Arizona HOA Case Explainer
How Arizona courts enforce recorded CC&Rs by injunction against a knowing violator — and when a declaration’s attorneys’-fee clause compels a fee award to a prevailing association.
Arizona Court of Appeals | 115 Ariz. 330, 565 P.2d 207 (App. 1977) | Decided 1977-05-24
Scope note: This educational page summarizes Heritage Heights Home Owners Ass’n v. Esser, a Arizona Court of Appeals HOA-related authority. It is not legal advice.
Source note: The page keeps the public source URL but does not provide a local ruling PDF because no source PDF passed the file gate.
The takeaway
A valid, enforceable subdivision deed restriction must be enforced by injunction, and the trial court abused its discretion by granting the violating owner an unsupported five-year delay to remove the offending fence where he built it with actual knowledge that it violated the covenants; once the restriction is valid, no equity justifies postponing removal. Where the recorded declaration expressly provides that a violating owner shall pay the attorneys’ fees and costs of the prevailing enforcing party, the court is contractually obligated to award those fees and costs, including fees on appeal.
Case Participants
Petitioner Side
- Heritage Heights Home Owners Association (Appellant (Plaintiff))
Arizona corporation; mandatory homeowners association formed by the subdivision developer in 1970. Enforcing party seeking removal of the fence and its fees and costs. - Jones Osborn II (Counsel)
Martori, Meyer, Hendricks & Victor, P.A.
Phoenix counsel of record for the appellant Heritage Heights Home Owners Association.
Respondent Side
- Fred R. Esser (Appellee (Defendant))
Lot owner who built the wooden “grapestake” fence after being told it violated the covenants; appeared in propria persona (self-represented). - Margaret J. Esser (Appellee (Defendant))
Fred Esser’s wife; named as a co-defendant/appellee. - Fred R. Esser (Counsel)
Appeared in propria persona (pro se); represented himself and Margaret J. Esser as appellees.
Neutral Parties
- Levi Ray Haire (Judge)
Authored the opinion for the Court of Appeals. - Nelson (Judge)
Presiding Judge; concurred in the opinion. - Francis J. Donofrio (Judge)
Judge; concurred in the opinion.
What happened
Heritage Heights Home Owners Association was created by the developer of a residential subdivision in 1970. The development plan made every resident an automatic member of the Association, and membership rights, privileges, and land-use restrictions were embodied as restrictive covenants imposed on every conveyance of a lot in the subdivision.
From 1970 through 1972, while lots were still being sold, the Association remained under the developer’s control and generally did not pursue violations of the deed restrictions, which were usually minor. In 1972 the individual homeowners took control of the Association and began a program of enforcement aimed at eliminating existing violations and preventing new ones.
As part of that program, the Association sent newsletters in March, April, and July of 1973 reminding residents of the restrictions, and it addressed existing violations through negotiation and, where necessary, litigation. The parties stipulated that the Association granted permanent variances for fences that substantially met the purpose of the restrictions (such as brick-and-masonry or wrought-iron-and-block fences) and that, for non-conforming wood fences built before enforcement began, its usual policy was to allow a five-year period to remove them.
In October 1973, after the three newsletters had gone out, Fred Esser began constructing a wooden “grapestake” fence. On October 15, 1973, a member of the Board of Directors saw the construction, told Esser the fence would violate the deed restrictions, and asked him to stop. Esser refused and completed the fence.
The Association sued for an injunction. After preliminary proceedings — including an order requiring the Association to join additional defendants and a later extension of time to do so — the case was tried on stipulated facts. The trial court ordered the Association to grant Esser a five-year variance to remove the fence within 30 days or face dismissal of the suit with prejudice, and it denied the Association any costs or attorneys’ fees.
On appeal, the Arizona Court of Appeals reversed both rulings. It held there was no record support for the five-year postponement and that Esser, who built with actual knowledge of the violation, was reasonably distinguished from good-faith owners; once the restriction was valid, no equity justified delaying removal. It also held that the declaration’s express fee provision contractually required an award of fees and costs to the prevailing Association, including fees on appeal, and it rejected Esser’s Rule 6(b) jurisdictional argument. The court remanded for entry of an injunction ordering immediate removal of the fence and for assessment of costs and attorneys’ fees.
