The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2025-10-09T03:34:47 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2026-01-23T17:31:15 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The HOA prevailed on all three complaints regarding records, fee increases, and meeting notices. Petitioner failed to prove violations.
Why this result: Petitioner failed to prove violations by a preponderance of the evidence; HOA complied with statutes regarding record provision and meeting notice mailing; fee increase vote was valid without proxy.
Key Issues & Findings
Records Request Violation
Petitioner alleged HOA failed to provide requested records. ALJ found HOA reasonably clarified burdensome requests and provided available records timely.
Orders: Petitioner's claim denied; HOA prevailed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1805
Invalid Fee Increase / Proxy Vote
Petitioner alleged a $5 fee increase was invalid due to a proxy vote. ALJ found the proxy vote was not included in final valid count which met 2/3 requirement.
Orders: Petitioner's claim denied; HOA prevailed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1812(A)
Meeting Notice Violation
Petitioner alleged meeting notice was not received 10 days prior. ALJ ruled mailing at UPS contract postal unit 13 days prior satisfied 'sent' requirement.
**Case Title:** *Gregory L. Czekaj v. Colonia Del Rey HOA, Inc.*
**Case Number:** 19F-H1918040-REL-RHG
**Date of Rehearing Decision:** March 25, 2020
**Procedural Status: Rehearing**
This summary details a **rehearing** of a dispute initially decided on July 8, 2019. The rehearing was granted by the Arizona Department of Real Estate Commissioner after the Petitioner alleged procedural errors regarding the retroactive swearing-in of witnesses during the initial hearing,. This summary distinguishes between the original findings and the rehearing analysis where applicable.
**Background**
The case involves a Homeowners Association (HOA) comprised of nine homes. The Petitioner, a homeowner, filed three complaints alleging statutory violations. The HOA filed a counter-petition (Complaint Four) regarding the Petitioner's conduct,.
**Complaint One: Records Requests**
* **Issue:** Petitioner alleged the HOA failed to provide requested records in violation of A.R.S. § 33-1805.
* **Original Decision:** The Administrative Law Judge (ALJ) ruled the HOA prevailed. The ALJ found Petitioner’s request for "any and all" records burdensome and determined the HOA complied timely with clarified requests,.
* **Rehearing Proceedings:** Petitioner argued his requests were not burdensome and claimed the HOA "refused" access, citing the 1984 CC&Rs and the lack of a physical business office as violations,. The HOA noted it has no office and records are kept in volunteers' homes.
* **Rehearing Outcome:** The ALJ affirmed that the request for "any and all" documents was burdensome. The HOA satisfied its obligations by emailing documents and facilitating a records review session,. The ALJ ruled the HOA never refused records and remained the prevailing party,.
**Complaint Two: Fee Increase Validity**
* **Issue:** Petitioner argued a $5 fee increase was invalid because the vote utilized a proxy, which he claimed violated A.R.S. § 33-1812.
* **Original Decision:** The ALJ found that although a proxy was discussed, it was not counted in the final tally. The valid vote count (5 YES, 1 NO) met the requirement of 2/3 of votes cast.
* **Rehearing Proceedings:** Petitioner argued that passage required six votes (2/3 of the membership). The HOA clarified that the governing documents require 2/3 of *votes cast*. Petitioner also attempted to introduce new arguments regarding ballot formatting, which the
Case Participants
Petitioner Side
Gregory L. Czekaj(Petitioner) Homeowner Appeared on his own behalf
Gary Wolf(Petitioner's Attorney) Contacted HOA attorney regarding records
Respondent Side
Marybeth Andree(HOA President) Colonia Del Rey HOA, Inc. Represented the HOA; also Secretary during some events
Carolyn Goldschmidt(HOA Attorney) Responded to records requests
Phil Oliver(Witness) Colonia Del Rey HOA, Inc. Former HOA President
Susan Sotelo(Witness) Colonia Del Rey HOA, Inc. Former HOA Secretary; testified regarding mailing of notices
Les Andree(Attendee) Marybeth Andree's husband; present at May 6, 2017 meeting
Neutral Parties
Kay Abramsohn(Administrative Law Judge) Office of Administrative Hearings
Mr. Tick(Witness) Insurance Agent Testified regarding HOA insurance policy request
Damian Schaffer(Witness) UPS Store UPS store clerk
Ed Freeman(Tenant) Involved in proxy vote issue; ineligible to vote
Sarah Hitch(Proxy Holder) Tenant who cast proxy vote
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of the order
Other Participants
Maryanne Beerling(Member) Colonia Del Rey HOA, Inc. Present at May 6, 2017 meeting
Cimarron Hills at McDowell Mountain Homeowners Association
Counsel
Mark K. Sahl
Alleged Violations
Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3
Outcome Summary
The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.
Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R’s Article 12.3
Design Guidelines Section HH
Design Guidelines Section E
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019003-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-03-16
Administrative Law Judge
Antara Nath Rivera
Outcome
none
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Will Schreiber
Counsel
Aaron M. Green
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association
Counsel
Mark K. Sahl
Alleged Violations
Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3
Outcome Summary
The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.
Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R’s Article 12.3
Design Guidelines Section HH
Design Guidelines Section E
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Video Overview
Audio Overview
Decision Documents
20F-H2019003-REL-RHG Decision – 769789.pdf
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20F-H2019003-REL-RHG Decision – 775433.pdf
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Briefing Doc – 20F-H2019003-REL-RHG
Briefing Document: Schreiber v. Cimarron Hills HOA
Executive Summary
This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.
The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.
The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).
Case Identification and Participants
Detail
Information
Case Name
Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent
Case Number
20F-H2019003-REL-RHG
Tribunal
Office of Administrative Hearings (Arizona)
Administrative Law Judge
Antara Nath Rivera
Petitioner
Will Schreiber
Petitioner’s Counsel
Aaron M. Green, Esq.
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)
Respondent’s Counsel
Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)
Property Address
11551 East Caribbean Lane, Scottsdale, Arizona, 85255
Procedural History and Timeline
1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.
2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.
3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.
4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.
5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).
6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.
7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.
8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.
9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.
10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.
11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.
12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.
13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.
Analysis of Arguments
Petitioner’s Position (Will Schreiber)
The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.
• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.
• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.
• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.
• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”
Respondent’s Position (Cimarron Hills HOA)
The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.
• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.
• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.
• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.
• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.
Governing Documents Cited
The decision in this case was based on the interpretation of several key sections of the community’s governing documents.
• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.
• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”
• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.
• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.
Administrative Law Judge’s Decision and Rationale
The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.
• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.
• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.
• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 20F-H2019003-REL-RHG
Study Guide: Schreiber v. Cimarron Hills HOA
This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?
