John R Krahn Living Trust & Janet Krahn Living Trust
Counsel
—
Respondent
Tonto Forest Estates Homeowners Association
Counsel
—
Alleged Violations
ARIZ. REV. STAT. § 33-1805
Outcome Summary
The Administrative Law Judge affirmed the Petitioner's petition, finding the Respondent violated ARIZ. REV. STAT. § 33-1805 by failing to provide requested financial records (check registers) within the mandated ten business days. The request for civil penalties was denied, but the Respondent was ordered to reimburse the $500.00 filing fee.
Why this result: Petitioner failed to provide sufficient evidence that Respondent's actions warranted the issuance of civil penalties.
Key Issues & Findings
Failure to provide association financial records (check registers) within 10 business days
Respondent failed to provide the requested check registers within the ten business day statutory requirement for requests made on December 1, 2022, and July 26, 2023. The first request was fulfilled on April 6, 2023, and the second on November 21, 2023.
Orders: The Administrative Law Judge affirmed the petition, concluded Respondent violated ARS § 33-1805, and ordered Respondent to reimburse Petitioner the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.02(A)
Analytics Highlights
Topics: HOA Records Request, Financial Records, Check Register, Timeliness Violation, Civil Penalties Denied
Additional Citations:
ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 41-1092 et seq.
Video Overview
Audio Overview
Decision Documents
24F-H013-REL Decision – 1115590.pdf
Uploaded 2026-01-23T18:02:05 (57.6 KB)
24F-H013-REL Decision – 1125702.pdf
Uploaded 2026-01-23T18:02:10 (127.1 KB)
Study Guide – 24F-H013-REL
{ “case”: { “docket_no”: “24F-H013-REL”, “case_title”: “John R Krahn Living Trust & Janet Krahn Living Trust v Tonto Forest Estates Homeowners Association”, “decision_date”: “2023-12-19”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a check register considered an official financial record that an HOA must provide upon request?”, “short_answer”: “Yes. The decision confirms that check registers are undisputed financial records under Arizona law.”, “detailed_answer”: “The Administrative Law Judge ruled that a check register qualifies as a financial record. Consequently, homeowners are entitled to review these documents when requested under A.R.S. § 33-1805.”, “alj_quote”: “It was undisputed that a check register is a financial record within the meaning of ARIZ. REV. STAT. § 33-1805. Thus, Mr. Krahn was entitled to the requested financial record.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “financial records”, “check register” ] }, { “question”: “How many days does the HOA have to fulfill my request to inspect records?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination.”, “detailed_answer”: “Arizona statute mandates a specific timeframe for HOAs to comply with record requests. Failure to provide access within ten business days constitutes a violation of the statute.”, “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”, “records request”, “compliance” ] }, { “question”: “Can the HOA charge me a fee just to review the records?”, “short_answer”: “No. The HOA cannot charge a member for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies (up to fifteen cents per page), they are explicitly prohibited from charging a fee for the act of making materials available for a member’s review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review… An association may charge a fee for making copies of not more than fifteen cents per page.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “fees”, “records request”, “homeowner rights” ] }, { “question”: “If the HOA eventually provides the records months later, is it still a violation?”, “short_answer”: “Yes. Providing records after the ten-business-day deadline is considered a violation of the statute.”, “detailed_answer”: “Even if the HOA fulfills the request eventually, missing the ten-day statutory window establishes a violation. In this case, delays of several months were deemed violations despite the records ultimately being provided.”, “alj_quote”: “Both requests were fulfilled beyond the ten business day statutory requirement. Therefore, the Administrative Law Judge concludes that Respondent’s conduct… was in violation of the charged provision of ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “compliance”, “deadlines”, “violations” ] }, { “question”: “If I win my case against the HOA, will I get my filing fee back?”, “short_answer”: “Yes. If the petitioner prevails, the judge must order the HOA to reimburse the filing fee.”, “detailed_answer”: “Reimbursement of the filing fee is mandatory under A.R.S. § 32-2199.02(A) when the homeowner prevails in the hearing.”, “alj_quote”: “If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “legal costs” ] }, { “question”: “Will the judge automatically fine the HOA (civil penalties) if they are found in violation?”, “short_answer”: “No. Civil penalties are not automatic; the homeowner must provide sufficient evidence that the HOA’s actions warrant them.”, “detailed_answer”: “While the judge has the authority to levy civil penalties for each violation, they may deny them if the petitioner fails to provide sufficient evidence justifying such penalties, even if a statutory violation is proven.”, “alj_quote”: “Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties… Thus, civil penalties ought to be denied.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “civil penalties”, “fines”, “enforcement” ] }, { “question”: “Who has the burden of proof in an HOA dispute hearing?”, “short_answer”: “The homeowner (petitioner) bears the burden of proving the violation.”, “detailed_answer”: “The party bringing the complaint must prove their case by a ‘preponderance of the evidence,’ meaning they must show it is more likely than not 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”: “Ariz. Admin. Code R2-19-119”, “topic_tags”: [ “burden of proof”, “procedure”, “evidence” ] }, { “question”: “Can the HOA simply tell me the records are on an online portal if they aren’t actually there?”, “short_answer”: “No. Incorrectly stating records are on a portal does not satisfy the requirement if the records are not actually available.”, “detailed_answer”: “In this case, the HOA claimed records were available online, but the homeowner proved they were not. The ALJ found the HOA in violation for failing to provide the records within the statutory time, regardless of the portal claims.”, “alj_quote”: “Respondent… stated he must submit a written request by certified mail and reiterated the financial documents were available through the online portal. At the time, the check registers were not available through the online portal… the Administrative Law Judge concludes that Respondent’s conduct… was in violation”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “online portal”, “access to records”, “bad faith” ] } ] }
Blog Post – 24F-H013-REL
{ “case”: { “docket_no”: “24F-H013-REL”, “case_title”: “John R Krahn Living Trust & Janet Krahn Living Trust v Tonto Forest Estates Homeowners Association”, “decision_date”: “2023-12-19”, “alj_name”: “Brian Del Vecchio”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a check register considered an official financial record that an HOA must provide upon request?”, “short_answer”: “Yes. The decision confirms that check registers are undisputed financial records under Arizona law.”, “detailed_answer”: “The Administrative Law Judge ruled that a check register qualifies as a financial record. Consequently, homeowners are entitled to review these documents when requested under A.R.S. § 33-1805.”, “alj_quote”: “It was undisputed that a check register is a financial record within the meaning of ARIZ. REV. STAT. § 33-1805. Thus, Mr. Krahn was entitled to the requested financial record.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “records request”, “financial records”, “check register” ] }, { “question”: “How many days does the HOA have to fulfill my request to inspect records?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination.”, “detailed_answer”: “Arizona statute mandates a specific timeframe for HOAs to comply with record requests. Failure to provide access within ten business days constitutes a violation of the statute.”, “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”, “records request”, “compliance” ] }, { “question”: “Can the HOA charge me a fee just to review the records?”, “short_answer”: “No. The HOA cannot charge a member for making material available for review.”, “detailed_answer”: “While the HOA can charge for copies (up to fifteen cents per page), they are explicitly prohibited from charging a fee for the act of making materials available for a member’s review.”, “alj_quote”: “The association shall not charge a member or any person designated by the member in writing for making material available for review… An association may charge a fee for making copies of not more than fifteen cents per page.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “fees”, “records request”, “homeowner rights” ] }, { “question”: “If the HOA eventually provides the records months later, is it still a violation?”, “short_answer”: “Yes. Providing records after the ten-business-day deadline is considered a violation of the statute.”, “detailed_answer”: “Even if the HOA fulfills the request eventually, missing the ten-day statutory window establishes a violation. In this case, delays of several months were deemed violations despite the records ultimately being provided.”, “alj_quote”: “Both requests were fulfilled beyond the ten business day statutory requirement. Therefore, the Administrative Law Judge concludes that Respondent’s conduct… was in violation of the charged provision of ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “compliance”, “deadlines”, “violations” ] }, { “question”: “If I win my case against the HOA, will I get my filing fee back?”, “short_answer”: “Yes. If the petitioner prevails, the judge must order the HOA to reimburse the filing fee.”, “detailed_answer”: “Reimbursement of the filing fee is mandatory under A.R.S. § 32-2199.02(A) when the homeowner prevails in the hearing.”, “alj_quote”: “If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “legal costs” ] }, { “question”: “Will the judge automatically fine the HOA (civil penalties) if they are found in violation?”, “short_answer”: “No. Civil penalties are not automatic; the homeowner must provide sufficient evidence that the HOA’s actions warrant them.”, “detailed_answer”: “While the judge has the authority to levy civil penalties for each violation, they may deny them if the petitioner fails to provide sufficient evidence justifying such penalties, even if a statutory violation is proven.”, “alj_quote”: “Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties… Thus, civil penalties ought to be denied.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “civil penalties”, “fines”, “enforcement” ] }, { “question”: “Who has the burden of proof in an HOA dispute hearing?”, “short_answer”: “The homeowner (petitioner) bears the burden of proving the violation.”, “detailed_answer”: “The party bringing the complaint must prove their case by a ‘preponderance of the evidence,’ meaning they must show it is more likely than not 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”: “Ariz. Admin. Code R2-19-119”, “topic_tags”: [ “burden of proof”, “procedure”, “evidence” ] }, { “question”: “Can the HOA simply tell me the records are on an online portal if they aren’t actually there?”, “short_answer”: “No. Incorrectly stating records are on a portal does not satisfy the requirement if the records are not actually available.”, “detailed_answer”: “In this case, the HOA claimed records were available online, but the homeowner proved they were not. The ALJ found the HOA in violation for failing to provide the records within the statutory time, regardless of the portal claims.”, “alj_quote”: “Respondent… stated he must submit a written request by certified mail and reiterated the financial documents were available through the online portal. At the time, the check registers were not available through the online portal… the Administrative Law Judge concludes that Respondent’s conduct… was in violation”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “online portal”, “access to records”, “bad faith” ] } ] }
Case Participants
Petitioner Side
John R Krahn(petitioner) John R Krahn Living Trust & Janet Krahn Living Trust Trustee and Hearing Representative for Petitioner
Janet Krahn(petitioner) John R Krahn Living Trust & Janet Krahn Living Trust
Respondent Side
Steve Gower(HOA president) Tonto Forest Estates Homeowners Association Respondent representative at hearing
Kurt Meister(board member) Tonto Forest Estates Homeowners Association Former Board President who filed initial response
Melissa Jordan(property manager) Ogden Community Management Former Community Manager who handled early communication (also referred to as 'Melissa')
Dan Francom(HOA attorney) Attorney for HOA (Tonto Forest Estates)
Barbara(property manager) Ogden Community Management Current Community Manager (referred to by first name only)
Ken(board member) Tonto Forest Estates Homeowners Association Board member (referred to by first name only)
Todd(board member) Tonto Forest Estates Homeowners Association Board member (referred to by first name only)
Jean(former board member) Tonto Forest Estates Homeowners Association Former board member (referred to by first name only)
Neutral Parties
Brian Del Vecchio(ALJ) OAH Administrative Law Judge for the hearing and decision
Velva Moses-Thompson(ALJ) OAH Administrative Law Judge who signed the initial Order
Susan Nicolson(Commissioner) ADRE
AHansen(ADRE staff) ADRE Recipient of official correspondence
vnunez(ADRE staff) ADRE Recipient of official correspondence
djones(ADRE staff) ADRE Recipient of official correspondence
labril(ADRE staff) ADRE Recipient of official correspondence
Diane Mahowski(ALJ) OAH Referenced in prior ALJ ruling cited as precedent
Lang(ALJ) OAH Referenced in prior ALJ ruling cited as precedent (last name only)
Other Participants
Michael Holland(party) Referenced as a party in a prior ADR dispute regarding records
Dennis Lair(HOA law advocate) Arizona Homeowners Coalition Referenced expert/advocate
The Administrative Law Judge dismissed the Petition, finding that the Petitioner failed to sustain the burden of proof to show the Respondent violated the open meeting statute (A.R.S. § 33-1804(A)). The Board provided open meetings where the management contract discussions and votes occurred, including allowing the Petitioner and other homeowners to comment.
