are owners of a condominium unit and members of the Silverbell West Association, Inc. (Respondent). The dispute was heard by Administrative Law Judge Adam D. Stone in the Office of Administrative Hearings (OAH). The evidentiary hearing took place on March 18, 2021.

Main Issues

The Petitioner filed a two-issue petition alleging the Association committed statutory violations:

  1. Failure to Disclose Records: Violating ARIZ. REV. STAT. § 33-1258(A) by failing to make financial and other records reasonably available for examination.
  2. Failure to Complete Financials: Violating ARIZ. REV. STAT. § 33-1243(J) by failing to complete an annual financial audit, review, or compilation within 180 days after the end of the 2018 and 2019 fiscal years.

Hearing Proceedings and Key Arguments

Petitioner testified that initial documents received following a June 2020 request were disorganized and incomplete. A subsequent request in July 2020 for specific missing items, including bank statements and cash journals, was never fulfilled. A bookkeeping expert testified that the records presented were disorganized, likely missing documents, and insufficient for making accurate 2018 and 2019 reports.

The Board President testified that they believed the initial request was met based on records held by the former Treasurer, Mr. Molley, but admitted the follow-up request was likely ignored. The tribunal found that Mr. Molley was "largely the one to blame" for unacceptable record-keeping, but also criticized the current Board President for failing to take a more active role in obtaining easily available bank statements.

Legal Conclusions and Outcome

The Administrative Law Judge found that the Petitioner had sustained the burden of proving that the Association committed two specific violations:

  1. Violation of ARIZ. REV. STAT. § 33-1258(A) (Records Disclosure): The Respondent violated the statute insofar as they failed to produce bank account statements and check copies. The fact that these records had still not been turned over was deemed "inexcusable".
  2. Violation of ARIZ. REV. STAT. § 33-1243(J) (Financial Compilation): The Respondent violated the statute by failing to complete the 2019 financial compilation.
  • *Note:* The tribunal found Petitioner did *not* meet the burden of proof regarding the 2018 financial report, as Petitioner (who was Board President at the time) could have taken more aggressive measures to secure the necessary documentation.

Final Decision

The Administrative Law Judge declined to impose a civil penalty, noting that the Board had subsequently taken steps to ensure better future record keeping.

The Petitioner was deemed the prevailing party and the Association (Respondent) was ordered to reimburse the Petitioner's filing fees of $1,000.00 within 30 days.

Questions

Question

Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?

Short Answer

No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.

Detailed Answer

The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.

Alj Quote

Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • records request
  • board duties
  • bank statements

Question

What is the deadline for the HOA to complete its annual financial compilation?

Short Answer

The compilation must be completed within 180 days after the fiscal year ends.

Detailed Answer

Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

ARIZ. REV. STAT. § 33-1243(J)

Topic Tags

  • financials
  • deadlines
  • compilation

Question

Will the judge always fine the HOA if they violate record-keeping laws?

Short Answer

Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.

Detailed Answer

Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.

Alj Quote

That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

What happens if I request specific accounting records (like ledgers) that the HOA simply never created?

Short Answer

The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.

Detailed Answer

If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.

Alj Quote

With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • missing records
  • record keeping

Question

If I win my case against the HOA regarding records, can I get my filing fees back?

Short Answer

Yes, the prevailing party is typically entitled to reimbursement of filing fees.

Detailed Answer

If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.

Legal Basis

Order based on prevailing party status

Topic Tags

  • reimbursement
  • fees
  • prevailing party

Question

Does a former Board President have a claim regarding missing financials from their own term?

Short Answer

It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.

Detailed Answer

If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.

Alj Quote

Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.

Legal Basis

Burden of proof standard

Topic Tags

  • board member rights
  • fiduciary duty

Case

Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to provide bank statements by claiming the Treasurer kept poor records?

Short Answer

No. The Board has a duty to obtain readily available records like bank statements directly from the bank if necessary.

Detailed Answer

The Board cannot excuse a failure to provide records by blaming a specific officer's poor record-keeping. If records like bank statements are missing from the files, the Board President or other officers should go to the bank to obtain copies.

