Tag Archives: 2022

Randall White v. Quail Creek Villas Association Inc

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Case Summary

Case ID 23F-H004-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-12-29
Administrative Law Judge Jenna Clark
Outcome The ALJ denied the petition because the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated community documents or statutes. The ALJ noted that Petitioner lacked the authority to request the inspection on behalf of the HOA, and one primary statute cited (ARS § 10-3842) was inapplicable/outside jurisdiction.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Randall White Counsel —
Respondent Quail Creek Villas Association Inc. Counsel Carolyn Goldschmidt

Alleged Violations

ARIZ. REV. STAT. § 10-3842; Quail Creek Villas Association Inc. Bylaws Art. III Sec. 2

Outcome Summary

The ALJ denied the petition because the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated community documents or statutes. The ALJ noted that Petitioner lacked the authority to request the inspection on behalf of the HOA, and one primary statute cited (ARS § 10-3842) was inapplicable/outside jurisdiction.

Why this result: Petitioner failed to meet the burden of proof regarding the alleged statutory and community document violations. The ALJ found Petitioner lacked the authority to act for the Association, and the inspection had not yet commenced when directed to stop.

Key Issues & Findings

Alleged interference with wildfire risk assessment

Petitioner alleged Respondent stopped the Green Valley Fire Department's in-progress wildfire risk assessment, interfering with the assessment and failing to act in good faith or in the best interests of the Corporation.

Orders: Petitioner's petition was denied. All pending post-hearing motions were denied as moot.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 10-3842
  • ARIZ. REV. STAT. § 33-1802
  • ARIZ. REV. STAT. § 33-1805
  • Quail Creek Villas Association Inc. Bylaws Art. III Sec. 2

Analytics Highlights

Topics: HOA dispute, wildfire risk, homeowner authority, jurisdiction, planned community
Additional Citations:

  • ARIZ. REV. STAT. § 10-3842
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 33-1802
  • ARIZ. REV. STAT. § 33-1805
  • Quail Creek Villas Association Inc. Bylaws Art. III Sec. 2
  • ARIZ. ADMIN. CODE R2-19-119

Video Overview

Audio Overview

Decision Documents

23F-H004-REL Decision – 1002376.pdf

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23F-H004-REL Decision – 1002517.pdf

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23F-H004-REL Decision – 1014952.pdf

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23F-H004-REL Decision – 1020817.pdf

Uploaded 2026-04-24T11:56:37 (55.1 KB)

23F-H004-REL Decision – 1022445.pdf

Uploaded 2026-04-24T11:56:41 (170.8 KB)

23F-H004-REL Decision – 1002376.pdf

Uploaded 2026-01-23T17:50:26 (40.8 KB)

23F-H004-REL Decision – 1002517.pdf

Uploaded 2026-01-23T17:50:29 (5.8 KB)

23F-H004-REL Decision – 1014952.pdf

Uploaded 2026-01-23T17:50:33 (45.6 KB)

23F-H004-REL Decision – 1020817.pdf

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23F-H004-REL Decision – 1022445.pdf

Uploaded 2026-01-23T17:50:39 (170.8 KB)

This summary details the proceedings, arguments, and final decision in the matter of Randall White, Petitioner, vs. Quail Creek Villas Association Inc., Respondent, before the Office of Administrative Hearings (OAH), Docket No. 23F-H004-REL.

Key Facts and Procedural History

The hearing, presided over by Administrative Law Judge (ALJ) Jenna Clark, was held on December 12, 2022, having been previously continued from an initial date of October 21, 2022. Petitioner Randall White appeared on his own behalf, while Carolyn Goldschmidt represented the Respondent homeowner's association (HOA), with three witnesses testifying for the defense.

Main Issues and Allegations

The core issue defined for the hearing was whether the Respondent violated the Quail Creek Villas Association Inc. Bylaws Article III Section 2 and Arizona Revised Statute (ARS) § 10-3842 by allegedly stopping an in-progress wildfire risk assessment by the Green Valley Fire Department (GVFD). Petitioner later clarified he intended to cite ARS § 33-1802, concerning planned communities, as the relevant property statute.

Petitioner's Argument and Testimony

Petitioner White testified that his concerns about wildfire hazards arose when he had difficulty obtaining homeowner's insurance due to fire risk in the area. He contacted GVFD Inspector John O’Campo to perform a complimentary fire inspection for the entire Quail Creek Villas subdivision. On May 3, 2022, O’Campo notified Petitioner that a Board Member had instructed him via email to address such issues to the management company, thereby halting the planned assessment. Petitioner asserted this interference was not in good faith nor in the best interest of the corporation.

Respondent's Argument and Defense

The Respondent's counsel argued that Petitioner, as a homeowner, lacked the authority to schedule an inspection on behalf of the Association. The Respondent asserted that the Board of Directors is responsible for managing the business and affairs of the corporation, as stipulated in the community documents (CC&Rs and Bylaws). Testimony from the HOA's witnesses suggested the Board member could not recall sending the email that halted the inspection. The Respondent also noted that subsequent to the Petition, the Association did arrange for a fire hazard assessment through the Arizona State Department of Forestry & Fire Management in November 2022, although the ALJ ruled this post-complaint evidence was generally irrelevant to the original alleged violation.

Legal Points and Decision

The ALJ found that ARS § 10-3842 (Standards of Conduct for Officers) was outside the Department’s jurisdiction. The ALJ focused strictly on whether the Board's actions prior to the July 22, 2022, filing date constituted a violation of ARS Title 33 or the Bylaws.

The Administrative Law Judge Decision concluded that Petitioner failed to meet his burden of proving a statutory or community document violation by a preponderance of the evidence.

The crucial legal finding was that Petitioner did not have the authority or permission to act on behalf of the Association to request the wildfire inspection. Furthermore, the Petitioner conceded that the inspection had not actually commenced when the Board intervened.

Outcome

The ALJ denied Petitioner’s petition. All pending post-hearing motions were also denied as moot. The final order was issued on December 29, 2022.

Questions

Question

Can an individual homeowner authorize vendors or government agencies to perform inspections on HOA common property?

Short Answer

No. Unless explicitly granted permission by the governing documents, an individual homeowner does not have the authority to act on behalf of the Association.

Detailed Answer

The ALJ determined that a homeowner cannot unilaterally request services, such as a fire inspection, for the entire subdivision. The authority to manage association affairs and property generally resides with the Board of Directors.

Alj Quote

Here, the record reflects that Petitioner did not have the authority or permission to act on behalf of the Association to request that GVFD perform a wild fire inspection in and for the Quail Creek Villas subdivision.

Legal Basis

Association Bylaws Art. III, Section 2; ARS 33-1802

Topic Tags

  • Homeowner Authority
  • Common Area Inspections
  • Board Powers

Question

Who is responsible for proving that a violation occurred in an administrative hearing?

Short Answer

The Petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

The person bringing the complaint must prove their case. The HOA does not inherently have to disprove the allegations; the homeowner must first provide sufficient evidence that a violation occurred.

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

Arizona Administrative Code R2-19-119

Topic Tags

  • Burden of Proof
  • Hearing Procedures

Question

Does the Department of Real Estate have jurisdiction over the standards of conduct for corporate officers (ARS Title 10)?

Short Answer

No. The Department's jurisdiction is limited to specific real estate and planned community statutes.

Detailed Answer

Allegations regarding the general corporate conduct of officers under Title 10 (Corporations and Associations) generally fall outside the scope of the administrative hearing process provided by the Department of Real Estate.

Alj Quote

ARIZ. REV. STAT. § 10-3842, Corporations and Association – Standards of Conduct for Officers, is outside the jurisdiction of the Department and inapplicable to this matter.

Legal Basis

Jurisdictional Limits

Topic Tags

  • Jurisdiction
  • Corporate Law
  • Officer Conduct

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the evidence shows the claim is 'more probably true than not'.

Detailed Answer

This is the standard of proof required in civil and administrative hearings. It is a lower standard than 'beyond a reasonable doubt' used in criminal cases. It essentially means the evidence must tip the scale slightly in favor of the petitioner.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Question

If I accidentally email my evidence to the wrong email address for the HOA's attorney, will it still be admitted?

Short Answer

Likely not. The responsibility for properly serving evidence lies with the person sending it.

Detailed Answer

The ALJ ruled that if a petitioner misspells the opposing counsel's email address, resulting in the evidence not being received, the petitioner is responsible for that error, and the evidence may be excluded.

Alj Quote

Thus, Petitioner bore the onus of any mishandling/compromise of his proposed hearing exhibits.

Legal Basis

Procedural Rules

Topic Tags

  • Evidence
  • Procedure
  • Mistakes

Question

Can I cite general statutes or non-existent statutes in my petition?

Short Answer

No, you must cite specific, valid statutes. Citing non-existent codes weakens the case.

Detailed Answer

The ALJ noted that the petitioner cited statutes that did not exist (e.g., ARS 33-9). While the judge may try to interpret the intent based on evidence, relying on invalid statutes makes it difficult to sustain the burden of proof.

Alj Quote

The conundrum of Petitioner’s confusing reliance on statutes that do not exist and/or are outside the jurisdiction of the Department is solved, in large part, based on the substantive evidence of record.

Legal Basis

Statutory Interpretation

Topic Tags

  • Legal Research
  • Petition Drafting

Question

What is the deadline for requesting a rehearing if I disagree with the decision?

Short Answer

30 days from the date the order is served.

Detailed Answer

If a party wishes to contest the ALJ's decision, they must file a request for a rehearing with the Commissioner of the Arizona Department of Real Estate within 30 days.

Alj Quote

Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of this ORDER upon the parties.

Legal Basis

ARS 41-1092.09

Topic Tags

  • Appeals
  • Deadlines

Case

Docket No
23F-H004-REL
Case Title
Randall White vs. Quail Creek Villas Association Inc.
Decision Date
2022-12-29
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can an individual homeowner authorize vendors or government agencies to perform inspections on HOA common property?

Short Answer

No. Unless explicitly granted permission by the governing documents, an individual homeowner does not have the authority to act on behalf of the Association.

Detailed Answer

The ALJ determined that a homeowner cannot unilaterally request services, such as a fire inspection, for the entire subdivision. The authority to manage association affairs and property generally resides with the Board of Directors.

Alj Quote

Here, the record reflects that Petitioner did not have the authority or permission to act on behalf of the Association to request that GVFD perform a wild fire inspection in and for the Quail Creek Villas subdivision.

Legal Basis

Association Bylaws Art. III, Section 2; ARS 33-1802

Topic Tags

  • Homeowner Authority
  • Common Area Inspections
  • Board Powers

Question

Who is responsible for proving that a violation occurred in an administrative hearing?

Short Answer

The Petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

The person bringing the complaint must prove their case. The HOA does not inherently have to disprove the allegations; the homeowner must first provide sufficient evidence that a violation occurred.

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

Arizona Administrative Code R2-19-119

Topic Tags

  • Burden of Proof
  • Hearing Procedures

Question

Does the Department of Real Estate have jurisdiction over the standards of conduct for corporate officers (ARS Title 10)?

Short Answer

No. The Department's jurisdiction is limited to specific real estate and planned community statutes.

Detailed Answer

Allegations regarding the general corporate conduct of officers under Title 10 (Corporations and Associations) generally fall outside the scope of the administrative hearing process provided by the Department of Real Estate.

Alj Quote

ARIZ. REV. STAT. § 10-3842, Corporations and Association – Standards of Conduct for Officers, is outside the jurisdiction of the Department and inapplicable to this matter.

Legal Basis

Jurisdictional Limits

Topic Tags

  • Jurisdiction
  • Corporate Law
  • Officer Conduct

Question

What is the 'preponderance of the evidence' standard used in these hearings?

Short Answer

It means the evidence shows the claim is 'more probably true than not'.

Detailed Answer

This is the standard of proof required in civil and administrative hearings. It is a lower standard than 'beyond a reasonable doubt' used in criminal cases. It essentially means the evidence must tip the scale slightly in favor of the petitioner.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence

Topic Tags

  • Legal Standards
  • Evidence

Question

If I accidentally email my evidence to the wrong email address for the HOA's attorney, will it still be admitted?

Short Answer

Likely not. The responsibility for properly serving evidence lies with the person sending it.

Detailed Answer

The ALJ ruled that if a petitioner misspells the opposing counsel's email address, resulting in the evidence not being received, the petitioner is responsible for that error, and the evidence may be excluded.

Alj Quote

Thus, Petitioner bore the onus of any mishandling/compromise of his proposed hearing exhibits.

Legal Basis

Procedural Rules

Topic Tags

  • Evidence
  • Procedure
  • Mistakes

Question

Can I cite general statutes or non-existent statutes in my petition?

Short Answer

No, you must cite specific, valid statutes. Citing non-existent codes weakens the case.

Detailed Answer

The ALJ noted that the petitioner cited statutes that did not exist (e.g., ARS 33-9). While the judge may try to interpret the intent based on evidence, relying on invalid statutes makes it difficult to sustain the burden of proof.

Alj Quote

The conundrum of Petitioner’s confusing reliance on statutes that do not exist and/or are outside the jurisdiction of the Department is solved, in large part, based on the substantive evidence of record.

Legal Basis

Statutory Interpretation

Topic Tags

  • Legal Research
  • Petition Drafting

Question

What is the deadline for requesting a rehearing if I disagree with the decision?

Short Answer

30 days from the date the order is served.

Detailed Answer

If a party wishes to contest the ALJ's decision, they must file a request for a rehearing with the Commissioner of the Arizona Department of Real Estate within 30 days.

Alj Quote

Pursuant to ARIZ. REV. STAT. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of this ORDER upon the parties.

Legal Basis

ARS 41-1092.09

Topic Tags

  • Appeals
  • Deadlines

Case

Docket No
23F-H004-REL
Case Title
Randall White vs. Quail Creek Villas Association Inc.
Decision Date
2022-12-29
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Randall White (petitioner)
    Quail Creek Villas homeowner
    Appeared on his own behalf.

Respondent Side

  • Carolyn B. Goldschmidt (HOA attorney)
    Goldschmidt | Shupe LLC
    Counsel for Respondent.
  • Lori Wuollet (community manager)
    CAD Community Management
    Witness for Respondent; also known as Lori Don Wlette or Gloria Wlette.
  • John Messner (board member)
    Quail Creek Villas Association Inc.
    Vice President and witness for Respondent.
  • Robert Jelen (board member)
    Quail Creek Villas Association Inc.
    President and witness for Respondent; sometimes referred to as Bob Kellen.
  • Max Tittle (board member)
    Quail Creek Villas Association Inc.
    Also referred to as Max Tibble or Matt Tittle.
  • Diane (board member)
    Quail Creek Villas Association Inc.
    Mentioned by Petitioner as a board member.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Presided over the hearing and issued the decision.
  • Tammy L. Eigenheer (ALJ)
    OAH
    Signed minute entries (Sept 27, 2022) and order regarding virtual appearance (Nov 28, 2022).
  • John O'Campo (fire inspector)
    Green Valley Fire Department
    Contacted by Petitioner regarding wildfire assessment.
  • Roger Thompson (fire inspector)
    Green Valley Fire Department
    Parallel to John O'Campo; communicated with Petitioner and Respondent's board member.
  • Corey Guerin (inspector)
    AZ Dept Forestry & Fire Management
    Performed the Firewise assessment on November 3, 2022.
  • Miranda Alvarez (Legal Secretary)
    OAH
    Signed transmission lists.
  • c. serrano (Staff)
    OAH
    Clerical staff involved in document transmission.

Other Participants

  • Louis Dettorre (Commissioner)
    ADRE
    Recipient of official transmissions.
  • AHansen (ADRE Staff)
    ADRE
    Recipient of official transmissions.
  • vnunez (ADRE Staff)
    ADRE
    Recipient of official transmissions.
  • djones (ADRE Staff)
    ADRE
    Recipient of official transmissions.
  • labril (ADRE Staff)
    ADRE
    Recipient of official transmissions.

Matthew E Thompson v. Deer Valley Homeowners Association Inc

Posted on by

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

Uploaded 2026-04-24T11:55:51 (58.8 KB)

23F-H003-REL Decision – 1001154.pdf

Uploaded 2026-04-24T11:55:55 (7.1 KB)

23F-H003-REL Decision – 1021049.pdf

Uploaded 2026-04-24T11:56:02 (133.5 KB)

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

Uploaded 2026-01-23T17:50:17 (133.5 KB)

23F-H003-REL Decision – 999666.pdf

Uploaded 2026-01-23T17:50:20 (53.9 KB)

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

Richard Busack v. The Cliffs Condominium Association

Posted on by

Case Summary

Case ID 23F-H010-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-12-16
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge denied the petition, concluding that the responsibility for maintaining the leaking pipe and the resulting damage fell under the owner of the unit served by the pipe (Unit 263) as defined by Article III, Section 3.07 of the CC&Rs, not the HOA.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard Busack Counsel —
Respondent The Cliffs Condominium Association Counsel Melissa Doolan

Alleged Violations

Article III, Section 3.07 of the Declaration of Establishment of Condominium and of Declaration of Covenants, Conditions, and Restrictions for The Cliffs Condominium

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the responsibility for maintaining the leaking pipe and the resulting damage fell under the owner of the unit served by the pipe (Unit 263) as defined by Article III, Section 3.07 of the CC&Rs, not the HOA.

Why this result: The ALJ’s interpretation of Article III, Section 3.07 found that the owner of Unit 263 was responsible for the maintenance and repair of the specific section of pipe that leaked, and therefore, the HOA was not liable for the resulting damage or requested reimbursement.

