Tag Archives: 2023

Kimberly Martinez v. Pineglen Owner’s Association

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Case Summary

Case ID 23F-H027-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-03-09
Administrative Law Judge Sondra J. Vanella
Outcome Petitioner was deemed the prevailing party on Petition Issues 1 and 3, establishing violations of A.R.S. § 33-1812(A)(6) and A.R.S. § 33-1805(A). Respondent was deemed the prevailing party on Issue 2. Respondent was ordered to pay Petitioner $1,000.00 of the filing fee and directed to comply with the violated statutes going forward. No Civil Penalty was imposed.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kimberly Martinez Counsel —
Respondent Pineglen Owner's Association Counsel —

Alleged Violations

A.R.S. § 33-1812(A)(6)
Bylaws, Article IV, Sections 1 and 2
A.R.S. § 33-1805(A)

Outcome Summary

Petitioner was deemed the prevailing party on Petition Issues 1 and 3, establishing violations of A.R.S. § 33-1812(A)(6) and A.R.S. § 33-1805(A). Respondent was deemed the prevailing party on Issue 2. Respondent was ordered to pay Petitioner $1,000.00 of the filing fee and directed to comply with the violated statutes going forward. No Civil Penalty was imposed.

Why this result: Petitioner failed to prove the violation related to the appointed board positions (Issue 2) by a preponderance of the evidence.

Key Issues & Findings

The ballot for the annual election of Board members did not have the proper resident identifiers, lot number or physical address; and the process for write-in candidates was not provided or outlined.

The ballots utilized by Respondent did not contain the address of the person voting, violating the requirement that completed ballots shall contain the name, address, and signature of the person voting.

Orders: Respondent is directed to comply with the requirements of A.R.S. § 33-1812(A)(6) going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1812(A)(6)
  • Bylaws, Article III, Section 3

At the Annual Meeting the Board President announced 2 new Board positions, but did not follow the electoral process for filling the 2 positions, instead appointed 2 residents to the new positions.

Petitioner failed to establish by a preponderance of the evidence that Respondent violated its Bylaws regarding the appointment of two board positions (RV Lot Manager and Architectural Review Manager), as the Board was within its limits to increase membership and fill vacancies until the next election.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Bylaws, Article IV, Section 1
  • Bylaws, Article IV, Section 2

The Board Secretary refused to comply to Petitioner's request, per ARS 33-1805(A), of supplying copies of HOA records, either electronically or by purchase of hard copies.

Petitioner requested copies in writing and offered to pay, but Respondent refused to provide copies, contrary to the statutory obligation that the association must provide copies of requested records upon request for purchase within ten business days.

Orders: Respondent is directed to comply with the requirements of A.R.S. § 33-1805(A) going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805(A)
  • Bylaws, Article VII, Section 3

Analytics Highlights

Topics: HOA Election, Ballot Requirements, HOA Records Request, Board Appointments, Filing Fee Refund
Additional Citations:

  • A.R.S. § 33-1812(A)(6)
  • A.R.S. § 33-1805(A)
  • Bylaws, Article IV, Section 1
  • Bylaws, Article IV, Section 2
  • Bylaws, Article III, Section 3
  • Bylaws, Article VII, Section 3

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Video Overview

Audio Overview

Decision Documents

23F-H027-REL Decision – 1027053.pdf

Uploaded 2026-04-24T12:00:34 (50.0 KB)

23F-H027-REL Decision – 1028006.pdf

Uploaded 2026-04-24T12:00:38 (57.9 KB)

23F-H027-REL Decision – 1029880.pdf

Uploaded 2026-04-24T12:00:43 (60.6 KB)

23F-H027-REL Decision – 1040305.pdf

Uploaded 2026-04-24T12:00:50 (160.5 KB)

23F-H027-REL Decision – 1027053.pdf

Uploaded 2026-01-23T17:53:20 (50.0 KB)

23F-H027-REL Decision – 1028006.pdf

Uploaded 2026-01-23T17:53:24 (57.9 KB)

23F-H027-REL Decision – 1029880.pdf

Uploaded 2026-01-23T17:53:28 (60.6 KB)

23F-H027-REL Decision – 1040305.pdf

Uploaded 2026-01-23T17:53:33 (160.5 KB)

This concise summary details the proceedings, key arguments, and final decision in the matter of *Kimberly Martinez v. Pineglen Owner's Association*, case number 23F-H027-REL, heard before the Office of Administrative Hearings (OAH).

Key Facts and Issues

The Petitioner, Kimberly Martinez, a homeowner in the Pineglen planned community, filed a Petition with the Arizona Department of Real Estate (Department) alleging three specific violations by the Respondent, Pineglen Owner's Association (HOA). The hearing was held on February 17, 2023, before Administrative Law Judge (ALJ) Sondra J. Vanella.

The three issues were:

  1. Ballot Identifiers (A.R.S. § 33-1812(A)(6)): The annual election ballot lacked proper resident identifiers (address or lot number) for the person voting.
  2. Board Appointments (Bylaws Article IV, Section 1/2): The Board appointed two new voting members (RV Lot Manager and Architectural Review Manager) without following the proper electoral process.
  3. Records Request (A.R.S. § 33-1805(A)): The Board refused to provide copies of HOA records upon Petitioner’s written request and offer to purchase, instead insisting only on in-person viewing.

Key Arguments and Legal Points

Pre-Hearing Matters: The ALJ Denied the Respondent’s Motion to Continue the hearing.

Issue 1 (Ballots):

  • Petitioner's Argument: The ballot did not meet the statutory requirement of containing the name and address of the person voting, as mandated by A.R.S. § 33-1812(A)(6).
  • Respondent's Argument: The HOA utilized a door-to-door canvassing method and manually wrote the lot number on the ballot *after* it was received to ensure the voter was a member and to prevent duplication. They argued this process achieved compliance while protecting member privacy.

Issue 2 (Appointments):

  • Petitioner's Argument: Board members must be elected at the annual meeting, and the appointment of two new voting positions violated the electoral process outlined in the Bylaws.
  • Respondent's Argument: Citing Bylaws Article IV, Section 1, the HOA maintained they had the right to increase board membership (within the 3-to-7 member limit) and fill vacancies, with appointees serving until the next election. The positions were formalized from previously ambiguous roles to aid the Board, which is comprised of "elderly volunteers" who struggle to find recruits.

Issue 3 (Records Request):

  • Petitioner's Argument: A.R.S. § 33-1805(A) mandates that associations provide copies of records within ten business days upon written request for purchase, allowing a charge of up to fifteen cents per page. Petitioner specifically stated she fully expected an invoice to be delivered with the copies.
  • Respondent's Argument: The Board offered multiple opportunities for Petitioner to review the documents in person, believing they were making them "reasonably available" in compliance with A.R.S. § 33-1805(A) and their own bylaws. The Respondent admitted they initially failed to interpret the Petitioner's email as a request for *purchase* of copies.

Outcome and Final Decision

The ALJ issued a Decision on March 9, 2023, finding the Petitioner established violations on two of the three complaints by a preponderance of the evidence.

  • Complaint 1 (Ballots): Violation Found. Respondent violated A.R.S. § 33-1812(A)(6), as the ballots did not contain the address of the person voting.
  • Complaint 2 (Appointments): No Violation Found. The Board acted within its authority under Bylaws Article IV, Section 1, to increase membership and fill vacancies until the next election.
  • Complaint 3 (Records Request): Violation Found. Respondent violated A.R.S. § 33-1805(A) by refusing to provide copies of the requested records for purchase, contrary to its statutory obligation.

Final Orders:

The Petitioner was deemed the prevailing party on Issues 1 and 3. The ALJ Ordered Res

Questions

Question

Must HOA election ballots include the voter's address?

Short Answer

Yes, unless the community documents explicitly permit secret ballots.

Detailed Answer

According to Arizona law, completed ballots must contain the name, address, and signature of the voter. The only exception is if community documents allow for secret ballots, in which case this information must be on the envelope.

Alj Quote

The ballots utilized by Respondent did not contain the address of the person voting. Therefore, Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1812(A)(6).

Legal Basis

A.R.S. § 33-1812(A)(6)

Topic Tags

  • Elections
  • Ballots
  • Voting

Question

Can an HOA refuse to provide copies of records and force me to view them in person instead?

Short Answer

No. If a member requests to purchase copies, the HOA must provide them.

Detailed Answer

While an HOA can make records available for viewing, if a homeowner explicitly requests to purchase copies, the HOA is statutorily obligated to provide those copies within ten business days. Simply offering a viewing does not satisfy a request for copies.

Alj Quote

Respondent refused to provide copies of the requested documents and would only allow Petitioner to view the documents, contrary to its statutory obligation. … Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805(A).

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Records Request
  • Transparency
  • HOA Obligations

Question

Can the HOA Board appoint people to fill vacancies or new positions without holding an election?

Short Answer

Yes, if the bylaws permit the Board to fill vacancies until the next election.

Detailed Answer

If the community bylaws allow the Board to increase its membership within certain limits and fill vacancies, the Board can appoint members to these positions. These appointees generally serve until the next scheduled election.

Alj Quote

The credible evidence of record established that Respondent appropriately appointed these positions and that the positions will appear on the ballot of the next election.

Legal Basis

Bylaws Article IV, Section 1

Topic Tags

  • Board Vacancies
  • Appointments
  • Bylaws

Question

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

Short Answer

The homeowner (Petitioner) must prove the violation.

Detailed Answer

The homeowner filing the petition is responsible for providing sufficient evidence to prove that the HOA violated statutes or community documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Hearing Procedures

Question

How much can an HOA charge for copies of records?

Short Answer

The HOA may charge a fee of no more than 15 cents per page.

Detailed Answer

Arizona statute limits the fee an association can charge for making copies of records requested by a member to a maximum of fifteen cents per page.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Records Request
  • Fees
  • HOA Obligations

Question

If I win my case, will the HOA have to pay a civil penalty?

Short Answer

Not necessarily; civil penalties are discretionary.

Detailed Answer

Even if the HOA is found to have violated the law, the Administrative Law Judge is not required to impose a civil penalty. In this case, despite finding violations regarding ballots and records, the judge decided no penalty was appropriate.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Discretionary

Topic Tags

  • Penalties
  • Enforcement
  • Civil Penalty

Question

Can I get my filing fee reimbursed if the ALJ rules in my favor?

Short Answer

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

Detailed Answer

If the homeowner prevails on the issues presented in the petition, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee back to the Petitioner.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner the filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Filing Fees
  • Reimbursement

Case

Docket No
23F-H027-REL
Case Title
Kimberly Martinez v. Pineglen Owner's Association
Decision Date
2023-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Must HOA election ballots include the voter's address?

Short Answer

Yes, unless the community documents explicitly permit secret ballots.

Detailed Answer

According to Arizona law, completed ballots must contain the name, address, and signature of the voter. The only exception is if community documents allow for secret ballots, in which case this information must be on the envelope.

Alj Quote

The ballots utilized by Respondent did not contain the address of the person voting. Therefore, Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1812(A)(6).

Legal Basis

A.R.S. § 33-1812(A)(6)

Topic Tags

  • Elections
  • Ballots
  • Voting

Question

Can an HOA refuse to provide copies of records and force me to view them in person instead?

Short Answer

No. If a member requests to purchase copies, the HOA must provide them.

Detailed Answer

While an HOA can make records available for viewing, if a homeowner explicitly requests to purchase copies, the HOA is statutorily obligated to provide those copies within ten business days. Simply offering a viewing does not satisfy a request for copies.

Alj Quote

Respondent refused to provide copies of the requested documents and would only allow Petitioner to view the documents, contrary to its statutory obligation. … Petitioner established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1805(A).

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Records Request
  • Transparency
  • HOA Obligations

Question

Can the HOA Board appoint people to fill vacancies or new positions without holding an election?

Short Answer

Yes, if the bylaws permit the Board to fill vacancies until the next election.

Detailed Answer

If the community bylaws allow the Board to increase its membership within certain limits and fill vacancies, the Board can appoint members to these positions. These appointees generally serve until the next scheduled election.

Alj Quote

The credible evidence of record established that Respondent appropriately appointed these positions and that the positions will appear on the ballot of the next election.

Legal Basis

Bylaws Article IV, Section 1

Topic Tags

  • Board Vacancies
  • Appointments
  • Bylaws

Question

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

Short Answer

The homeowner (Petitioner) must prove the violation.

Detailed Answer

The homeowner filing the petition is responsible for providing sufficient evidence to prove that the HOA violated statutes or community documents. The standard is a 'preponderance of the evidence,' meaning it is more likely than not that the violation occurred.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.

Legal Basis

A.A.C. R2-19-119(A)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Hearing Procedures

Question

How much can an HOA charge for copies of records?

Short Answer

The HOA may charge a fee of no more than 15 cents per page.

Detailed Answer

Arizona statute limits the fee an association can charge for making copies of records requested by a member to a maximum of fifteen cents per page.

Alj Quote

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

Legal Basis

A.R.S. § 33-1805(A)

Topic Tags

  • Records Request
  • Fees
  • HOA Obligations

Question

If I win my case, will the HOA have to pay a civil penalty?

Short Answer

Not necessarily; civil penalties are discretionary.

Detailed Answer

Even if the HOA is found to have violated the law, the Administrative Law Judge is not required to impose a civil penalty. In this case, despite finding violations regarding ballots and records, the judge decided no penalty was appropriate.

Alj Quote

No Civil Penalty is found to be appropriate in this matter.

Legal Basis

Discretionary

Topic Tags

  • Penalties
  • Enforcement
  • Civil Penalty

Question

Can I get my filing fee reimbursed if the ALJ rules in my favor?