Alj Quote

Mr. Warnix, as President of the Board, should have taken a more active role in at least obtaining all bank account records and copies of checks given his knowledge of Mr. Molley’s actions… he could have requested copies of the same in person at the bank. The fact that these records still have not been turned over is inexcusable.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • records request
  • board duties
  • bank statements

Question

What is the deadline for the HOA to complete its annual financial compilation?

Short Answer

The compilation must be completed within 180 days after the fiscal year ends.

Detailed Answer

Unless the governing documents require an audit, the Board must provide for an annual financial audit, review, or compilation to be finished no later than 180 days after the fiscal year ends. It must be made available to owners within 30 days of completion.

Alj Quote

The audit, review or compilation shall be completed no later than one hundred eighty days after the end of the association's fiscal year and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

ARIZ. REV. STAT. § 33-1243(J)

Topic Tags

  • financials
  • deadlines
  • compilation

Question

Will the judge always fine the HOA if they violate record-keeping laws?

Short Answer

Not necessarily. If the HOA fixes the issue and ensures future compliance, the judge may decline to issue a civil penalty.

Detailed Answer

Even if violations are found, the ALJ has discretion regarding civil penalties. If the HOA has hired a professional manager or taken steps to ensure better record-keeping moving forward, the judge might decide a penalty is not required.

Alj Quote

That being said, the tribunal believes that Board took the appropriate steps to ensure better record keeping in the future… Thus, the Administrative Law Judge declines to impose a civil penalty.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • civil penalty
  • fines
  • enforcement

Question

What happens if I request specific accounting records (like ledgers) that the HOA simply never created?

Short Answer

The HOA cannot produce what doesn't exist, so they may not be penalized for failing to produce them, though the lack of records is a governance issue.

Detailed Answer

If there is no evidence that specific documents (like check registers or dues reports) were ever created due to poor management, the judge may find it impossible to rule that the HOA failed to provide existing records.

Alj Quote

With regards to the other records (check registers, cash receipt journals, dues reports, etc.), it is unclear from Mr. Bossert’s testimony, if those even existed… Thus, it is impossible to know if they even exist, as there was no evidence from Mr. Bossert that they do in fact exist.

Legal Basis

ARIZ. REV. STAT. § 33-1258(A)

Topic Tags

  • missing records
  • record keeping

Question

If I win my case against the HOA regarding records, can I get my filing fees back?

Short Answer

Yes, the prevailing party is typically entitled to reimbursement of filing fees.

Detailed Answer

If the homeowner sustains their burden of proof and is deemed the prevailing party, the ALJ can order the HOA to reimburse the filing fees.

Alj Quote

IT IS ORDERED that Petitioner is deemed the prevailing party and is entitled to his filing fees of $1,000.00, and Respondent must reimburse this within 30 days.

Legal Basis

Order based on prevailing party status

Topic Tags

  • reimbursement
  • fees
  • prevailing party

Question

Does a former Board President have a claim regarding missing financials from their own term?

Short Answer

It may be difficult to prove if the President had the authority to fix the issue at the time but didn't.

Detailed Answer

If a petitioner was the Board President during the time the violation occurred and had the power to remedy the situation (e.g., by taking over responsibility from a non-compliant Treasurer) but failed to do so, the tribunal may find they did not meet their burden of proof for that specific violation.

Alj Quote

Mr. Bossert, while acting as President, could have taken more aggressive measures with Mr. Molley to get him to provide the same… Therefore, Petitioner has not met his burden as to the 2018 financial report.