3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?
4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?
5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?
6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.
7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?
8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?
9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?
10. What was the final outcome of the administrative rehearing held on January 30, 2020?
Answer Key
1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.
2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.
3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.
4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.
5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.
6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.
7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.
8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.
9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.
10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.
Essay Questions
The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.
1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.
2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?
3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.
4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.
5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.
Answer
The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.
Areas of Association Responsibility
Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.
An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.
Design Guidelines
A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.
Design Review Committee (DRC)
A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.
Homeowners Association Dispute Process Petition
The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.
McDowell Mountain Ranch Homeowners Association (MMRHA)
The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.
Petitioner
The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.
Preponderance of the evidence
The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.
Respondent
The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.
Retroactive Approval
Approval sought for a modification or construction that has already been completed without prior authorization.
Variance
A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.
Blog Post – 20F-H2019003-REL-RHG
The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA
Introduction: The Dream Project and the Unseen Rules
Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.
The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.
1. The most critical mistake wasn’t the fence—it was the timing.
The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.
The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.
In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.
2. A logical argument can lose to a written rule.
The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:
A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.
To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.
This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.
3. The HOA’s biggest concern wasn’t curb appeal; it was risk.
While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.
The HOA presented several key points:
• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.
• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.
• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”
Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.
4. In a dispute, you are the one who has to prove the HOA is wrong.
When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”
In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.
The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.
Conclusion: The Unwritten Lessons of Community Living
HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.
This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?
Case Participants
Petitioner Side
Will Schreiber(petitioner) Complainant
Aaron M. Green(petitioner attorney) Law Office of Aaron Green, P.C.
Respondent Side
Nick Nogami(respondent attorney) Represented Respondent at hearing
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Whitney Bostic(witness) Testified for Respondent
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
c. serrano(clerk) Transmitting agent for Order
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission
ncano(ADRE staff) Arizona Department of Real Estate Recipient of transmission
The Petitioner's dispute petition was dismissed because the Petitioner failed to meet the burden of proof that the HOA violated its governing documents regarding the denial of a retroactively submitted view fence modification.
Why this result: Petitioner failed to meet the burden of proof to establish the HOA violated its CC&Rs or Design Guidelines. Specifically, the Petitioner did not establish he rightfully sought approval prior to installing the fence.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA violated community documents by denying approval for a glass view fence installed without prior approval. The ALJ found Petitioner failed to establish the HOA violated its documents, as Petitioner did not follow required procedures for seeking approval.
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Video Overview
Audio Overview
Decision Documents
20F-H2019003-REL-RHG Decision – 769789.pdf
Uploaded 2025-10-09T03:34:30 (42.2 KB)
20F-H2019003-REL-RHG Decision – 775433.pdf
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Briefing Doc – 20F-H2019003-REL-RHG
Briefing Document: Schreiber v. Cimarron Hills HOA
Executive Summary
This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.
The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.
The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).
Case Identification and Participants
Detail
Information
Case Name
Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent
Case Number
20F-H2019003-REL-RHG
Tribunal
Office of Administrative Hearings (Arizona)
Administrative Law Judge
Antara Nath Rivera
Petitioner
Will Schreiber
Petitioner’s Counsel
Aaron M. Green, Esq.
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)
Respondent’s Counsel
Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)
Property Address
11551 East Caribbean Lane, Scottsdale, Arizona, 85255
Procedural History and Timeline
1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.
2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.
3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.
4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.
5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).
6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.
7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.
8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.
9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.
10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.
11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.
12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.
13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.
Analysis of Arguments
Petitioner’s Position (Will Schreiber)
The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.
• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.
• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.
• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.
• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”
Respondent’s Position (Cimarron Hills HOA)
The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.
• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.
• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.
• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.
• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.
Governing Documents Cited
The decision in this case was based on the interpretation of several key sections of the community’s governing documents.
• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.
• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”
• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.
• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.
Administrative Law Judge’s Decision and Rationale
The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.
• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.
• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.
• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 20F-H2019003-REL-RHG
Study Guide: Schreiber v. Cimarron Hills HOA
This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?
3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?
4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?
5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?
6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.
7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?
8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?
9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?
10. What was the final outcome of the administrative rehearing held on January 30, 2020?
Answer Key
1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.
2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.
3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.
4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.
5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.
6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.
7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.
8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.
9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.
10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.
Essay Questions
The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.
1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.
2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?
3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.
4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.
5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.
Answer
The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.
Areas of Association Responsibility
Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.
An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.
Design Guidelines
A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.
Design Review Committee (DRC)
A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.
Homeowners Association Dispute Process Petition
The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.
McDowell Mountain Ranch Homeowners Association (MMRHA)
The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.
Petitioner
The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.
Preponderance of the evidence
The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.
Respondent
The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.
Retroactive Approval
Approval sought for a modification or construction that has already been completed without prior authorization.
Variance
A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.
Blog Post – 20F-H2019003-REL-RHG
The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA
Introduction: The Dream Project and the Unseen Rules
Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.
The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.
1. The most critical mistake wasn’t the fence—it was the timing.
The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.
The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.
In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.
2. A logical argument can lose to a written rule.
The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:
A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.
To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.
This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.
3. The HOA’s biggest concern wasn’t curb appeal; it was risk.
While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.
The HOA presented several key points:
• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.
• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.
• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”
Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.
4. In a dispute, you are the one who has to prove the HOA is wrong.
When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”
In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.
The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.
Conclusion: The Unwritten Lessons of Community Living
HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.
This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?
Case Participants
Petitioner Side
Will Schreiber(petitioner) Complainant
Aaron M. Green(petitioner attorney) Law Office of Aaron Green, P.C.
Respondent Side
Nick Nogami(respondent attorney) Represented Respondent at hearing
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Whitney Bostic(witness) Testified for Respondent
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
c. serrano(clerk) Transmitting agent for Order
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission
ncano(ADRE staff) Arizona Department of Real Estate Recipient of transmission
The Administrative Law Judge ruled in favor of the Petitioner, finding that the Respondent violated state statute and community bylaws by failing to allow inspection of books and records. The Respondent was ordered to provide the records and refund the filing fee.
Key Issues & Findings
Failure to make books and records reasonably available
Petitioner requested access to the Association's books and records multiple times between 2017 and 2019 to review financial information and other member dues status. The Respondent failed to respond or provide access to the records.
