Tag Archives: Condominium

Ronna Biesecker, v. 6100 Fifth Condominium Homeowners Association,

Posted on June 26, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	20F-H2020050-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-06-25
Administrative Law Judge	Tammy L. Eigenheer
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Ronna Biesecker	Counsel	—
Respondent	6100 Fifth Condominium Homeowners Association	Counsel	—

Alleged Violations

A.R.S. § 33-1247 and CC&Rs § 10(c)

Outcome Summary

The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.

Why this result: Petitioner failed to meet the burden of proof, as evidence suggested the water leak was caused by the sliding glass door of the unit above, not a flaw in the common elements.

Key Issues & Findings

Failure to maintain all Common Elements (Water Leak Dispute)

Petitioner alleged the Respondent HOA failed to maintain Common Elements, leading to water leaks in her unit. Respondent denied the violation, asserting the leak originated from the upstairs unit’s sliding doors or track assemblies, which are the responsibility of that unit owner.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 33-1247
• CC&Rs § 10(c)
• Article II.E, Section 1 of the Bylaws
• Article C of the CC&Rs

Analytics Highlights

Topics: condominium, maintenance dispute, common elements, water damage, burden of proof

Additional Citations:

• A.R.S. § 33-1247
• CC&Rs § 10(c)
• A.R.S. § 32-2199.01
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)
• A.A.C. R2-19-119(B)(2)
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
• Vazanno v. Superior Court

Audio Overview

Decision Documents

20F-H2020050-REL Decision – 802352.pdf

Uploaded 2025-10-08T07:11:40 (103.2 KB)

Ronna Biesecker, v. 6100 Fifth Condominium Homeowners Association,

Posted on June 26, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	20F-H2020050-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-06-25
Administrative Law Judge	Tammy L. Eigenheer
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Ronna Biesecker	Counsel	—
Respondent	6100 Fifth Condominium Homeowners Association	Counsel	—

Alleged Violations

A.R.S. § 33-1247 and CC&Rs § 10(c)

Outcome Summary

The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.

Why this result: Petitioner failed to meet the burden of proof, as evidence suggested the water leak was caused by the sliding glass door of the unit above, not a flaw in the common elements.

Key Issues & Findings

Failure to maintain all Common Elements (Water Leak Dispute)

Petitioner alleged the Respondent HOA failed to maintain Common Elements, leading to water leaks in her unit. Respondent denied the violation, asserting the leak originated from the upstairs unit’s sliding doors or track assemblies, which are the responsibility of that unit owner.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 33-1247
• CC&Rs § 10(c)
• Article II.E, Section 1 of the Bylaws
• Article C of the CC&Rs

Analytics Highlights

Topics: condominium, maintenance dispute, common elements, water damage, burden of proof

Additional Citations:

• A.R.S. § 33-1247
• CC&Rs § 10(c)
• A.R.S. § 32-2199.01
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)
• A.A.C. R2-19-119(B)(2)
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
• Vazanno v. Superior Court

Audio Overview

Decision Documents

20F-H2020050-REL Decision – 802352.pdf

Uploaded 2025-10-09T03:35:05 (103.2 KB)

John H. Kelly v. Cortez Canyon Unit Owners Association

Posted on September 13, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1919060-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-09-13
Administrative Law Judge	Jenna Clark
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John H. Kelly	Counsel	—
Respondent	Cortez Canyon Unit Owners Association	Counsel	Jonathan A. Dessaules

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.

Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.

Key Issues & Findings

Alleged violation of failure to call a special meeting to remove a board member.

Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• ARIZ. REV. STAT. § 33-1243
• ARIZ. REV. STAT. § 32-2102
• ARIZ. REV. STAT. § 32-2199 et seq.
• ARIZ. REV. STAT. § 32-2199.05
• ARIZ. REV. STAT. § 32-2199(2)
• ARIZ. REV. STAT. § 32-2199.01(A)
• ARIZ. REV. STAT. § 32-2199.01(D)
• ARIZ. REV. STAT. § 32-2199.02
• ARIZ. REV. STAT. § 41-1092 et seq.
• ARIZ. REV. STAT. § 33-1243(H)(4)
• ARIZ. REV. STAT. § 33-1243(H)(4)(c)
• ARIZ. ADMIN. CODE R2-19-119
• Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency

Additional Citations:

• ARIZ. REV. STAT. § 33-1243
• ARIZ. REV. STAT. § 32-2102
• ARIZ. REV. STAT. § 32-2199 et seq.
• ARIZ. REV. STAT. § 32-2199.05
• ARIZ. REV. STAT. § 32-2199(2)
• ARIZ. REV. STAT. § 32-2199.01(A)
• ARIZ. REV. STAT. § 32-2199.01(D)
• ARIZ. REV. STAT. § 32-2199.02
• ARIZ. REV. STAT. § 41-1092 et seq.
• ARIZ. REV. STAT. § 33-1243(H)(4)
• ARIZ. REV. STAT. § 33-1243(H)(4)(c)
• ARIZ. ADMIN. CODE R2-19-119
• Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Audio Overview

Decision Documents

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2025-10-08T07:09:21 (142.6 KB)

Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.

The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.

This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.

Case Overview

Parties Involved

Name / Entity

Details

Petitioner

John H. Kelly

A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.

Respondent

Cortez Canyon Unit Owners Association

The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.

Witness

Saundra Garcia

President of the Association’s Board of Directors.

Adjudicator

Jenna Clark

Administrative Law Judge, Arizona Office of Administrative Hearings.

Core Dispute

The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.

Legal and Governance Framework

The dispute was governed by Arizona state law and the Association’s own internal documents.

• Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.

• Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.

• Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.

Petitioner’s Position and Evidence (John H. Kelly)

Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:

• Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.

• Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.

• Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.

• Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.

• Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.

• Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”

Respondent’s Position and Evidence (Cortez Canyon Association)

The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.

• Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.

• Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.

• Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:

◦ 11 signatures were removed because they were from non-owner renters or occupants.

◦ 6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).

◦ 6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.

• Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.

• Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.

Administrative Law Judge’s Findings and Ruling

The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.

Conclusions of Law

• Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

• Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.

• Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”

• Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”

Final Order

Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:

IT IS ORDERED that Petitioner’s petition be denied.

John H. Kelly v. Cortez Canyon Unit Owners Association

Posted on September 13, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1919060-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-09-13
Administrative Law Judge	Jenna Clark
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John H. Kelly	Counsel	—
Respondent	Cortez Canyon Unit Owners Association	Counsel	Jonathan A. Dessaules

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.

Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.

Key Issues & Findings

Alleged violation of failure to call a special meeting to remove a board member.

Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• ARIZ. REV. STAT. § 33-1243
• ARIZ. REV. STAT. § 32-2102
• ARIZ. REV. STAT. § 32-2199 et seq.
• ARIZ. REV. STAT. § 32-2199.05
• ARIZ. REV. STAT. § 32-2199(2)
• ARIZ. REV. STAT. § 32-2199.01(A)
• ARIZ. REV. STAT. § 32-2199.01(D)
• ARIZ. REV. STAT. § 32-2199.02
• ARIZ. REV. STAT. § 41-1092 et seq.
• ARIZ. REV. STAT. § 33-1243(H)(4)
• ARIZ. REV. STAT. § 33-1243(H)(4)(c)
• ARIZ. ADMIN. CODE R2-19-119
• Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency

Additional Citations:

• ARIZ. REV. STAT. § 33-1243
• ARIZ. REV. STAT. § 32-2102
• ARIZ. REV. STAT. § 32-2199 et seq.
• ARIZ. REV. STAT. § 32-2199.05
• ARIZ. REV. STAT. § 32-2199(2)
• ARIZ. REV. STAT. § 32-2199.01(A)
• ARIZ. REV. STAT. § 32-2199.01(D)
• ARIZ. REV. STAT. § 32-2199.02
• ARIZ. REV. STAT. § 41-1092 et seq.
• ARIZ. REV. STAT. § 33-1243(H)(4)
• ARIZ. REV. STAT. § 33-1243(H)(4)(c)
• ARIZ. ADMIN. CODE R2-19-119
• Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Audio Overview

Decision Documents

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2025-10-09T03:34:17 (142.6 KB)

Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.

