CC&Rs & Private Condemnation | A.R.S. § 12-1202(A) | 1 CA-CV 08-0450
This case illustrates the high legal threshold required to prove that an Arizona homeowners’ association has waived its CC&Rs. It also highlights how a landlocked property owner may still use statutory private condemnation to bypass restrictive covenants, provided they pay just compensation to affected owners.
Last updated June 29, 2026. Case: College Book Centers, appellate No. 1 CA-CV 08-0450; reversed in part, affirmed in part, and remanded.
Current-status note: This page is published as a litigation record based on the source files available through 2011-06-15. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.
Scope note: This page details the Arizona Court of Appeals’ published, precedential decision regarding the enforceability of CC&R non-waiver clauses, the requirements for establishing common law implied easements of necessity, and the framework for statutory private condemnation of restrictive covenants. This page is educational and is not legal advice.
The takeaway
The Arizona Court of Appeals held that the homeowners’ association did not waive its CC&R restrictions because two prior roadway easements in a seventy-six-lot subdivision did not constitute frequent violations, and the CC&Rs contained an enforceable non-waiver clause. It also held that Vanyo failed to establish a common law implied way of necessity because there was no historical evidence that the property was landlocked when it was patented and severed from federal land in 1912.
Case Participants
Petitioner Side
- David B. Vanyo (Plaintiff)
College Book Centers, Inc. 401 Profit Sharing Plan and Trustee
Trustee of the College Book Centers 401 Profit Sharing Plan and purchaser of Lot 24 and the Mamie Maude Mining Claim. - College Book Centers, Inc. 401 Profit Sharing Plan and Trust (Plaintiff)
The 401 profit sharing plan and trust entity holding title to Lot 24 and the landlocked Mamie Maude Mining Claim. - Jeffrey D. Gross (Counsel)
Gallagher & Kennedy, P.A.
Attorney representing the plaintiff/appellee David B. Vanyo and the College Book Centers Profit Sharing Plan. - Timothy Berg (Counsel)
Co-counsel representing the plaintiff/appellee David B. Vanyo on appeal and in the petition for review. - Valerie Biederbeck (Other)
Vanyo's predecessor-in-interest who sold Lot 24 and the Mamie Maude Mining Claim to Vanyo's pension plan. - Richard Biederbeck (Other)
Vanyo's predecessor-in-interest who sold Lot 24 and the Mamie Maude Mining Claim to Vanyo's pension plan. - James Farris Murphy (Witness)
Vanyo's former real estate transaction attorney who testified at trial regarding pre-closing meetings and notice from the HOA. - Donald Duncan (Witness)
Licensed real estate appraiser called by Vanyo who testified on valuation and lack of financial impact of the road on subdivision lots. - Greg Gentsch (Witness)
Licensed professional engineer called by Vanyo who testified on the road design and infeasibility of constructing a road across the steep slope.
Respondent Side
- Carefree Foothills Homeowners’ Association (Defendant)
The homeowners' association for the subdivision, serving as the certified class representative of the subdivision lot owners. - John P. Dwyer, Jr. (Defendant)
Carefree Foothills Homeowners’ Association
Homeowner who initially opted out of the defendant class, participated individually at trial, and rejoined the class post-trial. - Janet G. Dwyer (Defendant)
Carefree Foothills Homeowners’ Association
Homeowner who initially opted out of the defendant class, participated individually at trial, and rejoined the class post-trial. - Thomas H. Crouch (Counsel)
Meagher & Geer, P.L.L.P.
Attorney representing the defendant/appellant Carefree Foothills Homeowners' Association. - Kevin T. Minchey (Counsel)
Meagher & Geer, P.L.L.P.
Attorney representing the defendant/appellant Carefree Foothills Homeowners' Association. - Kurt M. Zitzer (Counsel)
Meagher & Geer, P.L.L.P.
Attorney representing the defendant/appellant Carefree Foothills Homeowners' Association. - Ralph W. Applegate, Jr. (Association President)
Carefree Foothills Corporation
Original subdivision developer who drafted the CC&Rs and acted as the HOA board prior to its official formation; granted historical easements. - Denton L. Ingle (Other)
Carefree Foothills Corporation
Partner of developer Ralph Applegate, subdivision manager, original owner of Lot 43, and draftsman of the Thiele easement. - Barbara L. Ingle (Other)
Subdivision homeowner and co-owner of Lot 43 who signed the reciprocal 1987 Applegate roadway agreement. - Fo O. Buck (Other)
Subdivision homeowner and owner of Lot 42 who signed the reciprocal 1987 Applegate roadway agreement. - Deborah R. Buck (Other)
Subdivision homeowner and co-owner of Lot 42 who signed the reciprocal 1987 Applegate roadway agreement. - Jack Anderson (Board Member)
Carefree Foothills Homeowners’ Association
Subdivision homeowner, principal of Calver Capital, and Architectural Control Committee chair responsible for denying Vanyo's road proposal. - Whitney Smelser (Witness)
Licensed Land Surveyor and expert witness called by the HOA who testified on historical physical access to the mining claims.
