Arizona Supreme Court | CC&R Amendments | CV-20-0152-PR
Kalway is the controlling Arizona case on HOA amendment power. A majority vote and a broad amendment clause are not enough when the new restriction was not reasonably foreseeable from the original recorded declaration.
Last updated June 12, 2026. Case: Maarten Kalway v. Calabria Ranch HOA, LLC, et al., Arizona Supreme Court No. CV-20-0152-PR; Arizona Court of Appeals Division Two No. 2 CA-CV 2019-0106; Pima County Superior Court No. C20181284.
Scope note: This page combines two layers of the case record. The uploaded source packet is the 2019-2020 Division Two appellate docket. The final controlling Arizona law comes from the Arizona Supreme Court’s March 22, 2022 opinion, which vacated the Court of Appeals memorandum decision and reversed in part.
Research caution: The 2020 Court of Appeals decision affirmed the trial court and awarded fees to the appellees. That result is not the final word. The Supreme Court later held that very few challenged amendments survived and awarded fees to Kalway in the Supreme Court and Court of Appeals.
The rule in one sentence
A general HOA amendment clause can support only changes that are reasonable and foreseeable from the original declaration; it cannot be used as a blank check to create entirely new servitudes or materially different burdens.
Case snapshot
Arizona Supreme Court reversed in part, remanded, and vacated the Court of Appeals memorandum decision.
Reasonable-and-foreseeable notice for HOA CC&R amendments under A.R.S. 33-1817 and Arizona common law.
26 appellate source files from Division Two, including briefs, oral-argument documents, publication papers, and fee/cost filings.
Compare the original declaration to the amendment section by section before relying on any majority-vote amendment.
Case Dossier
This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.
Case Summary
| Case ID / citation | 252 Ariz. 532, 506 P.3d 18 (2022) |
|---|---|
| Court / tribunal | Arizona Supreme Court |
| Decision / key date | March 22, 2022 |
| Judge / panel | Chief Justice Robert M. Brutinel |
| Parties | A subdivision owner challenged broad amended CC&Rs adopted by the HOA and other owners. |
| Governing law | |
| Topics | cc-and-rsboard-governance |
| Outcome / holding | A general amendment provision does not authorize an HOA to impose entirely new and different restrictions unless the original declaration gave owners sufficient notice that those kinds of changes could later be adopted. |
| Primary public source | View source opinion/order |
Parties, Court, and Research Coverage
| Uploaded source package | 18 PDFs, 9 other source files |
|---|---|
| Step-by-step docket roadmap | 26 roadmap entries |
| Video overview | No video embed currently configured |
| Study / briefing material | 2 sections |
| FAQ / homeowner questions | 5 questions |
| Curated download aliases | 6 download links |
Key Issues & Findings
This is the modern Arizona Supreme Court case on how far an HOA can go when amending CC&Rs. Calabria Ranch used a general amendment clause to adopt major new restrictions affecting home size, outbuildings, fences, animals, improvements, and use of lots. Kalway argued that the original declaration did not give owners fair notice that such sweeping new limitations could later be imposed. The court agreed in large part. It said CC&Rs are not ordinary contracts because they run with land and bind future owners. That means amendment power has limits. Even if the declaration allows amendment by vote, later amendments must stay within the range of changes a buyer could reasonably expect from the original recorded declaration. An HOA cannot use a broad amendment clause as a blank check to create entirely new servitudes or materially different burdens that were not reasonably foreseeable at purchase.
The court treated recorded covenants as special property contracts. Because they bind land and not just the original signers, buyers must have notice from the original declaration of the kinds of burdens they may later face. The court rejected the idea that a generic amendment clause, standing alone, lets a majority rewrite the deal in any manner it wants.
The court drew the line at reasonable and foreseeable amendments. Changes that refine, clarify, or build on an existing covenant may be valid. But amendments that add new categories of restrictions untethered to the original declaration exceed the amendment power because they upset owners’ settled expectations and effectively create new servitudes without meaningful notice.
For Arizona HOA practice, this is the controlling case on CC&R amendments. Boards now have to ask not just whether they got the required vote, but whether the original declaration fairly warned owners that the specific type of restriction might later be adopted.