Key Issues & Findings

HOA responsibility for reimbursement for kitchen cabinet and countertop replacement and mold remediation/restoration after a leaking pipe.

Petitioner sought reimbursement of $8541.00 from the HOA for damages caused by Cat 3 water coming from a leaking toilet pipe located between the ceiling of unit 163 and the subfloor of unit 263. Petitioner alleged the pipe was the HOA's responsibility as it was in the inner walls and not 'open and unobstructed' as defined by Petitioner. The ALJ determined the pipe maintenance was the responsibility of the owner of Unit 263, not the HOA, based on the plain reading of Article III, Section 3.07.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • Article III, Section 3.07 (CC&Rs)

Analytics Highlights

Topics: HOA Responsibility, CC&Rs Interpretation, Pipe Maintenance, Water Damage Reimbursement, Owner Responsibility
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • Article III, Section 3.07 (CC&Rs)

Video Overview

Audio Overview

Decision Documents

23F-H010-REL Decision – 1020439.pdf

Uploaded 2026-01-23T17:51:22 (91.6 KB)

This summary details the hearing proceedings, key arguments, and final decision in the matter of *Richard Busack v. The Cliffs Condominium Association* (docket number 23FH010REL), heard on December 7, 2022, before Administrative Law Judge Tammy L. Eigenheer.

Key Facts and Issues

Petitioner Richard Busack filed a petition against The Cliffs Condominium Association (HOA), alleging the HOA violated Article III, Section 3.07 of the Declaration of Covenants, Conditions, and Restrictions (CC&Rs). The dispute stemmed from a severe water leak that occurred on or about June 1, 2022, damaging Petitioner's unit (Unit 163).

The leak originated from a broken pipe within the inner walls, specifically the toilet line coming from Unit 263. The water was identified as CAT 3 water (toilet water/scat water), leading to extensive water damage and mold in Petitioner’s kitchen, requiring cabinet replacement and mold remediation.

The HOA subsequently repaired the broken pipe and replaced the drywall. However, the HOA denied Petitioner’s claim for reimbursement for mold remediation and kitchen restoration, which totaled $8,541.00.

Key Arguments and Legal Points

The central legal issue was the interpretation and application of Article III, Section 3.07 of the CC&Rs, which governs "Maintenance By Owners".

  1. Petitioner’s Position: Petitioner argued that because the pipe broke in the "inner walls" and was not "unobstructed," it was outside his responsibility and, therefore, the HOA’s. He argued that he was only responsible if the leak originated inside his unit. Petitioner also noted that the HOA delayed response for 40 days and canceled agreed-upon cabinet repairs.
  2. Respondent’s Position (HOA): The HOA argued that based on Section 3.07, the maintenance responsibility lay with the unit owner (specifically Unit 263's owner) because the pipe was located between the point it entered Unit 263 and where it joined lines serving other units. The HOA asserted that Petitioner provided no evidence (official reports) proving mold damage or that the HOA acted negligently. They repaired the drywall only because bearing walls are considered Common Elements under a separate section (3.05).

Outcome and Final Decision

The Administrative Law Judge (ALJ) issued an Administrative Law Judge Decision on December 16, 2022.

  1. Interpretation of CC&Rs: The ALJ found Petitioner’s reading of Article III, Section 3.07 to be erroneous. The section clearly states that the owner is responsible for the maintenance, repair, and replacement of all utility lines "serving an Owner’s respective Condominium Unit between the points at which the same enter the respective Condominium Unit and the points where the same joins the utility lines serving other Condominium Units".
  2. Pipe Responsibility: The ALJ concluded that the maintenance of the leaking pipe, which Petitioner acknowledged was between the point it entered Unit 263 and where it joined the utility lines serving other units, was the responsibility of the owner of Unit 263.
  3. "Open and Unobstructed Condition": The ALJ clarified that the phrase "open and unobstructed condition" refers to the pipe itself not being *clogged*, not whether the pipe is accessible (i.e., not inside a wall).
  4. Order: The Petitioner failed to prove by a preponderance of the evidence that the HOA violated Article III, Section 3.07. Therefore, the Petitioner’s petition was denied.

Questions

Question

Is the HOA automatically responsible for a pipe leak just because the pipe is located inside the walls between units?

Short Answer

No. Governing documents may assign responsibility to the specific unit owner served by that pipe, even if the pipe runs outside the unit's boundaries.

Detailed Answer

Even if a pipe is physically located outside a specific unit (e.g., between the unit and the main line), the CC&Rs may dictate that the owner is responsible for the utility lines serving their unit up to the point where they join the common utility lines. Location inside a wall does not automatically make it an HOA common element.

Alj Quote

Rather, unit owners are responsible for the maintenance of all sewer and drainage pipes 'between the points at which the [pipes] enter [the unit] and the points where the [pipe] joins the utility lines serving other Condominium Units.'

Legal Basis

CC&Rs Interpretation

Topic Tags

  • maintenance responsibility
  • plumbing
  • common elements

Question

What does 'open and unobstructed condition' mean regarding pipe maintenance in CC&Rs?

Short Answer

It generally means the pipe must be kept free of clogs, not that the pipe must be physically visible or outside of a wall.

Detailed Answer

Homeowners often misinterpret this phrase to mean that if a pipe is enclosed in a wall, it is not 'open' and therefore not their responsibility. However, the ALJ ruled that this language refers to the flow within the pipe—specifically, that the owner must ensure the pipe does not remain clogged.

Alj Quote

Rather than referencing that access to the pipe had to be open and unobstructed, i.e., not inside a wall, a plain reading of 'open and unobstructed condition' means that the pipe itself must not be allowed to remain clogged.

Legal Basis

Contract Interpretation

Topic Tags

  • definitions
  • maintenance responsibility

Question

If the HOA repairs the drywall after a leak, does that mean they admit responsibility for the plumbing repair and other damages?

Short Answer

No. The HOA may repair structural elements they are responsible for (like bearing walls) without accepting liability for the leak source or personal property damage.

Detailed Answer

The HOA can perform repairs on components defined as Common Elements (such as bearing walls) without conceding that they are liable for the pipe that caused the damage or for other resulting damages like cabinetry or mold.

Alj Quote

Respondent’s counsel indicated that the HOA repaired the drywall because Article III, Section 3.05 defines bearing walls as Common Elements.

Legal Basis

CC&Rs / Negligence

Topic Tags

  • repairs
  • liability
  • common elements

Question

Who has the burden of proof in a hearing against an HOA?

Short Answer

The homeowner (Petitioner) has the burden to prove the HOA violated the governing documents.

Detailed Answer

The homeowner must provide evidence that outweighs the evidence offered by the HOA. Simply alleging a violation is not enough; the petitioner must prove it by a 'preponderance of the evidence.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs. A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • procedural requirements
  • burden of proof

Question

What evidence is required to win a dispute regarding water damage repairs?

Short Answer

The homeowner must prove the HOA violated a specific provision of the CC&Rs or acted negligently.

Detailed Answer

Even if a homeowner suffers significant damage, they cannot recover costs from the HOA unless they can establish that the HOA had a legal duty to prevent or repair the specific cause of the damage under the CC&Rs.

Alj Quote

Petitioner failed to establish that Respondent violated Article III, Section 3.07 of the CC&Rs. … IT IS ORDERED that Petitioner’s petition is denied.

Legal Basis

CC&Rs Violation

Topic Tags

  • evidence
  • damages

Question

Can I hold the HOA responsible for a leak originating from a neighbor's unit?

Short Answer

Generally, no, unless the HOA is responsible for that specific pipe section under the CC&Rs.

Detailed Answer

If the leak comes from a pipe serving a specific unit (even if located outside that unit), maintenance responsibility often falls on that unit owner, not the HOA. The ALJ found that maintenance of such a pipe was the responsibility of the unit owner it served.

Alj Quote

Therefore, maintenance of the leaking pipe… was the responsibility of the owner of Unit 263.

Legal Basis

CC&Rs / Liability

Topic Tags

  • neighbor disputes
  • liability
  • plumbing

Case

Docket No
23F-H010-REL
Case Title
Richard Busack v. The Cliffs Condominium Association
Decision Date
2022-12-16
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Is the HOA automatically responsible for a pipe leak just because the pipe is located inside the walls between units?

Short Answer

No. Governing documents may assign responsibility to the specific unit owner served by that pipe, even if the pipe runs outside the unit's boundaries.

Detailed Answer

Even if a pipe is physically located outside a specific unit (e.g., between the unit and the main line), the CC&Rs may dictate that the owner is responsible for the utility lines serving their unit up to the point where they join the common utility lines. Location inside a wall does not automatically make it an HOA common element.

Alj Quote

Rather, unit owners are responsible for the maintenance of all sewer and drainage pipes 'between the points at which the [pipes] enter [the unit] and the points where the [pipe] joins the utility lines serving other Condominium Units.'

Legal Basis

CC&Rs Interpretation

Topic Tags

  • maintenance responsibility
  • plumbing
  • common elements

Question

What does 'open and unobstructed condition' mean regarding pipe maintenance in CC&Rs?

Short Answer

It generally means the pipe must be kept free of clogs, not that the pipe must be physically visible or outside of a wall.

Detailed Answer

Homeowners often misinterpret this phrase to mean that if a pipe is enclosed in a wall, it is not 'open' and therefore not their responsibility. However, the ALJ ruled that this language refers to the flow within the pipe—specifically, that the owner must ensure the pipe does not remain clogged.

Alj Quote

Rather than referencing that access to the pipe had to be open and unobstructed, i.e., not inside a wall, a plain reading of 'open and unobstructed condition' means that the pipe itself must not be allowed to remain clogged.

Legal Basis

Contract Interpretation

Topic Tags

  • definitions
  • maintenance responsibility

Question

If the HOA repairs the drywall after a leak, does that mean they admit responsibility for the plumbing repair and other damages?

Short Answer

No. The HOA may repair structural elements they are responsible for (like bearing walls) without accepting liability for the leak source or personal property damage.

Detailed Answer

The HOA can perform repairs on components defined as Common Elements (such as bearing walls) without conceding that they are liable for the pipe that caused the damage or for other resulting damages like cabinetry or mold.

Alj Quote

Respondent’s counsel indicated that the HOA repaired the drywall because Article III, Section 3.05 defines bearing walls as Common Elements.

Legal Basis

CC&Rs / Negligence

Topic Tags

  • repairs
  • liability
  • common elements

Question

Who has the burden of proof in a hearing against an HOA?

Short Answer

The homeowner (Petitioner) has the burden to prove the HOA violated the governing documents.

Detailed Answer

The homeowner must provide evidence that outweighs the evidence offered by the HOA. Simply alleging a violation is not enough; the petitioner must prove it by a 'preponderance of the evidence.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs. A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

  • procedural requirements
  • burden of proof

Question

What evidence is required to win a dispute regarding water damage repairs?

Short Answer

The homeowner must prove the HOA violated a specific provision of the CC&Rs or acted negligently.

Detailed Answer

Even if a homeowner suffers significant damage, they cannot recover costs from the HOA unless they can establish that the HOA had a legal duty to prevent or repair the specific cause of the damage under the CC&Rs.

Alj Quote

Petitioner failed to establish that Respondent violated Article III, Section 3.07 of the CC&Rs. … IT IS ORDERED that Petitioner’s petition is denied.

Legal Basis

CC&Rs Violation

Topic Tags

  • evidence
  • damages

Question

Can I hold the HOA responsible for a leak originating from a neighbor's unit?

Short Answer

Generally, no, unless the HOA is responsible for that specific pipe section under the CC&Rs.

Detailed Answer

If the leak comes from a pipe serving a specific unit (even if located outside that unit), maintenance responsibility often falls on that unit owner, not the HOA. The ALJ found that maintenance of such a pipe was the responsibility of the unit owner it served.

Alj Quote

Therefore, maintenance of the leaking pipe… was the responsibility of the owner of Unit 263.

Legal Basis

CC&Rs / Liability

Topic Tags

  • neighbor disputes
  • liability
  • plumbing

Case

Docket No
23F-H010-REL
Case Title
Richard Busack v. The Cliffs Condominium Association
Decision Date
2022-12-16
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Richard Busack (petitioner)
  • Theresa Jensen (witness)
    Witness for Petitioner

Respondent Side

  • Melissa Doolan (respondent attorney)
    The Travis Law Firm, PLC
    Appeared for Respondent The Cliffs Condominium Association
  • Mr. Petri (HOA/management representative)
    Mentioned by Petitioner regarding dispute over damage repair
  • Mr. Honen (HOA/management representative)
    Involved in cabinet repair communication and cancellation (also referred to as Mr. Horn)
  • Miss Cohen (HOA/management representative)
    Handled initial communications and forwarded information to the Board (also referred to as Miss Cohan)

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Also referred to as Tammy Igner
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (legal secretary)
    Transmitted decision
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • Jill Bird (observer)
  • John (observer)
  • Michael (observer)
  • Anthony Zeller (contractor associate)
    Overseeing the repair plumber

Amy Hillburn v. Stetson Valley Owners Association

Posted on by

Case Summary

Case ID 23F-H008-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-11-17
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove a violation of A.R.S. § 33-1804(A) because the Architectural Review Committee (ARC) had ceased holding regularly scheduled meetings since March 2022, thereby negating the statutory requirement that such committee meetings must be open to members.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Amy Hilburn Counsel —
Respondent Stetson Valley Owners Association Counsel Melissa Doolan, Esq.

Alleged Violations

A.R.S. § 33-1804 and Article 6.2 of the Bylaws

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove a violation of A.R.S. § 33-1804(A) because the Architectural Review Committee (ARC) had ceased holding regularly scheduled meetings since March 2022, thereby negating the statutory requirement that such committee meetings must be open to members.

Why this result: The ARC successfully argued that A.R.S. § 33-1804(A) only mandates open access for 'any regularly scheduled committee meetings.' Since they transitioned to using an online portal on an irregular schedule, they were no longer holding 'regularly scheduled meetings,' meaning the statute did not require them to be open.

Key Issues & Findings

Failure of Architectural Review Committee (ARC) to hold open meetings where members can comment prior to a vote.

Petitioner alleged the Architectural Review Committee (ARC) was violating A.R.S. § 33-1804 (open meetings statute) by failing to hold open meetings, particularly after the ARC began processing requests using an online portal which allows for discussion and voting among members outside of noticed meetings. Historically, the ARC held regularly scheduled meetings on the first Tuesday of every month until March 2022. The ALJ ultimately ruled that since March 2022, the ARC was not holding 'regularly scheduled committee meetings' as defined by the statute.

Orders: Petitioner’s Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804(A)
  • A.R.S. § 32-2199
  • Article 6.2 of the Bylaws
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 41-1092.09
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04

Analytics Highlights

Topics: HOA Open Meeting Law, Architectural Review Committee (ARC), Regularly Scheduled Meetings, Online Portal, Statutory Interpretation
Additional Citations:

  • A.R.S. § 33-1804(A)
  • Article 6.2 of the Bylaws

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Video Overview

Audio Overview

Decision Documents

23F-H008-REL Decision – 1005178.pdf

Uploaded 2026-04-27T09:47:07 (48.8 KB)

23F-H008-REL Decision – 1005178.pdf

Uploaded 2026-01-23T17:51:08 (48.8 KB)

23F-H008-REL Decision – 1013302.pdf

Uploaded 2026-01-23T17:51:12 (110.8 KB)

The hearing in the matter of *Amy Hilburn v. Stetson Valley Owners Association* (No. 23F-H008-REL) was held before Administrative Law Judge (ALJ) Sondra J. Vanella at the Office of Administrative Hearings on November 9, 2022.

Key Facts and Main Issue

The Petitioner, Amy Hilburn, filed a dispute petition on or about August 19, 2022, alleging that the Stetson Valley Owners Association (HOA) violated Arizona Revised Statute (A.R.S.) § 33-1804 and Article 6.2 of its Bylaws. The sole issue determined at the hearing was whether the Association's Architectural Review Committee (ARC) was failing to hold open meetings where homeowner members could comment prior to a vote of the committee.

The core legal point centered on A.R.S. § 33-1804(A), which mandates that "all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings" must be open to all members, who are permitted to attend and speak.

Petitioner’s Arguments

Petitioner Hilburn argued that the ARC previously held regularly scheduled meetings on the first Tuesday of every month from 2011 until February 2022, often without proper notice. Petitioner provided evidence, including old Meeting Minutes (2017–2021) and the Respondent's Paint Architectural Change Request Form, which stated the ARC reviewed applications on the first Tuesday of every month, demonstrating the regularity of the meetings.

Petitioner acknowledged that the ARC ceased holding traditional open meetings after July 2022, choosing instead to process applications through an online portal. However, she argued that the ability for ARC members to exchange comments and make decisions via this portal constitutes "discussion" and a form of regularly occurring meeting that should be open to the community, consistent with the legislature's intent for transparency.

Respondent’s Arguments

The Respondent, represented by Melissa Doolan, Esq., contended that the Association was following state law because the ARC does not currently hold regularly scheduled meetings. Testimony from Community Manager Danielle Miglio and ARC Member Ann Renee Wilsey established that since March 2022, the ARC moved to processing requests solely through an online portal to provide faster homeowner turnaround.

Respondent witnesses testified that under the portal system, ARC members are notified via email, but they view the request documentation and vote on their own time; there is no regularly scheduled time for them to convene, comment, or vote. Because the meetings are not "regularly scheduled," the open meeting requirement of A.R.S. § 33-1804(A) does not apply. The Respondent noted that the few in-person or virtual meetings that occurred in 2022 (April, June, and July) were noticed to the members.