Neutral Parties
- John A. Buttrick (Judge)
Maricopa County Superior Court
The trial court judge who presided over the jury trial and entered final judgment in favor of Vanyo. - Michael J. Brown (Judge)
Arizona Court of Appeals, Division One
Appellate judge who authored the court's opinion reversing the waiver and implied easement claims. - Patricia A. Orozco (Judge)
Arizona Court of Appeals, Division One
Presiding appellate judge on Department B who concurred with the court's opinion. - Patricia K. Norris (Judge)
Arizona Court of Appeals, Division One
Appellate judge on Department B who concurred with the court's opinion. - Philip G. Urry (Other)
Arizona Court of Appeals, Division One
Clerk of the Court of Appeals who issued docketing notices and orders to transmit the superior court record. - Ruth Willingham (Other)
Arizona Court of Appeals, Division One
Acting Clerk of the Court of Appeals who issued electronic notifications of the opinion and the final civil mandate. - Rachelle M. Resnick (Other)
Arizona Supreme Court
Clerk of the Arizona Supreme Court who processed the petition for review and issued letters on the denial of review. - Heinrich J. Thiele (Other)
The Heinrich J. Thiele and Gertrude A. Thiele Trust
Co-grantee of the perpetual 1984 access and utility easement across Lot 7 to access an adjacent unsubdivided parcel. - Gertrude A. Thiele (Other)
The Heinrich J. Thiele and Gertrude A. Thiele Trust
Co-grantee of the perpetual 1984 access and utility easement across Lot 7 to access an adjacent unsubdivided parcel. - Jefferrey Rybarszyk (Witness)
Professional engineer whose deposition testimony was entered into the court record. - John Ratliff (Witness)
Developer of the adjacent Carefree Vistas subdivision who offered Vanyo a limited roadway easement for $50,000. - Michael K. Jeanes (Other)
Maricopa County Superior Court
Clerk of Maricopa County Superior Court. - Patricia Sanderman (Other)
Maricopa County Superior Court
Supervisor of the Appeals Section of Maricopa County Superior Court.
What happened
In March 2005, David B. Vanyo, acting as trustee of the College Book Centers, Inc. 401 Profit Sharing Plan, purchased Lot 24 in the seventy-six-lot Carefree Foothills residential subdivision in Maricopa County, Arizona, alongside an adjacent nine-acre rectangular parcel called the Mamie Maude Mining Claim. Lot 24 is subject to the subdivision’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which restrict lot use exclusively to single-family residential purposes and prohibit non-residential structures. Mamie Maude, which is not part of the subdivision, is bisected by a steep, impassable slope that prevents building a safe roadway connecting its elevated northern portion to its lower southern portion. Seeking to develop the lower portion into four residential lots, Vanyo’s predecessors-in-interest and later Vanyo himself proposed building a fifty-foot roadway across Lot 24 to connect the cul-de-sac of Languid Lane to Mamie Maude. The HOA rejected both proposals, advising that a roadway is a non-residential structure that violates the CC&Rs.
In August 2006, Vanyo filed a class action lawsuit in Maricopa County Superior Court against all subdivision property owners, naming the HOA as the class representative. Vanyo sought a declaratory judgment that the HOA had waived its right to enforce the CC&R restriction because it had previously permitted two roadway easements (the Thiele roadway in 1984 and the Applegate roadway in 1987) to cross subdivision lots. Vanyo also claimed he possessed a common law implied way of necessity over Lot 24, or alternatively, that he was entitled to privately condemn the CC&R restriction under Arizona’s private way of necessity statute (A.R.S. § 12-1202(A)). Following a trial in November 2007, the jury returned a verdict in Vanyo’s favor on the waiver claim without reaching the other two claims. The trial court entered judgment for Vanyo, awarded him $100,000 in attorneys’ fees, and denied the HOA’s motions for judgment as a matter of law (JMOL) and a new trial.