For homeowners and counsel, Kalway is the main defense against surprise amendments. It is also the main drafting lesson for developers and associations: if the community may later want rental limits, design controls, livestock limits, use restrictions, or similar burdens, the original declaration should say so with real specificity.
Why this case matters
Kalway is the Arizona Supreme Court’s leading HOA amendment case. It tells boards, managers, lawyers, and homeowners that the amendment vote percentage is only the first question. The second question is whether the original recorded declaration gave owners fair notice that this kind of restriction could later be adopted.
The case is especially important because the Court rejected two shortcuts that associations often rely on: a broad majority-vote amendment clause and a broad statement that the CC&Rs protect property value, desirability, attractiveness, and natural character. Those statements may permit some refinements, but they do not authorize every future restriction.
How to read the uploaded docket
The Pima County Superior Court blue-penciled some amendments but let others stand. Kalway appealed; the other owners filed a cross-appeal but later waived it.
The Court of Appeals affirmed on March 13, 2020, reasoning that the remaining amendments were consistent, foreseeable, and an extension of the original declaration.
The Supreme Court vacated the memorandum decision on March 22, 2022, holding that the general amendment clause and broad purpose statement were not enough.
What the briefs argued
Kalway argued the other owners adopted sweeping amendments without notice, meeting, input, or his vote, and that the new restrictions were unforeseeable, non-uniform, and not unanimously adopted.
Appellees argued the trial court had correctly used Dreamland and severability: invalid provisions were struck, but amendments that clarified or extended existing covenants should survive.
Kalway replied that de novo review applied, A.R.S. 33-1817 did not displace common-law notice limits, and broad purpose language did not give majority owners carte blanche.
After losing in Division Two, Kalway moved to publish the memorandum decision because it involved statewide CC&R issues and a dissent; appellees opposed publication.
The appellees requested $14,484.50 in fees and $341.25 in costs after the 2020 affirmance; Kalway objected to the reasonableness of the fee request.
Judge Brearcliffe’s partial dissent criticized reliance on a broad purpose statement and previewed much of the later Supreme Court analysis.
Homeowner study guide: using Kalway
| Homeowner question | Short answer | What to check in your documents |
|---|---|---|
| Is a majority vote enough to amend CC&Rs? | Not by itself. A.R.S. 33-1817 allows amendments by the vote specified in the declaration, but the Supreme Court held that common-law notice limits still apply. | Find the amendment clause, then ask whether the original declaration gave objective notice of the specific type of restriction adopted later. |
| What does reasonable and foreseeable mean? | The future amendment must be tethered to an existing restrictive or affirmative covenant. It can refine, correct, fill a gap, or change an existing covenant in a particular foreseeable way. | Compare the original covenant text against the amendment. A new category of burden is vulnerable if the original documents did not mention or imply it. |
| Can an HOA rely on a broad purpose statement? | Kalway says no when that is the only notice. A broad statement about value, desirability, attractiveness, or natural character is too subjective to justify limitless amendments. | Look for concrete original restrictions, not just mission-style purpose language. |
| Does Kalway invalidate every amendment? | No. The Court allowed some definitional or refined provisions when the original declaration already mentioned the subject. | Ask whether the amendment merely defines an existing term or instead creates a new approval process, cap, use limit, fee power, or maintenance duty. |
| What is blue penciling? | The court can strike invalid, severable language while leaving valid provisions intact. | Do not assume one bad amendment voids the entire document; identify the exact words or sections that exceed the original notice. |
| Why should homeowners read the briefs? | The briefs show how to frame an amendment challenge: original text, changed text, foreseeability, uniformity, statutory authority, and severability. | Use the opening, answering, and reply briefs as a practical roadmap for organizing a CC&R amendment dispute. |
| Why is the uploaded Court of Appeals decision still useful if vacated? | It shows the reasoning the Supreme Court rejected and the dissent that anticipated the final rule. | Read it as procedural history and contrast material, not as controlling precedent. |
| What happened to appellate fees? | Division Two initially awarded fees and costs to appellees. The Supreme Court later vacated the appellate decision and awarded fees to Kalway in the Supreme Court and Court of Appeals. | Always check the last appellate decision before relying on any interim fee order. |
Supreme Court amendment-by-amendment map
| Amendment area | Supreme Court treatment | Practical lesson |
|---|---|---|
| General amendment clause | Not enough by itself. The original declaration must give fair notice of the enacted amendment. | Start with the original text; do not treat a majority-vote clause as unlimited authority. |
| General purpose statement | Too broad and subjective to provide notice of future amendments standing alone. | A purpose clause may help interpretation, but it does not replace a concrete covenant. |
| Dwelling definition | The 60 percent living-space and 40 percent garage limits were struck from Section 1.3. | A single-family dwelling covenant did not warn owners of later percentage limits on the house. |
| Garage definition | Allowed because the original declaration already referenced a garage. | A later definition can survive when it clarifies a term already present in the original documents. |
| Improvement and setback language | Broad new improvement language was narrowed; the amended setback provision survived only after the definition was revised. | Do not convert a structure setback into a general ban on grading, excavation, landscaping, and every improvement unless the original text supports it. |
| Vote allocation after subdivision | New language denying votes to future subdivided parcels was struck. | If subdivision and future voting consequences are not in the original declaration, later amendments may not silently reduce future owners’ voting rights. |
| Livestock definition and cap | The limits to chickens, horses, cattle, and a 15-unit maximum were struck. | An original livestock-per-acre covenant did not justify redefining livestock categories or replacing acreage-based limits with a fixed cap. |
| Non-dwelling structures | New square-footage, height, and view-obstruction limits were struck. | A new structure-control regime needs a real original covenant hook. |
| Improvement plan approval | New requirement to submit construction plans for majority approval was struck. | An HOA cannot add neighbor approval over otherwise permissible improvements without original notice. |
| Subdivision and improvement subsections | Restrictions on subdivision consent, plan submission, structure number/sequence, riparian impacts, and view obstruction were struck. | Major new land-use controls are vulnerable when the original declaration is silent. |
| Deadwood and fire-hazard maintenance | New fallen-deadwood and undergrowth maintenance rule was struck. | Even sensible safety rules must be reasonably foreseeable from the recorded covenants. |
Board checklist before adopting an amendment
Quote the exact original restriction that gives notice of the amendment topic.
Decide whether the amendment refines an existing covenant or creates a new category of burden.
Ask whether a reasonable buyer reading the original declaration would expect this future restriction.
Do not rely only on broad value, aesthetics, desirability, safety, or natural-character language.
Use grammar and section structure that lets a court blue-pencil invalid pieces without destroying valid parts.
A failed amendment defense can shift fees after appeal, as the Supreme Court’s final award illustrates.
Step-by-step uploaded appellate docket roadmap
Civil fee and briefing order opened the Division Two appeal.
Filed by: Court of Appeals
Confirms the record on appeal was received July 5, 2019, sets the $280 appellant fee, and sets the opening-brief deadline for September 9, 2019.
Appellant filing fee receipt.
Filed by: Kalway / Gust Rosenfeld
Shows the appellant fee payment that kept the appeal moving after the court’s fee order.
Notice of appearance for Charles W. Wirken.
Filed by: Kalway
Identifies appellate counsel and the service list for the appeal.
Appellant’s opening brief.
Filed by: Kalway
Frames the core challenge: the other owners adopted sweeping new definitions, restrictions, and enforcement powers without Kalway’s notice, input, or vote.
Cross-appellant fee receipt.
Filed by: Appellees / Calabria Ranch owners
Documents the appellees’ cross-appeal fee even though they later waived their appeal and focused on defending the judgment.
Motion to extend time for answering brief and opening brief on cross-appeal.
Filed by: Appellees
Asks for more time to respond to the opening brief, with no objection from Kalway’s counsel.
Order extending the appellees’ answering brief deadline.
Filed by: Court of Appeals
Extends the answering/cross-opening brief deadline to November 8, 2019.
Appellees’ answering brief.
Filed by: Appellees
Defends the trial court’s severability approach and argues that the remaining amendments were consistent with the original declaration and Arizona law.
Appellant’s reply brief.
Filed by: Kalway
Narrows the dispute to de novo review, common-law notice limits, the insufficiency of broad purpose language, and the livestock/uniformity challenge.
Request for oral argument.
Filed by: Kalway
Explains why counsel believed argument could help the court’s decision-making.
Filed order setting oral argument.
Filed by: Court of Appeals
Sets oral argument for February 5, 2020 at 2:00 p.m. in Tucson, with twenty-five minutes per side.
RTF copy of oral-argument order.
Filed by: Court of Appeals
A text copy of the same order, including the instruction for counsel to acknowledge receipt.
Oral-argument order acknowledgment.
Filed by: Appellees’ counsel
Scanned acknowledgment signed by Craig L. Cline, confirming receipt of the oral-argument setting.
Oral-argument sign-in sheet.
Filed by: Court of Appeals / counsel
Shows the panel, counsel appearances, and that the matter was taken under advisement after argument.
Division Two memorandum decision affirmed the trial court.
Filed by: Court of Appeals
This is the uploaded appellate ruling later vacated by the Supreme Court. It is useful for seeing the rejected analysis and Judge Brearcliffe’s partial dissent.
Verified statement of costs and attorney fees on appeal.
Filed by: Appellees
Requests $341.25 in costs and $14,484.50 in appellate attorney fees after the Division Two affirmance.
Affidavit supporting the fee and cost request.
Filed by: Craig L. Cline
Verifies the fee request, hourly rate, time entries, transcript cost, and work performed on appeal.
Motion for publication.
Filed by: Kalway
Argues the memorandum decision should be published because it created or clarified rules on CC&R amendments, uniform application, statewide importance, and included a dissent.
Objection to statement of costs and attorney fees.
Filed by: Kalway
Challenges the reasonableness of the hours claimed for the answering brief and oral-argument preparation.
Order taking motion for publication under advisement.
Filed by: Court of Appeals
Sets the response deadline and states no reply will be permitted without leave of court.
Reply to fee objection.
Filed by: Appellees
Defends the full fee request and explains the work claimed for briefing and oral argument.
Motion to extend time to respond to publication motion.
Filed by: Appellees
Requests a fifteen-day extension from the April 20, 2020 response deadline.
Order extending response deadline.
Filed by: Court of Appeals
Extends the response to the motion for publication to May 5, 2020.
Response opposing publication.
Filed by: Appellees
Argues the memorandum decision did not create new law and did not satisfy the publication standards.
Order denying publication.
Filed by: Court of Appeals
Leaves the Division Two decision unpublished; the Supreme Court later granted review and issued the controlling published opinion.
Order awarding appellees’ fees and costs.
Filed by: Court of Appeals
Awards the appellees $14,484.50 in attorney fees and $341.25 in costs after the 2020 affirmance. Check the later Supreme Court fee award before relying on this interim result.
Complete uploaded source-document index
This index is generated from every public-facing source file currently present in assets/court_case_downloads/kalway-v-calabria-ranch-hoa/raw/: 18 PDFs, 9 other source files. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.
Civil Fees Order Opening Brief Deadline
Type: Court notice/document
Court notice or document from the appellate upload; read it with the surrounding docket filings.
Appellant Filing Fee Receipt
Type: Court notice/document
Court notice or document from the appellate upload; read it with the surrounding docket filings.
Notice Of Appearance Charles W Wirken
Type: Procedural/service filing
Procedural filing that documents service, appearance, compliance, or a required notice step.
Appellant Opening Brief
Type: Briefing paper
Opening merits brief; this is where the appellant or moving party frames the legal argument.
Cross Appellant Fee Receipt
Type: Court notice/document
Court notice or document from the appellate upload; read it with the surrounding docket filings.
Appellees Motion To Extend Answering Brief
Type: Responsive pleading
Responding party’s first substantive response to the complaint or petition.
Order Extending Answering Brief Deadline
Type: Court notice/document
Court notice or document from the appellate upload; read it with the surrounding docket filings.
Appellees Answering Brief
Type: Responsive pleading
Responding party’s first substantive response to the complaint or petition.