The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.

This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.

Case Overview

Parties Involved

Name / Entity

Details

Petitioner

John H. Kelly

A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.

Respondent

Cortez Canyon Unit Owners Association

The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.

Witness

Saundra Garcia

President of the Association’s Board of Directors.

Adjudicator

Jenna Clark

Administrative Law Judge, Arizona Office of Administrative Hearings.

Core Dispute

The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.

Legal and Governance Framework

The dispute was governed by Arizona state law and the Association’s own internal documents.

• Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.

• Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.

• Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.

Petitioner’s Position and Evidence (John H. Kelly)

Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:

• Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.

• Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.

• Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.

• Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.

• Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.

• Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”

Respondent’s Position and Evidence (Cortez Canyon Association)

The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.

• Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.

• Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.

• Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:

◦ 11 signatures were removed because they were from non-owner renters or occupants.

◦ 6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).

◦ 6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.

• Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.

• Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.

Administrative Law Judge’s Findings and Ruling

The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.

Conclusions of Law

• Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

• Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.

• Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”

• Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”

Final Order

Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:

IT IS ORDERED that Petitioner’s petition be denied.

John A Sellers v. Rancho Madera Condominium Association

Posted on May 10, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918010-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-10
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John A Sellers	Counsel	—
Respondent	Rancho Madera Condominium Association	Counsel	Edward D. O'Brien

Alleged Violations

CC&Rs § 3.10

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.

Key Issues & Findings

Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.

Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.

Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Analytics Highlights

Topics: HOA, CC&R, Drainage, Maintenance, Enforcement, Condominium

Additional Citations:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Audio Overview

Decision Documents

19F-H1918010-REL-RHG Decision – 706533.pdf

Uploaded 2025-10-08T07:07:14 (42.2 KB)

19F-H1918010-REL-RHG Decision – 707530.pdf

Uploaded 2025-10-08T07:07:15 (111.5 KB)

Briefing Document: Sellers vs. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.

The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.

Case Chronology and Procedural History

The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.

Details

Aug 23, 2018

Petition Filed

John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.

Oct 23, 2018

Hearing Vacated

An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.

Nov 5 & Dec 12, 2018

Initial Hearing

Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.

Dec 26, 2018

Initial Decision

ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.

Feb 1, 2019

Rehearing Requested

The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.

Feb 22, 2019

Rehearing Granted

The Commissioner of the Department of Real Estate granted the request for a rehearing.

Apr 15, 2019

Rehearing Held

A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.

May 7, 2019

Post-Hearing Filing Stricken

The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.

May 10, 2019

Final Decision on Rehearing

ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.

Core Dispute Analysis

Petitioner’s Position and Allegations

• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.

• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.

• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.

• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”

Respondent’s Position and Actions

• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.

• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:

◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.

◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.

◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.

◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.

◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.

Key CC&R Provisions and Legal Interpretation

The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.

• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.

◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.

• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.

◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.

• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.

◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.

Judicial Findings and Rulings

Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)

• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.

• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.

• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.

Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)

• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.

• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.

Notable Evidence

A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

John A Sellers v. Rancho Madera Condominium Association

Posted on May 10, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918010-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-10
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John A Sellers	Counsel	—
Respondent	Rancho Madera Condominium Association	Counsel	Edward D. O'Brien

Alleged Violations

CC&Rs § 3.10

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.

Key Issues & Findings

Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.

Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.

Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Analytics Highlights

Topics: HOA, CC&R, Drainage, Maintenance, Enforcement, Condominium

Additional Citations:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Audio Overview

Decision Documents

19F-H1918010-REL-RHG Decision – 706533.pdf

Uploaded 2025-10-09T03:33:29 (42.2 KB)

19F-H1918010-REL-RHG Decision – 707530.pdf

Uploaded 2025-10-09T03:33:29 (111.5 KB)

Briefing Document: Sellers vs. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.

The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.

Case Chronology and Procedural History

The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.

Details

Aug 23, 2018

Petition Filed

John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.

Oct 23, 2018

Hearing Vacated

An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.

Nov 5 & Dec 12, 2018

Initial Hearing

Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.

