Tag Archives: A.R.S. § 12-904(A)

Will Schreiber v. Cimarron Hills at McDowell Mountain Homeowners

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Case Summary

Case ID 20F-H2019003-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-03-16
Administrative Law Judge Antara Nath Rivera
Outcome loss
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

CC&R Article 12.3; Design Guidelines Sections HH & E

Outcome Summary

The ALJ dismissed the Petition, concluding that the Petitioner failed to meet the burden of proof that the Respondent HOA violated its community documents when denying retroactive approval for the glass view fence, and found the HOA's denial to be reasonable.

Why this result: Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence pursuant to the Design Guidelines.

Key Issues & Findings

HOA denial of retroactive glass view fence approval

Petitioner installed a glass viewing fence without prior approval and subsequently sought retroactive approval, which the HOA denied. Petitioner argued the denial was unreasonable. The ALJ found that Petitioner failed to follow proper procedures to seek approval for the fence change and failed to show the HOA violated its governing documents, finding the HOA's denial reasonable.

Orders: Petitioner Will Schreiber's Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

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.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • CC&R Article 12.3
  • Design Guidelines Section HH
  • Design Guidelines Section E
  • Design Guidelines Section GG

Analytics Highlights

Topics: HOA, View Fence, Architectural Change, Retroactive Approval, Design Guidelines, CC&Rs
Additional Citations:

  • 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.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • CC&R Article 12.3
  • Design Guidelines Section HH
  • Design Guidelines Section E
  • Design Guidelines Section GG

Audio Overview

Decision Documents

20F-H2019003-REL-RHG Decision – 769789.pdf

Uploaded 2025-10-08T07:09:54 (42.2 KB)

20F-H2019003-REL-RHG Decision – 775433.pdf

Uploaded 2025-10-08T07:09:55 (123.4 KB)

Jennie Bennett v. Catalina Del Rey Homeowners Association

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Case Summary

Case ID 20F-H2019002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-02-26
Administrative Law Judge Antara Nath Rivera
Outcome none
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 Petition was dismissed because the Petitioner failed to meet the burden of proof, as the backflow flap responsible for the sewage overflow was determined to be on the Petitioner’s private property (covered under CC&R Section 15) and not a common element area that the HOA was responsible for maintaining under CC&R Sections 12(c) or 12(h)(1).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.

Key Issues & Findings

The Petitioner alleges that Catalina Del Rey Homeowners Association violated community documents CC&Rs Sections 12(c) and 12(h)(1) in a single-issue petition.

Petitioner claimed the HOA (Respondent) violated CC&Rs 12(c) and 12(h)(1) by refusing to compensate her for repairs to a malfunctioning backflow flap after experiencing a sewage overflow. Respondent argued the backflow flap was located on Petitioner's private property and was her responsibility under CC&R Section 15, especially since the prior Sewer Maintenance Policy was rescinded before the incident.

Orders: Petitioner Jennie Bennett’s Petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs Section 12(c)
  • CC&Rs Section 12(h)(1)
  • CC&Rs Section 15

Analytics Highlights

Topics: HOA dispute, CC&R violation, maintenance responsibility, private property, sewer maintenance policy
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • ARIZ. REV. STAT. Section 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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

20F-H2019002-REL-RHG Decision – 771959.pdf

Uploaded 2025-10-09T03:34:27 (103.3 KB)





Briefing Doc – 20F-H2019002-REL-RHG


Briefing Document: Bennett v. Catalina Del Rey Homeowners Association

Executive Summary

This document outlines the findings and decision in the case of Jennie Bennett v. Catalina Del Rey Homeowners Association, heard by the Arizona Office of Administrative Hearings. The central dispute concerned liability for the repair of a malfunctioning backflow valve that caused a sewage overflow in the petitioner’s residence. The petitioner, Jennie Bennett, alleged the Homeowners Association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by refusing to cover the repair costs.

The Administrative Law Judge dismissed the petition, ruling in favor of the HOA. The decision hinged on the physical location of the backflow valve. Evidence, including a plat map and photographs, established that the valve was situated on Ms. Bennett’s private property, not in a common area. Consequently, under Section 15 of the CC&Rs, maintenance and repair were deemed the homeowner’s responsibility.

A key factor in the dispute was the HOA’s rescission of a “Sewer Maintenance Policy” just 18 days before the incident. This policy had previously obligated the HOA to share repair costs. However, the Judge found that once the policy was rescinded, the HOA was no longer bound by its terms. The petitioner failed to meet the burden of proof to demonstrate that the backflow valve was a common element covered by the CC&Rs, leading to the dismissal of her case.

Case Background

• Case Number: 20F-H2019002-REL-RHG

• Hearing Date: February 7, 2020

• Decision Date: February 26, 2020

• Presiding Judge: Administrative Law Judge Antara Nath Rivera

Parties Involved

Name / Organization

Representation

Petitioner

Jennie Bennett

Maxwell Riddiough, attorney

Respondent

Catalina Del Rey Homeowners Association

Nathan Tennyson, attorney (Brown|Olcott, PLLC)

Management

Cadden Community Management

(Managed Respondent)

Witness

Vanessa Lubinsky

Community Manager for Respondent

Allegation

On July 10, 2019, Jennie Bennett filed a petition alleging that the Catalina Del Rey Homeowners Association violated Sections 12(c) and 12(h)(1) of the community’s CC&Rs. These sections pertain to the HOA’s responsibility to maintain common elements, including sewer lines.

Timeline of Key Events

March 2017

The HOA adopts a “Sewer Maintenance Policy” outlining the process for sewage maintenance issues.

February 13, 2019

The HOA Board rescinds the Sewer Maintenance Policy after receiving legal guidance.

March 3, 2019

Petitioner Jennie Bennett experiences a sewage overflow caused by a malfunctioning backflow valve.

March – May 2019

Petitioner presents a repair estimate to the HOA Board, which does not address her concerns at the March, April, or May meetings.

May 22, 2019

The HOA responds to the Petitioner, but only after receiving a letter from her attorney.

July 10, 2019

Petitioner files a formal dispute petition with the Arizona Department of Real Estate.

Undated

Petitioner gathers 97 signatures on a grassroots petition asking the HOA to cover the repair costs due to the lack of notice.

February 7, 2020

The administrative hearing is held.

February 26, 2020

The Administrative Law Judge issues a decision dismissing the petition.

Central Arguments and Evidence

The case centered on whether the backflow valve was a common element maintained by the HOA or a fixture on private property maintained by the homeowner.

Petitioner’s Position (Jennie Bennett)

• Core Claim: The HOA was responsible for the repair cost based on its previous Sewer Maintenance Policy.

• Lack of Notification: The Petitioner testified that she was not notified that the policy had been rescinded on February 13, 2019, just two weeks before her sewage backup.

• HOA Inaction: The HOA failed to address her requests for reimbursement at three consecutive board meetings, only responding after her attorney sent a formal letter.

• Community Support: The Petitioner submitted a grassroots petition signed by 97 residents. The petition stated: “My shower backed up with feces March 3-my plumber said my flap on the back flow was gone-needed to be replace… I was told by Daniel at Cadden that the Board had rescinded the sewer policy Feb 13th-No written notice had gone out. I am asking to be covered because of the 2 week time frame and no notice.”

• Fear of Recurrence: Though no further overflows occurred, the Petitioner stated she “lived in fear of a future overflow.”

Respondent’s Position (Catalina Del Rey HOA)

• Core Claim: The backflow valve is located on the Petitioner’s private property and is therefore her responsibility under Section 15 of the CC&Rs.

• Physical Evidence: The HOA presented a plat map and photographs showing the backflow valve was located within the Petitioner’s property lines, “next to Petitioner’s walk up to her front door,” and not on common elements.

• Legal Justification for Policy Change: The HOA explained that the Sewer Maintenance Policy was rescinded after receiving legal guidance that it conflicted with the CC&Rs. The guidance clarified that backflow flaps are within individual homeowner units, making them a homeowner’s responsibility under Section 15.

• Procedural Correctness: HOA manager Vanessa Lubinsky testified that the rescission was a policy change, not a CC&R amendment, and therefore did not require a homeowner vote. She stated that notice of the rescission was sent to homeowners via both email and postal mail (postcards).

• Issue Classification: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”

Analysis of Governing Documents (CC&Rs)

The judge’s decision rested on the interpretation of three key sections of the Declaration of Covenants, Conditions, Restrictions and Easements.

• Section 12(c): HOA Maintenance of Common Areas

◦ This section establishes the HOA’s duty to maintain common sewer lines.

• Section 12(h)(1): Assessments for Common Elements

◦ This section empowers the HOA to charge homeowners for the maintenance of common elements, including sewers.

• Section 15: Homeowner Utility Maintenance

◦ This section was pivotal, assigning responsibility for fixtures on private property to the homeowner.

Administrative Law Judge’s Decision and Rationale

The Administrative Law Judge ultimately found that the Petitioner failed to prove her case by a “preponderance of the evidence.”

Key Findings

1. Burden of Proof: The Petitioner, Jennie Bennett, bore the burden of proving that the HOA had violated the community documents.

2. Location is Determinative: The evidence presented, particularly the photos and plat map, conclusively showed that the malfunctioning backflow flap was located on the Petitioner’s private property and not in a common area.

3. Policy Rescission was Valid: The Judge acknowledged the timing of the policy change was “extremely unfortunate” for the Petitioner. However, once the Sewer Maintenance Policy was rescinded, the HOA was no longer obligated to share repair costs. The CC&Rs became the sole governing authority on the matter.

4. No Violation of CC&Rs: Because the flap was not a common element, the HOA’s refusal to pay for the repair did not constitute a violation of Sections 12(c) or 12(h)(1). The responsibility fell to the homeowner under Section 15.

Final Order

“IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.”

The decision is binding on the parties. Any appeal must be filed with the superior court within 35 days from the date the order was served.


Jennie Bennett v. Catalina Del Rey Homeowners Association

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Case Summary

Case ID 20F-H2019002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-02-26
Administrative Law Judge Antara Nath Rivera
Outcome none
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 Petition was dismissed because the Petitioner failed to meet the burden of proof, as the backflow flap responsible for the sewage overflow was determined to be on the Petitioner’s private property (covered under CC&R Section 15) and not a common element area that the HOA was responsible for maintaining under CC&R Sections 12(c) or 12(h)(1).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.

Key Issues & Findings

The Petitioner alleges that Catalina Del Rey Homeowners Association violated community documents CC&Rs Sections 12(c) and 12(h)(1) in a single-issue petition.