Why this result: Petitioner failed to sustain the burden of proof to establish a violation of A.R.S. § 33-1804(A) by a preponderance of the evidence.
Key Issues & Findings
Violation of the open meeting statute regarding entering into a contract with a new Community Association Management Company.
Petitioner alleged Respondent violated A.R.S. § 33-1804(A) by canceling the existing community management contract and entering a contract with a new company (Haywood Realty & Investment, Inc.) without allowing open discussion, member comment, motion, and a vote regarding the change and the acquisition of Requests for Proposals (RFPs).
Orders: Petitioner’s Petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1804(A)
Analytics Highlights
Topics: HOA Open Meetings, Management Contract, Request for Proposals, Burden of Proof
Additional Citations:
ARS 33-1804(A)
Video Overview
Audio Overview
Decision Documents
24F-H011-REL Decision – 1116173.pdf
Uploaded 2026-01-23T18:01:52 (111.6 KB)
Study Guide – 24F-H011-REL
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1112606.aac
1116173.pdf
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24F-H011-REL
2 sources
These sources document an administrative hearing regarding a dispute between Samuel T. Paparazzo and the Coronado Ranch Community Association over alleged open meeting violations. The petitioner contended that the board hired a new management company without proper public discussion, member input, or a formal vote as required by Arizona law. In response, the board treasurer testified that the transition was discussed across multiple open sessions and that the final decision was made during a meeting where the petitioner himself provided verbal testimony. Evidence showed that while the official meeting minutes were occasionally incomplete, the board had made significant efforts to inform homeowners through Facebook and email. Ultimately, the Administrative Law Judge dismissed the petition, ruling that the association provided sufficient opportunity for member participation before executing the new contract.
What was the final outcome of the HOA dispute hearing?
How did the treasurer defend the board’s decision-making process?
Explain the member’s specific complaints about the new contract.
Thursday, February 12
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Today • 3:35 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Blog Post – 24F-H011-REL
Select all sources
1112606.aac
1116173.pdf
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24F-H011-REL
2 sources
These sources document an administrative hearing regarding a dispute between Samuel T. Paparazzo and the Coronado Ranch Community Association over alleged open meeting violations. The petitioner contended that the board hired a new management company without proper public discussion, member input, or a formal vote as required by Arizona law. In response, the board treasurer testified that the transition was discussed across multiple open sessions and that the final decision was made during a meeting where the petitioner himself provided verbal testimony. Evidence showed that while the official meeting minutes were occasionally incomplete, the board had made significant efforts to inform homeowners through Facebook and email. Ultimately, the Administrative Law Judge dismissed the petition, ruling that the association provided sufficient opportunity for member participation before executing the new contract.
What was the final outcome of the HOA dispute hearing?
How did the treasurer defend the board’s decision-making process?
Explain the member’s specific complaints about the new contract.
Thursday, February 12
Save to note
Today • 3:35 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Samuel T. Paparazzo(petitioner) Also appeared as Samuel Gene Everzo; testified on his own behalf.
Respondent Side
Ashley Turner(HOA attorney) Goodman Law Group Counsel for Coronado Ranch Community Association.
Kimberly Jackson(board member/treasurer) Coronado Ranch Community Association Board Appeared as a witness; sometimes referred to as Jim Jackson.
Sheree(board member) Coronado Ranch Community Association Board Director who obtained RFPs.
Michelle(board member) Coronado Ranch Community Association Board Director who obtained RFPs.
Cathy / Cassie(board member/secretary) Coronado Ranch Community Association Board Board member who read documents aloud; secretary who inadvertently left information off minutes.
Neutral Parties
Sondra J. Vanella(ALJ) Office of Administrative Hearings Also identified as Sandra Vanella.
Susan Nicolson(Commissioner) Arizona Department of Real Estate
A. Hansen(ADRE staff) Arizona Department of Real Estate Recipient of decision transmission.
V. Nunez(ADRE staff) Arizona Department of Real Estate Recipient of decision transmission.
D. Jones(ADRE staff) Arizona Department of Real Estate Recipient of decision transmission.
L. Abril(ADRE staff) Arizona Department of Real Estate Recipient of decision transmission.
Other Participants
Erica Martinson(attorney) prison law
Tony Rosetti(lawist) Spelled R O SS KTI.
Miss Lee(potential witness) Did not testify.
Rob Bishop(community manager) Renaissance Community Partners Son of owner of previous management company; facilitated virtual mic for Petitioner.
Tamara Lens(community assistant) Renaissance Community Partners Sent official meeting notice email.
Linda Palmer(homeowner) Coronado Ranch Community Association member Commented at the meeting.
The ALJ denied the petition, concluding that the Association's voting system constituted permissible delegate voting, which is not prohibited by the Planned Community Act. The prohibition in ARS § 33-1812 against proxy voting applies only when votes are “allocated to a unit,” which is not the case for Director elections where votes are allocated to the Neighborhood Voting Members as delegates.
Why this result: Petitioner did not sustain the burden of proving a violation of ARIZ. REV. STAT. § 33-1812.
Key Issues & Findings
Whether Respondent is in violation of ARIZ. REV. STAT. § 33-1812
Petitioner alleged that the Association's use of a voting delegate system, where Voting Members cast votes for unit owners who did not respond to neighborhood polls, constitutes proxy voting prohibited under ARS § 33-1812.
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 10-3708
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Analytics Highlights
Topics: HOA, Planned Community Act, Delegate Voting, Proxy Voting, Board Election, ARS 33-1812, Nonprofit Corporation Act
Additional Citations:
ARIZ. REV. STAT. § 33-1812
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 10-3708
ARIZ. REV. STAT. § 1-211(B)
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Video Overview
Audio Overview
Decision Documents
24F-H012-REL Decision – 1115010.pdf
Uploaded 2026-01-23T18:01:58 (162.7 KB)
Study Guide – 24F-H012-REL
{ “case”: { “docket_no”: “24F-H012-REL”, “case_title”: “Robert J. Garing v. Prescott Lakes Community Association, Inc.”, “decision_date”: “2023-11-20”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a delegate voting system considered the same as illegal proxy voting in Arizona HOAs?”, “short_answer”: “No. The ALJ determined that a delegate voting system is distinct from proxy voting and is not prohibited by the Planned Communities Act.”, “detailed_answer”: “While Arizona law (A.R.S. § 33-1812) explicitly prohibits proxy voting in planned communities after the period of declarant control, the Administrative Law Judge found that the legislature did not prohibit ‘delegate voting.’ In a delegate system, votes are allocated to the elected Voting Member (delegate) rather than directly to the individual unit for that specific election, meaning the prohibition on casting unit votes via proxy does not apply.”, “alj_quote”: “Here, the relevant and credible evidence of record establishes that while proxy voting is explicitly prohibited under the Planned Community Act, the legislature made no such bar regarding delegate voting as a form of HOA governance.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “proxies”, “delegates”, “elections” ] }, { “question”: “Can my HOA allow neighborhood representatives to vote on behalf of owners?”, “short_answer”: “Yes, if the governing documents establish a delegate system where votes are allocated to the representative rather than the unit.”, “detailed_answer”: “The decision upholds a system where neighborhoods elect ‘Voting Members’ who then cast votes for the Board of Directors. The ALJ reasoned that the Planned Communities Act prohibits proxy voting only when votes are ‘allocated to a unit.’ Under the delegate system described, the votes for directors were allocated to the Voting Members, not the individual units.”, “alj_quote”: “The Planned Community Act does not regulate who is authorized to vote in planned community elections. Instead, it prohibits proxy voting when votes have been ‘allocated to a unit.’ Regarding the election of Board Directors, there are no votes ‘allocated to a unit.’ Instead, all votes are allocated to Neighborhood Voting Members as delegates…”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “board of directors”, “governing documents” ] }, { “question”: “Can neighborhood delegates cast votes for homeowners who did not participate in the poll?”, “short_answer”: “Yes, provided the governing documents allow the delegate to cast unreceived votes at their discretion.”, “detailed_answer”: “The ALJ noted that Voting Members in this case had the discretion to cast votes for units that did not respond to the neighborhood poll. This practice was found not to violate the statutory prohibition on proxies because it was part of a valid delegate voting structure.”, “alj_quote”: “Voting Members do not have complete discretion when casting votes. They only have discretion to cast unreceived votes.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “discretionary voting”, “absentee ballots” ] }, { “question”: “What is the burden of proof for a homeowner challenging their HOA in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard used is ‘preponderance of the evidence,’ which means the homeowner must show that their contention is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812.”, “legal_basis”: “A.A.C. R2-19-119(B)(2)”, “topic_tags”: [ “burden of proof”, “administrative hearing”, “legal procedure” ] }, { “question”: “Does the Nonprofit Corporation Act apply to HOAs in Arizona?”, “short_answer”: “Yes, unless the Planned Communities Act specifically exempts the HOA from a provision.”, “detailed_answer”: “The ALJ reasoned that because the legislature specifically exempted planned communities from some parts of the Nonprofit Act but was silent on delegate voting, the Nonprofit Act’s allowance of such systems remains relevant context for HOA governance.”, “alj_quote”: “In fact, the legislature specifically exempted planned communities from certain enumerated provisions of the Nonprofit Act, but did not address delegate voting within the Planned Community Act in any capacity.”, “legal_basis”: “A.R.S. § 10-3101 et seq.”, “topic_tags”: [ “corporate law”, “statutory interpretation”, “nonprofit act” ] }, { “question”: “If I disagree with the Administrative Law Judge’s decision, what can I do?”, “short_answer”: “You can appeal to the Superior Court within 35 days of being served the order.”, “detailed_answer”: “The decision is binding, but parties have the right to seek judicial review. This appeal must be filed with the Superior Court within a strict 35-day window following the service of the order.”, “alj_quote”: “A party wishing to appeal this order must seek judicial review as prescribed by ARIZ. REV. STAT. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties.”, “legal_basis”: “A.R.S. § 41-1092.08(H); A.R.S. § 12-904(A)”, “topic_tags”: [ “appeals”, “judicial review”, “superior court” ] } ] }
Blog Post – 24F-H012-REL