Final Decision and Outcome

The ALJ found that while the ARC had held regularly scheduled meetings prior to utilizing the online portal system, the credible evidence established that since March 2022, the ARC has not been holding regularly scheduled meetings.

The ALJ concluded that the Petitioner failed to sustain her burden of proof by a preponderance of the evidence to establish a violation of A.R.S. § 33-1804(A) or Article 6.2 of the Bylaws, noting that the statute does not require the ARC to hold regularly scheduled meetings.

The ALJ ORDERED that Petitioner’s Petition is dismissed.

{ “case”: { “docket_no”: “23F-H008-REL”, “case_title”: “Amy Hilburn v. Stetson Valley Owners Association”, “decision_date”: “2022-11-17”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does my HOA’s architectural committee have to hold open meetings for every decision?”, “short_answer”: “No, only “regularly scheduled” committee meetings are required to be open to members.”, “detailed_answer”: “The law specifically mandates that meetings of the members, the board of directors, and ‘regularly scheduled’ committee meetings be open. If a committee does not maintain a regular schedule, the open meeting requirement may not apply.”, “alj_quote”: “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Committees”, “Homeowner Rights” ] }, { “question”: “Can an HOA committee conduct business through an online portal instead of meeting in person?”, “short_answer”: “Yes, utilizing an online portal to process requests is permitted and may result in the activity not being classified as a “regularly scheduled meeting.””, “detailed_answer”: “The ALJ found that moving committee business to an online portal where members review and vote on their own time effectively meant they were not holding ‘regularly scheduled meetings,’ thus bypassing the open meeting requirement.”, “alj_quote”: “Ms. Miglio testified that since August 2022, the ARC has not held regularly scheduled meetings because the ARC conducts its business through an online portal.”, “legal_basis”: “Fact Finding 3(e)”, “topic_tags”: [ “Digital Tools”, “Procedure”, “Committees” ] }, { “question”: “Is an HOA committee required by law to hold regularly scheduled meetings?”, “short_answer”: “No, there is generally no statutory requirement that committees must hold regularly scheduled meetings.”, “detailed_answer”: “The decision explicitly states that nothing in the cited statutes or bylaws required the Architectural Review Committee to adhere to a regular meeting schedule.”, “alj_quote”: “…nothing in the provisions cited by Petitioner require the ARC to hold regularly scheduled meetings.”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “HOA Obligations”, “Committees”, “Scheduling” ] }, { “question”: “Do committee members have to discuss and vote on requests at the same time?”, “short_answer”: “No, committee members can review requests and vote asynchronously on their own time.”, “detailed_answer”: “The ALJ accepted testimony that committee members could view requests and vote individually whenever they chose, rather than convening at a specific time.”, “alj_quote”: “Ms. Wilsey testified that there is no regularly scheduled time to look at the requests, comment, and/or vote.”, “legal_basis”: “Fact Finding 3(h)”, “topic_tags”: [ “Voting”, “Procedure”, “Committees” ] }, { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “This legal standard means the homeowner must convince the judge that their claim is ‘more probably true than not.’ It refers to the convincing force of the evidence rather than the amount.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence… 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”: “Conclusion of Law 2-3”, “topic_tags”: [ “Legal Standards”, “Burden of Proof”, “Dispute Process” ] }, { “question”: “Can committee members comment to each other online without it being an open meeting?”, “short_answer”: “Yes, the ability to comment via a portal does not necessarily create a “meeting” if done asynchronously.”, “detailed_answer”: “The decision noted that members could comment to each other through the portal, but because there was no regularly scheduled time for this interaction, it did not trigger the open meeting statute.”, “alj_quote”: “Members of the ARC have the ability to comment to each other through the portal and vote on the requests through the portal.”, “legal_basis”: “Fact Finding 3(g)”, “topic_tags”: [ “Communication”, “Committees”, “Open Meetings” ] }, { “question”: “If an HOA committee previously held regular meetings, are they forced to continue doing so?”, “short_answer”: “No, past practices do not mandate future behavior if the committee changes its process.”, “detailed_answer”: “Although the committee had a history of regular monthly meetings from 2011 to 2022, the ALJ ruled based on their current practice of using a portal, finding no violation because they were not currently meeting regularly.”, “alj_quote”: “The credible and probative evidence of record established that… prior to the ARC utilizing the online portal system, the ARC was holding regularly scheduled meetings. However, since March 2022, the ARC has not been holding regularly scheduled meetings…”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “Precedent”, “Procedure”, “Committees” ] } ] }

{ “case”: { “docket_no”: “23F-H008-REL”, “case_title”: “Amy Hilburn v. Stetson Valley Owners Association”, “decision_date”: “2022-11-17”, “alj_name”: “Sondra J. Vanella”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does my HOA’s architectural committee have to hold open meetings for every decision?”, “short_answer”: “No, only “regularly scheduled” committee meetings are required to be open to members.”, “detailed_answer”: “The law specifically mandates that meetings of the members, the board of directors, and ‘regularly scheduled’ committee meetings be open. If a committee does not maintain a regular schedule, the open meeting requirement may not apply.”, “alj_quote”: “Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”, “legal_basis”: “A.R.S. § 33-1804(A)”, “topic_tags”: [ “Open Meetings”, “Committees”, “Homeowner Rights” ] }, { “question”: “Can an HOA committee conduct business through an online portal instead of meeting in person?”, “short_answer”: “Yes, utilizing an online portal to process requests is permitted and may result in the activity not being classified as a “regularly scheduled meeting.””, “detailed_answer”: “The ALJ found that moving committee business to an online portal where members review and vote on their own time effectively meant they were not holding ‘regularly scheduled meetings,’ thus bypassing the open meeting requirement.”, “alj_quote”: “Ms. Miglio testified that since August 2022, the ARC has not held regularly scheduled meetings because the ARC conducts its business through an online portal.”, “legal_basis”: “Fact Finding 3(e)”, “topic_tags”: [ “Digital Tools”, “Procedure”, “Committees” ] }, { “question”: “Is an HOA committee required by law to hold regularly scheduled meetings?”, “short_answer”: “No, there is generally no statutory requirement that committees must hold regularly scheduled meetings.”, “detailed_answer”: “The decision explicitly states that nothing in the cited statutes or bylaws required the Architectural Review Committee to adhere to a regular meeting schedule.”, “alj_quote”: “…nothing in the provisions cited by Petitioner require the ARC to hold regularly scheduled meetings.”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “HOA Obligations”, “Committees”, “Scheduling” ] }, { “question”: “Do committee members have to discuss and vote on requests at the same time?”, “short_answer”: “No, committee members can review requests and vote asynchronously on their own time.”, “detailed_answer”: “The ALJ accepted testimony that committee members could view requests and vote individually whenever they chose, rather than convening at a specific time.”, “alj_quote”: “Ms. Wilsey testified that there is no regularly scheduled time to look at the requests, comment, and/or vote.”, “legal_basis”: “Fact Finding 3(h)”, “topic_tags”: [ “Voting”, “Procedure”, “Committees” ] }, { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “This legal standard means the homeowner must convince the judge that their claim is ‘more probably true than not.’ It refers to the convincing force of the evidence rather than the amount.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence… 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”: “Conclusion of Law 2-3”, “topic_tags”: [ “Legal Standards”, “Burden of Proof”, “Dispute Process” ] }, { “question”: “Can committee members comment to each other online without it being an open meeting?”, “short_answer”: “Yes, the ability to comment via a portal does not necessarily create a “meeting” if done asynchronously.”, “detailed_answer”: “The decision noted that members could comment to each other through the portal, but because there was no regularly scheduled time for this interaction, it did not trigger the open meeting statute.”, “alj_quote”: “Members of the ARC have the ability to comment to each other through the portal and vote on the requests through the portal.”, “legal_basis”: “Fact Finding 3(g)”, “topic_tags”: [ “Communication”, “Committees”, “Open Meetings” ] }, { “question”: “If an HOA committee previously held regular meetings, are they forced to continue doing so?”, “short_answer”: “No, past practices do not mandate future behavior if the committee changes its process.”, “detailed_answer”: “Although the committee had a history of regular monthly meetings from 2011 to 2022, the ALJ ruled based on their current practice of using a portal, finding no violation because they were not currently meeting regularly.”, “alj_quote”: “The credible and probative evidence of record established that… prior to the ARC utilizing the online portal system, the ARC was holding regularly scheduled meetings. However, since March 2022, the ARC has not been holding regularly scheduled meetings…”, “legal_basis”: “Conclusion of Law 6”, “topic_tags”: [ “Precedent”, “Procedure”, “Committees” ] } ] }

Case Participants

Petitioner Side

  • Amy Hilburn (petitioner)
    Stetson Valley Owners Association member
    Appeared pro se; former Board President

Respondent Side

  • Melissa Doolan (HOA attorney)
    Travis Law Firm
  • Danielle Miglio (community manager, witness)
    Oasis Community Management
  • Ann Renee Wilsey (ARC member, witness)
    Stetson Valley Owners Association ARC
  • Nichollet Widner (board member, witness)
    Stetson Valley Owners Association Board President
  • Tom Young (board member, observer)
    Stetson Valley Owners Association Board
  • Pam Weller (ARC member, observer)
    Stetson Valley Owners Association ARC
  • Omar Chavez (board member, observer)
    Stetson Valley Owners Association Board
  • Miranda Alvarez (legal secretary)
    Travis Law Firm
    Transmitting staff
  • Elizabeth Franco (community manager staff)
    Oasis Community Management
    Referenced in Petitioner's Exhibit 6 testimony
  • Benjamin Butler (ARC chairperson)
    Stetson Valley Owners Association ARC
    Referenced in Petitioner's Exhibit 6 testimony

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Louis Dettorre (commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
  • vnunez (ADRE staff)
    ADRE
  • djones (ADRE staff)
    ADRE
  • labril (ADRE staff)
    ADRE
  • c. serrano (OAH staff)
    OAH
    Transmitting staff

Other Participants

  • Amanda McGawan (observer)
  • Lisa Vargas (observer)
  • Nick Jackson (observer)

Elieen Ahearn and Robert Barfield v. High Lonesome Ranch Estates

Posted on by

Case Summary

Case ID 23F-H002-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-11-17
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge upheld the Petition, finding the Respondent HOA violated its Nominating and Elections Committee Mission and Procedures by refusing to count otherwise valid couriered ballots and subsequent in-person attempts to vote at the July 5, 2022 Special Election. Petitioners were deemed the prevailing party and awarded the $500 filing fee refund, and the HOA was assessed a $500 civil penalty.
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Eileen Ahearn Counsel —
Respondent High Lonesome Ranch Estates Property Owners Association Counsel Jason Smith, Esq.

Alleged Violations

HLR CCR 6.2.1 and HLR Association Rules: Nominating and Election Committee Mission and Procedures (approved 19 July 2021)

Outcome Summary

The Administrative Law Judge upheld the Petition, finding the Respondent HOA violated its Nominating and Elections Committee Mission and Procedures by refusing to count otherwise valid couriered ballots and subsequent in-person attempts to vote at the July 5, 2022 Special Election. Petitioners were deemed the prevailing party and awarded the $500 filing fee refund, and the HOA was assessed a $500 civil penalty.

Key Issues & Findings

Denial of the right to vote in Removal/Recall Special Election

Petitioners alleged they were denied the right to vote in the July 5, 2022 Removal/Recall Special Election after their initial ballots (couriered prior to the meeting) were rejected for lacking a postmark, and their subsequent attempts to cast new ballots in person were rejected for reasons including 'double voting' or being 'too late.' The ALJ found the HOA violated its established election procedures.

Orders: The Petition was upheld, and Petitioners were deemed the prevailing party. Respondent was ordered to pay Petitioners their $500.00 filing fee and pay a civil penalty of $500.00 to the Department.

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

Disposition: petitioner_win

Cited:

  • HLR CCR 6.2.1
  • Nominating and Elections Committee Mission and Procedures

Analytics Highlights

Topics: HOA Dispute, Election Violation, Voting Rights, CCNR, Recall Election, Filing Fee Refund, Civil Penalty
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • HLR CCR 6.2.1
  • Nominating and Elections Committee Mission and Procedures

Related election workflow tool

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Video Overview

Audio Overview

Decision Documents

23F-H002-REL Decision – 1009442.pdf

Uploaded 2026-04-24T11:55:32 (60.1 KB)

23F-H002-REL Decision – 1013289.pdf

Uploaded 2026-04-24T11:55:35 (127.8 KB)

23F-H002-REL Decision – 996298.pdf

Uploaded 2026-04-24T11:55:39 (54.8 KB)

23F-H002-REL Decision – 996319.pdf

Uploaded 2026-04-24T11:55:43 (7.5 KB)

23F-H002-REL Decision – 1009442.pdf

Uploaded 2026-01-23T17:49:47 (60.1 KB)

23F-H002-REL Decision – 1013289.pdf

Uploaded 2026-01-23T17:49:50 (127.8 KB)

23F-H002-REL Decision – 996298.pdf

Uploaded 2026-01-23T17:49:54 (54.8 KB)

23F-H002-REL Decision – 996319.pdf

Uploaded 2026-01-23T17:49:58 (7.5 KB)

The hearing was conducted before the Office of Administrative Hearings (OAH) concerning a Homeowners Association (HOA) Dispute Petition filed by Eileen Ahearn and Robert Barfield (Petitioners) against the High Lonesome Ranch Estates Property Owners Association (Respondent). The hearing took place on November 8, 2022.

Key Facts and Main Issues

The Petitioners alleged a violation of community documents, specifically HLR CCR 6.2.1 and HLR Association Rules: Nominating and Election Committee Mission and Procedures, stemming from the denial of their right to vote at the July 5, 2022, Removal/Recall Special Election. Petitioners were only allowed to present a single issue, having paid the corresponding $500.00 filing fee.

The factual dispute centered on 19 ballots without post marks that were not considered in the election. Petitioners and several other homeowners had completed their ballots prior to the meeting and delivered them to the ballot box custodian, Claire Peachey, who placed them in the secure box. Petitioners testified this was accepted practice and the use of couriers for ballots was approved in the past.

When Petitioners learned these ballots would not be counted due to the lack of a post mark, they attempted to fill out new ballots in person at the meeting. These new ballots were rejected for various reasons, including "double voting" and being "too late" because the voting was declared "closed". Evidence showed that all homeowners whose ballots were rejected had signed the recall petition that prompted the election.

Key Arguments

  • Petitioners’ Argument: The board members running the election—who were subject to the recall—arbitrarily denied votes using unwritten or newly interpreted rules (e.g., requiring a US postmark). They argued the denial violated their right to vote (one vote per lot) and failed to follow the procedure documents.
  • Respondent’s Argument: Respondent argued that the cited CCNR 6.2.1 was irrelevant as it only established voting rights (one vote per lot), not voting processes. They maintained that the Petitioners failed to submit their ballots properly, either by mail (with postmark) or in person before the close of voting. Respondent also objected that Petitioners relied on documents (like draft procedures) that were not cited in the initial petition.

Final Decision and Legal Points

The Administrative Law Judge (ALJ), Sondra J. Vanella, issued the Decision on November 17, 2022.

The ALJ found that Petitioners established by a preponderance of the evidence that the Respondent violated its Nominating and Elections Committee Mission and Procedures.

The ALJ concluded that the Elections Committee Chair (who was subject to the recall) refused to count ballots that could not be considered ineligible under the listed criteria (such as illegibility or lack of good standing). Furthermore, the Respondent failed to abide by its own procedure stating that “Every effort will be made to count as many votes as possible assuring a fair, open and honest election”.

Outcome

The Petition was upheld. Petitioners were deemed the prevailing party.

The ALJ ordered the following relief:

  1. Respondent must pay Petitioners their $500.00 filing fee.
  2. Respondent must pay a civil penalty in the amount of $500.00 to the Arizona Department of Real Estate.

Questions

Question

Can my HOA refuse to count a ballot simply because it was delivered by a courier or neighbor rather than mailed?

Short Answer

No. If the HOA's procedures do not explicitly forbid couriers and it has been past practice, they cannot reject ballots solely for lacking a postmark.

Detailed Answer

The ALJ ruled that the HOA violated its procedures by rejecting ballots placed in the ballot box prior to the election (via courier) simply because they lacked postmarks. The judge noted that the custodian of the box did not believe it was a problem and there was no reason for homeowners to believe they couldn't do so.

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to count Petitioners’ and other homeowners’ ballots that had been placed in the ballot box prior to the election… There was also no reason for Petitioners or the other homeowners to believe that they could not place their ballots in the ballot box prior to the election and have those ballots counted.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • ballots
  • couriers
  • voting rights

Question

What are valid reasons for an HOA to consider a ballot ineligible or spoiled?

Short Answer

Valid reasons typically include incorrect vote counts, unconfirmed ownership, illegibility, unsigned envelopes, or lack of good standing.

Detailed Answer

The decision outlines specific criteria for invalidating ballots found in the HOA's procedures. Arbitrary reasons not listed in the governing documents (like lack of a postmark when not required) are not valid grounds for rejection.

Alj Quote

Reasons a ballot may not be valid include incorrect number of votes, lot ownership cannot be confirmed, ballot is illegible, ballot envelope is not signed, or a member is not in good standing.

Legal Basis

Association Election Procedures

Topic Tags

  • elections
  • ballot validity
  • rules

Question

Is the HOA obligated to try to count votes rather than looking for reasons to disqualify them?

Short Answer

Yes. If the election procedures state that every effort will be made to count votes to ensure fairness, the HOA must adhere to that standard.