Petitioner claimed the HOA (Respondent) violated CC&Rs 12(c) and 12(h)(1) by refusing to compensate her for repairs to a malfunctioning backflow flap after experiencing a sewage overflow. Respondent argued the backflow flap was located on Petitioner's private property and was her responsibility under CC&R Section 15, especially since the prior Sewer Maintenance Policy was rescinded before the incident.

Orders: Petitioner Jennie Bennett’s Petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs Section 12(c)
  • CC&Rs Section 12(h)(1)
  • CC&Rs Section 15

Analytics Highlights

Topics: HOA dispute, CC&R violation, maintenance responsibility, private property, sewer maintenance policy
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • ARIZ. REV. STAT. Section 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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

20F-H2019002-REL-RHG Decision – 771959.pdf

Uploaded 2025-10-08T07:09:48 (103.3 KB)





Briefing Doc – 20F-H2019002-REL-RHG


Briefing Document: Bennett v. Catalina Del Rey Homeowners Association

Executive Summary

This document outlines the findings and decision in the case of Jennie Bennett v. Catalina Del Rey Homeowners Association, heard by the Arizona Office of Administrative Hearings. The central dispute concerned liability for the repair of a malfunctioning backflow valve that caused a sewage overflow in the petitioner’s residence. The petitioner, Jennie Bennett, alleged the Homeowners Association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by refusing to cover the repair costs.

The Administrative Law Judge dismissed the petition, ruling in favor of the HOA. The decision hinged on the physical location of the backflow valve. Evidence, including a plat map and photographs, established that the valve was situated on Ms. Bennett’s private property, not in a common area. Consequently, under Section 15 of the CC&Rs, maintenance and repair were deemed the homeowner’s responsibility.

A key factor in the dispute was the HOA’s rescission of a “Sewer Maintenance Policy” just 18 days before the incident. This policy had previously obligated the HOA to share repair costs. However, the Judge found that once the policy was rescinded, the HOA was no longer bound by its terms. The petitioner failed to meet the burden of proof to demonstrate that the backflow valve was a common element covered by the CC&Rs, leading to the dismissal of her case.

Case Background

• Case Number: 20F-H2019002-REL-RHG

• Hearing Date: February 7, 2020

• Decision Date: February 26, 2020

• Presiding Judge: Administrative Law Judge Antara Nath Rivera

Parties Involved

Name / Organization

Representation

Petitioner

Jennie Bennett

Maxwell Riddiough, attorney

Respondent

Catalina Del Rey Homeowners Association

Nathan Tennyson, attorney (Brown|Olcott, PLLC)

Management

Cadden Community Management

(Managed Respondent)

Witness

Vanessa Lubinsky

Community Manager for Respondent

Allegation

On July 10, 2019, Jennie Bennett filed a petition alleging that the Catalina Del Rey Homeowners Association violated Sections 12(c) and 12(h)(1) of the community’s CC&Rs. These sections pertain to the HOA’s responsibility to maintain common elements, including sewer lines.

Timeline of Key Events

March 2017

The HOA adopts a “Sewer Maintenance Policy” outlining the process for sewage maintenance issues.

February 13, 2019

The HOA Board rescinds the Sewer Maintenance Policy after receiving legal guidance.

March 3, 2019

Petitioner Jennie Bennett experiences a sewage overflow caused by a malfunctioning backflow valve.

March – May 2019

Petitioner presents a repair estimate to the HOA Board, which does not address her concerns at the March, April, or May meetings.

May 22, 2019

The HOA responds to the Petitioner, but only after receiving a letter from her attorney.

July 10, 2019

Petitioner files a formal dispute petition with the Arizona Department of Real Estate.

Undated

Petitioner gathers 97 signatures on a grassroots petition asking the HOA to cover the repair costs due to the lack of notice.

February 7, 2020

The administrative hearing is held.

February 26, 2020

The Administrative Law Judge issues a decision dismissing the petition.

Central Arguments and Evidence

The case centered on whether the backflow valve was a common element maintained by the HOA or a fixture on private property maintained by the homeowner.

Petitioner’s Position (Jennie Bennett)

• Core Claim: The HOA was responsible for the repair cost based on its previous Sewer Maintenance Policy.

• Lack of Notification: The Petitioner testified that she was not notified that the policy had been rescinded on February 13, 2019, just two weeks before her sewage backup.

• HOA Inaction: The HOA failed to address her requests for reimbursement at three consecutive board meetings, only responding after her attorney sent a formal letter.

• Community Support: The Petitioner submitted a grassroots petition signed by 97 residents. The petition stated: “My shower backed up with feces March 3-my plumber said my flap on the back flow was gone-needed to be replace… I was told by Daniel at Cadden that the Board had rescinded the sewer policy Feb 13th-No written notice had gone out. I am asking to be covered because of the 2 week time frame and no notice.”

• Fear of Recurrence: Though no further overflows occurred, the Petitioner stated she “lived in fear of a future overflow.”

Respondent’s Position (Catalina Del Rey HOA)

• Core Claim: The backflow valve is located on the Petitioner’s private property and is therefore her responsibility under Section 15 of the CC&Rs.

• Physical Evidence: The HOA presented a plat map and photographs showing the backflow valve was located within the Petitioner’s property lines, “next to Petitioner’s walk up to her front door,” and not on common elements.

• Legal Justification for Policy Change: The HOA explained that the Sewer Maintenance Policy was rescinded after receiving legal guidance that it conflicted with the CC&Rs. The guidance clarified that backflow flaps are within individual homeowner units, making them a homeowner’s responsibility under Section 15.

• Procedural Correctness: HOA manager Vanessa Lubinsky testified that the rescission was a policy change, not a CC&R amendment, and therefore did not require a homeowner vote. She stated that notice of the rescission was sent to homeowners via both email and postal mail (postcards).

• Issue Classification: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”

Analysis of Governing Documents (CC&Rs)

The judge’s decision rested on the interpretation of three key sections of the Declaration of Covenants, Conditions, Restrictions and Easements.

• Section 12(c): HOA Maintenance of Common Areas

◦ This section establishes the HOA’s duty to maintain common sewer lines.

• Section 12(h)(1): Assessments for Common Elements

◦ This section empowers the HOA to charge homeowners for the maintenance of common elements, including sewers.

• Section 15: Homeowner Utility Maintenance

◦ This section was pivotal, assigning responsibility for fixtures on private property to the homeowner.

Administrative Law Judge’s Decision and Rationale

The Administrative Law Judge ultimately found that the Petitioner failed to prove her case by a “preponderance of the evidence.”

Key Findings

1. Burden of Proof: The Petitioner, Jennie Bennett, bore the burden of proving that the HOA had violated the community documents.

2. Location is Determinative: The evidence presented, particularly the photos and plat map, conclusively showed that the malfunctioning backflow flap was located on the Petitioner’s private property and not in a common area.

3. Policy Rescission was Valid: The Judge acknowledged the timing of the policy change was “extremely unfortunate” for the Petitioner. However, once the Sewer Maintenance Policy was rescinded, the HOA was no longer obligated to share repair costs. The CC&Rs became the sole governing authority on the matter.

4. No Violation of CC&Rs: Because the flap was not a common element, the HOA’s refusal to pay for the repair did not constitute a violation of Sections 12(c) or 12(h)(1). The responsibility fell to the homeowner under Section 15.

Final Order

“IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.”

The decision is binding on the parties. Any appeal must be filed with the superior court within 35 days from the date the order was served.


Joan A. Tober, vs. Civano 1 Neighborhood 1 Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918042-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-01-15
Administrative Law Judge Kay Abramsohn
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joan A. Tober Counsel —
Respondent Civano 1 Neighborhood 1 Homeowners Association Counsel Diana J. Elston, Esq.

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B) and was the prevailing party on rehearing. The HOA was not required to provide the privileged attorney letter, and Petitioner failed to clarify her vague request for other documents.

Why this result: Petitioner failed to sustain her burden of proof. The primary requested document was privileged, and the overall request was unreasonably broad and left unclarified, preventing the HOA from reasonably making records available.

Key Issues & Findings

Alleged violation of HOA member access to records statute regarding timeliness of disclosure.

Petitioner sought a copy of a privileged attorney letter discussed at a Board meeting and "any and all documentation" regarding the North Ridge wall. The issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide records within 10 business days. The ALJ found no violation, concluding the letter was privileged communication and the broader request was unreasonably broad and unclarified by the Petitioner.

Orders: The HOA is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(1)
  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • 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)
  • A.R.S. § 12-904(A)
  • A.R.S. § 41-1092.08(H)

Analytics Highlights

Topics: HOA records request, Attorney-Client Privilege, Statutory violation (A.R.S. 33-1805), Timeliness, Rehearing
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(1)
  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • 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)
  • A.R.S. § 12-904(A)
  • A.R.S. § 41-1092.08(H)

Audio Overview

Decision Documents

19F-H1918042-REL-RHG Decision – 764197.pdf

Uploaded 2025-10-09T03:34:01 (187.4 KB)





Briefing Doc – 19F-H1918042-REL-RHG


Briefing: Case No. 19F-H1918042-REL-RHG, Tober v. Civano 1 HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in Case No. 19F-H1918042-REL-RHG, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association (HOA). The dispute centered on the HOA’s alleged failure to provide records in accordance with Arizona statute A.R.S. § 33-1805.

The core conflict originated from the Petitioner’s request for a specific attorney’s letter (“the Letter”) concerning the North Ridge wall, which was mentioned at an HOA Board meeting. The Petitioner argued that by discussing the Letter, the HOA waived attorney-client privilege. The HOA maintained the Letter was privileged and rightfully withheld. The Petitioner subsequently expanded her request to “any and all documentation” regarding the wall, which the HOA found to be overly broad.

Following an initial hearing on June 5, 2019, the ALJ ruled in favor of the HOA, finding the Letter was privileged and the HOA had complied with the statute. A rehearing was granted to address the Petitioner’s claim that the ruling “did not address the timeliness aspect of the law.”

The final decision, issued after the December 11, 2019 rehearing, reaffirmed the HOA as the prevailing party. The ALJ concluded that the HOA did not violate the 10-business-day requirement of A.R.S. § 33-1805. The ruling determined that the Petitioner’s expanded request was “unreasonably broad,” and her failure to respond to the HOA’s request for clarification prevented the HOA from being able to reasonably provide records. The Petitioner’s appeal was ultimately dismissed.

——————————————————————————–

Case Overview

• Case Number: 19F-H1918042-REL-RHG

• Tribunal: In the Office of Administrative Hearings, Arizona

• Petitioner: Joan A. Tober (Appeared on her own behalf)

• Respondent: Civano 1 Neighborhood 1 Homeowners Association (Represented by Diana J. Elston, Esq.)

