Petitioner was deemed the prevailing party based on the finding that Respondent violated A.R.S. § 33-1804(B) by failing to hold required annual meetings of the Association’s members since 2010. Respondent was ordered to refund the $500 filing fee and comply with A.R.S. § 33-1804. Petitioner failed to establish the remaining alleged violations concerning the Declarant's right to appoint the Board or violations of A.R.S. §§ 33-1810 and 33-1817, or most CC&R sections.
Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated A.R.S. §§ 33-1810 and 33-1817, or the cited sections of the CC&Rs or Bylaws related to the Declarant's power to appoint the board.
Key Issues & Findings
Declarant control, board appointment without vote or meeting, and failure to hold annual meetings
Petitioner alleged Respondent violated multiple statutes and governing documents by allowing the Declarant to solely appoint the Board of Directors and failing to hold annual meetings. The Administrative Law Judge found that the Respondent violated A.R.S. § 33-1804(B) by failing to notice or hold annual members meetings since 2010. All other alleged violations were not established.
Orders: Respondent ordered to pay Petitioner his filing fee of $500.00 and directed to comply with the requirements of A.R.S. § 33-1804 going forward.
Can an HOA stop holding annual meetings if they are unable to get enough members to attend (quorum)?
Short Answer
No. State law requires an annual meeting regardless of past attendance issues.
Detailed Answer
Even if an HOA has failed to reach a quorum for many years, they are still strictly required by Arizona law to notice and hold a meeting of the members at least once each year. Failing to do so is a violation of A.R.S. § 33-1804.
Alj Quote
A.R.S. § 33-1804(B) requires that a meeting of the members' association be held at least once each year.
Legal Basis
A.R.S. § 33-1804(B)
Topic Tags
meetings
quorum
compliance
Question
If I claim the HOA violated the Bylaws, do I have to submit the Bylaws as evidence?
Short Answer
Yes. You must submit the specific governing documents you claim were violated.
Detailed Answer
If a homeowner argues that the HOA violated a specific provision of the Bylaws (such as election procedures), they must enter those Bylaws into evidence. Without the actual document in the record, the judge cannot find a violation.
Alj Quote
Although Petitioner argued in his written closing argument that as of November 18, 2012, elections should have begun by the membership under Article 5 of Respondent’s Bylaws, Petitioner did not submit a copy of Respondent’s Bylaws into evidence, nor was section 5 of the Bylaws submitted with the petition.
Legal Basis
Evidentiary Burden
Topic Tags
evidence
procedure
bylaws
Question
Can the Administrative Law Judge order the HOA to appoint specific homeowners to the Board?
Short Answer
No. The judge's power is limited to ordering compliance with laws and documents.
Detailed Answer
The tribunal does not have the jurisdiction to appoint specific individuals to a 'transition Board' or replace directors. It can only order the HOA to follow the statutes and community documents going forward.
Alj Quote
While Petitioner requested that he and other owners be appointed to a transition Board, the Administrative Law Judge’s jurisdiction in this tribunal is limited to ordering a party to abide by applicable statutes and community documents.
Legal Basis
Jurisdiction
Topic Tags
remedies
board of directors
jurisdiction
Question
What is the standard of proof for a homeowner suing their HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner must prove that their claims are 'more probably true than not.' This is the standard evidentiary burden in administrative hearings.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
legal standards
burden of proof
Question
Does the HOA automatically get fined if the judge finds they violated state law?
Short Answer
No. Civil penalties are not automatic.
Detailed Answer
A judge may find that a violation occurred (such as failing to hold meetings) but still decide that a civil penalty is not appropriate in that specific matter.
Alj Quote
No Civil Penalty is found to be appropriate in this matter.
Legal Basis
Administrative Discretion
Topic Tags
penalties
fines
enforcement
Question
Can I get my $500 filing fee back if I win the hearing?
Short Answer
Yes. The judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the homeowner is deemed the prevailing party, the judge may order the Respondent (HOA) to pay the Petitioner the amount of the filing fee within a set timeframe.
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
Prevailing Party Costs
Topic Tags
fees
reimbursement
costs
Question
Is it illegal for a developer (Declarant) to appoint the Board without an election?
Short Answer
Not necessarily, unless specific statutes or bylaws prohibit it.
Detailed Answer
Simply alleging that a Declarant is appointing the board without a vote is not enough to prove a violation. The homeowner must prove that specific statutes or the community's CC&Rs/Bylaws expressly prohibit this arrangement at the current time.
Alj Quote
Regarding the remaining alleged violations, the statutes listed in the petition do no bar [the Declarant] from appointing the Board members or operating as the President of the Board.
Legal Basis
CC&Rs / Statutes
Topic Tags
declarant control
board appointments
elections
Case
Docket No
24F-H030-REL
Case Title
Michael J. Morris vs. StarPass Master Homeowner Association, Inc.
Decision Date
2024-04-23
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Questions
Question
Can an HOA stop holding annual meetings if they are unable to get enough members to attend (quorum)?
Short Answer
No. State law requires an annual meeting regardless of past attendance issues.
Detailed Answer
Even if an HOA has failed to reach a quorum for many years, they are still strictly required by Arizona law to notice and hold a meeting of the members at least once each year. Failing to do so is a violation of A.R.S. § 33-1804.
Alj Quote
A.R.S. § 33-1804(B) requires that a meeting of the members' association be held at least once each year.
Legal Basis
A.R.S. § 33-1804(B)
Topic Tags
meetings
quorum
compliance
Question
If I claim the HOA violated the Bylaws, do I have to submit the Bylaws as evidence?
Short Answer
Yes. You must submit the specific governing documents you claim were violated.
Detailed Answer
If a homeowner argues that the HOA violated a specific provision of the Bylaws (such as election procedures), they must enter those Bylaws into evidence. Without the actual document in the record, the judge cannot find a violation.
Alj Quote
Although Petitioner argued in his written closing argument that as of November 18, 2012, elections should have begun by the membership under Article 5 of Respondent’s Bylaws, Petitioner did not submit a copy of Respondent’s Bylaws into evidence, nor was section 5 of the Bylaws submitted with the petition.
Legal Basis
Evidentiary Burden
Topic Tags
evidence
procedure
bylaws
Question
Can the Administrative Law Judge order the HOA to appoint specific homeowners to the Board?
Short Answer
No. The judge's power is limited to ordering compliance with laws and documents.
Detailed Answer
The tribunal does not have the jurisdiction to appoint specific individuals to a 'transition Board' or replace directors. It can only order the HOA to follow the statutes and community documents going forward.
Alj Quote
While Petitioner requested that he and other owners be appointed to a transition Board, the Administrative Law Judge’s jurisdiction in this tribunal is limited to ordering a party to abide by applicable statutes and community documents.
Legal Basis
Jurisdiction
Topic Tags
remedies
board of directors
jurisdiction
Question
What is the standard of proof for a homeowner suing their HOA?
Short Answer
Preponderance of the evidence.
Detailed Answer
The homeowner must prove that their claims are 'more probably true than not.' This is the standard evidentiary burden in administrative hearings.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
legal standards
burden of proof
Question
Does the HOA automatically get fined if the judge finds they violated state law?
Short Answer
No. Civil penalties are not automatic.
Detailed Answer
A judge may find that a violation occurred (such as failing to hold meetings) but still decide that a civil penalty is not appropriate in that specific matter.
Alj Quote
No Civil Penalty is found to be appropriate in this matter.
Legal Basis
Administrative Discretion
Topic Tags
penalties
fines
enforcement
Question
Can I get my $500 filing fee back if I win the hearing?
Short Answer
Yes. The judge can order the HOA to reimburse the filing fee.
Detailed Answer
If the homeowner is deemed the prevailing party, the judge may order the Respondent (HOA) to pay the Petitioner the amount of the filing fee within a set timeframe.
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
Prevailing Party Costs
Topic Tags
fees
reimbursement
costs
Question
Is it illegal for a developer (Declarant) to appoint the Board without an election?
Short Answer
Not necessarily, unless specific statutes or bylaws prohibit it.
Detailed Answer
Simply alleging that a Declarant is appointing the board without a vote is not enough to prove a violation. The homeowner must prove that specific statutes or the community's CC&Rs/Bylaws expressly prohibit this arrangement at the current time.
Alj Quote
Regarding the remaining alleged violations, the statutes listed in the petition do no bar [the Declarant] from appointing the Board members or operating as the President of the Board.
Legal Basis
CC&Rs / Statutes
Topic Tags
declarant control
board appointments
elections
Case
Docket No
24F-H030-REL
Case Title
Michael J. Morris vs. StarPass Master Homeowner Association, Inc.
Decision Date
2024-04-23
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Michael J. Morris(petitioner) StarPass Master Homeowner Association member; Sub-HOA President
Bruce Prior(witness) StarPass Master Homeowner Association member; past subHOA president
Michael Schmidt(witness) Wildcat Pass HOA Board member Also referred to as Michael Smidt
Respondent Side
F. Christopher Ansley(declarant) StarPass Master Homeowner Association President/Property Manager; Devcon LLC Also referred to as Chris Ansley or mistakenly as Craig Ansley
David Makavoy(lawyer) Ansley's lawyer concerning amendment recording
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings Also referred to as Alderman Thompson
Brian Larson(CPA) Brian Larson CTA Provided quarterly financial statements for Master HOA
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Other Participants
Jimmy Liscos(board member) StarPass Master Homeowner Association Board of Directors; focus group member Appointed board member who was also part of the focus group/group of seven
Jamie Haw(board member) StarPass Master Homeowner Association Board of Directors; focus group member Appointed board member who resigned
The petition filed by David Y. Samuels against The Concorde Condominium Home Owners Association was dismissed. The Tribunal found that Samuels lacked standing to bring the action as an individual, and the cited statute, A.R.S. § 33-1803 (Planned Community Act), was improper for this condominium dispute.
Why this result: Petitioner lacked standing because the property was owned by Daso Properties, LLC, not by David Y. Samuels individually. Additionally, the Petitioner brought the action under the incorrect statute, A.R.S. § 33-1803, which governs planned communities, not condominiums.
Key Issues & Findings
Alleged violation concerning late fees, collection fees, and attorney fees for delinquent assessment payments
Petitioner alleged Respondent violated A.R.S. § 33-1803 by charging unwarranted late fees, collection fees, and attorney fees for delinquent assessments.
Orders: Petitioner's petition is dismissed because Petitioner lacked standing as an individual owner, and the cause of action was brought under the improper statute (Planned Community Act) for a condominium property.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1803
A.R.S. § 32-2199.01(A)
A.R.S. § 33-1801(A)
A.R.S. § 32-2199 et seq.
A.R.S. § 41-1092.09
Analytics Highlights
Topics: standing, condominium, planned community act, statutory violation, late fees, collection fees, attorney fees, jurisdiction, dismissal
Additional Citations:
A.R.S. § 33-1803
A.R.S. § 32-2199.01(A)
A.R.S. § 33-1801(A)
A.R.S. § 32-2199 et seq.