Detailed Answer

The ALJ cited the HOA's own mission statement which promised to make every effort to count votes. Rejecting ballots for minor procedural issues (like lacking a postmark) when the voters are present and eligible violates this obligation.

Alj Quote

Respondent’s Nominating and Elections Committee Mission and Procedures state that 'every effort will be made to count as many votes as possible assuring a fair, open and honest election.' This was not the case at the July 5, 2022 Special Election.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • fairness
  • HOA obligations

Question

If my mailed ballot is rejected, can the HOA prevent me from voting in person at the meeting?

Short Answer

No. If you are present at the meeting and your absentee ballot is rejected, the HOA should allow you to cast a replacement ballot.

Detailed Answer

The ALJ found a violation when the HOA refused to accept in-person ballots from homeowners whose courier ballots were rejected. The decision noted that these ballots were not ineligible for any valid reason (like lack of standing).

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to accept in-person ballots at the meeting, notwithstanding that those ballots could not be considered ineligible ballots.

Legal Basis

Voting Rights / Election Procedures

Topic Tags

  • in-person voting
  • ballot rejection
  • elections

Question

Can the HOA enforce a voting deadline strictly against some owners but not others?

Short Answer

No. It is a violation to tell some owners they are 'too late' while allowing others to vote after the deadline.

Detailed Answer

The decision noted that while the Petitioners were told voting was closed at 6:00 PM and they were 'too late,' another homeowner was allowed to place a ballot in the box at 6:15 PM.

Alj Quote

Homeowner Jeffrey Knox personally handed in his ballot at the meeting by placing it in the ballot box at approximately 6:15 p.m., notwithstanding that voting supposedly closed at 6:00 p.m.

Legal Basis

Fair Election Practices

Topic Tags

  • discrimination
  • deadlines
  • fairness

Question

What penalties can an HOA face if they are found to have violated election rules?

Short Answer

The HOA may be ordered to refund the homeowner's filing fee and pay a civil penalty to the Department of Real Estate.

Detailed Answer

In this case, the ALJ ordered the HOA to pay $500 to the petitioners (reimbursement) and a $500 civil penalty to the state.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00… IT IS FURTHER ORDERED that… Respondent shall pay to the Department a civil penalty in the amount of $500.00

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • penalties
  • fines
  • reimbursement

Question

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

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Detailed Answer

The decision defines the evidentiary standard required for the petitioners to win their case.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent committed the alleged violation(s) by a preponderance of the evidence… '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

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • hearing process

Case

Docket No
23F-H002-REL
Case Title
Eileen Ahearn and Robert Barfield v. High Lonesome Ranch Estates Property Owners Association
Decision Date
2022-11-17
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA refuse to count a ballot simply because it was delivered by a courier or neighbor rather than mailed?

Short Answer

No. If the HOA's procedures do not explicitly forbid couriers and it has been past practice, they cannot reject ballots solely for lacking a postmark.

Detailed Answer

The ALJ ruled that the HOA violated its procedures by rejecting ballots placed in the ballot box prior to the election (via courier) simply because they lacked postmarks. The judge noted that the custodian of the box did not believe it was a problem and there was no reason for homeowners to believe they couldn't do so.

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to count Petitioners’ and other homeowners’ ballots that had been placed in the ballot box prior to the election… There was also no reason for Petitioners or the other homeowners to believe that they could not place their ballots in the ballot box prior to the election and have those ballots counted.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • ballots
  • couriers
  • voting rights

Question

What are valid reasons for an HOA to consider a ballot ineligible or spoiled?

Short Answer

Valid reasons typically include incorrect vote counts, unconfirmed ownership, illegibility, unsigned envelopes, or lack of good standing.

Detailed Answer

The decision outlines specific criteria for invalidating ballots found in the HOA's procedures. Arbitrary reasons not listed in the governing documents (like lack of a postmark when not required) are not valid grounds for rejection.

Alj Quote

Reasons a ballot may not be valid include incorrect number of votes, lot ownership cannot be confirmed, ballot is illegible, ballot envelope is not signed, or a member is not in good standing.

Legal Basis

Association Election Procedures

Topic Tags

  • elections
  • ballot validity
  • rules

Question

Is the HOA obligated to try to count votes rather than looking for reasons to disqualify them?

Short Answer

Yes. If the election procedures state that every effort will be made to count votes to ensure fairness, the HOA must adhere to that standard.

Detailed Answer

The ALJ cited the HOA's own mission statement which promised to make every effort to count votes. Rejecting ballots for minor procedural issues (like lacking a postmark) when the voters are present and eligible violates this obligation.

Alj Quote

Respondent’s Nominating and Elections Committee Mission and Procedures state that 'every effort will be made to count as many votes as possible assuring a fair, open and honest election.' This was not the case at the July 5, 2022 Special Election.

Legal Basis

Nominating and Elections Committee Mission and Procedures

Topic Tags

  • elections
  • fairness
  • HOA obligations

Question

If my mailed ballot is rejected, can the HOA prevent me from voting in person at the meeting?

Short Answer

No. If you are present at the meeting and your absentee ballot is rejected, the HOA should allow you to cast a replacement ballot.

Detailed Answer

The ALJ found a violation when the HOA refused to accept in-person ballots from homeowners whose courier ballots were rejected. The decision noted that these ballots were not ineligible for any valid reason (like lack of standing).

Alj Quote

Respondent violated its Nominating and Elections Committee Mission and Procedures when the Elections Committee Chair… refused to accept in-person ballots at the meeting, notwithstanding that those ballots could not be considered ineligible ballots.

Legal Basis

Voting Rights / Election Procedures

Topic Tags

  • in-person voting
  • ballot rejection
  • elections

Question

Can the HOA enforce a voting deadline strictly against some owners but not others?

Short Answer

No. It is a violation to tell some owners they are 'too late' while allowing others to vote after the deadline.

Detailed Answer

The decision noted that while the Petitioners were told voting was closed at 6:00 PM and they were 'too late,' another homeowner was allowed to place a ballot in the box at 6:15 PM.

Alj Quote

Homeowner Jeffrey Knox personally handed in his ballot at the meeting by placing it in the ballot box at approximately 6:15 p.m., notwithstanding that voting supposedly closed at 6:00 p.m.

Legal Basis

Fair Election Practices

Topic Tags

  • discrimination
  • deadlines
  • fairness

Question

What penalties can an HOA face if they are found to have violated election rules?

Short Answer

The HOA may be ordered to refund the homeowner's filing fee and pay a civil penalty to the Department of Real Estate.

Detailed Answer

In this case, the ALJ ordered the HOA to pay $500 to the petitioners (reimbursement) and a $500 civil penalty to the state.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioners their filing fee of $500.00… IT IS FURTHER ORDERED that… Respondent shall pay to the Department a civil penalty in the amount of $500.00

Legal Basis

A.R.S. § 32-2199

Topic Tags

  • penalties
  • fines
  • reimbursement

Question

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

Short Answer

The homeowner must prove the violation by a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Detailed Answer

The decision defines the evidentiary standard required for the petitioners to win their case.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent committed the alleged violation(s) by a preponderance of the evidence… '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

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • hearing process

Case

Docket No
23F-H002-REL
Case Title
Eileen Ahearn and Robert Barfield v. High Lonesome Ranch Estates Property Owners Association
Decision Date
2022-11-17
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Eileen Ahearn (petitioner)
  • Robert Barfield (petitioner)
  • Randy Kling (witness / former board member)
    Testified for Petitioners. Also referred to as Randy Clling/Clean.
  • Claire Peachey (witness / election committee member)
    Testified for Petitioners. Custodian of the ballot box.
  • Joyce Green (witness)
    Testified for Petitioners.
  • Jeffrey Knox (witness)
    Testified for Petitioners. Property owner who received rejected ballots.

Respondent Side

  • Jason Smith (HOA attorney)
    Smith & Wamsley PLLC
  • Nancy Sakarelli (board member)
    High Lonesome Ranch Estates Property Owners Association
    Board President; appeared virtually.
  • Corinthia Pangalinan (former board president / board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition; responded to original complaint.
  • Becky Hilgart (Election Committee Chair / board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition. Also referred to as Rebecca Kilgart/Gilgart/Elart.
  • Tommy Smith (Election Committee Volunteer / property owner)
    Involved in denying votes.
  • Wally Oliday (board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition.
  • Amanda Miller (board member)
    High Lonesome Ranch Estates Property Owners Association
    Subject of recall petition.

Neutral Parties

  • Sondra J. Vanella (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    OAH staff transmitting documents.
  • c. serrano (Administrative Staff)
    Staff transmitting documents.
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
  • djones (ADRE Staff)
    Arizona Department of Real Estate
  • labril (ADRE Staff)
    Arizona Department of Real Estate

Other Participants

  • Edna Barton (observer)
    On the line during the hearing.
  • Jill Burns (observer)
    Present in the hearing room.
  • John Kron (observer)
    Present in the hearing room.
  • Stacy (board director)
    Director mentioned in meeting agenda.
  • Deborah Bonesac (property owner)
    Referenced in testimony regarding past courier procedures.
  • Billy McFarland (board member)
    Subject of previous recall election.

Keith Jackson v. Val Vista Lakes Community Association

Posted on by

Case Summary

Case ID 23F-H006-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-11-08
Administrative Law Judge Kay A. Abramsohn
Outcome The Administrative Law Judge dismissed the Petition, finding that the Association did not violate A.R.S. § 33-1813 by rejecting both the initial recall petition (due to insufficient signatures) and the subsequent amended petition (which was barred by the one-petition-per-term rule for the same members).
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Keith Jackson Counsel —
Respondent Val Vista Lakes Community Association Counsel Eric Cook

Alleged Violations

ARS 33-1813

Outcome Summary

The Administrative Law Judge dismissed the Petition, finding that the Association did not violate A.R.S. § 33-1813 by rejecting both the initial recall petition (due to insufficient signatures) and the subsequent amended petition (which was barred by the one-petition-per-term rule for the same members).

Why this result: Petitioner failed to meet the burden of proving that the Association violated ARS § 33-1813. The second petition was barred by statute (A.R.S. § 33-1813(A)(4)(g)).

Key Issues & Findings

Improper rejection of a recall petition to remove four Board members.

Petitioner alleged the HOA improperly rejected his recall petition by misinterpreting ARS 33-1813, specifically arguing that the initial incomplete petition should not have been considered valid, thus allowing the amended petition to proceed. Respondent argued that the statute only permits one petition submission per term for the same board members (A.R.S. § 33-1813(A)(4)(g)).

Orders: Petitioner's Petition is dismissed. Petitioner bears his $500.00 filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARS 33-1813
  • ARS 33-1813(A)(4)(g)
  • ARS 33-1813(A)(4)(b)
  • ARS 33-1804
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

23F-H006-REL Decision – 1011201.pdf

Uploaded 2026-04-29T11:11:58 (113.7 KB)

23F-H006-REL Decision – 1011201.pdf

Uploaded 2026-01-23T17:50:43 (113.7 KB)

Briefing: Keith Jackson v. Val Vista Lakes Community Association (Case No. 23F-H006-REL)

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and subsequent legal decision in Case Number 23F-H006-REL, involving Petitioner Keith Jackson and Respondent Val Vista Lakes Community Association. The central conflict revolved around the proper interpretation of Arizona Revised Statutes (A.R.S.) § 33-1813, which governs the process for recalling members of a homeowner association’s board of directors.

The dispute was initiated after an initial recall petition, containing an insufficient number of signatures, was submitted to the Association’s board on July 12, 2022. A second, supplemented petition with a sufficient number of signatures was submitted on July 19, 2022. The Petitioner argued that the first submission was incomplete and therefore not a legally valid petition, meaning it should not have triggered the statute’s “one petition per term” limitation. The Respondent contended that the statute is unambiguous: once a petition is submitted, regardless of its numerical sufficiency, a second petition to recall the same board members is barred for the remainder of their terms.

The Administrative Law Judge (ALJ) ultimately ruled in favor of the Respondent. The decision concluded that the Association did not violate the statute by rejecting the first petition for having insufficient signatures. Furthermore, the ALJ found that A.R.S. § 33-1813(A)(4)(g) clearly and unequivocally prohibits submitting more than one recall petition for the same board member during a single term of office. Consequently, the second petition was statutorily barred, and the Petitioner’s case was dismissed.

Case Overview

Parties and Key Individuals

Affiliation

Keith Jackson

Petitioner

Homeowner, Val Vista Lakes

Eric Cook

Attorney for Respondent

Lewis Brisbois Bisgaad & Smith LLP

Kay A. Abramsohn

Administrative Law Judge (ALJ)

Arizona Office of Administrative Hearings

Doug Keats

Witness for Respondent; Treasurer

Val Vista Lakes Board of Directors

K. Adams

Witness for Respondent; Secretary

Val Vista Lakes Board of Directors

Andy Ball

Individual who submitted the initial petition

Friend of Petitioner, Association Member

Kirk Kowieski

Vice President of Management Company

First Service Residential (FSR)

Bill Suttell

Board President; target of recall petition

Val Vista Lakes Board of Directors

Sharon Maiden

Board Vice President; target of recall petition

Val Vista Lakes Board of Directors

Steve Nielson

Board Member; target of recall petition

Val Vista Lakes Board of Directors

Core Legal Issue

The case centered on the interpretation of A.R.S. § 33-1813, specifically the relationship between two subsections:

1. Subsection (A)(4)(b): This section establishes the signature threshold required to compel a board to call a special meeting for a recall vote. For an association with over 1,000 members, this is “at least ten percent of the votes in the association or…at least one thousand votes…whichever is less.”

2. Subsection (A)(4)(g): This section states, “A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.”

The central question before the court was whether an initial petition that fails to meet the signature threshold of (4)(b) still constitutes a formal submission that triggers the “one petition per term” limitation of (4)(g).

Chronology of Events

July 12, 2022

At a board meeting, Andy Ball submits an initial recall petition targeting four board members. The petition contains approximately 211-214 signatures, below the required threshold.

July 15, 2022

Board President Bill Suttell notifies Association members via email that the petition has been turned over to the management company, First Service Residential (FSR), for signature vetting.

July 18, 2022

The Association officially notifies its members that the initial recall petition has been rejected “for not meeting the criteria of the law.”

July 19, 2022

Kirk Kowieski of FSR informs an Association member that “a ‘new’ (amended) petition” could be submitted.

July 19, 2022

Keith Jackson submits a second, supplemented petition containing the original signatures plus additional ones, totaling over 250 signatures.

July 25, 2022

The Board of Directors votes to reject the second petition. FSR sends an email to members stating it was rejected based on A.R.S. § 33-1813(A)(4)(g).

July 30, 2022 (approx.)

Keith Jackson files a single-issue petition with the Arizona Department of Real Estate, alleging the Board improperly rejected the recall petition.

October 24, 2022

An administrative hearing is held before ALJ Kay A. Abramsohn.

November 8, 2022

The ALJ issues a final decision, ruling in favor of the Respondent and dismissing the Petitioner’s case.

Petitioner’s Position and Arguments (Keith Jackson)

Grievances Leading to Recall Effort

Mr. Jackson testified that the recall effort was initiated due to significant community dissatisfaction with the Board’s direction. The primary concerns articulated during the hearing included:

• Lack of Transparency and Accountability: A general sentiment among members that the Board was not operating openly.

• Financial Mismanagement: The Association’s financial reserves had allegedly plummeted from $3.4 million to a projected “well under a million dollars” within the year.

• Loss of Revenue: The Board terminated the Association’s largest non-dues revenue source in an executive session without member input. Members reportedly learned of this decision through the media after a wedding was cancelled.

• Toxic Workplace Environment: The community manager and several employees had reportedly quit due to micromanagement and a poor work environment created by the Board.

Legal Argument

The Petitioner’s legal argument was founded on the principle that a petition is not legally cognizable until it meets the statutory requirements for action.

• Concept of a “Valid” Petition: Jackson argued that the initial July 12 submission was an “incomplete petition” and therefore not a “valid petition” under A.R.S. § 33-1813(A)(4)(b) because it failed to meet the signature threshold.

• Triggering the Statute: He contended that an invalid, incomplete petition should not be officially “considered” and thus should not trigger the one-petition-per-term limit in subsection (g).

• The “Amended” Petition: The only legally valid petition, in his view, was the completed version submitted on July 19, which contained over 250 signatures. He argued this was the first and only valid submission that the Board was required to act upon.

• Statutory Loophole: Jackson warned that the Association’s interpretation creates a dangerous loophole: “anyone on the board could never get recalled with the way the stat was being interpreted…you could submit any incomplete petition for anyone on the board and they would never get…recalled during their term.”

• Reliance on Management Company: Jackson pointed to Exhibit C, an email from Kirk Kowieski of FSR, stating that an “amended petition” could be submitted. Since the Board had delegated the vetting process to FSR, Jackson argued this communication affirmed the legitimacy of his second submission.

Respondent’s Position and Arguments (Val Vista Lakes Community Association)

Legal Argument

The Respondent’s counsel, Eric Cook, argued for a plain-language reading of the statute, asserting that the law is clear and binding.

• Plain Meaning of the Statute: The core of the argument was that A.R.S. § 33-1813 says what it means. It refers to “a petition,” not a “valid petition” or a “complete petition,” when establishing the one-submission limit.

• Standalone Provision: A.R.S. § 33-1813(A)(4)(g) was presented as a standalone provision. It is not contingent on whether a petition meets the signature requirements of subsection (b). Its purpose is to prevent repeated recall efforts against the same board member.