For Arizona community associations and homeowners, Esser is a foundational, pre-Planned Communities Act statement that valid recorded CC&Rs will be enforced by injunction and that a knowing violator generally cannot obtain an open-ended delay to keep a non-conforming structure in place. The decision emphasizes that a board may treat differently those who built in good faith before enforcement and those who built with actual knowledge of a violation, and that equitable “grace periods” are discretionary, must be supported by the record, and cannot be imposed on the association by a court without an evidentiary basis. The case is also frequently cited for the enforceability of a declaration’s attorneys’-fee clause: where the recorded documents require a violating owner to pay the prevailing enforcing party’s fees and costs, the court is contractually bound to award them, including fees incurred on appeal. Homeowners should understand that ignoring a documented warning and completing a non-conforming improvement can expose them not only to a removal order but also to the association’s litigation costs. Because the opinion predates the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16) and current fee statutes such as A.R.S. section 12-341.01, readers should confirm how later statutes and case law apply to any specific dispute.
Litigation record
Developer forms Heritage Heights Home Owners Association; membership and restrictive covenants are imposed on every conveyance in the subdivision.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Association remains under the developer’s control while lots are sold; minor deed-restriction violations are generally not pursued.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Individual homeowners take control of the Association and begin a program of enforcing the deed restrictions.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Association sends a newsletter reminding residents of the deed restrictions.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Association sends a second reminder newsletter.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Association sends a third reminder newsletter.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Fred Esser begins building a wooden “grapestake” fence, after the three newsletters had been sent.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
A board member notifies Esser that the fence violates the deed restrictions and asks him to stop; Esser refuses and completes the fence.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Association files suit for an injunction; after preliminary proceedings, the case is tried on stipulations. The trial court orders a five-year variance and denies costs and attorneys’ fees.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Arizona Court of Appeals reverses both rulings and remands for an injunction requiring immediate removal and for assessment of costs and attorneys’ fees, including fees on appeal.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
FAQ
What was Heritage Heights Home Owners Ass’n v. Esser about?
A mandatory homeowners association sued a lot owner, Fred Esser, to enforce a recorded subdivision deed restriction that barred wooden “grapestake” fences. Esser built the fence after a board member warned him it violated the covenants. The Arizona Court of Appeals held the restriction had to be enforced by injunction, reversed a trial-court order giving Esser five years to remove the fence, and held the association was entitled to its attorneys’ fees and costs under the declaration.
Why did the Court of Appeals reject the five-year variance the trial court ordered?
The court found nothing in the stipulated record that supported a five-year postponement of removal. The association’s informal policy of allowing five years applied only to owners who built fences in good faith before enforcement began, and that policy was not part of the stipulations. Even if it had been, the court said it reasonably distinguished good-faith owners from Esser, who built with actual knowledge that the fence violated the covenants and would be enforced. Once the restriction was valid, the court saw no equitable reason to delay removal.
Did the homeowner have to pay the association’s attorneys’ fees?
Yes. The recorded declaration expressly provided that an owner against whom a successful enforcement action was brought would pay the prevailing enforcing party’s attorneys’ fees and costs. Because Esser accepted the deed, he was contractually bound by that provision. The court held that contracts for attorneys’ fees are enforced according to their terms, so the trial court was obligated to award the association its fees and costs, including fees on appeal.
Does it matter that the owner built the fence after being warned?
It was central to the outcome. Esser began and completed the fence after receiving three association newsletters about the restrictions and after a board member personally told him the fence would violate the covenants and asked him to stop. The court treated this actual knowledge as the key fact distinguishing him from owners who built in good faith before enforcement, and it concluded he built “at his own risk.”
Is Heritage Heights v. Esser still good law in Arizona?
It remains a published, precedential Arizona Court of Appeals decision that is still cited for enforcing recorded CC&Rs by injunction and for honoring a declaration’s contractual attorneys’-fee provision. However, it was decided in 1977, before the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16) and modern fee statutes such as A.R.S. section 12-341.01. This page is general educational information, not legal advice; how it applies to a specific dispute should be confirmed with current statutes and a qualified attorney.
What is a “grapestake” fence and why was it a problem?
A grapestake fence is a fence built from rows of narrow, roughly split wooden stakes. In this subdivision, the recorded deed restrictions barred wooden fences of that type. The association had granted permanent variances only for fences it felt substantially met the purpose of the restrictions — such as brick-and-masonry or wrought-iron-and-block fences — so Esser’s wooden grapestake fence did not qualify and had to be removed.