• Administrative Law Judge: Kay Abramsohn

• Subject Matter: A petition filed with the Arizona Department of Real Estate alleging an HOA violated A.R.S. § 33-1805 by failing to provide association records upon request.

Chronology of Key Events

Nov 20, 2018

At an HOA Board meeting, the President mentions a letter from the HOA’s attorney regarding the North Ridge wall, its erosion, and the HOA’s legal responsibility. He suggests he “can … send it out.”

Nov 26, 2018

Petitioner makes her first request for a copy of the attorney’s letter.

Nov 27, 2018

Petitioner makes a second request. The HOA responds that it is waiting for clarification from its attorney.

Nov 29, 2018

Petitioner submits a third, expanded request for “any and all documentation… and all background information” regarding the North Ridge wall.

Nov 29, 2018

The HOA responds that the President had misspoken, the letter is a privileged “Legal Opinion,” and asks if Petitioner needs a copy of the “original engineer report” for clarification. The ALJ found no evidence Petitioner responded to this clarification request.

Dec 26, 2018

Petitioner files her official Petition with the Arizona Department of Real Estate.

Jan 15-16, 2019

The HOA forwards “historical erosion reports” (2013 and 2014) and an invoice to Petitioner, who acknowledges already possessing the reports.

June 5, 2019

The first administrative hearing is held.

July 29, 2019

The initial ALJ Decision is issued, finding in favor of the HOA.

Aug 5, 2019

Petitioner files a request for rehearing, citing the “timeliness aspect of the law.”

Aug 23, 2019

The Commissioner of the Arizona Department of Real Estate grants the rehearing.

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

The final ALJ Decision is issued, again ordering that the HOA is the prevailing party and dismissing the Petitioner’s appeal.

Petitioner’s Position and Arguments

Joan A. Tober, a homeowner since 2001, past Board member, and active observer who taped and transcribed HOA meetings since 2008, built her case on several key arguments:

• Waiver of Privilege: The Petitioner’s central initial argument was that the HOA had “intentionally waived confidentiality” of the attorney’s letter. She contended that because the HOA President mentioned the Letter in an open meeting and other Board members did not object, this demonstrated “unanimous consent to waive confidentiality.”

• Right to Information: The Petitioner’s requests were framed as a right to access information impacting her dues and the HOA budget. Her first request noted, “Since it was discussed at the Board meeting and impacts my dues in addition to being an integral part of the budget decision I see no reason why I should have to pay for a copy.”

• Expanded Request for Full Background: After her initial requests for the Letter were met with a delay, the Petitioner broadened her demand significantly:

• Allegation of Incomplete Disclosure: The Petitioner argued that even after filing her petition, the HOA’s response was insufficient. She asserted that “the Association only sent two reports that were already readily available and in my possession.” She believed that given the long-standing nature of the erosion issue (since 2013), “there’s more than just two pieces of documentation in the possession of the Association.”

• Focus on Timeliness for Rehearing: The basis for the rehearing request was the specific claim that the original ALJ ruling “did not address the timeliness aspect of the law,” alleging the HOA failed to provide access to records within the 10-business-day period mandated by A.R.S. § 33-1805.

Respondent’s Position and Arguments

The Civano 1 HOA, represented by legal counsel, countered the Petitioner’s claims with the following arguments:

• Assertion of Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which is explicitly protected from disclosure to members under A.R.S. § 33-1805(B)(1).

• No Waiver of Privilege: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of its privileged status. The President was found to have “misspoken” when he suggested copies could be provided.

• Overly Broad and Vague Request: The HOA argued that the Petitioner’s expanded request for “any and all” documents was too broad and vague to allow for a reasonable response. The HOA was not required to guess what records were being requested.

• Attempt at Clarification: The HOA provided evidence that it attempted to clarify the vague request on November 29, 2018, by asking if the Petitioner needed a copy of the “original engineer report.” The ALJ found no evidence that the Petitioner ever responded to this query.

• Substantial Compliance: The HOA indicated that by reviewing the exhibits the Petitioner herself presented, it was clear that she had already received copies of the requested historical documents (the 2013 and 2014 reports).

Administrative Law Judge’s Findings and Conclusions

After two hearings, the Administrative Law Judge (ALJ) made determinative findings of fact and law that led to the dismissal of the Petitioner’s case.

Key Findings of Fact

• The Petition was filed solely because the Petitioner wanted a copy of the attorney’s letter discussed at the November 20, 2018 meeting.

• At that meeting, the only document referenced regarding the North Ridge wall was the attorney’s letter/report. No other background documents were mentioned.

• The Petitioner already possessed copies of the 2013 and 2014 engineering reports (which she had obtained from the city) at the time she made her expanded request.

• The Petitioner’s expanded request of November 29, 2018, was the first time she asked for more than just the Letter.

• The Petitioner failed to provide evidence that she responded to the HOA’s November 29, 2018 email seeking to clarify her request.

• The record contains no evidence of any erosion reports other than the 2013 and 2014 reports, nor any evidence of remediation work having been performed by the HOA related to the erosion issue.

Conclusions of Law

1. The Letter is Privileged: Under A.R.S. § 33-1805(B)(1), the attorney’s letter is a privileged communication. Therefore, the “HOA was not required to provide access to, or a copy of, the Letter to Petitioner or to any member within any time period.”

2. The Request Was Unreasonably Broad: The ALJ concluded that the Petitioner’s third request, for “the letter … and all background information,” was “unreasonably broad and remained unclarified by Petitioner.”

3. Petitioner’s Failure to Clarify Precluded HOA Action: The Petitioner’s failure to respond to the HOA’s request for clarification “prevent[ed] the HOA from being able to reasonably make records available.” The ruling states, “An association is not required to guess what records are being requested.”

4. No Violation of Statute: Based on these findings, the ALJ concluded that the HOA did not violate the 10-business-day provision of A.R.S. § 33-1805(A). The Petitioner failed to meet her burden of proof. The final decision clarifies that the HOA “acted in compliance with A.R.S. § 33-1805.”

Final Order

IT IS ORDERED that the HOA is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.

The order, issued on January 15, 2020, is binding on the parties. Any further appeal must be filed with the superior court within thirty-five days.


Joan A. Tober, vs. Civano 1 Neighborhood 1 Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918042-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-01-15
Administrative Law Judge Kay Abramsohn
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joan A. Tober Counsel —
Respondent Civano 1 Neighborhood 1 Homeowners Association Counsel Diana J. Elston, Esq.

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B) and was the prevailing party on rehearing. The HOA was not required to provide the privileged attorney letter, and Petitioner failed to clarify her vague request for other documents.

Why this result: Petitioner failed to sustain her burden of proof. The primary requested document was privileged, and the overall request was unreasonably broad and left unclarified, preventing the HOA from reasonably making records available.

Key Issues & Findings

Alleged violation of HOA member access to records statute regarding timeliness of disclosure.

Petitioner sought a copy of a privileged attorney letter discussed at a Board meeting and "any and all documentation" regarding the North Ridge wall. The issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide records within 10 business days. The ALJ found no violation, concluding the letter was privileged communication and the broader request was unreasonably broad and unclarified by the Petitioner.

Orders: The HOA is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(1)
  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • 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)
  • A.R.S. § 12-904(A)
  • A.R.S. § 41-1092.08(H)

Analytics Highlights

Topics: HOA records request, Attorney-Client Privilege, Statutory violation (A.R.S. 33-1805), Timeliness, Rehearing
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(1)
  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • 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)
  • A.R.S. § 12-904(A)
  • A.R.S. § 41-1092.08(H)

Audio Overview

Decision Documents

19F-H1918042-REL-RHG Decision – 764197.pdf

Uploaded 2025-10-08T07:08:41 (187.4 KB)





Briefing Doc – 19F-H1918042-REL-RHG


Briefing: Case No. 19F-H1918042-REL-RHG, Tober v. Civano 1 HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in Case No. 19F-H1918042-REL-RHG, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association (HOA). The dispute centered on the HOA’s alleged failure to provide records in accordance with Arizona statute A.R.S. § 33-1805.

The core conflict originated from the Petitioner’s request for a specific attorney’s letter (“the Letter”) concerning the North Ridge wall, which was mentioned at an HOA Board meeting. The Petitioner argued that by discussing the Letter, the HOA waived attorney-client privilege. The HOA maintained the Letter was privileged and rightfully withheld. The Petitioner subsequently expanded her request to “any and all documentation” regarding the wall, which the HOA found to be overly broad.

Following an initial hearing on June 5, 2019, the ALJ ruled in favor of the HOA, finding the Letter was privileged and the HOA had complied with the statute. A rehearing was granted to address the Petitioner’s claim that the ruling “did not address the timeliness aspect of the law.”

The final decision, issued after the December 11, 2019 rehearing, reaffirmed the HOA as the prevailing party. The ALJ concluded that the HOA did not violate the 10-business-day requirement of A.R.S. § 33-1805. The ruling determined that the Petitioner’s expanded request was “unreasonably broad,” and her failure to respond to the HOA’s request for clarification prevented the HOA from being able to reasonably provide records. The Petitioner’s appeal was ultimately dismissed.

——————————————————————————–

Case Overview

• Case Number: 19F-H1918042-REL-RHG

• Tribunal: In the Office of Administrative Hearings, Arizona

• Petitioner: Joan A. Tober (Appeared on her own behalf)

• Respondent: Civano 1 Neighborhood 1 Homeowners Association (Represented by Diana J. Elston, Esq.)

• Administrative Law Judge: Kay Abramsohn

• Subject Matter: A petition filed with the Arizona Department of Real Estate alleging an HOA violated A.R.S. § 33-1805 by failing to provide association records upon request.

Chronology of Key Events

Nov 20, 2018

At an HOA Board meeting, the President mentions a letter from the HOA’s attorney regarding the North Ridge wall, its erosion, and the HOA’s legal responsibility. He suggests he “can … send it out.”

Nov 26, 2018

Petitioner makes her first request for a copy of the attorney’s letter.

Nov 27, 2018

Petitioner makes a second request. The HOA responds that it is waiting for clarification from its attorney.

Nov 29, 2018

Petitioner submits a third, expanded request for “any and all documentation… and all background information” regarding the North Ridge wall.

Nov 29, 2018

The HOA responds that the President had misspoken, the letter is a privileged “Legal Opinion,” and asks if Petitioner needs a copy of the “original engineer report” for clarification. The ALJ found no evidence Petitioner responded to this clarification request.

Dec 26, 2018

Petitioner files her official Petition with the Arizona Department of Real Estate.