The HOA appealed, arguing that the trial court erred in denying its motions for JMOL. The Arizona Court of Appeals reversed the trial court’s denial of JMOL on Vanyo’s waiver and implied way of necessity claims. It held that the two prior roadway easements did not constitute frequent violations to establish a waiver, and that the clear non-waiver provision in the CC&Rs barred Vanyo’s waiver claim because the subdivision covenants had not been completely abandoned. The court also held that Vanyo failed to prove an implied way of necessity because he provided no evidence that Mamie Maude was landlocked when it was patented and severed from federal land in 1912. However, the court affirmed the denial of JMOL on the statutory private condemnation claim, remanding it for a new trial because the jury had never reached a verdict on whether removing the CC&R restriction was reasonably necessary and what just compensation was due. Vanyo filed a petition for review with the Arizona Supreme Court, which was denied on May 24, 2011, and the Court of Appeals issued its civil mandate package to the Superior Court on June 15, 2011.
Video overview of the case record
An AI-generated video overview of College Book Centers v. Carefree Foothills HOA (1 CA-CV 08-0450). The homeowners’ association did not waive its CC&R restrictions because two prior roadway easements in a… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.
Listen: audio deep dive on the case record
An AI-generated audio deep dive walking through the court record and procedural posture in College Book Centers v. Carefree Foothills HOA. Generated from the case filings; verify against the linked case records below.
Procedural timeline
The United States Government issues a land patent for the Mamie Maude Mining Claim to Charles W. Cheney and F.H. Summeril, severing it from federal land.
The United States Government issues land patents for adjacent property including what is now the Carefree Foothills subdivision.
CC&Rs containing a single-family residential use restriction and a non-waiver clause are executed and recorded for the Carefree Foothills subdivision.
Developer Ralph Applegate causes Carefree Foothills Corporation to grant a perpetual access and utility easement across Lot 7 to the Thiele Trust.
Lot owners (including Ralph Applegate) execute the Mutual Ingress and Egress Agreement and Easement over Lots 42, 43, and 44, which is recorded on April 2, 1987.
David B. Vanyo, as trustee of the College Book Centers 401 Profit Sharing Plan, purchases Lot 24 and the Mamie Maude Mining Claim.
Carefree Foothills HOA formally rejects David Vanyo's written proposal to build a roadway across Lot 24 to access Mamie Maude.
David B. Vanyo files a putative class action complaint against Carefree Foothills HOA in Maricopa County Superior Court (Cause No. CV2006-011927).
Maricopa County Superior Court certifies the case as a defendant class action, appointing the HOA as the class representative.
A three-day jury trial begins in Maricopa County Superior Court.
The jury returns a unanimous verdict in Vanyo's favor, finding the HOA waived enforcement of the CC&R single-family use restriction.
Maricopa County Superior Court enters final judgment in favor of Vanyo, declaring the CC&R restriction waived and awarding $100,000 in attorneys' fees.
Carefree Foothills HOA files a post-trial Motion for New Trial or Motion for Judgment as a Matter of Law (JMOL).
Maricopa County Superior Court Judge John A. Buttrick enters an order denying the HOA's motion for JMOL and new trial.
Carefree Foothills HOA files a Notice of Appeal to the Arizona Court of Appeals and posts a supersedeas bond.
The Arizona Court of Appeals denies the HOA's motion to challenge the supersedeas bond amount.
The Court of Appeals Division One issues a Notice to Counsel docketing the appeal as Case No. 1 CA-CV 08-0450.
College Book Centers / David Vanyo files Appellee's Answering Brief.
Court of Appeals Clerk Philip G. Urry enters an order directing the Clerk of Maricopa County Superior Court to transmit the record on appeal.
Clerk of the Court of Appeals files the Inventory of Record on Appeal.
Carefree Foothills HOA files Appellant's Reply Brief.
The Court of Appeals issues a Notice of Oral Argument setting the hearing for May 5, 2009.
Court of Appeals Department B hears oral argument and enters an order taking the appeal under advisement.
The Arizona Court of Appeals Division One Department B files its Opinion, reversing the waiver and implied easement rulings but remanding the statutory condemnation claim for a new trial.
Court of Appeals Clerk sends electronic notification of the opinion filing.
David Vanyo files an untimely Petition for Review in the Arizona Supreme Court (No. CV-11-0003-PR).
Court of Appeals Clerk transmits the Petition for Review and record to the Arizona Supreme Court.
The Arizona Supreme Court enters an order denying Vanyo's Petition for Review, the HOA's Amended Cross-Petition for Review, and both parties' attorney fee requests.
