ALJDEC decisions subject to certification as final

20F-H2019004-REL · Department of Real Estate - H/C · 2019-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael D. Pursley,

Petitioner,

vs.

Sycamore Vista No. 7 Homeowners Association, Inc.,

Respondent.

No. 20F-H2019004-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 18, 2019

APPEARANCES: Petitioner Michael D. Pursley appeared on his own behalf. Respondent Sycamore Vista No. 7 Homeowners Association, Inc. was represented by Maxwell T. Riddiough.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

At all times relevant to this matter, Petitioner Michael D. Pursley was a member of Respondent Sycamore Vista No. 7 Homeowners Association, Inc.

Respondent did not have an annual member meeting in 2017 or 2018.

On or about January 20, 2019, Petitioner sent a letter to Respondent’s management company “requesting a copy of the CC&Rs” among other concerns not relevant to this matter.

On or about April 6, 2019, Petitioner sent a certified letter to Respondent’s management company “requesting a copy of the CC&Rs” among other concerns not relevant to this matter.

On or about June 21, 2019, Petitioner sent a certified letter to Respondent’s management company requesting “a copy of the CC&Rs” and “the Rules and Regulations, Bylaws for the Association, and the Financial Statement for Unit 7.”

On or about June 27, 2019, Respondent’s management company emailed Petitioner with an attached copy of the governing documents and the balance sheet in response to Petitioner’s request.

On or about July 24, 2019, the Arizona Department of Real Estate (Department) received a Homeowners Association (HOA) Dispute Process Petition (Petition) from Petitioner alleging that Respondent failed to hold annual meetings pursuant to A.R.S. § 33-1804 and to timely respond to his records requests pursuant to A.R.S. § 33-1805.

On or about August 5, 2019, Respondent filed an Answer to the Petition. In its Answer, Respondent denied all of the complaint items in the Petition.

On or about August 23, 2019, the Department issued a Notice of Hearing setting the above-captioned matter for hearing at 8:30 a.m. on October 18, 2019. The Notice of Hearing set forth the issue to addressed at hearing as follows:

The Petitioner alleges that Sycamore Vista No. 7 Homeowners Association, Inc. violated A.R.S. § 33-1804(B) and 33-1805 in a two issue petition.

At hearing, Petitioner’s position was that Respondent failed to hold the annual meetings in 2017 and 2018 as required and that Respondent repeatedly failed to provide him the requested community documents within 20 business days as required. Petitioner initially denied having received the June 27, 2019 email that included the requested documents, but acknowledged that Respondent did email the documents to him even if he did not see them when they were sent to him.

Respondent acknowledged that it did not hold annual meetings in 2017 and 2018. Respondent’s witness indicated that because the lots were undeveloped and no one was living in the association, Respondent believed it would be unable to have the number of owners present to make a quorum necessary to hold the annual meeting. By 2019, a corporate entity had purchased enough of the lots in the association to constitute a quorum.

CONCLUSIONS OF LAW

The Department has jurisdiction to hear disputes between a property owner and a condominium owners association. A.R.S. § 32-2199 et seq.

In this proceeding, Petitioner bear the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1804. A.A.C. R2-19-119.

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

A.R.S. § 33-1804 provides, in relevant part, as follows:

B. . . . . A meeting of the members' association shall be held at least once each year.

A.R.S. § 33-1805 provides in pertinent part follows:

A. Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative. The association shall not charge a member or any person designated by the member in writing for making material available for review. The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.

Petitioner established by a preponderance of the evidence that Respondent failed to hold annual meetings in 2017 and 2018 as required by A.R.S. § 33-1804(B). Respondent did hold the 2019 annual meeting as required.

Petitioner also established by a preponderance of the evidence that Respondent failed to timely respond to his requests for community documents as required by A.R.S. § 33-1805(A). Petitioner was eventually provided with the requested documents.

This Tribunal concludes that Respondent violated the charged provisions of A.R.S. § 33-1804(B) and A.R.S. § 33-1805(A).

order

In view of the foregoing, it is ORDERED that Petitioner be deemed the prevailing party in this matter.

It is further ORDERED that Respondent pay Petitioner his filing fee of $1000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

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

NOTICE

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04. Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

-54864001

001

-137160-45720000

Done this day, December 4, 2019.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile December 4, 2019, to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Michael D. Pursley, Petitioner

1859 S Sunburst Dr.

Tucson, AZ 85748

Sycamore Vista No 7 HOA, Inc.

c/o BRADLEY P MILLER (Statutory Agent)

70 W CUSHING ST

TUCSON, AZ 85701

By -54864001

001

-137160-45720000Felicia Del Sol