Jan 15-16, 2019

The HOA forwards “historical erosion reports” (2013 and 2014) and an invoice to Petitioner, who acknowledges already possessing the reports.

June 5, 2019

The first administrative hearing is held.

July 29, 2019

The initial ALJ Decision is issued, finding in favor of the HOA.

Aug 5, 2019

Petitioner files a request for rehearing, citing the “timeliness aspect of the law.”

Aug 23, 2019

The Commissioner of the Arizona Department of Real Estate grants the rehearing.

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

The final ALJ Decision is issued, again ordering that the HOA is the prevailing party and dismissing the Petitioner’s appeal.

Petitioner’s Position and Arguments

Joan A. Tober, a homeowner since 2001, past Board member, and active observer who taped and transcribed HOA meetings since 2008, built her case on several key arguments:

• Waiver of Privilege: The Petitioner’s central initial argument was that the HOA had “intentionally waived confidentiality” of the attorney’s letter. She contended that because the HOA President mentioned the Letter in an open meeting and other Board members did not object, this demonstrated “unanimous consent to waive confidentiality.”

• Right to Information: The Petitioner’s requests were framed as a right to access information impacting her dues and the HOA budget. Her first request noted, “Since it was discussed at the Board meeting and impacts my dues in addition to being an integral part of the budget decision I see no reason why I should have to pay for a copy.”

• Expanded Request for Full Background: After her initial requests for the Letter were met with a delay, the Petitioner broadened her demand significantly:

• Allegation of Incomplete Disclosure: The Petitioner argued that even after filing her petition, the HOA’s response was insufficient. She asserted that “the Association only sent two reports that were already readily available and in my possession.” She believed that given the long-standing nature of the erosion issue (since 2013), “there’s more than just two pieces of documentation in the possession of the Association.”

• Focus on Timeliness for Rehearing: The basis for the rehearing request was the specific claim that the original ALJ ruling “did not address the timeliness aspect of the law,” alleging the HOA failed to provide access to records within the 10-business-day period mandated by A.R.S. § 33-1805.

Respondent’s Position and Arguments

The Civano 1 HOA, represented by legal counsel, countered the Petitioner’s claims with the following arguments:

• Assertion of Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which is explicitly protected from disclosure to members under A.R.S. § 33-1805(B)(1).

• No Waiver of Privilege: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of its privileged status. The President was found to have “misspoken” when he suggested copies could be provided.

• Overly Broad and Vague Request: The HOA argued that the Petitioner’s expanded request for “any and all” documents was too broad and vague to allow for a reasonable response. The HOA was not required to guess what records were being requested.

• Attempt at Clarification: The HOA provided evidence that it attempted to clarify the vague request on November 29, 2018, by asking if the Petitioner needed a copy of the “original engineer report.” The ALJ found no evidence that the Petitioner ever responded to this query.

• Substantial Compliance: The HOA indicated that by reviewing the exhibits the Petitioner herself presented, it was clear that she had already received copies of the requested historical documents (the 2013 and 2014 reports).

Administrative Law Judge’s Findings and Conclusions

After two hearings, the Administrative Law Judge (ALJ) made determinative findings of fact and law that led to the dismissal of the Petitioner’s case.

Key Findings of Fact

• The Petition was filed solely because the Petitioner wanted a copy of the attorney’s letter discussed at the November 20, 2018 meeting.

• At that meeting, the only document referenced regarding the North Ridge wall was the attorney’s letter/report. No other background documents were mentioned.

• The Petitioner already possessed copies of the 2013 and 2014 engineering reports (which she had obtained from the city) at the time she made her expanded request.

• The Petitioner’s expanded request of November 29, 2018, was the first time she asked for more than just the Letter.

• The Petitioner failed to provide evidence that she responded to the HOA’s November 29, 2018 email seeking to clarify her request.

• The record contains no evidence of any erosion reports other than the 2013 and 2014 reports, nor any evidence of remediation work having been performed by the HOA related to the erosion issue.

Conclusions of Law

1. The Letter is Privileged: Under A.R.S. § 33-1805(B)(1), the attorney’s letter is a privileged communication. Therefore, the “HOA was not required to provide access to, or a copy of, the Letter to Petitioner or to any member within any time period.”

2. The Request Was Unreasonably Broad: The ALJ concluded that the Petitioner’s third request, for “the letter … and all background information,” was “unreasonably broad and remained unclarified by Petitioner.”

3. Petitioner’s Failure to Clarify Precluded HOA Action: The Petitioner’s failure to respond to the HOA’s request for clarification “prevent[ed] the HOA from being able to reasonably make records available.” The ruling states, “An association is not required to guess what records are being requested.”

4. No Violation of Statute: Based on these findings, the ALJ concluded that the HOA did not violate the 10-business-day provision of A.R.S. § 33-1805(A). The Petitioner failed to meet her burden of proof. The final decision clarifies that the HOA “acted in compliance with A.R.S. § 33-1805.”

Final Order

IT IS ORDERED that the HOA is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.

The order, issued on January 15, 2020, is binding on the parties. Any further appeal must be filed with the superior court within thirty-five days.


Joyce H Monsanto vs. Four Seasons at the Manor Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel —
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA did not violate A.R.S. § 33-1808 because its guideline limiting residents to one flagpole (which permits flying both the US flag and military flags) constitutes a reasonable rule under the statute. Furthermore, the HOA did not violate the appeal process outlined in CC&R § 7.9.

Why this result: Petitioner failed to establish that Respondent’s Board violated A.R.S. § 33-1808 or CC&R § 7. The board properly denied the application because the existing Architectural Guidelines allow her to fly both the American and Marine flags from a single flagpole, making her request for two poles an aesthetic choice rather than a necessity based on statutory right.

Key Issues & Findings

Refusal to allow installation of two flagpoles to display US and Marine Corps flags

Petitioner claimed Respondent violated statute (A.R.S. § 33-1808) and CC&Rs by denying her request to install two flagpoles for aesthetic reasons, arguing the denial effectively limited her right to display the flags and that the appeal process (CC&R § 7.9) was violated. The ALJ found the HOA's rule limiting flagpoles to one was a reasonable regulation under A.R.S. § 33-1808(B) because Petitioner could fly both flags on a single pole, and that the board complied with the appeal requirements of CC&R § 7.9.

Orders: Petitioner's petition is denied. The Board can properly find Petitioner in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • A.R.S. § 32-2199(B)
  • 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)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA, Flag, Flagpole, Architectural Review, CC&R, Rehearing, Military Flag
Additional Citations:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • A.R.S. § 32-2199(B)
  • 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)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

19F-H1919053-REL-RHG Decision – 749213.pdf

Uploaded 2025-10-09T03:34:13 (163.6 KB)

19F-H1919053-REL-RHG Decision – 753595.pdf

Uploaded 2025-10-09T03:34:13 (163.3 KB)





Briefing Doc – 19F-H1919053-REL-RHG


Briefing Document: Monsanto v. Four Seasons at the Manor HOA

Executive Summary

This document synthesizes the findings and decision in the case of Joyce H. Monsanto (Petitioner) versus the Four Seasons at the Manor Homeowners Association (Respondent), adjudicated by the Arizona Office of Administrative Hearings. The central dispute involved the HOA’s denial of Ms. Monsanto’s request to install two flagpoles on her property, a decision she contested as a violation of state law and the community’s governing documents.

The Administrative Law Judge (ALJ) ultimately denied the petition and ruled in favor of the HOA. The decision rested on three critical findings:

1. HOA Rules are Reasonable: The HOA’s Architectural Guideline limiting each property to a single flagpole is a “reasonable” regulation explicitly permitted under Arizona statute A.R.S. § 33-1808(B). The guidelines allow for two flags to be flown from a single pole, meaning the HOA did not prohibit the display of the flags themselves.

2. No Procedural Violation: The HOA Board complied with the 45-day decision period for appeals outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the Board rendered a decision at its November 8, 2018, meeting and that the subsequent posting of draft meeting minutes on December 4, 2018, constituted a sufficient written record within the required timeframe.

3. Dispute Driven by Aesthetics: The ALJ concluded that the core of the Petitioner’s case was not about patriotism or the HOA’s unreasonableness, but rather her personal preference. The decision states, “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons.” The ALJ found the testimony of the HOA’s president credible while deeming the Petitioner’s testimony that a decision was not made to be “incredible.”

I. Case Background and Timeline

The case centers on a single-issue petition filed on March 6, 2019, by Joyce H. Monsanto, a homeowner in the Four Seasons at the Manor community in Sun City, Arizona. Ms. Monsanto alleged that her HOA violated state law and its own CC&Rs by refusing to approve her application to affix two separate flagpoles to her house—one for the United States flag and one for the United States Marine Corps flag.

Ms. Monsanto’s family has a significant history of military service, including a husband who served 25 years in the Marines, one son with 25 years in the Marines, and another with 30 years in the Coast Guard.

Aug 31, 2018

Ms. Monsanto submits a Design Review Application to install two 6′ flagpoles on the exterior wall of her house.

Sep 22, 2018

The HOA’s Architectural Committee issues a written Notice of Disapproval, citing the Architectural Guidelines’ limit of one flagpole per lot.

Oct 1, 2018

Ms. Monsanto submits a written appeal to the HOA Board, arguing the denial was unreasonable and that the Board could grant a waiver.

Nov 8, 2018

The HOA Board holds a meeting where it states it considered the appeal. Testimony regarding the events of this meeting was a central point of contention in the case.

Dec 4, 2018

Draft minutes from the November 8 meeting are posted on the HOA website, stating the Board had rejected Ms. Monsanto’s request for a waiver for two flagpoles.

Mar 6, 2019

Ms. Monsanto files her petition with the Arizona Department of Real Estate.

May 30, 2019

An initial evidentiary hearing is held, with the ALJ finding that the Petitioner had not established a violation by the HOA.

Aug 22, 2019

The Commissioner of the Department of Real Estate grants Ms. Monsanto’s request for a rehearing.

Oct 21, 2019

A rehearing is held before the Office of Administrative Hearings.

Nov 18, 2019

The ALJ issues the final Amended Administrative Law Judge Decision, again finding in favor of the HOA.

II. Central Arguments and Evidence

Petitioner’s Position (Joyce H. Monsanto)

• Statutory and CC&R Violations: Argued the HOA’s denial violated A.R.S. § 33-1808 (governing flag display) and CC&R § 7.9 (the appeals process).

• Aesthetic and Practical Concerns: Acknowledged she could fly two flags from one pole but did not want to, stating it would block the view from her front window and was undesirable for “aesthetic reasons.”