Short Answer

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

Detailed Answer

If the homeowner prevails on the issues presented in the petition, the Administrative Law Judge has the authority to order the Respondent (HOA) to pay the filing fee back to the Petitioner.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner the filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Filing Fees
  • Reimbursement

Case

Docket No
23F-H027-REL
Case Title
Kimberly Martinez v. Pineglen Owner's Association
Decision Date
2023-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Kimberly Martinez (petitioner)
    Appeared on her own behalf
  • Christine McCabe (assistant/observer)
    Friend assisting Petitioner due to hearing deficit

Respondent Side

  • Susan Goeldner (HOA secretary/board member/representative)
    Pineglen Owner's Association
    Testified and acted as primary representative for Respondent
  • Warren Doty (HOA VP/board member/representative/witness)
    Pineglen Owner's Association
    Testified on Complaint Number 1
  • Tim Mahoney (HOA treasurer/board member/witness)
    Pineglen Owner's Association
    Observed proceedings; testified briefly on Complaint Number 3
  • Mark McElvain (former HOA president/observer)
    Pineglen Owner's Association
    Observed proceedings
  • Fred Bates (former board member/observer)
    Pineglen Owner's Association
    Observed proceedings
  • Addie Bassoon (HOA president)
    Pineglen Owner's Association
    Did not attend hearing due to personal issues; referenced in testimony/documents

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    ADRE
    Recipient of initial correspondence/minute entries
  • Susan Nicolson (Commissioner)
    ADRE
    Recipient of final decision copies
  • AHansen (ADRE staff)
    ADRE
    Recipient of correspondence/decision copies (listed by email attn)
  • vnunez (ADRE staff)
    ADRE
    Recipient of correspondence/decision copies (listed by email attn)
  • djones (ADRE staff)
    ADRE
    Recipient of correspondence/decision copies (listed by email attn)
  • labril (ADRE staff)
    ADRE
    Recipient of correspondence/decision copies (listed by email attn)

Carolyn Wefsenmoe v. Summit View Homeowner’s Association

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Case Summary

Case ID 23F-H017-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-03-08
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, ruling that the Petitioner failed to meet the burden of proof to establish that the walls were built on the common area. Since HOA maintenance responsibility primarily attached to the common area, and the location of the walls relative to the lots remained unproven, the HOA was not found in violation of its maintenance obligations.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Carolyn Wefsenmoe Counsel —
Respondent Summit View Homeowner's Association Counsel Chad M. Gallacher, Esq.

Alleged Violations

CC&R’s Article XI, Sections 1, 2, and 3; Summit View Community Plat Notes

Outcome Summary

The Administrative Law Judge denied the petition, ruling that the Petitioner failed to meet the burden of proof to establish that the walls were built on the common area. Since HOA maintenance responsibility primarily attached to the common area, and the location of the walls relative to the lots remained unproven, the HOA was not found in violation of its maintenance obligations.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the walls were located in a common area. No survey evidence was presented to determine whether the walls were on the individual lots (Owner responsibility) or the common area (HOA responsibility).

Key Issues & Findings

HOA failure to maintain perimeter walls and improper charging of homeowners for repairs.

Petitioner alleged that the HOA (SVHA) violated CC&R Article XI, Sections 1, 2, and 3, and the Community Plat Notes by failing to maintain the subdivision perimeter walls and charging homeowners for repairs, arguing the walls abutted and were part of the Common Area (NAOS), making maintenance the HOA's responsibility.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • CC&R Article XI, Section 1
  • CC&R Article XI, Section 2
  • CC&R Article XI, Section 3
  • Summit View Community Plat Notes

Analytics Highlights

Topics: HOA, Maintenance, Perimeter Walls, CC&R, Common Area, Burden of Proof, NAOS, Lot Line Dispute
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119
  • CC&R Article XI, Section 1
  • CC&R Article XI, Section 2
  • CC&R Article XI, Section 3
  • Summit View Plat Notes

Video Overview

Audio Overview

Decision Documents

23F-H017-REL Decision – 1018596.pdf

Uploaded 2026-04-24T11:58:24 (52.8 KB)

23F-H017-REL Decision – 1018616.pdf

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23F-H017-REL Decision – 1031301.pdf

Uploaded 2026-04-24T11:58:32 (53.6 KB)

23F-H017-REL Decision – 1032541.pdf

Uploaded 2026-04-24T11:58:37 (258.1 KB)

23F-H017-REL Decision – 1032542.pdf

Uploaded 2026-04-24T11:58:41 (723.8 KB)

23F-H017-REL Decision – 1032543.pdf

Uploaded 2026-04-24T11:58:45 (487.6 KB)

23F-H017-REL Decision – 1032544.pdf

Uploaded 2026-04-24T11:58:50 (3029.4 KB)

23F-H017-REL Decision – 1032545.pdf

Uploaded 2026-04-24T11:58:53 (81.9 KB)

23F-H017-REL Decision – 1032546.pdf

Uploaded 2026-04-24T11:59:00 (3401.3 KB)

23F-H017-REL Decision – 1032547.pdf

Uploaded 2026-04-24T11:59:06 (2346.1 KB)

23F-H017-REL Decision – 1035846.pdf

Uploaded 2026-04-24T11:59:09 (114.5 KB)

23F-H017-REL Decision – 1018596.pdf

Uploaded 2026-01-23T17:51:50 (52.8 KB)

23F-H017-REL Decision – 1018616.pdf

Uploaded 2026-01-23T17:51:54 (5.6 KB)

23F-H017-REL Decision – 1031301.pdf

Uploaded 2026-01-23T17:51:57 (53.6 KB)

23F-H017-REL Decision – 1032541.pdf

Uploaded 2026-01-23T17:52:02 (258.1 KB)

23F-H017-REL Decision – 1032542.pdf

Uploaded 2026-01-23T17:52:05 (723.8 KB)

23F-H017-REL Decision – 1032543.pdf

Uploaded 2026-01-23T17:52:10 (487.6 KB)

23F-H017-REL Decision – 1032544.pdf

Uploaded 2026-01-23T17:52:15 (3029.4 KB)

23F-H017-REL Decision – 1032545.pdf

Uploaded 2026-01-23T17:52:21 (81.9 KB)

23F-H017-REL Decision – 1032546.pdf

Uploaded 2026-01-23T17:52:29 (3401.3 KB)

23F-H017-REL Decision – 1032547.pdf

Uploaded 2026-01-23T17:52:33 (2346.1 KB)

23F-H017-REL Decision – 1035846.pdf

Uploaded 2026-01-23T17:52:37 (114.5 KB)

This summary addresses the legal case hearing concerning Petitioner Carolyn Wefsenmoe versus Respondent Summit View Homeowner's Association (SVHA), Case No. 23F-H017-REL, held before the Office of Administrative Hearings (OAH) on February 21, 2023.

Key Facts and Main Issue

The dispute centered on the maintenance responsibility for the subdivision's perimeter walls and the SVHA's action of charging homeowners for repairs. Petitioner Wefsenmoe alleged the SVHA violated community documents, specifically CC&R's Article XI, Sections 1, 2, and 3, and the Summit View Community Plat Notes, by refusing to maintain the walls. The SVHA, represented by Chad Gallacher, Esq., argued the walls were located on individual Lots, making maintenance the homeowner's responsibility.

Key Legal Arguments and Proceedings

  1. Plat vs. CC&Rs: Petitioner relied heavily on language in the June 1996 Final Plat Notes, which stated that a Homeowners Association "WILL BE FORMED AND HAVE RESPONSIBILITY FOR MAINTAINING ALL COMMON AREAS, TO BE NOTED AS… SUBDIVISION PERIMETER WALLS". Petitioner noted that her wall abutted the Natural Area Open Space (NAOS), designated as a Common Area.
  2. Governing Documents Hierarchy: Respondent countered that the Plat statement was a "forecasting" or "foreshadowing". This statement was qualified by the phrase "IN ACCORDANCE WITH APPROVED PLANS," referring to the later Amended and Restated Declaration of Covenants, Conditions and Restrictions (CC&Rs) recorded in 2004.
  3. Lot Owner Responsibility: The SVHA argued that the CC&Rs placed maintenance burdens on the individual owner for all improvements on their Lot (Article III, Section 3). Furthermore, specific CC&R provisions required owners to obtain written architectural approval to perform maintenance or erect walls on their Lots (Article VIII, Sections 5 and 15), suggesting the maintenance obligation rested with the homeowner.
  4. Evidence of Location and Damage: The SVHA presented testimony that the walls in question were generally understood to be built on the individual lots, noting that the wall lines were not uniformly straight across the lots. SVHA's witness, Vic Smith, also testified that many wall damages were attributable to poor drainage and water runoff coming from the homeowner's Lot side, not the NAOS Common Area, which had no watering.
  5. Burden of Proof: Petitioner admitted on cross-examination that no professional survey had been conducted to definitively determine whether the walls were located on the Common Area or the individual Lots. The ALJ noted that Petitioner bore the burden of proof to establish the alleged violation by a preponderance of the evidence.

Outcome

The Administrative Law Judge (ALJ) issued a decision denying Petitioner's petition. The ALJ concluded that Petitioner failed to meet the required burden of proof. Absent persuasive evidence, such as a survey, demonstrating the walls were constructed in the Common Area, Petitioner could not establish that the SVHA was responsible for the maintenance or that the Association acted in violation of the community documents.

Questions

Question

Who has the burden of proof when a homeowner files a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • legal standards
  • burden of proof
  • procedural requirements

Question

What level of evidence is required to win a dispute against an HOA?

Short Answer

A 'preponderance of the evidence,' meaning the claim is more likely true than not.

Detailed Answer

The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal standards
  • evidence
  • hearings

Question

If a wall touches an HOA common area, does the HOA automatically have to maintain it?

Short Answer

No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.

Detailed Answer

Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.

Alj Quote

There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • maintenance
  • common areas
  • boundaries

Question

Is a professional survey necessary to prove a boundary or maintenance dispute?

Short Answer

Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.

Detailed Answer

If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.

Alj Quote

However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.

Legal Basis

Conclusions of Law

Topic Tags

  • evidence
  • surveys
  • property lines

Question

Does the alignment of walls affect who is responsible for them?

Short Answer

Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.

Detailed Answer

In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.

Alj Quote

Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.

Legal Basis

Conclusions of Law

Topic Tags

  • maintenance
  • construction
  • HOA obligations

Question

Can I rely solely on Plat Notes to prove HOA maintenance responsibility?

Short Answer

Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.

Detailed Answer

Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.

Alj Quote

Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • cc&rs
  • plat maps
  • interpretation

Case

Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Who has the burden of proof when a homeowner files a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding HOA disputes, the person filing the petition is responsible for proving that the HOA committed the alleged violations. The HOA does not have to disprove the allegations initially; the homeowner must first provide sufficient evidence to support their claim.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • legal standards
  • burden of proof
  • procedural requirements

Question

What level of evidence is required to win a dispute against an HOA?

Short Answer

A 'preponderance of the evidence,' meaning the claim is more likely true than not.

Detailed Answer

The standard is not 'beyond a reasonable doubt' like in criminal cases. Instead, the homeowner must show that their version of the facts is more probable than the HOA's version. It relies on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • legal standards
  • evidence
  • hearings

Question

If a wall touches an HOA common area, does the HOA automatically have to maintain it?

Short Answer

No. The location of the wall's foundation (on the lot vs. common area) determines responsibility.

Detailed Answer

Simply abutting a common area does not make a structure part of the common area. Unless the homeowner can prove the structure was actually built *on* the common area land, the HOA may not be responsible for its maintenance.

Alj Quote

There was no persuasive evidence presented that simply because on the other side of the wall there was a common area, does not prove that the wall was actually built on the common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • maintenance
  • common areas
  • boundaries

Question

Is a professional survey necessary to prove a boundary or maintenance dispute?

Short Answer

Yes, often. Without a survey, it is difficult to prove exactly where a structure lies.

Detailed Answer

If there is a dispute about whether a wall or structure is on private property or common area, failing to provide a professional survey can result in losing the case. The judge generally cannot assume a location without specific evidence.

Alj Quote

However, again, no evidence was presented to determine exactly where the wall was built. Perhaps if this evidence was presented there may be a different result.

Legal Basis

Conclusions of Law

Topic Tags

  • evidence
  • surveys
  • property lines

Question

Does the alignment of walls affect who is responsible for them?

Short Answer

Yes. If walls are not uniformly aligned, it suggests they follow individual lot lines rather than a subdivision perimeter.

Detailed Answer

In this decision, the judge noted that because the walls were not in a straight, uniform line across lots (likely due to varying lot sizes), it supported the conclusion that the walls were built on individual lots rather than being a single common area perimeter wall.

Alj Quote

Further, the tribunal notes that the walls were not uniformly even across the individual lots. This was presumably because each lot is a different size, which also would lead to the conclusion that each wall was built on each individual lot.

Legal Basis

Conclusions of Law

Topic Tags

  • maintenance
  • construction
  • HOA obligations

Question

Can I rely solely on Plat Notes to prove HOA maintenance responsibility?

Short Answer

Not necessarily, especially if physical evidence contradicts the interpretation that a structure is a 'perimeter wall'.

Detailed Answer

Even if a Plat Note says the HOA maintains 'subdivision perimeter walls,' the homeowner must still prove that the specific wall in question fits that definition and location. If the evidence suggests the wall is on a private lot, the general note may not apply.

Alj Quote

Petitioner testified that she believed that based upon the 'Notes' section on the plat map, this created an obligation on the SVHA… [However] Petitioner has failed to prove by a preponderance of the evidence that the walls in questions are in a common area.

Legal Basis

Findings of Fact / Conclusions of Law

Topic Tags

  • cc&rs
  • plat maps
  • interpretation

Case

Docket No
23F-H017-REL
Case Title
Carolyn Wefsenmoe vs Summit View Homeowner's Association
Decision Date
2023-03-08
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Carolyn Wefsenmoe (petitioner)
    Appeared via Google Meet on her own behalf

Respondent Side

  • Chad M. Gallacher (HOA attorney)
    Maxwell & Morgan, P.C.
  • Bick Smith (witness/board president)
    Summit View Homeowner's Association
    Also referred to as Vic Smith; testified for Respondent
  • Henry (board member)
    Summit View Homeowner's Association
    Discussed erosion issues; toured walls with Bick Smith
  • Denise (board member)
    Summit View Homeowner's Association
    Participated in special board meeting
  • Larry Burns (property manager/GM)
    Summit View Homeowner's Association
    General Manager who wrote community painting update; participated in board meeting

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
    Transmitted minute entry to
  • James Knupp (Acting Commissioner)
    Arizona Department of Real Estate
    Transmitted order to
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Transmitted ALJ decision to
  • AHansen (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • vnunez (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • djones (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • labril (ADRE Staff)
    Arizona Department of Real Estate
    Email recipient for transmitted documents
  • c. serrano (OAH Staff)
    OAH
    Signed minute entries for transmission
  • Helen Purcell (county recorder)
    Maricopa County
    Recorded Amended CC&R Declaration in 2004
  • Maria Rosana Pira (notary public)
    Maricopa County
    Notarized Amended CC&R and Bylaws in 2004

Other Participants

  • Elelliana (unknown)
    Correspondent in objected-to email exhibit
  • Beth Mulcahy (attorney)
    Mulcahy Law Firm, P.C.
    Firm filed the Amended CC&R Declaration in 2004
  • LizzieG (customer service rep)
    Brown Community Management
    Customer service contact listed on billing document

Victoria J Whitaker v. Villas at Sunland Condominium Association

Posted on by

Case Summary

Case ID 23F-H021-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-02-22
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Victoria J Whitaker Counsel —
Respondent Villas at Sunland Condominium Association Counsel Austin Baillio

Alleged Violations

ARIZ. REV. STAT. § 33-1242

Outcome Summary

The Administrative Law Judge denied the petition, finding Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1242 regarding due process requirements for violation enforcement, as the Petitioner did not follow the required certified mail procedure to trigger those rights.

Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1242. Petitioner did not follow the statutory requirement of sending a response via certified mail (ARIZ. REV. STAT. § 33-1242(B)).

Key Issues & Findings

Alleged failure to follow due process concerning violation enforcement

Petitioner alleged the Association failed to follow due process when enforcing community documents regarding damage to a semi-common element (carport) before her purchase, leading to a violation notice and subsequent enforcement.

Orders: Petition denied. Respondent shall not reimburse Petitioner's filing fee as required by ARIZ. REV. STAT. § 32-2199.02(A).

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 33-1242(B)
  • ARIZ. REV. STAT. § 33-1242(C)
  • ARIZ. REV. STAT. § 33-1242(D)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Condominium Association, Due Process, Violation Enforcement, Carport Damage, Statutory Compliance, Filing Fee Denial
Additional Citations:

  • ARIZ. REV. STAT. § 33-1242
  • ARIZ. REV. STAT. § 33-1242(B)
  • ARIZ. REV. STAT. § 33-1242(C)
  • ARIZ. REV. STAT. § 33-1242(D)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 33-1260(A)(3)(e)
  • ARIZ. REV. STAT. § 33-1243
  • Declaration Article 5.3
  • Declaration Article 5.1
  • Declaration Article 5.2

Video Overview

Audio Overview

Decision Documents

23F-H021-REL Decision – 1036088.pdf

Uploaded 2026-05-02T11:03:57 (224.9 KB)

23F-H021-REL Decision – 1036088.pdf

Uploaded 2026-01-23T17:53:06 (224.9 KB)

This summary details the hearing proceedings, key arguments, and final decision in the matter of Victoria Whitaker (Petitioner) versus Villas at Sunland Condominium Association (Respondent). The hearing took place on February 3, 2023, before Administrative Law Judge (ALJ) Jenna Clark.

Key Facts and Procedural History

The case centered on a dispute over damage to a semi-common element: a carport shared by Petitioner's unit (Unit 16) and an adjacent unit. The damage was observed prior to the Petitioner's purchase of the unit on June 13, 2022. Although the Petitioner received a $20,000 reduction in the purchase price due to the outstanding issue, she denied accepting responsibility for the repair.

On July 18, 2022, after the sale, the Association issued a Notice of Violation to the Petitioner, requiring her to repair the carport ceiling.

A key procedural point addressed at the start of the hearing was the deficient Notice of Hearing, which incorrectly cited the Planned Communities Act (ARS § 33-1803) instead of the correct statute for condominiums. All parties stipulated to amend the governing statute for the dispute to ARS § 33-1242(D), which regulates due process in condominium enforcement actions.

Main Issues and Arguments

Petitioner's Argument:

The Petitioner alleged that the Association failed to follow due process under ARS § 33-1242. She argued that the violation should not have been enforced against her, as the damage occurred before her purchase and the violation was not properly investigated by management. The Association's claim that the damage was caused by the prior owner's tenant relied solely on "hearsay" (a neighbor's phone call), and no further investigation or expert assessment was conducted. She also claimed that the subsequent hearing held by the Board on October 5, 2022, was unfair because the Board had already made its decision.

Respondent's Argument:

The Association contended that they fully complied with ARS § 33-1242, providing notice and affording the Petitioner a hearing before the Board prior to taking any enforcement action (such as imposing fines). The core legal argument focused on the Petitioner’s failure to adhere to statutory requirements: ARS § 33-1242(B) requires a unit owner to provide a written response to a violation notice by certified mail within 21 days to "trigger" the subsequent due process provisions. The Petitioner admitted sending her contestation via email, not certified mail. The Association argued that because the Petitioner did not follow the statutory procedure, they cannot be found in violation of the statute's subsequent timing requirements.

Final Decision and Outcome

The ALJ concluded that the Tribunal’s jurisdiction was narrowly limited to determining whether the Association violated ARS § 33-1242, not to decide who was responsible for the damage or whether the Board's determination was correct.

The ALJ found that Petitioner bore the burden of proving the statutory violation by a preponderance of the evidence. The record established that Petitioner did not follow the statutory requirements of ARS § 33-1242 (certified mail) necessary to "trigger" any protected due process rights. Despite this procedural failure, the Association still apprised her of her rights and afforded her a hearing.

Based on the evidence, the ALJ concluded that no violation of ARS § 33-1242 was established.

Outcome: Petitioner’s petition was denied. The Association was not required to reimburse the Petitioner’s filing fee.

Questions

Question

Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?

Short Answer

No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.

Detailed Answer

The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).

Alj Quote

The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • jurisdiction
  • scope of hearing
  • violation responsibility

Question

Is it required to send my violation dispute response by certified mail?

Short Answer

Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.

Detailed Answer

The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.

Alj Quote

The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.

Legal Basis

ARIZ. REV. STAT. § 33-1242(B)

Topic Tags

  • certified mail
  • procedural requirements
  • contesting violations

Question

What constitutes 'due process' for an HOA violation?

Short Answer

Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.

Detailed Answer

Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.

Alj Quote

Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • due process
  • notice
  • board hearing

Question

Who is responsible for repairing 'Limited Common Elements' like a designated carport?

Short Answer

Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.

Detailed Answer

In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.

Alj Quote

[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.

Legal Basis

Declaration Article 5.2

Topic Tags

  • maintenance
  • limited common elements
  • carport

Question

Am I financially liable for damage caused by my tenants?

Short Answer

Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.

Detailed Answer

The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.

Alj Quote

Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.

Legal Basis

Declaration Article 5.3

Topic Tags

  • tenant liability
  • rental property
  • damages

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • evidence
  • legal standard

Question

Can I get my filing fee reimbursed if my petition is denied?

Short Answer

No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.

Detailed Answer

The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • filing fees
  • costs
  • reimbursement

Case

Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the Administrative Law Judge decide if I am actually responsible for the damage cited in a violation?

Short Answer

No. The ALJ's jurisdiction is limited to determining if the HOA followed the correct statutory process (due process), not determining the underlying facts of responsibility or 'guilt' regarding the damage.

Detailed Answer

The Tribunal does not have the authority to decide the merits of the violation itself (e.g., who caused the damage). Its role is strictly to determine if the Association violated the specific statutes governing the enforcement process (such as notice and hearing requirements).

Alj Quote

The record is clear that Petitioner was under the erroneous belief that the Tribunal had jurisdiction to determine who, if anyone, was responsible for causing the damage to Unit 16’s carport and was therefore liable for the repairs required. In all actuality, the crux of the matter for hearing is whether Respondent violated ARIZ. REV. STAT. § 33-1242.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • jurisdiction
  • scope of hearing
  • violation responsibility

Question

Is it required to send my violation dispute response by certified mail?

Short Answer

Yes. Failing to send a response by certified mail may fail to 'trigger' the specific statutory due process protections afforded by state law.

Detailed Answer

The statute explicitly states that a unit owner 'may' provide a written response by certified mail within 21 days. The decision clarifies that failing to follow this specific requirement (e.g., sending an email instead) means the owner has not met the statutory requirements necessary to trigger protected due process rights under that specific statute.

Alj Quote

The record reflects that Petitioner did not follow the statutory requirements of ARIZ. REV. STAT. § 33-1242 necessary to 'trigger' any protected due process rights.

Legal Basis

ARIZ. REV. STAT. § 33-1242(B)

Topic Tags

  • certified mail
  • procedural requirements
  • contesting violations

Question

What constitutes 'due process' for an HOA violation?

Short Answer

Due process generally consists of being given notice of the violation and an opportunity to be heard by the Board before any penalties are levied.

Detailed Answer

Even if a homeowner misses a technical step (like certified mail), the ALJ may find the HOA acted correctly if the HOA still provided the homeowner with clear notice of their rights/options and allowed them a hearing before the Board prior to issuing fines.

Alj Quote

Respondent nonetheless apprised her of her rights and options, and afforded her an opportunity to be heard before the Board prior to levying penalties/fines over the violation at issue.

Legal Basis

ARIZ. REV. STAT. § 33-1242

Topic Tags

  • due process
  • notice
  • board hearing

Question

Who is responsible for repairing 'Limited Common Elements' like a designated carport?

Short Answer

Typically the Unit Owner. The specific maintenance obligations are defined in the community's Declaration.

Detailed Answer

In this case, the Declaration stated that while the Association maintains Common Elements, Limited Common Elements allocated to a specific unit are the responsibility of that Unit Owner to maintain, repair, and replace.

Alj Quote

[E]ach Owner shall be responsible for the maintenance, repair and replacement of the Limited Common Elements allocated to [their] unit.

Legal Basis

Declaration Article 5.2

Topic Tags

  • maintenance
  • limited common elements
  • carport

Question

Am I financially liable for damage caused by my tenants?

Short Answer

Yes. Owners are generally liable for damages to common elements resulting from the negligence or misconduct of their lessees.

Detailed Answer

The governing documents in this case explicitly stated that the owner is liable for damage to common elements resulting from the negligence or willful misconduct of the owner's lessees, occupants, or invitees.

Alj Quote

Each Owner shall be liable to the Association for any damage to the Common Elements which results from the negligence or willful misconduct of the Owner or of the Owner’s Lessees, Occupants or Invitees.

Legal Basis

Declaration Article 5.3

Topic Tags

  • tenant liability
  • rental property
  • damages

Question

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

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove by a 'preponderance of the evidence' (meaning it is more probable than not) that the Association violated the relevant statute.

Alj Quote

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

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • burden of proof
  • evidence
  • legal standard

Question

Can I get my filing fee reimbursed if my petition is denied?

Short Answer

No. If the petition is denied, the ALJ acts under statute to order that the filing fee is not reimbursed.

Detailed Answer

The decision specifically orders that pursuant to state statute, the Respondent (HOA) is not required to reimburse the filing fee when the Petitioner does not prevail.

Alj Quote

IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.

Legal Basis

ARIZ. REV. STAT. § 32-2199.02(A)

Topic Tags

  • filing fees
  • costs
  • reimbursement

Case

Docket No
23F-H021-REL
Case Title
Victoria J Whitaker vs. Villas at Sunland Condominium Association
Decision Date
2023-02-22
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Victoria Whitaker (petitioner)
    Appeared on her own behalf without counsel
  • Kimball Whitaker (observer)
    Observed hearing; potential witness for petitioner
  • Realtor (realtor)
    Petitioner's realtor (name not provided)

Respondent Side

  • Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
  • Joseph Milin (board member)
    Villas at Sunland Condominium Association
    Board President; Witness
  • Steven Cheff (property manager)
    Haywood Community Management (HMC)
    Community Manager and Compliance Inspector; Witness
  • Carly Collins (property management admin)
    Haywood Community Management (HMC)
    Admin responsible for correspondence
  • Harvey Colin (property management admin)
    Haywood Community Management (HMC)
    Signed resale disclosure statement
  • Neighbor (Unit 15) (witness)
    Unit 15 resident
    Provided alleged eyewitness testimony regarding the damage

Neutral Parties

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

Other Participants

  • Chad and Ida Carpenter (prior owners/sellers)
    Unit 16 (prior owners)
    The sellers of the property at issue
  • Kevin Finley (contractor)
    Signature
    Provided repair estimate

Tom Barrs V. Desert Ranch Homeowners Assocation (ROOT)

Posted on by
📋 Consolidated cases — This decision resolved 2 consolidated dockets: 22F-H2222050-REL, 22F-H2222054-REL.

Case Summary

Case ID 22F-H2222050-REL
Agency Arizona Department of Real Estate
Tribunal OAH and Maricopa County Superior Court judicial review
Decision Date 2024-08-02
Administrative Law Judge Jenna Clark; Superior Court Judge Joseph P. Mikitish
Outcome Superior Court reversed the ADRE decision in part and remanded; Barrs prevailed on disclosure of member names and physical property addresses, but not emails/phone numbers, and fees/costs were denied.
Filing Fees Refunded —
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Barrs Counsel —
Respondent Desert Ranch Homeowners Association Counsel —

Alleged Violations

A.R.S. § 33-1805; A.R.S. § 10-11601(C)
A.R.S. § 33-1804(A); A.R.S. § 33-1805
A.R.S. § 10-11604(C)

Outcome Summary

The original OAH/ADRE result denied the membership-roster claim, but Maricopa County Superior Court case LC2023-000179-001 changed the result. Judge Joseph P. Mikitish held that HOA member names and physical property addresses are not exempt personal records under A.R.S. § 33-1805 and must be disclosed as standard association/corporate records. The court reaffirmed the reversal on August 2, 2024, denied attorneys fees and court costs, and remanded the matter to ADRE.

Why this result: The HOA position failed in Superior Court because the court distinguished public-facing names and property addresses from more private email addresses and phone numbers, and found the ALJ had treated the entire roster as personal information too broadly.

Key Issues & Findings

Membership roster and association records

Tom Barrs requested the HOA membership list and other association records. The HOA and its management company refused to provide the owner directory, and the ALJ initially treated the membership list as protected personal information.

Orders: The Maricopa County Superior Court reversed the ADRE final decision in part and remanded. It held that names and physical property addresses in a membership roster are standard corporate records and are not exempt personal records under A.R.S. § 33-1805, while email addresses and phone numbers may be withheld.

Disposition: Petitioner prevailed on the core membership-roster issue in Superior Court; emails and phone numbers remained protected.

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601(C)
  • LC2023-000179-001

Meeting recordings and other document requests

Barrs also challenged meeting-recording practices and sought additional EDC, contract, financial, and board-communication records.

Orders: The administrative decision granted some record-request issues in part and denied others. The later Superior Court appeal focused primarily on the membership-list ruling.

Disposition: Mixed administrative result; not the primary basis for the Superior Court reversal.

Cited:

  • A.R.S. § 33-1804(A)
  • A.R.S. § 33-1805

Attorney fees and court costs after appeal

After the Superior Court reversal, Barrs requested $9,309.57 in attorneys fees and costs, including limited-scope legal work, transcript costs, filing fees, and other expenses.