• One Chance Rule: “Section G is a standalone provision that says if you file that petition, you get that one chance.”

• Chronology is Key: A petition was submitted on July 12. It was considered and rejected. The second petition, submitted on July 19, sought to remove the same four board members. This second submission was a clear violation of subsection (g).

• Function of Subsection (b): Respondent argued that the signature threshold in subsection (b) only determines whether the Board is obligated to call a special meeting. It does not define whether a document submitted as a petition constitutes “a petition” for the purposes of the one-per-term rule.

Witness Testimony

• Doug Keats (Treasurer) and K. Adams (Secretary) both testified that they were present at the July 12 meeting when Andy Ball submitted the initial petition directly to the Board President, Bill Suttell. They affirmed this petition was the one the Board officially considered and rejected for having an insufficient number of signatures.

Administrative Law Judge’s Decision and Rationale

On November 8, 2022, ALJ Kay A. Abramsohn issued a decision dismissing Mr. Jackson’s petition, finding no violation of A.R.S. § 33-1813 by the Association.

Key Findings of Fact

• The Association has more than 1,000 members.

• The initial petition submitted on July 12, 2022, contained an insufficient number of signatures to meet the statutory threshold for compelling a recall vote.

• The second petition submitted on July 19, 2022, petitioned for the removal of the same four board members named in the first petition.

Conclusions of Law

1. Rejection of the First Petition: The ALJ concluded that the Board did not violate the statute when it rejected the July 12 petition. Since the petition did not contain the required number of signatures, the Board was under no obligation to call a special meeting.

2. Rejection of the Second Petition: The central conclusion rested on a direct interpretation of A.R.S. § 33-1813(A)(4)(g). The decision states: “a petition which calls for the removal of the same member of the board of directors ‘shall not be submitted more than once during each term of office for that member.’ Therefore, in this case, the July 19, 2022 ‘second’ petition which petitioned for the removal of the same four Board members…was not permitted by statute.”

3. Final Ruling: Because the second petition was statutorily prohibited, the Board did not violate the law by rejecting it. The ALJ concluded that the Petitioner failed to establish any violation by the Association, and the petition was therefore dismissed.

Study Guide: Johnson v. Val Vista Lakes Community Association (Case No. 23F-H006-REL)

This study guide is designed to assess and deepen understanding of the administrative hearing held on October 24, 2022, and the subsequent decision regarding the dispute between Keith Jackson and the Val Vista Lakes Community Association. The materials cover the central arguments, key figures, procedural timeline, and legal interpretations at the heart of the case.

——————————————————————————–

Quiz: Short Answer Questions

Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the provided source materials.

1. Who are the two primary parties in this case, and what is the nature of their dispute?

2. What specific Arizona Revised Statute (A.R.S.) is the central point of legal contention, and what is its general purpose?

3. Describe the timeline and key differences between the first and second recall petitions that were submitted to the Association.

4. What was petitioner Keith Jackson’s core argument for why the first petition submitted on July 12th should have been considered invalid by the Board?

5. What was the respondent Association’s legal justification, based on the statute, for rejecting the second, “amended” petition submitted on July 19th?

6. Identify Kirk Kowieski and First Service Residential (FSR). What role did their communications and actions play in Mr. Jackson’s argument?

7. What authority does the Arizona Office of Administrative Hearings (OAH) have in this matter, and how does it relate to the Department of Real Estate?

8. According to the Administrative Law Judge’s decision, what was the legal standard Mr. Jackson had to meet, and did he succeed?

9. Identify the four board members targeted for recall and their respective positions within the Association’s board of directors.

10. What was the final order of the Administrative Law Judge in this case?

——————————————————————————–

Answer Key

1. The primary parties are Keith Jackson (the Petitioner) and the Val Vista Lakes Community Association (the Respondent). The dispute centers on whether the Association’s Board of Directors improperly rejected a recall petition initiated by Mr. Jackson to remove four board members, based on their interpretation of state law.

2. The central statute is A.R.S. § 33-1813. Its purpose is to govern the process for removing a member of a community association’s board of directors, including the requirements for calling a special meeting based on a recall petition.

3. The first petition, containing approximately 211-214 signatures, was submitted by Andy Ball on July 12, 2022. The second, “amended” petition was submitted by Keith Jackson on July 19, 2022; it included the original signatures plus an additional 37, for a total of over 250, and was intended to be a complete version.

4. Mr. Jackson argued that the first petition was mistakenly turned in as an incomplete “first batch” and therefore was not a “valid” petition under the statute. He contended that the Board could only act upon a completed petition that met the statutory signature threshold, making the initial submission legally void.

5. The Association argued that A.R.S. § 33-1813(A)(4)(g) is clear in its language. This subsection states that a petition to remove the same board member shall not be submitted more than once during that member’s term of office, and therefore the second petition was barred by statute.

6. First Service Residential (FSR) is the property management company for the Association, and Kirk Kowieski is its Vice-President. Mr. Jackson argued that an email from Mr. Kowieski (Exhibit C) confirming that an “amended petition” would be accepted showed that FSR, acting with authority from the Board, had agreed the completed petition submitted on July 19th was the only valid one.

7. The Arizona Office of Administrative Hearings (OAH) is a separate state agency that conducts hearings and makes decisions on behalf of other agencies. It does not work for the Department of Real Estate but was tasked with conducting the hearing after Mr. Jackson filed his complaint with the Department.

8. The legal standard was the “preponderance of the evidence,” meaning Mr. Jackson had to prove that it was more probable than not that the Association had violated A.R.S. § 33-1813. The Judge concluded that Mr. Jackson did not meet this burden of proof.

9. The four board members targeted were: Bill Suttell (President), Sharon Maiden (Vice-President), Doug Keats (Treasurer), and Steve Nielson (General Board Member).

10. The final order, issued on November 8, 2022, was that the Petitioner’s Petition be dismissed. The Judge found that the Board did not violate the statute when it rejected either the July 12th or the July 19th petition.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis. Formulate a comprehensive response for each, citing specific facts, arguments, and evidence from the hearing and the final decision.

1. Analyze the competing interpretations of A.R.S. § 33-1813 as presented by the petitioner and the respondent. Explain how each party used subsections (A)(4)(b) and (A)(4)(g) to support their respective positions regarding the validity of the two petitions.

2. Discuss the role and actions of First Service Residential (FSR) and its representative, Kirk Kowieski. Evaluate the significance of FSR’s communications as evidence in the petitioner’s case and explain how the final legal decision implicitly addresses the limits of FSR’s authority.

3. Trace the complete procedural history of the recall effort, beginning with Mr. Jackson’s collection of signatures and culminating in the Administrative Law Judge’s final order. Identify key dates, actions taken by each party, and the rationale provided for each decision along the way.

4. Examine the evidence presented during the hearing, specifically Petitioner’s Exhibits A, C, D, and F, and Respondent’s Exhibit 1. Describe the content and purpose of each exhibit and analyze its effectiveness in supporting the arguments made by each side.

5. Explain the final ruling in Case No. 23F-H006-REL. Detail the Administrative Law Judge’s legal conclusions regarding both the July 12th and July 19th petitions and articulate the reasoning that led to the dismissal of Mr. Jackson’s petition.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An impartial judge who presides over administrative hearings, makes findings of fact, and issues legal decisions. In this case, the ALJ was Kay A. Abramsohn.

A.R.S. § 33-1813

The specific Arizona Revised Statute that provides the legal framework for the removal of a board of directors member in a community association, forming the basis of the entire dispute.

Arizona Office of Administrative Hearings (OAH)

A separate state agency authorized to conduct administrative hearings and issue decisions for disputes referred by other state agencies, such as the Department of Real Estate.

Exhibit

A document or item of physical evidence introduced during a hearing to support a party’s claims. Examples include the initial petition (Respondent’s Exhibit 1) and email correspondence (Petitioner’s Exhibit C).

First Service Residential (FSR)

The property management company hired by the Val Vista Lakes Community Association to handle tasks such as maintaining records, sending community notices, and vetting petition signatures.

Homeowners Association. In this case, the Val Vista Lakes Community Association.

Petitioner

The party who initiates a legal action by filing a petition or complaint. In this case, Keith Jackson.

Preponderance of the Evidence

The burden of proof in this administrative hearing. It requires the petitioner to show that the facts they allege are more probable than not.

Recall Petition

A document signed by a required number of association members to call for a special meeting to vote on the removal of one or more members of the board of directors.

Respondent

The party against whom a petition or complaint is filed. In this case, the Val Vista Lakes Community Association.

Special Meeting

A meeting of the association members called for a specific purpose outside of regularly scheduled meetings, such as voting on a recall. The statute dictates the conditions under which the Board must call such a meeting.

Statute

A written law passed by a legislative body. The central statute in this case is A.R.S. § 33-1813.

Term of Office

The designated length of time a board member serves in their position. Under A.R.S. § 33-1813(A)(4)(g), a recall petition for the same member cannot be submitted more than once per term.

Vetting

The process of carefully examining and verifying the information presented, specifically the process FSR was tasked with to validate the signatures on the recall petition.

Their HOA Recall Had 250+ Signatures. It Was Voided by This One-Sentence Legal Booby Trap.

For many homeowners, a battle with their Homeowners Association (HOA) board is a familiar, frustrating story of feeling unheard. It was a reality that spurred homeowner Keith Jackson to action. Believing his board was failing the community, he channeled the widespread discontent of his neighbors, gathering significant support for a recall. Yet, despite his passionate efforts and clear community backing, the entire campaign was tragically derailed by a single, counter-intuitive rule, triggered by the simple, well-meaning mistake of a trusted friend.

Takeaway 1: The “One-Shot” Rule is Ironclad

The core legal issue that doomed the recall was a procedural trap hidden in plain sight. On July 12, 2022, a friend of Mr. Jackson, Andy Ball, submitted the recall petition to the board. The problem? It was incomplete and lacked the required number of signatures. According to Jackson’s testimony, his friend even tried to qualify the submission, telling the board, “here is the first batch of signatures more for coming.”

But that verbal clarification was powerless. The simple act of handing over the documents was legally considered a formal submission. This premature action triggered a critical and unforgiving clause in Arizona statute A.R.S. § 33-1813(A)(4)(g):

A petition that calls for the removal of the same member of the board of directors shall not be submitted more than once during each term of office for that member.

Because the first petition was officially submitted and rejected for having insufficient signatures, the second, corrected petition—even with more than enough community support—was automatically barred. As the Administrative Law Judge’s final decision confirmed, the board was legally correct to reject the second attempt. The first try, flawed as it was, was the only one the law allowed.

Takeaway 2: Your Property Manager Isn’t Your Lawyer

This case exposes a common and dangerous misconception in community governance: the difference between operational guidance and binding legal counsel. After the first petition was rejected, Mr. Jackson and his supporters were led to believe they could simply submit a corrected version based on advice from Kirk Kowieski, a Vice President at the HOA’s management company, First Service Residential (FSI).

In a July 19, 2022 email, Kowieski seemed to give them a green light:

The group submitting the recall petition can submit a “new” (amended) petition that has the same names, addresses and signatures as the original as well as any additional signees. Because the first/original petition was “officially” submitted and became a record of the Association, the Association had to accept it and consider it as presented.

This advice, while seemingly authoritative, offered false hope and had no legal standing. Tellingly, while the judge noted the manager’s email in the factual summary of the case, it was given zero weight in the legal analysis. The advice wasn’t just wrong; in the final decision, it was legally nonexistent.

Takeaway 3: Passion and Signatures Don’t Beat Procedure

The recall effort was not born from minor disagreements; it was fueled by serious grievances that resonated deeply within the community. In his testimony, Keith Jackson outlined a compelling case against the board:

• A severe lack of transparency and accountability.

• The community’s reserve fund plummeting from $3.4 million to under $1 million in just one year.

• Cutting off the community’s biggest source of revenue without any member input.

• Creating a “toxic workplace” that led to the resignation of the community manager and other key employees.

These concerns prompted over 250 homeowners to sign the petition in just 10 days. Yet, the merits of their case were never heard. From the very first moments of the hearing, the Administrative Law Judge made the narrow scope of the proceeding clear, even stopping Mr. Jackson’s opening statement to clarify, “The only authority I have is to determine whether or not the statute was interpreted correctly.” The legal system, in this administrative context, was procedurally deaf to their valid concerns, illustrating a stark reminder that passion and popular support are secondary to the cold, hard rules of procedure.

Conclusion: A Cautionary Tale in Black and White

In the highly regulated world of HOA governance, understanding and adhering to the exact letter of the law is non-negotiable. Keith Jackson’s story is a powerful cautionary tale of how a community movement can be undone by a simple, irreversible mistake. A friend turning in a petition before it was ready wasn’t a minor stumble to be corrected—it was the single action that sealed the fate of the entire campaign.

This case forces us to confront the purpose of such a strict rule. Proponents argue this “one-shot” provision prevents boards from being paralyzed by serial, frivolous recall attempts, ensuring stable governance. Critics, however, contend that its unforgiving nature creates a procedural minefield that disempowers homeowners and shields inept or malicious boards from accountability. This leaves us with a crucial question: Does a strict, one-shot rule for recalls truly protect boards from harassment, or does it create an insurmountable barrier for homeowners seeking accountability?

Case Participants

Petitioner Side

  • Keith Jackson (petitioner)
    Self-represented
  • Andy Ball (member)
    Val Vista Lakes Community Association
    Submitted the initial incomplete petition

Respondent Side

  • Eric Cook (HOA attorney)
    Lewis Brisbois Bisgaad & Smith LLP
    Represented Val Vista Lakes Community Association
  • Doug Keats (board member)
    Val Vista Lakes Community Association
    Treasurer; Board member being recalled; Witness
  • K. Adams (board member)
    Val Vista Lakes Community Association
    Secretary; Witness; Assigned to work with HOA attorney
  • Bill Suttell (board member)
    Val Vista Lakes Community Association
    President; Board member being recalled
  • Sharon Maiden (board member)
    Val Vista Lakes Community Association
    Vice President; Board member being recalled
  • Steve Nielson (board member)
    Val Vista Lakes Community Association
    General Board Member; Board member being recalled
  • Kirk Kowieski (property manager)
    First Service Residential (FSR)
    Vice President/Interim Manager of the HOA management company
  • Melissa Scoville (board member)
    Val Vista Lakes Community Association
    Board member mentioned in context of Rob Act's petition
  • Joanie U (board member)
    Val Vista Lakes Community Association
  • Lenny KNik (HOA attorney)
    Consulted by Kirk regarding the petition process
  • Andreas Vas (HOA attorney)
    Consulted by Kirk regarding the petition process

Neutral Parties

  • Kay A. Abramsohn (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    Transmitted decision electronically

Other Participants

  • Rob Act (member)
    Submitted a separate incomplete petition
  • Stephanie (intern manager)
    FSR
    Works with Kirk

R.L. Whitmer v. Hilton Casitas HOA

Posted on by

Case Summary

Case ID 22F-H2222043-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-13
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ granted Summary Judgment in favor of Petitioner, concluding that the plain language of Section 8.2 of the Declaration requires a majority of a quorum of all owners to vote to set the annual assessments, which the Respondent failed to obtain.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner R.L. Whitmer Counsel —
Respondent Hilton Casitas HOA Counsel Edith Rudder

Alleged Violations

Section 8.2

Outcome Summary

The ALJ granted Summary Judgment in favor of Petitioner, concluding that the plain language of Section 8.2 of the Declaration requires a majority of a quorum of all owners to vote to set the annual assessments, which the Respondent failed to obtain.

Key Issues & Findings

Failure to Obtain Owner Approval for Annual Assessment

Respondent adopted the 2022 annual budget and assessment without obtaining the affirmative approval of a majority of a quorum of homeowners.

Orders: Petitioner's petition is affirmed. Respondent ordered to reimburse Petitioner's $500.00 filing fee and directed to comply with Section 8.2 of the Declaration going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1201
  • ARIZ. REV. STAT. § 33-1202
  • ARIZ. REV. STAT. § 33-1241
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 38-551(5)

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Video Overview

Audio Overview

Decision Documents

22F-H2222043-REL Decision – 1005717.pdf

Uploaded 2026-04-24T11:50:30 (155.6 KB)

22F-H2222043-REL Decision – 1014946.pdf

Uploaded 2026-04-24T11:50:34 (40.7 KB)

22F-H2222043-REL Decision – 976124.pdf

Uploaded 2026-04-24T11:50:39 (46.1 KB)

22F-H2222043-REL Decision – 976252.pdf

Uploaded 2026-04-24T11:50:43 (5.5 KB)

22F-H2222043-REL Decision – 979285.pdf

Uploaded 2026-04-24T11:50:47 (50.0 KB)

22F-H2222043-REL Decision – 1005717.pdf

Uploaded 2026-02-27T14:42:04 (155.6 KB)

22F-H2222043-REL Decision – 1014946.pdf

Uploaded 2026-02-27T14:42:05 (40.7 KB)

22F-H2222043-REL Decision – 976124.pdf

Uploaded 2026-02-27T14:42:06 (46.1 KB)

22F-H2222043-REL Decision – 976252.pdf

Uploaded 2026-02-27T14:42:06 (5.5 KB)

22F-H2222043-REL Decision – 979285.pdf

Uploaded 2026-02-27T14:42:07 (50.0 KB)

Briefing Document: R.L. Whitmer v. Hilton Casitas HOA (Case No. 22F-H2222043-REL)

Executive Summary

This briefing document analyzes the administrative legal dispute between R.L. Whitmer (Petitioner) and Hilton Casitas HOA (Respondent), a 29-unit condominium association in Scottsdale, Arizona. The central conflict concerned the interpretation of the association's 1972 Declaration, specifically whether the "Council" authorized to set annual assessments refers to the Board of Directors or the collective body of Owners.