Dec 26, 2018

Initial Decision

ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.

Feb 1, 2019

Rehearing Requested

The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.

Feb 22, 2019

Rehearing Granted

The Commissioner of the Department of Real Estate granted the request for a rehearing.

Apr 15, 2019

Rehearing Held

A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.

May 7, 2019

Post-Hearing Filing Stricken

The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.

May 10, 2019

Final Decision on Rehearing

ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.

Core Dispute Analysis

Petitioner’s Position and Allegations

• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.

• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.

• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.

• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”

Respondent’s Position and Actions

• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.

• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:

◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.

◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.

◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.

◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.

◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.

Key CC&R Provisions and Legal Interpretation

The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.

• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.

◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.

• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.

◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.

• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.

◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.

Judicial Findings and Rulings

Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)

• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.

• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.

• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.

Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)

• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.

• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.

Notable Evidence

A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

John A Sellers vs. Rancho Madera Condominium Association

Posted on December 26, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918010-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-10
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John A Sellers	Counsel	—
Respondent	Rancho Madera Condominium Association	Counsel	Edward D. O'Brien

Alleged Violations

CC&Rs § 3.10

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.

Key Issues & Findings

Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.

Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.

Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Analytics Highlights

Topics: HOA, CC&R, Drainage, Maintenance, Enforcement, Condominium

Additional Citations:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Audio Overview

Decision Documents

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2025-10-08T07:07:07 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2025-10-08T07:07:07 (129.5 KB)

John A Sellers vs. Rancho Madera Condominium Association

Posted on December 26, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918010-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-10
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John A Sellers	Counsel	—
Respondent	Rancho Madera Condominium Association	Counsel	Edward D. O'Brien

Alleged Violations

CC&Rs § 3.10

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.

Key Issues & Findings

Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.

Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.

Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Analytics Highlights

Topics: HOA, CC&R, Drainage, Maintenance, Enforcement, Condominium

Additional Citations:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Audio Overview

Decision Documents

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2025-10-09T03:33:27 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2025-10-09T03:33:27 (129.5 KB)

George E Lord vs. The Boulders at La Reserve Condominium Association

Posted on December 17, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918013-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-12-17
Administrative Law Judge	Tammy L. Eigenheer
Outcome	no
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	George E Lord	Counsel	—
Respondent	The Boulders at La Reserve Condominium Association	Counsel	Maria Kupillas

Alleged Violations

A.R.S. § 33-1242, A.R.S. § 33-1260.01, and CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition in its entirety, concluding that the Petitioner failed to establish by a preponderance of the evidence that the Respondent Condominium Association violated A.R.S. § 33-1242, A.R.S. § 33-1260.01, or the association's CC&Rs.

Why this result: Petitioner failed to establish a violation of any statute or covenant alleged. The core findings supported the HOA's position that the lessee was engaging in prohibited business activity and subletting, and that the charged attorney fees were permissible.

Key Issues & Findings

Alleged violations concerning notice procedures, leasing restrictions, prohibited business use, and excessive fees.

Petitioner alleged Respondent violated A.R.S. § 33-1242 by failing to include proper citations in violation notices, violated A.R.S. § 33-1260.01 and CC&Rs by imposing illegal restrictions on occupancy dates and prohibiting tenant guests, and violated fee limits under A.R.S. § 33-1260.01(E) by charging $250 in attorney fees.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 33-1242
• A.R.S. § 33-1260.01
• A.R.S. § 33-1258
• A.A.C. R2-19-119
• CC&Rs Section 7.21
• CC&Rs Section 7.3

Analytics Highlights

Topics: condominium, HOA dispute, leasing restrictions, short-term rental, business use, notice procedure, attorney fees

Additional Citations:

• A.R.S. § 33-1242
• A.R.S. § 33-1260.01
• A.R.S. § 33-1258
• A.A.C. R2-19-119
• CC&Rs Section 7.21
• CC&Rs Section 7.3

Audio Overview

Decision Documents

19F-H1918013-REL Decision – 677039.pdf

Uploaded 2025-10-08T07:07:17 (115.9 KB)

19F-H1918013-REL Decision – 677040.pdf

Uploaded 2025-10-08T07:07:18 (47.9 KB)