Orders: On August 2, 2024, the Superior Court reaffirmed the reversal and remand but denied attorneys fees and court costs, finding that the statutory fee provision did not apply to this ADRE administrative-review path.

Disposition: Fees and costs denied; final appealable order entered and the matter remanded to ADRE.

Cited:

  • A.R.S. § 10-11604(C)
  • Rule 31.2, Arizona Supreme Court Rules
  • Boydston v. Strole Development Co.

Analytics Highlights

Topics: records requests, membership roster, A.R.S. § 33-1805, superior court reversal, remand
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 10-11601(C)
  • A.R.S. § 10-11604(C)
  • LC2023-000179-001

Video Overview

Audio Overview

Decision Documents

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Briefing Document: Barrs v. Desert Ranch Homeowners Association

Executive Summary

The litigation between Tom Barrs (Petitioner/Appellant) and the Desert Ranch Homeowners Association (Respondent/Appellee) involves a protracted dispute over Association records, meeting recording integrity, and the production of homeowner information. The matter, overseen by the Office of Administrative Hearings (OAH) and subsequently appealed to the Maricopa County Superior Court, centers on actions taken by a previous Board of Directors and their management company, AAM.

Following an Administrative Law Judge (ALJ) decision in February 2023, the Association underwent a significant leadership transition. A new Board was elected in April 2023, and the Association moved to a self-managed model after AAM declined to renew its contract. Despite extensive settlement negotiations between the new Board and Barrs, reaching a final resolution proved unsuccessful due to disagreements over the correction of the official record and the payment of attorney fees. The Association currently faces depleted cash reserves, having spent over $29,000 on this matter, and continues to manage ongoing record requests and legal challenges from the Petitioner.

Detailed Analysis of Key Themes

1. Integrity of Meeting Recordings and Documentation

A central point of contention is whether Association meeting recordings were intentionally edited or merely incomplete due to human error. Lori Loch-Lee, the community manager from AAM, testified that while recordings might have been stopped and restarted—specifically during an incident in September 2020 involving Mr. Barrs—she never edited any files.

  • Petitioner's Argument: Barrs contends that the recordings are "clearly cut" and that portions discussing him or potential police involvement were intentionally removed. He argues the missing segments (approximately 30 minutes of a one-hour meeting) violate A.R.S. 33-1804(A).
  • Respondent's Argument: The management company maintains that "forgetting to restart a recording is [not] the same thing as editing a recording." They attribute gaps to technical issues or the "human" element of management.
2. Information Access and Privacy Policies

The dispute highlights a conflict between a homeowner's right to access records and the Association's duty to protect private information.

  • Management Files vs. Board Records: Lori Loch-Lee testified that she maintains internal AAM files for "correspondence homeowners" to which the Board has no control or access. She asserted that these are "personal emails" used for day-to-day business and that no policy requires their production to the Board or homeowners.
  • Confidentiality Training: Management applied professional training to withhold homeowner phone numbers and emails, treating them as "private information" protected from production requests.
  • The Membership Roster: Barrs alleged AAM refused to provide the roster within the statutory 10-business-day deadline. While the new Board eventually provided access, Barrs continues to seek a formal acknowledgement that the refusal by the prior management was a violation of A.R.S. 33-1805.
3. Transition to Self-Management and Financial Impact

The Association has experienced a complete shift in its operational structure as a direct result of the ongoing litigation.

  • Management Termination: AAM chose not to renew the management contract due to the "time and hassle" and "continued legal escalations" associated with the Barrs case.
  • Financial Depletion: The Association is currently without cash reserves. To remain solvent, the Board had to borrow $8,000 from the "711 Road Reserves Fund" to cover the General Fund's obligations.
  • Volunteer Burden: The Board members (collectively 33 members in the HOA) have spent "hundreds of hours" managing the case without professional counsel, as they lack the resources to retain an attorney.
4. Settlement Impasse and Attorney Fee Disputes

Extensive negotiations occurred between June and December 2023, but ultimately failed over two primary issues: the correction of the ALJ's findings of fact and the reimbursement of legal costs.

  • Correction of Findings: Barrs insisted on a "line-by-line" correction of the ALJ's February 21, 2023, decision, claiming it was based on "false assertions" by previous counsel. The Board felt uncomfortable changing the ALJ's decision, particularly findings related to a prior Board they did not represent.
  • Attorney Fees: Barrs sought $9,309.57 in costs and fees. The Association argues that because they offered a $2,000 settlement on September 8, 2023, which Barrs rejected, he is barred from seeking fees under A.R.S. 12-341.01(a) as the final judgment (which awarded no damages) was less favorable to him than their offer.

Important Quotes with Context

Quote Context
"Do you believe that forgetting to restart a recording is the same thing as editing a recording? Absolutely not." Lori Loch-Lee (AAM) testifying about the gaps in the September 2020 meeting audio.
"Homer information of emails and phone numbers are considered private information and I've learned that from different seminars and conferences… my training said not to produce that information." Lori Loch-Lee explaining why homeowner contact details were withheld from Barrs' record requests.
"I am their community manager. I'm not an agent." Loch-Lee's response when questioned about her official capacity and duty to the Association regarding the retention of unedited recordings.
"The Board has been forced to do this, as this litigation has left us without cash reserves." From the Association’s response to the Superior Court, explaining why they are appearing pro se.
"I've said repeatedly that I want to be a part of that positive, forward motion… I'm wondering if it may be helpful… for you to join us during a portion of an Exec Session." Board President Nan Wickman in an email to Tom Barrs (July 6, 2023) attempting to find a settlement path.
"The Board would prefer that this legal action ends here, so that we can spend our volunteered time to get the HOA back to functioning and dealing with all its business properly." Final statement in the Association's legal response regarding the emotional and operational toll of the case.

Timeline of Key Events (2023-2024)

Date Event
January 9-10, 2023 OAH Hearing conducted by ALJ Jenna Clark.
February 21, 2023 ALJ Decision issued regarding the dockets.
April 29, 2023 Annual Member Meeting; new Board of Directors elected (Nan Wickman, Michael Olley, Cynthia Dryden, etc.).
May 23, 2023 Tom Barrs files Appeal for Judicial Review.
June 15, 2023 Court orders case stayed for 90 days pending settlement.
July 13, 2023 Board proposes settlement: $1,000 payment to Barrs, no fault admitted, release of claims.
August 22, 2023 Barrs counters with an agreement requiring a $2,000 payment and agreement to all his corrections of the ALJ decision.
September 8, 2023 Board offers $2,000 settlement; Barrs rejects the amended agreement.
September 15, 2023 Court lifts the stay; litigation resumes.
April 4, 2024 Court finds in favor of Appellant (Barrs) and allows for an affidavit to obtain fees.
May 24, 2024 Association files response questioning the validity and substantiation of Barrs' $9,309.57 fee request.

Actionable Insights

  • Documentation Standards: The Association should implement formal policies for recording meetings, including a requirement that any pauses or technical restarts be explicitly noted in the official meeting minutes to prevent allegations of "editing."
  • Management Transition Audit: For self-managed HOAs, a comprehensive audit of all records formerly held by third-party management (like AAM) is necessary to ensure the Board has full custody of "statutory agent" files vs. "personal/internal" management files.
  • Financial Contingency Planning: The depletion of cash reserves for legal fees suggests a need for the Association to evaluate its D&O (Directors and Officers) insurance coverage and legal defense funds for future disputes.
  • Record Request Protocols: Given the Petitioner’s ongoing "frivolous requests" (as characterized by the Board), the Association must maintain a strict, standardized response log that tracks response times and costs incurred per A.R.S. 33-1805 to provide a defense against claims of non-compliance.

Study Guide: Tom Barrs vs. Desert Ranch Homeowners Association

This study guide provides a comprehensive overview of the legal proceedings and administrative matters between Tom Barrs (Petitioner/Appellant) and the Desert Ranch Homeowners Association (Respondent/Appellee). It synthesizes information from hearing transcripts, board meeting minutes, and court filings to outline the core conflicts regarding association management, record-keeping, and litigation.

I. Key Concepts and Themes

1. Management and Agency

A central point of contention in the proceedings is the role of the management company, Associated Asset Management (AAM), and its relationship with the Board.

  • Capacity of the Community Manager: Lori Loch-Lee, the community manager from AAM, testified that she acted in a limited capacity as defined by a management agreement. While she acknowledged AAM is a "statutory agent," she distinguished her role as a community manager from that of a general agent of the board.
  • Transition to Self-Management: Following the non-renewal of AAM’s contract (attributed by the Board to the ongoing litigation), the Desert Ranch Homeowners Association (DRHOA) transitioned to a self-managed model in early 2023.
2. Record-Keeping and Transparency

The dispute involves allegations of missing or edited evidence, specifically regarding meeting recordings and homeowner correspondence.

  • Editing vs. Omission: A primary legal argument involves whether "forgetting to restart" a recording constitutes "editing." Loch-Lee maintained that pausing a meeting (e.g., due to an interruption) is not the same as editing the record.
  • Access to Records: Tom Barrs sought access to membership rosters and homeowner information. The association initially resisted, citing training that homeowner emails and phone numbers are "private information."
  • Personal vs. Association Files: Loch-Lee testified that her day-to-day "correspondence homeowners" file was an internal AAM file, not accessible or controllable by the Board.
3. Litigation and Settlement Dynamics

The case moved from the Office of Administrative Hearings (OAH) to the Superior Court of Maricopa County.

  • The ALJ Decision: An Administrative Law Judge (ALJ) issued a decision on February 21, 2023, which Barrs subsequently sought to appeal or amend.
  • Settlement Negotiations: Numerous attempts were made to reach a "Joint Stipulation" to correct alleged errors in the ALJ’s findings of fact. Key issues in settlement included the payment of filing fees, the release of liability for current/former board members, and the accuracy of the membership roster.
  • Recovery of Fees (ARS 12-341.01): The Association argued that Barrs was ineligible for attorney fees because he rejected a settlement offer ($2,000) that was more favorable than the eventual court determination.

II. Short-Answer Practice Questions

  1. Who represented Tom Barrs at the January 2023 hearing?
  • Answer: Jonathan A. Dessaules, Esq.
  1. What was the specific AAM policy regarding recording at their business office?
  • Answer: No tape or visual recording was permitted at the AAM business office during record inspections or meetings.
  1. According to Lori Loch-Lee, what two categories of information are considered "private" and excluded from general homeowner requests?
  • Answer: Homeowner email addresses and phone numbers.
  1. What was the "711 Road Reserves Fund" loan used for?
  • Answer: An $8,000 loan was taken from the 711 Road Reserves Fund to the General Fund to maintain solvency and meet the 2023 budget.
  1. Why did the Board claim they had to become self-managed?
  • Answer: Their management company (AAM) chose not to renew the contract due to the continued legal escalations by Tom Barrs.
  1. What happened during the September 15, 2020, meeting recording?
  • Answer: The recording was stopped and restarted twice (at approximately 17:20 and 31:09) following interruptions or rucksacks involving Mr. Barrs.
  1. What was the total amount Tom Barrs claimed for "Limited Scope Representation" from Burch & Cracchiolo, P.A.?
  • Answer: $5,480.00.
  1. Who were the four new board members elected on April 29, 2023?
  • Answer: Nan Wickman (President), Michael Olley (Vice President), Cynthia Dryden (Secretary/Treasurer), and David Hughes (At-large). Susan Klinefelter was also elected as an at-large member.

III. Essay Prompts for Deeper Exploration

  1. The Ethics of Administrative Record-Keeping: Discuss the implications of a community manager "forgetting" to record portions of a board meeting. Does the distinction between "omission" and "editing" hold legal weight in the context of HOA transparency requirements under Arizona law?
  2. The Impact of Litigation on Small Communities: Using the Desert Ranch HOA as a case study, analyze how prolonged legal disputes between a single homeowner and an association can affect the financial health (e.g., depletion of cash reserves) and the volunteer spirit of the board (e.g., mass resignations).
  3. Privacy vs. Disclosure: Evaluate the conflict between a homeowner's right to access association records (ARS 33-1805) and the management’s duty to protect homeowner privacy (emails and phone numbers). Where should the line be drawn for an "unredacted" membership roster?
  4. Settlement and Good Faith: Analyze the timeline of settlement offers between Barrs and the Board. Did the insistence on correcting the "Findings of Fact" in the ALJ decision, rather than focusing on monetary or policy outcomes, indicate a lack of "good faith" in negotiations as alleged by the Association?

IV. Glossary of Important Terms

Term Definition
AAM Associated Asset Management; the professional management company previously contracted by the Desert Ranch HOA.
Administrative Law Judge (ALJ) A judge who presides over hearings and makes findings of fact in disputes involving state agencies (in this case, the Arizona Department of Real Estate).
ARS 12-341.01 An Arizona statute regarding the recovery of attorney fees in contested actions arising out of a contract.
Joint Stipulation A formal agreement between opposing parties to recognize certain facts as true or to follow a specific course of action in a legal case.
Limited Scope Representation A legal arrangement where an attorney handles only specific parts of a case rather than providing full representation.
Minute Entry A brief written record of the court's actions, orders, or findings during a specific proceeding.
Pro Se Representing oneself in a legal proceeding without the assistance of an attorney.
Statutory Agent An entity (like AAM) designated to receive legal service of process and official communications on behalf of a corporation or association.
Stay Pending Settlement A temporary suspension of court deadlines and proceedings to allow parties to finalize a settlement agreement.

Behind the Minutes: Lessons in Transparency and the Cost of HOA Litigation

1. Introduction: When Governance Becomes a Legal Battlefield

Thirty-three homes, four years of litigation, and a $29,000 legal bill—how did the Desert Ranchers Association find itself in a war over a Zoom recording?

In community governance, the distance between a minor administrative oversight and a catastrophic financial burden is often shorter than most boards realize. The matter of Tom Barrs vs. Desert Ranchers Association serves as a stark case study in the high price of protracted conflict. For an association of only 33 members, the $29,000 spent on this single legal matter (excluding the Petitioner’s personal costs) represents a staggering per-household burden of nearly $880. This dispute, which centered on records requests, membership rosters, and the integrity of meeting recordings from 2020 through early 2024, offers critical lessons for any board seeking to practice "preventative governance."