On October 13, 2022, the Administrative Law Judge (ALJ) ruled in favor of the Petitioner, determining that the plain language of the governing documents requires a majority of a quorum of all Owners to approve annual assessments. Because the Respondent failed to achieve a quorum during its 2022 budget ratification attempt, the assessment was deemed invalid. The Respondent was ordered to reimburse the Petitioner’s filing fee and comply with Owner-approval requirements moving forward.

Detailed Analysis of Key Themes

1. Linguistic Interpretation of "Council"

The crux of the legal dispute was the definition of the word "Council" as used in Section 8.2 of the Declaration.

  • Respondent’s Position: The HOA argued that "Council" is synonymous with the "Board of Directors" or the "Association" as a corporate entity. They contended that under modern Arizona statutes (the Condominium Act), the Board has the power to act on behalf of the association in all instances not explicitly reserved for members.
  • Petitioner’s Position: The Petitioner argued that the Declaration explicitly defines the Council as the entire membership of owners.
  • ALJ Finding: The ALJ upheld the Petitioner’s view, noting that Section 1.4 of the Declaration specifically states the Council "consists of all of the Owners of the Casitas."
2. Statutory Evolution vs. Contractual Fidelity

The case highlights the tension between historical governing documents and evolving state law.

  • The Horizontal Property Regime Act: This was the law in effect when the Hilton Casitas Declaration was recorded in 1972. It defined "Council of co-owners" as "all of the co-owners of the building."
  • The Condominium Act: Adopted in 1986, this Act replaced the previous regime. The Respondent argued that the modern Act allows Boards to adopt budgets and set assessments unless the documents state otherwise.
  • The Ruling: The ALJ concluded that because the association's governing documents constitute a contract, the intent of the parties at the time of the contract (1972) is paramount. The ALJ noted that despite the repeal of the old Act in 1985, the HOA had 36 years to amend its documents to clarify Board authority but failed to do so.
3. Procedural Failure and Quorum Requirements

The HOA attempted a "ratification" process for the 2022 budget that failed to meet the standards set by its own Bylaws.

  • Participation Numbers: Hilton Casitas consists of 29 Owners. A quorum (majority) requires 15 members.
  • The February 9, 2022 Meeting: Only 14 Owners participated (in person or by absentee ballot). Even though 11 of those 14 voted to approve the budget, the lack of a 15-person quorum rendered the vote legally ineffective.
  • The Difference in Standards: While the Declaration requires higher vote percentages for major changes (e.g., 51% to amend the Declaration or 75% for new construction), the ALJ clarified that for standard "Council" acts, a majority of a quorum is the minimum requirement.

Important Quotes with Context

Governing Document Definitions

"“Council” shall mean the Council of Co-owners as defined in the Horizontal Property Regime Act, and consists of all of the Owners of the Casitas."

— Declaration, Section 1.4

  • Context: This quote was the primary evidence used to defeat the Respondent’s claim that "Council" referred to the Board.
Assessment Authority

"The Owner of each Casita… agrees that each Casita shall be subject to an annual assessment in an amount to be determined by the Council…"

— Declaration, Section 8.2

  • Context: This provision establishes that the power to set the specific dollar amount of assessments resides with the "Council" (all Owners), not just the Board.
Conflict of Documents

"In case any of the provisions of these Bylaws conflict with the provisions of said Declaration, the provisions of said Declaration shall control."

— Bylaws, Article XI, Section 1

  • Context: This established the hierarchy of authority, ensuring that the Declaration's definition of "Council" overrode any broader powers the Board might claim under the Bylaws or general corporate law.
The ALJ's Conclusion

"The Administrative Law Judge concludes that, the plain language of the Declaration requires a majority of a quorum of all owners vote to set the annual assessments for Respondent."

— ALJ Decision, Conclusions of Law ¶ 22

  • Context: This was the final legal determination that invalidated the HOA's unilateral budgeting process.

Procedural History and Timeline

Date Event
Nov 5, 2021 Board notices meeting for "discussion and approval" of 2022 budget.
Jan 13–19, 2022 Petitioner repeatedly warns Board via email regarding non-compliance with Section 8.2.
Feb 9, 2022 Budget meeting held; 14 Owners participate (less than quorum).
May 27, 2022 Respondent requests additional time to respond to Summary Judgment motion.
June 8, 2022 ALJ denies Respondent’s Motion to Strike and sets a response deadline of June 20.
June 22, 2022 ALJ denies Petitioner’s Motion for Default Judgment but grants a continuance of the hearing.
Oct 13, 2022 Final Decision issued: Petitioner's motion affirmed; Respondent ordered to comply.
Nov 14, 2022 Respondent files Motion for Rehearing/Reconsideration.
Nov 28, 2022 ALJ issues Minute Entry refusing to consider the motion, stating the OAH can take no further action.

Actionable Insights

For Governance Compliance
  • Mandatory Owner Voting: The Board cannot unilaterally set annual assessments. A formal meeting must be called where at least 15 of the 29 owners (a quorum) are present in person or by proxy.
  • Approval Threshold: Once a quorum of 15 is met, at least 8 votes (a majority of that quorum) are required to legally set the assessment.
  • Document Amendments: If the association wishes to grant the Board the power to set assessments without a full membership vote, they must formally amend the Declaration. Per Section 23.3, this requires the signed concurrence of 51% of the Owners.
Legal and Financial Consequences
  • Reimbursement: The association is legally obligated to reimburse the Petitioner $500.00 for the filing fee.
  • Standard of Conduct: The ALJ emphasized that the HOA had decades to modernize its language regarding the "Council" and the "Board." Failure to align historical documents with current practices results in the historical contract language remaining binding.
  • Finality of Administrative Decisions: The OAH has limited jurisdiction for reconsiderations. Once a final order is issued and the timeframe for standard motions passes, the Office may refuse to hear further arguments, as seen in the November 28 Minute Entry.

Legal Analysis Study Guide: Whitmer v. Hilton Casitas HOA

This study guide provides a comprehensive overview of the administrative law case R.L. Whitmer v. Hilton Casitas HOA (No. 22F-H2222043-REL). It explores the intersection of homeowner association (HOA) governing documents, Arizona statutory law, and the principles of contractual interpretation.

Key Case Concepts

1. The Central Dispute

The primary legal question was whether the Hilton Casitas HOA Board had the authority to determine annual assessments unilaterally or if such assessments required an affirmative vote by a quorum of the homeowners. The dispute centered on the interpretation of the term "Council" as used in the association's 1972 Declaration.

2. Hierarchy of Governing Documents

The case underscores the priority of governing documents:

  • The Declaration: The foundational document (recorded in 1972). Section 8.2 states that annual assessments are "determined by the Council."
  • Bylaws: Article XI, Section 1 explicitly states that in the event of a conflict between the Bylaws and the Declaration, the Declaration shall control.
  • Statutory Law: While the Arizona Condominium Act provides general management powers to boards, it also allows for specific restrictions within a community's own Declaration.
3. Definitions and Interpretations
  • Council: Section 1.4 of the Declaration defines "Council" as the "Council of Co-owners… and consists of all of the Owners of the Casitas."
  • Quorum Requirements: According to Article III, Section 6 of the Bylaws, a quorum is a majority of members. For this association of 29 owners, a quorum is 15. The "acts of the Council" are defined as the acts of a majority of those present at a meeting where a quorum is established.
4. Statutory Transitions

The community was originally governed by the Horizontal Property Regime Act. Although this was replaced by the Condominium Act in 1986 (and applied retroactively in 2008), the Administrative Law Judge (ALJ) determined that the specific definitions and voting requirements established in the original 1972 Declaration remained binding.

Short-Answer Practice Questions

1. How does Section 1.4 of the Declaration define the "Council"?

Answer: It defines the "Council" as the Council of Co-owners, consisting of all the Owners of the Casitas.

2. Why was the February 9, 2022, "Budget Ratification" vote deemed invalid by the Administrative Law Judge?

Answer: Only 14 Owners participated (in person or by absentee ballot), which was one less than the 15 required to constitute a quorum of the 29-member association.

3. According to Section 6.5 of the Declaration, under what circumstances is an Owner’s right to vote suspended?

Answer: Voting rights are suspended if an Owner is in arrears on payments or in default of the Declaration terms for a period of fifteen (15) days.

4. What was the Respondent’s primary argument regarding the Board's authority to set the budget?

Answer: The Respondent argued that the term "Council" in Section 8.2 referred to the Board of Directors, and that under the Condominium Act (A.R.S. § 33-1243), the board has the power to act in all instances on behalf of the association unless specifically prohibited.

5. How did the ALJ address the fact that the Declaration used the term "Owners" for some actions (like amendments) and "Council" for others?

Answer: The ALJ noted that actions requiring a specific percentage of "Owners" (like terminating the Declaration) are inherently different from day-to-day operations and did not prove that "Council" was intended to mean only the Board of Directors.

Essay Prompts for Deeper Exploration

1. Contractual Interpretation in HOA Governance

Analyze the ALJ's application of the "plain language" rule in this case. How does the requirement to examine the "plain meaning of the words in the context of the contract as a whole" impact the interpretation of the term "Council"? Discuss why the ALJ found the 1972 definition of "Council" more compelling than the general management powers granted to boards under modern statutes.

2. The Impact of Statutory Evolution on Older Declarations

Hilton Casitas was formed under the Horizontal Property Regime Act, which was later repealed and replaced by the Condominium Act. Explore the challenges faced by HOAs when their founding documents (recorded under old statutes) conflict with or use different terminology than current state laws. Should an association be required to amend its documents to match modern statutory language, or should the original intent of the developers and early owners take precedence?

3. Quorum and Collective Decision-Making

Discuss the significance of the quorum in this case. The Respondent argued that 11 out of 14 votes were in favor of the budget, representing a clear majority of those who chose to participate. Evaluate the legal and ethical implications of requiring a strict quorum for financial decisions, particularly in small associations where owner apathy or absence can stall administrative functions.

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who serves as the trier of fact in administrative hearings, such as those held by the Office of Administrative Hearings.
Bylaws The rules adopted by the Council for the administration of the affairs of the association, subordinate to the Declaration.
Condominium Act The Arizona statutes (A.R.S. § 33-1201 et seq.) governing condominiums, effective January 1, 1986, and applicable to all condominiums regardless of their creation date.
Council of Co-owners Defined in the Horizontal Property Regime Act and the Hilton Casitas Declaration as all the owners of the casitas/units.
Declaration The Declaration of Horizontal Property Regime; the master contract recorded in the county recorder's office that governs the property and its members.
Horizontal Property Regime Act The precursor to the Condominium Act in Arizona, in effect when the Hilton Casitas Declaration was recorded in 1972.
Motion for Summary Judgment A request for the judge to rule in favor of one party without a full hearing because there are no genuine issues of material fact.
Owner The record owner of a Casita (unit) within the Hilton Casitas development.
Pro Rata Share The proportionate share of common expenses assigned to each Casita, as determined by the Declaration.
Quorum The minimum number of members required to be present (in person or by proxy) at a meeting to make the proceedings of that meeting valid.
Summary Judgment A legal decision made by a court without a full trial, based on the principle that no factual disputes exist and the law is clearly on one side.

When Homeowners Hold the Gavel: Lessons from Whitmer v. Hilton Casitas HOA

1. Introduction: The Power of the Purse in HOA Governance

In the world of community associations, there is often a simmering tension between the Board of Directors and the homeowners they serve, particularly when it involves the "power of the purse." Many Boards operate under the assumption that they possess the unilateral authority to dictate financial assessments and annual budgets. However, a recent legal victory for a vigilant homeowner serves as a stark reminder: the Board’s power is not absolute. It is strictly bounded by the community’s founding documents.

The case of R.L. Whitmer v. Hilton Casitas HOA (No. 22F-H2222043-REL) provides a masterclass in why the specific, recorded language of a community’s Declaration—rather than general state law—is the final word on budget matters. In this dispute, a failure to respect the precise definitions within a 50-year-old document led to an invalidated budget and a clear message from the court: when homeowners are given the gavel by their governing documents, the Board cannot simply take it away.

2. The Dispute: A Question of Authority

This case didn't reach a hearing because of a factual "he-said, she-said" argument. Instead, it was decided on a Motion for Summary Judgment, meaning the facts were undisputed, and the outcome rested entirely on the legal interpretation of the HOA's governing documents.

The Petitioner, a homeowner at Hilton Casitas, challenged the HOA’s 2022 annual assessment. He argued that the Board failed to obtain the mandatory affirmative approval from the homeowners as required by the community's Declaration. While the Board attempted a modern "budget ratification" process common in many newer associations, the Petitioner insisted that the association’s specific 1972 rules required a much higher level of homeowner participation.

Timeline of Events:

  • November 10, 2021: The Board met to discuss and approve a proposed 2022 budget.
  • Dec 30, 2021 – Jan 19, 2022: The Petitioner sent four separate, written reminders (Dec 30, Jan 13, Jan 16, and Jan 19) to the Board president and treasurer, warning them that they were not complying with Section 8.2 of the Declaration regarding the budget approval process.
  • January 25, 2022: The Board officially cancelled a previously scheduled (but improperly noticed) budget meeting and issued a new notice for a "Budget Ratification" meeting.
  • February 9, 2022: The HOA held the meeting to seek owner "ratification" of the assessment.
3. The Definition of "Council": Words That Cost $500

The entire legal dispute revolved around the interpretation of the word "Council." The HOA Board argued that "Council" was simply another term for the Board of Directors. The Petitioner argued it meant the entire body of owners. This single word was so central to the case that the Board’s misinterpretation ultimately led to the Administrative Law Judge (ALJ) ordering the HOA to reimburse the Petitioner’s $500 filing fee.

To find the truth, the ALJ went back to the source. The 1972 Declaration was written under the Horizontal Property Regime Act, which specifically defined the "Council of co-owners" as "all of the co-owners of the building." This historical context was the "smoking gun"—the term "Council" had a fixed legal meaning from the day the community was born.

Key Document Definitions

Term Source Context Definition
Council Consists of all of the Owners of the Casitas; defined by the Horizontal Property Regime Act as "all of the co-owners" (Section 1.4).
Owner The record owner of a Casita (Section 1.8).
Common Expenses Costs for which each Casita is subject to an annual assessment in an amount to be determined by the Council (Section 8.2).

Because Section 8.2 requires assessments to be "determined by the Council," the Board never had the unilateral authority to set the budget. That power belonged to the owners.

4. The Quorum Quagmire: Why 14 Ballots Weren’t Enough

Even when the Board finally attempted to involve the owners in the February 9, 2022, meeting, they failed to clear the procedural hurdles set by their own Bylaws.

Hilton Casitas consists of 29 condominium units. Article III, Section 6 of the Bylaws defines a quorum as a "majority of members."

  • The Math: To have a valid meeting of the Council, the HOA needed a quorum of 15 members (a majority of 29).
  • The Reality: Only 14 owners participated (in person or via absentee ballot).

Because they were one person short of a quorum, the meeting was legally a non-event. Even though 11 of those 14 owners voted in favor of the budget, the vote was invalid. The ALJ clarified that for an act of the "Council" to be valid, 15 members must be present, and at least 8 (a majority of the quorum) must vote in favor.

5. Legal Nuance: Governing Documents vs. The Condominium Act

The HOA’s primary defense was a reliance on modern statute. They argued that the Arizona Condominium Act (A.R.S. § 33-1243) grants Boards broad power to act on behalf of the association unless a power is specifically reserved for the members. Since the Act doesn't explicitly reserve "budget adoption" for members, the Board claimed they could act alone.

The ALJ rejected this, noting that the Condominium Act itself states that a Board may act "except as provided in the declaration." Essentially, the private contract of the Declaration overrides the general permissions of the statute.

Perhaps the most stinging part of the ruling was the ALJ's observation that the Board’s predicament was entirely avoidable. Since the Horizontal Property Regime Act was repealed in 1985, the Board had over 36 years to amend their Declaration to shift budget power from the owners to the Board. They chose not to do so, leaving the 1972 "Council" requirement in full effect.

"An association’s governing documents constitute a contract between the association and the owners. When interpreting contractual provisions, the Office of Administrative Hearings should not construe or interpret a contract if the intent of the parties is clear and unambiguous from its plain language." — Administrative Law Judge Decision

6. The Verdict and Its Implications

On October 13, 2022, the ALJ issued a Final Order that served as a total victory for homeowner vigilance:

  • Affirmation of the Petition: The judge ruled that the HOA violated Section 8.2 of the Declaration.
  • Financial Penalty: The HOA was ordered to reimburse the Petitioner’s $500 filing fee.
  • Future Compliance: The HOA was directed to strictly comply with Section 8.2 for all future assessments, ensuring the "Council" (the owners) determines the amounts.
7. Key Takeaways for HOA Members and Boards

The Whitmer case provides three essential lessons for community governance:

  1. Definitions are Decisive: Words like "Council," "Board," and "Association" are not interchangeable. Boards must look at their community’s specific definitions, particularly in older "legacy" documents, to understand where authority truly lies.
  2. Quorum is Non-Negotiable: A vote—even a unanimous one—is legally worthless if the minimum quorum requirement is not met. Boards must be meticulous in tracking attendance and proxies to ensure their actions are binding.
  3. Modern Statutes Don't Always Erase Old Declarations: While state laws provide a general framework, they often defer to the community’s Declaration. If your documents are outdated or restrictive, "standard practice" will not save you in court.
8. Conclusion

The Whitmer v. Hilton Casitas HOA case underscores a fundamental truth: the Declaration is the supreme law of the association. This was a "clean" legal victory achieved through a Motion for Summary Judgment because the governing documents were clear and unambiguous.