• Failure to Follow Procedure: Claimed the Board violated CC&R § 7.9 by failing to render a decision and issue a written notice directly to her within the 45-day period following her appeal. She argued this failure should have triggered the “deemed approval” clause of the CC&R.

• Insufficiency of Notice: Maintained that the draft meeting minutes posted on the HOA’s website were not a valid written denial because they were not sent directly to her, did not explicitly mention her “appeal,” and were not formally approved until April 2019.

• Inconsistent Enforcement: Alleged that the HOA’s denial was unreasonable because it did not uniformly enforce its Architectural Guidelines.

Respondent’s Position (Four Seasons HOA)

• Compliance with Law: Asserted that its one-flagpole rule is a “reasonable” regulation permitted by A.R.S. § 33-1808(B) and does not prohibit the display of flags.

• Consistent Enforcement: HOA President Tony Nunziato testified that the Board has never granted a waiver for the one-flagpole rule and that all of the other approximately 14 homes (out of 140) with flagpoles have only one.

• Adherence to Appeal Procedure: Mr. Nunziato testified that the Board consulted with the Architectural Committee, considered the appeal at the November 8, 2018 meeting, and verbally informed Ms. Monsanto of the denial at that time.

• Timely Written Record: Contended that the draft meeting minutes posted online on December 4, 2018—within the 45-day window—served as the required written record of the decision, satisfying the terms of CC&R § 7.9.

III. Relevant Statutes and Community Rules

A.R.S. § 33-1808 (Flag Display)

• Protection of Display: An HOA “shall not prohibit the outdoor front yard or backyard display” of the American flag or military flags.

• Authority to Regulate: An HOA “shall adopt reasonable rules and regulations regarding the placement and manner of display.” Crucially, the statute specifies that these rules “may regulate the location and size of flagpoles, may limit the member to displaying no more than two flags at once and may limit the height of the flagpole… but shall not prohibit the installation of a flagpole.”

Four Seasons at the Manor Architectural Guidelines

• Original Rule (May 2016): “No flagpole shall be installed without the prior written approval of the Architectural Committee… and only one flagpole is permitted per Lot.” The maximum height was 12 feet.

• Amended Rule (November 8, 2018): The Board amended the guidelines, increasing the maximum pole height to 20 feet and adding rules for illumination at night. However, “The Board did not change the limit of one flagpole per lot.”

Four Seasons at the Manor CC&Rs

• CC&R § 7.8 (Board Approval for Initial Application): Requires the Board to “inform the submitting party of the final decision” and provide the owner with a “written response” within 60 days.

• CC&R § 7.9 (Appeals): In the event of an appeal of a disapproval, it requires the Board to “consult with the Architectural Committee” and “render its written decision” within 45 days. It further states that “Failure of the Board to render a decision within said forth-five (45) day period shall be deemed approval of the submission.”

IV. Administrative Law Judge’s Decision and Rationale

The ALJ’s order denied the Petitioner’s petition, affirming the HOA’s right to enforce its one-flagpole rule. The legal conclusions underpinning this decision were definitive.

Key Legal Conclusions

1. Burden of Proof Not Met: The Petitioner bore the burden of proving that the HOA violated the CC&Rs by a “preponderance of the evidence.” The ALJ concluded she failed to meet this standard.

2. HOA Rule Is Reasonable and Legal: The one-flagpole guideline is a reasonable rule explicitly authorized under A.R.S. § 33-1808(B). Because the Petitioner could fly both flags from a single pole, the HOA was regulating the manner of display, not prohibiting it.

3. Credibility of Testimony: The ALJ found the testimony of HOA President Tony Nunziato—that the Board consulted the committee, made a decision, and verbally informed the Petitioner—to be “credible and supported by the minutes of the meeting.” Conversely, the Petitioner’s testimony that the Board did not make a decision was found to be “incredible.”

4. Interpretation of the Appeals Process (CC&R § 7.9): This was a pivotal point of the ruling.

◦ Decision Rendered: The ALJ determined the Board “orally reached a decision” at the November 8, 2018 meeting, thus “rendering a decision” as required.

◦ Written Record Created: The draft meeting minutes posted on December 4, 2018, constituted a “writing memorializing its decision” within the 45-day timeframe that began with the October 1, 2018 appeal.

◦ No Direct Notification Required for Appeals: The ALJ applied the “negative implication cannon of contract construction.” Because CC&R § 7.8 (for initial applications) explicitly requires a written response be provided to the owner, and CC&R § 7.9 (for appeals) does not contain this specific language, the latter rule only requires that a written decision be created, not necessarily delivered to the appellant.

5. “Deemed Approval” Clause Not Triggered: Because the Board rendered a decision and created a written record within the 45-day period, the Petitioner did not establish that her request should have been deemed approved.

The final order concluded that the HOA Board can properly find Ms. Monsanto in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.


Joyce H Monsanto vs. Four Seasons at the Manor Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel —
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA did not violate A.R.S. § 33-1808 because its guideline limiting residents to one flagpole (which permits flying both the US flag and military flags) constitutes a reasonable rule under the statute. Furthermore, the HOA did not violate the appeal process outlined in CC&R § 7.9.

Why this result: Petitioner failed to establish that Respondent’s Board violated A.R.S. § 33-1808 or CC&R § 7. The board properly denied the application because the existing Architectural Guidelines allow her to fly both the American and Marine flags from a single flagpole, making her request for two poles an aesthetic choice rather than a necessity based on statutory right.

Key Issues & Findings

Refusal to allow installation of two flagpoles to display US and Marine Corps flags

Petitioner claimed Respondent violated statute (A.R.S. § 33-1808) and CC&Rs by denying her request to install two flagpoles for aesthetic reasons, arguing the denial effectively limited her right to display the flags and that the appeal process (CC&R § 7.9) was violated. The ALJ found the HOA's rule limiting flagpoles to one was a reasonable regulation under A.R.S. § 33-1808(B) because Petitioner could fly both flags on a single pole, and that the board complied with the appeal requirements of CC&R § 7.9.

Orders: Petitioner's petition is denied. The Board can properly find Petitioner in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • A.R.S. § 32-2199(B)
  • 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)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA, Flag, Flagpole, Architectural Review, CC&R, Rehearing, Military Flag
Additional Citations:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • A.R.S. § 32-2199(B)
  • 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)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

19F-H1919053-REL-RHG Decision – 749213.pdf

Uploaded 2025-10-08T07:09:08 (163.6 KB)

19F-H1919053-REL-RHG Decision – 753595.pdf

Uploaded 2025-10-08T07:09:09 (163.3 KB)





Briefing Doc – 19F-H1919053-REL-RHG


Briefing Document: Monsanto v. Four Seasons at the Manor HOA

Executive Summary

This document synthesizes the findings and decision in the case of Joyce H. Monsanto (Petitioner) versus the Four Seasons at the Manor Homeowners Association (Respondent), adjudicated by the Arizona Office of Administrative Hearings. The central dispute involved the HOA’s denial of Ms. Monsanto’s request to install two flagpoles on her property, a decision she contested as a violation of state law and the community’s governing documents.

The Administrative Law Judge (ALJ) ultimately denied the petition and ruled in favor of the HOA. The decision rested on three critical findings:

1. HOA Rules are Reasonable: The HOA’s Architectural Guideline limiting each property to a single flagpole is a “reasonable” regulation explicitly permitted under Arizona statute A.R.S. § 33-1808(B). The guidelines allow for two flags to be flown from a single pole, meaning the HOA did not prohibit the display of the flags themselves.

2. No Procedural Violation: The HOA Board complied with the 45-day decision period for appeals outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the Board rendered a decision at its November 8, 2018, meeting and that the subsequent posting of draft meeting minutes on December 4, 2018, constituted a sufficient written record within the required timeframe.

3. Dispute Driven by Aesthetics: The ALJ concluded that the core of the Petitioner’s case was not about patriotism or the HOA’s unreasonableness, but rather her personal preference. The decision states, “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons.” The ALJ found the testimony of the HOA’s president credible while deeming the Petitioner’s testimony that a decision was not made to be “incredible.”

I. Case Background and Timeline

The case centers on a single-issue petition filed on March 6, 2019, by Joyce H. Monsanto, a homeowner in the Four Seasons at the Manor community in Sun City, Arizona. Ms. Monsanto alleged that her HOA violated state law and its own CC&Rs by refusing to approve her application to affix two separate flagpoles to her house—one for the United States flag and one for the United States Marine Corps flag.

Ms. Monsanto’s family has a significant history of military service, including a husband who served 25 years in the Marines, one son with 25 years in the Marines, and another with 30 years in the Coast Guard.

Aug 31, 2018

Ms. Monsanto submits a Design Review Application to install two 6′ flagpoles on the exterior wall of her house.

Sep 22, 2018

The HOA’s Architectural Committee issues a written Notice of Disapproval, citing the Architectural Guidelines’ limit of one flagpole per lot.

Oct 1, 2018

Ms. Monsanto submits a written appeal to the HOA Board, arguing the denial was unreasonable and that the Board could grant a waiver.

Nov 8, 2018

The HOA Board holds a meeting where it states it considered the appeal. Testimony regarding the events of this meeting was a central point of contention in the case.

Dec 4, 2018

Draft minutes from the November 8 meeting are posted on the HOA website, stating the Board had rejected Ms. Monsanto’s request for a waiver for two flagpoles.

Mar 6, 2019

Ms. Monsanto files her petition with the Arizona Department of Real Estate.

May 30, 2019

An initial evidentiary hearing is held, with the ALJ finding that the Petitioner had not established a violation by the HOA.

Aug 22, 2019

The Commissioner of the Department of Real Estate grants Ms. Monsanto’s request for a rehearing.

Oct 21, 2019

A rehearing is held before the Office of Administrative Hearings.

Nov 18, 2019

The ALJ issues the final Amended Administrative Law Judge Decision, again finding in favor of the HOA.

II. Central Arguments and Evidence

Petitioner’s Position (Joyce H. Monsanto)

• Statutory and CC&R Violations: Argued the HOA’s denial violated A.R.S. § 33-1808 (governing flag display) and CC&R § 7.9 (the appeals process).

• Aesthetic and Practical Concerns: Acknowledged she could fly two flags from one pole but did not want to, stating it would block the view from her front window and was undesirable for “aesthetic reasons.”

• Failure to Follow Procedure: Claimed the Board violated CC&R § 7.9 by failing to render a decision and issue a written notice directly to her within the 45-day period following her appeal. She argued this failure should have triggered the “deemed approval” clause of the CC&R.

• Insufficiency of Notice: Maintained that the draft meeting minutes posted on the HOA’s website were not a valid written denial because they were not sent directly to her, did not explicitly mention her “appeal,” and were not formally approved until April 2019.