Appellant Reply Brief
Type: Briefing paper
Reply paper; usually the final written response before the court takes the issue under advisement.
Appellant Request For Oral Argument
Type: Motion/application
A request for a specific ruling or procedural action; the next document is often a response or order.
Order Setting Oral Argument
Type: Court order/minute entry
Court or agency order; this is usually the document that tells readers what changed next.
Order Oral Argument Granted
Type: Court notice/document
Court notice or document from the appellate upload; read it with the surrounding docket filings.
Oral Argument Order Acknowledgment
Type: Court order/minute entry
Court or agency order; this is usually the document that tells readers what changed next.
Oral Argument Sign In Sheet
Type: Court/source PDF
Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.
Court Of Appeals Memorandum Decision
Type: Decision or judgment
Decision document; read it to understand the controlling result before moving to later filings.
Appellees Statement Of Costs And Attorney Fees
Type: Court/source PDF
Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.
Cline Affidavit Supporting Fees And Costs
Type: Procedural/service filing
Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.
Appellant Motion For Publication
Type: Motion/application
A request for a specific ruling or procedural action; the next document is often a response or order.
Appellant Objection To Fee Statement
Type: Briefing paper
Opposing or responsive paper; compare it to the motion or request filed immediately before it.
Order Taking Publication Motion Under Advisement
Type: Court notice/document
Court notice or document from the appellate upload; read it with the surrounding docket filings.
Appellees Reply To Fee Objection
Type: Briefing paper
Reply paper; usually the final written response before the court takes the issue under advisement.
Appellees Motion To Extend Publication Response
Type: Motion/application
A request for a specific ruling or procedural action; the next document is often a response or order.
Order Extending Publication Response Deadline
Type: Court notice/document
Court notice or document from the appellate upload; read it with the surrounding docket filings.
Appellees Response To Publication Motion
Type: Motion/application
A request for a specific ruling or procedural action; the next document is often a response or order.
Order Denying Publication Motion
Type: Court notice/document
Court notice or document from the appellate upload; read it with the surrounding docket filings.
Order Awarding Appellees Fees And Costs
Type: Court notice/document
Court notice or document from the appellate upload; read it with the surrounding docket filings.
Arizona Supreme Court Opinion
Type: Decision or judgment
Decision document; read it to understand the controlling result before moving to later filings.
For homeowners challenging an amendment
- Build a two-column comparison: original declaration text on one side, amended text on the other.
- Identify whether the amendment adds a new burden, changes a right, creates a new approval process, imposes a new fee/assessment power, or changes a use category.
- Separate the vote-procedure issue from the notice issue. A procedurally valid vote can still produce an unenforceable amendment.
- Use Kalway with Dreamland, Gross, and Bonham when arguing that a generic amendment clause did not provide enough notice.
For boards and managers
- Do not enforce a new restriction merely because it passed by the required percentage.
- Before sending violation notices, document the original covenant hook that made the amendment foreseeable.
- Avoid treating broad aesthetic, safety, value, or community-purpose clauses as universal amendment authority.
- When in doubt, use narrower amendments that clarify existing terms rather than broad amendments that create new regulatory systems.
FAQ
Did Kalway hold that all HOA amendments require unanimous consent?
No. The Supreme Court recognized that A.R.S. 33-1817 permits amendments by the vote specified in the declaration. The problem is substantive: the amendment must still be reasonable and foreseeable from the original declaration.
What is the main holding?
A general amendment-power provision may be used only for restrictions where the original declaration gave sufficient notice. Future amendments cannot be entirely new and different in character or untethered to an original covenant.
Why was the Court of Appeals decision vacated?
The Supreme Court rejected the idea that the general amendment clause and broad purpose statement supplied enough notice for most of the challenged amendments.
Can a court save part of an amendment?
Yes. Kalway applied the blue-pencil rule and struck invalid severable terms while leaving some permissible definitions or narrowed provisions.
Why are the uploaded publication papers important?
They show that Kalway identified the statewide importance of the issue immediately after the 2020 memorandum decision. The later Supreme Court opinion confirms that the amendment-power question was significant.