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The Ahwatukee Custom Estates Management Association, Inc. (ACEMA), an Arizona non-profit homeowners association, sued lot owners George and Betty Turner after the Turners were denied board permission to install a swimming pool and then threatened to build it without approval. ACEMA sought to enjoin the pool and also asked for a mandatory injunction directing the Turners to correct three past violations of the subdivision’s CC&Rs and Architectural Committee Guidelines: adding fill and grading their lot without board approval, and building two fences without board approval. A special master heard three days of testimony, visited the site, and found the Turners had violated the CC&Rs in each respect, but concluded ACEMA suffered no irreparable injury and was not entitled to corrective relief. The trial court adopted those findings and denied both sides’ attorneys’ fees for lack of a prevailing party. On appeal, Division One of the Arizona Court of Appeals treated the CC&Rs as a contract among the subdivision’s owners and reviewed the injunction and fee rulings for abuse of discretion. It affirmed. The court held that a mandatory retrospective injunction should not issue to enforce approval requirements the board had applied arbitrarily and unreasonably, especially where the interrelated, largely invisible violations caused no material harm and ACEMA had delayed until after construction. Invoking the maxim that one who seeks equity must do equity, the court left the board with prospective authority to require approval of any future pool, and affirmed the denial of fees under the CC&Rs’ fee clause and A.R.S. section 12-341.01 because neither party prevailed.

The court began with the governing framework: CC&Rs constitute a contract between the subdivision’s property owners as a whole and the individual lot owners, so their interpretation is a question of law reviewed de novo (Arizona Biltmore Estates Ass’n v. Tezak). Factual findings are binding unless clearly erroneous (Lee Dev. Co. v. Papp), and the grant or denial of both injunctive relief and attorneys’ fees rests in the sound discretion of the trial court (Financial Associates v. Hub Properties; A.R.S. section 12-341.01).

On the grading-and-fill violation, the court agreed the Turners had filled and graded without board approval in breach of the CC&Rs and Guidelines, but held no equitable relief was warranted. The Turners had graded to conform to the developer’s FS-20 Grading and Drainage Plan; the CC&Rs did not clearly say whether the proper grade was the FS-20 plan or the condition at time of purchase, and ambiguities in restrictive covenants are resolved in favor of the free use of property. The board could not even establish the grade at time of purchase, the City had issued permits based on the FS-20 plan, ACEMA proved no drainage disruption or irreparable injury, and it waited until after the house and fences were built to sue. Enforcement of restrictive covenants by injunction is not a matter of right but is governed by equity, weighing relative hardships, the public interest, party misconduct, delay, and the adequacy of other remedies (McRae v. Lois Grunow Memorial Clinic). A mandatory injunction should not issue to enforce an approval requirement withheld arbitrarily and unreasonably (Young v. Tortoise Island; Donoghue v. Prynnwood), and ‘one who seeks equity must do equity.’ The board’s grading demands were arbitrary and unreasonable.

The fencing violations followed the same logic. The 6796/6795 fence had been restored to a height compliant with the Phoenix City Code (which measures pool-fence height from the higher adjacent lot); forcing the Turners to lower it would have reinstated a code violation, an arbitrary demand. The 6796/6794 fence atop the retaining wall was the closest question, and in isolation ACEMA might have shown adequate harm under Continental Oil Co. v. Fennemore by pointing to the diluted protection of the deed restrictions. But the court declined to view it in isolation: it was one of a cluster of interrelated violations arising from the arbitrary grading dispute, the changes were invisible to the public and caused no material harm, and the board’s future enforcement authority was adequately preserved by the judgment’s requirement that any future pool obtain board approval. The court also upheld denial of a new trial under Rule 59(A)(4) because ACEMA failed to show it could not have discovered the neighbors’ withdrawn consent with reasonable diligence. Finally, under CC&R Article IX and A.R.S. section 12-341.01, neither party prevailed: ACEMA established the violations and preserved prospective authority but lost its principal claim for retrospective relief, so each side bore its own fees.

The decision is a leading Arizona statement that enforcing CC&Rs and architectural-approval requirements through a mandatory injunction is an equitable remedy, not an automatic right. Even when a board proves that an owner technically violated the governing documents, a court may withhold retrospective relief where the board itself acted arbitrarily or unreasonably, where the violations caused no material or irreparable harm, and where the association delayed enforcement until after the improvements were built. The maxim that ‘one who seeks equity must do equity’ gives trial courts broad discretion to deny an order compelling removal of structures that are invisible to the community and harmless in fact.

For associations and owners alike, the case underscores several practical points: approval standards must be applied consistently and reasonably; a board that takes an unreasonable position on one issue may find its related enforcement demands treated as part of a single, tainted ‘cluster’; and prevailing-party fee clauses cut both ways, so a mixed result where the association proves violations but loses its main remedy can leave each side paying its own attorneys’ fees. Because the opinion is published, it remains citable precedent on the equitable limits of covenant enforcement and on when a homeowners association is, and is not, a ‘prevailing party.’

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