Orders: Respondent shall supply Petitioner with the relevant documents within ten (10) days; Respondent shall pay Petitioner his filing fee of $500.00 within thirty (30) days.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805
Bylaws Article X
Decision Documents
20F-H2019022-REL Decision – 773049.pdf
Uploaded 2026-02-11T06:43:22 (90.9 KB)
**Case Summary: Kenneth W. Zablotny vs. Sycamore Hills Estates, Inc.**
**Case Number:** 20F-H2019022-REL
**Hearing Date:** February 13, 2020
**Administrative Law Judge:** Antara Nath Rivera
**Proceedings**
The hearing was convened by the Arizona Department of Real Estate to address a dispute between Petitioner Kenneth W. Zablotny and Respondent Sycamore Hills Estates, Inc. The Petitioner appeared on his own behalf. The Respondent failed to appear, despite receiving proper notice, and the hearing proceeded in their absence.
**Key Facts**
The Petitioner, a homeowner in the community since 2012, sought access to the Association's books and records following discrepancies regarding homeowner dues and foreclosure statuses.
* **Repeated Requests:** Between December 2017 and December 2019, the Petitioner made numerous requests (via certified mail, website, and in-person attempts) to inspect financial records.
* **Respondent's Failure to Comply:** The Respondent’s manager and board consistently ignored requests, refused access, or provided incomplete and illegible documents. The Petitioner testified that he was refused access to books involving multiple accounts.
**Legal Issues**
The primary legal issue was whether the Respondent’s actions violated state law and community bylaws regarding member access to records.
* **A.R.S. § 33-1805:** This statute mandates that association financial records be made "reasonably available for examination" by any member. It grants associations ten business days to fulfill examination requests.
* **Bylaws Article X:** The community's bylaws state that books and records shall be subject to inspection by any member "at all times, during reasonable business hours".
**Findings and Conclusions**
The Administrative Law Judge found that the Department had jurisdiction over the dispute pursuant to A.R.S. § 41-2198.01(B). The Judge concluded that the Petitioner met the burden of proof by a preponderance of the evidence.
* **Violation Established:** The evidence demonstrated that the Respondent failed to provide dates and times for inspection and did not grant access to the records despite the Petitioner's repeated attempts, constituting a violation of both A.R.S. § 33-1805 and Article X of the Bylaws.
**Final Order**
The Judge ordered the following relief:
1. **Petition Upheld:** The Petitioner was deemed the prevailing party.
2. **Production of Records:** The Respondent was ordered to supply the relevant documents to the Petitioner within 10 days of the Order.
3. **Reimbursement:** The Respondent was ordered to pay the Petitioner the $500.00 filing fee within 30 days.
4. **Civil Penalty:** No civil penalty was assessed.
Case Participants
Petitioner Side
Kenneth W Zablotny(petitioner) Appeared on his own behalf; real estate agent
Respondent Side
Char DuFresne(property manager) Sycamore Hills Estates, Inc. Respondent's manager
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of transmitted order
The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.
Why this result: Petitioner failed to meet the burden of proof that the backflow flap was a common element maintenance responsibility under CC&Rs Sections 12(c) or 12(h)(1).
Key Issues & Findings
Violation of community documents regarding maintenance responsibility for sewage backflow flap.
Petitioner alleged the HOA violated CC&Rs by refusing to pay for repairs related to a malfunctioning backflow flap that caused a sewage overflow, arguing the item was a common element maintenance responsibility.
Orders: Petitioner Jennie Bennett’s Petition was dismissed.
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019002-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-02-26
Administrative Law Judge
Antara Nath Rivera
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Jennie Bennett
Counsel
Maxwell Riddiough
Respondent
Catalina Del Rey Homeowners Association
Counsel
Nathan Tennyson
Alleged Violations
CC&Rs Sections 12(c) and 12(h)(1)
Outcome Summary
The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.
Why this result: Petitioner failed to meet the burden of proof that the backflow flap was a common element maintenance responsibility under CC&Rs Sections 12(c) or 12(h)(1).
Key Issues & Findings
Violation of community documents regarding maintenance responsibility for sewage backflow flap.
Petitioner alleged the HOA violated CC&Rs by refusing to pay for repairs related to a malfunctioning backflow flap that caused a sewage overflow, arguing the item was a common element maintenance responsibility.
Orders: Petitioner Jennie Bennett’s Petition was dismissed.
Briefing Document: Jennie Bennett vs. Catalina Del Rey Homeowners Association
Executive Summary
This document synthesizes the findings, arguments, and conclusions from the Administrative Law Judge (ALJ) Decision in case number 20F-H2019002-REL-RHG, concerning a dispute between homeowner Jennie Bennett (Petitioner) and the Catalina Del Rey Homeowners Association (Respondent).
The core of the dispute was the financial responsibility for repairing a malfunctioning sewage backflow valve that caused an overflow at the petitioner’s residence. The petitioner argued that the HOA violated its Covenants, Conditions, Restrictions and Easements (CC&Rs), specifically Sections 12(c) and 12(h)(1), by refusing to cover the repair costs. The petitioner’s claim was complicated by the fact that the HOA had, just two weeks prior to the incident, rescinded a “Sewer Maintenance Policy” that had previously addressed such issues. The petitioner stated she was not notified of this rescission.
The respondent contended that the backflow valve was located on the petitioner’s private property, not in a common area, making its maintenance the petitioner’s responsibility under Section 15 of the CC&Rs. The HOA asserted that the 2017 policy was rescinded precisely because legal guidance confirmed this distinction. The HOA also maintained that notice of the rescission was sent to all homeowners.
The ALJ ultimately ruled in favor of the respondent, dismissing the petitioner’s petition. The decision concluded that the petitioner failed to meet the burden of proof—a preponderance of the evidence—to establish that the backflow valve was a common element covered by the cited CC&R sections. The evidence, including a plat map and photos, demonstrated the valve was on the petitioner’s private property. While the timing of the policy rescission was deemed “extremely unfortunate,” the ALJ found that once rescinded, the HOA was no longer obligated to share repair costs.
I. Case Overview
• Case Name: Jennie Bennett, Petitioner, vs. Catalina Del Rey Homeowners Association, Respondent.
• Case Number: 20F-H2019002-REL-RHG
• Forum: Arizona Office of Administrative Hearings
• Administrative Law Judge: Antara Nath Rivera
• Hearing Date: February 7, 2020
• Decision Date: February 26, 2020
• Core Allegation: The petitioner alleged that the HOA violated community documents, specifically Sections 12(c) and 12(h)(1) of the CC&Rs.
II. Central Dispute and Timeline of Events
The central issue was whether the HOA was responsible for the cost of repairing a malfunctioning sewage backflow flap on the petitioner’s property.
• March 2017: The HOA adopts a “Sewer Maintenance Policy” to outline processes for sewage maintenance.
• February 13, 2019: The HOA Board rescinds the Sewer Maintenance Policy.
• March 3, 2019: Petitioner Jennie Bennett experiences a sewage overflow at her residence due to a malfunctioning backflow valve.