• Inconsistent Enforcement: Alleged that the HOA’s denial was unreasonable because it did not uniformly enforce its Architectural Guidelines.

Respondent’s Position (Four Seasons HOA)

• Compliance with Law: Asserted that its one-flagpole rule is a “reasonable” regulation permitted by A.R.S. § 33-1808(B) and does not prohibit the display of flags.

• Consistent Enforcement: HOA President Tony Nunziato testified that the Board has never granted a waiver for the one-flagpole rule and that all of the other approximately 14 homes (out of 140) with flagpoles have only one.

• Adherence to Appeal Procedure: Mr. Nunziato testified that the Board consulted with the Architectural Committee, considered the appeal at the November 8, 2018 meeting, and verbally informed Ms. Monsanto of the denial at that time.

• Timely Written Record: Contended that the draft meeting minutes posted online on December 4, 2018—within the 45-day window—served as the required written record of the decision, satisfying the terms of CC&R § 7.9.

III. Relevant Statutes and Community Rules

A.R.S. § 33-1808 (Flag Display)

• Protection of Display: An HOA “shall not prohibit the outdoor front yard or backyard display” of the American flag or military flags.

• Authority to Regulate: An HOA “shall adopt reasonable rules and regulations regarding the placement and manner of display.” Crucially, the statute specifies that these rules “may regulate the location and size of flagpoles, may limit the member to displaying no more than two flags at once and may limit the height of the flagpole… but shall not prohibit the installation of a flagpole.”

Four Seasons at the Manor Architectural Guidelines

• Original Rule (May 2016): “No flagpole shall be installed without the prior written approval of the Architectural Committee… and only one flagpole is permitted per Lot.” The maximum height was 12 feet.

• Amended Rule (November 8, 2018): The Board amended the guidelines, increasing the maximum pole height to 20 feet and adding rules for illumination at night. However, “The Board did not change the limit of one flagpole per lot.”

Four Seasons at the Manor CC&Rs

• CC&R § 7.8 (Board Approval for Initial Application): Requires the Board to “inform the submitting party of the final decision” and provide the owner with a “written response” within 60 days.

• CC&R § 7.9 (Appeals): In the event of an appeal of a disapproval, it requires the Board to “consult with the Architectural Committee” and “render its written decision” within 45 days. It further states that “Failure of the Board to render a decision within said forth-five (45) day period shall be deemed approval of the submission.”

IV. Administrative Law Judge’s Decision and Rationale

The ALJ’s order denied the Petitioner’s petition, affirming the HOA’s right to enforce its one-flagpole rule. The legal conclusions underpinning this decision were definitive.

Key Legal Conclusions

1. Burden of Proof Not Met: The Petitioner bore the burden of proving that the HOA violated the CC&Rs by a “preponderance of the evidence.” The ALJ concluded she failed to meet this standard.

2. HOA Rule Is Reasonable and Legal: The one-flagpole guideline is a reasonable rule explicitly authorized under A.R.S. § 33-1808(B). Because the Petitioner could fly both flags from a single pole, the HOA was regulating the manner of display, not prohibiting it.

3. Credibility of Testimony: The ALJ found the testimony of HOA President Tony Nunziato—that the Board consulted the committee, made a decision, and verbally informed the Petitioner—to be “credible and supported by the minutes of the meeting.” Conversely, the Petitioner’s testimony that the Board did not make a decision was found to be “incredible.”

4. Interpretation of the Appeals Process (CC&R § 7.9): This was a pivotal point of the ruling.

◦ Decision Rendered: The ALJ determined the Board “orally reached a decision” at the November 8, 2018 meeting, thus “rendering a decision” as required.

◦ Written Record Created: The draft meeting minutes posted on December 4, 2018, constituted a “writing memorializing its decision” within the 45-day timeframe that began with the October 1, 2018 appeal.

◦ No Direct Notification Required for Appeals: The ALJ applied the “negative implication cannon of contract construction.” Because CC&R § 7.8 (for initial applications) explicitly requires a written response be provided to the owner, and CC&R § 7.9 (for appeals) does not contain this specific language, the latter rule only requires that a written decision be created, not necessarily delivered to the appellant.

5. “Deemed Approval” Clause Not Triggered: Because the Board rendered a decision and created a written record within the 45-day period, the Petitioner did not establish that her request should have been deemed approved.

The final order concluded that the HOA Board can properly find Ms. Monsanto in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.


Travis Prall v. Villas at Tierra Buena Homeowners

Posted on by

Case Summary

Case ID 18F-H1818053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-31
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Travis Prall Counsel —
Respondent Villas at Tierra Buena Homeowners Association Counsel Lydia Pierce Linsmeier

Alleged Violations

Section 7.1.4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof to show the HOA violated Section 7.1.4 of the CC&Rs because there was no credible evidence that the disputed landscaping (tree) had been originally installed by the developer.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the landscaping was originally installed by the Declarant, which was a prerequisite for HOA maintenance responsibility under the relevant CC&R section.

Key Issues & Findings

Neglecting yard maintenance in visible public yards

Petitioner alleged the HOA violated CC&R Section 7.1.4 by failing to maintain a tree in his back yard, arguing the back yard qualified as a 'Public Yard' and the tree was originally installed by the Declarant.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA maintenance, CC&R interpretation, burden of proof, landscaping
Additional Citations:

  • A.R.S. § 41-2198.01
  • 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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

18F-H1818053-REL-RHG Decision – 686236.pdf

Uploaded 2025-10-09T03:33:07 (116.2 KB)





Briefing Doc – 18F-H1818053-REL-RHG


Briefing: Prall v. Villas at Tierra Buena HOA Dispute

Executive Summary

This briefing synthesizes the findings and legal rationale from a homeowners’ association dispute between Petitioner Travis Prall and Respondent Villas at Tierra Buena HOA. The case centered on whether the HOA was responsible for maintaining a tree in the Petitioner’s backyard. The Petitioner alleged the HOA violated Section 7.1.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs) by neglecting maintenance in what he defined as a “Public Yard.”

The dispute was adjudicated by the Arizona Office of Administrative Hearings, resulting in two decisions, an initial ruling and a subsequent ruling on rehearing, both of which dismissed the Petitioner’s case. The critical takeaway is that the case was decided not on the ambiguous definition of “Public” versus “Private” yards, but on a crucial qualifying clause in the CC&Rs. Section 7.1.4 obligates the HOA to maintain landscaping only “as originally installed by Declarant.”

The Petitioner failed to provide sufficient evidence that the tree in question was part of the original developer’s landscaping. Conversely, the HOA presented credible testimony from an early homeowner and board member stating that all backyards in the community were sold as “just dirt,” with no developer-installed landscaping or irrigation. The Administrative Law Judge ruled that the Petitioner’s arguments were based on “suppositions and inferences” and did not meet the “preponderance of the evidence” standard required to prove his claim.

Case Overview

This dispute was initiated by a petition filed with the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings. The core issue was the interpretation of HOA maintenance responsibilities as defined in the community’s governing documents.

Case Detail

Information

Case Number

18F-H1818053-REL

Petitioner

Travis Prall

Respondent

Villas at Tierra Buena HOA

Adjudicator

Administrative Law Judge Tammy L. Eigenheer

Initial Hearing

September 4, 2018

Initial Decision

September 24, 2018 (Petition Dismissed)

Rehearing

January 11, 2019

Final Decision

January 31, 2019 (Petition Dismissed)

Timeline of Key Events

• 2010: Petitioner Travis Prall purchases his home, an “interior” unit, and believes the HOA is responsible for both front and backyard maintenance.

• July 26, 2014: A storm knocks over a large tree in the Petitioner’s backyard. He pays for its removal while asserting it was the HOA’s responsibility.

• Post-2014: The tree regrows from its remaining trunk.

• 2018: The HOA observes that the regrown tree’s roots are causing a “pony wall” to buckle and hires Sun King Fencing & Gates to perform repairs. The repair company recommends removing the tree to prevent recurrence.

• May 3, 2018: The HOA issues a “Courtesy Letter” to the Petitioner, requesting he “trim or remove the tree in the back yard causing damage to the pony wall.”

• June 4, 2018: In response, the Petitioner files a Dispute Process Petition with the Arizona Department of Real Estate, initiating the legal proceedings.

Central Allegation and Dispute

The Petitioner alleged that the Villas at Tierra Buena HOA violated Section 7.1.4 of its CC&Rs by “neglecting yard maintenance in visible public yards.” His central claim was that his backyard, though enclosed, qualifies as a “Public Yard” under the CC&Rs and that the HOA was therefore responsible for the maintenance and removal of the problematic tree. The HOA’s demand that he handle the tree himself constituted, in his view, a violation of their duties.

Analysis of Arguments and Evidence

The case presented conflicting interpretations of the CC&Rs and opposing accounts of historical maintenance practices.

Petitioner’s Position (Travis Prall)

The Petitioner’s case was built on his interpretation of the CC&Rs and inferences drawn from circumstantial evidence.

• CC&R Interpretation: Argued that his backyard is a “Public Yard” because, while enclosed by a four-foot wall (two-foot block plus two-foot aluminum fence), it is “generally visible from Neighboring Property” via a community walkway.

• Claim of Prior Maintenance: Testified that from 2010 to 2013, the HOA did provide landscaping maintenance for his backyard.

• Inferences about Original Landscaping:

◦ Posited that the large size of the tree in 2010 indicated it must have been planted by the original developer around 2000.

◦ Argued that the similar design of irrigation systems across the community suggested they were all installed during original construction, including those in backyards.

◦ Noted that the sprinkler system in his backyard wrapped around the tree, further suggesting they were installed together by the developer.

Respondent’s Position (Villas at Tierra Buena HOA)

The Respondent’s defense relied on its own interpretation of the CC&Rs, consistent historical practice, and direct testimony regarding the community’s development.

• CC&R Interpretation: Argued that an “enclosed” yard is, by definition, a “Private Yard,” making the homeowner responsible for its maintenance.

• Denial of Prior Maintenance: Stated unequivocally that it had never provided landscaping services for any resident’s backyard. Its responsibility is limited to front yards and common areas.

• Practical and Liability Concerns: Argued that it has no access to control backyard irrigation systems and that its workers entering enclosed yards would create liability issues, such as pets escaping.

• Crucial Rehearing Testimony: Presented testimony from Maureen Karpinski, the HOA Board President.

◦ Ms. Karpinski, a real estate agent, purchased her home from the developer in 2002 and was involved with the community during its construction phase.

◦ She testified with certainty that her backyard was “just dirt” with no landscaping or irrigation when she purchased it.

◦ She stated that, to the best of her knowledge, “none of the homes in Respondent’s community were sold with any landscaping or irrigation in the back yards and were just dirt.”

Interpretation of Governing CC&R Sections

The dispute revolved around the specific language in the Declaration of Covenants, Conditions, Restrictions and Easements.

Section

Provision

Significance in the Case

The HOA must “Replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots…“

This became the dispositive clause. The Petitioner’s entire claim depended on proving the tree was “originally installed by Declarant.”

“Private Yard” means that portion of a Yard which is enclosed or shielded from view… so that it is not generally Visible from Neighboring Property. “Public Yard” means that portion of a Yard which is generally visible from Neighboring Property…

This created a central point of interpretive conflict. The Petitioner argued the clause meant “enclosed and not visible,” while the HOA argued it meant “enclosed or shielded.” The Judge ultimately did not rule on this ambiguity.

“Visible from Neighboring Property” means… visible to a person six feet tall standing on any part of such neighboring property…

This definition supported the Petitioner’s claim that his backyard was, in fact, “visible” from the common area walkway.

Administrative Law Judge’s Rulings and Rationale

The Administrative Law Judge (ALJ) dismissed the Petitioner’s case in both the initial hearing and the rehearing, focusing on the burden of proof related to a single, critical phrase in the CC&Rs.

Initial Decision (September 24, 2018)

• Avoidance of Ambiguity: The ALJ acknowledged the potential merit of the Petitioner’s interpretation of “Public Yard,” stating “the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards of the interior homes.” However, the ALJ concluded the tribunal was “not required to reach that issue in this matter.”

• Focus on “Originally Installed by Declarant”: The decision hinged entirely on Section 7.1.4. The ALJ found that the “Petitioner failed to present any evidence that the tree at issue was originally installed by the Declarant.”

• Lack of Proof: The ALJ noted that the tree’s rapid regrowth from 2013 to 2018 made it impossible to conclude that the original tree must have been planted by the developer in 2000.

• Conclusion: The Petitioner failed to meet the “preponderance of the evidence” burden of proof, and the petition was dismissed.

Rehearing Decision (January 31, 2019)

• Rejection of Petitioner’s Inferences: The ALJ characterized the Petitioner’s evidence regarding the tree’s age and the irrigation system as “suppositions and inferences.”

• Credibility of Respondent’s Testimony: In contrast, the ALJ found the testimony of HOA President Maureen Karpinski to be “the only credible evidence offered regarding the landscaping of the homes.”

• Definitive Factual Finding: Based on Ms. Karpinski’s testimony, the ALJ concluded there was “no evidence there was any landscaping or improvements originally installed by Declarant.”

• Final Conclusion: As the precondition of Section 7.1.4 (that landscaping be “originally installed by Declarant”) was not met, the HOA had no maintenance duty for the Petitioner’s backyard. The Petitioner again failed to establish his case by a preponderance of the evidence, and the petition was dismissed with finality.


Travis Prall v. Villas at Tierra Buena Homeowners

Posted on by

Case Summary

Case ID 18F-H1818053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-31
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Travis Prall Counsel —
Respondent Villas at Tierra Buena Homeowners Association Counsel Lydia Pierce Linsmeier

Alleged Violations

Section 7.1.4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof to show the HOA violated Section 7.1.4 of the CC&Rs because there was no credible evidence that the disputed landscaping (tree) had been originally installed by the developer.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the landscaping was originally installed by the Declarant, which was a prerequisite for HOA maintenance responsibility under the relevant CC&R section.

Key Issues & Findings

Neglecting yard maintenance in visible public yards

Petitioner alleged the HOA violated CC&R Section 7.1.4 by failing to maintain a tree in his back yard, arguing the back yard qualified as a 'Public Yard' and the tree was originally installed by the Declarant.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA maintenance, CC&R interpretation, burden of proof, landscaping
Additional Citations:

  • A.R.S. § 41-2198.01
  • 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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

18F-H1818053-REL-RHG Decision – 686236.pdf

Uploaded 2025-10-08T07:06:19 (116.2 KB)





Briefing Doc – 18F-H1818053-REL-RHG


Briefing: Prall v. Villas at Tierra Buena HOA Dispute

Executive Summary

This briefing synthesizes the findings and legal rationale from a homeowners’ association dispute between Petitioner Travis Prall and Respondent Villas at Tierra Buena HOA. The case centered on whether the HOA was responsible for maintaining a tree in the Petitioner’s backyard. The Petitioner alleged the HOA violated Section 7.1.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs) by neglecting maintenance in what he defined as a “Public Yard.”

The dispute was adjudicated by the Arizona Office of Administrative Hearings, resulting in two decisions, an initial ruling and a subsequent ruling on rehearing, both of which dismissed the Petitioner’s case. The critical takeaway is that the case was decided not on the ambiguous definition of “Public” versus “Private” yards, but on a crucial qualifying clause in the CC&Rs. Section 7.1.4 obligates the HOA to maintain landscaping only “as originally installed by Declarant.”

The Petitioner failed to provide sufficient evidence that the tree in question was part of the original developer’s landscaping. Conversely, the HOA presented credible testimony from an early homeowner and board member stating that all backyards in the community were sold as “just dirt,” with no developer-installed landscaping or irrigation. The Administrative Law Judge ruled that the Petitioner’s arguments were based on “suppositions and inferences” and did not meet the “preponderance of the evidence” standard required to prove his claim.

Case Overview

This dispute was initiated by a petition filed with the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings. The core issue was the interpretation of HOA maintenance responsibilities as defined in the community’s governing documents.

Case Detail

Information

Case Number

18F-H1818053-REL

Petitioner

Travis Prall

Respondent

Villas at Tierra Buena HOA

Adjudicator

Administrative Law Judge Tammy L. Eigenheer

Initial Hearing

September 4, 2018

Initial Decision

September 24, 2018 (Petition Dismissed)

Rehearing

January 11, 2019

Final Decision

January 31, 2019 (Petition Dismissed)

Timeline of Key Events

• 2010: Petitioner Travis Prall purchases his home, an “interior” unit, and believes the HOA is responsible for both front and backyard maintenance.

• July 26, 2014: A storm knocks over a large tree in the Petitioner’s backyard. He pays for its removal while asserting it was the HOA’s responsibility.

• Post-2014: The tree regrows from its remaining trunk.

• 2018: The HOA observes that the regrown tree’s roots are causing a “pony wall” to buckle and hires Sun King Fencing & Gates to perform repairs. The repair company recommends removing the tree to prevent recurrence.

• May 3, 2018: The HOA issues a “Courtesy Letter” to the Petitioner, requesting he “trim or remove the tree in the back yard causing damage to the pony wall.”

• June 4, 2018: In response, the Petitioner files a Dispute Process Petition with the Arizona Department of Real Estate, initiating the legal proceedings.

Central Allegation and Dispute

The Petitioner alleged that the Villas at Tierra Buena HOA violated Section 7.1.4 of its CC&Rs by “neglecting yard maintenance in visible public yards.” His central claim was that his backyard, though enclosed, qualifies as a “Public Yard” under the CC&Rs and that the HOA was therefore responsible for the maintenance and removal of the problematic tree. The HOA’s demand that he handle the tree himself constituted, in his view, a violation of their duties.

Analysis of Arguments and Evidence

The case presented conflicting interpretations of the CC&Rs and opposing accounts of historical maintenance practices.

Petitioner’s Position (Travis Prall)

The Petitioner’s case was built on his interpretation of the CC&Rs and inferences drawn from circumstantial evidence.

• CC&R Interpretation: Argued that his backyard is a “Public Yard” because, while enclosed by a four-foot wall (two-foot block plus two-foot aluminum fence), it is “generally visible from Neighboring Property” via a community walkway.

• Claim of Prior Maintenance: Testified that from 2010 to 2013, the HOA did provide landscaping maintenance for his backyard.

• Inferences about Original Landscaping:

◦ Posited that the large size of the tree in 2010 indicated it must have been planted by the original developer around 2000.

◦ Argued that the similar design of irrigation systems across the community suggested they were all installed during original construction, including those in backyards.

◦ Noted that the sprinkler system in his backyard wrapped around the tree, further suggesting they were installed together by the developer.

Respondent’s Position (Villas at Tierra Buena HOA)

The Respondent’s defense relied on its own interpretation of the CC&Rs, consistent historical practice, and direct testimony regarding the community’s development.

• CC&R Interpretation: Argued that an “enclosed” yard is, by definition, a “Private Yard,” making the homeowner responsible for its maintenance.

• Denial of Prior Maintenance: Stated unequivocally that it had never provided landscaping services for any resident’s backyard. Its responsibility is limited to front yards and common areas.

• Practical and Liability Concerns: Argued that it has no access to control backyard irrigation systems and that its workers entering enclosed yards would create liability issues, such as pets escaping.

• Crucial Rehearing Testimony: Presented testimony from Maureen Karpinski, the HOA Board President.

◦ Ms. Karpinski, a real estate agent, purchased her home from the developer in 2002 and was involved with the community during its construction phase.

◦ She testified with certainty that her backyard was “just dirt” with no landscaping or irrigation when she purchased it.

◦ She stated that, to the best of her knowledge, “none of the homes in Respondent’s community were sold with any landscaping or irrigation in the back yards and were just dirt.”

Interpretation of Governing CC&R Sections

The dispute revolved around the specific language in the Declaration of Covenants, Conditions, Restrictions and Easements.

Section

Provision

Significance in the Case

The HOA must “Replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots…“

This became the dispositive clause. The Petitioner’s entire claim depended on proving the tree was “originally installed by Declarant.”

“Private Yard” means that portion of a Yard which is enclosed or shielded from view… so that it is not generally Visible from Neighboring Property. “Public Yard” means that portion of a Yard which is generally visible from Neighboring Property…

This created a central point of interpretive conflict. The Petitioner argued the clause meant “enclosed and not visible,” while the HOA argued it meant “enclosed or shielded.” The Judge ultimately did not rule on this ambiguity.

“Visible from Neighboring Property” means… visible to a person six feet tall standing on any part of such neighboring property…

This definition supported the Petitioner’s claim that his backyard was, in fact, “visible” from the common area walkway.

Administrative Law Judge’s Rulings and Rationale

The Administrative Law Judge (ALJ) dismissed the Petitioner’s case in both the initial hearing and the rehearing, focusing on the burden of proof related to a single, critical phrase in the CC&Rs.

Initial Decision (September 24, 2018)

• Avoidance of Ambiguity: The ALJ acknowledged the potential merit of the Petitioner’s interpretation of “Public Yard,” stating “the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards of the interior homes.” However, the ALJ concluded the tribunal was “not required to reach that issue in this matter.”

• Focus on “Originally Installed by Declarant”: The decision hinged entirely on Section 7.1.4. The ALJ found that the “Petitioner failed to present any evidence that the tree at issue was originally installed by the Declarant.”

• Lack of Proof: The ALJ noted that the tree’s rapid regrowth from 2013 to 2018 made it impossible to conclude that the original tree must have been planted by the developer in 2000.

• Conclusion: The Petitioner failed to meet the “preponderance of the evidence” burden of proof, and the petition was dismissed.

Rehearing Decision (January 31, 2019)

• Rejection of Petitioner’s Inferences: The ALJ characterized the Petitioner’s evidence regarding the tree’s age and the irrigation system as “suppositions and inferences.”

• Credibility of Respondent’s Testimony: In contrast, the ALJ found the testimony of HOA President Maureen Karpinski to be “the only credible evidence offered regarding the landscaping of the homes.”

• Definitive Factual Finding: Based on Ms. Karpinski’s testimony, the ALJ concluded there was “no evidence there was any landscaping or improvements originally installed by Declarant.”

• Final Conclusion: As the precondition of Section 7.1.4 (that landscaping be “originally installed by Declarant”) was not met, the HOA had no maintenance duty for the Petitioner’s backyard. The Petitioner again failed to establish his case by a preponderance of the evidence, and the petition was dismissed with finality.


Travis Prall v. Villas at Tierra Buena HOA

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Case Summary

Case ID 18F-H1818053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-31
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Travis Prall Counsel —
Respondent Villas at Tierra Buena Homeowners Association Counsel Lydia Pierce Linsmeier

Alleged Violations

Section 7.1.4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof to show the HOA violated Section 7.1.4 of the CC&Rs because there was no credible evidence that the disputed landscaping (tree) had been originally installed by the developer.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the landscaping was originally installed by the Declarant, which was a prerequisite for HOA maintenance responsibility under the relevant CC&R section.

Key Issues & Findings

Neglecting yard maintenance in visible public yards

Petitioner alleged the HOA violated CC&R Section 7.1.4 by failing to maintain a tree in his back yard, arguing the back yard qualified as a 'Public Yard' and the tree was originally installed by the Declarant.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA maintenance, CC&R interpretation, burden of proof, landscaping
Additional Citations:

  • A.R.S. § 41-2198.01
  • 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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

18F-H1818053-REL Decision – 661820.pdf

Uploaded 2025-10-09T03:33:06 (107.3 KB)





Briefing Doc – 18F-H1818053-REL


Briefing: Prall v. Villas at Tierra Buena HOA Dispute

Executive Summary

This briefing synthesizes the findings and legal rationale from a homeowners’ association dispute between Petitioner Travis Prall and Respondent Villas at Tierra Buena HOA. The case centered on whether the HOA was responsible for maintaining a tree in the Petitioner’s backyard. The Petitioner alleged the HOA violated Section 7.1.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs) by neglecting maintenance in what he defined as a “Public Yard.”

The dispute was adjudicated by the Arizona Office of Administrative Hearings, resulting in two decisions, an initial ruling and a subsequent ruling on rehearing, both of which dismissed the Petitioner’s case. The critical takeaway is that the case was decided not on the ambiguous definition of “Public” versus “Private” yards, but on a crucial qualifying clause in the CC&Rs. Section 7.1.4 obligates the HOA to maintain landscaping only “as originally installed by Declarant.”

The Petitioner failed to provide sufficient evidence that the tree in question was part of the original developer’s landscaping. Conversely, the HOA presented credible testimony from an early homeowner and board member stating that all backyards in the community were sold as “just dirt,” with no developer-installed landscaping or irrigation. The Administrative Law Judge ruled that the Petitioner’s arguments were based on “suppositions and inferences” and did not meet the “preponderance of the evidence” standard required to prove his claim.

Case Overview

This dispute was initiated by a petition filed with the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings. The core issue was the interpretation of HOA maintenance responsibilities as defined in the community’s governing documents.

Case Detail

Information

Case Number

18F-H1818053-REL

Petitioner

Travis Prall

Respondent

Villas at Tierra Buena HOA

Adjudicator

Administrative Law Judge Tammy L. Eigenheer

Initial Hearing

September 4, 2018

Initial Decision

September 24, 2018 (Petition Dismissed)

Rehearing

January 11, 2019

Final Decision

January 31, 2019 (Petition Dismissed)

Timeline of Key Events

• 2010: Petitioner Travis Prall purchases his home, an “interior” unit, and believes the HOA is responsible for both front and backyard maintenance.

• July 26, 2014: A storm knocks over a large tree in the Petitioner’s backyard. He pays for its removal while asserting it was the HOA’s responsibility.

• Post-2014: The tree regrows from its remaining trunk.

• 2018: The HOA observes that the regrown tree’s roots are causing a “pony wall” to buckle and hires Sun King Fencing & Gates to perform repairs. The repair company recommends removing the tree to prevent recurrence.

• May 3, 2018: The HOA issues a “Courtesy Letter” to the Petitioner, requesting he “trim or remove the tree in the back yard causing damage to the pony wall.”

• June 4, 2018: In response, the Petitioner files a Dispute Process Petition with the Arizona Department of Real Estate, initiating the legal proceedings.

Central Allegation and Dispute

The Petitioner alleged that the Villas at Tierra Buena HOA violated Section 7.1.4 of its CC&Rs by “neglecting yard maintenance in visible public yards.” His central claim was that his backyard, though enclosed, qualifies as a “Public Yard” under the CC&Rs and that the HOA was therefore responsible for the maintenance and removal of the problematic tree. The HOA’s demand that he handle the tree himself constituted, in his view, a violation of their duties.

Analysis of Arguments and Evidence

The case presented conflicting interpretations of the CC&Rs and opposing accounts of historical maintenance practices.

Petitioner’s Position (Travis Prall)

The Petitioner’s case was built on his interpretation of the CC&Rs and inferences drawn from circumstantial evidence.

• CC&R Interpretation: Argued that his backyard is a “Public Yard” because, while enclosed by a four-foot wall (two-foot block plus two-foot aluminum fence), it is “generally visible from Neighboring Property” via a community walkway.

• Claim of Prior Maintenance: Testified that from 2010 to 2013, the HOA did provide landscaping maintenance for his backyard.

• Inferences about Original Landscaping:

◦ Posited that the large size of the tree in 2010 indicated it must have been planted by the original developer around 2000.

◦ Argued that the similar design of irrigation systems across the community suggested they were all installed during original construction, including those in backyards.

◦ Noted that the sprinkler system in his backyard wrapped around the tree, further suggesting they were installed together by the developer.

Respondent’s Position (Villas at Tierra Buena HOA)

The Respondent’s defense relied on its own interpretation of the CC&Rs, consistent historical practice, and direct testimony regarding the community’s development.

• CC&R Interpretation: Argued that an “enclosed” yard is, by definition, a “Private Yard,” making the homeowner responsible for its maintenance.

• Denial of Prior Maintenance: Stated unequivocally that it had never provided landscaping services for any resident’s backyard. Its responsibility is limited to front yards and common areas.

• Practical and Liability Concerns: Argued that it has no access to control backyard irrigation systems and that its workers entering enclosed yards would create liability issues, such as pets escaping.

• Crucial Rehearing Testimony: Presented testimony from Maureen Karpinski, the HOA Board President.

◦ Ms. Karpinski, a real estate agent, purchased her home from the developer in 2002 and was involved with the community during its construction phase.

◦ She testified with certainty that her backyard was “just dirt” with no landscaping or irrigation when she purchased it.

◦ She stated that, to the best of her knowledge, “none of the homes in Respondent’s community were sold with any landscaping or irrigation in the back yards and were just dirt.”

Interpretation of Governing CC&R Sections

The dispute revolved around the specific language in the Declaration of Covenants, Conditions, Restrictions and Easements.

Section

Provision

Significance in the Case

The HOA must “Replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots…“

This became the dispositive clause. The Petitioner’s entire claim depended on proving the tree was “originally installed by Declarant.”

“Private Yard” means that portion of a Yard which is enclosed or shielded from view… so that it is not generally Visible from Neighboring Property. “Public Yard” means that portion of a Yard which is generally visible from Neighboring Property…

This created a central point of interpretive conflict. The Petitioner argued the clause meant “enclosed and not visible,” while the HOA argued it meant “enclosed or shielded.” The Judge ultimately did not rule on this ambiguity.

“Visible from Neighboring Property” means… visible to a person six feet tall standing on any part of such neighboring property…

This definition supported the Petitioner’s claim that his backyard was, in fact, “visible” from the common area walkway.

Administrative Law Judge’s Rulings and Rationale

The Administrative Law Judge (ALJ) dismissed the Petitioner’s case in both the initial hearing and the rehearing, focusing on the burden of proof related to a single, critical phrase in the CC&Rs.

Initial Decision (September 24, 2018)

• Avoidance of Ambiguity: The ALJ acknowledged the potential merit of the Petitioner’s interpretation of “Public Yard,” stating “the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards of the interior homes.” However, the ALJ concluded the tribunal was “not required to reach that issue in this matter.”

• Focus on “Originally Installed by Declarant”: The decision hinged entirely on Section 7.1.4. The ALJ found that the “Petitioner failed to present any evidence that the tree at issue was originally installed by the Declarant.”

• Lack of Proof: The ALJ noted that the tree’s rapid regrowth from 2013 to 2018 made it impossible to conclude that the original tree must have been planted by the developer in 2000.

• Conclusion: The Petitioner failed to meet the “preponderance of the evidence” burden of proof, and the petition was dismissed.

Rehearing Decision (January 31, 2019)

• Rejection of Petitioner’s Inferences: The ALJ characterized the Petitioner’s evidence regarding the tree’s age and the irrigation system as “suppositions and inferences.”

• Credibility of Respondent’s Testimony: In contrast, the ALJ found the testimony of HOA President Maureen Karpinski to be “the only credible evidence offered regarding the landscaping of the homes.”

• Definitive Factual Finding: Based on Ms. Karpinski’s testimony, the ALJ concluded there was “no evidence there was any landscaping or improvements originally installed by Declarant.”

• Final Conclusion: As the precondition of Section 7.1.4 (that landscaping be “originally installed by Declarant”) was not met, the HOA had no maintenance duty for the Petitioner’s backyard. The Petitioner again failed to establish his case by a preponderance of the evidence, and the petition was dismissed with finality.