Legal Basis

Burden of proof standard

Topic Tags

  • board member rights
  • fiduciary duty

Case

Docket No
21F-H2120011-REL
Case Title
Thomas A & Jade Bossert vs. Silverbell West Association, Inc.
Decision Date
2021-04-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Thomas A Bossert (petitioner)
    Former Board President; testified on own behalf
  • Jade Bossert (petitioner)
  • Anthony Tsontakis (petitioner attorney)
    Tsontakis Law
  • Barbara Schoneck (witness)
    Digit & Docs LLC
    Called by Petitioner

Respondent Side

  • Nicholas C Nogami (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Timothy D Butterfield (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Rex Warnix, III (board member; witness)
    Silverbell West Association, Inc.
    Current Board President; testified for Respondent/Association
  • Linda Garner (property manager; witness)
    Adam LLC
    Property manager for the Association
  • Donald Molley (board member; treasurer)
    Silverbell West Association, Inc.
    Board Treasurer responsible for financial records

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Lynda Meadows (accountant)
    Prepared 2018 financial compilation
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Email recipient

Other Participants

  • c. serrano (ADRE staff)
    Individual listed on transmission details

Foothills Club West Homeowners Association v. Subrahmanyam & Sheila

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Case Summary

Case ID 21F-H2120004-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-11-27
Administrative Law Judge Kay Abramsohn
Outcome The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Foothills Club West Homeowners Association Counsel John Halk, Esq.
Respondent Subrahmanyam & Sudhakar Living Trust Counsel Mary T. Hone, Esq.

Alleged Violations

CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5

Outcome Summary

The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.

Key Issues & Findings

Unauthorized 2nd story addition

Respondents constructed a second-story Addition to their property without first obtaining approval from the Foothills Architectural Committee, violating the community governing documents.

Orders: Respondents’ appeal is dismissed, and Foothills is deemed the prevailing party with regard to its Petition.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_win

Cited:

  • CC&Rs Article 7, Section 7.3
  • CC&R Article 9, Section 9.3
  • CC&R Article 9, Section 9.4
  • CC&R Article 9, Section 9.5

Analytics Highlights

Topics: architectural review, cc&r violation, unapproved construction, second story addition, prevailing party
Additional Citations:

  • A.R.S. §§ 32-2102
  • A.R.S. §§ 32-2199 et al.
  • A.R.S. §§ 32-2199(2)
  • A.R.S. §§ 32-2199.01(D)
  • A.R.S. §§ 32-2199.02
  • A.R.S. § 32-2199.05
  • A.R.S. § 41-1092
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

21F-H2120004-REL Decision – 839537.pdf

Uploaded 2026-04-28T10:53:36 (135.4 KB)

21F-H2120004-REL Decision – 839537.pdf

Uploaded 2026-01-23T17:34:43 (135.4 KB)

Briefing Document: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust

Executive Summary

This document synthesizes the findings and decision in the case of Foothills Club West Homeowners Association v. Subrahmanyam & Sudhakar Living Trust (No. 21F-H2120004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core dispute involved the construction of a second-story addition by homeowners (Respondents) without the prior approval of the Homeowners Association (Petitioner), a direct violation of the community’s governing documents.

The Administrative Law Judge (ALJ) found conclusively in favor of the Foothills Club West HOA. The evidence demonstrated that the Respondents not only began construction without seeking approval but continued the project even after receiving a formal denial from the HOA’s Architectural Committee. A subsequent agreement between the parties, wherein the Respondents would demolish the addition in exchange for a waiver of fines, was not honored by the Respondents. The ALJ dismissed the Respondents’ appeal and declared the HOA the prevailing party, validating its authority to enforce the community’s architectural standards as outlined in its Covenants, Conditions, and Restrictions (CC&Rs).

I. Case Overview

• Case Name: Foothills Club West Homeowners Association, Petitioner, v. Subrahmanyam & Sudhakar Living Trust, Respondent.

• Case Number: 21F-H2120004-REL

• Jurisdiction: Arizona Office of Administrative Hearings

• Administrative Law Judge: Kay Abramsohn

• Hearing Date: October 5, 2020

• Decision Date: November 27, 2020

• Central Issue: The petition filed by Foothills HOA on July 24, 2020, alleged that the Respondents constructed an unauthorized and unapproved second-story addition to their property. This action was alleged to be in violation of CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5.

II. Chronology of Key Events

The hearing record established the following undisputed sequence of events:

Oct. 2018

Respondents begin construction of the second-story addition.