• March – May 2019: The petitioner brings her concerns to the HOA board at multiple meetings but receives no response.
• May 22, 2019: The HOA responds to the petitioner after receiving a letter from her attorney.
• July 10, 2019: The petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.
III. Petitioner’s Position and Arguments (Jennie Bennett)
The petitioner, a resident for 20 years, argued that the HOA was liable for the repair costs based on the following points:
• CC&R Violation: The refusal to pay for the repair constituted a violation of Sections 12(c) and 12(h)(1) of the CC&Rs, which pertain to the HOA’s duty to maintain sewer lines and common elements.
• Lack of Notice: The petitioner testified she was not notified of the policy rescission on February 13, 2019. The sewage overflow occurred just two weeks later, and upon reporting it, she was informed by a neighbor that the HOA had historically covered such issues.
• Procedural Failure: The HOA failed to address her concerns at the March, April, or May board meetings, only engaging after her attorney intervened.
• Community Support: The petitioner collected 97 signatures on a grassroots petition asking the HOA to cover the repair due to the short time frame between the policy rescission and the incident, and the lack of notice. The petition stated: “I am asking to be covered because of the 2 week time frame and no notice. I agree with being covered by the HOA for the flap.”
IV. Respondent’s Position and Arguments (Catalina Del Rey HOA)
The HOA, represented by community manager Vanessa Lubinsky of Cadden Community Management, presented a defense centered on the distinction between private and common property.
• Private Property Responsibility: The HOA’s primary argument was that the backflow flap was located on the petitioner’s private property and was therefore her responsibility to maintain under Section 15 of the CC&Rs, which governs utilities like plumbing within a homeowner’s lot.
• Evidence of Location: The respondent submitted a plat map and photographs as evidence. The photos illustrated that the backflow flap was located “next to Petitioner’s walk up to her front door,” well within her property lines and not on common elements.
• Plumbing vs. Sewer Issue: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue,” because of its location on private property.
• Rationale for Policy Change: The 2017 Sewer Maintenance Policy was rescinded after the HOA received “additional legal guidance” confirming that backflow flaps were within homeowners’ units and thus their responsibility under Section 15.
• Notice and Procedure: Ms. Lubinsky testified that notice of the rescission was issued to homeowners via both email and postal mail (postcards). She clarified that the rescission was a board decision that did not require a homeowner vote, as it was not an amendment to the CC&Rs.
V. Relevant Sections of the CC&Rs
The dispute hinged on the interpretation of the following sections of the Declaration of Covenants, Conditions, Restrictions and Easements.
Section
Quoted Text from the Decision
Section 12(c)
“The Association shall maintain and landscape all front and side years open to the street, and shall maintain sewer lines, sidewalks, walkways, brick trim, streets and common recreation areas. …The words “repair or maintain” shall not be construed that the Association shall repair or maintain any individual lot owner’s roof or similar structure.”
Section 12(h)(1)
“Each such lot will be subject to assessments and the owner thereof shall pay to the Associations assessments as follows: Such lots pro rata share of the actual cost to the Association of all repair, maintenance, safety and control of common elements, including but not limited to maintenance of walkways, sidewalks, streets and sewers, care of lawns and landscaping in common areas and front and side yards of residences… .”
Section 15
(Described, not quoted) This section provides that the homeowner is responsible for the maintenance of utilities such as electricity and plumbing on their private property, similar to a single-family residence.
VI. Administrative Law Judge’s Findings and Ruling
The ALJ’s decision was based on the petitioner’s failure to meet the required burden of proof.
• Burden of Proof: The petitioner was required to establish the HOA’s violation by a “preponderance of the evidence,” meaning proof that convinces the trier of fact the contention is more probably true than not.
• Factual Determination: The judge found that the evidence, specifically the photos and plat map, demonstrated conclusively that the backflow flap was on the petitioner’s private property near her front door.
• Conclusion on CC&Rs: Because the flap was determined not to be located within a common area, the petitioner failed to establish that it fell under the purview of Sections 12(c) or 12(h)(1). Therefore, she failed to prove the HOA had a responsibility to repair it under those sections.
• Effect of Policy Rescission: The judge acknowledged, “It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.” However, the ruling stated that once the policy was rescinded, the HOA “was not obligated to share the cost of repairs.”
• Final Order: “IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.” The order is binding on the parties, with any appeal required to be filed with the superior court within thirty-five days of service.
Study Guide – 20F-H2019002-REL-RHG
Study Guide: Bennett v. Catalina Del Rey Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case text.
1. Who were the Petitioner and the Respondent in this case, and what was the legal case number?
2. What specific sections of the community documents did Petitioner Jennie Bennett allege the Respondent had violated?
3. Describe the incident that prompted the dispute and the date on which it occurred.
4. What was the “Sewer Maintenance Policy,” when was it adopted, and when was it rescinded?
5. According to the Respondent’s manager, Vanessa Lubinsky, why was the repair Jennie Bennett’s financial responsibility?
6. What evidence did the Respondent present to prove the location of the malfunctioning backflow flap?
7. What steps did Jennie Bennett take to rally support from her neighbors after the Respondent did not address her concerns?
8. What is the legal standard for the burden of proof in this case, and which party does it fall on?
9. According to Section 12(c) of the CC&Rs, what specific areas is the Homeowners Association responsible for maintaining?
10. What was the final ruling, or “Order,” issued by the Administrative Law Judge in this case?
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Answer Key
1. The Petitioner was Jennie Bennett, represented by attorney Maxwell Riddiough. The Respondent was the Catalina Del Rey Homeowners Association, represented by attorney Nathan Tennyson. The case number was 20F-H2019002-REL-RHG.
2. The Petitioner alleged that the Respondent violated Sections 12(c) and 12(h)(1) of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). This was noted as a single-issue petition.
3. On or about March 3, 2019, the Petitioner experienced a sewage overflow into her house. The overflow was caused by malfunctioning backflow valves.
4. The Sewer Maintenance Policy was a policy adopted in March 2017 to outline the process for sewage maintenance issues. It was rescinded by the HOA Board on February 13, 2019, shortly before the Petitioner’s incident.
5. Vanessa Lubinsky testified that the issue was the Petitioner’s responsibility because the malfunctioning backflow flap was located on her private property. Under Section 15 of the CC&Rs, homeowners are responsible for the maintenance of their own plumbing, electricity, and other utilities.
6. The Respondent presented a plat map, which specified all property lines, and photos. This evidence illustrated that the backflow flap was located inside the lines of the Petitioner’s private property, next to the walk-up to her front door, and not on common elements.
7. The Petitioner obtained 97 signatures on a “Grassroots petition.” The petition explained her situation and argued that she should be covered by the HOA for the repair due to the short time between the policy rescission and her incident, and because she had not received written notice.