2. The "Recording" Debate: Human Error vs. Intentional Editing

A cornerstone of this litigation was a technical dispute regarding the September 2020 board meeting recording. The Petitioner, Tom Barrs, alleged that the recording was intentionally edited to omit sensitive discussions. Community Manager Lori Loch-Lee testified that while technical gaps existed, they were the result of "stops and starts" caused by human error or technical interruptions.

The technical timestamps are revealing: the recording stopped at the 17-minute and 31-minute marks. Critically, the transcript indicates that at these specific junctions, the board's conversation shifted to whether they should call the police on Mr. Barrs. This context fueled the Petitioner's allegations of intentional editing; it wasn't just any segment that was missed, but a highly sensitive discussion regarding the Petitioner himself. Loch-Lee maintained that as a "human," she simply forgot to restart the recording after interruptions.

Spotlight: Is It Editing or Forgetting? The Distinction: Management distinguished between editing (altering existing footage) and forgetting (failing to capture a segment). The Legal Risk: In the eyes of a governance expert, "selective recording"—even if unintentional—creates a "transparency gap" that is nearly impossible to defend in court once personal animosity is involved.

3. The Transparency Gap: Internal Files and Agent Boundaries

The case highlighted a significant point of confusion in the HOA industry: the legal status of the management company. During testimony, Lori Loch-Lee initially admitted, "AAM is a statutory agent. Yes." However, when pressed by counsel, she later asserted, "I am their community manager. I’m not an agent."

This contradiction illustrates the tension between a management firm acting as an agent of record and an individual manager acting as a representative of that firm. Loch-Lee argued that her "day-to-day" emails were personal business files kept in an internal AAM file, to which the Board had "absolutely no" control or access. This created a wall between the homeowners and the communications used to conduct association business—a wall that often triggers litigation when members feel that information is being shielded behind "limited capacity" management agreements.

4. The High Price of Standing on Principle

The dispute did more than deplete the association's bank account; it broke the community's leadership structure.

The Financial and Human Toll

Category Impact Details
Legal Spending Over $29,000 spent by the HOA (nearly $880 per household), excluding Tom Barrs' personal costs.
Administrative Burden Hundreds of hours of volunteer time lost to hearings, document preparation, and executive sessions.
Human Cost Resignations of Board members Cynthia Dryden and Nan Wickman due to "mental anguish"; other owners refused to join the "depleted Board" because of the litigation.
Management Impact AAM terminated the contract due to the "time and hassle" represented by the dispute, forcing the HOA into a high-risk self-managed model.
5. The Settlement Slog: A Timeline of Negotiation

Despite the Board’s eventual desire for "closure," the litigation continued long after the original Administrative Law Judge (ALJ) decision. A key governance failure identified here is that providing the requested records does not always end the conflict if the "integrity of the record" remains at issue.

  • April 29, 2023: New Secretary Cynthia Dryden provides Tom Barrs access to the membership roster. Despite this, Barrs files an appeal on May 23.
  • June 2023: Barrs provides a settlement outline requesting line-by-line corrections to the ALJ’s "findings of fact."
  • July 2023: The HOA offers a $1,000 reimbursement for filing fees with a "no fault" clause.
  • September 2023: The HOA increases the offer to $2,000. Barrs rejects it, insisting on correcting the ALJ record.
  • December 6, 2023: The parties reach a tentative "no-cost" agreement regarding the roster, yet they are unable to agree on the specific settlement language.
  • April 2024: Following a court ruling in Barrs' favor, he submits a final claim for $9,309.57 in costs and fees.
6. Conclusion: Moving Forward and Key Takeaways

Today, the Desert Ranchers Association is self-managed—a state of transition born of necessity rather than choice. When a community becomes a high-liability client, professional management firms often walk away, leaving volunteers to navigate complex legal and financial waters alone. The failure to reach a "no-cost resolution" earlier in the process underscores the danger of allowing a dispute over "findings of fact" to outweigh the pragmatic need for community stability.

Governance Gold Nuggets

  1. Maintain Unedited Recordings: To avoid allegations of tampering, ensure recordings are continuous. If a meeting is paused, the chair must announce the pause and the resumption on the record, with corresponding notes in the minutes.
  2. Adopt a Records Retention and Production Policy: Minimize the "transparency gap" by defining the scope of association records versus management business files before a dispute arises.
  3. Ensure Roster Transparency: Per ARS 33-1805, membership rosters are a fundamental record. Access should be proactive and standardized to prevent "withholding" claims.
  4. Prioritize Early Resolution: The escalation from a $1,000 offer to a $29,000 bill is a cautionary tale. Boards must identify when a dispute has shifted from "governance" to "animosity" and seek mediation before reserves are depleted.

Ultimately, the goal of a board is the preservation of the community. In Desert Ranchers, the cost of the "battle" was the very peace and professional oversight the board was elected to protect.

Case Participants

Petitioner Side

  • Tom Barrs (Petitioner)
    Desert Ranch Homeowners Association
    Homeowner and member of the association
  • Jonathan A. Dessaules (Counsel for Petitioner)
    Dessaules Law Group
  • Daryl Manhart (Limited Scope Counsel)
    Burch & Cracchiolo, P.A.
    Retained for the appeal brief
  • Aaron Duell (Limited Scope Counsel)
    Burch & Cracchiolo, P.A.
    Retained for the appeal brief

Respondent Side

  • B. Austin Baillio (Counsel for Respondent)
    Maxwell & Morgan, P.C.
  • Brian Schoeffler (Witness)
    Desert Ranch Homeowners Association
    Board Member, Secretary/Treasurer
  • Gerard Mangieri (Witness)
    Desert Ranch Homeowners Association
    Board Member, President
  • Lori Loch-Lee (Witness)
    Associated Asset Management
    Community Manager
  • Monte E. Matz (Witness)
    Desert Ranch Homeowners Association
    Board Member, Vice President
  • Michelle Aerni (Witness)
    Subpoenaed witness
  • Cynthia Dryden (Board Member)
    Desert Ranch Homeowners Association
    Elected as Secretary/Treasurer in 2023
  • Nan Wickman (Board Member)
    Desert Ranch Homeowners Association
    Elected as President in 2023
  • David Hughes (Board Member)
    Desert Ranch Homeowners Association
    Elected in 2023
  • Michael Olley (Board Member)
    Desert Ranch Homeowners Association
    Elected in 2023
  • Amanda Shaw (Statutory Agent)
    Associated Asset Management

Neutral Parties

  • Jenna Clark (Administrative Law Judge)
    Office of Administrative Hearings
  • Joseph P. Mikitish (Judge)
    Superior Court of Arizona, Maricopa County
    Presiding judge for the subsequent appeal
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate

Shawna Townsend v. North Canyon Ranch Owners Association

Posted on by

Case Summary

Case ID 23F-H018-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-02-07
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge dismissed the petition, finding that Petitioner failed to establish by a preponderance of the evidence that the North Canyon Ranch Owners Association violated its governing documents regarding the storage of a truck camper.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Shawna Townsend Counsel —
Respondent North Canyon Ranch Owners Association Counsel Haidyn DiLorenzo

Alleged Violations

CC&Rs Section 4.3 Storage, Section 4.17 Motor Vehicles, Community Guidelines 2007

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner failed to establish by a preponderance of the evidence that the North Canyon Ranch Owners Association violated its governing documents regarding the storage of a truck camper.

Why this result: Petitioner failed to meet the burden of proof. The ALJ concluded that the Petitioner's 'truck camper' falls within the scope of prohibited items, specifically as 'other similar equipment' under the CC&Rs and rules, making her argument one of semantics.

Key Issues & Findings

Whether the HOA violated its governing documents by issuing a fine for parking a mounted truck camper, based on the Petitioner's claimed 'legal loophole'.

Petitioner claimed a 'legal loophole' existed because the governing documents prohibited 'unmounted pickup camper units' or 'detached campers,' but not her currently mounted/attached truck camper. The ALJ found the truck camper was unequivocally prohibited as 'other similar equipment' under the CC&Rs and Rules, dismissing the petition.

Orders: Petition dismissed. No action is required of Respondent in this matter.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs § 4.3
  • CC&Rs § 4.17
  • Community Guidelines 2007
  • A.R.S. § 32-2199.01
  • A.R.S. § 33-2102(18)(e)

Analytics Highlights

Topics: HOA, truck camper, recreational vehicle, storage violation, legal loophole, fines, administrative hearing, Arizona
Additional Citations:

  • CC&Rs § 4.3
  • CC&Rs § 4.17
  • Community Guidelines 2007
  • A.R.S. § 32-2199.01
  • A.R.S. § 33-2102(18)(e)

Video Overview

Audio Overview

Decision Documents

23F-H018-REL Decision – 1031834.pdf

Uploaded 2026-04-27T09:47:34 (167.3 KB)

23F-H018-REL Decision – 1031834.pdf

Uploaded 2026-01-23T17:52:42 (167.3 KB)

This summary details the administrative hearing held on January 19, 2023, in the matter of Shawna Townsend v. North Canyon Ranch Owners Association (Docket No. 23F-H018-REL). The Petitioner, Shauna Townsend, appeared self-represented, alleging the Respondent HOA violated community documents by fining her for storing a truck camper.

Key Facts and Main Issues

The dispute centered on the Petitioner storing her truck camper in her driveway, visible from neighboring properties. The Petitioner sought relief from fines imposed by the Respondent, arguing she had found a "legal loophole" in the association's Covenants, Conditions, and Restrictions (CC&Rs) and Community Guidelines.

The Respondent (HOA) maintained that the storage of the camper violated multiple governing documents, including:

  1. CC&R Section 4.3 (Storage): Prohibiting exterior storage of items like "unmounted pickup camper units" in the front yard.
  2. Architectural and Community Guidelines (2007): Prohibiting equipment such as "camper shell, detached camper, boat, boat trailer, hang glider, or other similar equipment or vehicle" from being parked or stored on lots if visible.
  3. Rules Regarding Recreational Type Vehicles (2000): Explicitly defining "Recreational Type Vehicles" to include "campers" and prohibiting their storage in driveways or front yards (allowing only brief loading/unloading, generally less than 24 consecutive hours).

Key Arguments and Legal Points

Petitioner's Argument (The "Loophole"): The Petitioner asserted that because her truck camper was mounted/attached to her truck, it did not fall under the specific prohibitions against "unmounted pickup camper units" (CC&Rs) or "detached campers" (Guidelines). She also argued that her truck camper was not technically an RV, trailer, or camper shell. She noted inconsistencies in the violation notices, which variously referred to the violation as an "RV," "trailer," or "camper shell".

Respondent's Argument: The Respondent contended that the documents, when read together, unambiguously prohibit the storage of the truck camper because it is captured by the broad language of "camper," "truck camper," or "other similar equipment". The Association provided evidence of multiple violation notices, appeals, and appeal denials (dated November 2021 through September 2022) demonstrating that the Petitioner was provided notice and an opportunity to be heard prior to fines being assessed, thereby validating the fines.

The Administrative Law Judge (ALJ) noted that the Petitioner's argument was primarily one of semantics. The ALJ further referenced Arizona state statute A.R.S. § 33-2102(18), which defines a "Recreational vehicle" to include a "portable truck camper". Crucially, the Petitioner acknowledged during testimony that her truck camper is, in fact, a recreational vehicle.

Outcome

The burden of proof rested upon the Petitioner to establish by a preponderance of the evidence that the Respondent violated the governing documents.

The Administrative Law Judge concluded that Petitioner failed to meet this burden. The ALJ held that the Petitioner's truck camper clearly falls within the categories of prohibited equipment, particularly under the umbrella language of "other similar equipment" specified in the community documents.

The petition was dismissed, and no action was required of the Respondent. The decision became binding upon the parties pending any request for a rehearing.

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23F-H018-REL

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This legal transcript and subsequent judicial decision detail a dispute between homeowner Shawna Townsend and the North Canyon Ranch Owners Association regarding a fine for storing a truck camper in public view. Townsend argued that her equipment fell into a legal loophole because the association’s rules specifically prohibited “unmounted” or “detached” campers, while hers remained attached to her vehicle. In contrast, the Homeowners Association maintained that the camper violated multiple regulations prohibiting the storage of recreational type vehicles and similar equipment in driveways. During the administrative hearing, testimony was provided regarding the enforcement consistency of the community’s governing documents and the specific definitions of recreational vehicles under Arizona law. Ultimately, the Administrative Law Judge ruled in favor of the association, determining that the truck camper was clearly prohibited as “similar equipment” regardless of its attachment status. The petition was dismissed, confirming that the association acted within its authority when issuing the violation notices and fines.

What are the core legal arguments regarding the truck camper loophole?
How did the Administrative Law Judge rule on the association’s enforcement?
How do North Canyon Ranch guidelines define recreational vehicles and storage?

Thursday, February 12

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23F-H018-REL

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This legal transcript and subsequent judicial decision detail a dispute between homeowner Shawna Townsend and the North Canyon Ranch Owners Association regarding a fine for storing a truck camper in public view. Townsend argued that her equipment fell into a legal loophole because the association’s rules specifically prohibited “unmounted” or “detached” campers, while hers remained attached to her vehicle. In contrast, the Homeowners Association maintained that the camper violated multiple regulations prohibiting the storage of recreational type vehicles and similar equipment in driveways. During the administrative hearing, testimony was provided regarding the enforcement consistency of the community’s governing documents and the specific definitions of recreational vehicles under Arizona law. Ultimately, the Administrative Law Judge ruled in favor of the association, determining that the truck camper was clearly prohibited as “similar equipment” regardless of its attachment status. The petition was dismissed, confirming that the association acted within its authority when issuing the violation notices and fines.

What are the core legal arguments regarding the truck camper loophole?
How did the Administrative Law Judge rule on the association’s enforcement?
How do North Canyon Ranch guidelines define recreational vehicles and storage?