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 | 115 Ariz. 330, 565 P.2d 207 (App. 1977) |
|---|---|
| Court / tribunal | Court of Appeals |
| Decision / key date | May 24, 1977 |
| Judge / panel | Levi Ray Haire (author), Nelson (Presiding Judge), Francis J. Donofrio |
| Parties | A mandatory homeowners association sued a lot owner to enforce a recorded subdivision deed restriction barring a wooden “grapestake” fence and to recover its attorneys’ fees and costs. |
| Governing law |
|
| Topics | cc-and-rscovenantsattorneys-feesarchitectural-reviewprocedure |
| Outcome / holding | A valid, enforceable subdivision deed restriction must be enforced by injunction, and the trial court abused its discretion by granting the violating owner an unsupported five-year delay to remove the offending fence where he built it with actual knowledge that it violated the covenants; once the restriction is valid, no equity justifies postponing removal. Where the recorded declaration expressly provides that a violating owner shall pay the attorneys’ fees and costs of the prevailing enforcing party, the court is contractually obligated to award those fees and costs, including fees on appeal. |
| Primary public source | View source opinion/order |
Parties, Court, and Research Coverage
| Uploaded source package | No raw source-folder files found for this slug |
|---|---|
| Step-by-step docket roadmap | 10 roadmap entries |
| Video overview | No video embed currently configured |
| Study / briefing material | 1 section |
| FAQ / homeowner questions | 6 questions |
| Curated download aliases | 0 download links |
Key Issues & Findings
Heritage Heights Home Owners Ass’n v. Esser addresses how Arizona courts enforce recorded subdivision deed restrictions and how they treat a declaration’s attorneys’-fee provision. Heritage Heights was a mandatory homeowners association created by a developer in 1970; membership and the accompanying covenants were imposed on every conveyance in the subdivision. After homeowners took control from the developer in 1972, the Association began enforcing the restrictions and sent newsletters in March, April, and July 1973 reminding residents of the rules. In October 1973, Fred Esser began building a wooden “grapestake” fence; a board member told him it violated the covenants and asked him to stop, but he finished it. The Association sued for an injunction. Trying the case on stipulated facts, the trial court ordered the Association to grant Esser a five-year variance to remove the fence (or have the suit dismissed with prejudice) and refused to award the Association its costs and attorneys’ fees. The Court of Appeals reversed both rulings. It found nothing in the record supporting a five-year postponement, and it distinguished Esser — who built with actual knowledge of the violation — from owners who had built fences in good faith before enforcement began. Once the restriction was valid and enforceable, no equity justified delay. Because the recorded declaration expressly required a violating owner to pay the prevailing enforcing party’s fees and costs, the trial court was contractually obligated to award them, including fees on appeal. The court also rejected Esser’s jurisdictional argument under Rule 6(b).
The court reasoned that a grantee who accepts a deed containing restrictions assents to them and is bound as if he had signed them, so the covenants and the fee provision were enforceable against Esser. Enforcement is by injunction, and while a trial court may shape an equitable remedy, nothing in the stipulated record justified a five-year delay in removing the fence. The Association’s informal policy of allowing five years to owners who had built in good faith before enforcement began was not in the stipulations and, in any event, reasonably distinguished those owners from Esser, who built with full knowledge that his fence violated the covenants and would be enforced. Allowing knowing violators five years would defeat the development plan to the detriment of all owners, including Esser. Because the declaration expressly required a violating owner to pay the prevailing enforcing party’s attorneys’ fees and costs, the court was contractually obliged to award them, and contracts for attorneys’ fees are enforced according to their terms. Rule 6(b) permitted the earlier extension of time without notice, so appellate jurisdiction was proper.
For Arizona community associations and homeowners, Esser is a foundational, pre-Planned Communities Act statement that valid recorded CC&Rs will be enforced by injunction and that a knowing violator generally cannot obtain an open-ended delay to keep a non-conforming structure in place. The decision emphasizes that a board may treat differently those who built in good faith before enforcement and those who built with actual knowledge of a violation, and that equitable “grace periods” are discretionary, must be supported by the record, and cannot be imposed on the association by a court without an evidentiary basis.
The case is also frequently cited for the enforceability of a declaration’s attorneys’-fee clause: where the recorded documents require a violating owner to pay the prevailing enforcing party’s fees and costs, the court is contractually bound to award them, including fees incurred on appeal. Homeowners should understand that ignoring a documented warning and completing a non-conforming improvement can expose them not only to a removal order but also to the association’s litigation costs. Because the opinion predates the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16) and current fee statutes such as A.R.S. section 12-341.01, readers should confirm how later statutes and case law apply to any specific dispute.