8. The legal standard is “preponderance of the evidence,” which means the proof must convince the trier of fact that the contention is more probably true than not. The burden of proof fell on the Petitioner, Jennie Bennett, to establish that the Respondent committed the alleged violations.
9. Section 12(c) states the Association is responsible for maintaining and landscaping front and side yards open to the street. It also specifies the Association’s duty to maintain sewer lines, sidewalks, walkways, brick trim, streets, and common recreation areas.
10. The Administrative Law Judge ordered that Petitioner Jennie Bennett’s Petition be dismissed. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent had violated the CC&Rs.
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Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a detailed essay response for each prompt, using specific evidence and arguments from the provided text to support your conclusions.
1. Analyze and contrast the core arguments presented by the Petitioner, Jennie Bennett, and the Respondent, Catalina Del Rey Homeowners Association. How did each party use the CC&Rs and the Sewer Maintenance Policy to support their position?
2. Discuss the significance of the Sewer Maintenance Policy’s rescission. Evaluate the timing of the rescission relative to the Petitioner’s incident and the arguments made regarding notification to homeowners.
3. Explain the legal concept of “preponderance of the evidence” as defined in the case document. How did Administrative Law Judge Antara Nath Rivera apply this standard to the evidence presented by both parties to reach a final decision?
4. Evaluate the role of physical evidence, specifically the plat map and photographs, in the outcome of this hearing. Why was determining the precise location of the backflow flap the central issue of the case?
5. From an ethical and community governance perspective, discuss the actions of the Catalina Del Rey Homeowners Association. Consider their decision to rescind the policy, the method of notification, and their initial responses (or lack thereof) to Ms. Bennett’s requests at the board meetings.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Antara Nath Rivera, who presides over hearings at the Office of Administrative Hearings and makes legal decisions and orders.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.
Common Elements
Areas within the HOA community that are not part of an individual homeowner’s private property and are maintained by the Association. Examples from the text include walkways, sidewalks, streets, sewers, and recreation areas.
Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs)
The governing legal documents that outline the rules, obligations, and restrictions for a planned community. The Petitioner alleged a violation of Sections 12(c) and 12(h)(1) of these documents.
Homeowners Association (HOA)
The community organization, Catalina Del Rey Homeowners Association, responsible for managing and maintaining the common elements of a planned community as defined by the CC&Rs.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was homeowner Jennie Bennett.
Plat Map
A map, drawn to scale, showing the divisions of a piece of land. In this case, it was used as evidence to specify all property lines, including the Petitioner’s.
Preponderance of the Evidence
The evidentiary standard required to win the case, defined as proof that convinces the trier of fact that a contention is “more probably true than not.” It is described as the “greater weight of the evidence.”
Rescission
The act of canceling or revoking a policy or decision. The HOA Board rescinded its Sewer Maintenance Policy on February 13, 2019.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Catalina Del Rey Homeowners Association.
Blog Post – 20F-H2019002-REL-RHG
A Homeowner’s Sewage Nightmare: 5 Surprising Lessons from a Losing Battle with an HOA
Introduction: The Dreaded HOA Letter
For many homeowners, the greatest fear isn’t a storm or a failing appliance; it’s a sudden, catastrophic repair bill. This anxiety is often magnified for those living in a planned community, where another layer of complexity—the Homeowners Association (HOA)—governs every aspect of property maintenance. A dispute with the HOA can turn a straightforward repair into a frustrating and expensive legal battle.
The case of Jennie Bennett, a resident in her home for 20 years, and the Catalina Del Rey Homeowners Association is a stark cautionary tale. After a sewage overflow caused by a malfunctioning backflow valve, Ms. Bennett found herself in a dispute with her HOA over who should pay for the repair, claiming the association had violated Sections 12(c) and 12(h)(1) of its governing documents. The resulting legal decision reveals critical, and often surprising, insights into how HOA rules are interpreted and enforced. This article breaks down the five most impactful lessons from her losing battle.
1. Location is Everything: The Critical Line Between Private and Common Property
The single most important factor in the judge’s decision was the physical location of the broken part. The entire case hinged on a simple question: was the malfunctioning backflow flap on Jennie Bennett’s private property or in an HOA-maintained common area?
The HOA argued that the plat map and photos proved the flap was located “next to Petitioner’s walk up to her front door,” placing it squarely inside her private property line. While the homeowner claimed the HOA was responsible for “sewer lines” under Sections 12(c) and 12(h)(1) of the Covenants, Conditions, and Restrictions (CC&Rs), this argument failed. The HOA’s manager, Vanessa Lubinsky, perfectly synthesized the association’s legal position when she “opined that the backflow flap was a plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”
Because the backflow flap was deemed to be on private property, it fell under Section 15 of the CC&Rs. This clause stipulated that the homeowner was responsible for the maintenance of their own plumbing, electricity, and other utilities—much like the owner of a single-family residence. The specific location of the failure, not the general nature of the system it belonged to, determined financial responsibility.
2. An HOA ‘Policy’ Can Vanish Overnight
For nearly two years, from March 2017 to February 2019, the Catalina Del Rey HOA had a “Sewer Maintenance Policy” in place. This policy, which had been in effect for nearly two years, outlined a process for handling sewage maintenance; however, once rescinded, the HOA was no longer obligated to share in repair costs. The Board of Directors rescinded this policy on February 13, 2019. The petitioner’s sewage overflow occurred on March 3, 2019—less than three weeks later.
Crucially, the HOA’s action was not arbitrary. According to case testimony, the board rescinded the policy because, “After Respondent received additional legal guidance, it was determined that the backflow flaps were located within the homeowners’ units and on private property.” This reveals a critical insight: the HOA made a calculated, legally-informed decision to shift liability back to homeowners to align with the CC&Rs.
This also highlights the significant difference between a formal, recorded CC&R and a simple board policy. As the HOA manager clarified, rescinding the policy did not require a homeowner vote because it was not an amendment to the core CC&Rs. A board can unilaterally change a policy, altering the financial obligations of every resident without a community-wide vote.
3. The High Cost of “Extremely Unfortunate” Timing
The timing of the sewage backup, occurring just after the policy change, was a devastating coincidence for the homeowner. The administrative law judge acknowledged this directly in the final decision, stating:
It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.
Compounding the issue was a dispute over communication. The petitioner claimed she “was not notified of the rescission.” In her efforts to be covered, she even gathered 97 signatures on a “Grassroots petition” from her neighbors. The petitioner claimed she received no substantive response from the board regarding her repair claim until her attorney sent a formal letter on May 22, 2019. The HOA countered this, stating that notice of the policy change had been sent to homeowners via both email and postcards.