Supreme Court Clerk Rachelle M. Resnick issues a letter notifying the parties of the Supreme Court's order denying review.
Court of Appeals Clerk issues the final civil mandate package to the Maricopa County Superior Court to conduct proceedings in accordance with the opinion.
Complete source-document index
This index contains 12 PDFs from the reviewed public source packet. Byte-identical copies are listed once. Files are ordered by the date and sequence in the public filename, and party filings or research materials are labeled separately from court rulings.
0000 Div 1 Civ Notice To Cnsl Only Ltrappe
Type: Procedural/service filing
Procedural filing that documents service, appearance, compliance, or a required notice step.
0000 Appellees Answering Brief
Type: Responsive pleading
Responding party's first substantive response to the complaint or petition.
0000 Div 1 Civil Record Ordered From Supe
Type: Court order/minute entry
Court or agency order; this is usually the document that tells readers what changed next.
0000 Div 1 Inventory
Type: Court/source PDF
Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.
0000 Appellants Reply Brief
Type: Briefing paper
Reply paper; usually the final written response before the court takes the issue under advisement.
0000 Notice Of Oa Or Conference
Type: Procedural/service filing
Procedural filing that documents service, appearance, compliance, or a required notice step.
0000 Under Advisement Order
Type: Court order/minute entry
Court or agency order; this is usually the document that tells readers what changed next.
0000 Opinion
Type: Decision or judgment
Opinion holding that the homeowners' association did not waive its CC&R restrictions because two prior roadway easements in a seventy-six-lot subdivision did not constitute frequent violations, and the CC&Rs contained an enforceable non-waiver clause.
0000 Enotification Of Opinion
Type: Decision or judgment
Decision document; read it to understand the controlling result before moving to later filings.
0000 Div 1 Petition For Review Transmitt
Type: Court/source PDF
Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.
0000 Pr Denied Letter
Type: Court/source PDF
Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.
0000 Civil Mandate Package
Type: Decision or judgment
Decision document; read it to understand the controlling result before moving to later filings.
FAQ
Is this Arizona Court of Appeals ruling binding precedent?
Yes, this is a published, precedential opinion by the Arizona Court of Appeals. It establishes binding legal rules across Arizona regarding the strict enforceability of CC&R non-waiver clauses, the high evidentiary hurdles for common law implied easements of necessity, and the framework for statutory private condemnation of restrictive covenants.
Can an HOA waive its right to enforce CC&Rs if it allowed past violations?
Generally, no, if the CC&Rs contain a clear non-waiver clause. The Court of Appeals held that an unambiguous non-waiver clause remains enforceable despite past violations unless the restrictions have been so thoroughly disregarded as to constitute a ‘complete abandonment’ that destroys the fundamental character of the neighborhood.
How many past violations are needed to prove that an HOA has waived a covenant restriction?
The court ruled as a matter of law that two historical roadway violations over a twenty-year period in a seventy-six-lot subdivision do not constitute ‘frequent’ violations. To establish waiver in the absence of a non-waiver clause, violations must be frequent, habitual, or regular, occurring often or at close intervals.
What must a property owner prove to establish a common law implied way of necessity?
The claimant must prove that the dominant and servient properties were under common ownership, followed by a severance, and that the landlocked property had no outlet at the exact time of that original severance. Silence regarding access in a 1912 federal land patent is legally insufficient to prove that the property lacked an outlet.
Can a landlocked owner condemn an HOA's CC&R restriction to build an access road?
Yes. Arizona law allows a landlocked property owner to utilize statutory private condemnation under A.R.S. § 12-1202(A) to condemn a restrictive covenant on an adjacent lot. Because this statutory right only arises if no common law implied easement exists, the court remanded this claim for a new trial to let a jury determine if the road is reasonably necessary and to decide the ‘just compensation’ owed to the subdivision lot owners.
Case Dossier
This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.