Briefing: Administrative Law Judge Decision in Lord v. The Boulders at La Reserve Condominium Association

Executive Summary

This document synthesizes the findings and conclusions of the Administrative Law Judge in Case No. 19F-H1918013-REL, a dispute between unit owner George E. Lord (Petitioner) and The Boulders at La Reserve Condominium Association (Respondent). The Petitioner alleged that the Respondent violated multiple Arizona statutes and its own governing documents by suspending amenity access and levying fees related to a complex leasing arrangement. The Judge ultimately dismissed the petition in its entirety, finding that the Petitioner failed to prove any violations. The central issue revolved around the Petitioner’s tenant, Barrie Shepley, who leased three units to house clients for his commercial fitness camps. The Judge concluded this arrangement constituted a prohibited business use and a form of subletting, justifying the Association’s enforcement actions, including the suspension of amenities. The ruling affirmed the Association’s right to regulate occupancy to prevent an “itinerant population” and upheld its procedural actions regarding violation notices and the charging of attorney’s fees.

——————————————————————————–

Case Overview

This matter was brought before the Arizona Office of Administrative Hearings to resolve a dispute between a condominium unit owner and the homeowners association (HOA) regarding alleged violations of leasing policies and state law.

Case Number

19F-H1918013-REL

Petitioner

George E. Lord

Respondent

The Boulders at La Reserve Condominium Association

Hearing Date

November 26, 2018

Decision Date

December 17, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Procedural Background

1. On August 31, 2018, George Lord filed a petition with the Arizona Department of Real Estate alleging that The Boulders HOA had violated Arizona Revised Statutes (A.R.S.) § 33-1242, A.R.S. § 33-1260.01, and the association’s Covenants, Conditions, and Restrictions (CC&Rs).

2. The Respondent filed an answer on September 25, 2018, denying all allegations.

3. A hearing was conducted by the Office of Administrative Hearings on November 26, 2018, where both parties presented evidence and arguments.

——————————————————————————–

Core Dispute and Factual Background

The dispute originated from leases for three condominium units owned by the Petitioner. The central conflict was whether the occupants were legitimate guests of a primary lessee or participants in a short-term rental business that violated the community’s governing documents.

The Leasing Arrangement

• Lessee: The Petitioner, George Lord, leased two units to Barrie Shepley on December 4, 2017, for a term of March 7, 2018, to April 30, 2018. A third lease was transferred to a unit owned by the Petitioner on January 15, 2018.

• Lessee’s Business: Mr. Shepley operated a Canadian fitness business named “Personal Best,” which offered training camps in the Tucson area.

• Use of Units: The leased units at The Boulders were used to provide accommodations for clients attending six fitness camps scheduled between March 8 and April 29, 2018.

• Pricing Structure: The cost of the camp varied based on the living arrangements. The price per person decreased as more campers shared a single condo:

◦ Four campers per condo: $950.00 each

◦ Three campers per condo: $1,075.00 each

◦ Two campers per condo: $1,299.00 each

• It was noted that no fitness instruction was scheduled to occur on The Boulders’ property.

HOA Intervention and Consequences

• Initial Action: On March 9, 2018, The Boulders’ Community Manager, Danielle Morris, emailed the Petitioner expressing concern that Mr. Shepley was “subleasing your units out to different people in violation of the CC&R’s” for terms less than the 30-day minimum. The HOA deactivated the amenity access cards for all three units.

• Escalation: After email exchanges where the Petitioner argued the occupants were merely “guests,” the HOA maintained that it required the names of all occupants and proof of a minimum 30-day stay for each.

• Notices of Violation: On March 18, 2018, the Petitioner received formal Notices of Violations for the three units. The notices stated that amenity access was suspended because the HOA had not been provided “the names of the adult occupants residing in the unit or the timeframes of the occupant’s stay.” The notice warned that a $300 fine could be applied.

• Legal Fees: On March 22, 2018, the Petitioner received a letter from the Respondent’s counsel asserting the HOA’s legal position and stating that $250.00 in attorney’s fees had already been incurred and were due from the Petitioner.