This takeaway is impactful because it demonstrates how quickly a homeowner’s rights and financial obligations can change. A simple board decision, potentially missed in a stack of mail or an overlooked email, can result in thousands of dollars in unexpected costs.
4. The Burden of Proof Is on the Homeowner, Not the HOA
In any legal dispute, one side has the “burden of proof”—the responsibility to convince the judge that their claim is true. In this HOA case, that burden fell entirely on the petitioner, Jennie Bennett.
The legal standard required her to prove her case by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient to persuade a judge that a claim is more likely true than not. The legal decision provides a clear definition:
“[t]he greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ultimately, the judge concluded that the homeowner did not meet this standard. The final order states, “Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.” This underscores a critical point: when a homeowner challenges an HOA, it is their responsibility to build the winning case with convincing evidence.
Conclusion: Know Your Documents, Know Your Property Lines
The overarching lesson from Jennie Bennett’s experience is that in an HOA, the fine print matters immensely. The precise wording of the governing documents and, as this case proves, the exact location of property lines are paramount. A board policy you rely on today could be gone tomorrow, and a repair you assume is a community responsibility could be deemed yours based on a measurement of inches.
This case serves as a powerful reminder for all homeowners to be proactive. Read your CC&Rs, pay attention to all communications from your board, and understand the difference between binding covenants and changeable policies. It all comes down to one final, critical question: Do you know exactly where your maintenance responsibilities end and your HOA’s begin?
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019002-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-02-26
Administrative Law Judge
Antara Nath Rivera
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Jennie Bennett
Counsel
Maxwell Riddiough
Respondent
Catalina Del Rey Homeowners Association
Counsel
Nathan Tennyson
Alleged Violations
CC&Rs Sections 12(c) and 12(h)(1)
Outcome Summary
The Administrative Law Judge ordered that Petitioner Jennie Bennett's Petition be dismissed because Petitioner failed to establish by a preponderance of the evidence that Respondent violated the cited sections of the CC&Rs.
Why this result: Petitioner failed to meet the burden of proof that the backflow flap was a common element maintenance responsibility under CC&Rs Sections 12(c) or 12(h)(1).
Key Issues & Findings
Violation of community documents regarding maintenance responsibility for sewage backflow flap.
Petitioner asserted the HOA violated CC&Rs Sections 12(c) and 12(h)(1) by refusing to pay for repairs to a malfunctioning backflow flap that caused a sewage overflow, arguing the HOA was responsible for maintenance.
Briefing Document: Jennie Bennett vs. Catalina Del Rey Homeowners Association
Executive Summary
This document synthesizes the findings, arguments, and conclusions from the Administrative Law Judge (ALJ) Decision in case number 20F-H2019002-REL-RHG, concerning a dispute between homeowner Jennie Bennett (Petitioner) and the Catalina Del Rey Homeowners Association (Respondent).
The core of the dispute was the financial responsibility for repairing a malfunctioning sewage backflow valve that caused an overflow at the petitioner’s residence. The petitioner argued that the HOA violated its Covenants, Conditions, Restrictions and Easements (CC&Rs), specifically Sections 12(c) and 12(h)(1), by refusing to cover the repair costs. The petitioner’s claim was complicated by the fact that the HOA had, just two weeks prior to the incident, rescinded a “Sewer Maintenance Policy” that had previously addressed such issues. The petitioner stated she was not notified of this rescission.
The respondent contended that the backflow valve was located on the petitioner’s private property, not in a common area, making its maintenance the petitioner’s responsibility under Section 15 of the CC&Rs. The HOA asserted that the 2017 policy was rescinded precisely because legal guidance confirmed this distinction. The HOA also maintained that notice of the rescission was sent to all homeowners.
The ALJ ultimately ruled in favor of the respondent, dismissing the petitioner’s petition. The decision concluded that the petitioner failed to meet the burden of proof—a preponderance of the evidence—to establish that the backflow valve was a common element covered by the cited CC&R sections. The evidence, including a plat map and photos, demonstrated the valve was on the petitioner’s private property. While the timing of the policy rescission was deemed “extremely unfortunate,” the ALJ found that once rescinded, the HOA was no longer obligated to share repair costs.
I. Case Overview
• Case Name: Jennie Bennett, Petitioner, vs. Catalina Del Rey Homeowners Association, Respondent.
• Case Number: 20F-H2019002-REL-RHG
• Forum: Arizona Office of Administrative Hearings
• Administrative Law Judge: Antara Nath Rivera
• Hearing Date: February 7, 2020
• Decision Date: February 26, 2020
• Core Allegation: The petitioner alleged that the HOA violated community documents, specifically Sections 12(c) and 12(h)(1) of the CC&Rs.
II. Central Dispute and Timeline of Events
The central issue was whether the HOA was responsible for the cost of repairing a malfunctioning sewage backflow flap on the petitioner’s property.
• March 2017: The HOA adopts a “Sewer Maintenance Policy” to outline processes for sewage maintenance.
• February 13, 2019: The HOA Board rescinds the Sewer Maintenance Policy.
• March 3, 2019: Petitioner Jennie Bennett experiences a sewage overflow at her residence due to a malfunctioning backflow valve.
• March – May 2019: The petitioner brings her concerns to the HOA board at multiple meetings but receives no response.
• May 22, 2019: The HOA responds to the petitioner after receiving a letter from her attorney.
• July 10, 2019: The petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.
III. Petitioner’s Position and Arguments (Jennie Bennett)
The petitioner, a resident for 20 years, argued that the HOA was liable for the repair costs based on the following points:
• CC&R Violation: The refusal to pay for the repair constituted a violation of Sections 12(c) and 12(h)(1) of the CC&Rs, which pertain to the HOA’s duty to maintain sewer lines and common elements.
• Lack of Notice: The petitioner testified she was not notified of the policy rescission on February 13, 2019. The sewage overflow occurred just two weeks later, and upon reporting it, she was informed by a neighbor that the HOA had historically covered such issues.
• Procedural Failure: The HOA failed to address her concerns at the March, April, or May board meetings, only engaging after her attorney intervened.
• Community Support: The petitioner collected 97 signatures on a grassroots petition asking the HOA to cover the repair due to the short time frame between the policy rescission and the incident, and the lack of notice. The petition stated: “I am asking to be covered because of the 2 week time frame and no notice. I agree with being covered by the HOA for the flap.”
IV. Respondent’s Position and Arguments (Catalina Del Rey HOA)
The HOA, represented by community manager Vanessa Lubinsky of Cadden Community Management, presented a defense centered on the distinction between private and common property.