{ “case”: { “docket_no”: “24F-H012-REL”, “case_title”: “Robert J. Garing v. Prescott Lakes Community Association, Inc.”, “decision_date”: “2023-11-20”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Is a delegate voting system considered the same as illegal proxy voting in Arizona HOAs?”, “short_answer”: “No. The ALJ determined that a delegate voting system is distinct from proxy voting and is not prohibited by the Planned Communities Act.”, “detailed_answer”: “While Arizona law (A.R.S. § 33-1812) explicitly prohibits proxy voting in planned communities after the period of declarant control, the Administrative Law Judge found that the legislature did not prohibit ‘delegate voting.’ In a delegate system, votes are allocated to the elected Voting Member (delegate) rather than directly to the individual unit for that specific election, meaning the prohibition on casting unit votes via proxy does not apply.”, “alj_quote”: “Here, the relevant and credible evidence of record establishes that while proxy voting is explicitly prohibited under the Planned Community Act, the legislature made no such bar regarding delegate voting as a form of HOA governance.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “proxies”, “delegates”, “elections” ] }, { “question”: “Can my HOA allow neighborhood representatives to vote on behalf of owners?”, “short_answer”: “Yes, if the governing documents establish a delegate system where votes are allocated to the representative rather than the unit.”, “detailed_answer”: “The decision upholds a system where neighborhoods elect ‘Voting Members’ who then cast votes for the Board of Directors. The ALJ reasoned that the Planned Communities Act prohibits proxy voting only when votes are ‘allocated to a unit.’ Under the delegate system described, the votes for directors were allocated to the Voting Members, not the individual units.”, “alj_quote”: “The Planned Community Act does not regulate who is authorized to vote in planned community elections. Instead, it prohibits proxy voting when votes have been ‘allocated to a unit.’ Regarding the election of Board Directors, there are no votes ‘allocated to a unit.’ Instead, all votes are allocated to Neighborhood Voting Members as delegates…”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “board of directors”, “governing documents” ] }, { “question”: “Can neighborhood delegates cast votes for homeowners who did not participate in the poll?”, “short_answer”: “Yes, provided the governing documents allow the delegate to cast unreceived votes at their discretion.”, “detailed_answer”: “The ALJ noted that Voting Members in this case had the discretion to cast votes for units that did not respond to the neighborhood poll. This practice was found not to violate the statutory prohibition on proxies because it was part of a valid delegate voting structure.”, “alj_quote”: “Voting Members do not have complete discretion when casting votes. They only have discretion to cast unreceived votes.”, “legal_basis”: “A.R.S. § 33-1812”, “topic_tags”: [ “voting”, “discretionary voting”, “absentee ballots” ] }, { “question”: “What is the burden of proof for a homeowner challenging their HOA in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard used is ‘preponderance of the evidence,’ which means the homeowner must show that their contention is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1812.”, “legal_basis”: “A.A.C. R2-19-119(B)(2)”, “topic_tags”: [ “burden of proof”, “administrative hearing”, “legal procedure” ] }, { “question”: “Does the Nonprofit Corporation Act apply to HOAs in Arizona?”, “short_answer”: “Yes, unless the Planned Communities Act specifically exempts the HOA from a provision.”, “detailed_answer”: “The ALJ reasoned that because the legislature specifically exempted planned communities from some parts of the Nonprofit Act but was silent on delegate voting, the Nonprofit Act’s allowance of such systems remains relevant context for HOA governance.”, “alj_quote”: “In fact, the legislature specifically exempted planned communities from certain enumerated provisions of the Nonprofit Act, but did not address delegate voting within the Planned Community Act in any capacity.”, “legal_basis”: “A.R.S. § 10-3101 et seq.”, “topic_tags”: [ “corporate law”, “statutory interpretation”, “nonprofit act” ] }, { “question”: “If I disagree with the Administrative Law Judge’s decision, what can I do?”, “short_answer”: “You can appeal to the Superior Court within 35 days of being served the order.”, “detailed_answer”: “The decision is binding, but parties have the right to seek judicial review. This appeal must be filed with the Superior Court within a strict 35-day window following the service of the order.”, “alj_quote”: “A party wishing to appeal this order must seek judicial review as prescribed by ARIZ. REV. STAT. § 41-1092.08(H) and title 12, chapter 7, article 6. Any such appeal must be filed with the superior court within thirty-five days from the date when a copy of this order was served upon the parties.”, “legal_basis”: “A.R.S. § 41-1092.08(H); A.R.S. § 12-904(A)”, “topic_tags”: [ “appeals”, “judicial review”, “superior court” ] } ] }
Case Participants
Petitioner Side
Robert J. Garing(petitioner) Prescott Lakes Community Association, Inc. member Also served as alternate Voting Member for 2 years
James Thomas Joan(witness) Also listed as Jimmy Yiannis
Respondent Side
Adrianne A. Speas(HOA attorney) Krupnik & Speas, LLC Appeared as counsel for Respondent
Robert Sisley(board president; witness) Prescott Lakes Community Association, Inc. Also Alternate Voting Member for Parkside; served as the association representative
Catherine Black(assistant community manager; witness) Homeco Homeco is the HOA management company for Respondent
Lynn M. Krupnik(HOA attorney) Krupnik & Speas, LLC Counsel listed for Respondent in distribution
Neutral Parties
Jenna Clark(ALJ) OAH
Susan Nicolson(ADRE Commissioner) Arizona Department of Real Estate Final decision authority/recipient of ALJ Decision
The Administrative Law Judge denied the petition, concluding that the homeowner failed to meet the burden of proof to show the HOA violated its documents. The Declaration and Rules unambiguously prohibited hard floor coverings (including vinyl) in the Petitioner's third-floor unit, and the Petitioner admitted installing the flooring without seeking approval.
Why this result: Petitioner failed to meet the burden of proof. Petitioner received the governing documents prior to closing, failed to fully read them, and failed to seek permission from the Association prior to installing the prohibited Luxury Vinyl Plank flooring.
Key Issues & Findings
Flooring Restriction for New Units
Petitioner challenged the Association's enforcement of a declaration rule prohibiting hard floor coverings (like LVP) in his third-floor unit, arguing his chosen flooring had sufficient soundproofing. The Association argued the rule was clear, unambiguous, and mandatory for enforcement.
Orders: Petitioner's petition is denied. Respondent shall not reimburse Petitioner's filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092
ARIZ. ADMIN. CODE R2-19-119
Analytics Highlights
Topics: Flooring Restriction, Luxury Vinyl Plank (LVP), CCNR Enforcement, Third Floor Unit, Prior Approval
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. §§ 41-1092
ARIZ. ADMIN. CODE R2-19-119
Video Overview
Audio Overview
Decision Documents
23F-H066-REL Decision – 1085177.pdf
Uploaded 2026-01-23T18:00:06 (48.3 KB)
23F-H066-REL Decision – 1112087.pdf
Uploaded 2026-01-23T18:00:14 (110.4 KB)
Questions
Question
Can I install hard flooring like vinyl or hardwood in my upper-floor condo unit?
Short Answer
Not if the CC&Rs specifically prohibit it to mitigate noise, even if the product is high quality.
Detailed Answer
If the governing documents explicitly prohibit hard floor coverings in specific units (such as second or third-floor units) to mitigate noise, the HOA can enforce this restriction regardless of the quality or sound rating of the material installed.
Alj Quote
Except for entry areas where hard floor coverings have been installed by Declarant, and except for kitchen, bathroom and laundry areas, hard floor coverings (e.g., ceramic tile, natural stone, vinyl, hardwood or laminated flooring) shall be prohibited in all other areas… and all third floor Units.
Legal Basis
CC&Rs Section 4.24
Topic Tags
architectural restrictions
flooring
noise mitigation
Question
Is it a valid defense that I didn't read the CC&Rs before making a change?
Short Answer
No. If you received the documents, you are responsible for knowing the rules.
Detailed Answer
Admitting that you received the Declaration and Rules but did not read them is not a valid defense against a violation. The tribunal will likely find against a homeowner who had the opportunity to review the restrictions but failed to do so.
Alj Quote
Petitioner admitted in his testimony that he timely received a copy of the Declaration and Rules approximately a week prior to closing. Petitioner also admitted that he did not fully read the same… The tribunal finds that Petitioner has not met his burden.
Legal Basis
Contractual Obligation / Constructive Notice
Topic Tags
homeowner responsibilities
CC&Rs
ignorance of law
Question
Does my HOA have to approve a renovation if the new material is 'better' or more valuable than what is required?
Short Answer
No. Clear rules in the CC&Rs override arguments about aesthetics or resale value.
Detailed Answer
Even if a homeowner presents valid points about the superior look or potential resale value of a prohibited improvement (like LVP flooring vs. carpet), the ALJ will enforce the clear and unambiguous language of the governing documents.
Alj Quote
While Petitioner probably had valid points about the look and potential value of LVP flooring versus carpeting, unfortunately, the Declarations and Rules are clear and unambiguous…
Legal Basis
Enforcement of Governing Documents
Topic Tags
architectural control
property value
renovations
Question
What happens if I start a renovation without asking for HOA permission first?
Short Answer
You risk violating rules you weren't aware of and may be forced to stop or reverse the work.
Detailed Answer
Skipping the approval process is risky. If a homeowner fails to seek permission, they miss the opportunity to be informed of specific prohibitions before spending money on installation.
Alj Quote
Petitioner admitted that he did not seek permission from the Association to install the LVP flooring, which had he done, he probably would have been informed that the Rules did not allow for the same.
Legal Basis
Architectural Review Process
Topic Tags
procedural requirements
renovations
violations
Question
Who has to prove their case in an HOA dispute hearing?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove by a 'preponderance of the evidence' that the HOA violated the governing documents or laws.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the Declarations and Association Rules.
Legal Basis
Burden of Proof (ARIZ. ADMIN. CODE R2-19-119)
Topic Tags
legal procedure
burden of proof
hearings
Question
What does 'preponderance of the evidence' mean?
Short Answer
It means the evidence shows the claim is more likely true than not.
Detailed Answer
The standard involves superior evidentiary weight that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
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
Legal Standard of Evidence
Topic Tags
legal definitions
evidence
Question
If I lose my case against the HOA, will I get my filing fee back?
Short Answer
No. Reimbursement is generally denied if the petition is denied.
Detailed Answer
If the ALJ rules against the homeowner and denies the petition, the order will typically state that the Respondent (HOA) is not required to reimburse the filing fee.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee…
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
costs
penalties
fees
Case
Docket No
23F-H066-REL
Case Title
Sebastien Verstraet v. Monterey Ridge Condominium Association
Decision Date
2023-11-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can I install hard flooring like vinyl or hardwood in my upper-floor condo unit?
Short Answer
Not if the CC&Rs specifically prohibit it to mitigate noise, even if the product is high quality.
Detailed Answer
If the governing documents explicitly prohibit hard floor coverings in specific units (such as second or third-floor units) to mitigate noise, the HOA can enforce this restriction regardless of the quality or sound rating of the material installed.
Alj Quote
Except for entry areas where hard floor coverings have been installed by Declarant, and except for kitchen, bathroom and laundry areas, hard floor coverings (e.g., ceramic tile, natural stone, vinyl, hardwood or laminated flooring) shall be prohibited in all other areas… and all third floor Units.
Legal Basis
CC&Rs Section 4.24
Topic Tags
architectural restrictions
flooring
noise mitigation
Question
Is it a valid defense that I didn't read the CC&Rs before making a change?
Short Answer
No. If you received the documents, you are responsible for knowing the rules.
Detailed Answer
Admitting that you received the Declaration and Rules but did not read them is not a valid defense against a violation. The tribunal will likely find against a homeowner who had the opportunity to review the restrictions but failed to do so.
Alj Quote
Petitioner admitted in his testimony that he timely received a copy of the Declaration and Rules approximately a week prior to closing. Petitioner also admitted that he did not fully read the same… The tribunal finds that Petitioner has not met his burden.
Legal Basis
Contractual Obligation / Constructive Notice
Topic Tags
homeowner responsibilities
CC&Rs
ignorance of law
Question
Does my HOA have to approve a renovation if the new material is 'better' or more valuable than what is required?
Short Answer
No. Clear rules in the CC&Rs override arguments about aesthetics or resale value.
Detailed Answer
Even if a homeowner presents valid points about the superior look or potential resale value of a prohibited improvement (like LVP flooring vs. carpet), the ALJ will enforce the clear and unambiguous language of the governing documents.
Alj Quote
While Petitioner probably had valid points about the look and potential value of LVP flooring versus carpeting, unfortunately, the Declarations and Rules are clear and unambiguous…
Legal Basis
Enforcement of Governing Documents
Topic Tags
architectural control
property value
renovations
Question
What happens if I start a renovation without asking for HOA permission first?
Short Answer
You risk violating rules you weren't aware of and may be forced to stop or reverse the work.
Detailed Answer
Skipping the approval process is risky. If a homeowner fails to seek permission, they miss the opportunity to be informed of specific prohibitions before spending money on installation.
Alj Quote
Petitioner admitted that he did not seek permission from the Association to install the LVP flooring, which had he done, he probably would have been informed that the Rules did not allow for the same.
Legal Basis
Architectural Review Process
Topic Tags
procedural requirements
renovations
violations
Question
Who has to prove their case in an HOA dispute hearing?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove by a 'preponderance of the evidence' that the HOA violated the governing documents or laws.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the Declarations and Association Rules.
Legal Basis
Burden of Proof (ARIZ. ADMIN. CODE R2-19-119)
Topic Tags
legal procedure
burden of proof
hearings
Question
What does 'preponderance of the evidence' mean?
Short Answer
It means the evidence shows the claim is more likely true than not.
Detailed Answer
The standard involves superior evidentiary weight that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
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
Legal Standard of Evidence
Topic Tags
legal definitions
evidence
Question
If I lose my case against the HOA, will I get my filing fee back?
Short Answer
No. Reimbursement is generally denied if the petition is denied.
Detailed Answer
If the ALJ rules against the homeowner and denies the petition, the order will typically state that the Respondent (HOA) is not required to reimburse the filing fee.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee…
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
costs
penalties
fees
Case
Docket No
23F-H066-REL
Case Title
Sebastien Verstraet v. Monterey Ridge Condominium Association
Decision Date
2023-11-13
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Sebastien Verstraet(petitioner) Appeared on his own behalf
Ron Riecks(witness) Flooring installer for Petitioner; also referred to as Ron Reichkes
Respondent Side
Joshua M. Bolen(attorney) Carpenter Hazlewood
Marcus R. Martinez(attorney) Carpenter Hazlewood
Robert Stein(property manager) City Property Management Testified as a witness for Respondent
Section 2.1 of the Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs)
Outcome Summary
The Administrative Law Judge dismissed the Petitioner's petition, finding that the Petitioner failed to prove that the Association violated CC&Rs Section 2.1 by adopting the Residential Parking Policy. The Policy was deemed a valid clarification authorized by existing CC&R provisions (4.2(t) and 5.3).
Why this result: Petitioner failed to meet the burden of proof required to establish a violation of the governing documents.
Key Issues & Findings
Violation of CC&Rs Section 2.1 regarding adoption of Residential Parking Policy
Petitioner alleged that the Association's adoption of the Residential Parking Policy violated CC&Rs Section 2.1 because the policy used the unauthorized term 'Rules and Regulations' rather than 'restrictions,' thereby attempting to amend the CC&Rs without following the proper process, particularly concerning the use of government-owned property.
Orders: Petitioner's petition was dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA, CC&Rs, Parking Policy, Rules vs Restrictions, Burden of Proof, Planned Community
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H009-REL Decision – 1101544.pdf
Uploaded 2026-01-23T18:01:45 (47.0 KB)
24F-H009-REL Decision – 1111460.pdf
Uploaded 2026-01-23T18:01:48 (102.6 KB)
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Does the Department of Real Estate have jurisdiction over disputes regarding HOA document violations?
Short Answer
Yes, owners or associations may petition the department for hearings concerning violations of community documents.
Detailed Answer
The Department is authorized by statute to receive petitions regarding disputes between owners and associations, specifically concerning violations of community documents or statutes regulating planned communities.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities as long as the petitioner has filed a petition with the department and paid a filing fee as outlined in ARIZ. REV. STAT. § 32-2199.05.
Legal Basis
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq.
Topic Tags
jurisdiction
dispute resolution
Question
Can an HOA enforce restrictions on public streets or government-owned property within the community?
Short Answer
Yes, if the CC&Rs explicitly state that restrictions apply to owners concerning the use of such property.
Detailed Answer
Even if property is dedicated to the public, the CC&Rs can impose restrictions on owners and residents regarding their use of that property, which remain applicable at all times.
Alj Quote
Section 2.1 of the CC&Rs in pertinent part states, 'property within Lakewood which is not part of a Lot or Parcel and which is owned by or dedicated to the public or governmental entity shall not be subject to this Declaration although restrictions imposed in this Declaration upon the Owners and Residents concerning the use and maintenance of such property shall be applicable at all times.'
Legal Basis
CC&Rs Section 2.1
Topic Tags
parking
public streets
authority
Question
Who has the burden of proof in a hearing against an HOA?
Short Answer
The Petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove their case by a preponderance of the evidence; it is not the HOA's initial burden to disprove the claim.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated Section 2.1 of the CC&Rs.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
procedural
burden of proof
Question
What standard of evidence is used to decide HOA disputes?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires evidence that convinces the judge that the claim is more probably true than not.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Morris K. Udall, Arizona Law of Evidence § 5 (1960)
Topic Tags
evidence
legal standard
Question
Can an HOA Board pass a parking policy without amending the CC&Rs?
Short Answer
Yes, if the CC&Rs grant the Board the authority to adopt rules and regulations.
Detailed Answer
If the CC&Rs allow the Board to adopt reasonable rules by majority vote, a policy passed in compliance with that section is valid, provided it clarifies rather than subverts the existing CC&Rs.
Alj Quote
It was undisputed Respondent passed the Parking Policy by majority vote in compliance with Section 5.3. … The Parking Policy did not subvert Section 4.2(t) nor did it contradict said policy, rather it further clarified prohibited on-street parking.
Legal Basis
CC&Rs Section 5.3
Topic Tags
board authority
rules vs amendments
Question
Does the specific terminology 'rules' vs. 'restrictions' invalidate a policy?
Short Answer
Generally, no. Semantic differences are often considered irrelevant if the authority to regulate exists.
Detailed Answer
Arguments relying on semantic distinctions between 'rules and regulations' and 'restrictions' may fail if the Board has the clear authority to regulate the activity (e.g., parking) under the CC&Rs.
Alj Quote
Petitioner’s assertion that the semantic difference between the terms 'rules and regulations' and 'rules and restrictions' is irrelevant in determining whether Respondent had the authority under Section 2.1 of the CC&Rs to clarify Section 4.2(t).
Legal Basis
N/A
Topic Tags
legal interpretation
semantics
Question
What happens if a homeowner fails to meet the burden of proof?
Short Answer
The petition will be dismissed.
Detailed Answer
If the evidence presented is insufficient to establish that the HOA violated its documents, the Administrative Law Judge must dismiss the case.
Alj Quote
The undersigned Administrative Law Judge concludes that, because Petitioner failed to meet his burden of proof that Respondent committed the alleged violation, his petition must be dismissed.
Legal Basis
N/A
Topic Tags
outcome
dismissal
Question
How long does a party have to request a rehearing after an ALJ decision?
Short Answer
30 days.
Detailed Answer
A request for rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
appeal
deadlines
Case
Docket No
24F-H009-REL
Case Title
Thomas P. Hommrich v The Lakewood Community Association
Decision Date
2023-11-09
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Thomas P. Hommrich(petitioner) Property owner, appeared on his own behalf
Respondent Side
Quinten Cupps(HOA attorney) VIal Fotheringham, LLP Represented The Lakewood Community Association
Sandra Smith(community manager) Lakewood Community Association Witness who testified on behalf of Respondent
Neutral Parties
Brian Del Vecchio(ALJ) Office of Administrative Hearings Administrative Law Judge for the hearing and final decision
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings Administrative Law Judge who issued the October 12, 2023 Order
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Moses Thompson(Judge) Judge cited in precedent case (Brian Seatic v Lake Resort Condominium)
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
labril(ADRE staff) Arizona Department of Real Estate Recipient of transmission/contact
Brian Seatic(party) Party in precedent case (Brian Seatic v Lake Resort Condominium) cited during the hearing
The petition was granted in part and denied in part. Petitioner won the claim regarding the unauthorized certified letter charges, resulting in removal of the charges and a $500.00 fee refund. Petitioner lost the claims regarding the animal restriction (chickens are banned fowl) and the failure to engage in mediation (ADR provision 9.15 was inapplicable).
Why this result: Petitioner failed to prove violations of CC&Rs § 9.1.1 and CC&Rs § 9.15. Chickens are banned as birds/fowl under CC&Rs § 3.3, and the mediation clause only applies to disputes involving Declarant Parties, not general homeowner disputes.
Key Issues & Findings
Wrongfully charging costs of certified letters/appeal response as a balance forward
Petitioner alleged Respondent wrongfully forwarded the cost of sending certified letters (categorized as a 'balance forward') onto her account without authority in the CC&Rs, violating rules for imposing fines.
Orders: Respondent ordered to pay Petitioner $500.00 of her filing fee and remove the balance forward associated with certified letter costs from her assessment.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs § 5.1
ARIZ. REV. STAT. § 33-1803
Analytics Highlights
Topics: animal restriction, HOA enforcement, certified mail fee, dispute resolution, fines
Additional Citations:
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 33-1803
CC&Rs § 9.1.1
CC&Rs § 3.3
CC&Rs § 9.15
CC&Rs § 5.1
Video Overview
Audio Overview
Decision Documents
24F-H007-REL Decision – 1095892.pdf
Uploaded 2026-01-23T18:01:15 (55.6 KB)
24F-H007-REL Decision – 1111192.pdf
Uploaded 2026-01-23T18:01:18 (104.5 KB)
Questions
Question
Can my HOA ban chickens even if I consider them household pets?
Short Answer
Yes. If the CC&Rs explicitly ban 'fowl' or 'poultry,' your subjective belief that they are pets does not override the objective ban.
Detailed Answer
The ALJ determined that even if a homeowner views chickens as pets akin to parakeets, if the CC&Rs explicitly ban 'fowl' or 'poultry,' that ban is enforceable. The specific classification of the animal in the documents overrides the owner's usage of the animal as a pet.
Alj Quote
Petitioner subjectively believes her chickens are pets and therefore qualify for the pet exception of the animal policy; however the CC&Rs plain language objectively bans not only birds but fowl. Chickens are both birds and fowl therefore, homeowners may not have live chickens on their property.
Legal Basis
CC&Rs § 3.3
Topic Tags
animals
chickens
CC&Rs interpretation
violations
Question
Can my HOA charge me for the cost of sending certified letters regarding a violation?
Short Answer
Not unless the CC&Rs explicitly authorize passing those specific administrative costs to the homeowner.