A.R.S. § 41-1092.09
A.A.C. R2-19-106(D)
Video Overview
Audio Overview
Decision Documents
24F-H025-REL Decision – 1124651.pdf
Uploaded 2026-01-23T18:03:59 (48.4 KB)
24F-H025-REL Decision – 1133120.pdf
Uploaded 2026-01-23T18:04:01 (39.9 KB)
24F-H025-REL Decision – 1134423.pdf
Uploaded 2026-01-23T18:04:05 (48.2 KB)
24F-H025-REL Decision – 1139633.pdf
Uploaded 2026-01-23T18:04:08 (55.7 KB)
24F-H025-REL Decision – 1139646.pdf
Uploaded 2026-01-23T18:04:12 (7.6 KB)
24F-H025-REL Decision – 1157271.pdf
Uploaded 2026-01-23T18:04:17 (47.1 KB)
24F-H025-REL Decision – 1168680.pdf
Uploaded 2026-01-23T18:04:22 (86.1 KB)
Questions
Question
If my property is owned by an LLC, can I file a petition against the HOA in my own name as the managing member?
Short Answer
No. The petition must be filed by the legal owner (the LLC), not an individual member, or it will be dismissed for lack of standing.
Detailed Answer
The ALJ determined that an individual managing member of an LLC does not have standing to bring an action on behalf of the property owned by the LLC. The dispute statute specifically applies to 'owners' and 'associations'.
Alj Quote
The Tribunal finds that, after taking testimony, Petitioner, as an individual, did not have standing to bring this action… The proper party to bring the action would have been Daso Properties, LLC.
Legal Basis
A.R.S. § 32-2199.01(A)
Topic Tags
standing
LLC ownership
procedural requirements
Question
Can I use laws meant for Planned Communities (A.R.S. § 33-1803) to dispute charges if I live in a Condominium?
Short Answer
No. Condominiums are governed by a different set of statutes (Chapter 9) than Planned Communities (Chapter 16).
Detailed Answer
The ALJ dismissed the claim because the homeowner cited the Planned Community Act (A.R.S. § 33-1803) while the property was legally a condominium. Condominiums are not subject to the Planned Community Act.
Alj Quote
However, the Property is a condominium; therefore, Respondent is not subject to the Planned Community Act. … Chapter 9 governs condominiums.
Legal Basis
A.R.S. § 33-1801(A)
Topic Tags
jurisdiction
condominium vs planned community
statutory application
Question
Does the Department of Real Estate have jurisdiction to hear a dispute if I am not the legal owner of the property?
Short Answer
No. The Department's jurisdiction is limited to disputes specifically between an owner and an association.
Detailed Answer
The decision clarifies that the administrative hearing process is strictly for disputes involving an 'owner' or 'association'. If the petitioner is not the legal owner (even if they manage the LLC that owns it), the Department lacks jurisdiction.
Alj Quote
The department does not have jurisdiction to hear a dispute that does not involve an owner or an association.
Legal Basis
A.R.S. § 32-2199.01(A)
Topic Tags
jurisdiction
standing
homeowner rights
Question
Who has the burden of proof when a homeowner claims an HOA violated state laws?
Short Answer
The homeowner (Petitioner) has the burden of proving the violation by a preponderance of the evidence.
Detailed Answer
In these administrative hearings, it is the responsibility of the person bringing the complaint to provide sufficient evidence to prove their claims.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803 as alleged in his petition.
Legal Basis
Preponderance of Evidence
Topic Tags
burden of proof
evidence
legal standards
Question
What happens if I base my entire petition on a statute that doesn't apply to my type of property?
Short Answer
The petition will be dismissed because you have stated no claim upon which relief can be granted.
Detailed Answer
Because the petitioner cited the wrong statute (Planned Community Act for a Condominium), the judge ruled that there was no valid legal claim to rule on, resulting in dismissal.
Alj Quote
As such, Petitioner has stated no claim upon which relief can be granted under A.R.S. § 33-1801.
Legal Basis
A.R.S. § 33-1801
Topic Tags
dismissal
legal procedure
condominium act
Case
Docket No
24F-H025-REL
Case Title
David Y. Samuels vs The Concorde Condominium Home Owners Association
Decision Date
2024-04-18
Alj Name
Amy M. Haley
Tribunal
OAH
Agency
ADRE
Questions
Question
If my property is owned by an LLC, can I file a petition against the HOA in my own name as the managing member?
Short Answer
No. The petition must be filed by the legal owner (the LLC), not an individual member, or it will be dismissed for lack of standing.
Detailed Answer
The ALJ determined that an individual managing member of an LLC does not have standing to bring an action on behalf of the property owned by the LLC. The dispute statute specifically applies to 'owners' and 'associations'.
Alj Quote
The Tribunal finds that, after taking testimony, Petitioner, as an individual, did not have standing to bring this action… The proper party to bring the action would have been Daso Properties, LLC.
Legal Basis
A.R.S. § 32-2199.01(A)
Topic Tags
standing
LLC ownership
procedural requirements
Question
Can I use laws meant for Planned Communities (A.R.S. § 33-1803) to dispute charges if I live in a Condominium?
Short Answer
No. Condominiums are governed by a different set of statutes (Chapter 9) than Planned Communities (Chapter 16).
Detailed Answer
The ALJ dismissed the claim because the homeowner cited the Planned Community Act (A.R.S. § 33-1803) while the property was legally a condominium. Condominiums are not subject to the Planned Community Act.
Alj Quote
However, the Property is a condominium; therefore, Respondent is not subject to the Planned Community Act. … Chapter 9 governs condominiums.
Legal Basis
A.R.S. § 33-1801(A)
Topic Tags
jurisdiction
condominium vs planned community
statutory application
Question
Does the Department of Real Estate have jurisdiction to hear a dispute if I am not the legal owner of the property?
Short Answer
No. The Department's jurisdiction is limited to disputes specifically between an owner and an association.
Detailed Answer
The decision clarifies that the administrative hearing process is strictly for disputes involving an 'owner' or 'association'. If the petitioner is not the legal owner (even if they manage the LLC that owns it), the Department lacks jurisdiction.
Alj Quote
The department does not have jurisdiction to hear a dispute that does not involve an owner or an association.
Legal Basis
A.R.S. § 32-2199.01(A)
Topic Tags
jurisdiction
standing
homeowner rights
Question
Who has the burden of proof when a homeowner claims an HOA violated state laws?
Short Answer
The homeowner (Petitioner) has the burden of proving the violation by a preponderance of the evidence.
Detailed Answer
In these administrative hearings, it is the responsibility of the person bringing the complaint to provide sufficient evidence to prove their claims.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803 as alleged in his petition.
Legal Basis
Preponderance of Evidence
Topic Tags
burden of proof
evidence
legal standards
Question
What happens if I base my entire petition on a statute that doesn't apply to my type of property?
Short Answer
The petition will be dismissed because you have stated no claim upon which relief can be granted.
Detailed Answer
Because the petitioner cited the wrong statute (Planned Community Act for a Condominium), the judge ruled that there was no valid legal claim to rule on, resulting in dismissal.
Alj Quote
As such, Petitioner has stated no claim upon which relief can be granted under A.R.S. § 33-1801.
Legal Basis
A.R.S. § 33-1801
Topic Tags
dismissal
legal procedure
condominium act
Case
Docket No
24F-H025-REL
Case Title
David Y. Samuels vs The Concorde Condominium Home Owners Association
Decision Date
2024-04-18
Alj Name
Amy M. Haley
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
David Y. Samuels(petitioner) Daso Properties, LLC Managing member of the property owner (Daso Properties, LLC); Appeared on his own behalf.
Respondent Side
Ashley N. Turner(HOA attorney) Goodman Law Group Council for respondent; Also appeared as Ashley N. Moscarello in earlier filings.
Alyssa Butler(community manager) The Management Trust (TMT) Witness for the association.
Stephanie Beck(HOA staff) Involved in prior HOA correspondence regarding fines.
Catherine Green(HOA staff) Involved in prior HOA correspondence regarding fines.
Neutral Parties
Amy M. Haley(ALJ) OAH Conducted the hearing and issued the final decision.
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Tammy L. Eigenheer(ALJ) OAH Issued an order on March 19, 2024.
A. Hansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission via email [email protected].
V. Nunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission via email [email protected].
D. Jones(ADRE staff) Arizona Department of Real Estate Recipient of transmission via email [email protected].
L. Abril(ADRE staff) Arizona Department of Real Estate Recipient of transmission via email [email protected].
M. Neat(ADRE staff) Arizona Department of Real Estate Recipient of transmission via email [email protected].
A. Kowaleski(ADRE staff) Arizona Department of Real Estate Recipient of transmission via email [email protected].
G. Osborn(ADRE staff) Arizona Department of Real Estate Recipient of transmission via email [email protected].
The ALJ granted the petition after finding that the Respondent HOA violated ARIZ. REV. STAT. § 33-1258 by failing to fulfill a records request within the statutory ten business days. The HOA was ordered to reimburse the Petitioner's $500 filing fee and comply with the statute, but was not assessed a civil penalty.
Key Issues & Findings
Whether Respondent violated ARIZ. REV. STAT. § 33-1258 because the “HOA has not complied witha [sic] formal records request … regarding damage to homeowner's unit.”
Respondent received Petitioner's records request on November 28, 2023, but did not comply until February 13, 2024, nearly two months later. The Tribunal found no viable justification for the delay, establishing a violation of the statute.
Orders: Petitioner's petition is granted. Respondent must reimburse the $500 filing fee in certified funds and must henceforth comply with ARIZ. REV. STAT. § 33-1258. No civil penalty was assessed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1258
Analytics Highlights
Topics: records request, statutory violation, HOA transparency, filing fee reimbursement
Additional Citations:
ARIZ. REV. STAT. § 33-1258
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
Video Overview
Audio Overview
Decision Documents
24F-H032-REL Decision – 1162594.pdf
Uploaded 2026-01-23T18:05:42 (51.3 KB)
24F-H032-REL Decision – 1167907.pdf
Uploaded 2026-01-23T18:05:48 (184.7 KB)
Questions
Question
How long does my HOA have to respond to a formal records request?
Short Answer
The HOA has 10 business days to fulfill a request for examination or to provide copies.
Detailed Answer
Under Arizona law, an association is strictly required to fulfill a request for examination or provide copies of requested records within ten business days. Failure to meet this deadline without a viable justification constitutes a violation of the statute.
Alj Quote
The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
records request
deadlines
HOA obligations
Question
Can my HOA charge me a fee to simply review or inspect records?
Short Answer
No, the HOA cannot charge a fee for making material available for review.
Detailed Answer
The statute explicitly prohibits the association from charging a member for the act of making materials available for review. However, they may charge a specific fee for making actual copies.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
fees
records request
homeowner rights
Question
How much can the HOA charge if I ask for copies of records?
Short Answer
The HOA may charge a fee for copies, but it cannot exceed fifteen cents per page.
Detailed Answer
While review is free, if a homeowner requests physical copies of the records, the association is permitted by statute to charge a fee, capped at 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
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
fees
records request
copies
Question
What happens if my HOA responds to my records request weeks or months late?