• Private Property Responsibility: The HOA’s primary argument was that the backflow flap was located on the petitioner’s private property and was therefore her responsibility to maintain under Section 15 of the CC&Rs, which governs utilities like plumbing within a homeowner’s lot.
• Evidence of Location: The respondent submitted a plat map and photographs as evidence. The photos illustrated that the backflow flap was located “next to Petitioner’s walk up to her front door,” well within her property lines and not on common elements.
• Plumbing vs. Sewer Issue: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue,” because of its location on private property.
• Rationale for Policy Change: The 2017 Sewer Maintenance Policy was rescinded after the HOA received “additional legal guidance” confirming that backflow flaps were within homeowners’ units and thus their responsibility under Section 15.
• Notice and Procedure: Ms. Lubinsky testified that notice of the rescission was issued to homeowners via both email and postal mail (postcards). She clarified that the rescission was a board decision that did not require a homeowner vote, as it was not an amendment to the CC&Rs.
V. Relevant Sections of the CC&Rs
The dispute hinged on the interpretation of the following sections of the Declaration of Covenants, Conditions, Restrictions and Easements.
Section
Quoted Text from the Decision
Section 12(c)
“The Association shall maintain and landscape all front and side years open to the street, and shall maintain sewer lines, sidewalks, walkways, brick trim, streets and common recreation areas. …The words “repair or maintain” shall not be construed that the Association shall repair or maintain any individual lot owner’s roof or similar structure.”
Section 12(h)(1)
“Each such lot will be subject to assessments and the owner thereof shall pay to the Associations assessments as follows: Such lots pro rata share of the actual cost to the Association of all repair, maintenance, safety and control of common elements, including but not limited to maintenance of walkways, sidewalks, streets and sewers, care of lawns and landscaping in common areas and front and side yards of residences… .”
Section 15
(Described, not quoted) This section provides that the homeowner is responsible for the maintenance of utilities such as electricity and plumbing on their private property, similar to a single-family residence.
VI. Administrative Law Judge’s Findings and Ruling
The ALJ’s decision was based on the petitioner’s failure to meet the required burden of proof.
• Burden of Proof: The petitioner was required to establish the HOA’s violation by a “preponderance of the evidence,” meaning proof that convinces the trier of fact the contention is more probably true than not.
• Factual Determination: The judge found that the evidence, specifically the photos and plat map, demonstrated conclusively that the backflow flap was on the petitioner’s private property near her front door.
• Conclusion on CC&Rs: Because the flap was determined not to be located within a common area, the petitioner failed to establish that it fell under the purview of Sections 12(c) or 12(h)(1). Therefore, she failed to prove the HOA had a responsibility to repair it under those sections.
• Effect of Policy Rescission: The judge acknowledged, “It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.” However, the ruling stated that once the policy was rescinded, the HOA “was not obligated to share the cost of repairs.”
• Final Order: “IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.” The order is binding on the parties, with any appeal required to be filed with the superior court within thirty-five days of service.
Study Guide – 20F-H2019002-REL-RHG
Study Guide: Bennett v. Catalina Del Rey Homeowners Association
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case text.
1. Who were the Petitioner and the Respondent in this case, and what was the legal case number?
2. What specific sections of the community documents did Petitioner Jennie Bennett allege the Respondent had violated?
3. Describe the incident that prompted the dispute and the date on which it occurred.
4. What was the “Sewer Maintenance Policy,” when was it adopted, and when was it rescinded?
5. According to the Respondent’s manager, Vanessa Lubinsky, why was the repair Jennie Bennett’s financial responsibility?
6. What evidence did the Respondent present to prove the location of the malfunctioning backflow flap?
7. What steps did Jennie Bennett take to rally support from her neighbors after the Respondent did not address her concerns?
8. What is the legal standard for the burden of proof in this case, and which party does it fall on?
9. According to Section 12(c) of the CC&Rs, what specific areas is the Homeowners Association responsible for maintaining?
10. What was the final ruling, or “Order,” issued by the Administrative Law Judge in this case?
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Answer Key
1. The Petitioner was Jennie Bennett, represented by attorney Maxwell Riddiough. The Respondent was the Catalina Del Rey Homeowners Association, represented by attorney Nathan Tennyson. The case number was 20F-H2019002-REL-RHG.
2. The Petitioner alleged that the Respondent violated Sections 12(c) and 12(h)(1) of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). This was noted as a single-issue petition.
3. On or about March 3, 2019, the Petitioner experienced a sewage overflow into her house. The overflow was caused by malfunctioning backflow valves.
4. The Sewer Maintenance Policy was a policy adopted in March 2017 to outline the process for sewage maintenance issues. It was rescinded by the HOA Board on February 13, 2019, shortly before the Petitioner’s incident.
5. Vanessa Lubinsky testified that the issue was the Petitioner’s responsibility because the malfunctioning backflow flap was located on her private property. Under Section 15 of the CC&Rs, homeowners are responsible for the maintenance of their own plumbing, electricity, and other utilities.
6. The Respondent presented a plat map, which specified all property lines, and photos. This evidence illustrated that the backflow flap was located inside the lines of the Petitioner’s private property, next to the walk-up to her front door, and not on common elements.
7. The Petitioner obtained 97 signatures on a “Grassroots petition.” The petition explained her situation and argued that she should be covered by the HOA for the repair due to the short time between the policy rescission and her incident, and because she had not received written notice.
8. The legal standard is “preponderance of the evidence,” which means the proof must convince the trier of fact that the contention is more probably true than not. The burden of proof fell on the Petitioner, Jennie Bennett, to establish that the Respondent committed the alleged violations.
9. Section 12(c) states the Association is responsible for maintaining and landscaping front and side yards open to the street. It also specifies the Association’s duty to maintain sewer lines, sidewalks, walkways, brick trim, streets, and common recreation areas.
10. The Administrative Law Judge ordered that Petitioner Jennie Bennett’s Petition be dismissed. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent had violated the CC&Rs.
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Essay Questions
Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a detailed essay response for each prompt, using specific evidence and arguments from the provided text to support your conclusions.
1. Analyze and contrast the core arguments presented by the Petitioner, Jennie Bennett, and the Respondent, Catalina Del Rey Homeowners Association. How did each party use the CC&Rs and the Sewer Maintenance Policy to support their position?
2. Discuss the significance of the Sewer Maintenance Policy’s rescission. Evaluate the timing of the rescission relative to the Petitioner’s incident and the arguments made regarding notification to homeowners.
3. Explain the legal concept of “preponderance of the evidence” as defined in the case document. How did Administrative Law Judge Antara Nath Rivera apply this standard to the evidence presented by both parties to reach a final decision?
4. Evaluate the role of physical evidence, specifically the plat map and photographs, in the outcome of this hearing. Why was determining the precise location of the backflow flap the central issue of the case?