Detailed Answer
The ALJ ruled that an HOA cannot arbitrarily pass on administrative costs, such as certified mail fees for violation notices, unless the governing documents specifically empower them to do so. In this case, the HOA was ordered to remove the charge.
Alj Quote
Respondent failed to establish their CC&Rs empower them to forward the cost of litigation onto Petitioner prior to the completion of hearing. Therefore, Petitioner established Respondent violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803
Legal Basis
CC&Rs § 5.1; A.R.S. § 33-1803
Topic Tags
fines
fees
administrative costs
certified mail
Question
Is my HOA required to go to mediation before enforcing a rule violation?
Short Answer
It depends on the specific language of the dispute resolution clause. Some clauses only apply to disputes with the developer (Declarant), not general homeowner enforcement.
Detailed Answer
The homeowner argued that a 'Dispute Notification and Resolution Procedure' required mediation. However, the ALJ found that the specific section cited applied only to 'Declarant Parties' (the developer/builders) regarding construction or design defects, not to standard enforcement actions between the HOA and a homeowner.
Alj Quote
The CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those arising from or related to construction defects or conditions of the Project and not homeowner disputes. Because Petitioner is not a Declarant Party CC&Rs § 9.15 does not apply.
Legal Basis
CC&Rs § 9.15
Topic Tags
mediation
dispute resolution
procedure
declarant
Question
Who has the burden of proof when a homeowner challenges an HOA violation?
Short Answer
The homeowner (Petitioner) bears the burden of proving the HOA violated the governing documents or statutes.
Detailed Answer
In an administrative hearing where the homeowner files the petition, the homeowner must prove their case by a 'preponderance of the evidence,' meaning their evidence must be more convincing than the HOA's.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs § 3.3, CC&Rs § 9.15, CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803.
Legal Basis
Standard of Proof
Topic Tags
legal standards
burden of proof
hearings
Question
If I win part of my case against the HOA, can I get my filing fees reimbursed?
Short Answer
The ALJ may order partial reimbursement of filing fees if the petition is granted in part.
Detailed Answer
In this case, the homeowner lost the argument regarding chickens but won the argument regarding improper fees for certified letters. Consequently, the ALJ ordered the HOA to reimburse $500 of the $1500 filing fee.
Alj Quote
IT IS FURTHER ORDERED Respondent is ordered to pay Petitioner $500.00 of her $1500.00 filing fee within 30 days of the mailing date of the Administrative Law Judge Decision entered in this matter.
Legal Basis
ALJ Order
Topic Tags
remedies
filing fees
penalties
Question
Does an exception for 'household birds' in the CC&Rs allow me to keep chickens?
Short Answer
Likely not, if chickens are also defined as 'fowl' which are otherwise banned.
Detailed Answer
The ALJ rejected the argument that chickens fell under the exception for 'parakeets or similar household birds,' finding instead that they fell under the explicit ban on 'fowl.'
Alj Quote
Notwithstanding Petitioner’s argument that her chickens are akin to parakeets, an exception to the no animal rule in the CC&Rs, birds and fowl are explicitly banned.
Legal Basis
CC&Rs § 3.3
Topic Tags
animals
CC&Rs interpretation
exceptions
Case
Docket No
24F-H007-REL
Case Title
Virginia Guest v Bella Tierra Community Association
Decision Date
2023-11-08
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA ban chickens even if I consider them household pets?
Short Answer
Yes. If the CC&Rs explicitly ban 'fowl' or 'poultry,' your subjective belief that they are pets does not override the objective ban.
Detailed Answer
The ALJ determined that even if a homeowner views chickens as pets akin to parakeets, if the CC&Rs explicitly ban 'fowl' or 'poultry,' that ban is enforceable. The specific classification of the animal in the documents overrides the owner's usage of the animal as a pet.
Alj Quote
Petitioner subjectively believes her chickens are pets and therefore qualify for the pet exception of the animal policy; however the CC&Rs plain language objectively bans not only birds but fowl. Chickens are both birds and fowl therefore, homeowners may not have live chickens on their property.
Legal Basis
CC&Rs § 3.3
Topic Tags
animals
chickens
CC&Rs interpretation
violations
Question
Can my HOA charge me for the cost of sending certified letters regarding a violation?
Short Answer
Not unless the CC&Rs explicitly authorize passing those specific administrative costs to the homeowner.
Detailed Answer
The ALJ ruled that an HOA cannot arbitrarily pass on administrative costs, such as certified mail fees for violation notices, unless the governing documents specifically empower them to do so. In this case, the HOA was ordered to remove the charge.
Alj Quote
Respondent failed to establish their CC&Rs empower them to forward the cost of litigation onto Petitioner prior to the completion of hearing. Therefore, Petitioner established Respondent violated CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803
Legal Basis
CC&Rs § 5.1; A.R.S. § 33-1803
Topic Tags
fines
fees
administrative costs
certified mail
Question
Is my HOA required to go to mediation before enforcing a rule violation?
Short Answer
It depends on the specific language of the dispute resolution clause. Some clauses only apply to disputes with the developer (Declarant), not general homeowner enforcement.
Detailed Answer
The homeowner argued that a 'Dispute Notification and Resolution Procedure' required mediation. However, the ALJ found that the specific section cited applied only to 'Declarant Parties' (the developer/builders) regarding construction or design defects, not to standard enforcement actions between the HOA and a homeowner.
Alj Quote
The CC&Rs § 9.15 restricts its application to disputes involving the Declarant Parties, particularly those arising from or related to construction defects or conditions of the Project and not homeowner disputes. Because Petitioner is not a Declarant Party CC&Rs § 9.15 does not apply.
Legal Basis
CC&Rs § 9.15
Topic Tags
mediation
dispute resolution
procedure
declarant
Question
Who has the burden of proof when a homeowner challenges an HOA violation?
Short Answer
The homeowner (Petitioner) bears the burden of proving the HOA violated the governing documents or statutes.
Detailed Answer
In an administrative hearing where the homeowner files the petition, the homeowner must prove their case by a 'preponderance of the evidence,' meaning their evidence must be more convincing than the HOA's.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated CC&Rs § 3.3, CC&Rs § 9.15, CC&Rs § 5.1 and ARIZ. REV. STAT. § 33-1803.
Legal Basis
Standard of Proof
Topic Tags
legal standards
burden of proof
hearings
Question
If I win part of my case against the HOA, can I get my filing fees reimbursed?
Short Answer
The ALJ may order partial reimbursement of filing fees if the petition is granted in part.
Detailed Answer
In this case, the homeowner lost the argument regarding chickens but won the argument regarding improper fees for certified letters. Consequently, the ALJ ordered the HOA to reimburse $500 of the $1500 filing fee.
Alj Quote
IT IS FURTHER ORDERED Respondent is ordered to pay Petitioner $500.00 of her $1500.00 filing fee within 30 days of the mailing date of the Administrative Law Judge Decision entered in this matter.
Legal Basis
ALJ Order
Topic Tags
remedies
filing fees
penalties
Question
Does an exception for 'household birds' in the CC&Rs allow me to keep chickens?
Short Answer
Likely not, if chickens are also defined as 'fowl' which are otherwise banned.
Detailed Answer
The ALJ rejected the argument that chickens fell under the exception for 'parakeets or similar household birds,' finding instead that they fell under the explicit ban on 'fowl.'
Alj Quote
Notwithstanding Petitioner’s argument that her chickens are akin to parakeets, an exception to the no animal rule in the CC&Rs, birds and fowl are explicitly banned.
Legal Basis
CC&Rs § 3.3
Topic Tags
animals
CC&Rs interpretation
exceptions
Case
Docket No
24F-H007-REL
Case Title
Virginia Guest v Bella Tierra Community Association
Decision Date
2023-11-08
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Virginia Guest(petitioner) Appeared on her own behalf
Respondent Side
Nicholas C. S. Nogami(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP
Marcus R. Martinez(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP
Jamie Petty(association manager / witness) Platinum Management Association manager for Bella Tierra Community Association; also referenced as Jamie Teddy/Miss Teddy
Sean Moynihan(HOA attorney) Senology General counsel for Respondent; referenced in Petitioner's claims; also referred to as John Moahan
Neutral Parties
Brian Del Vecchio(ALJ) OAH Administrative Law Judge for the hearing and decision
Jenna Clark(ALJ) OAH Administrative Law Judge who issued the September 22, 2023 Order
Susan Nicolson(Commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate Email recipient of decisions/orders
vnunez(ADRE staff) Arizona Department of Real Estate Email recipient of decisions/orders
djones(ADRE staff) Arizona Department of Real Estate Email recipient of decisions/orders
labril(ADRE staff) Arizona Department of Real Estate Email recipient of decisions/orders
The Administrative Law Judge dismissed the petition, ruling that the statutes cited by the petitioner regarding conveyance of common elements (A.R.S. §§ 33-1252 and 33-1217) do not apply to the leasing of common elements, which was the action taken by the Respondent HOA.
Why this result: The statutes cited by the Petitioner apply to conveyances, but the disputed action was determined to be a lease, which is treated separately under Arizona's Condominium Act.
Key Issues & Findings
Whether the Board violated statute by conveying a portion of common elements without a vote from all homeowners.
Petitioner alleged the HOA violated A.R.S. §§ 33-1252 and 33-1217 by approving a lease agreement granting the Declarant (Four Peaks) the right to use a portion of the clubhouse as a management office, arguing this action constituted a conveyance requiring an 80% homeowner vote. The ALJ ruled that the statutes apply only to conveyances, not leases, and found no violation.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
33-1252
33-1217
33-1242
33-1225
Analytics Highlights
Topics: Condominium Act, Lease vs Conveyance, Common Elements, Declarant Rights, Motion to Dismiss
Additional Citations:
33-1252
33-1217
33-1242
33-1225
33-1226
Video Overview
Audio Overview
Decision Documents
24F-H006-REL Decision – 1097274.pdf
Uploaded 2026-01-23T18:00:57 (52.7 KB)
24F-H006-REL Decision – 1099296.pdf
Uploaded 2026-01-23T18:01:00 (50.8 KB)
24F-H006-REL Decision – 1099320.pdf
Uploaded 2026-01-23T18:01:04 (48.2 KB)
24F-H006-REL Decision – 1106232.pdf
Uploaded 2026-01-23T18:01:09 (118.8 KB)
Questions
Question
Does leasing a common area count as 'conveying' it, requiring a supermajority vote?
Short Answer
No. Leasing and conveying are separate legal concepts in Arizona, and leasing does not trigger the voting requirements of a conveyance.
Detailed Answer
The ALJ determined that Arizona law distinguishes between leasing real property and conveying it. While a conveyance (transfer of title) of common elements often requires an 80% vote under A.R.S. § 33-1252, granting a lease does not. The Association has the specific statutory right to grant leases over common elements without meeting the stricter requirements for a conveyance.
Alj Quote
Plainly, Arizona law distinguishes between leasing real property and conveying it. These are two separate legal concepts. … The Administrative Law Judge concludes that A.R.S. §§ 33-1252 and A.R.S. 33-1217 do not apply to leases, but rather conveyances.
Legal Basis
A.R.S. § 33-1242(A)(9); A.R.S. § 33-1252
Topic Tags
common elements
leasing
voting requirements
Question
Can the HOA board authorize a lease of common elements without a vote of all homeowners?
Short Answer
Yes. The Board generally has the authority to grant leases, whereas conveying the property would require a homeowner vote.
Detailed Answer
The decision highlights that A.R.S. § 33-1242(A)(9) expressly gives the Association the right to lease common elements. This section does not reference the voting requirements found in A.R.S. § 33-1252, which applies only when the Association conveys or encumbers the property (like a mortgage).
Alj Quote
Notably, subsection (A)(9) expressly provides the Association the right to enter into the Lease, without any mention of A.R.S. § 33-1252, while the right to 'convey' Common Elements is subject to the requirements imposed in A.R.S. § 33-1252.
Legal Basis
A.R.S. § 33-1242(A)(9)
Topic Tags
board authority
leasing
common elements
Question
Is a Declarant allowed to use common elements for management offices?
Short Answer
Yes, a Declarant may maintain offices on common elements unless the Declaration specifically prohibits it.
Detailed Answer
The ALJ cited A.R.S. § 33-1225, which explicitly permits a declarant to maintain sales and management offices on common elements unless the community's declaration says otherwise or another law prohibits it.
Alj Quote
A declarant may maintain sales offices, management offices and models in units or on common elements in the condominium unless: 1. The declaration provides otherwise. 2. Such use is prohibited by another provision of law or local ordinances.
Legal Basis
A.R.S. § 33-1225
Topic Tags
declarant rights
common elements
offices
Question
What is the burden of proof for a homeowner filing a petition against their HOA?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard is 'preponderance of the evidence,' meaning they must show it is more probable than not that the violation occurred.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. §§ 33-1252 and A.R.S. 33-1217 by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119
Topic Tags
legal procedure
burden of proof
Question
What qualifies as a 'conveyance' of HOA property?
Short Answer
A conveyance is generally interpreted as a total transfer of fee title, usually evidenced by a recorded deed.
Detailed Answer
The decision clarifies that a conveyance involves a permanent transfer of interest, such as through a deed, and must be recorded. A lease, which is for a set period and does not transfer title, does not qualify as a conveyance.
Alj Quote
The Legislature… made clear its intent that a conveyance is a total transfer of fee title. … Furthermore, once any such 'conveyance' occurs, it must be evidenced by the execution and recording of the document in the same manner as a deed.
Legal Basis
A.R.S. § 33-1252(A); A.R.S. § 33-1252(B)
Topic Tags
definitions
conveyance
property rights
Question
How are ambiguous restrictive covenants in CC&Rs interpreted?
Short Answer
If they are unambiguous, they are enforced according to the intent of the parties.
Detailed Answer
The ALJ noted that restrictive covenants must be viewed as a whole and interpreted based on their underlying purpose. If the text is clear (unambiguous), it is enforced to uphold the parties' intent.
Alj Quote
In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. 'Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.'
Legal Basis
Case Law (Powell v. Washburn)
Topic Tags
CC&Rs
interpretation
legal standards
Case
Docket No
24F-H006-REL
Case Title
Susannah Sabnekar vs. Four Peaks Vista Owners Association
Decision Date
2023-10-26
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Questions
Question
Does leasing a common area count as 'conveying' it, requiring a supermajority vote?
Short Answer
No. Leasing and conveying are separate legal concepts in Arizona, and leasing does not trigger the voting requirements of a conveyance.
Detailed Answer
The ALJ determined that Arizona law distinguishes between leasing real property and conveying it. While a conveyance (transfer of title) of common elements often requires an 80% vote under A.R.S. § 33-1252, granting a lease does not. The Association has the specific statutory right to grant leases over common elements without meeting the stricter requirements for a conveyance.
Alj Quote
Plainly, Arizona law distinguishes between leasing real property and conveying it. These are two separate legal concepts. … The Administrative Law Judge concludes that A.R.S. §§ 33-1252 and A.R.S. 33-1217 do not apply to leases, but rather conveyances.
Legal Basis
A.R.S. § 33-1242(A)(9); A.R.S. § 33-1252
Topic Tags
common elements
leasing
voting requirements
Question
Can the HOA board authorize a lease of common elements without a vote of all homeowners?
Short Answer
Yes. The Board generally has the authority to grant leases, whereas conveying the property would require a homeowner vote.
Detailed Answer
The decision highlights that A.R.S. § 33-1242(A)(9) expressly gives the Association the right to lease common elements. This section does not reference the voting requirements found in A.R.S. § 33-1252, which applies only when the Association conveys or encumbers the property (like a mortgage).
Alj Quote
Notably, subsection (A)(9) expressly provides the Association the right to enter into the Lease, without any mention of A.R.S. § 33-1252, while the right to 'convey' Common Elements is subject to the requirements imposed in A.R.S. § 33-1252.
Legal Basis
A.R.S. § 33-1242(A)(9)
Topic Tags
board authority
leasing
common elements
Question
Is a Declarant allowed to use common elements for management offices?
Short Answer
Yes, a Declarant may maintain offices on common elements unless the Declaration specifically prohibits it.
Detailed Answer
The ALJ cited A.R.S. § 33-1225, which explicitly permits a declarant to maintain sales and management offices on common elements unless the community's declaration says otherwise or another law prohibits it.
Alj Quote
A declarant may maintain sales offices, management offices and models in units or on common elements in the condominium unless: 1. The declaration provides otherwise. 2. Such use is prohibited by another provision of law or local ordinances.
Legal Basis
A.R.S. § 33-1225
Topic Tags
declarant rights
common elements
offices
Question
What is the burden of proof for a homeowner filing a petition against their HOA?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) is responsible for proving that the HOA violated the statute. The standard is 'preponderance of the evidence,' meaning they must show it is more probable than not that the violation occurred.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated the A.R.S. §§ 33-1252 and A.R.S. 33-1217 by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119
Topic Tags
legal procedure
burden of proof
Question
What qualifies as a 'conveyance' of HOA property?
Short Answer
A conveyance is generally interpreted as a total transfer of fee title, usually evidenced by a recorded deed.
Detailed Answer
The decision clarifies that a conveyance involves a permanent transfer of interest, such as through a deed, and must be recorded. A lease, which is for a set period and does not transfer title, does not qualify as a conveyance.
Alj Quote
The Legislature… made clear its intent that a conveyance is a total transfer of fee title. … Furthermore, once any such 'conveyance' occurs, it must be evidenced by the execution and recording of the document in the same manner as a deed.
Legal Basis
A.R.S. § 33-1252(A); A.R.S. § 33-1252(B)
Topic Tags
definitions
conveyance
property rights
Question
How are ambiguous restrictive covenants in CC&Rs interpreted?
Short Answer
If they are unambiguous, they are enforced according to the intent of the parties.
Detailed Answer
The ALJ noted that restrictive covenants must be viewed as a whole and interpreted based on their underlying purpose. If the text is clear (unambiguous), it is enforced to uphold the parties' intent.
Alj Quote
In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. 'Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.'
Legal Basis
Case Law (Powell v. Washburn)
Topic Tags
CC&Rs
interpretation
legal standards
Case
Docket No
24F-H006-REL
Case Title
Susannah Sabnekar vs. Four Peaks Vista Owners Association
Decision Date
2023-10-26
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Susannah Sabnekar(petitioner) Homeowner
Amy Watier(witness) Homeowner, current board member, and previous board member
Respondent Side
Maria McKee(HOA attorney) Carpenter, Hazelwood, Delgado & Bolen, PLC Council for Respondent
Chad P. Miesen(HOA attorney) Carpenter, Hazelwood, Delgado & Bolen, PLC Council for Respondent
Charlie Markle(HOA attorney) Council for the Association
Kathy Gower(property manager) Four Peaks Vista Owners Association Community manager
Shelley Kobat(board member) Four Peaks Vista Owners Association Associate board president
Neutral Parties
Velva Moses-Thompson(ALJ) OAH
Susan Nicolson(commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission list
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission list
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission list
labril(ADRE staff) Arizona Department of Real Estate Recipient of transmission list
The Administrative Law Judge granted the Petition, concluding that the HOA violated A.R.S. § 33-1804(A) because the portion of the meeting where recording was prohibited was not effectively 'closed' (as members were allowed to remain) and therefore remained 'open' and subject to members' right to record.
Key Issues & Findings
Improperly preventing members from recording an open board meeting
The HOA Board prohibited homeowners participating in an open meeting on September 28, 2022, from recording that meeting. The HOA argued the portion was closed due to receiving legal advice/contemplated litigation, but the ALJ found the portion was not effectively 'closed' because no members were required to leave, thus the HOA lacked authority to prevent recording.
Orders: HOA found in violation; ordered to reimburse Petitioner $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1804(A)
A.R.S. § 33-1804
Analytics Highlights
Topics: HOA Open Meeting Law, Recording Rights, Attorney-Client Privilege, Filing Fee Reimbursement
Yes, homeowners have the statutory right to audio or video tape open portions of board and member meetings.
Detailed Answer
Under Arizona law, persons attending HOA meetings are permitted to audiotape or videotape any portion of the meeting that is open. The HOA cannot prohibit this for open sessions.
Alj Quote
A.R.S. § 33-1804(A) allows a person to record 'those portions of the meetings of the board of directors and meetings of the members that are open.'
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
recording meetings
homeowner rights
open meetings
Question
Can the HOA board stop me from recording if an attorney is giving legal advice?
Short Answer
Not if the meeting remains open to members. To stop recording, the board must physically close the meeting (exclude members).
Detailed Answer
Even if the board intends to receive legal advice (a valid reason to close a meeting), they cannot simply ask members to stop recording while allowing them to remain in the room. If members are allowed to stay, the meeting is not 'closed,' and the right to record remains.
Alj Quote
Because no portion of the September 28, 2022 meeting was 'closed,' the HOA had no authority under A.R.S. § 33-1804(A) to prevent the HOA members from recording the meeting.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
recording meetings
legal advice
closed sessions
Question
What actually constitutes a 'closed' meeting or executive session?
Short Answer
A meeting is considered closed only if members are required to leave or are excluded from attending.
Detailed Answer
Merely stating that a portion of the meeting is for legal advice or asking members to stop recording is not enough to close a meeting. If members are present and not asked to leave, the meeting is effectively open.
Alj Quote
However, nothing in the record demonstrates that this specific portion of the meeting was effectively 'closed.' In fact, Mr. Meister confirmed that none of the members present, or anyone online, had to leave the meeting or had to leave the meeting for the portion that included the attorney’s advice.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
closed sessions
definitions
procedural requirements
Question
Who has the burden of proof in an HOA dispute hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove by a preponderance of the evidence that the HOA violated the community documents or statutes. This means showing the contention is more probably true than not.
Alj Quote
In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.
Legal Basis
Ariz. Admin. Code R2-19-119
Topic Tags
legal standards
burden of proof
hearing procedures
Question
Can I recover my $500 filing fee if I win the hearing?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the petitioner prevails in the hearing, the judge has the authority to order the respondent (HOA) to reimburse the statutory filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED Respondent shall reimburse Petitioner his $500.00 filing fee.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
remedies
fees
penalties
Question
What authority does the Office of Administrative Hearings have in HOA disputes?
Short Answer
OAH can decide petitions, order compliance with statutes/documents, interpret contracts, and levy civil penalties.
Detailed Answer
The tribunal has broad authority to resolve disputes regarding violations of condominium documents or statutes, including interpreting contracts between the parties and imposing penalties for proven violations.
Alj Quote
OAH has the authority to consider and decide the contested petitions, the authority to order any party to abide by the statute, community documents and contract provisions at issue, the authority to interpret the contract between the parties, and the authority to levy a civil penalty on the basis of each proven violation.
Legal Basis
A.R.S. §§ 32-2199 et seq.
Topic Tags
jurisdiction
OAH authority
civil penalties
Case
Docket No
23F-H039-REL
Case Title
Michael Holland v. Tonto Forest Estates Homeowner's Association
Decision Date
2023-10-20
Alj Name
Kay Abramsohn
Tribunal
OAH
Agency
ADRE
Questions
Question
Can I record an open HOA board meeting?
Short Answer
Yes, homeowners have the statutory right to audio or video tape open portions of board and member meetings.
Detailed Answer
Under Arizona law, persons attending HOA meetings are permitted to audiotape or videotape any portion of the meeting that is open. The HOA cannot prohibit this for open sessions.
Alj Quote
A.R.S. § 33-1804(A) allows a person to record 'those portions of the meetings of the board of directors and meetings of the members that are open.'
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
recording meetings
homeowner rights
open meetings
Question
Can the HOA board stop me from recording if an attorney is giving legal advice?
Short Answer
Not if the meeting remains open to members. To stop recording, the board must physically close the meeting (exclude members).
Detailed Answer
Even if the board intends to receive legal advice (a valid reason to close a meeting), they cannot simply ask members to stop recording while allowing them to remain in the room. If members are allowed to stay, the meeting is not 'closed,' and the right to record remains.
Alj Quote
Because no portion of the September 28, 2022 meeting was 'closed,' the HOA had no authority under A.R.S. § 33-1804(A) to prevent the HOA members from recording the meeting.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
recording meetings
legal advice
closed sessions
Question
What actually constitutes a 'closed' meeting or executive session?
Short Answer
A meeting is considered closed only if members are required to leave or are excluded from attending.
Detailed Answer
Merely stating that a portion of the meeting is for legal advice or asking members to stop recording is not enough to close a meeting. If members are present and not asked to leave, the meeting is effectively open.
Alj Quote
However, nothing in the record demonstrates that this specific portion of the meeting was effectively 'closed.' In fact, Mr. Meister confirmed that none of the members present, or anyone online, had to leave the meeting or had to leave the meeting for the portion that included the attorney’s advice.
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
closed sessions
definitions
procedural requirements
Question
Who has the burden of proof in an HOA dispute hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
The homeowner must prove by a preponderance of the evidence that the HOA violated the community documents or statutes. This means showing the contention is more probably true than not.
Alj Quote
In these proceedings, a petitioner bears the burden of proving by a preponderance of the evidence that a respondent has violated the planned community document(s’) provisions or statutes alleged to have been violated.
Legal Basis
Ariz. Admin. Code R2-19-119
Topic Tags
legal standards
burden of proof
hearing procedures
Question
Can I recover my $500 filing fee if I win the hearing?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the petitioner prevails in the hearing, the judge has the authority to order the respondent (HOA) to reimburse the statutory filing fee paid to the Department of Real Estate.
Alj Quote
IT IS FURTHER ORDERED Respondent shall reimburse Petitioner his $500.00 filing fee.
Legal Basis
A.R.S. § 32-2199.02
Topic Tags
remedies
fees
penalties
Question
What authority does the Office of Administrative Hearings have in HOA disputes?
Short Answer
OAH can decide petitions, order compliance with statutes/documents, interpret contracts, and levy civil penalties.
Detailed Answer
The tribunal has broad authority to resolve disputes regarding violations of condominium documents or statutes, including interpreting contracts between the parties and imposing penalties for proven violations.
Alj Quote
OAH has the authority to consider and decide the contested petitions, the authority to order any party to abide by the statute, community documents and contract provisions at issue, the authority to interpret the contract between the parties, and the authority to levy a civil penalty on the basis of each proven violation.
Legal Basis
A.R.S. §§ 32-2199 et seq.
Topic Tags
jurisdiction
OAH authority
civil penalties
Case
Docket No
23F-H039-REL
Case Title
Michael Holland v. Tonto Forest Estates Homeowner's Association
Decision Date
2023-10-20
Alj Name
Kay Abramsohn
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael Holland(petitioner) Represented himself
Jill Burns(witness) Recorded the meeting at issue; former officer of the Board
Linda L. Holland(party affiliate) Co-owner of the property; Michael Holland's mother
Woodland Valley Ranch Property Owners Association, Inc.
Counsel
Kyle A. von Johnson and Edith I. Rudder
Alleged Violations
CC&Rs, Article 3, Section G
Outcome Summary
The ALJ affirmed the petition, finding the Respondent HOA violated CC&Rs, Article 3, Section G by failing to provide 30 days' notice prior to the 2023 assessment increase. The Respondent was ordered to reimburse the Petitioner's filing fee.
Key Issues & Findings
Failure to provide 30-day notice for 2023 dues increase
The HOA increased annual dues from $200.00 to $240.00 effective 1/1/2023 due to a financial crisis caused by embezzlement, but failed to provide the required 30-day written notice as mandated by the CC&Rs. Although the increase was later refunded, the ALJ affirmed the petition finding the HOA failed to comply with the CC&Rs.
Orders: Petitioner's petition is affirmed. Respondent is ordered to reimburse Petitioner's $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs, Article 3, Section G
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et al.
Analytics Highlights
Topics: HOA Dues Increase, Notice Violation, CC&R Violation, Embezzlement, Filing Fee Refund, Assessment Timing
Additional Citations:
CC&Rs, Article 3, Section G
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 33-1804(D)
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 41-1092
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
23F-H061-REL Decision – 1077230.pdf
Uploaded 2026-01-23T17:59:31 (41.5 KB)
23F-H061-REL Decision – 1095389.pdf
Uploaded 2026-01-23T17:59:34 (44.3 KB)
23F-H061-REL Decision – 1095762.pdf
Uploaded 2026-01-23T17:59:37 (6.7 KB)
23F-H061-REL Decision – 1102356.pdf
Uploaded 2026-01-23T17:59:42 (110.9 KB)
Questions
Question
Can my HOA raise dues without proper notice if they are facing a severe financial emergency?
Short Answer
No, financial crises do not exempt the HOA from following the notice timelines in the CC&Rs.
Detailed Answer
The ALJ ruled that even though the HOA was in an 'untenable' position due to embezzlement and urgent debts, they were still strictly bound to provide the specific notice (30 days in this case) required by the governing documents before increasing assessments.
Alj Quote
First, while the tribunal sympathizes with the untenable and horrible position that the Association was facing, it still failed to comply with the CCR’s, by not providing the 30 day notice prior to the 2023 yearly Assessment.
Legal Basis
CC&Rs Compliance
Topic Tags
Assessments
Emergency Powers
Notice Requirements
Question
If I win my hearing, will I get my filing fee back even if I tell the judge I don't want it?
Short Answer
Yes, the statute requires the filing fee to be reimbursed if the petitioner prevails, regardless of their personal preference.
Detailed Answer
The judge ordered the HOA to reimburse the $500 filing fee because the relevant statute (A.R.S. § 32-2199.01) binds the tribunal to order reimbursement when the petitioner wins, even though the homeowner explicitly testified she did not wish to recover it.
Alj Quote
At hearing, Petitioner testified that she did not wish to recovery her filing fee, the tribunal is bound by the statute to order the same.
Legal Basis
A.R.S. § 32-2199.01; A.R.S. § 32-2199.02(A)
Topic Tags
Filing Fees
Reimbursement
Statutory Mandates
Question
What level of proof do I need to provide to win a dispute against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probable than not.
Detailed Answer
The homeowner bears the burden of proof. The standard is not 'beyond a reasonable doubt' (like in criminal cases), but rather showing that the evidence is sufficient to incline a fair mind to one side over the other.
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
A.R.S. § 33-1804(D); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Standards
Evidence
Question
Will the judge automatically fine the HOA if I prove they violated the rules?
Short Answer
No, if you do not specifically request a civil penalty in your petition, the judge generally will not award one.
Detailed Answer
In this case, although the HOA was found in violation, the judge ordered that no civil penalty be awarded specifically because the petitioner did not include a request for a penalty in her initial paperwork.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty be awarded as Petitioner did not request the same in her Petition.
Legal Basis
Administrative Discretion
Topic Tags
Civil Penalties
Fines
Petition Drafting
Question
If the HOA fixes the problem (like refunding money) before the decision, is the case dismissed?
Short Answer
Not necessarily; the judge may still issue a decision affirming the violation occurred.
Detailed Answer
The HOA had already refunded the improper assessment increase to members before the decision was written. However, the ALJ still issued an order affirming the petition and finding that the HOA had failed to comply with the CC&Rs.
Alj Quote
The tribunal finds that Petitioner has met her burden. … Fortunately for the Association and the homeowners, it … was able to issue a refund of $40.00 to its members.
Legal Basis
Mootness (Implicitly Rejected)
Topic Tags
Refunds
Violations
Case Outcomes
Case
Docket No
23F-H061-REL
Case Title
Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.
Decision Date
2023-10-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA raise dues without proper notice if they are facing a severe financial emergency?
Short Answer
No, financial crises do not exempt the HOA from following the notice timelines in the CC&Rs.
Detailed Answer
The ALJ ruled that even though the HOA was in an 'untenable' position due to embezzlement and urgent debts, they were still strictly bound to provide the specific notice (30 days in this case) required by the governing documents before increasing assessments.
Alj Quote
First, while the tribunal sympathizes with the untenable and horrible position that the Association was facing, it still failed to comply with the CCR’s, by not providing the 30 day notice prior to the 2023 yearly Assessment.
Legal Basis
CC&Rs Compliance
Topic Tags
Assessments
Emergency Powers
Notice Requirements
Question
If I win my hearing, will I get my filing fee back even if I tell the judge I don't want it?
Short Answer
Yes, the statute requires the filing fee to be reimbursed if the petitioner prevails, regardless of their personal preference.
Detailed Answer
The judge ordered the HOA to reimburse the $500 filing fee because the relevant statute (A.R.S. § 32-2199.01) binds the tribunal to order reimbursement when the petitioner wins, even though the homeowner explicitly testified she did not wish to recover it.
Alj Quote
At hearing, Petitioner testified that she did not wish to recovery her filing fee, the tribunal is bound by the statute to order the same.
Legal Basis
A.R.S. § 32-2199.01; A.R.S. § 32-2199.02(A)
Topic Tags
Filing Fees
Reimbursement
Statutory Mandates
Question
What level of proof do I need to provide to win a dispute against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence,' meaning your claim is more probable than not.
Detailed Answer
The homeowner bears the burden of proof. The standard is not 'beyond a reasonable doubt' (like in criminal cases), but rather showing that the evidence is sufficient to incline a fair mind to one side over the other.
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
A.R.S. § 33-1804(D); A.A.C. R2-19-119
Topic Tags
Burden of Proof
Legal Standards
Evidence
Question
Will the judge automatically fine the HOA if I prove they violated the rules?
Short Answer
No, if you do not specifically request a civil penalty in your petition, the judge generally will not award one.
Detailed Answer
In this case, although the HOA was found in violation, the judge ordered that no civil penalty be awarded specifically because the petitioner did not include a request for a penalty in her initial paperwork.
Alj Quote
IT IS FURTHER ORDERED that no civil penalty be awarded as Petitioner did not request the same in her Petition.
Legal Basis
Administrative Discretion
Topic Tags
Civil Penalties
Fines
Petition Drafting
Question
If the HOA fixes the problem (like refunding money) before the decision, is the case dismissed?
Short Answer
Not necessarily; the judge may still issue a decision affirming the violation occurred.
Detailed Answer
The HOA had already refunded the improper assessment increase to members before the decision was written. However, the ALJ still issued an order affirming the petition and finding that the HOA had failed to comply with the CC&Rs.
Alj Quote
The tribunal finds that Petitioner has met her burden. … Fortunately for the Association and the homeowners, it … was able to issue a refund of $40.00 to its members.
Legal Basis
Mootness (Implicitly Rejected)
Topic Tags
Refunds
Violations
Case Outcomes
Case
Docket No
23F-H061-REL
Case Title
Megan E Gardner v Woodland Valley Ranch Property Owners Association, Inc.
Decision Date
2023-10-16
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Megan E Gardner(petitioner) Property owner of Parcel 222
Respondent Side
Kyle A. von Johnson(HOA attorney) Woodland Valley Ranch Property Owners Association, Inc.
Edith I. Rudder(HOA attorney) Woodland Valley Ranch Property Owners Association, Inc.
Ronald Carter(Treasurer/Witness) Woodland Valley Ranch Property Owners Association, Inc. Treasurer since June 2022. Referred to as 'Ronald Cotter' in the ALJ Decision Findings of Fact.
David Goodman(Witness) Woodland Valley Ranch Property Owners Association, Inc. Appeared remotely; recruited to serve as President after previous board members resigned.
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings (OAH)
Susan Nicolson(Commissioner) Arizona Department of Real Estate (ADRE)
AHansen(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
vnunez(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
djones(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
labril(ADRE Staff) Arizona Department of Real Estate (ADRE) Listed for copy transmittal
The Villages at Rancho El Dorado Homeowners Association
Counsel
Lydia Linsmeier
Alleged Violations
CC&Rs Article 4.4
Outcome Summary
The Administrative Law Judge concluded that Petitioner failed to establish a violation of Article 4.4 of the CC&Rs, finding that the Association's regulation of the lap pool temperature was authorized and reasonable, and dismissed the petition.
Why this result: Petitioner failed to sustain her burden of proof by a preponderance of the evidence that the Association violated CC&Rs Article 4.4. Petitioner's preference for warmer water did not establish discrimination or a rule violation.
Key Issues & Findings
Whether The Villages at Rancho El Dorado Homeowners Association (Respondent) is in violation of CC&Rs Article 4.4 for “turning off the lap pool heater … [f]or approximately one month” which Petitioner further alleges constitutes discrimination against senior residents.
Petitioner alleged the HOA violated CC&Rs Article 4.4 by turning off the lap pool heater around mid-April 2023, making the temperature too cold for her use and constituting discrimination against senior residents who rely on the pool for exercise. The ALJ found Petitioner failed to prove a violation of CC&Rs Article 4.4 or age-based discrimination.
Orders: Petitioner's petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
CC&Rs Article 4.4
The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7(e)
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. ADMIN. CODE R2-19-119
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Pool Heating, Discrimination Claim, Common Area Use, Burden of Proof, Planned Community
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-106
ARIZ. ADMIN. CODE R2-19-119
CC&Rs Article 4.4
CC&Rs 8.2(c)(12)
The Villages at Rancho El Dorado RULES & REGULATIONS 3.5.7
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H001-REL Decision – 1089588.pdf
Uploaded 2026-01-23T18:00:27 (52.0 KB)
24F-H001-REL Decision – 1102316.pdf
Uploaded 2026-01-23T18:00:31 (136.7 KB)
Study Guide – 24F-H001-REL
{ “case”: { “docket_no”: “24F-H001-REL”, “case_title”: “Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners Association”, “decision_date”: “2023-10-16”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “In an administrative hearing, the petitioner (homeowner) is responsible for proving that the HOA violated a community document. The standard of proof is ‘preponderance of the evidence,’ which means showing that the claim is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA rule regarding amenity usage constitute discrimination if it negatively affects senior citizens’ preferences?”, “short_answer”: “No, if the rule is applied neutrally and is within the HOA’s authority, personal preference does not equate to discrimination.”, “detailed_answer”: “The ALJ ruled that rules regarding common area maintenance (such as pool temperature) do not amount to age-based discrimination simply because they do not meet the personal preferences of senior residents, provided the HOA has the authority to govern the property use.”, “alj_quote”: “Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her preference does not amount to age-based discrimination.”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “discrimination”, “common areas”, “amenities” ] }, { “question”: “Can an HOA board adopt rules that restrict the use of common areas like pools?”, “short_answer”: “Yes, the CC&Rs typically grant the Board the power to adopt rules governing property use.”, “detailed_answer”: “The decision affirms that the HOA Board has the authority to adopt, amend, and repeal rules regarding the use of the property, including common areas, as long as those rules do not discriminate among owners and are consistent with the declaration.”, “alj_quote”: “By action of the Board, the Association may, from time to time and subject to the provisions of this Declaration, adopt, amend, and repeal rules and regulations to be known as the ‘Rules.’ The Rules may restrict and govern the use of the Property”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “HOA authority”, “rules and regulations”, “common areas” ] }, { “question”: “Does the administrative court have the power to interpret the CC&Rs as a contract?”, “short_answer”: “Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.”, “detailed_answer”: “The ALJ confirmed that the CC&Rs form an enforceable contract between the Association and the property owner, and the OAH has the legal authority to interpret this contract during a dispute.”, “alj_quote”: “Thus, the CC&Rs form an enforceable contract between the Association and each property owner… OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195”, “topic_tags”: [ “contract law”, “jurisdiction”, “CC&Rs” ] }, { “question”: “If the HOA follows its written rules regarding maintenance (e.g., heating schedules), is it liable for a violation?”, “short_answer”: “No, if the HOA acts in accordance with the established rules, there is no violation.”, “detailed_answer”: “In this case, the HOA rules specified heating the pool during the ‘winter season’ to a specific range. Because there was no evidence the HOA failed to meet these specific written requirements, the ALJ found no violation.”, “alj_quote”: “There is no evidence in the record that would support the contention that the Association failed to do so through April 2023.”, “legal_basis”: “Recreation Center Complex Rule 3.5.7(e)”, “topic_tags”: [ “maintenance”, “compliance”, “violations” ] }, { “question”: “What is the definition of ‘preponderance of the evidence’?”, “short_answer”: “It is evidence that convinces the judge the claim is ‘more probably true than not.'”, “detailed_answer”: “The decision defines this legal standard as the greater weight of the evidence, which inclines a fair mind to one side of the issue, even if it doesn’t wholly free the mind from doubt.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “Does a homeowner have to pay a fee to file a petition against their HOA?”, “short_answer”: “Yes, a filing fee is required by statute.”, “detailed_answer”: “The petitioner in this case was required to tender a $500.00 filing fee to the Department of Real Estate when submitting their petition.”, “alj_quote”: “On July 07, 2023, tendered $500.00 to the Department as a filing fee for the petition at issue.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.05”, “topic_tags”: [ “fees”, “filing process”, “procedure” ] } ] }
Blog Post – 24F-H001-REL
{ “case”: { “docket_no”: “24F-H001-REL”, “case_title”: “Kristeen L. Herron v. The Villages at Rancho El Dorado Homeowners Association”, “decision_date”: “2023-10-16”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof for a homeowner suing their HOA?”, “short_answer”: “The homeowner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “In an administrative hearing, the petitioner (homeowner) is responsible for proving that the HOA violated a community document. The standard of proof is ‘preponderance of the evidence,’ which means showing that the claim is more likely true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA rule regarding amenity usage constitute discrimination if it negatively affects senior citizens’ preferences?”, “short_answer”: “No, if the rule is applied neutrally and is within the HOA’s authority, personal preference does not equate to discrimination.”, “detailed_answer”: “The ALJ ruled that rules regarding common area maintenance (such as pool temperature) do not amount to age-based discrimination simply because they do not meet the personal preferences of senior residents, provided the HOA has the authority to govern the property use.”, “alj_quote”: “Petitioner’s argument that she was unable to use the lap pool because the temperature was outside of her preference does not amount to age-based discrimination.”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “discrimination”, “common areas”, “amenities” ] }, { “question”: “Can an HOA board adopt rules that restrict the use of common areas like pools?”, “short_answer”: “Yes, the CC&Rs typically grant the Board the power to adopt rules governing property use.”, “detailed_answer”: “The decision affirms that the HOA Board has the authority to adopt, amend, and repeal rules regarding the use of the property, including common areas, as long as those rules do not discriminate among owners and are consistent with the declaration.”, “alj_quote”: “By action of the Board, the Association may, from time to time and subject to the provisions of this Declaration, adopt, amend, and repeal rules and regulations to be known as the ‘Rules.’ The Rules may restrict and govern the use of the Property”, “legal_basis”: “CC&Rs Article 4.4”, “topic_tags”: [ “HOA authority”, “rules and regulations”, “common areas” ] }, { “question”: “Does the administrative court have the power to interpret the CC&Rs as a contract?”, “short_answer”: “Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.”, “detailed_answer”: “The ALJ confirmed that the CC&Rs form an enforceable contract between the Association and the property owner, and the OAH has the legal authority to interpret this contract during a dispute.”, “alj_quote”: “Thus, the CC&Rs form an enforceable contract between the Association and each property owner… OAH has the authority to interpret the contract between the parties.”, “legal_basis”: “Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195”, “topic_tags”: [ “contract law”, “jurisdiction”, “CC&Rs” ] }, { “question”: “If the HOA follows its written rules regarding maintenance (e.g., heating schedules), is it liable for a violation?”, “short_answer”: “No, if the HOA acts in accordance with the established rules, there is no violation.”, “detailed_answer”: “In this case, the HOA rules specified heating the pool during the ‘winter season’ to a specific range. Because there was no evidence the HOA failed to meet these specific written requirements, the ALJ found no violation.”, “alj_quote”: “There is no evidence in the record that would support the contention that the Association failed to do so through April 2023.”, “legal_basis”: “Recreation Center Complex Rule 3.5.7(e)”, “topic_tags”: [ “maintenance”, “compliance”, “violations” ] }, { “question”: “What is the definition of ‘preponderance of the evidence’?”, “short_answer”: “It is evidence that convinces the judge the claim is ‘more probably true than not.'”, “detailed_answer”: “The decision defines this legal standard as the greater weight of the evidence, which inclines a fair mind to one side of the issue, even if it doesn’t wholly free the mind from doubt.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “Does a homeowner have to pay a fee to file a petition against their HOA?”, “short_answer”: “Yes, a filing fee is required by statute.”, “detailed_answer”: “The petitioner in this case was required to tender a $500.00 filing fee to the Department of Real Estate when submitting their petition.”, “alj_quote”: “On July 07, 2023, tendered $500.00 to the Department as a filing fee for the petition at issue.”, “legal_basis”: “ARIZ. REV. STAT. § 32-2199.05”, “topic_tags”: [ “fees”, “filing process”, “procedure” ] } ] }
Case Participants
Petitioner Side
Kristeen L. Herron(petitioner) The Villages at Rancho El Dorado Homeowners Association Property owner and member of the Association
Karen Ellis(witness) The Villages at Rancho El Dorado Homeowners Association Witness for Petitioner; property owner/member
LouAnne Schmidt(observer) Potential witness for Petitioner, not permitted to testify