For homeowners, this case is a testament to the fact that vigilance and a thorough understanding of your documents can check a Board’s overreach. For Boards, it is a cautionary tale. Proactivity is key—if your 50-year-old documents no longer serve the practical needs of the community, you must amend them. Until then, you are bound by every word, every definition, and every procedural hurdle your predecessors put in writing.

Case Participants

Petitioner Side

  • R.L. Whitmer (petitioner)

Respondent Side

  • Edith Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    Office of Administrative Hearings
  • c. serrano (Legal Secretary)
    Office of Administrative Hearings

Deborah Masear v. Paradise Park Condominiums Phase II Homeowners

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Case Summary

Case ID 22F-H2222057-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-05
Administrative Law Judge Velva Moses-Thompson
Outcome The petition filed by the homeowner against the HOA was dismissed because the homeowner failed to prove the HOA violated A.R.S. § 33-1243(J) regarding financial reporting.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Deborah Mesear Counsel —
Respondent Paradise Park Condominiums Phase II Homeowners Association Counsel Ashley N. Moscarello, Esq.

Alleged Violations

A.R.S. § 33-1243(J)

Outcome Summary

The petition filed by the homeowner against the HOA was dismissed because the homeowner failed to prove the HOA violated A.R.S. § 33-1243(J) regarding financial reporting.

Why this result: The Petitioner failed to establish that the Association violated the applicable statute by a preponderance of the evidence, resulting in the dismissal of the petition.

Key Issues & Findings

Violation of HOA statutory duty to provide annual financial reports (audit, review, or compilation)

Petitioner alleged the HOA failed to share an annual audit/compilation for 2017-2021. The ALJ found the HOA provided financial compilations for 2017-2020 after the petition was filed. The claim regarding 2021 was found to be premature because the financial compilation was not yet due when the petition was filed on May 29, 2022.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1243(J)
  • A.R.S. § 33-1810

Analytics Highlights

Topics: Condominium Act, Financial Records, Compilation, Statutory Compliance, HOA Management
Additional Citations:

  • A.R.S. § 33-1243(J)
  • A.R.S. § 33-1810
  • A.R.S. § 32-2199(1)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222057-REL Decision – 1003891.pdf

Uploaded 2026-04-24T11:53:40 (95.1 KB)

22F-H2222057-REL Decision – 988206.pdf

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22F-H2222057-REL Decision – 989133.pdf

Uploaded 2026-04-24T11:53:48 (50.1 KB)

22F-H2222057-REL Decision – 994978.pdf

Uploaded 2026-04-24T11:53:51 (50.8 KB)

22F-H2222057-REL Decision – 1003891.pdf

Uploaded 2026-01-23T17:48:33 (95.1 KB)

22F-H2222057-REL Decision – 988206.pdf

Uploaded 2026-01-23T17:48:37 (57.1 KB)

22F-H2222057-REL Decision – 989133.pdf

Uploaded 2026-01-23T17:48:39 (50.1 KB)

22F-H2222057-REL Decision – 994978.pdf

Uploaded 2026-01-23T17:48:42 (50.8 KB)

This decision, issued by Administrative Law Judge Velva Moses-Thompson on October 5, 2022, dismissed the petition brought by Deborah Mesear, a condominium unit owner, against the Paradise Park Condominiums Phase II Homeowners Association (the Association).

Key Facts and Legal Issue:

The dispute centered on the Association's compliance with Arizona financial reporting laws for condominiums. The core issue set for determination was whether the Association violated Arizona Revised Statutes (A.R.S.) § 33-1243(J) (the applicable statute for condominiums) by failing to share annual financial reports for the years 2017 through 2021.

Petitioner Deborah Mesear filed her petition on May 29, 2022, alleging the Association failed to provide annual audits despite multiple requests, stating she could find no evidence that audits had been completed.

Legal Framework and Arguments:

  1. Statutory Requirement: A.R.S. § 33-1243(J) mandates that the board provide for an annual financial audit, review or compilation of the association. This report must be completed no later than 180 days after the fiscal year ends and made available to unit owners within 30 days of completion.
  2. Association's Defense (Compilations vs. Audits): The Association confirmed through the testimony of its community manager, Carl Westlund, that it did not prepare full audits for the relevant years, but rather financial compilations, which are substantially more limited in scope and less expensive than an audit. The Association argued that choosing a compilation complies fully with A.R.S. § 33-1243(J), as the statute permits any one of the three report types.
  3. Sharing of Reports (2017–2020): After the petition was filed, the Association provided Mesear with the financial compilations for 2017 through 2020. Mesear received these reports but argued that compilations were incomplete financial reports.
  4. 2021 Report Issue: Mesear emphasized that the 2021 report had not been provided. The Association testified that a compilation for 2021 had been ordered from a new accountant but was not yet completed as of the September 15, 2022, hearing date. The Association argued that Mesear's petition, filed May 29, 2022, regarding the 2021 compilation was not yet ripe because the 180-day deadline for its completion had likely not yet passed.

Outcome and Legal Decision:

The Administrative Law Judge determined that the Petitioner bore the burden of proving a violation by a preponderance of the evidence.

The ALJ concluded that:

  • The Association was not required to prepare annual audits; selecting annual financial compilations satisfies A.R.S. § 33-1243(J).
  • The Association shared the compilations for 2017 through 2020 with Mesear.
  • The issue concerning the 2021 compilation was not ripe when the May 29, 2022, petition was filed.

Ms. Mesear failed to establish that the Association violated A.R.S. § 33-1243. The petition was ordered dismissed.

Questions

Question

Is my condo HOA legally required to perform a full financial audit every year?

Short Answer

Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.

Detailed Answer

Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.

Alj Quote

Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Financial Reports
  • Audits
  • HOA Obligations

Question

What is the deadline for the HOA to complete the annual financial report?

Short Answer

The report must be completed no later than 180 days after the end of the fiscal year.

Detailed Answer

The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.

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

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Deadlines
  • Financial Reports
  • Procedural Requirements

Question

Once the financial report is finished, how soon must the HOA provide it to me?

Short Answer

The HOA must make it available within 30 days of its completion upon request.

Detailed Answer

After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.

Alj Quote

and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Homeowner Rights
  • Transparency
  • Financial Reports

Question

Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?

Short Answer

No, a complaint filed before the deadline is considered premature (not ripe).

Detailed Answer

If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.

Alj Quote

Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.

Legal Basis

Ripeness Doctrine

Topic Tags

  • Legal Procedures
  • Filing Disputes
  • Deadlines

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Hearing Procedures

Question

What standard of proof is used in these administrative hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention more probably true than not.

Alj Quote

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

Legal Basis

Evidentiary Standard

Topic Tags

  • Legal Standards
  • Evidence

Question

If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?

Short Answer

No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.

Detailed Answer

While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.

Alj Quote

A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Jurisdiction
  • Statutes
  • Condominiums

Case

Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Is my condo HOA legally required to perform a full financial audit every year?

Short Answer

Not necessarily; a review or compilation is often sufficient unless the governing documents specifically require an audit.

Detailed Answer

Under Arizona law for condominiums, an association is not required to perform a full audit unless the specific condominium documents demand it. The law allows for an audit, a review, or a compilation.

Alj Quote

Unless any provision in the condominium documents requires an annual audit by a certified public accountant, the board of directors shall provide for an annual financial audit, review or compilation of the association.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Financial Reports
  • Audits
  • HOA Obligations

Question

What is the deadline for the HOA to complete the annual financial report?

Short Answer

The report must be completed no later than 180 days after the end of the fiscal year.

Detailed Answer

The association has a statutory window of 180 days following the close of the fiscal year to complete the required financial audit, review, or compilation.

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

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Deadlines
  • Financial Reports
  • Procedural Requirements

Question

Once the financial report is finished, how soon must the HOA provide it to me?

Short Answer

The HOA must make it available within 30 days of its completion upon request.

Detailed Answer

After the financial document (audit, review, or compilation) is completed, the association is legally obligated to make it available to unit owners who request it within a 30-day window.

Alj Quote

and shall be made available on request to the unit owners within thirty days after its completion.

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Homeowner Rights
  • Transparency
  • Financial Reports

Question

Can I file a complaint against my HOA for failing to provide a financial report before the 180-day deadline has passed?

Short Answer

No, a complaint filed before the deadline is considered premature (not ripe).

Detailed Answer

If a homeowner files a petition regarding a missing financial report before the statutory 180-day period has elapsed, the issue is not yet ripe for adjudication because the obligation is not yet due.

Alj Quote

Moreover, the issue of whether the Association complied with A.R.S. section 33-1243 for year 2021 was not yet ripe at the time that Ms. Mesear filed her May 29, 2022 petition, because a financial compilation was not yet due.

Legal Basis

Ripeness Doctrine

Topic Tags

  • Legal Procedures
  • Filing Disputes
  • Deadlines

Question

Who is responsible for proving that the HOA violated the law in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the petitioner must prove their case by a preponderance of the evidence.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. section 33-1243(J) by a preponderance of the evidence.

Legal Basis

Burden of Proof

Topic Tags

  • Legal Standards
  • Hearing Procedures

Question

What standard of proof is used in these administrative hearings?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard requires evidence that is sufficient to incline a fair and impartial mind to one side rather than the other, making the contention more probably true than not.

Alj Quote

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

Legal Basis

Evidentiary Standard

Topic Tags

  • Legal Standards
  • Evidence

Question

If I live in a condominium, can I cite the Planned Communities statutes (A.R.S. § 33-1810) in my complaint?

Short Answer

No, condominiums are governed by the Condominium Act, specifically A.R.S. § 33-1243(J) for financials.

Detailed Answer

While the requirements may be similar, the specific statute for planned communities does not apply to condominiums. Condominium owners must cite the applicable Condominium Act statutes.

Alj Quote

A.R.S. section 33-1810 applies to planned communities and does not apply to the Association. However, A.R.S. section 33-1243(J) applies to condominiums

Legal Basis

A.R.S. § 33-1243(J)

Topic Tags

  • Jurisdiction
  • Statutes
  • Condominiums

Case

Docket No
22F-H2222057-REL
Case Title
Deborah Mesear vs Paradise Park Condominiums Phase II Homeowners Association
Decision Date
2022-10-05
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Deborah Mesear (petitioner, witness)
    Also appears as Deborah Masear and Deborah Mesier in the sources.

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Holmgren Law Group
    Also appears as Ashley Moscarello, Esq. and Ashley Carillo.
  • Carl Westlund (property manager, witness)
    The Management Trust
    Community manager for Paradise Park Condominiums Phase II Homeowners Association.
  • Mark A. Holmgren (HOA attorney)
    Goodman Holmgren Law Group

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • A. Hansen (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
    Listed as administrative contact (Attn:).

Other Participants

  • Miranda Alvarez (legal secretary)
    Signed transmission notice.
  • c. serrano (legal secretary)
    Signed transmission notice.

Oak Creek Knolls Property Owners Association, Inc. v. Kim. M. Grill

Posted on by

Case Summary

Case ID 22F-H2222039-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-03
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge denied the petition, finding that the HOA failed to prove the homeowner violated the CC&Rs regarding leasing/occupancy rules, as the homeowner and her roommate's arrangement met the undefined term 'common household' required for a 'Single Family' occupancy.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Oak Creek Knolls Property Owners Association, Inc. Counsel Augustus H. Shaw, IV
Respondent Kim M. Grill Counsel Lawrence J. Felder

Alleged Violations

Article 2, Section 2.11 of the Restatement of Declaration of Covenants, Conditions and Restrictions (CC&Rs)

Outcome Summary

The Administrative Law Judge denied the petition, finding that the HOA failed to prove the homeowner violated the CC&Rs regarding leasing/occupancy rules, as the homeowner and her roommate's arrangement met the undefined term 'common household' required for a 'Single Family' occupancy.

Why this result: The HOA failed to meet the burden of proving that the homeowner's temporary roommate agreement constituted a violation of CC&R Article 2, Section 2.11.

Key Issues & Findings

Residential Use/Leasing Restrictions

Petitioner HOA alleged Respondent homeowner violated CC&R Article 2, Section 2.11 by entering into a roommate agreement while residing in the home, interpreting this as leasing less than the entire unit and arguing the parties did not constitute a 'Single Family' maintaining a 'common household.'

Orders: Petitioner’s petition denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. §§ 32-2102
  • 32-2199 et seq.
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA, Rental Restriction, Common Household, Single Family, Roommate, CC&R Enforcement, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. §§ 32-2102
  • 32-2199 et seq.
  • ARIZ. ADMIN. CODE R2-19-119
  • CC&Rs Article 2, Section 2.11

Video Overview

Audio Overview

Decision Documents

22F-H2222039-REL Decision – 1003618.pdf

Uploaded 2026-04-24T11:49:13 (125.6 KB)

22F-H2222039-REL Decision – 972982.pdf

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22F-H2222039-REL Decision – 973826.pdf

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22F-H2222039-REL Decision – 974120.pdf

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22F-H2222039-REL Decision – 1003618.pdf

Uploaded 2026-01-23T17:46:15 (125.6 KB)

22F-H2222039-REL Decision – 972982.pdf

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22F-H2222039-REL Decision – 973826.pdf

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22F-H2222039-REL Decision – 974120.pdf

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This case was heard by Administrative Law Judge Tammy L. Eigenheer at the Office of Administrative Hearings on August 4, 2022, concerning a dispute referred by the Arizona Department of Real Estate. The Petitioner, Oak Creek Knolls Property Owners Association, Inc., sought enforcement against the Respondent, property owner Kim M. Grill.

Key Facts and Main Issue

The Petitioner alleged that Respondent Grill violated Article 2, Section 2.11 of the Restatement of Declaration of Covenants, Conditions and Restrictions (CC&Rs). This section requires that residential units be used exclusively by a "Single Family" and prohibits an owner from leasing "less than the entire unit" or using the unit for transient purposes, mandating a minimum 30-day lease term.

The dispute focused on a "Temporary roommate agreement" between Respondent Grill and Ken Snyder, a semi-retired attorney, for a period exceeding 30 days, where Mr. Snyder was afforded "full access to all living spaces" of the home. Although the Association's Disclosure Statement, signed by Grill, stated an owner "may NOT occupy a home at the same time as renting out the home," this statement was determined by the ALJ not to constitute a binding agreement, but merely the Association's interpretation.

Legal Arguments and Proceedings

  1. Jurisdiction: Initially, the question of whether the Association met the statutory definition of a planned community, vesting jurisdiction in the OAH, was raised. After receiving additional briefing, the ALJ concluded that the Petitioner did meet the statutory definition, confirming jurisdiction.
  2. Petitioner’s Argument: The Association argued that Grill's co-occupancy while receiving rent constituted a violation, primarily because she was leasing less than the entire unit to a non-family member while residing there. Witnesses argued that the owner's presence simultaneously with renters "is what causes the damage or detriment," asserting that failure to comply with the letter of the law harms the community scheme.
  3. Respondent’s Argument: Respondent argued the arrangement complied because the CC&Rs define "Single Family" to include a "group of not more than three (3) persons not all so related, who maintain a common household". Since the agreement was long-term and provided Mr. Snyder full access, the key legal question was whether Grill and Snyder maintained a "common household". Respondent emphasized that there was no evidence of noise, disturbance, or actual detriment caused by Mr. Snyder.

Outcome and Final Decision

The Petitioner bore the burden of proving the CC&R violation by a preponderance of the evidence.

The ALJ noted that the term "common household" was not defined in the CC&Rs and was "open to different interpretations". The arrangement, involving Mr. Snyder paying a share of living expenses (including utilities, internet, and cable TV) and having full access to the entire property, could "reasonably be interpreted to constitute evidence of a 'common household'".

The Administrative Law Judge Decision concluded that the Petitioner failed to establish by a preponderance of the evidence that the Agreement with Mr. Snyder violated Article 2, Section 2.11 of the CC&Rs. Therefore, the Petitioner's petition was denied. The decision was issued on October 3, 2022.

Questions

Question

Who has the burden of proof when an HOA alleges a violation of the CC&Rs?

Short Answer

The HOA (Petitioner) bears the burden of proof by a preponderance of the evidence.

Detailed Answer

In a dispute before the OAH between an owner and an association, the HOA must prove that the homeowner violated the specific provision of the CC&Rs. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 2, Section 2.11 of the CC&Rs.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • dispute resolution

Question

Can an HOA enforce a rule interpretation found in a 'Disclosure Statement' that isn't explicitly in the CC&Rs?

Short Answer

No, a disclosure statement representing the HOA's interpretation is not necessarily a binding agreement.

Detailed Answer

Even if a homeowner acknowledges a disclosure statement during purchase, if that statement merely reflects the HOA's interpretation of the governing documents (e.g., claiming an owner cannot occupy the home while renting it), it does not constitute a binding contract separate from the CC&Rs themselves.

Alj Quote

Notably, Petitioners assertion on the Disclosure Statement that '[a]n owner may NOT occupy a home at the same time as renting out the home' did not constitute a binding agreement between Petitioner and Respondent, but was merely Respondent’s statement indicating its interpretation of the governing documents.

Legal Basis

Contract Law Principles

Topic Tags

  • disclosure statements
  • enforceability
  • governing documents

Question

If my CC&Rs prohibit leasing 'less than the entire unit,' can I still have a roommate?