• Financial Loss: On April 2, 2018, Mr. Shepley canceled the remainder of the leases due to the lack of amenity access for his clients. The Petitioner claimed a resulting loss of $6,900.00 in rental income for April 2018.

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Judicial Findings and Legal Conclusions

The Administrative Law Judge analyzed three distinct allegations made by the Petitioner and found that he failed to meet the burden of proof for any of them. The petition was ultimately dismissed.

Alleged Violation 1: A.R.S. § 33-1242 (Adequacy of Violation Notice)

• Petitioner’s Claim: The HOA violated the statute because its initial Notices of Violations failed to cite the specific provision of the governing documents that had allegedly been violated.

• Judge’s Conclusion: The Judge found no violation. A.R.S. § 33-1242(C) requires an association to provide the specific provision only after the unit owner has sent a written response to the initial notice via certified mail. The Petitioner admitted he did not respond to the Notices of Violations. Therefore, the HOA’s obligation to provide a specific citation was never triggered.

Alleged Violation 2: A.R.S. § 33-1260.01 & CC&Rs (Leasing and Business Use)

• Petitioner’s Claim: The HOA improperly demanded the dates of each occupant’s stay and incorrectly insisted that each occupant must stay for a minimum of 30 days. He argued that since he had a valid 30-day lease with Mr. Shepley, the occupants were simply guests.

• Governing Documents:

◦ CC&R Section 7.21: Requires all leases to be for a term of not less than 30 days.

◦ CC&R Section 7.3: Prohibits any “gainful occupation, profession, trade or other nonresidential use” in a unit if “the business activity does not involve persons coming to the Unit.”

• Judge’s Conclusion: The Judge rejected the Petitioner’s “guest” argument. The arrangement was determined to be a form of subletting for a business.

◦ The variable pricing structure, where the camp fee changed based on the number of people in a unit, demonstrated that accommodation was being sold, not merely provided to guests.

◦ Mr. Shepley was operating a business from the units in a manner that required people (his clients) to come to the unit, a direct violation of CC&R Section 7.3.

◦ The Judge noted the situation fell “between the cracks of the specific language of the statutes,” but concluded that “the spirit and purpose of the applicable rules is to allow an association to know who is in the community and to prevent an itinerant population.”

Alleged Violation 3: A.R.S. § 33-1260.01(E) (Improper Fees)

• Petitioner’s Claim: The $250 charge from the HOA’s counsel constituted an illegal fee, penalty, or assessment. The HOA’s policy allows for a $300 fine for lease violations.

• Judge’s Conclusion: The Judge found no violation. The evidence showed that the HOA had not actually assessed the $300 fine. The $250 charge was “clearly for attorney fees related to the possible collection of assessments.” The Judge stated that “Nothing in the cited statute or the CC&Rs prohibits such a charge being implemented.”

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Final Order

Based on the failure of the Petitioner to prove by a preponderance of the evidence that the Respondent violated any statutes or its CC&Rs, the Judge issued a final order:

“IT IS ORDERED that the Petition be dismissed.”

The decision is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

George E Lord vs. The Boulders at La Reserve Condominium Association

Posted on December 17, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918013-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-12-17
Administrative Law Judge	Tammy L. Eigenheer
Outcome	no
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	George E Lord	Counsel	—
Respondent	The Boulders at La Reserve Condominium Association	Counsel	Maria Kupillas

Alleged Violations

A.R.S. § 33-1242, A.R.S. § 33-1260.01, and CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition in its entirety, concluding that the Petitioner failed to establish by a preponderance of the evidence that the Respondent Condominium Association violated A.R.S. § 33-1242, A.R.S. § 33-1260.01, or the association's CC&Rs.

Why this result: Petitioner failed to establish a violation of any statute or covenant alleged. The core findings supported the HOA's position that the lessee was engaging in prohibited business activity and subletting, and that the charged attorney fees were permissible.

Key Issues & Findings

Alleged violations concerning notice procedures, leasing restrictions, prohibited business use, and excessive fees.

Petitioner alleged Respondent violated A.R.S. § 33-1242 by failing to include proper citations in violation notices, violated A.R.S. § 33-1260.01 and CC&Rs by imposing illegal restrictions on occupancy dates and prohibiting tenant guests, and violated fee limits under A.R.S. § 33-1260.01(E) by charging $250 in attorney fees.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 33-1242
• A.R.S. § 33-1260.01
• A.R.S. § 33-1258
• A.A.C. R2-19-119
• CC&Rs Section 7.21
• CC&Rs Section 7.3

Analytics Highlights

Topics: condominium, HOA dispute, leasing restrictions, short-term rental, business use, notice procedure, attorney fees

Additional Citations:

• A.R.S. § 33-1242
• A.R.S. § 33-1260.01
• A.R.S. § 33-1258
• A.A.C. R2-19-119
• CC&Rs Section 7.21
• CC&Rs Section 7.3

Audio Overview

Decision Documents

19F-H1918013-REL Decision – 677039.pdf

Uploaded 2025-10-09T03:33:32 (115.9 KB)

19F-H1918013-REL Decision – 677040.pdf

Uploaded 2025-10-09T03:33:32 (47.9 KB)

Briefing: Administrative Law Judge Decision in Lord v. The Boulders at La Reserve Condominium Association

Executive Summary

This document synthesizes the findings and conclusions of the Administrative Law Judge in Case No. 19F-H1918013-REL, a dispute between unit owner George E. Lord (Petitioner) and The Boulders at La Reserve Condominium Association (Respondent). The Petitioner alleged that the Respondent violated multiple Arizona statutes and its own governing documents by suspending amenity access and levying fees related to a complex leasing arrangement. The Judge ultimately dismissed the petition in its entirety, finding that the Petitioner failed to prove any violations. The central issue revolved around the Petitioner’s tenant, Barrie Shepley, who leased three units to house clients for his commercial fitness camps. The Judge concluded this arrangement constituted a prohibited business use and a form of subletting, justifying the Association’s enforcement actions, including the suspension of amenities. The ruling affirmed the Association’s right to regulate occupancy to prevent an “itinerant population” and upheld its procedural actions regarding violation notices and the charging of attorney’s fees.

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Case Overview

This matter was brought before the Arizona Office of Administrative Hearings to resolve a dispute between a condominium unit owner and the homeowners association (HOA) regarding alleged violations of leasing policies and state law.

Case Number

19F-H1918013-REL

Petitioner

George E. Lord

Respondent

The Boulders at La Reserve Condominium Association

Hearing Date

November 26, 2018

Decision Date

December 17, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Procedural Background

1. On August 31, 2018, George Lord filed a petition with the Arizona Department of Real Estate alleging that The Boulders HOA had violated Arizona Revised Statutes (A.R.S.) § 33-1242, A.R.S. § 33-1260.01, and the association’s Covenants, Conditions, and Restrictions (CC&Rs).

2. The Respondent filed an answer on September 25, 2018, denying all allegations.

3. A hearing was conducted by the Office of Administrative Hearings on November 26, 2018, where both parties presented evidence and arguments.

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Core Dispute and Factual Background

The dispute originated from leases for three condominium units owned by the Petitioner. The central conflict was whether the occupants were legitimate guests of a primary lessee or participants in a short-term rental business that violated the community’s governing documents.

The Leasing Arrangement

• Lessee: The Petitioner, George Lord, leased two units to Barrie Shepley on December 4, 2017, for a term of March 7, 2018, to April 30, 2018. A third lease was transferred to a unit owned by the Petitioner on January 15, 2018.

• Lessee’s Business: Mr. Shepley operated a Canadian fitness business named “Personal Best,” which offered training camps in the Tucson area.

• Use of Units: The leased units at The Boulders were used to provide accommodations for clients attending six fitness camps scheduled between March 8 and April 29, 2018.

• Pricing Structure: The cost of the camp varied based on the living arrangements. The price per person decreased as more campers shared a single condo:

◦ Four campers per condo: $950.00 each

◦ Three campers per condo: $1,075.00 each

◦ Two campers per condo: $1,299.00 each

• It was noted that no fitness instruction was scheduled to occur on The Boulders’ property.

HOA Intervention and Consequences

• Initial Action: On March 9, 2018, The Boulders’ Community Manager, Danielle Morris, emailed the Petitioner expressing concern that Mr. Shepley was “subleasing your units out to different people in violation of the CC&R’s” for terms less than the 30-day minimum. The HOA deactivated the amenity access cards for all three units.

• Escalation: After email exchanges where the Petitioner argued the occupants were merely “guests,” the HOA maintained that it required the names of all occupants and proof of a minimum 30-day stay for each.

• Notices of Violation: On March 18, 2018, the Petitioner received formal Notices of Violations for the three units. The notices stated that amenity access was suspended because the HOA had not been provided “the names of the adult occupants residing in the unit or the timeframes of the occupant’s stay.” The notice warned that a $300 fine could be applied.

• Legal Fees: On March 22, 2018, the Petitioner received a letter from the Respondent’s counsel asserting the HOA’s legal position and stating that $250.00 in attorney’s fees had already been incurred and were due from the Petitioner.

• Financial Loss: On April 2, 2018, Mr. Shepley canceled the remainder of the leases due to the lack of amenity access for his clients. The Petitioner claimed a resulting loss of $6,900.00 in rental income for April 2018.

——————————————————————————–

Judicial Findings and Legal Conclusions

The Administrative Law Judge analyzed three distinct allegations made by the Petitioner and found that he failed to meet the burden of proof for any of them. The petition was ultimately dismissed.

Alleged Violation 1: A.R.S. § 33-1242 (Adequacy of Violation Notice)

• Petitioner’s Claim: The HOA violated the statute because its initial Notices of Violations failed to cite the specific provision of the governing documents that had allegedly been violated.

• Judge’s Conclusion: The Judge found no violation. A.R.S. § 33-1242(C) requires an association to provide the specific provision only after the unit owner has sent a written response to the initial notice via certified mail. The Petitioner admitted he did not respond to the Notices of Violations. Therefore, the HOA’s obligation to provide a specific citation was never triggered.

Alleged Violation 2: A.R.S. § 33-1260.01 & CC&Rs (Leasing and Business Use)

• Petitioner’s Claim: The HOA improperly demanded the dates of each occupant’s stay and incorrectly insisted that each occupant must stay for a minimum of 30 days. He argued that since he had a valid 30-day lease with Mr. Shepley, the occupants were simply guests.

• Governing Documents:

◦ CC&R Section 7.21: Requires all leases to be for a term of not less than 30 days.

◦ CC&R Section 7.3: Prohibits any “gainful occupation, profession, trade or other nonresidential use” in a unit if “the business activity does not involve persons coming to the Unit.”

• Judge’s Conclusion: The Judge rejected the Petitioner’s “guest” argument. The arrangement was determined to be a form of subletting for a business.

◦ The variable pricing structure, where the camp fee changed based on the number of people in a unit, demonstrated that accommodation was being sold, not merely provided to guests.

◦ Mr. Shepley was operating a business from the units in a manner that required people (his clients) to come to the unit, a direct violation of CC&R Section 7.3.

◦ The Judge noted the situation fell “between the cracks of the specific language of the statutes,” but concluded that “the spirit and purpose of the applicable rules is to allow an association to know who is in the community and to prevent an itinerant population.”

Alleged Violation 3: A.R.S. § 33-1260.01(E) (Improper Fees)

• Petitioner’s Claim: The $250 charge from the HOA’s counsel constituted an illegal fee, penalty, or assessment. The HOA’s policy allows for a $300 fine for lease violations.

• Judge’s Conclusion: The Judge found no violation. The evidence showed that the HOA had not actually assessed the $300 fine. The $250 charge was “clearly for attorney fees related to the possible collection of assessments.” The Judge stated that “Nothing in the cited statute or the CC&Rs prohibits such a charge being implemented.”

——————————————————————————–

Final Order

Based on the failure of the Petitioner to prove by a preponderance of the evidence that the Respondent violated any statutes or its CC&Rs, the Judge issued a final order:

“IT IS ORDERED that the Petition be dismissed.”

The decision is binding unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.