Nov. 7, 2018

The City of Phoenix issues a stop-work order, noting a permit is required.

Nov. 7, 2018

Foothills HOA issues a violation notice to the Respondents.

Dec. 17, 2018

Respondents obtain a permit from the City of Phoenix.

Jan. 18, 2019 (approx.)

Respondents submit a request for approval to the Foothills Architectural Committee.

Jan. 18, 2019

Foothills HOA issues a penalty notice to the Respondents, with further notices issued monthly.

Feb. 22, 2019

Foothills HOA issues a formal denial of the application.

Mar. 15, 2019

The City of Phoenix gives final approval to the construction and issues a Certificate of Occupancy.

Post Feb. 2019

The parties reach an agreement for Respondents to demolish the addition in exchange for a waiver of fines.

July 24, 2020

Foothills HOA files its petition, noting Respondents have not complied with the demolition agreement.

Oct. 5, 2020

The administrative hearing is held.

Nov. 27, 2020

The Administrative Law Judge issues the final decision.

III. Arguments of the Parties

A. Petitioner: Foothills Club West HOA

• Violation of CC&Rs: The HOA argued that the Respondents violated CC&R Article 9, Section 9.3 by commencing construction without first obtaining approval from the Architectural Committee.

• Disregard for Denial: The HOA asserted that the Respondents completed the addition after receiving a formal denial of their application.

• Breach of Agreement: The HOA noted that the parties had reached a settlement agreement for demolition, which the Respondents failed to honor. The HOA requested that the Tribunal enforce this agreement.

• Jurisdictional Distinction: The HOA maintained that approval from the City of Phoenix was a separate matter and did not negate the requirement to obtain approval from the HOA as mandated by the governing documents.

B. Respondents: Subrahmanyam & Sudhakar Living Trust

• Initial Ignorance: Respondents claimed they were initially unaware of the HOA approval requirements.

• Attempted Compliance: They argued that once notified, they followed the association’s guidance, met with the Board, and sought approval.

• Vague Denial: Respondents stated they did not understand the meaning of the denial reason, “Fails aesthetics of surrounding community,” or how the addition specifically violated community rules.

• Lack of Due Process: They argued they did not receive a letter indicating an appeal process was available and therefore felt they had not received a final “denial.”

• Demolition Delay: While not disputing the existence of the demolition agreement, Respondents cited COVID-19 issues and safety concerns for their at-risk family as reasons for requesting more time.

• Final Appeal: At the hearing, Respondents reversed their position on the agreement and requested to be allowed to keep the addition.

IV. Analysis of Governing Documents

The decision centered on specific provisions within the Foothills Club West governing documents, which constitute the contract between the HOA and the homeowners.

• CC&R Article 9, Section 9.3 (Architectural Approval): This section was central to the case. It states in pertinent part:

• CC&R Article 9, Section 9.4 (Obligation to Obtain Approval): This provision explicitly sets forth a homeowner’s obligation to secure approval from the Architectural Committee.

• CC&R Article 9, Section 9.5 (Exterior Appearance): This section clarifies that while the HOA cannot limit interior remodeling, it retains jurisdiction over any changes that are “visible from outside such [home] … or affects the exterior appearance of such [home].”

• Amended Architectural Guidelines (2013): These guidelines reinforce the CC&Rs, specifying that a homeowner’s plans must be submitted for approval through the Architectural Committee on a case-by-case basis.

V. Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions of law provided a clear framework for the final order.

A. Burden of Proof

The ALJ established that in this proceeding, the petitioner (Foothills HOA) bore the burden of proving by a “preponderance of the evidence” that the Respondents had violated the governing documents. A preponderance of the evidence is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”

B. Core Conclusion on Violations

The ALJ found that the HOA had successfully met its burden of proof. The central conclusion of law states:

“The Administrative Law Judge concludes that Foothills has demonstrated Respondents’ violation of the community governing documents, as stated in CC&R Article 9, Sections 9.3, 9.4, and 9.5, because Respondents began to construct a modification, the Addition, to their existing home prior to obtaining approval from Foothills Architectural Committee and, further, Respondents continued to construct the Addition despite receiving a denial of approval from Foothills Architectural Committee.”

This finding affirmed that the Respondents committed two distinct violations: starting work without approval and continuing work after being explicitly denied approval.

VI. Final Order and Implications

Based on the findings of fact and conclusions of law, the ALJ issued a decisive order.

• Order:

• Binding Nature: The decision notes that the order is binding on both parties unless a rehearing is requested. Pursuant to A.R.S. § 41-1092.09, a request for rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order.

Study Guide: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust

This guide provides a detailed review of the Administrative Law Judge Decision in case No. 21F-H2120004-REL. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a comprehensive glossary of key terms found within the document.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.

1. Who are the Petitioner and Respondent in this case, and what is their relationship?

2. What was the single issue raised in the petition filed by Foothills Club West Homeowners Association?

3. According to the Petition, which specific articles and sections of the governing documents did the Respondents allegedly violate?

4. What action did the City of Phoenix take on November 7, 2018, regarding the Respondents’ construction project?

5. What reasons did the Foothills Architectural Committee provide for denying the Respondents’ application on February 22, 2019?

6. Prior to the hearing, what agreement did the parties reach in an attempt to resolve the dispute?

7. What was the Respondents’ primary argument for their actions and for their failure to comply with the association’s denial?

8. What is the legal standard of proof required in this case, and which party bore the burden of meeting it?

9. Explain the difference between the City of Phoenix’s approval and the Foothills Architectural Committee’s approval, as argued by the Petitioner.

10. What was the final order issued by the Administrative Law Judge in this matter?

——————————————————————————–

Answer Key

1. The Petitioner is the Foothills Club West Homeowners Association (“Foothills”). The Respondent is the Subrahmanyam & Sheila Sudhakar Living Trust. Their relationship is that of a homeowners’ association and a member homeowner residing within the planned community for 22 years.

2. The single issue raised was that the Respondents constructed an unauthorized and unapproved second-story addition to their property. The construction was completed even after the Foothills Architectural Committee had issued a denial of the project.

3. Foothills alleged that the Respondents violated the CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5. These articles pertain to the rights and obligations of the association and the architectural standards requiring prior approval for modifications.

4. On November 7, 2018, the City of Phoenix issued a stop-work order for the Respondents’ construction project. The order noted that the work being performed required a permit, which had not yet been obtained.

5. The Foothills Architectural Committee denied the application because it needed copies of the City permit, the plans were incomplete, and there was no documentation on the roof line or roofing materials. Furthermore, the denial stated that the project “Fails aesthetics of surrounding community.”

6. The parties came to an agreement wherein the Respondents would complete the demolition of the second-story addition. In exchange, Foothills agreed to waive the penalties that had been imposed on the Respondents for the violation.

7. The Respondents argued that they initially did not know what was required and that they cooperated with the association’s Board once notified. They claimed they did not understand what “Fails aesthetics” meant, did not receive a letter about an appeal process, and therefore did not feel they had received a final “denial.”

8. The legal standard of proof is a “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not. The Petitioner, Foothills, bore the burden of proving the Respondents’ violation by this standard.

9. Foothills argued that approval from the City of Phoenix and approval from the association’s Architectural Committee were two different and separate matters. Even though the Respondents eventually received a City permit and a Certificate of Occupancy, this did not override the CC&R requirement to first obtain approval from Foothills.

10. The Administrative Law Judge ordered that the Respondents’ appeal be dismissed. The Judge deemed Foothills the prevailing party with regard to its petition, finding that Foothills had demonstrated the Respondents’ violation of the community’s governing documents.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing evidence and support directly from the provided legal decision.

1. Analyze the arguments presented by both the Petitioner (Foothills) and the Respondents at the hearing. Discuss the key evidence and claims each party used to support their position and explain why the Administrative Law Judge ultimately found the Petitioner’s case more persuasive.

2. Explain the distinct roles and jurisdictions of the Homeowners Association’s Architectural Committee and the City of Phoenix regarding the Respondents’ construction project. Why was obtaining a City permit and a Certificate of Occupancy insufficient for the Respondents to proceed without violating the community’s governing documents?

3. Trace the procedural history of case No. 21F-H2120004-REL, from the filing of the initial petition to the final order. Discuss key filings, motions, and deadlines mentioned in the document, including the Respondents’ attempt to consolidate another case.

4. Discuss the significance of the “contract” between the parties, as defined in footnote 15. How do the CC&Rs and the amended Architectural Guidelines function as this contract, and which specific sections were central to the judge’s conclusion that a violation occurred?

5. Evaluate the Respondents’ attempt to justify their failure to demolish the addition as per their agreement with Foothills, citing COVID-19 issues. How did their request at the hearing to keep the addition conflict with their prior agreement, and what does this reveal about their position in the dispute?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Kay Abramsohn, who presides over administrative hearings at the Office of Administrative Hearings and issues decisions.

Architectural Committee

A committee appointed by the Foothills HOA, as established by CC&R Article 9, with the authority to review, approve, or disapprove plans for construction, modifications, and additions to properties within the community.

An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These are the governing documents that form a binding contract between the homeowners association and the property owners, outlining their rights and obligations.

Disclosure

The formal process by which parties in a legal case provide evidence, exhibits, and information to each other before a hearing. The deadline for disclosure in this case was September 29, 2020.

Governing Documents

The set of rules for the planned community, including the CC&Rs and the amended Architectural Guidelines, which have the same force and effect as association rules.

Petitioner

The party who initiates a legal proceeding by filing a petition. In this case, the Foothills Club West Homeowners Association.

Petition

The formal document filed with the Arizona Department of Real Estate to initiate a hearing concerning violations of community governing documents. In this case, it was a “single-issue petition.”

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”

Respondent

The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Subrahmanyam & Sheila Sudhakar Living Trust.

Tribunal

The Arizona Office of Administrative Hearings, the state agency authorized by statute to hear and decide contested matters referred to it, such as this dispute.

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21F-H2120004-REL

1 source

This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings concerning a dispute between the Foothills Club West Homeowners Association and the Subrahmanyam & Sudhakar Living Trust. The Petitioner, the Foothills Club West Homeowners Association, filed a petition alleging that the Respondents constructed an unauthorized second-story addition to their property in violation of the association’s governing documents, specifically the CC&Rs Article 9, Sections 9.3, 9.4, and 9.5. The Administrative Law Judge determined that the Respondents violated these community documents by beginning construction prior to obtaining approval from the Foothills Architectural Committee and continuing the work despite receiving a denial. The judge ultimately concluded that Foothills was the prevailing party and dismissed the Respondents’ appeal, effectively upholding the violation finding.

1 source

What are the specific governing document violations alleged and proven against the homeowners?
How did the legal and administrative process address the unauthorized construction dispute?
What was the final resolution ordered regarding the unapproved second-story home addition?

Based on 1 source

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Case Participants

Petitioner Side

  • John Halk (HOA attorney)
    BROWN/OLCOTT, PLLC
    Represented Petitioner Foothills Club West Homeowners Association
  • Nathan Tennyson (HOA attorney)
    BROWN/OLCOTT, PLLC
    Counsel for Petitioner

Respondent Side

  • Mary T. Hone (Respondent attorney)
    Mary T. Hone, PLLC
    Counsel for Respondent Trustees Subrahmanyam & Sheila Sudhakar
  • Subrahmanyam Sudhakar (respondent)
    Subrahmanyam & Sheila Sudhakar Living Trust
    Trustee of the Respondent Living Trust
  • Sheila Sudhakar (respondent)
    Subrahmanyam & Sheila Sudhakar Living Trust
    Trustee of the Respondent Living Trust

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • AHansen (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • djones (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • DGardner (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order
  • ncano (Agency Staff)
    Arizona Department of Real Estate
    Recipient of electronic transmission of Order