Short Answer

Potentially yes, if the roommate has full access to the entire property and shares living expenses.

Detailed Answer

The ALJ found that a 'roommate agreement' granting the tenant full access to all living spaces and sharing expenses (utilities, internet, etc.) did not violate a ban on leasing less than the entire unit, as the tenant was not restricted to a specific portion of the home.

Alj Quote

By its terms, the Agreement was for a period of greater than 30 days and afforded Mr. Snyder access to the entire unit.

Legal Basis

CC&R Interpretation

Topic Tags

  • rentals
  • roommates
  • leasing restrictions

Question

How does an HOA define a 'Single Family' if unrelated people live together?

Short Answer

It may depend on whether the group maintains a 'common household.'

Detailed Answer

If the CC&Rs define 'Single Family' to include a group of unrelated persons maintaining a 'common household,' acts like sharing utility costs, living expenses, and having full access to the property can serve as evidence of a common household.

Alj Quote

This arrangement, together with the fact that Mr. Snyder had full access to the entire property, could reasonably be interpreted to constitute evidence of a 'common household.'

Legal Basis

CC&R Definitions

Topic Tags

  • single family definition
  • occupancy limits
  • common household

Question

What happens if a key term like 'common household' is not defined in the CC&Rs?

Short Answer

Undefined terms are open to different reasonable interpretations.

Detailed Answer

When the governing documents fail to define a critical term, it creates ambiguity. In this case, the lack of a definition for 'common household' allowed for an interpretation that included a homeowner and a roommate sharing expenses.

Alj Quote

The term 'common household' was not defined in the CC&Rs and is open to different interpretations.

Legal Basis

Contract Interpretation

Topic Tags

  • ambiguity
  • definitions
  • legal interpretation

Question

Can I rent out a room if my CC&Rs require leases to be for a minimum of 30 days?

Short Answer

Yes, as long as the lease meets the time requirement and grants access to the whole unit (if partial leasing is banned).

Detailed Answer

The ALJ ruled in favor of the homeowner where the roommate agreement was for 12 months (satisfying the 30-day minimum) and granted access to the entire home, distinguishing it from short-term transient use or partial leasing.

Alj Quote

By its terms, the Agreement was for a period of greater than 30 days and afforded Mr. Snyder access to the entire unit.

Legal Basis

CC&R Compliance

Topic Tags

  • rental restrictions
  • lease terms
  • minimum stay

Case

Docket No
22F-H2222039-REL
Case Title
Oak Creek Knolls Property Owners Association, Inc. vs Kim M. Grill
Decision Date
2022-10-03
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Questions

Question

Who has the burden of proof when an HOA alleges a violation of the CC&Rs?

Short Answer

The HOA (Petitioner) bears the burden of proof by a preponderance of the evidence.

Detailed Answer

In a dispute before the OAH between an owner and an association, the HOA must prove that the homeowner violated the specific provision of the CC&Rs. The standard is 'preponderance of the evidence,' meaning it is more probable than not that the violation occurred.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Article 2, Section 2.11 of the CC&Rs.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • legal standards
  • dispute resolution

Question

Can an HOA enforce a rule interpretation found in a 'Disclosure Statement' that isn't explicitly in the CC&Rs?

Short Answer

No, a disclosure statement representing the HOA's interpretation is not necessarily a binding agreement.

Detailed Answer

Even if a homeowner acknowledges a disclosure statement during purchase, if that statement merely reflects the HOA's interpretation of the governing documents (e.g., claiming an owner cannot occupy the home while renting it), it does not constitute a binding contract separate from the CC&Rs themselves.

Alj Quote

Notably, Petitioners assertion on the Disclosure Statement that '[a]n owner may NOT occupy a home at the same time as renting out the home' did not constitute a binding agreement between Petitioner and Respondent, but was merely Respondent’s statement indicating its interpretation of the governing documents.

Legal Basis

Contract Law Principles

Topic Tags

  • disclosure statements
  • enforceability
  • governing documents

Question

If my CC&Rs prohibit leasing 'less than the entire unit,' can I still have a roommate?

Short Answer

Potentially yes, if the roommate has full access to the entire property and shares living expenses.

Detailed Answer

The ALJ found that a 'roommate agreement' granting the tenant full access to all living spaces and sharing expenses (utilities, internet, etc.) did not violate a ban on leasing less than the entire unit, as the tenant was not restricted to a specific portion of the home.

Alj Quote

By its terms, the Agreement was for a period of greater than 30 days and afforded Mr. Snyder access to the entire unit.

Legal Basis

CC&R Interpretation

Topic Tags

  • rentals
  • roommates
  • leasing restrictions

Question

How does an HOA define a 'Single Family' if unrelated people live together?

Short Answer

It may depend on whether the group maintains a 'common household.'

Detailed Answer

If the CC&Rs define 'Single Family' to include a group of unrelated persons maintaining a 'common household,' acts like sharing utility costs, living expenses, and having full access to the property can serve as evidence of a common household.

Alj Quote

This arrangement, together with the fact that Mr. Snyder had full access to the entire property, could reasonably be interpreted to constitute evidence of a 'common household.'

Legal Basis

CC&R Definitions

Topic Tags

  • single family definition
  • occupancy limits
  • common household

Question

What happens if a key term like 'common household' is not defined in the CC&Rs?

Short Answer

Undefined terms are open to different reasonable interpretations.

Detailed Answer

When the governing documents fail to define a critical term, it creates ambiguity. In this case, the lack of a definition for 'common household' allowed for an interpretation that included a homeowner and a roommate sharing expenses.

Alj Quote

The term 'common household' was not defined in the CC&Rs and is open to different interpretations.

Legal Basis

Contract Interpretation

Topic Tags

  • ambiguity
  • definitions
  • legal interpretation

Question

Can I rent out a room if my CC&Rs require leases to be for a minimum of 30 days?

Short Answer

Yes, as long as the lease meets the time requirement and grants access to the whole unit (if partial leasing is banned).

Detailed Answer

The ALJ ruled in favor of the homeowner where the roommate agreement was for 12 months (satisfying the 30-day minimum) and granted access to the entire home, distinguishing it from short-term transient use or partial leasing.

Alj Quote

By its terms, the Agreement was for a period of greater than 30 days and afforded Mr. Snyder access to the entire unit.

Legal Basis

CC&R Compliance

Topic Tags

  • rental restrictions
  • lease terms
  • minimum stay

Case

Docket No
22F-H2222039-REL
Case Title
Oak Creek Knolls Property Owners Association, Inc. vs Kim M. Grill
Decision Date
2022-10-03
Alj Name
Tammy L. Eigenheer
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Augustus H. Shaw, IV (HOA Attorney)
    SHAW & LINES LLC
    Represented Petitioner Oak Creek Knolls Property Owners Association, Inc.
  • Lisa Frost (Board Member/Witness)
    Oak Creek Knolls POA
    Association Secretary and testifying witness
  • Brenda Keller (Board Member/Witness)
    Oak Creek Knolls POA
    Alternate Director/Chair of the Architectural Committee and testifying witness
  • Dana Shel (Board Member)
    Oak Creek Knolls POA
    Association Board President
  • Denise Dotto (Neighbor/Complainant)
    Adjacent property owner whose concerns were noted by Petitioner's witnesses

Respondent Side

  • Kim M. Grill (Respondent)
    Property owner and Association member
  • Lawrence J. Felder (Respondent Attorney)
    Doncaster Law, PLLC
    Represented Respondent Kim M. Grill

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
    Administrative Law Judge
  • Louis Dettorre (ADRE Commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate
  • AHansen (ADRE Staff)
    ADRE
    Transmittal recipient
  • vnunez (ADRE Staff)
    ADRE
    Transmittal recipient
  • djones (ADRE Staff)
    ADRE
    Transmittal recipient
  • labril (ADRE Staff)
    ADRE
    Transmittal recipient
  • Miranda Alvarez (Legal Secretary)
    Transmitting administrative staff
  • c. serrano (Administrative Staff)
    Transmitting administrative staff

Other Participants

  • Ken Snyder (Housemate/Non-party)
    Individual renting under the temporary roommate agreement with Respondent
  • David Goldman (Housemate/Non-party)
    Another individual residing at Respondent's property
  • Bruce Eert (Neighbor)
  • Chris Green (Neighbor)

Robert C. Ochs v. The Camelview Greens Homeowners Association

Posted on by

Case Summary

Case ID 22F-H2222048-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-04
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1805, concluding that the requested materials lists and specifications were not 'financial and other records of the association' that the HOA was legally required to possess and provide within 10 business days.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert C. Ochs Counsel —
Respondent The Camelview Greens Homeowners Association Counsel Ashley Moscarello, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805 A

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1805, concluding that the requested materials lists and specifications were not 'financial and other records of the association' that the HOA was legally required to possess and provide within 10 business days.

Why this result: Petitioner failed to sustain the burden of proof that the Respondent violated the records request statute.

Key Issues & Findings

Alleged violation of records request statute (failure to timely provide materials lists/specifications related to roof replacement/repairs).

Petitioner requested materials lists and specifications regarding recent (Sept 2021) and past (since 1986) roof work on February 27, 2022. The Association provided a scope of work document from the vendor on May 11, 2022, after the petition was filed. The ALJ determined the requested documents were not established to be 'financial and other records of the association' as contemplated by the statute, and TMT was not in possession of them at the time of the request.

Orders: Petitioner's petition and request for a civil penalty were denied. Respondent was not ordered to reimburse Petitioner's filing fee.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805 A
  • ARIZ. REV. STAT. § 32-2199.02 A
  • ARIZ. REV. STAT. § 32-2199.05

Analytics Highlights

Topics: HOA records request, Planned Community Act, Roof Repair/Replacement, Condominium, Burden of Proof
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.02
  • 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. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 32-2199.04
  • ARIZ. REV. STAT. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222048-REL Decision – 1003691.pdf

Uploaded 2026-01-23T17:48:15 (160.6 KB)

22F-H2222048-REL Decision – 979940.pdf

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22F-H2222048-REL Decision – 979959.pdf

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22F-H2222048-REL Decision – 985762.pdf

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22F-H2222048-REL Decision – 986375.pdf

Uploaded 2026-01-23T17:48:22 (52.8 KB)

This summary focuses on the hearing held on September 19, 2022, before Administrative Law Judge Jenna Clark, regarding Petitioner Robert C. Ochs versus the Camel View Green Homeowners Association (HOA), concerning an alleged violation of Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1805 subsection A.

Key Facts and Underlying Dispute

The dispute arose after Petitioner Ochs' investment property sustained over $30,000 in interior damage following a severe storm in July 2021, necessitating roof replacement by the HOA's vendor around September/October 2021. When the roof leaked again in February 2022, Petitioner sought documentation regarding the repairs.

On February 27, 2022, Petitioner submitted a two-part records request to the HOA's management company (TMT), seeking: (1) materials lists and specifications for the most recent roof replacement, and (2) materials lists and specifications for all past replacements/repairs since 1986. The HOA manager replied on March 3, 2022, indicating she was "working on" the request. Petitioner filed a petition on or about April 24, 2022, after receiving no further documentation or substantive response. The HOA's legal counsel finally provided a "scope of work" document from the roofing vendor (dated September 7, 2021) on May 11, 2022, after the petition was filed.

Main Issues and Legal Arguments

The central issue was whether the HOA violated ARIZ. REV. STAT. § 33-1805A, which requires an association to make "all financial and other records of the association" reasonably available for examination within ten business days of a request.

  1. Petitioner's Argument: Petitioner argued the HOA violated the 10-day requirement. He contended that the materials lists and specifications related to the recent repair were "other records of the association" because the HOA (Camel View Greens) would have received and retained this documentation (like the "scope of work") to verify and pay the vendor's invoice by the end of 2021.
  2. Respondent's Argument: The HOA denied the violation. They argued that the materials lists and specifications requested are not "association records" contemplated by the statute, nor are they records the nonprofit corporation keeps in the ordinary course of business (unlike meeting minutes or financial records). These records belong to the vendor, who is not subject to the 10-day statutory requirement. Furthermore, the witness (Carl Westlund) testified that the management company (TMT, which started managing in 2018) did not possess the specific documents requested at the time of the request.

Legal Points and Findings

The Administrative Law Judge (ALJ) concluded that the Petitioner did not meet the burden of proof.

  • The ALJ found that the request for 35 years of prior records (since 1986) was unreasonable because the current management company (TMT) confirmed it did not obtain those records from its predecessor.
  • Regarding the records for the recent replacement, the request was not unreasonable, but the documents sought were not records kept in the ordinary course of business.
  • The record did not establish *when* the HOA or TMT received the "scope of work" from the vendor (Ideal Roofing), so it could not be proven that the document should have been supplied within the 10-day statutory window (March 11, 2022).
  • The Petitioner failed to establish that the documents were "financial" or constituted "other records of the association" as required by ARIZ. REV. STAT. § 33-1805.

Outcome

The Administrative Law Judge issued a decision on October 4, 2022, concluding that the Association's conduct was not in violation of ARIZ. REV. STAT. § 33-1805. Petitioner's petition and the request for a civil penalty were denied, and the Respondent was not required to reimburse the Petitioner's filing fee.

{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “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”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }

{ “case”: { “docket_no”: “22F-H2222048-REL”, “case_title”: “Robert C. Ochs vs. The Camelview Greens Homeowners Association”, “decision_date”: “2022-10-04”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If my HOA does not have a specific document I requested, are they required to obtain it from a vendor to fulfill my request?”, “short_answer”: “No. The HOA is not obligated to produce records it does not possess or keep in the ordinary course of business.”, “detailed_answer”: “If an HOA management company is not in possession of a specific document (such as a materials list held by a third-party contractor) at the time of the request, they are not legally obligated to obtain it or provide it within the 10-day statutory window. A failure to provide a document the HOA never possessed is not a statutory violation.”, “alj_quote”: “What the record reflects is that TMT was never in possession of the documents in Petitioner’s request. While TMT could have provided notice of such within 10 business days, they were under no legal obligation to do so. No statutory violation(s) exist.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “vendor documents”, “HOA obligations” ] }, { “question”: “Is the HOA required to mail or email me copies of the records I request?”, “short_answer”: “Not necessarily. The primary statutory requirement is to make records available for examination.”, “detailed_answer”: “The Administrative Law Judge clarified that the statute strictly requires the HOA to reasonably permit a homeowner to examine records. While providing copies is common, the explicit statutory requirement is for examination.”, “alj_quote”: “Notably, ARIZ. REV. STAT. § 33-1805 does not require a Homeowner’s Association to provide copies of records upon request of a homeowner. Rather, the statute requires only that the association reasonably permit a homeowner to examine records.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “procedural requirements”, “copies vs examination” ] }, { “question”: “Can I request historical records dating back several decades?”, “short_answer”: “Requests for very old records may be deemed unreasonable, especially if management companies have changed.”, “detailed_answer”: “A request for records spanning 35 years was found to be unreasonable in this case, particularly because the current management company testified they did not receive such records from the previous management company.”, “alj_quote”: “Petitioner’s secondary request for 35 years’ worth records was unreasonable, as uncontroverted testimony established that TMT did not obtain any records from its predecessor upon the commencement of its position.”, “legal_basis”: “Reasonableness standard”, “topic_tags”: [ “historical records”, “reasonableness”, “management transition” ] }, { “question”: “How many days does the HOA have to fulfill a request to examine records?”, “short_answer”: “The HOA has ten business days.”, “detailed_answer”: “Under Arizona law, an association must allow a member to examine financial and other records within ten business days of the request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “deadlines”, “statutory requirements” ] }, { “question”: “Do detailed materials lists from contractors count as ‘official records’ of the association?”, “short_answer”: “Not automatically. If they are not kept in the ordinary course of business, they may not be considered association records.”, “detailed_answer”: “The ALJ found that specific materials lists and specifications from a vendor, which were not kept by the HOA in the ordinary course of business, did not constitute ‘financial’ or ‘other records of the association’ that the HOA was mandated to provide.”, “alj_quote”: “Petitioner did not establish that the documents in his records request were ‘financial’ or constituted ‘other records of the association’ as required by law.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “definition of records”, “contractor documents” ] }, { “question”: “Who is responsible for proving that the HOA violated the law?”, “short_answer”: “The homeowner (petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner filing the petition must prove by a ‘preponderance of the evidence’ that the HOA violated the statute.”, “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”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] } ] }

Case Participants

Petitioner Side

  • Robert C. Ochs (petitioner)
    Appeared on his own behalf

Respondent Side

  • Ashley N. Moscarello (HOA attorney)
    Goodman Holmgren
    Appeared on behalf of respondent
  • Carl Westlund (witness)
    The Management Trust
    Division Vice President of Community Management at TMT
  • Shauna Carr (property manager)
    The Management Trust
    Former executive community manager for Camel View Greens
  • Dameon Cons (HOA attorney)
    Goodman Holmgren
    Sent response letter to Petitioner
  • Mark A. Holmgren (HOA attorney)
    Goodman Holmgren
    Counsel for Respondent listed on transmittals

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
  • Miranda Alvarez (Legal Secretary)
    OAH
    Transmitted orders/minute entries
  • AHansen (ADRE Staff)
    ADRE
    Recipient of official documents
  • vnunez (ADRE Staff)
    ADRE
    Recipient of official documents
  • djones (ADRE Staff)
    ADRE
    Recipient of official documents
  • labril (ADRE Staff)
    ADRE
    Recipient of official documents

Other Participants

  • Jeff Centers (vendor/project manager)
    Vendor
    Contractor hired by the community