5. From an ethical and community governance perspective, discuss the actions of the Catalina Del Rey Homeowners Association. Consider their decision to rescind the policy, the method of notification, and their initial responses (or lack thereof) to Ms. Bennett’s requests at the board meetings.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Antara Nath Rivera, who presides over hearings at the Office of Administrative Hearings and makes legal decisions and orders.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.
Common Elements
Areas within the HOA community that are not part of an individual homeowner’s private property and are maintained by the Association. Examples from the text include walkways, sidewalks, streets, sewers, and recreation areas.
Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs)
The governing legal documents that outline the rules, obligations, and restrictions for a planned community. The Petitioner alleged a violation of Sections 12(c) and 12(h)(1) of these documents.
Homeowners Association (HOA)
The community organization, Catalina Del Rey Homeowners Association, responsible for managing and maintaining the common elements of a planned community as defined by the CC&Rs.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was homeowner Jennie Bennett.
Plat Map
A map, drawn to scale, showing the divisions of a piece of land. In this case, it was used as evidence to specify all property lines, including the Petitioner’s.
Preponderance of the Evidence
The evidentiary standard required to win the case, defined as proof that convinces the trier of fact that a contention is “more probably true than not.” It is described as the “greater weight of the evidence.”
Rescission
The act of canceling or revoking a policy or decision. The HOA Board rescinded its Sewer Maintenance Policy on February 13, 2019.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Catalina Del Rey Homeowners Association.
Blog Post – 20F-H2019002-REL-RHG
A Homeowner’s Sewage Nightmare: 5 Surprising Lessons from a Losing Battle with an HOA
Introduction: The Dreaded HOA Letter
For many homeowners, the greatest fear isn’t a storm or a failing appliance; it’s a sudden, catastrophic repair bill. This anxiety is often magnified for those living in a planned community, where another layer of complexity—the Homeowners Association (HOA)—governs every aspect of property maintenance. A dispute with the HOA can turn a straightforward repair into a frustrating and expensive legal battle.
The case of Jennie Bennett, a resident in her home for 20 years, and the Catalina Del Rey Homeowners Association is a stark cautionary tale. After a sewage overflow caused by a malfunctioning backflow valve, Ms. Bennett found herself in a dispute with her HOA over who should pay for the repair, claiming the association had violated Sections 12(c) and 12(h)(1) of its governing documents. The resulting legal decision reveals critical, and often surprising, insights into how HOA rules are interpreted and enforced. This article breaks down the five most impactful lessons from her losing battle.
1. Location is Everything: The Critical Line Between Private and Common Property
The single most important factor in the judge’s decision was the physical location of the broken part. The entire case hinged on a simple question: was the malfunctioning backflow flap on Jennie Bennett’s private property or in an HOA-maintained common area?
The HOA argued that the plat map and photos proved the flap was located “next to Petitioner’s walk up to her front door,” placing it squarely inside her private property line. While the homeowner claimed the HOA was responsible for “sewer lines” under Sections 12(c) and 12(h)(1) of the Covenants, Conditions, and Restrictions (CC&Rs), this argument failed. The HOA’s manager, Vanessa Lubinsky, perfectly synthesized the association’s legal position when she “opined that the backflow flap was a plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”
Because the backflow flap was deemed to be on private property, it fell under Section 15 of the CC&Rs. This clause stipulated that the homeowner was responsible for the maintenance of their own plumbing, electricity, and other utilities—much like the owner of a single-family residence. The specific location of the failure, not the general nature of the system it belonged to, determined financial responsibility.
2. An HOA ‘Policy’ Can Vanish Overnight
For nearly two years, from March 2017 to February 2019, the Catalina Del Rey HOA had a “Sewer Maintenance Policy” in place. This policy, which had been in effect for nearly two years, outlined a process for handling sewage maintenance; however, once rescinded, the HOA was no longer obligated to share in repair costs. The Board of Directors rescinded this policy on February 13, 2019. The petitioner’s sewage overflow occurred on March 3, 2019—less than three weeks later.
Crucially, the HOA’s action was not arbitrary. According to case testimony, the board rescinded the policy because, “After Respondent received additional legal guidance, it was determined that the backflow flaps were located within the homeowners’ units and on private property.” This reveals a critical insight: the HOA made a calculated, legally-informed decision to shift liability back to homeowners to align with the CC&Rs.
This also highlights the significant difference between a formal, recorded CC&R and a simple board policy. As the HOA manager clarified, rescinding the policy did not require a homeowner vote because it was not an amendment to the core CC&Rs. A board can unilaterally change a policy, altering the financial obligations of every resident without a community-wide vote.
3. The High Cost of “Extremely Unfortunate” Timing
The timing of the sewage backup, occurring just after the policy change, was a devastating coincidence for the homeowner. The administrative law judge acknowledged this directly in the final decision, stating:
It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.
Compounding the issue was a dispute over communication. The petitioner claimed she “was not notified of the rescission.” In her efforts to be covered, she even gathered 97 signatures on a “Grassroots petition” from her neighbors. The petitioner claimed she received no substantive response from the board regarding her repair claim until her attorney sent a formal letter on May 22, 2019. The HOA countered this, stating that notice of the policy change had been sent to homeowners via both email and postcards.
This takeaway is impactful because it demonstrates how quickly a homeowner’s rights and financial obligations can change. A simple board decision, potentially missed in a stack of mail or an overlooked email, can result in thousands of dollars in unexpected costs.
4. The Burden of Proof Is on the Homeowner, Not the HOA
In any legal dispute, one side has the “burden of proof”—the responsibility to convince the judge that their claim is true. In this HOA case, that burden fell entirely on the petitioner, Jennie Bennett.
The legal standard required her to prove her case by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient to persuade a judge that a claim is more likely true than not. The legal decision provides a clear definition:
“[t]he greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ultimately, the judge concluded that the homeowner did not meet this standard. The final order states, “Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.” This underscores a critical point: when a homeowner challenges an HOA, it is their responsibility to build the winning case with convincing evidence.
Conclusion: Know Your Documents, Know Your Property Lines
The overarching lesson from Jennie Bennett’s experience is that in an HOA, the fine print matters immensely. The precise wording of the governing documents and, as this case proves, the exact location of property lines are paramount. A board policy you rely on today could be gone tomorrow, and a repair you assume is a community responsibility could be deemed yours based on a measurement of inches.
This case serves as a powerful reminder for all homeowners to be proactive. Read your CC&Rs, pay attention to all communications from your board, and understand the difference between binding covenants and changeable policies. It all comes down to one final, critical question: Do you know exactly where your maintenance responsibilities end and your HOA’s begin?