Thursday, February 12

Save to note

Today • 2:12 PM

2 sources

Video Overview

Mind Map

Reports

Flashcards

Quiz

Infographic

Slide Deck

Data Table

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Shawna Townsend (petitioner)
    Appeared on her own behalf; also referred to as Shauna Townsen or Miss Townsen
  • Michael Townsen (co-owner)
    Co-owner and recipient of violation notices with Petitioner

Respondent Side

  • Haidyn DiLorenzo (HOA attorney)
    Represented Respondent North Canyon Ranch Owners Association
  • Justin DeLuca (HOA attorney)
    Represented Respondent North Canyon Ranch Owners Association
  • Josey Perkins (community manager/witness)
    North Canyon Ranch Owners Association
    Community Manager for the association, testified as a witness (also referred to as Joy Perkins)
  • Riner (board member)
    North Canyon Ranch Owners Association Board of Directors
    Made motion to deny petitioner's appeal
  • Robera Holler (board member)
    North Canyon Ranch Owners Association Board of Directors
    Seconded motion to deny petitioner's appeal
  • Petra Paul (Executive VP of Management Services)
    Management Services
    Vice President of management services, communicated with Petitioner about the appeal
  • Beth Mulcahy (HOA attorney)
    Mulcahy Law Firm, PC
    Listed as contact for transmission of the decision

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
    Administrative Law Judge (also referred to as Sandra Vanella)
  • James Knupp (Acting Commissioner, ADRE)
    Arizona Department of Real Estate
    Recipient of the decision

Daniel Mayer v. Scottsdale North Homeowners Association, Inc.

Posted on by

Case Summary

Case ID 23F-H020-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-02-17
Administrative Law Judge Adam D. Stone
Outcome The Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1812 by improperly combining two separate expenditure proposals (roadway preservation and gate replacement) into a single vote on a ballot, failing to provide an opportunity to vote on each action separately. Respondent was ordered to refund the $500.00 filing fee and pay a $500.00 civil penalty.
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Daniel Mayer Counsel —
Respondent Scottsdale North Homeowners Association, Inc. Counsel —

Alleged Violations

A.R.S. § 33-1812

Outcome Summary

The Petitioner was deemed the prevailing party after establishing that the Respondent HOA violated A.R.S. § 33-1812 by improperly combining two separate expenditure proposals (roadway preservation and gate replacement) into a single vote on a ballot, failing to provide an opportunity to vote on each action separately. Respondent was ordered to refund the $500.00 filing fee and pay a $500.00 civil penalty.

Key Issues & Findings

Combining two separate proposed actions into a single vote action on a ballot.

The Respondent HOA combined two separate proposed expenditures ($30,000 total for roadway asset preservation and common area gate replacement) into one vote on a ballot sent to homeowners, violating statutory requirements that each proposed action must be voted upon separately.

Orders: Respondent must abide by A.R.S. § 33-1812; Respondent must refund the Petitioner's $500.00 filing fee; Respondent must pay a $500.00 civil penalty to the Department of Real Estate.

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

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1812
  • A.R.S. § 10-3708
  • A.R.S. § 33-1812(A)(1)

Analytics Highlights

Topics: HOA Ballot, Combined Vote, Reserve Funds Access, Statutory Violation
Additional Citations:

  • A.R.S. § 33-1812
  • A.R.S. § 10-3708
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.07
  • A.R.S. § 41-1092.09
  • A.A.C. R2-19-119

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

23F-H020-REL Decision – 1031122.pdf

Uploaded 2026-04-24T11:59:44 (100.0 KB)

23F-H020-REL Decision – 1038504.pdf

Uploaded 2026-04-24T11:59:48 (54.8 KB)

23F-H020-REL Decision – 1031122.pdf

Uploaded 2026-01-23T17:52:58 (100.0 KB)

23F-H020-REL Decision – 1038504.pdf

Uploaded 2026-01-23T17:53:01 (54.8 KB)

This administrative hearing, docket number 23F-H020-REL, addressed the petition filed by Daniel Mayor against Scottsdale North Homeowners Association, Inc. (SNHA), concerning alleged violations of community documents and Arizona Revised Statute (A.R.S.) § 33-1812. Administrative Law Judge (ALJ) Adam D. Stone presided over the hearing on February 3, 2023.

Key Facts and Main Issues

The core issue centered on a ballot sent to homeowners on May 18, 2022, seeking approval to access $30,000 from the reserve fund for two distinct capital improvement projects: roadway asset preservation/resurfacing and common area gate replacement.

  1. Violation of Separate Voting Requirement: Petitioner Daniel Mayor argued that the ballot improperly combined these two separate "proposed actions" into a single yes/no vote, failing to provide members the opportunity to vote for or against each expenditure individually. Mayor requested that the vote be recalled and recast properly.
  2. Applicability of Statute: Respondent SNHA, represented by Board President Andrew Chambers, admitted the projects were combined but argued that A.R.S. § 33-1812 (which requires separate votes for separate actions) did not apply. SNHA contended the statute only governs votes taken at formal meetings, whereas this vote was conducted via mail, email, and fax prior to the meeting where results were announced. SNHA also noted that 91% (32 of 35) of responding homeowners approved the combined expenditure, and the projects were subsequently completed.

Legal Points and Decision

The ALJ determined that the cover letter and prior discussions clearly indicated that the roadway resurfacing and gate replacement were two separate projects for which SNHA was seeking approval.

The ALJ rejected the Association's defense, concluding that the ballot was improper because it failed to allow separate votes. The decision highlighted that A.R.S. § 33-1812, even when referring to votes taken outside of a meeting, directs attention to A.R.S. § 10-3708 (Arizona Nonprofit Corporation Act). This statute mandates that written ballots must set forth each proposed action and provide an opportunity to vote for or against each.

Outcome

The ALJ found that the Petitioner established, by a preponderance of the evidence, that SNHA acted in violation of A.R.S. § 33-1812(A)(1) and the community documents.

The ALJ noted that A.R.S. § 32-2199.02 did not grant the authority to order the projects rescinded or the vote nullified, but only permitted ordering parties to abide by the statute and levying civil penalties.

  • Prevailing Party: Daniel Mayor was deemed the prevailing party.
  • Filing Fee: SNHA was ordered to pay the Petitioner his $500.00 filing fee.
  • Civil Penalty: Due to concern that this type of improper ballot could be used in the future, the ALJ levied a $500.00 Civil Penalty. (A subsequent correction order specified that this civil penalty must be paid to the Department of Real Estate).

Questions

Question

Can my HOA combine multiple capital improvement projects into a single 'Yes' or 'No' vote?

Short Answer

No. The HOA must allow homeowners to vote for or against each proposed action separately.

Detailed Answer

Even if the projects are related or presented in the same letter, the ballot itself must provide an opportunity to vote on each specific expenditure or project individually. Combining them into one vote violates Arizona statutes.

Alj Quote

Thus, the tribunal finds the ballot improper because it did not contain the opportunity to vote on each separate proposal.

Legal Basis

A.R.S. § 33-1812(A)(1)-(2)

Topic Tags

  • voting
  • ballots
  • assessments

Question

If the HOA conducts a vote by mail or email rather than at a live meeting, do they still have to list voting items separately?

Short Answer

Yes. The requirement to list each proposed action separately applies to absentee ballots and written ballots used without a meeting.

Detailed Answer

The ALJ rejected the argument that voting requirements only apply to in-person meetings. Statutes governing both planned communities and nonprofit corporations require that written ballots set forth each proposed action.

Alj Quote

According to that statute, the ballots still must set for each action and provide an opportunity to vote for or against each action. … Therefore, this ballot runs afoul of A.R.S. § 33-1812.

Legal Basis

A.R.S. § 33-1812; A.R.S. § 10-3708

Topic Tags

  • absentee ballots
  • voting
  • mail-in voting

Question

Can the Administrative Law Judge force the HOA to undo a project (like a road repair) if the vote was illegal?

Short Answer

Generally, no. The ALJ lacks the statutory authority to order projects rescinded once completed.

Detailed Answer

While the ALJ can determine that a violation occurred and levy penalties, they cannot order the association to 'un-do' the physical work or rescind the project.

Alj Quote

The Administrative Law Judge does not have the authority under the A.R.S. § 32-2199.02 to order the projects rescinded…

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • remedies
  • powers of ALJ
  • construction

Question

What is the standard of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must prove that their contention is 'more probably true than not.'

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Question

Can the HOA claim that their specific bylaws or CC&Rs override state laws regarding ballot formats?

Short Answer

No. The relevant state statute explicitly overrides community documents regarding absentee ballot requirements.

Detailed Answer

The statute begins with 'Notwithstanding any provision in the community documents,' meaning the state law requirements for ballots take precedence over the HOA's internal rules.

Alj Quote

A.R.S. § 33-1812 provides… 'Notwithstanding any provision in the community documents… any action taken… shall comply with all of the following…'

Legal Basis

A.R.S. § 33-1812(A)

Topic Tags

  • governing documents
  • statutory interpretation
  • supremacy of law

Question

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

Short Answer

Yes. The ALJ can order the HOA to reimburse the homeowner for the filing fee.

Detailed Answer

In this decision, the HOA was ordered to pay the $500 filing fee directly to the Petitioner.

Alj Quote

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

Legal Basis

Order of the ALJ

Topic Tags

  • remedies
  • fees
  • penalties

Question

Does a majority vote of the homeowners cure a defective ballot?

Short Answer

No. Even if the vast majority of homeowners approved the spending, the ballot can still be ruled a violation.

Detailed Answer

The ALJ noted that although most homeowners approved the proposal, the violation still stood because allowing such ballots would leave 'virtually no remedy' for future procedural violations.

Alj Quote

In this case, although the vast majority of homeowners approved the proposals, the Administrative Law Judge is concerned that this type of ballot could be used in the future, leaving virtually no remedy.

Legal Basis

A.R.S. § 33-1812

Topic Tags

  • voting results
  • procedural violations
  • compliance

Case

Docket No
23F-H020-REL
Case Title
Daniel Mayer vs Scottsdale North Homeowners Association, Inc.
Decision Date
2023-02-17
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Can my HOA combine multiple capital improvement projects into a single 'Yes' or 'No' vote?

Short Answer

No. The HOA must allow homeowners to vote for or against each proposed action separately.

Detailed Answer

Even if the projects are related or presented in the same letter, the ballot itself must provide an opportunity to vote on each specific expenditure or project individually. Combining them into one vote violates Arizona statutes.

Alj Quote

Thus, the tribunal finds the ballot improper because it did not contain the opportunity to vote on each separate proposal.

Legal Basis

A.R.S. § 33-1812(A)(1)-(2)

Topic Tags

  • voting
  • ballots
  • assessments

Question

If the HOA conducts a vote by mail or email rather than at a live meeting, do they still have to list voting items separately?

Short Answer

Yes. The requirement to list each proposed action separately applies to absentee ballots and written ballots used without a meeting.

Detailed Answer

The ALJ rejected the argument that voting requirements only apply to in-person meetings. Statutes governing both planned communities and nonprofit corporations require that written ballots set forth each proposed action.

Alj Quote

According to that statute, the ballots still must set for each action and provide an opportunity to vote for or against each action. … Therefore, this ballot runs afoul of A.R.S. § 33-1812.

Legal Basis

A.R.S. § 33-1812; A.R.S. § 10-3708

Topic Tags

  • absentee ballots
  • voting
  • mail-in voting

Question

Can the Administrative Law Judge force the HOA to undo a project (like a road repair) if the vote was illegal?

Short Answer

Generally, no. The ALJ lacks the statutory authority to order projects rescinded once completed.

Detailed Answer

While the ALJ can determine that a violation occurred and levy penalties, they cannot order the association to 'un-do' the physical work or rescind the project.

Alj Quote

The Administrative Law Judge does not have the authority under the A.R.S. § 32-2199.02 to order the projects rescinded…

Legal Basis

A.R.S. § 32-2199.02

Topic Tags

  • remedies
  • powers of ALJ
  • construction

Question

What is the standard of proof for a homeowner suing their HOA in an administrative hearing?

Short Answer

Preponderance of the evidence.

Detailed Answer

The homeowner (Petitioner) must prove that their contention is 'more probably true than not.'

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violations by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • legal standards
  • burden of proof
  • evidence

Question

Can the HOA claim that their specific bylaws or CC&Rs override state laws regarding ballot formats?

Short Answer

No. The relevant state statute explicitly overrides community documents regarding absentee ballot requirements.

Detailed Answer

The statute begins with 'Notwithstanding any provision in the community documents,' meaning the state law requirements for ballots take precedence over the HOA's internal rules.

Alj Quote

A.R.S. § 33-1812 provides… 'Notwithstanding any provision in the community documents… any action taken… shall comply with all of the following…'

Legal Basis

A.R.S. § 33-1812(A)

Topic Tags

  • governing documents
  • statutory interpretation
  • supremacy of law

Question

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

Short Answer

Yes. The ALJ can order the HOA to reimburse the homeowner for the filing fee.

Detailed Answer

In this decision, the HOA was ordered to pay the $500 filing fee directly to the Petitioner.

Alj Quote

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

Legal Basis

Order of the ALJ

Topic Tags

  • remedies
  • fees
  • penalties

Question

Does a majority vote of the homeowners cure a defective ballot?

Short Answer

No. Even if the vast majority of homeowners approved the spending, the ballot can still be ruled a violation.

Detailed Answer

The ALJ noted that although most homeowners approved the proposal, the violation still stood because allowing such ballots would leave 'virtually no remedy' for future procedural violations.

Alj Quote

In this case, although the vast majority of homeowners approved the proposals, the Administrative Law Judge is concerned that this type of ballot could be used in the future, leaving virtually no remedy.

Legal Basis

A.R.S. § 33-1812

Topic Tags

  • voting results
  • procedural violations
  • compliance

Case

Docket No
23F-H020-REL
Case Title
Daniel Mayer vs Scottsdale North Homeowners Association, Inc.
Decision Date
2023-02-17
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Daniel Mayer (petitioner)
    Appeared on his own behalf
  • Mr. D'Angelo (witness)
    Petitioner's husband

Respondent Side

  • Sandy Chambers (board president)
    Scottsdale North Homeowners Association, Inc.
    Appeared on behalf of Respondent; also referred to as 'Andrew Chambers' and 'Miss Chambers' in the transcript

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
  • Miranda (OAH staff)
    OAH
    Front desk staff mentioned by ALJ
  • James Knupp (commissioner)
    ADRE
    Acting Commissioner listed on initial transmittal
  • Susan Nicolson (commissioner)
    ADRE
  • AHansen (ADRE staff)
    ADRE
    Transmittal recipient
  • vnunez (ADRE staff)
    ADRE
    Transmittal recipient
  • labril (ADRE staff)
    ADRE
    Transmittal recipient
  • djones (ADRE staff)
    ADRE
    Transmittal recipient

Other Participants

  • jzipprich (property manager)
    Desert Management
    Email contact for Respondent HOA

Pamela McKinney v. Valle Vista Property Owners Association

Posted on by

Case Summary

Case ID 23F-H019-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-01-31
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge dismissed the petition, finding that the Respondent HOA's Articles of Incorporation had been previously amended to be perpetual (1994, 1999) and that the CLRs automatically renew for an additional 25 years without requiring a homeowner vote, provided no modifications or changes are made.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Pamela McKinney Counsel —
Respondent Valle Vista Property Owners Association Counsel Alan Meda

Alleged Violations

Articles of Incorporation Article 8, Covenants, Limitations & Restrictions Article 19 Sec. A, Covenants, Limitations & Restrictions Article 19 Sec. B

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Respondent HOA's Articles of Incorporation had been previously amended to be perpetual (1994, 1999) and that the CLRs automatically renew for an additional 25 years without requiring a homeowner vote, provided no modifications or changes are made.