Short Answer
Responding late without a valid excuse is a violation of the statute.
Detailed Answer
If the HOA fails to provide the records within the statutory 10-business-day window without a viable justification, they are in violation of A.R.S. § 33-1258. In this case, a response provided nearly two months late was deemed a violation.
Alj Quote
The record also reflects that although Petitioner follow-up with Respondent on December 12, 2023, regarding her request, Respondent did not comply until February 13, 2024, nearly two (2) months late… Nothing in the record establishes a viable justification or excuse for Respondent’s inaction and/or lack of performance on Petitioner’s records request during the applicable time period.
Legal Basis
ARIZ. REV. STAT. § 33-1258
Topic Tags
violations
delays
enforcement
Question
Can the HOA be penalized for failing to provide a document that doesn't exist?
Short Answer
No, an HOA cannot be held liable for failing to provide a record that simply does not exist.
Detailed Answer
If a homeowner requests a specific document (like a warranty) and the association does not possess such a document because it never existed, the association is not in violation for failing to provide it.
Alj Quote
Additionally, because the Association never had a “termite warranty,” Respondent was unable to provide Petitioner with something that did not exist.
Legal Basis
ARIZ. REV. STAT. § 33-1258
Topic Tags
records request
defense
HOA obligations
Question
Does it matter if my wording in a records request is vague?
Short Answer
Yes, vague requests may lead to incomplete information, and the HOA might not be faulted for misinterpreting ambiguous terms.
Detailed Answer
Homeowners should be specific. In this case, requesting 'Policy Information' rather than the 'entire policy' was considered vague and ambiguous, which explained why the HOA only provided declarations and exclusion pages rather than the full policy.
Alj Quote
While Petitioner contends that she only received some of the documents she requested, the record further reflects that she never asked for the Association’s entire insurance policy, only “HOA Insurance Policy Information,” which was vague and ambiguous.
Legal Basis
Findings of Fact
Topic Tags
records request
best practices
homeowner responsibilities
Question
If I win my case against the HOA at a hearing, will I get my filing fee back?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse your filing fee.
Detailed Answer
If the petition is granted and a violation is found, the ALJ has the authority to order the Respondent (HOA) to reimburse the Petitioner's filing fee in certified funds.
Alj Quote
IT IS FURTHER ORDERED that Respondent shall reimburse Petitioners’ filing fee (e.g. $500.00) in certified funds.
Legal Basis
Order
Topic Tags
remedies
fees
reimbursement
Question
Will the HOA automatically have to pay a civil penalty if they are found in violation?
Short Answer
Not necessarily. The judge may decide not to assess a civil penalty even if a violation is found.
Detailed Answer
Finding a violation does not automatically result in a fine. The ALJ has discretion regarding civil penalties. In this instance, despite finding a violation regarding records, the judge ordered compliance and fee reimbursement but explicitly chose not to assess a civil penalty.
Alj Quote
IT IS FURTHER ORDERED that a civil penalty shall not be assessed against Respondent in this matter.
Legal Basis
Order
Topic Tags
penalties
civil penalty
enforcement
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The Petitioner (homeowner) bears the burden of proof.
Detailed Answer
The homeowner filing the complaint must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means they must show it is more probable than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1258.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Topic Tags
procedure
burden of proof
evidence
Question
Can I designate someone else to inspect the HOA records for me?
Short Answer
Yes, a member can designate a representative in writing.
Detailed Answer
The statute allows records to be examined by the member or any person designated by the member in writing as their representative.
Alj Quote
[A]ll financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
representation
records request
access
Case
Docket No
24F-H032-REL
Case Title
Laura R. Braglia v. Palo Verde Estates Homeowners Association, Inc.
Decision Date
2024-04-17
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Questions
Question
How long does my HOA have to respond to a formal records request?
Short Answer
The HOA has 10 business days to fulfill a request for examination or to provide copies.
Detailed Answer
Under Arizona law, an association is strictly required to fulfill a request for examination or provide copies of requested records within ten business days. Failure to meet this deadline without a viable justification constitutes a violation of the statute.
Alj Quote
The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
records request
deadlines
HOA obligations
Question
Can my HOA charge me a fee to simply review or inspect records?
Short Answer
No, the HOA cannot charge a fee for making material available for review.
Detailed Answer
The statute explicitly prohibits the association from charging a member for the act of making materials available for review. However, they may charge a specific fee for making actual copies.
Alj Quote
The association shall not charge a member or any person designated by the member in writing for making material available for review.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
fees
records request
homeowner rights
Question
How much can the HOA charge if I ask for copies of records?
Short Answer
The HOA may charge a fee for copies, but it cannot exceed fifteen cents per page.
Detailed Answer
While review is free, if a homeowner requests physical copies of the records, the association is permitted by statute to charge a fee, capped at 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
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
fees
records request
copies
Question
What happens if my HOA responds to my records request weeks or months late?
Short Answer
Responding late without a valid excuse is a violation of the statute.
Detailed Answer
If the HOA fails to provide the records within the statutory 10-business-day window without a viable justification, they are in violation of A.R.S. § 33-1258. In this case, a response provided nearly two months late was deemed a violation.
Alj Quote
The record also reflects that although Petitioner follow-up with Respondent on December 12, 2023, regarding her request, Respondent did not comply until February 13, 2024, nearly two (2) months late… Nothing in the record establishes a viable justification or excuse for Respondent’s inaction and/or lack of performance on Petitioner’s records request during the applicable time period.
Legal Basis
ARIZ. REV. STAT. § 33-1258
Topic Tags
violations
delays
enforcement
Question
Can the HOA be penalized for failing to provide a document that doesn't exist?
Short Answer
No, an HOA cannot be held liable for failing to provide a record that simply does not exist.
Detailed Answer
If a homeowner requests a specific document (like a warranty) and the association does not possess such a document because it never existed, the association is not in violation for failing to provide it.
Alj Quote
Additionally, because the Association never had a “termite warranty,” Respondent was unable to provide Petitioner with something that did not exist.
Legal Basis
ARIZ. REV. STAT. § 33-1258
Topic Tags
records request
defense
HOA obligations
Question
Does it matter if my wording in a records request is vague?
Short Answer
Yes, vague requests may lead to incomplete information, and the HOA might not be faulted for misinterpreting ambiguous terms.
Detailed Answer
Homeowners should be specific. In this case, requesting 'Policy Information' rather than the 'entire policy' was considered vague and ambiguous, which explained why the HOA only provided declarations and exclusion pages rather than the full policy.
Alj Quote
While Petitioner contends that she only received some of the documents she requested, the record further reflects that she never asked for the Association’s entire insurance policy, only “HOA Insurance Policy Information,” which was vague and ambiguous.
Legal Basis
Findings of Fact
Topic Tags
records request
best practices
homeowner responsibilities
Question
If I win my case against the HOA at a hearing, will I get my filing fee back?
Short Answer
Yes, the Administrative Law Judge can order the HOA to reimburse your filing fee.
Detailed Answer
If the petition is granted and a violation is found, the ALJ has the authority to order the Respondent (HOA) to reimburse the Petitioner's filing fee in certified funds.
Alj Quote
IT IS FURTHER ORDERED that Respondent shall reimburse Petitioners’ filing fee (e.g. $500.00) in certified funds.
Legal Basis
Order
Topic Tags
remedies
fees
reimbursement
Question
Will the HOA automatically have to pay a civil penalty if they are found in violation?
Short Answer
Not necessarily. The judge may decide not to assess a civil penalty even if a violation is found.
Detailed Answer
Finding a violation does not automatically result in a fine. The ALJ has discretion regarding civil penalties. In this instance, despite finding a violation regarding records, the judge ordered compliance and fee reimbursement but explicitly chose not to assess a civil penalty.
Alj Quote
IT IS FURTHER ORDERED that a civil penalty shall not be assessed against Respondent in this matter.
Legal Basis
Order
Topic Tags
penalties
civil penalty
enforcement
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The Petitioner (homeowner) bears the burden of proof.
Detailed Answer
The homeowner filing the complaint must prove by a 'preponderance of the evidence' that the HOA violated the statute. This means they must show it is more probable than not that the violation occurred.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1258.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119(B)(2)
Topic Tags
procedure
burden of proof
evidence
Question
Can I designate someone else to inspect the HOA records for me?
Short Answer
Yes, a member can designate a representative in writing.
Detailed Answer
The statute allows records to be examined by the member or any person designated by the member in writing as their representative.
Alj Quote
[A]ll financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative.
Legal Basis
ARIZ. REV. STAT. § 33-1258(A)
Topic Tags
representation
records request
access
Case
Docket No
24F-H032-REL
Case Title
Laura R. Braglia v. Palo Verde Estates Homeowners Association, Inc.
Decision Date
2024-04-17
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Laura R. Braglia(petitioner) Appeared on her own behalf; testified as witness.
Respondent Side
Jacqueline Zipprich(property manager) Desert Realty Association Management Appeared on behalf of Respondent; testified as witness; also served as Statutory Agent for Respondent.
Joe Wolf(HOA president) Palo Verde Estates Homeowners Association, Inc. HOA Board President.
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings Presiding Administrative Law Judge.
Susan Nicolson(commissioner) Arizona Department of Real Estate Recipient of the recommended order.
Vivian Nunes(ADRE staff) Arizona Department of Real Estate Recipient of the recommended order ([email protected]).
D. Jones(ADRE staff) Arizona Department of Real Estate Listed as recipient of the recommended order ([email protected]).
L. Abril(ADRE staff) Arizona Department of Real Estate Listed as recipient of the recommended order ([email protected]).
M. Neat(ADRE staff) Arizona Department of Real Estate Listed as recipient of the recommended order ([email protected]).
A. Kowaleski(ADRE staff) Arizona Department of Real Estate Listed as recipient of the recommended order ([email protected]).
G. Osborn(ADRE staff) Arizona Department of Real Estate Listed as recipient of the recommended order ([email protected]).
Petitioner sustained its burden of proof establishing that Respondents violated CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31 by operating a cat rescue business (VKNR) from their residence, which involved unauthorized commercial activity, excessive non-pet animals, and creating a nuisance. Violation of 7.29 was not established. The petition was granted.
Key Issues & Findings
Violation of CC&Rs by operating an unauthorized business out of their home and housing dozens of cats in excess of a reasonable number of household pets, creating a nuisance.
Respondents operated a nonprofit cat rescue (VKNR) from their single-family residence, housing 50+ cats in a 3-car garage, which constituted an unauthorized commercial use, exceeded a reasonable number of pets, and created traffic and waste nuisances.
Orders: Petitioner's petition is granted. Respondents must henceforth abide by CC&Rs sections 7.2, 7.3, 7.25, 7.26, 7.28, and 7.31.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
CC&Rs section 7.2
CC&Rs section 7.3
CC&Rs section 7.25
CC&Rs section 7.26
CC&Rs section 7.28
CC&Rs section 7.31
Analytics Highlights
Topics: Home Business, Pets/Animals, Nuisance, CC&Rs, Enforcement, HOA
Additional Citations:
ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
24F-H003-REL Decision – 1094853.pdf
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24F-H003-REL
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In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
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24F-H003-REL
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In a legal dispute before the Arizona Department of Real Estate, the VVE-Casa Grande Home Owners Association alleged that residents Duane and Mary Eitel violated community CC&Rs by operating an unauthorized cat rescue from their garage. The association contended that housing dozens of animals constituted an illegal business and a nuisance that impacted the neighborhood’s residential character. While the homeowners argued their nonprofit fostering was a charitable endeavor rather than a commercial enterprise, the Administrative Law Judge ruled that the large-scale operation exceeded the “reasonable number of pets” allowed. Evidence from Pinal County inspections and neighbor testimony confirmed that the garage held over 50 cats, leading to concerns over traffic, sanitation, and debris. Ultimately, the judge found the homeowners in violation of multiple governing documents and ordered them to cease operations.
What were the main legal arguments regarding the cat rescue?
How did the court define a home-based business versus a nonprofit?
What specific HOA rules were the homeowners found to have violated?
Thursday, February 12
Save to note
Today • 3:04 PM
Video Overview
Mind Map
Reports
Flashcards
Quiz
Infographic
Slide Deck
Data Table
Case Participants
Petitioner Side
Anthony Rossetti(petitioner attorney, property manager) Rossetti Management & Realty Services Represented Petitioner and owned the newly hired management company.
Douglas Karolak(witness, homeowner) VVE-Casa Grande HOA Member Testified on behalf of Petitioner.
Nicole Elliot(property manager) Norris Management Former HOA management committee/manager who issued warning letters.
CD Mai(homeowner/neighbor) VVE-Casa Grande HOA Member Mentioned by Karolak as a vocal opponent/adjacent neighbor to the Eitels.
Respondent Side
Duane Eitel(respondent, witness) VVE-Casa Grande HOA Member Referred to as Duane S Eitel in earlier documents; DE in the decision.
Mary Eitel(respondent) VVE-Casa Grande HOA Member, CEO/Director of Valley Kitten Nursery & Rescue Inc. Referred to as Mary L Eitel in earlier documents.
Kevin Harper(respondent attorney) Harper Law, PLC
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Susan Nicolson(commissioner) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
vnunez(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
labril(ADRE staff) Arizona Department of Real Estate
Christopher Sinco(code compliance officer) Pinal County Animal Control Involved in the 2017/2018 county inspection.
Other Participants
Scott Lenderman(property manager) HOA management administrator (prior to Rossetti) Mentioned as the first HOA management administrator.
Petitioner's petition alleging violations of ARIZ. REV. STAT. § 33-1803 regarding assessment increase and fine imposition was denied in its entirety. The Administrative Law Judge found Petitioner failed to meet the burden of proof, concluding the HOA did not violate the statute.
Why this result: Petitioner did not meet the burden of proving by a preponderance of the evidence that the Association violated ARIZ. REV. STAT. § 33-1803, as the assessment error was corrected and the notice requirements for the fine were met.
Key Issues & Findings
Assessment Increase
Petitioner alleged the yearly assessment increased from $525.00 to $1,010.00, violating ARS § 33-1803(A). The HOA claimed this was a clerical error that was promptly corrected to $525.00.
Orders: Petitioner failed to meet the burden of proof, as the evidence showed the assessment error was immediately corrected, resulting in no statutory violation.
Filing fee: $1,000.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1803(A)
ARIZ. REV. STAT. § 33-1803
Imposition of fine without proper notice
Petitioner challenged a $500 fine for commencing construction of a courtyard wall without prior approval. Petitioner claimed insufficient notice, while the HOA asserted notice was provided via email, satisfying statutory requirements.
Orders: Petitioner failed to meet the burden of proof. The email notice complied with statutory requirements. The Association was ordered not to reimburse the filing fee.
Filing fee: $1,000.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1803(B)
ARIZ. REV. STAT. § 33-1803(C)
ARIZ. REV. STAT. § 33-1803(D)
ARIZ. REV. STAT. § 33-1803(E)
ARIZ. REV. STAT. § 33-1803
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Questions
Question
Is an HOA required to send a Notice of Violation via certified mail?
Short Answer
No, Arizona statute does not require the initial Notice of Violation to be sent via certified mail.
Detailed Answer
The ALJ determined that while homeowners often expect certified mail, the relevant statute (A.R.S. § 33-1803) does not mandate it for the initial notice. As long as the homeowner actually receives the notice (even via email) and it contains the required statutory information, it is considered valid.
Alj Quote
As to the fine, nothing in the statute requires the Association to send the notice via certified mail.
Legal Basis
A.R.S. § 33-1803
Topic Tags
violations
notices
procedural requirements
Question
Does a clerical error on a ledger count as an illegal assessment increase?
Short Answer
No, if the error is corrected and the homeowner is not actually forced to pay the incorrect amount, it is not a violation.
Detailed Answer
In this case, the HOA's management company sent a ledger showing an incorrect assessment amount that appeared to double the fees. However, because the HOA acknowledged the mistake, corrected the ledger to the proper amount, and communicated the correction to the homeowner, the ALJ ruled that the HOA did not violate the statute regarding assessment increases.
Alj Quote
The testimony provided, demonstrated that there was an error in the ledger Petitioner received initially, but that was corrected as evidenced by the July 7, 2023 ledger… Petitioner has not met its burden to prove that the Association violated the statute.
Legal Basis
A.R.S. § 33-1803(A)
Topic Tags
assessments
billing errors
fees
Question
Whose responsibility is it to ensure the HOA has the correct mailing address?
Short Answer
It is the homeowner's responsibility to update their address with the HOA.
Detailed Answer
The ALJ ruled that a homeowner cannot claim they didn't receive notice if they failed to provide the HOA with their current address. Even if the homeowner informs a board member verbally or via email of a change in ownership entity, they must explicitly provide the correct mailing address to the Association.
Alj Quote
While Petitioner informed Mr. Needham that Jolly Acres was now the owner and to mail all community documents to them, he did not provide an address nor update a corrected address with the Association. Thus, this was not the Association’s fault that he did not receive notice of the fine.
Legal Basis
N/A
Topic Tags
homeowner obligations
notices
mailing address
Question
Can an HOA send a Notice of Violation via email?
Short Answer
Yes, if the homeowner receives it.
Detailed Answer
The decision validated a Notice of Violation sent via email because the homeowner acknowledged receiving it. Since the homeowner received actual notice and the content of the email met statutory requirements, the notice was deemed valid despite not being mailed initially.
Alj Quote
Therefore, although Petitioner never received the Notice of Violation via mail, he did receive the same on October 24, 2022. From the evidence provided, the Notice complied with all of the statutory requirements
Legal Basis
A.R.S. § 33-1803
Topic Tags
violations
email
notices
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner filing the petition must prove that the HOA violated the law by a 'preponderance of the evidence,' which means showing that their claims are more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.
Legal Basis
A.R.S. § 41-1092
Topic Tags
hearings
legal standards
burden of proof
Question
Can a homeowner respond to a violation notice to contest it?
Short Answer
Yes, a homeowner has 21 days to respond via certified mail.
Detailed Answer
Statute allows a member to provide a written response to a violation notice. This response must be sent by certified mail within 21 calendar days of the notice date.
Alj Quote
A member who receives a written notice that the condition of the property owned by the member is in violation of the community documents… may provide the association with a written response by sending the response by certified mail within twenty-one calendar days after the date of the notice.
Legal Basis
A.R.S. § 33-1803(C)
Topic Tags
violations
due process
homeowner rights
Question
If a homeowner makes a partial payment on a debt, how must the HOA apply the money?
Short Answer
Payments must be applied to the principal debt first, then to accrued interest.
Detailed Answer
Arizona law mandates that any monies paid by a member for an unpaid penalty or assessment must be applied first to the principal amount unpaid and then to the interest accrued.
Alj Quote
Any monies paid by a member for an unpaid penalty shall be applied first to the principal amount unpaid and then to the interest accrued.
Legal Basis
A.R.S. § 33-1803(B)
Topic Tags
payments
accounting
penalties
Question
Will the filing fee for the hearing be refunded if the homeowner loses?
Short Answer
No, the filing fee is not reimbursed if the petition is denied.
Detailed Answer
The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.02(A)
Topic Tags
hearings
fees
costs
Case
Docket No
24F-H021-REL
Case Title
George Holub v 3 Canyons Ranch Master Homeowners’ Association
Decision Date
2024-02-12
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Is an HOA required to send a Notice of Violation via certified mail?
Short Answer
No, Arizona statute does not require the initial Notice of Violation to be sent via certified mail.
Detailed Answer
The ALJ determined that while homeowners often expect certified mail, the relevant statute (A.R.S. § 33-1803) does not mandate it for the initial notice. As long as the homeowner actually receives the notice (even via email) and it contains the required statutory information, it is considered valid.
Alj Quote
As to the fine, nothing in the statute requires the Association to send the notice via certified mail.
Legal Basis
A.R.S. § 33-1803
Topic Tags
violations
notices
procedural requirements
Question
Does a clerical error on a ledger count as an illegal assessment increase?
Short Answer
No, if the error is corrected and the homeowner is not actually forced to pay the incorrect amount, it is not a violation.
Detailed Answer
In this case, the HOA's management company sent a ledger showing an incorrect assessment amount that appeared to double the fees. However, because the HOA acknowledged the mistake, corrected the ledger to the proper amount, and communicated the correction to the homeowner, the ALJ ruled that the HOA did not violate the statute regarding assessment increases.
Alj Quote
The testimony provided, demonstrated that there was an error in the ledger Petitioner received initially, but that was corrected as evidenced by the July 7, 2023 ledger… Petitioner has not met its burden to prove that the Association violated the statute.
Legal Basis
A.R.S. § 33-1803(A)
Topic Tags
assessments
billing errors
fees
Question
Whose responsibility is it to ensure the HOA has the correct mailing address?
Short Answer
It is the homeowner's responsibility to update their address with the HOA.
Detailed Answer
The ALJ ruled that a homeowner cannot claim they didn't receive notice if they failed to provide the HOA with their current address. Even if the homeowner informs a board member verbally or via email of a change in ownership entity, they must explicitly provide the correct mailing address to the Association.
Alj Quote
While Petitioner informed Mr. Needham that Jolly Acres was now the owner and to mail all community documents to them, he did not provide an address nor update a corrected address with the Association. Thus, this was not the Association’s fault that he did not receive notice of the fine.
Legal Basis
N/A
Topic Tags
homeowner obligations
notices
mailing address
Question
Can an HOA send a Notice of Violation via email?
Short Answer
Yes, if the homeowner receives it.
Detailed Answer
The decision validated a Notice of Violation sent via email because the homeowner acknowledged receiving it. Since the homeowner received actual notice and the content of the email met statutory requirements, the notice was deemed valid despite not being mailed initially.
Alj Quote
Therefore, although Petitioner never received the Notice of Violation via mail, he did receive the same on October 24, 2022. From the evidence provided, the Notice complied with all of the statutory requirements
Legal Basis
A.R.S. § 33-1803
Topic Tags
violations
email
notices
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner filing the petition must prove that the HOA violated the law by a 'preponderance of the evidence,' which means showing that their claims are more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1803.
Legal Basis
A.R.S. § 41-1092
Topic Tags
hearings
legal standards
burden of proof
Question
Can a homeowner respond to a violation notice to contest it?
Short Answer
Yes, a homeowner has 21 days to respond via certified mail.
Detailed Answer
Statute allows a member to provide a written response to a violation notice. This response must be sent by certified mail within 21 calendar days of the notice date.
Alj Quote
A member who receives a written notice that the condition of the property owned by the member is in violation of the community documents… may provide the association with a written response by sending the response by certified mail within twenty-one calendar days after the date of the notice.
Legal Basis
A.R.S. § 33-1803(C)
Topic Tags
violations
due process
homeowner rights
Question
If a homeowner makes a partial payment on a debt, how must the HOA apply the money?
Short Answer
Payments must be applied to the principal debt first, then to accrued interest.
Detailed Answer
Arizona law mandates that any monies paid by a member for an unpaid penalty or assessment must be applied first to the principal amount unpaid and then to the interest accrued.
Alj Quote
Any monies paid by a member for an unpaid penalty shall be applied first to the principal amount unpaid and then to the interest accrued.
Legal Basis
A.R.S. § 33-1803(B)
Topic Tags
payments
accounting
penalties
Question
Will the filing fee for the hearing be refunded if the homeowner loses?
Short Answer
No, the filing fee is not reimbursed if the petition is denied.
Detailed Answer
The ALJ ordered that because the petition was denied, the Respondent (HOA) was not required to reimburse the Petitioner's filing fee.
Alj Quote
IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall not reimburse Petitioner’s filing fee as required by ARIZ. REV. STAT. § 32-2199.01.
Legal Basis
A.R.S. § 32-2199.02(A)
Topic Tags
hearings
fees
costs
Case
Docket No
24F-H021-REL
Case Title
George Holub v 3 Canyons Ranch Master Homeowners’ Association
Decision Date
2024-02-12
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
George Holub(petitioner) Jolly Acres LLC (Owner Entity) Appeared on his own behalf
Emily Holub(Petitioner's Wife) Involved in communications with the HOA regarding assessment
Respondent Side
Marcus Martinez(HOA attorney) 3 Canyons Ranch Master Homeowners’ Association Represented Respondent
Mike Needham(Board President) 3 Canyons Ranch Master Homeowners’ Association President of the Board of Directors, testified as a witness
Nicholas Nogami(Attorney) Carpenter Hazlewood Listed in service transmission
Sarah Malovich(HOA Agent)
David Roberts(HOA Agent) Provided statement
Mrs. Turka(HOA contact) Gate person contact
Mr. Plat(MDC Chairman) 3 Canyons Ranch Master Homeowners’ Association Chairman of the Master Design Committee
The Administrative Law Judge denied the Petitioner’s petition, finding that the Petitioner failed to prove the Association violated ARIZ. REV. STAT. § 33-1808(L) because the newsletter did not constitute an assembly using common areas as required by the statute.
Why this result: Petitioner failed to meet the burden of proof, specifically because the tribunal found the newsletter did not constitute “peacefully assemble and use common areas” as required by ARIZ. REV. STAT. § 33-1808(L).
Key Issues & Findings
Alleged violation of ARS § 33-1808(L) regarding the right to peacefully assemble and use common areas due to the issuance of a cease and desist letter concerning a newsletter.
Petitioner alleged the HOA violated ARS § 33-1808(L) by sending a cease and desist letter regarding statements in her community newsletter. Petitioner argued the newsletter constituted a 'meeting' or 'assembly' protected by the statute, while Respondent argued the statute requires physical assembly and use of common areas. The tribunal ultimately found that the newsletter did not satisfy the statutory requirement for assembly in common areas.
Orders: Petitioner’s petition was denied. Respondent shall not reimburse Petitioner’s filing fee.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1808(L)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.05
McCoy versus Johnson 1 CAD 2167
Analytics Highlights
Topics: HOA, Homeowner Dispute, Free Speech, Assembly Rights, Cease and Desist Letter, ARS 33-1808(L), Newsletter
Additional Citations:
ARIZ. REV. STAT. § 33-1808(L)
ARIZ. REV. STAT. § 32-2199.02(A)
McCoy versus Johnson 1 CAD 2167
Video Overview
Audio Overview
Decision Documents
24F-H018-REL Decision – 1117204.pdf
Uploaded 2026-01-23T18:02:30 (47.3 KB)
24F-H018-REL Decision – 1117206.pdf
Uploaded 2026-01-23T18:02:33 (5.6 KB)
24F-H018-REL Decision – 1130156.pdf
Uploaded 2026-01-23T18:02:37 (50.9 KB)
24F-H018-REL Decision – 1142847.pdf
Uploaded 2026-01-23T18:02:40 (114.9 KB)
Questions
Question
Does publishing a community newsletter count as 'peaceful assembly' protected by Arizona HOA laws?
Short Answer
No. The Administrative Law Judge ruled that a written newsletter does not satisfy the statutory definition of assembling in common areas.
Detailed Answer
The ALJ determined that A.R.S. § 33-1808(L), which protects the right to assemble in common areas, does not extend to written publications like newsletters. The judge noted that if the legislature intended to protect such mediums, they would have explicitly included them in the statute.
Alj Quote
Further, the tribunal disagrees that the newsletter can be read as satisfying the 'peacefully assemble and use common areas' of the community. If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
newsletters
freedom of assembly
legislative intent
Question
Can my HOA send me a 'cease and desist' letter regarding the content of my newsletter without violating my rights?
Short Answer
Yes, if the letter is a warning regarding specific content (like defamation) rather than a total prohibition on publishing.
Detailed Answer
The ALJ found no violation where an HOA sent a letter warning a homeowner about potential defamation claims regarding specific comments. Because the homeowner was not actually stopped from publishing future newsletters, the HOA did not 'prohibit or unreasonably restrict' the member's rights.
Alj Quote
Respondent sent the cease and desist letter as a warning to Petitioner that a claim may be made for defamation should those specific comments continue. There was no evidence presented that a court case was filed or that Petitioner had been fined as a result of her newsletter.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
cease and desist
defamation
HOA correspondence
Question
Does A.R.S. § 33-1808(L) protect social media posts or online communications?
Short Answer
No. The ruling explicitly states that this statute was not intended to cover social media posts.
Detailed Answer
The decision interprets the 'peaceful assembly' statute strictly. The judge reasoned that the legislature had multiple opportunities to include digital communications or social media in the text of the law but chose not to do so.
Alj Quote
If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
social media
electronic communication
statutory interpretation
Question
What standard of proof must a homeowner meet to win a hearing against their HOA?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) bears the burden of proof. They must demonstrate that their claims are 'more probably true than not'—a standard known as the preponderance of the evidence.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1808(L). … 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 33-1808(L); A.A.C. R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
If I lose my hearing against the HOA, will I get my $500 filing fee back?
Short Answer
No. If the petition is denied, the HOA is not required to reimburse the filing fee.
Detailed Answer
The ALJ ordered that because the Petitioner's petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid to the Department of Real Estate.
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
A.R.S. § 32-2199.02(A)
Topic Tags
filing fees
costs
penalties
Case
Docket No
24F-H018-REL
Case Title
Lewis v. Florence Gardens Mobile Home Association
Decision Date
2024-02-09
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Questions
Question
Does publishing a community newsletter count as 'peaceful assembly' protected by Arizona HOA laws?
Short Answer
No. The Administrative Law Judge ruled that a written newsletter does not satisfy the statutory definition of assembling in common areas.
Detailed Answer
The ALJ determined that A.R.S. § 33-1808(L), which protects the right to assemble in common areas, does not extend to written publications like newsletters. The judge noted that if the legislature intended to protect such mediums, they would have explicitly included them in the statute.
Alj Quote
Further, the tribunal disagrees that the newsletter can be read as satisfying the 'peacefully assemble and use common areas' of the community. If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
newsletters
freedom of assembly
legislative intent
Question
Can my HOA send me a 'cease and desist' letter regarding the content of my newsletter without violating my rights?
Short Answer
Yes, if the letter is a warning regarding specific content (like defamation) rather than a total prohibition on publishing.
Detailed Answer
The ALJ found no violation where an HOA sent a letter warning a homeowner about potential defamation claims regarding specific comments. Because the homeowner was not actually stopped from publishing future newsletters, the HOA did not 'prohibit or unreasonably restrict' the member's rights.
Alj Quote
Respondent sent the cease and desist letter as a warning to Petitioner that a claim may be made for defamation should those specific comments continue. There was no evidence presented that a court case was filed or that Petitioner had been fined as a result of her newsletter.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
cease and desist
defamation
HOA correspondence
Question
Does A.R.S. § 33-1808(L) protect social media posts or online communications?
Short Answer
No. The ruling explicitly states that this statute was not intended to cover social media posts.
Detailed Answer
The decision interprets the 'peaceful assembly' statute strictly. The judge reasoned that the legislature had multiple opportunities to include digital communications or social media in the text of the law but chose not to do so.
Alj Quote
If the legislature had intended to include newsletters or social media posts, it had at least three opportunities, since the legislation was drafted every year from 2020 until it ultimately passed and was signed into law in 2022.
Legal Basis
A.R.S. § 33-1808(L)
Topic Tags
social media
electronic communication
statutory interpretation
Question
What standard of proof must a homeowner meet to win a hearing against their HOA?
Short Answer
The homeowner must prove their case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (Petitioner) bears the burden of proof. They must demonstrate that their claims are 'more probably true than not'—a standard known as the preponderance of the evidence.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1808(L). … 'A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.'
Legal Basis
A.R.S. § 33-1808(L); A.A.C. R2-19-119
Topic Tags
burden of proof
legal standards
evidence
Question
If I lose my hearing against the HOA, will I get my $500 filing fee back?
Short Answer
No. If the petition is denied, the HOA is not required to reimburse the filing fee.
Detailed Answer
The ALJ ordered that because the Petitioner's petition was denied, the Respondent (HOA) was not required to reimburse the filing fee paid to the Department of Real Estate.
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
A.R.S. § 32-2199.02(A)
Topic Tags
filing fees
costs
penalties
Case
Docket No
24F-H018-REL
Case Title
Lewis v. Florence Gardens Mobile Home Association
Decision Date
2024-02-09
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Margaret Lewis(petitioner) Appeared on her own behalf
Dennis Legere(witness) Testified regarding legislative intent; stated he is a lobbyist and volunteer
Respondent Side
Marcus Martinez(HOA attorney) Florence Gardens Mobile Home Association
Yasmin Rodriguez(community manager) Florence Gardens Mobile Home Association Testified as a witness for Respondent
Nicholas Nagami(HOA attorney) Florence Gardens Mobile Home Association Appeared on behalf of Respondent
The Residences at 2211 Camelback Condominium Association, INC
Counsel
Allison Preston
Alleged Violations
A.R.S. § 33-1258 CC&Rs Section 8.1.1
Outcome Summary
Petitioner's petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner's $1,000.00 filing fee and comply with the statute and CC&Rs going forward.
Key Issues & Findings
Records Request
Petitioner alleged Respondent failed to provide financial records and vendor contracts (Epic Valet, FirstService Residential, landscaping) within the statutory timeframe. The ALJ found Respondent failed to provide the documents within 10 business days of the July 10, 2023 request and subsequent July 24, 2023 request.
Orders: Respondent shall comply with A.R.S. § 33-1258 going forward.
Filing fee: $1,000.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1258
Insurance Coverage
Petitioner alleged Respondent failed to maintain required insurance coverage. The ALJ found Respondent's property insurance coverage ($59M) was below the appraised replacement cost ($73M) and the general liability limits did not strictly comply with CC&Rs requirements despite an umbrella policy.
Orders: Respondent shall comply with Section 8.1.1 of the CC&Rs going forward.
{
“case”: {
“docket_no”: “24F-H008-REL”,
“case_title”: “In the Matter of Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”,
“decision_date”: “2024-01-11”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Keith W. Cunningham”,
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“side”: “petitioner”,
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“notes”: null
},
{
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“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “Carpenter Hazlewood Delgado & Bolen LLP”,
“notes”: “Represented The Residences at 2211 Camelback Condominium Association, INC”
},
{
“name”: “Kyle von Johnson”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: null,
“notes”: “Represented The Residences at 2211 Camelback Condominium Association, INC”
},
{
“name”: “Mark Teman”,
“role”: “board member”,
“side”: “respondent”,
“affiliation”: null,
“notes”: “Association President, witness”
},
{
“name”: “Allison Renow”,
“role”: “property manager”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: “General Manager (GM) on site”
},
{
“name”: “Frank Durso”,
“role”: “regional manager”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: null
},
{
“name”: “Jamie George”,
“role”: “VP of Insurance”,
“side”: “respondent”,
“affiliation”: “First Service Financial”,
“notes”: “Assists with association insurance policies”
},
{
“name”: “Holly McNelte”,
“role”: “management staff”,
“side”: “respondent”,
“affiliation”: “First Service Residential”,
“notes”: “FSR team member who managed documents/files”
},
{
“name”: “Jonathan Henley”,
“role”: “insurance broker”,
“side”: “neutral”,
“affiliation”: “Gallagher”,
“notes”: null
},
{
“name”: “Brian Del Vecchio”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “OAH”,
“notes”: “Administrative Law Judge who conducted the hearing (12/8/23)”
},
{
“name”: “Tammy L. Eigenheer”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “OAH”,
“notes”: “Administrative Law Judge who wrote the decision”
},
{
“name”: “Susan Nicolson”,
“role”: “Commissioner”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: null
},
{
“name”: “AHansen”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “vnunez”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “djones”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “labril”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “mneat”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “akowaleski”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
},
{
“name”: “gosborn”,
“role”: “ADRE staff”,
“side”: “unknown”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Transmission recipient”
}
]
}
{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “24F-H008-REL”, “case_title”: “In the Matter of Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Keith W. Cunningham”, “party_type”: “homeowner”, “email”: “[email protected]”, “phone”: null, “attorney_name”: null, “attorney_firm”: null, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “The Residences at 2211 Camelback Condominium Association, INC”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Allison Preston”, “attorney_firm”: “Carpenter Hazlewood Delgado & Bolen LLP”, “attorney_email”: “[email protected]”, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute”, “citation”: “A.R.S. § 33-1258”, “caption”: “Records Request”, “violation(s)”: “Failure to provide requested financial records and contracts within 10 business days”, “summary”: “Petitioner alleged Respondent failed to provide financial records and vendor contracts (Epic Valet, FirstService Residential, landscaping) within the statutory timeframe. The ALJ found Respondent failed to provide the documents within 10 business days of the July 10, 2023 request and subsequent July 24, 2023 request.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 1000.0, “filing_fee_refunded”: true, “civil_penalty_amount”: 0.0, “orders_summary”: “Respondent shall comply with A.R.S. § 33-1258 going forward.”, “why_the_loss”: null, “cited”: [“A.R.S. § 33-1258”] }, { “issue_id”: “ISS-002”, “type”: “governing_documents”, “citation”: “CC&Rs Section 8.1.1”, “caption”: “Insurance Coverage”, “violation(s)”: “Failure to maintain property insurance equal to 100% of replacement cost and general liability insurance limits as required”, “summary”: “Petitioner alleged Respondent failed to maintain required insurance coverage. The ALJ found Respondent’s property insurance coverage (59M)wasbelowtheappraisedreplacementcost(73M) and the general liability limits did not strictly comply with CC&Rs requirements despite an umbrella policy.”, “outcome”: “petitioner_win”, “filing_fee_paid”: 0.0, “filing_fee_refunded”: false, “civil_penalty_amount”: 0.0, “orders_summary”: “Respondent shall comply with Section 8.1.1 of the CC&Rs going forward.”, “why_the_loss”: null, “cited”: [“CC&Rs Section 8.1.1”] } ], “money_summary”: { “issues_count”: 2, “total_filing_fees_paid”: 1000.0, “total_filing_fees_refunded”: 1000.0, “total_civil_penalties”: 0.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “yes”, “summarize_judgement”: “Petitioner’s petition is granted. Respondent violated A.R.S. § 33-1258 by failing to provide requested records within 10 business days. Respondent violated CC&Rs Section 8.1.1 by failing to maintain insurance coverage equal to 100% of the replacement cost and failing to meet specific liability limits. Respondent is ordered to reimburse Petitioner’s $1,000.00 filing fee and comply with the statute and CC&Rs going forward.”, “why_the_loss”: null }, “analytics”: { “cited”: [“A.R.S. § 33-1258”, “CC&Rs Section 8.1.1”], “tags”: [“Records Request”, “Insurance Coverage”, “Condominium”, “Contracts”, “Vendor Contracts”, “Replacement Cost”] } }
Study Guide – 24F-H008-REL
{ “case”: { “docket_no”: “24F-H008-REL”, “case_title”: “Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How many days does my HOA have to provide records after I request them?”, “short_answer”: “The HOA has 10 business days to fulfill a request for examination of records.”, “detailed_answer”: “According to Arizona law cited in the decision, an association must make financial and other records reasonably available for examination within ten business days of a member’s request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “A.R.S. § 33-1258” ] }, { “question”: “Can my HOA claim they don’t have to provide specific contracts if they are not uploaded to the web portal?”, “short_answer”: “No. If the records exist and aren’t privileged, the HOA must make them available for examination, regardless of whether they are on a portal.”, “detailed_answer”: “In this case, the HOA failed to provide signed vendor contracts that existed, claiming they provided what was on the portal. The ALJ found that failing to provide these specific requested documents constituted a violation.”, “alj_quote”: “Respondent did not assert or establish that any of the requested documents were subject to any of the exceptions provided for in statute. Accordingly, Petitioner was entitled to examine those documents.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “contracts”, “online portal” ] }, { “question”: “If my CC&Rs require specific insurance liability limits, does an umbrella policy count towards meeting them?”, “short_answer”: “Not necessarily. The ALJ ruled that a base policy lower than the CC&R requirement was non-compliant, even with a large umbrella policy.”, “detailed_answer”: “The CC&Rs required $3,000,000 per occurrence. The HOA had $1,000,000 coverage plus a $50,000,000 umbrella. The ALJ ruled the general liability insurance was not in compliance because the specific base limit was not met.”, “alj_quote”: “While Respondent had an umbrella policy in addition to the general liability insurance, Respondent’s general liability insurance was not in compliance with the applicable CC&Rs.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “compliance”, “CC&Rs” ] }, { “question”: “Must the HOA insure the building for its full replacement cost?”, “short_answer”: “Yes, if the CC&Rs state the insurance must equal 100% of the current replacement cost.”, “detailed_answer”: “The HOA obtained an appraisal showing a replacement cost of $73 million but maintained coverage of only $59 million. The ALJ found this violated the CC&Rs requirement for 100% replacement cost coverage.”, “alj_quote”: “Accordingly, Respondent’s property insurance was not in compliance with the applicable CC&Rs at the time the petition was filed.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “property value”, “CC&Rs” ] }, { “question”: “Will I get my filing fee back if I win the hearing?”, “short_answer”: “The ALJ has the authority to order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “After granting the petition and finding the HOA in violation, the judge specifically ordered the respondent to pay back the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $1,000.00 filing fee.”, “legal_basis”: “Order”, “topic_tags”: [ “remedies”, “filing fees”, “costs” ] }, { “question”: “What happens if I accidentally cite the wrong statute number in my complaint?”, “short_answer”: “It may not be dismissed if the context of your complaint makes it clear what you are disputing.”, “detailed_answer”: “The HOA tried to dismiss the case because the homeowner cited the Planned Community statute instead of the Condominium statute. The judge denied this because the checkboxes and narrative provided sufficient notice of the claim.”, “alj_quote”: “While it may be true Petitioner hand wrote A.R.S. §33-1805… the context surrounding Petitioner’s hand written statute provides adequate notice.”, “legal_basis”: “Due Process / Notice”, “topic_tags”: [ “procedure”, “complaint forms”, “legal error” ] }, { “question”: “What is the standard of proof I need to meet to win against my HOA?”, “short_answer”: “You must prove your case by a “preponderance of the evidence.””, “detailed_answer”: “The homeowner bears the burden of proof. This standard means showing that the fact sought to be proved is more probable than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258 and the Association’s governing documents.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “evidence” ] }, { “question”: “Will the HOA be fined a civil penalty if I prove they violated the law?”, “short_answer”: “Not automatically. The ALJ decides if a penalty is appropriate based on the facts.”, “detailed_answer”: “Even though the HOA was found to have violated record laws and insurance requirements, the judge decided not to assess a civil penalty in this specific instance.”, “alj_quote”: “Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.”, “legal_basis”: “Judicial Discretion”, “topic_tags”: [ “penalties”, “fines”, “enforcement” ] } ] }
Blog Post – 24F-H008-REL
{ “case”: { “docket_no”: “24F-H008-REL”, “case_title”: “Keith W. Cunningham v The Residences at 2211 Camelback Condominium Association, INC”, “decision_date”: “2024-01-11”, “alj_name”: “Tammy L. Eigenheer”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “How many days does my HOA have to provide records after I request them?”, “short_answer”: “The HOA has 10 business days to fulfill a request for examination of records.”, “detailed_answer”: “According to Arizona law cited in the decision, an association must make financial and other records reasonably available for examination within ten business days of a member’s request.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination.”, “legal_basis”: “A.R.S. § 33-1258(A)”, “topic_tags”: [ “records request”, “deadlines”, “A.R.S. § 33-1258” ] }, { “question”: “Can my HOA claim they don’t have to provide specific contracts if they are not uploaded to the web portal?”, “short_answer”: “No. If the records exist and aren’t privileged, the HOA must make them available for examination, regardless of whether they are on a portal.”, “detailed_answer”: “In this case, the HOA failed to provide signed vendor contracts that existed, claiming they provided what was on the portal. The ALJ found that failing to provide these specific requested documents constituted a violation.”, “alj_quote”: “Respondent did not assert or establish that any of the requested documents were subject to any of the exceptions provided for in statute. Accordingly, Petitioner was entitled to examine those documents.”, “legal_basis”: “A.R.S. § 33-1258”, “topic_tags”: [ “records request”, “contracts”, “online portal” ] }, { “question”: “If my CC&Rs require specific insurance liability limits, does an umbrella policy count towards meeting them?”, “short_answer”: “Not necessarily. The ALJ ruled that a base policy lower than the CC&R requirement was non-compliant, even with a large umbrella policy.”, “detailed_answer”: “The CC&Rs required $3,000,000 per occurrence. The HOA had $1,000,000 coverage plus a $50,000,000 umbrella. The ALJ ruled the general liability insurance was not in compliance because the specific base limit was not met.”, “alj_quote”: “While Respondent had an umbrella policy in addition to the general liability insurance, Respondent’s general liability insurance was not in compliance with the applicable CC&Rs.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “compliance”, “CC&Rs” ] }, { “question”: “Must the HOA insure the building for its full replacement cost?”, “short_answer”: “Yes, if the CC&Rs state the insurance must equal 100% of the current replacement cost.”, “detailed_answer”: “The HOA obtained an appraisal showing a replacement cost of $73 million but maintained coverage of only $59 million. The ALJ found this violated the CC&Rs requirement for 100% replacement cost coverage.”, “alj_quote”: “Accordingly, Respondent’s property insurance was not in compliance with the applicable CC&Rs at the time the petition was filed.”, “legal_basis”: “CC&Rs Section 8.1.1”, “topic_tags”: [ “insurance”, “property value”, “CC&Rs” ] }, { “question”: “Will I get my filing fee back if I win the hearing?”, “short_answer”: “The ALJ has the authority to order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “After granting the petition and finding the HOA in violation, the judge specifically ordered the respondent to pay back the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED that Respondent reimburse Petitioner his $1,000.00 filing fee.”, “legal_basis”: “Order”, “topic_tags”: [ “remedies”, “filing fees”, “costs” ] }, { “question”: “What happens if I accidentally cite the wrong statute number in my complaint?”, “short_answer”: “It may not be dismissed if the context of your complaint makes it clear what you are disputing.”, “detailed_answer”: “The HOA tried to dismiss the case because the homeowner cited the Planned Community statute instead of the Condominium statute. The judge denied this because the checkboxes and narrative provided sufficient notice of the claim.”, “alj_quote”: “While it may be true Petitioner hand wrote A.R.S. §33-1805… the context surrounding Petitioner’s hand written statute provides adequate notice.”, “legal_basis”: “Due Process / Notice”, “topic_tags”: [ “procedure”, “complaint forms”, “legal error” ] }, { “question”: “What is the standard of proof I need to meet to win against my HOA?”, “short_answer”: “You must prove your case by a “preponderance of the evidence.””, “detailed_answer”: “The homeowner bears the burden of proof. This standard means showing that the fact sought to be proved is more probable than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258 and the Association’s governing documents.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standard”, “evidence” ] }, { “question”: “Will the HOA be fined a civil penalty if I prove they violated the law?”, “short_answer”: “Not automatically. The ALJ decides if a penalty is appropriate based on the facts.”, “detailed_answer”: “Even though the HOA was found to have violated record laws and insurance requirements, the judge decided not to assess a civil penalty in this specific instance.”, “alj_quote”: “Based on the facts presented, the Administrative Law Judge finds no civil penalty is appropriate in this matter.”, “legal_basis”: “Judicial Discretion”, “topic_tags”: [ “penalties”, “fines”, “enforcement” ] } ] }
Case Participants
Petitioner Side
Keith W. Cunningham(petitioner)
Respondent Side
Allison Preston(HOA attorney) Carpenter Hazlewood Delgado & Bolen LLP Represented The Residences at 2211 Camelback Condominium Association, INC
Kyle von Johnson(HOA attorney) Represented The Residences at 2211 Camelback Condominium Association, INC
Mark Teman(board member) Association President, witness
Allison Renow(property manager) First Service Residential General Manager (GM) on site
Frank Durso(regional manager) First Service Residential
Jamie George(VP of Insurance) First Service Financial Assists with association insurance policies
Holly McNelte(management staff) First Service Residential FSR team member who managed documents/files
Neutral Parties
Jonathan Henley(insurance broker) Gallagher
Brian Del Vecchio(ALJ) OAH Administrative Law Judge who conducted the hearing (12/8/23)
Tammy L. Eigenheer(ALJ) OAH Administrative Law Judge who wrote the decision
Susan Nicolson(Commissioner) Arizona Department of Real Estate
Other Participants
AHansen(ADRE staff) Arizona Department of Real Estate Transmission recipient
vnunez(ADRE staff) Arizona Department of Real Estate Transmission recipient
djones(ADRE staff) Arizona Department of Real Estate Transmission recipient
labril(ADRE staff) Arizona Department of Real Estate Transmission recipient
mneat(ADRE staff) Arizona Department of Real Estate Transmission recipient
akowaleski(ADRE staff) Arizona Department of Real Estate Transmission recipient
gosborn(ADRE staff) Arizona Department of Real Estate Transmission recipient
Petitioner met the burden of proof for both alleged violations: violation of the Declaration (not enforcing the 25ft setback) and violation of A.R.S. § 33-1805 (failing to provide documents). The petition was granted, and Respondent was ordered to reimburse the $1,000.00 filing fee.
Key Issues & Findings
Failure to provide documents
Respondent failed to produce documents requested by Petitioner, specifically meeting minutes discussing the investigative report, within the statutory timeframe, violating A.R.S. § 33-1805.
Orders: Respondent was found in violation of A.R.S. § 33-1805 and Declaration Section F. Respondent shall reimburse Petitioner’s filing fee of $1,000.00.
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }
Blog Post – 24F-H015-REL
{ “case”: { “docket_no”: “24F-H015-REL”, “case_title”: “Teri S. Morcomb & J. Ted Morcomb v. Sierra Tortuga Homeowner’s Association”, “decision_date”: “2024-01-03”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If I win my case against the HOA, can I get my filing fee reimbursed?”, “short_answer”: “Yes, the ALJ can order the HOA to reimburse the filing fee if the petition is granted.”, “detailed_answer”: “Under Arizona law, if a homeowner prevails in their petition against the association, the Administrative Law Judge has the authority to order the respondent (HOA) to reimburse the petitioner’s filing fee.”, “alj_quote”: “IT IS FURTHER ORDERED pursuant to ARIZ. REV. STAT. § 32-2199.02(A), Respondent shall reimburse Petitioner’s filing fee of $1,000.00 as required by ARIZ. REV. STAT. § 32-2199.01.”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “filing fees”, “reimbursement”, “penalties” ] }, { “question”: “What is the timeline for an HOA to provide records after a homeowner requests them?”, “short_answer”: “The HOA has ten business days to fulfill a request for examination or provide copies of records.”, “detailed_answer”: “Arizona statute requires that an association make financial and other records reasonably available for examination. When a member requests to examine or purchase copies of records, the association must comply within ten business days.”, “alj_quote”: “The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies of records … the association shall have ten business days to provide copies of the requested records.”, “legal_basis”: “A.R.S. § 33-1805(A)”, “topic_tags”: [ “records request”, “deadlines”, “homeowner rights” ] }, { “question”: “Can an HOA refuse to provide meeting minutes by claiming other documents regarding a specific issue don’t exist?”, “short_answer”: “No, even if specific architectural files don’t exist, the HOA must still provide related meeting minutes if requested.”, “detailed_answer”: “In this case, while the HOA claimed no documents existed regarding a specific architectural submission (because none was made), they were still found in violation for failing to produce the meeting minutes where the issue and an investigative report were discussed.”, “alj_quote”: “From the evidence presented, and Mr. Lewin admitted, that Respondent failed to produce a copy of the meeting minutes discussing the investigative report.”, “legal_basis”: “A.R.S. § 33-1805”, “topic_tags”: [ “meeting minutes”, “records access”, “HOA obligations” ] }, { “question”: “Does the ALJ have the authority to order the HOA to physically clear a violation from a neighbor’s lot?”, “short_answer”: “Not necessarily, if the CC&Rs grant the HOA the ‘right’ rather than the ‘duty’ to clear the lot, it remains a discretionary action.”, “detailed_answer”: “Although the ALJ found the HOA in violation of the CC&Rs for the setback issue, the judge disagreed that the HOA must clear the lot. The specific language of the governing documents gave the Architectural Committee the ‘right’ to clear the lot, which the judge interpreted as discretionary.”, “alj_quote”: “However, the tribunal disagrees with Petitioner that Respondent must clear the lot. Section H of the Declaration merely states that the Architectural Committee ‘shall have the right to clear such lot’. Thus, it is still within the Architectural Committee’s discretion to act on that right.”, “legal_basis”: “CC&Rs Interpretation”, “topic_tags”: [ “enforcement”, “remedies”, “CC&Rs” ] }, { “question”: “What is the burden of proof in an HOA administrative hearing?”, “short_answer”: “The petitioner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner bringing the complaint bears the burden of proving that the HOA violated the community documents or statutes. The standard is a ‘preponderance of the evidence,’ meaning the contention is more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the item F of the Declarations and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Can the HOA be found in violation for a neighbor’s unapproved improvements?”, “short_answer”: “Yes, if the HOA fails to enforce setback requirements against unapproved improvements.”, “detailed_answer”: “The ALJ found the Board in violation of the Declaration (setback rules) because the neighbor never submitted a request for the improvements, the improvements did not comply with setbacks, and the Board failed to enforce the requirement.”, “alj_quote”: “Petitioner has met the burden of proof in demonstrating that the Board was in violation of Section F of the Declaration and ARIZ. REV. STAT. § 33-1805.”, “legal_basis”: “CC&Rs (Section F)”, “topic_tags”: [ “architectural control”, “setbacks”, “violations” ] }, { “question”: “Do HOA directors have the right to inspect association records?”, “short_answer”: “Yes, directors generally have an absolute right to inspect all books and records at any reasonable time.”, “detailed_answer”: “The decision cites the Association Bylaws which grant every Director the absolute right to inspect all books, records, documents, and physical properties of the Association.”, “alj_quote”: “Every Director shall have the absolute right at any reasonable time to inspect all books, records, and documents of the Association and the physical properties owned or controlled by the Association.”, “legal_basis”: “Association Bylaws Article 11.3”, “topic_tags”: [ “board members”, “records inspection”, “bylaws” ] } ] }
Case Participants
Petitioner Side
Teri S. Morcomb(petitioner) Lot 8 owner, testified
J. Ted Morcomb(petitioner) Lot 8 owner
Jeffrey T. Brei(petitioner attorney)
Tracy Allen Bogardis(witness) Civil Engineer Testified regarding drainage/hydrology
Respondent Side
Phillip Brown(HOA attorney)
Kelly Oetinger(HOA attorney)
Robert Leuen(board president) Sierra Tortuga HOA Testified
Marcella Bernadette Aguilar(witness) Sierra Tortuga HOA Lot 9 owner, testified
Abel Sodto(lot owner) Sierra Tortuga HOA Lot 9 owner, former Board/ARC member, subject of violation
Clint Stoddard(board member) Sierra Tortuga HOA Investigator
Benny Medina(board member) Sierra Tortuga HOA Investigator, former president
Joseph D. Martino(ARC member) Sierra Tortuga HOA Former Architectural Committee Head
Chris Stler(board member) Sierra Tortuga HOA Vice President of HOA
Yvon Posche(board member) Sierra Tortuga HOA Secretary of HOA
Steve Brockam(board member) Sierra Tortuga HOA Board Director
Perry Terren(ARC chair) Sierra Tortuga HOA ARC Chairman and Board Director
Jeremy Thompson(law clerk) HOA Attorney's office
Mike Shupe(former HOA attorney)
Neutral Parties
Adam D. Stone(ALJ) OAH
Tim Ross(board member) Sierra Tortuga HOA Former board/investigator, criticized current board actions
Petitioners prevailed on both filed issues: the Respondent's conditional approval of the flagpole violated CC&Rs and statute, and the Violation Notice regarding the building envelope was improper as Petitioners were found to be in compliance (17,451 sq ft vs. 22,000 sq ft maximum). Respondent was ordered to reimburse the $1,000 filing fee. Request for civil penalties was denied.
Key Issues & Findings
Conditional approval of portable flagpole
Respondent conditionally approved Petitioners' DMR for a portable flagpole, but the conditions placed (limiting height, restricting mobility, and requiring placement on the side of the house) were outside the authority granted by the CC&Rs and violated ARIZ. REV. STAT. § 33-1808, which protects the display of the American flag in front or back yards. Petitioner sustained burden of proof.
Orders: Respondent must abide by the statute; civil penalty denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
ARIZ. REV. STAT. § 33-1808(B)
CC&Rs Design Guidelines Section II(O)
Violation Notice regarding Building Envelope compliance
Respondent sent a Violation Notice claiming Petitioners' building envelope was 38,000 square feet, exceeding the 22,000 square foot maximum limit defined in DG § III(A). The evidence established Petitioners' actual building envelope was 17,451 square feet, based on a superior 'boots on the ground' survey, proving no violation occurred. Petitioner sustained burden of proof.
Orders: Petitioners' building envelope did not violate the CC&Rs maximum limit; civil penalty denied.
Can my HOA prohibit me from displaying the American flag in my front or back yard?
Short Answer
No. Arizona law prevents HOAs from prohibiting the outdoor display of the American flag in front or back yards, regardless of what community documents say.
Detailed Answer
The decision affirms that notwithstanding community documents, an association cannot prohibit the display of the American flag in the front or backyard. In this case, the HOA's attempt to restrict the flag to the side of the house was found to violate state statute.
Alj Quote
Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor front yard or backyard display of . . . [t]he American flag.
Legal Basis
ARIZ. REV. STAT. § 33-1808(A)
Topic Tags
flags
federal/state rights
homeowner rights
Question
Can the HOA restrict the height or mobility of my flagpole if the CC&Rs don't specifically allow them to?
Short Answer
No. If the CC&Rs do not grant the authority to restrict flagpole height or mobility, the HOA cannot impose those conditions.
Detailed Answer
The ALJ found that the HOA violated the CC&Rs by placing conditions on a flagpole approval—specifically height limits and mobility restrictions—that were not authorized by the governing documents.
Alj Quote
Ms. Rawlette admitted the flag pole height and mobility restrictions were inappropriate because the CC&Rs do not grant Respondent authority to restrict flag poles in this manner.
Legal Basis
CC&Rs Interpretation
Topic Tags
architectural control
CC&Rs
flags
Question
If I win my hearing against the HOA, do I get my filing fee back?
Short Answer
Yes. If the petitioner prevails in the hearing, the judge is required to order the HOA to reimburse the filing fee.
Detailed Answer
The decision explicitly states that if a petitioner prevails, the administrative law judge shall order the respondent (HOA) to pay the petitioner the filing fee required by statute.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
reimbursement
prevailing party
Question
Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the rules?
Short Answer
No. Civil penalties may be denied if the violation was due to miscommunication or lack of malicious intent rather than ongoing harassment.
Detailed Answer
Even though the HOA violated the statute regarding flags, the judge denied civil penalties because the violation resulted from a miscommunication by the management company rather than a malicious harassment campaign.
Alj Quote
Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties. The flag pole issue was not an ongoing repetitive harassment campaign, rather, it was miscommunication between the Management Company and Respondent.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
civil penalties
fines
harassment
Question
In a dispute over land measurements (like a building envelope), is an aerial survey or an in-person survey better?
Short Answer
An in-person ('boots on the ground') survey is considered superior to an aerial-only survey.
Detailed Answer
When determining if a homeowner exceeded a building envelope, the ALJ found that an in-person survey was more reliable than an analysis based solely on aerial imagery.
Alj Quote
Mr. McLain and Mr. Teague agreed Mr. McLain’s “boots on the ground” survey is superior to an aerial only survey.
Legal Basis
Evidentiary Standards
Topic Tags
evidence
property disputes
surveys
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) has the burden to prove the HOA violated the statute or documents by a preponderance of the evidence.
Detailed Answer
The decision clarifies that the party bringing the case bears the burden of proof. This means the homeowner must show that their claims are more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal procedure
Question
What types of disputes can the Arizona Department of Real Estate hear?
Short Answer
Disputes between owners and associations concerning violations of community documents or statutes regulating planned communities.
Detailed Answer
The Department has jurisdiction to hear petitions from owners or associations regarding violations of CC&Rs or state statutes, provided the proper filing procedures are followed.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
ARIZ. REV. STAT. § 32-2199
Topic Tags
jurisdiction
ADRE authority
Case
Docket No
24F-H019-REL
Case Title
Schafer, Kevin W. & Lawton, Patricia A. v Sycamore Springs Homeowners Association, INC.
Decision Date
2024-01-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Questions
Question
Can my HOA prohibit me from displaying the American flag in my front or back yard?
Short Answer
No. Arizona law prevents HOAs from prohibiting the outdoor display of the American flag in front or back yards, regardless of what community documents say.
Detailed Answer
The decision affirms that notwithstanding community documents, an association cannot prohibit the display of the American flag in the front or backyard. In this case, the HOA's attempt to restrict the flag to the side of the house was found to violate state statute.
Alj Quote
Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor front yard or backyard display of . . . [t]he American flag.
Legal Basis
ARIZ. REV. STAT. § 33-1808(A)
Topic Tags
flags
federal/state rights
homeowner rights
Question
Can the HOA restrict the height or mobility of my flagpole if the CC&Rs don't specifically allow them to?
Short Answer
No. If the CC&Rs do not grant the authority to restrict flagpole height or mobility, the HOA cannot impose those conditions.
Detailed Answer
The ALJ found that the HOA violated the CC&Rs by placing conditions on a flagpole approval—specifically height limits and mobility restrictions—that were not authorized by the governing documents.
Alj Quote
Ms. Rawlette admitted the flag pole height and mobility restrictions were inappropriate because the CC&Rs do not grant Respondent authority to restrict flag poles in this manner.
Legal Basis
CC&Rs Interpretation
Topic Tags
architectural control
CC&Rs
flags
Question
If I win my hearing against the HOA, do I get my filing fee back?
Short Answer
Yes. If the petitioner prevails in the hearing, the judge is required to order the HOA to reimburse the filing fee.
Detailed Answer
The decision explicitly states that if a petitioner prevails, the administrative law judge shall order the respondent (HOA) to pay the petitioner the filing fee required by statute.
Alj Quote
If the petitioner prevails, the administrative law judge shall order the respondent to pay to the petitioner the filing fee required by section 32-2199.01.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
fees
reimbursement
prevailing party
Question
Will the judge automatically fine the HOA (civil penalties) if they are found to have violated the rules?
Short Answer
No. Civil penalties may be denied if the violation was due to miscommunication or lack of malicious intent rather than ongoing harassment.
Detailed Answer
Even though the HOA violated the statute regarding flags, the judge denied civil penalties because the violation resulted from a miscommunication by the management company rather than a malicious harassment campaign.
Alj Quote
Petitioner failed to provide sufficient evidence that Respondent’s actions warranted the issuance of civil penalties. The flag pole issue was not an ongoing repetitive harassment campaign, rather, it was miscommunication between the Management Company and Respondent.
Legal Basis
ARIZ. REV. STAT. § 32-2199.02(A)
Topic Tags
civil penalties
fines
harassment
Question
In a dispute over land measurements (like a building envelope), is an aerial survey or an in-person survey better?
Short Answer
An in-person ('boots on the ground') survey is considered superior to an aerial-only survey.
Detailed Answer
When determining if a homeowner exceeded a building envelope, the ALJ found that an in-person survey was more reliable than an analysis based solely on aerial imagery.
Alj Quote
Mr. McLain and Mr. Teague agreed Mr. McLain’s “boots on the ground” survey is superior to an aerial only survey.
Legal Basis
Evidentiary Standards
Topic Tags
evidence
property disputes
surveys
Question
Who has the burden of proof in an administrative hearing against an HOA?
Short Answer
The homeowner (Petitioner) has the burden to prove the HOA violated the statute or documents by a preponderance of the evidence.
Detailed Answer
The decision clarifies that the party bringing the case bears the burden of proof. This means the homeowner must show that their claims are more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1805.
Legal Basis
ARIZ. ADMIN. CODE R2-19-119
Topic Tags
burden of proof
legal procedure
Question
What types of disputes can the Arizona Department of Real Estate hear?
Short Answer
Disputes between owners and associations concerning violations of community documents or statutes regulating planned communities.
Detailed Answer
The Department has jurisdiction to hear petitions from owners or associations regarding violations of CC&Rs or state statutes, provided the proper filing procedures are followed.
Alj Quote
The owner or association may petition the department for a hearing concerning violations of community documents or violations of the statutes that regulate planned communities
Legal Basis
ARIZ. REV. STAT. § 32-2199
Topic Tags
jurisdiction
ADRE authority
Case
Docket No
24F-H019-REL
Case Title
Schafer, Kevin W. & Lawton, Patricia A. v Sycamore Springs Homeowners Association, INC.
Decision Date
2024-01-01
Alj Name
Brian Del Vecchio
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Schafer, Kevin W.(petitioner)
Lawton, Patricia A.(petitioner/witness)
Cline, Craig L.(petitioner attorney) Udall Law
Mlan, Steven Wallace(witness/surveyor) Tucson Surveying and Mapping Expert witness for Petitioners