Case Summary
| Case ID / citation | 1 CA-CV 08-0450 |
|---|---|
| Court / tribunal | Court of Appeals |
| Decision / key date | October 26, 2010 |
| Judge / panel | Hon. Michael J. Brown, Hon. Patricia A. Orozco, Hon. Patricia K. Norris |
| Parties | College Book Centers, Inc. 401 Profit Sharing Plan and Trustee David B. Vanyo (Plaintiffs/Appellees) v. Carefree Foothills Homeowners' Association (Defendants/Appellants) |
| Governing law |
|
| Topics | CC&RsSelective EnforcementAttorney FeesProcedure |
| Outcome / holding | The Arizona Court of Appeals held that the homeowners' association did not waive its CC&R restrictions because two prior roadway easements in a seventy-six-lot subdivision did not constitute frequent violations, and the CC&Rs contained an enforceable non-waiver clause. It also held that Vanyo failed to establish a common law implied way of necessity because there was no historical evidence that the property was landlocked when it was patented and severed from federal land in 1912. |
| Primary public source | View source opinion/order |
Parties, Court, and Research Coverage
| Reviewed source package | 12 PDFs |
|---|---|
| Step-by-step docket roadmap | 30 roadmap entries |
| Video overview | College Book Centers v. Carefree Foothills HOA |
| Study / briefing material | 1 section |
| FAQ / homeowner questions | 5 questions |
| Featured download links | 3 download links |
Key Issues & Findings
This case arose when David B. Vanyo, as trustee of the College Book Centers 401 Profit Sharing Plan, purchased undeveloped Lot 24 within the Carefree Foothills subdivision and an adjacent landlocked nine-acre parcel known as the Mamie Maude Mining Claim. To develop the lower portion of Mamie Maude into residential lots, Vanyo requested the homeowners' association's (HOA) permission to build a short roadway across Lot 24. The HOA denied the request because the subdivision's CC&Rs prohibited non-residential structures. Vanyo sued the HOA, claiming that the HOA waived this restriction by previously allowing two other roadways (the Thiele and Applegate easements), and that he was entitled to a common law implied easement or statutory private way of necessity. A jury found in Vanyo's favor on waiver, and the trial court entered judgment with attorneys' fees. On appeal, the Arizona Court of Appeals reversed the waiver and implied easement rulings, remanding the statutory private condemnation claim for a new trial.
The court's reasoning on the waiver claim turned on the frequency of violations and the effect of the CC&R non-waiver clause. It concluded that two prior roadway easements granted in the 1980s did not constitute frequent violations in a seventy-six-lot subdivision to establish waiver of the non-residential structure restriction. Furthermore, the court held that the CC&Rs contained an unambiguous non-waiver clause that remained fully enforceable since the subdivision covenants had not been completely abandoned. Complete abandonment occurs only when restrictions have been so thoroughly disregarded that the fundamental character of the neighborhood has been destroyed, which Vanyo did not argue. The court also rejected Vanyo's action versus inaction distinction, holding that both act as a failure to enforce that is covered by the non-waiver clause.
On Vanyo's common law implied way of necessity claim, the court held that Vanyo failed to establish a prima facie case. Under Arizona law, a claimant must prove that the dominant and servient properties were under common ownership, followed by severance, that the dominant property had no outlet at the time of severance, and that access was reasonably necessary when severance occurred. The court found no evidence in the record establishing that Mamie Maude was landlocked in 1912 when the land patent was issued. Silence regarding access in the 1912 land patent was insufficient to prove the lack of an outlet, particularly since a historical 1909 survey depicted roads crossing the mining claims.
Finally, the court addressed the statutory private condemnation claim under A.R.S. § 12-1202(A). Because private condemnation only comes into existence if no other access exists by common law implication, Vanyo's failure to establish an implied way of necessity cleared the path for statutory condemnation. Since the jury, having found for Vanyo on the waiver claim, did not decide whether removing the CC&R restriction was reasonably necessary for Vanyo's proper use and enjoyment of Mamie Maude, or what just compensation was due, the court remanded the statutory private condemnation claim for a new trial.
This decision is highly significant for Arizona homeowners' associations, boards, and their legal counsel because it strongly reinforces the enforceability of clear and unambiguous non-waiver clauses within CC&Rs. The ruling establishes that an HOA's prior failure to enforce a covenant, or even its affirmative granting of historical variances, does not constitute a wholesale waiver of those covenants unless the violations are so rampant as to completely destroy the neighborhood's character. At the same time, it reminds associations that their discretionary design-control and enforcement powers are always constrained by duties of fairness and reasonableness, which protects members against arbitrary or discriminatory enforcement.
For property litigation counsel, the case highlights the high evidentiary hurdles required to establish a common law implied way of necessity in Arizona. Specifically, it confirms that silence in a century-old federal land patent is legally insufficient to prove that a parcel was historically landlocked at severance. Lastly, the case confirms that restrictive covenants represent valid property rights that can be privately condemned under A.R.S. § 12-1202(A), opening a potential, though costly, pathway for landlocked owners to acquire access by paying just compensation to all affected lot owners in the subdivision.