Why this result: Petitioner failed to meet the burden of proof that Respondent violated the Articles of Incorporation or the CLRs, as the evidence showed the corporation's existence was perpetual and the CLRs' automatic renewal was permissible without a vote.

Key Issues & Findings

Expiration of HOA Charter and unlawful extension of CLRs by Board resolution without member vote

Petitioner alleged the HOA's charter and CLRs expired after 50 years (2022) and that the Board unlawfully extended the CLRs for 25 years via a resolution (Resolution/Memorandum of September 27, 2022) without the required vote of the co-owners. The ALJ found that the Articles of Incorporation were perpetually extended by amendments in 1994 and 1999, and the CLRs automatically renewed without a vote because no modifications were made.

Orders: Petitioner’s Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Articles of Incorporation (1972)
  • Articles of Amendment (1994)
  • Articles of Amendment (1999)
  • CLRs Unit One (1972)
  • Resolution 092722 (Sept 27, 2022)

Analytics Highlights

Topics: HOA Charter Expiration, CLRs Renewal, Perpetual Existence, Amendment Vote, HOA Board Authority, Arizona Real Estate Statute
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.R.S. § 41-1092.09

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

23F-H019-REL Decision – 1030077.pdf

Uploaded 2026-04-24T11:59:33 (140.1 KB)

23F-H019-REL Decision – 1030077.pdf

Uploaded 2026-01-23T17:52:48 (140.1 KB)

This summary addresses the hearing proceedings, key arguments, and final decision of the legal case, drawing on the provided sources.

***

Concise Summary of Administrative Hearing: Pamela McKinney v. Valle Vista Property Owners Association

Key Facts and Proceedings

The administrative hearing was held on January 17, 2023 (Docket No. 23F-H 019- REL) before Administrative Law Judge (ALJ) Sondra J. Vanella. Petitioner Pamela McKinney appeared on her own behalf, alleging that the Valle Vista Property Owners Association (Respondent) violated community documents. The burden of proof rested upon the Petitioner to establish the alleged violations by a preponderance of the evidence.

The dispute centered on the Respondent's use of a Resolution/Memorandum of September 27, 2022 to extend the Declarations of Covenants, Limitations, and Restrictions (CLRs) for another 25 years without an approval vote from the Council of co-owners. The Petitioner, an owner in Unit One, contended that the Articles of Incorporation (the association charter) had expired after 50 years (in May 2022 for Unit One) and that the extension of the CLRs required a vote.

Main Issues and Legal Arguments

The core issue determined by the ALJ was whether the Respondent violated Article 8 of the Articles of Incorporation (AOI) and Article 19 of the CLRs by attempting to extend the CLRs via resolution without a member vote.

Petitioner's Key Arguments:

  1. AOI Expiration: Petitioner argued that the original AOI, dated 1972, specified a 25-year existence with the power of one renewal, meaning the charter expired after 50 years (in 2022). If the AOI expired, the association must form a new corporation.
  2. CLRs Require Vote for Extension: Petitioner asserted that while the CLRs provide for an automatic 25-year renewal, this renewal constitutes a change in duration, and thus requires the approval of 66 2/3% or more of the owners of record, as stated in the CLRs (Section 19(a) and (b)).
  3. Unlawful Amendments: McKinney testified she was unaware of any amendments extending the AOI and argued that even if they were recorded, they might be unlawful if done without the requisite member vote (which required 75% approval for amendments).

Respondent's Key Arguments:

  1. Perpetual Existence: Respondent successfully demonstrated that the Articles of Incorporation (AOI) had been officially amended twice—on November 18, 1994, and January 15, 1999—specifically to declare the duration of the corporation shall be perpetual.
  2. Automatic Renewal of CLRs: Respondent contended that the CLRs for all units automatically renew every 25 years without a vote. A vote is only required if the association attempts to make modifications or changes to the CLRs.
  3. Resolution Purpose: Respondent explained that the September 27, 2022 Resolution was simply recorded to reflect the automatic renewal of the CLRs and contained no amendments or modifications. Failure to renew would cause the loss of valuable common assets (valued at approximately $2.5 million).

Final Decision and Outcome

The ALJ issued the decision on January 31, 2023. The ALJ found that the Petitioner failed to meet her burden of proof by a preponderance of the evidence.

The legal conclusions were:

  1. The Respondent successfully established that the Articles of Incorporation had been amended in 1994 and 1999 to extend the duration perpetually.
  2. The automatic renewal of the CLRs does not constitute a modification/change that required a vote of the homeowners under the governing documents.

Therefore, the Respondent did not violate Article 8 of the AOI or Article 19 of the CLRs when it passed the resolution extending the CLRs.

The final order stated that the Petitioner's Petition was dismissed.

Questions

Question

If the CC&Rs (or CLRs) include an automatic renewal clause, does the HOA board require a homeowner vote to extend them?

Short Answer

No. If the documents allow for automatic renewal and no other changes are made, a vote is not required because renewal is not considered a modification.

Detailed Answer

The ALJ determined that if the governing documents provide for automatic renewal for specific periods (e.g., 25 years), the simple act of renewing does not constitute a 'change' or 'modification' that would trigger a voting requirement. A vote is generally only required if the text of the documents is actually being altered.

Alj Quote

Petitioner failed to establish by a preponderance of the evidence that any changes or modifications were made to the CLRs, and the Administrative Law Judge concludes that the automatic renewal of the CLRs does not constitute a modification/change that required a vote of the homeowners.

Legal Basis

Conclusion of Law 4

Topic Tags

  • CC&R Renewal
  • Voting Rights
  • Governing Documents

Question

Who bears the burden of proof when a homeowner files a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof to establish the violation.

Detailed Answer

In an administrative hearing, the person filing the complaint must prove their case. The HOA does not initially have to prove they are innocent; the homeowner must prove the HOA committed the violation.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

Conclusion of Law 2; A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • Legal Procedure
  • Burden of Proof

Question

What does 'preponderance of the evidence' mean in an HOA dispute?

Short Answer

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

Detailed Answer

The standard is not 'beyond a reasonable doubt' (like in criminal court). Instead, it is based on the greater weight of the evidence, which must be sufficient to incline a fair mind to one side 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

Conclusion of Law 3

Topic Tags

  • Legal Standards
  • Evidence

Question

Can an HOA amend its Articles of Incorporation to exist perpetually if they originally had an expiration date?

Short Answer

Yes, an HOA can amend its Articles to extend its duration to be perpetual.

Detailed Answer

The decision upheld the validity of previous amendments where the HOA changed its corporate duration from a fixed term (e.g., 25 years) to 'perpetual.'

Alj Quote

Respondent amended its Articles of Incorporation, Section VIII, on November 18, 1994, and again on January 15, 1999, which extended the duration of the Articles of Incorporation perpetually.

Legal Basis

Findings of Fact 10-12; Conclusion of Law 4

Topic Tags

  • Corporate Charter
  • Amendments
  • Articles of Incorporation

Question

Where can an Arizona homeowner file a dispute regarding violations of community documents?

Short Answer

A petition can be filed with the Arizona Department of Real Estate (ADRE).

Detailed Answer

Arizona law allows homeowners or associations to file a petition with the Department regarding violations of the documents or statutes regulating planned communities. These are then heard by the Office of Administrative Hearings.

Alj Quote

Arizona statute permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities.

Legal Basis

Conclusion of Law 1; A.R.S. § 32-2199

Topic Tags

  • Dispute Resolution
  • ADRE
  • Jurisdiction

Question

Does a lack of knowledge about old amendments invalidate them?

Short Answer

No. Even if a current homeowner was unaware of amendments filed decades ago, they are still binding if properly recorded.

Detailed Answer

In this case, the petitioner was unaware of amendments from 1994 and 1999 until the hearing, but the ALJ still relied on those documents to determine that the corporation had not expired.

Alj Quote

Petitioner was not aware of the 1994 and 1999 amendments to the Articles of Incorporation until hearing… The credible and probative evidence of record established that Respondent amended its Articles of Incorporation… which extended the duration of the Articles of Incorporation perpetually.

Legal Basis

Findings of Fact 13; Conclusion of Law 4

Topic Tags

  • Record Keeping
  • Constructive Notice
  • Amendments

Case

Docket No
23F-H019-REL
Case Title
Pamela McKinney v. Valle Vista Property Owners Association
Decision Date
2023-01-31
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

If the CC&Rs (or CLRs) include an automatic renewal clause, does the HOA board require a homeowner vote to extend them?

Short Answer

No. If the documents allow for automatic renewal and no other changes are made, a vote is not required because renewal is not considered a modification.

Detailed Answer

The ALJ determined that if the governing documents provide for automatic renewal for specific periods (e.g., 25 years), the simple act of renewing does not constitute a 'change' or 'modification' that would trigger a voting requirement. A vote is generally only required if the text of the documents is actually being altered.

Alj Quote

Petitioner failed to establish by a preponderance of the evidence that any changes or modifications were made to the CLRs, and the Administrative Law Judge concludes that the automatic renewal of the CLRs does not constitute a modification/change that required a vote of the homeowners.

Legal Basis

Conclusion of Law 4

Topic Tags

  • CC&R Renewal
  • Voting Rights
  • Governing Documents

Question

Who bears the burden of proof when a homeowner files a petition against their HOA?

Short Answer

The homeowner (Petitioner) bears the burden of proof to establish the violation.

Detailed Answer

In an administrative hearing, the person filing the complaint must prove their case. The HOA does not initially have to prove they are innocent; the homeowner must prove the HOA committed the violation.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

Conclusion of Law 2; A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • Legal Procedure
  • Burden of Proof

Question

What does 'preponderance of the evidence' mean in an HOA dispute?

Short Answer

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

Detailed Answer

The standard is not 'beyond a reasonable doubt' (like in criminal court). Instead, it is based on the greater weight of the evidence, which must be sufficient to incline a fair mind to one side 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

Conclusion of Law 3

Topic Tags

  • Legal Standards
  • Evidence

Question

Can an HOA amend its Articles of Incorporation to exist perpetually if they originally had an expiration date?

Short Answer

Yes, an HOA can amend its Articles to extend its duration to be perpetual.

Detailed Answer

The decision upheld the validity of previous amendments where the HOA changed its corporate duration from a fixed term (e.g., 25 years) to 'perpetual.'

Alj Quote

Respondent amended its Articles of Incorporation, Section VIII, on November 18, 1994, and again on January 15, 1999, which extended the duration of the Articles of Incorporation perpetually.

Legal Basis

Findings of Fact 10-12; Conclusion of Law 4

Topic Tags

  • Corporate Charter
  • Amendments
  • Articles of Incorporation

Question

Where can an Arizona homeowner file a dispute regarding violations of community documents?

Short Answer

A petition can be filed with the Arizona Department of Real Estate (ADRE).

Detailed Answer

Arizona law allows homeowners or associations to file a petition with the Department regarding violations of the documents or statutes regulating planned communities. These are then heard by the Office of Administrative Hearings.

Alj Quote

Arizona statute permits an owner or a planned community organization to file a petition with the Department for a hearing concerning violations of planned community documents or violations of statutes that regulate planned communities.

Legal Basis

Conclusion of Law 1; A.R.S. § 32-2199

Topic Tags

  • Dispute Resolution
  • ADRE
  • Jurisdiction

Question

Does a lack of knowledge about old amendments invalidate them?

Short Answer

No. Even if a current homeowner was unaware of amendments filed decades ago, they are still binding if properly recorded.

Detailed Answer

In this case, the petitioner was unaware of amendments from 1994 and 1999 until the hearing, but the ALJ still relied on those documents to determine that the corporation had not expired.

Alj Quote

Petitioner was not aware of the 1994 and 1999 amendments to the Articles of Incorporation until hearing… The credible and probative evidence of record established that Respondent amended its Articles of Incorporation… which extended the duration of the Articles of Incorporation perpetually.

Legal Basis

Findings of Fact 13; Conclusion of Law 4

Topic Tags

  • Record Keeping
  • Constructive Notice
  • Amendments

Case

Docket No
23F-H019-REL
Case Title
Pamela McKinney v. Valle Vista Property Owners Association
Decision Date
2023-01-31
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Pamela McKinney (petitioner)
    Appeared on her own behalf

Respondent Side

  • Alan A. Meda (HOA attorney)
    Burch & Cracchiolo
    Represented Respondent Valle Vista Property Owners Association
  • Sharon Grossi (board member)
    Valle Vista Property Owners Association
    President of the Board; testified as a witness for Respondent
  • Rebecca Bankov (property manager)
    Valle Vista Property Owners Association
    Also referred to as Rebecca fan
  • Amy Wood (board member)
    Valle Vista Property Owners Association
    Secretary on the board
  • Thomas Noble (board member)
    Valle Vista Property Owners Association
    Former President of the Board (mentioned in communication)
  • Stan Andrews (board member)
    Valle Vista Property Owners Association
    Mentioned by Petitioner as a board member
  • Ray Rose (board member)
    Valle Vista Property Owners Association
    Recently resigned from the board

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
    Administrative Law Judge
  • Jean Newman (CPA)
    Independent auditor who prepared financial report

Other Participants

  • Dennis Hope (Fire Chief)
    Northern Arizona Fire District
    External party cited in board communications regarding water shutoff threats

Donald F. Molley v. Verde Meadows Crest Homeowners Association

Posted on by

Case Summary

Case ID 23F-H007-REL
Agency ADRE
Tribunal OAH
Decision Date 2023-01-20
Administrative Law Judge Jenna Clark
Outcome Petitioner's entire petition was denied because the Department of Real Estate/OAH lacked statutory jurisdiction over the Association. The Association was found not to meet the statutory definitions of a condominium association or a planned community association because it does not own common areas or real property.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Donald F. Molley Counsel —
Respondent Verde Meadows Crest Homeowners Association Counsel Sean K. Moynihan, Esq.

Alleged Violations

Declaration Section 12.B
ARIZ. REV. STAT. § 33-1805

Outcome Summary

Petitioner's entire petition was denied because the Department of Real Estate/OAH lacked statutory jurisdiction over the Association. The Association was found not to meet the statutory definitions of a condominium association or a planned community association because it does not own common areas or real property.

Why this result: OAH determined it lacked jurisdiction pursuant to ARIZ. REV. STAT. §§ 32-2199 et seq., because the Respondent Association is neither a condominium association nor a planned community association (ARIZ. REV. STAT. §§ 33-1202(10) and 33-1802(4)).

Key Issues & Findings

Alleged use of Association funds for maintenance on private property.

Petitioner alleged that the Association used HOA funds for maintenance on private property in violation of Section 12.B of the CC&Rs.

Orders: Petition denied due to lack of OAH jurisdiction.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1202(10)
  • ARIZ. REV. STAT. § 33-1802(4)
  • Declaration Section 12.B

Alleged failure to provide requested financial documents and meeting minutes.

Petitioner requested monthly bank statements and financial reports for 2022, and financial books for 2021, which Respondent allegedly failed to provide in violation of ARS § 33-1805.

Orders: Petition denied due to lack of OAH jurisdiction.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 33-1202(10)
  • ARIZ. REV. STAT. § 33-1802(4)

Analytics Highlights

Topics: jurisdiction, planned_community_act, condominium_act, denial, document_request, maintenance
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 33-1202(10)
  • ARIZ. REV. STAT. § 33-1802(4)
  • Declaration Section 12.B

Video Overview

Audio Overview

Decision Documents

23F-H007-REL Decision – 1006960.pdf

Uploaded 2026-04-24T11:57:08 (46.0 KB)

23F-H007-REL Decision – 1008524.pdf

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23F-H007-REL Decision – 1008675.pdf

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23F-H007-REL Decision – 1010876.pdf

Uploaded 2026-04-24T11:57:34 (51.8 KB)

23F-H007-REL Decision – 1020898.pdf

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23F-H007-REL Decision – 1027131.pdf

Uploaded 2026-04-24T11:57:47 (146.3 KB)

23F-H007-REL Decision – 1006960.pdf

Uploaded 2026-01-23T17:50:47 (46.0 KB)

23F-H007-REL Decision – 1008524.pdf

Uploaded 2026-01-23T17:50:49 (61.8 KB)

23F-H007-REL Decision – 1008675.pdf

Uploaded 2026-01-23T17:50:52 (8.7 KB)

23F-H007-REL Decision – 1010876.pdf

Uploaded 2026-01-23T17:50:55 (51.8 KB)

23F-H007-REL Decision – 1020898.pdf

Uploaded 2026-01-23T17:50:58 (44.8 KB)

23F-H007-REL Decision – 1027131.pdf

Uploaded 2026-01-23T17:51:02 (146.3 KB)

This summary focuses on the hearing proceedings, key legal arguments, and the final administrative law judge decision regarding the matter of Donald F. Molley v. Verde Meadows Crest Homeowners Association (No. 23F-H007-REL), heard at the Office of Administrative Hearings (OAH).

Key Facts and Proceedings:

The case involved Petitioner Donald F. Molley, a townhouse owner and member of the Association, appearing on his own behalf, against the Association, represented by Kari Wickenheiser. The evidentiary hearing was held on January 5, 2023. The matter had previously been set for hearing on October 28, 2022, but was vacated and subsequently reopened and continued at the request of the Petitioner. A pre-hearing motion to dismiss filed by the Respondent was denied because the contentions raised factual issues that required determination on a hearing record.

Main Issues:

Petitioner filed a 2-issue petition alleging:

  1. Violation of the Association’s Covenants, Conditions and Restrictions (CC&Rs) Section 12.B, asserting the Association improperly used HOA funds to maintain private property (lawns, trees, etc.). Petitioner argued that the governing documents required individual homeowners to handle their own maintenance.
  2. Violation of ARIZ. REV. STAT. § 33-1805 for the alleged failure of the Association to provide requested financial documents and meeting minutes.

Key Arguments:

  • Petitioner’s Argument: Petitioner maintained that the Association must follow state statutes governing homeowners associations and that the use of HOA funds for private maintenance was illegal and contrary to the CC&Rs. He asserted he had not received requested financial documents for 2022 or minutes from board meetings.
  • Respondent’s Argument (Jurisdiction and Defense): Respondent argued that the Association is merely a nonprofit homeowners association recognized federally and by the state as a 501(c)(4) organization, and crucially, does not own common areas or real property. Therefore, the Association argued it was not subject to the Arizona Planned Communities Act or the Condominium Act (ARIZ. REV. STAT. §§ 33-1802 et seq. or 33-1202 et seq.), meaning the Department of Real Estate lacked jurisdiction over the dispute. Regarding documentation, the Respondent testified that the 2022 financial statement was incomplete, partly due to the Petitioner (a former Treasurer) failing to remit necessary financial documentation after he was voted out of office.

Outcome and Legal Points:

The Administrative Law Judge (ALJ) decision, issued January 20, 2023, focused primarily on statutory jurisdiction.

  • The ALJ concluded that the Association is not a condominium association because it is not organized under ARIZ. REV. STAT. § 33-1241 and undivided interests in common elements are not vested in unit owners.
  • The ALJ concluded that the Association is not a planned community association as defined by ARIZ. REV. STAT. § 33-1802(4) because it does not own any real property.
  • Because the Association was governed by neither the Condominium Act nor the Planned Communities Act, the ALJ found that the Department of Real Estate lacked the jurisdiction required under ARIZ. REV. STAT. §§ 32-2199 et seq. to hear or decide the contested case.
  • The Petitioner's right to petition the Department for a hearing exists only in a dispute with a condominium association or a planned community association.

Based on the lack of jurisdiction, the Petitioner’s petition was denied. The ALJ noted, as an aside, that the record was also "devoid of evidence" to support a finding that the Respondent violated the CC&Rs or ARIZ. REV. STAT. § 33-1805, even if jurisdiction had been established.

Questions

Question

If my HOA doesn't own any common areas or real property, can I still file a dispute with the Department of Real Estate?

Short Answer

No. If the association does not own real property, it may not meet the statutory definition of a 'planned community,' meaning the Department lacks jurisdiction to hear the dispute.

Detailed Answer

The ALJ determined that because the Association did not own any real property or common areas, it did not qualify as a 'planned community' under Arizona statutes. Consequently, the Department of Real Estate had no authority to enforce the Planned Communities Act against it.

Alj Quote

The record also reflects that the Association is also not a planned community association because it does not own any real property. As a result, neither the Condominium Act nor the Planned Communities Act governs the Association and neither Act can be enforced against it.

Legal Basis

A.R.S. § 33-1802(4); A.R.S. § 32-2199 et seq.

Topic Tags

  • jurisdiction
  • common areas
  • planned community definition

Question

What evidence do I need to provide if I claim the HOA is spending money on maintenance in violation of the CC&Rs?

Short Answer

You must provide specific details such as the exact amounts spent, who performed the work, the specific locations (lots), and the dates/duration of the work.

Detailed Answer

The ALJ noted that the homeowner failed to support his claim because he could not provide specific facts regarding the alleged improper expenditures. General testimony without specific data (amounts, dates, locations) is insufficient.

Alj Quote

Petitioner, however, could not identify the amount Respondent allegedly spent on said landscaping, by whom the maintenance was performed, on which lots the maintenance was performed, or when and for what duration the alleged maintenance took place.

Legal Basis

Burden of Proof

Topic Tags

  • evidence
  • maintenance
  • misuse of funds

Question

Is a verbal request enough to prove the HOA failed to provide financial documents?

Short Answer

Likely not. To succeed in a hearing, you must be able to prove the specific date of the request and the identity of the person to whom the request was made.

Detailed Answer

The ALJ found the homeowner's testimony insufficient because he claimed to have made verbal requests but could not recall when they happened or who he asked.

Alj Quote

Petitioner testified that he verbally requested 'financials' and 'meeting minutes' from Respondent, but could not provide the date(s) of the request(s) and/or name the person(s) to whom the request(s) were made.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • evidence
  • financials

Question

Are the CC&Rs considered a binding contract?

Short Answer

Yes. When a homeowner buys a property within the development, they agree to be bound by the terms of the Declaration, forming an enforceable contract.

Detailed Answer

The decision affirms that the Declaration acts as a contract between the Association and the property owner upon purchase.

Alj Quote

Thus, the Declaration forms an enforceable contract between the Association and each property owner.

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • contract
  • enforceability

Question

What is the legal definition of a 'condominium' in Arizona regarding HOA disputes?

Short Answer

Real estate is only a condominium if the unit owners are vested with undivided interests in the common elements.

Detailed Answer

The ALJ clarified that if owners do not have undivided interests in common elements, the development is not a condominium under the law.

Alj Quote

Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.

Legal Basis

A.R.S. § 33-1202(10)

Topic Tags

  • condominium definition
  • common elements

Question

Can the HOA be excused from providing financial records if a former board member failed to hand them over?

Short Answer

Potentially yes. The ALJ noted testimony that the HOA could not provide certain records because the Petitioner (a former Treasurer) had failed to return them after leaving the board.

Detailed Answer

While the case was decided on jurisdiction, the decision recorded the HOA's defense that the 2022 financial statement was incomplete because the former Treasurer (the Petitioner) did not remit the necessary documentation.

Alj Quote

Ms. Wickenheiser testified that Respondent was unable to comply with Petitioner’s request for the Association’s 2022 financial statement… in large part, because Petitioner had served as the Association’s Treasurer for that fiscal year and had failed to remit the Association’s financial documentation

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records
  • board member duties
  • treasurer

Case

Docket No
23F-H007-REL
Case Title
Donald F. Molley v. Verde Meadows Crest Homeowners Association
Decision Date
2023-01-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

If my HOA doesn't own any common areas or real property, can I still file a dispute with the Department of Real Estate?

Short Answer

No. If the association does not own real property, it may not meet the statutory definition of a 'planned community,' meaning the Department lacks jurisdiction to hear the dispute.

Detailed Answer

The ALJ determined that because the Association did not own any real property or common areas, it did not qualify as a 'planned community' under Arizona statutes. Consequently, the Department of Real Estate had no authority to enforce the Planned Communities Act against it.

Alj Quote

The record also reflects that the Association is also not a planned community association because it does not own any real property. As a result, neither the Condominium Act nor the Planned Communities Act governs the Association and neither Act can be enforced against it.

Legal Basis

A.R.S. § 33-1802(4); A.R.S. § 32-2199 et seq.

Topic Tags

  • jurisdiction
  • common areas
  • planned community definition

Question

What evidence do I need to provide if I claim the HOA is spending money on maintenance in violation of the CC&Rs?

Short Answer

You must provide specific details such as the exact amounts spent, who performed the work, the specific locations (lots), and the dates/duration of the work.

Detailed Answer

The ALJ noted that the homeowner failed to support his claim because he could not provide specific facts regarding the alleged improper expenditures. General testimony without specific data (amounts, dates, locations) is insufficient.

Alj Quote

Petitioner, however, could not identify the amount Respondent allegedly spent on said landscaping, by whom the maintenance was performed, on which lots the maintenance was performed, or when and for what duration the alleged maintenance took place.

Legal Basis

Burden of Proof

Topic Tags

  • evidence
  • maintenance
  • misuse of funds

Question

Is a verbal request enough to prove the HOA failed to provide financial documents?

Short Answer

Likely not. To succeed in a hearing, you must be able to prove the specific date of the request and the identity of the person to whom the request was made.

Detailed Answer

The ALJ found the homeowner's testimony insufficient because he claimed to have made verbal requests but could not recall when they happened or who he asked.

Alj Quote

Petitioner testified that he verbally requested 'financials' and 'meeting minutes' from Respondent, but could not provide the date(s) of the request(s) and/or name the person(s) to whom the request(s) were made.

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records request
  • evidence
  • financials

Question

Are the CC&Rs considered a binding contract?

Short Answer

Yes. When a homeowner buys a property within the development, they agree to be bound by the terms of the Declaration, forming an enforceable contract.

Detailed Answer

The decision affirms that the Declaration acts as a contract between the Association and the property owner upon purchase.

Alj Quote

Thus, the Declaration forms an enforceable contract between the Association and each property owner.

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • contract
  • enforceability

Question

What is the legal definition of a 'condominium' in Arizona regarding HOA disputes?

Short Answer

Real estate is only a condominium if the unit owners are vested with undivided interests in the common elements.

Detailed Answer

The ALJ clarified that if owners do not have undivided interests in common elements, the development is not a condominium under the law.

Alj Quote

Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.

Legal Basis

A.R.S. § 33-1202(10)

Topic Tags

  • condominium definition
  • common elements

Question

Can the HOA be excused from providing financial records if a former board member failed to hand them over?

Short Answer

Potentially yes. The ALJ noted testimony that the HOA could not provide certain records because the Petitioner (a former Treasurer) had failed to return them after leaving the board.

Detailed Answer

While the case was decided on jurisdiction, the decision recorded the HOA's defense that the 2022 financial statement was incomplete because the former Treasurer (the Petitioner) did not remit the necessary documentation.

Alj Quote

Ms. Wickenheiser testified that Respondent was unable to comply with Petitioner’s request for the Association’s 2022 financial statement… in large part, because Petitioner had served as the Association’s Treasurer for that fiscal year and had failed to remit the Association’s financial documentation

Legal Basis

A.R.S. § 33-1805

Topic Tags

  • records
  • board member duties
  • treasurer

Case

Docket No
23F-H007-REL
Case Title
Donald F. Molley v. Verde Meadows Crest Homeowners Association
Decision Date
2023-01-20
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Donald F. Molley (petitioner)
    Appeared on his own behalf; also referred to as Donald Molley or Mr. Molly; previously served as Association board member and treasurer

Respondent Side

  • Kari Wickenheiser (board president)
    Verde Meadows Crest Homeowners Association
    Testified on behalf of Respondent; also referred to as Miss Wizer/Wenheiser
  • Sean K. Moynihan (HOA attorney)
    Smith & Wamsley, PLLC
    Counsel for Respondent
  • Sue Antonio (board member)
    Verde Meadows Crest Homeowners Association
    Former President, Treasurer, and Secretary of the HOA, mentioned in testimony

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (OAH staff)
    Office of Administrative Hearings
    Transmitted documents
  • Miranda Alvarez (legal secretary)
    Office of Administrative Hearings
    Transmitted documents
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmittal