2010-12-14 — Cropley v. Recreation Centers of Sun City, Inc. ↑ top

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE

BERYL CROPLEY; MARCIA FILE; ) 1 CA-CV 10-0034
GERALD A. KLAUS, CHARLES LESTER; )
NADINE E. MEIS; NANCY Q. ) DEPARTMENT E
SHOVLAIN, and all other )
similarly situated Viewpoint ) MEMORANDUM DECISION
Lake Homeowners, ) (Not for Publication -
) Rule 28, Arizona Rules of
Plaintiffs-Appellees, ) Civil Appellate Procedure)
)
v. )
)
RECREATION CENTERS OF SUN CITY, )
INC., an Arizona non-profit )
corporation, )
)
Defendant-Appellant. )
__________________________________)
EL DORADO OF SUN CITY )
CONDOMINIUMS HOMEOWNERS )
ASSOCIATION, an Arizona )
nonprofit corporation, )
)
Intervening Plaintiff- )
Appellant, )
)
v. )
)
RECREATION CENTERS OF SUN CITY, )
INC., an Arizona non-profit )
corporation, )
)
Defendant-Appellee. )
__________________________________)

Appeal from the Superior Court in Maricopa County

Cause No. CV2009-004740

DIVISION ONE
FILED:
RUTH WILLINGHAM,
ACTING CLERK
BY:
12/14/2010
GH

2
The Honorable Edward O. Burke, Judge

AFFIRMED

Ridenour, Hienton & Lewis, P.L.L.C.
Phoenix
by
Jeffrey A. Bernick

Scott S. Wakefield
Attorneys for Recreation Centers
of Sun City, Inc.

Burton T. Cohen, P.C.
Scottsdale
by
Burton T. Cohen
Attorney for El Dorado of Sun City
Condominiums Homeowners Association

The Mangone Law Firm, P.C.
Phoenix
by
Nancy A. Mangone
Attorney for Appellees

W E I S B E R G, Judge

¶1
The
Recreation
Centers
of
Sun
City
(“Recreation
Centers”) appeals from a grant of summary judgment to a class of
Sun City homeowners seeking interpretation of a 1979 Agreement
that allocated responsibility for the maintenance costs of
Viewpoint Lake. In addition, El Dorado of Sun City Condominiums
Homeowners Association (“El Dorado”) appeals from a separate
grant of summary judgment holding that a 1969 Declaration of
Restrictions
governing
property
surrounding
Viewpoint
Lake
burdened El Dorado’s land. For reasons that follow, we affirm
the superior court’s rulings.

3
BACKGROUND
¶2
Viewpoint Lake is in Sun City, Arizona. Around the
lake are eighty-one single-family residential lots, Lakeview
Recreation Center, the El Dorado of Sun City Condominiums, and a
Sun Health Properties’ medical facility. The lake is filled
with water drawn from wells on nearby golf courses. Water is
pumped from the lake for use on the golf courses, and then water
from the wells replenishes the lake. Some of lake’s water,
however, is lost through evaporation and seepage.
¶3
In July 1969, Arizona Title Insurance and Trust
Company (“Arizona Title”), as trustee to Sun City’s developer,
Del E. Webb Development Corporation (“Del Webb”) recorded a
“Declaration of Restrictions” governing Viewpoint Lake. The
Declaration provided that its restrictions “shall be made an
encumbrance on and an obligation of the real property adjacent
to and contiguous with Tract A [the lake].” A number of
provisions addressed maintenance of the lake, one of which
stated that when Del Webb closed its model homes, lake
maintenance would become the responsibility of the owners of
lakefront property. Paragraph 5 provided:
Commencing July 1, 1970 and so long as the
source of water for the lake is . . . wells
located on . . . a golf course in the
vicinity of the lake, the owners of property
fronting on the lake shall be responsible
for paying the actual cost of electricity
used
for
pumping
the
amount
of
water

4
required to replace water lost as a result
of evaporation and seepage.

(Emphasis added.) The 1969 Declaration did not clarify how
maintenance costs would be allocated among the various owners of
lakefront property. It was, however, binding for thirty years
and was to be extended for successive ten-year periods unless
amended by a “vote of the owner or owners of said Tract ‘A,’ Sun
City Unit Sixteen, plus by a vote of the owner or owners of
Tract ‘B,’ Sun City Unit Sixteen, along with a majority vote of
the then owners of such encumbered property.”1
¶4
The Declaration additionally provided for creation of
a Viewpoint Lake Management Board (“Board”).

2
¶5
In 1975, Recreation Centers, a non-profit corporation
organized under Arizona law, took title to Viewpoint Lake and
several golf courses by agreement with Arizona Title (the “1975
The Declaration
conferred various rights on the Board, including power “to levy
assessments . . . against the property surrounding the lake” and
to “pay for replacement of water lost through evaporation and
seepage” upon a majority vote.

1In 1971, the 1969 Declaration was amended to regulate the
size of boats and boat docking facilities. The amendments were
executed by Arizona Title as an owner of Tract C of Sun City
Unit 16.

2Paragraph 8B required the Board to include “one (1) member
selected by the owner of the lake, one (1) member elected by the
owner of any lake front property used for community recreation
facilities; and one (1) member elected by the owners of the lake
front residential lots.”

5
Agreement”). Arizona Title agreed to subsidize Recreation
Centers’ operation of certain Sun City facilities. In turn,
Recreation Centers agreed “that as owner of the golf courses, it
shall pay fifty percent (50%) of all maintenance costs of the
lake. Such costs shall become part of the total expense for the
operation of the golf course.” Recreation Centers requires
every owner of a Sun City residential unit who signs a
Facilities Agreement or accepts a deed to pay an annual property
assessment.
¶6
On March 1, 1977, the parties amended the 1975
Agreement. The 1977 Amendment struck Arizona Title’s subsidy
but left intact the requirement that Recreation Centers pay
fifty percent of lake maintenance costs.
¶7
Disputes soon erupted over the respective liabilities
of the residential landowners and Recreation Centers. In 1976
and 1977, some homeowners asserted that “maintenance” costs
included “water losses due to seepage and evaporation,” a
position endorsed by the Board. In 1978, the dispute continued,
and in 1979, Recreation Centers’ counsel notified the Viewpoint
Lake Homeowners Association (“the Association”) President Jack
B. Pearce that he would place liens on the property of those who
declined to pay the additional amount to cover water lost
through evaporation and seepage.

6
¶8
Board member and Recreation Centers’ President James
Wormsley appeared at an April 19, 1979 Board meeting. When
Pearce proposed a flat assessment fee for the residential
landowners, to be adjusted according to a cost index, Wormsley
replied, “How about $95.00?”
¶9
In a bulletin sent to residential landowners dated
July 17, 1979, Pearce reported that a new agreement had been
reached
between
Del
Webb,
Recreation
Centers,
and
the
Association providing for a $95 assessment in 1979, subject in
1980 to increase based upon the increase in the Consumer Price
Index. Board President C.D. Ferguson later confirmed this and
added that “the agreement of last June settled only 1978 and
1979” and did not apply the 1977 billing which “stands . . . as
it was before the June 1979 agreement.”
¶10
The 1979 Agreement provided that all costs of lake
maintenance, including the cost of pumping replacement water,
were to be allocated so that in 1979, each lot owner would pay a
fee of $95; Recreation Centers would “pay all remaining costs
for maintenance . . . and for electricity” to pump replacement
water; and the parties’ respective shares would be adjusted
annually based on the Consumer Price Index “for any succeeding
year.”
¶11
The 1979 Agreement also said that it was “to clarify
and allocate among [the Association and Recreation Centers] all

7
costs and charges attributable to the maintenance and upkeep” of
the lake in accordance with the 1969 Declaration and the 1975
Transfer Agreement. Contemporaneous correspondence stated that
the 1979 Agreement resolved the parties’ differences “once and
for all” by a “permanent” and “equitable” formula. Pearce as
President
of
the
Association,
Wormsley
as
President
of
Recreation Centers, and a Del Webb executive vice president
signed the Agreement. It was not recorded.
¶12
From the date of signing until 2008, the residential
landowners paid assessments levied by the Board pursuant to the
Consumer Price Index formula. Recreation Centers continued to
pay fifty percent as owner of the golf course, and the
residential landowners paid approximately seventy percent of the
remaining fifty percent of maintenance costs.3
¶13
In 2008, each residential landowner was assessed
$302.10 for lake maintenance. On December 10, however,
Recreation Centers’ President Nichols informed Board Chairman
Klaus that Recreation Centers would decrease its funding of lake
maintenance after January 1, 2009. Nichols said that costs had
increased and had not been fairly allocated and proposed future
assessments based upon linear feet of lakeshore, which more than

3Responsibility for the remaining thirty percent is not at
issue.

8
tripled the assessments of residential landowners. In February
2009, the Board billed each residential landowner $1,032.25.
¶14
Six owners4
DISCUSSION
filed a class action for declaratory and
injunctive relief. The Plaintiffs successfully moved to certify
the class, which consisted of the owners of the eighty-one
lakefront properties. El Dorado then intervened and filed a
complaint contending that the Declaration imposed no burden on
its tract, even though El Dorado had made voluntary maintenance
payments for thirty years. The Class Plaintiffs and El Dorado
each moved for summary judgment, and Recreation Centers filed
cross-motions. The superior court granted judgment to the Class
Plaintiffs and denied Recreation Centers’ opposing cross-motion.
It also denied El Dorado’s motion and granted Recreation
Centers’ motion. Recreation Centers and El Dorado timely
appealed.
Waiver of 1969 Declaration

¶15
We review a grant of summary judgment de novo and, in
doing so, view the evidence in the light most favorable to the
non-moving party. Unique Equip. Co. v. TRW Veh. Safety Sys.,
Inc., 197 Ariz. 50, 52, ¶ 5, 3 P.3d 970, 972 (App. 1999).
Summary judgment is warranted when there is no genuine issue of

4The plaintiffs are Beryl Cropley, Marcia File, Gerald A.
Klaus, Charles Lester, Nadine E. Meis, and Nancy Q. Shovlain.

9
material
fact
in
dispute.
Ariz.
R.
Civ.
P
56(c)(1).
Interpretation of deed restrictions, Wilson v. Playa de Serrano,
211 Ariz. 511, 513, ¶ 6, 123 P.3d 1148, 1150 (App. 2005), and of
statutes poses legal questions subject to de novo review. In re
Estate of Friedman, 217 Ariz. 548, 553, ¶ 13, 177 P.3d 290, 295
(App. 2008).
¶16
Recreation Centers contends that the trial court erred
in failing to void the 1979 Agreement and in failing to find
that the Agreement had not validly amended the 1969 Declaration.
When a grantee accepts a deed with restrictions, he has assented
to the restrictions. Dreamland Villa Cmty. Club, Inc. v.
Raimey, 224 Ariz. 42, 47, ¶ 19, 226 P.3d 411, 416 (App. 2010).
Landowners, however, may amend or even eliminate restrictions if
they follow prescribed procedures. See La Esperanza Townhome
Ass’n v. Title Sec. Agency of Ariz., 142 Ariz. 235, 239-40, 689
P.2d 178, 182-83 (App. 1984). An amendment is an action “to
alter, extend, or revoke existing restrictions.” Riley v. Boyle,
6 Ariz. App. 523, 525, 434 P.2d 525, 527 (1967). But amendments
that do not comply with the stated procedures are null and void.
See Multari v. Gress, 214 Ariz. 557, 560, ¶ 19, 155 P.3d 1081,
1084 (App. 2007) (private deed restrictions invalid for failure
to comply with prior declaration); Shamrock v. Wagon Wheel Park
Homeowners Ass’n, 206 Ariz. 42, 46, ¶ 16, 75 P.3d 132, 136 (App.

10
2003) (noncompliance with amendment process meant modification
never took effect).
¶17
The superior court held as a matter of law that the
1979
Agreement
was
a
valid
settlement
agreement
that
prospectively governed the maintenance assessments. The court
did not expressly address Recreation Centers’ contention that to
validly impose these terms required an amendment passed by a
majority vote of property owners. We note, however, that the
1979 Agreement was not termed an amendment but instead stated
that it was “to clarify and allocate” responsibility for lake
maintenance assessments. The Class Plaintiffs respond that the
1979 Agreement simply supplied a term that was missing in the
1969 Declaration. We, however, need not resolve this debate
because we conclude that Recreation Centers waived its right to
challenge the validity of the 1979 Agreement by nearly thirty
years of acquiescence and knowing conduct consistent with that
Agreement. Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d
281, 283 (App. 1996) (appellate court may affirm superior court
ruling if correct for any reason).
¶18
A party’s persistent failure to object to violations
of a restrictive covenant may result in waiver and abandonment
of the restriction. Mackey v. Griggs, 61 S.W.3d 312 (Mo. Ct.
App. 2001) (waiver found from existence of widespread non-
residential uses in subdivision). Waiver requires proof of the

11
intentional relinquishment of a known right. Lyles v. BMI,
Inc., 355 S.E.2d 282, 285 (S.C. 1987) (landlord’s acceptance of
base rent without demanding rent determined by gross sales
resulted in waiver). In Riley, for example, the plaintiffs
sought to enforce restrictions that allowed amendment by a 51
percent vote. 6 Ariz. App. at 524-25, 434 P.2d at 526-27. The
trial court found an amendment that exempted one subdivision lot
from the restrictions, passed by a 51 percent vote, valid. Id.
at 525, 434 P.2d at 527. We found the amendment void but
remanded for determination of whether the residents had waived
or abandoned the restrictions by allowing others’ homes to be
built in violation of the restrictions. Id. at 525-26, 434 P.2d
at 527-28. See also Baldischwiler v. Atkins, 864 S.W.2d 853,
855 (Ark. 1993) (right to modify restrictive covenants abandoned
after five years of non-use). Given that Recreation Centers’
knowing and repeated failure to object to the validity of the
1979 Agreement is undisputed, no remand is necessary here.
¶19
Analogous contract principles support our conclusion.
When “an agreement involves repeated occasions for performance
by either party with knowledge of the nature of the performance
and opportunity for objection to it by the other, any course of
performance accepted or acquiesced in without objection is given
great weight in the interpretation of the agreement.” Abrams v.
Horizon Corp., 137 Ariz. 73, 79, 669 P.2d 51, 57 (1983) (quoting

12
Restatement (Second) of Contracts § 202(4) (1979)). Recreation
Centers has waived any interpretation of the 1979 Agreement
contrary to that adhered to by the parties over the years since
that Agreement.
¶20
We therefore affirm rejection of Recreation Centers’
claims that an alternative assessment formula should apply or
that the 1979 Agreement failed to comply with necessary
amendment procedures.5
Possible Application of A.R.S. § 33-440
We next consider whether the 1979
Agreement resolves this dispute.
¶21
Recreation Centers argues that a private agreement
cannot resolve the assessment dispute because A.R.S. § 33-440
(Supp. 2009) controls and precludes the 1979 Agreement. The
statute provides:
A. An owner of real property may enter into a
private
covenant
regarding
that
real
property and the private covenant is valid
and enforceable according to its terms if
all of the following apply:

1. The private covenant is not prohibited by
any other existing private covenant . . .
and does not violate any statute governing
the subject matter of the private covenant
that is in effect before the effective date
of this section.

5In light of the waiver by Recreation Centers, we need not
decide whether laches also would bar a challenge to the 1979
Agreement.

13
2. The owner of the real property affected by
the private covenant . . . ha[s] consented
to the private covenant.

3. Any consent requirements contained in . . .
any existing private covenant . . . have
been met.

B. A
private
covenant
is
deemed
not
to
constitute an amendment to any existing
private covenant . . . unless the private
covenant
expressly
violates
an
express
provision of the existing private covenant
or declaration.

C. For purposes of this section:

1. “Declaration”
has
the
same
meaning
prescribed in § 33-1802.

2. “Private covenant” means any uniform or
nonuniform
covenant,
restriction
or
condition regarding real property that is
contained in any deed, contract, agreement,
or other recorded instrument affecting real
property.

¶22
By law, “[n]o statute is retroactive unless expressly
declared therein.” A.R.S. § 1-244 (2002). Therefore A.R.S. §
33-440, which became effective on September 26, 2008, does not
control here.
¶23
Even assuming arguendo that the statute applied, we
would find no conflict between it and the 1979 Agreement.
Although the 1979 Agreement predates the 2008 enactment, it is
validated under the statute’s express terms. Section 33-
440(A)(1) provides for enforcement of a private covenant if it
“is not prohibited by any other existing private covenant or

14
declaration affecting the real property.” Thus, the statute
provides for recognition and enforcement of pre-§ 33-440
covenants
by
precluding
those
post-§
33-440
covenants
inconsistent with them. Id.; see also § 33-440(A)(3) (enforcing
consent requirements of existing private covenants). A private
covenant
includes
any
covenant
regarding
real
property
“contained in any . . . agreement . . . affecting real
property.” A.R.S. § 33-440 (C)(2). So viewed, the 1979
Agreement is a viable agreement affecting real property under §
33-440(C)(2) and expressly validated by § 33-440(A)(1).
¶24
Recreation Centers nevertheless contends that § 33-
440 applies only to planned communities because § 33-1802 (3)
and (4) state that a “declaration” includes “any instruments,
however denominated, that establish a planned community” and
that a planned community must include “a real estate development
which includes real estate owned and operated by a nonprofit
corporation . . . created [to] . . . manag[e] . . . the property
and in which owners . . . are mandatory members and are required
to pay assessments . . . .” Based on this language, Recreation
Centers asserts that § 33-440 cannot apply because the Board
owns no property.
¶25
We, however, do not read the statute so narrowly.
Under § 33-440(A)(1), a private covenant must not be precluded
by “any other existing private covenant or declaration affecting

15
the real property.” (Emphasis added.) While the statute defines
“declaration” in the context of planned communities, the
definition of “private covenant” is not so limited. See § 33-
440(C)(2). Therefore, even if it did apply, § 33-440(A)(1)
would not invalidate the 1979 Agreement.6
Duration of the 1979 Agreement

¶26
We now consider whether the 1979 Agreement was a
binding settlement of indefinite duration or a short-term
agreement, which is a question of law. See US West Commc’ns,
Inc. v. Ariz. Corp. Comm’n, 185 Ariz. 277, 280, 915 P.2d 1232,
1235 (App. 1996). Well established contract principles guide
our interpretation, such as giving effect to the parties’
intent, id., and considering the language used in the context of
the circumstances. Potter v. U.S. Specialty Ins. Co., 209 Ariz.
122, 124, ¶ 7, 98 P.3d 557, 559 (App. 2004). We also would
attempt to give reasonable, lawful, and effective meaning to all
its terms. Restatement (Second) of Contracts § 203(a) (1981).
¶27
The Agreement stated that residential landowners’
assessments would be adjusted according to a formula “for any
succeeding year” and did not include a termination date.
Recreation Centers argues that the Agreement was merely a
temporary solution and cites Ferguson’s 1980 letter, which said

6We do not consider Recreation Centers’ alter ego argument
because it was not addressed below and apparently did not shape
the trial court’s decision.

16
that the Agreement applied to 1978 and 1979. That letter,
however, affirmed the “adjusted billing” described in Pearce’s
bulletin and that the 1977 and 1978 assessments were “settled.”
Although Ferguson insisted on using the prior method for the
1977 payment, he did not say that the prior method would apply
after the 1979 Agreement.
¶28
Moreover,
by including the Consumer
Price
Index
formula in the Agreement, the parties clearly contemplated
possible future increases and sought to resolve how to deal with
those future increases. Recreation Centers argues that the lack
of a termination date makes the Agreement terminable at will by
either party.7

7See Restatement (Second) of Contracts § 33 (if a “contract
calls for successive performances but is indefinite in duration,
it is commonly terminable by either party, with or without a
requirement of reasonable notice”). See also UCC § 2-309(2)
(“If the contract provides for successive performances but is
indefinite in duration, it is valid for a reasonable time but
unless otherwise agreed may be terminated at any time by either
party.”). Comment 5 notes that “[w]hen the arrangement has been
carried on by the parties over the years, the ‘reasonable time’
can continue indefinitely and the contract will not terminate
until notice.”
But the Agreement was based upon the 1969
Declaration that was binding for thirty years and would be
extended for successive ten-year periods unless amended by a
vote of the owners of Tract A and Tract B and a “majority vote
of the
owners
of
the
encumbered
property.”
Given the
Agreement’s reference to the Consumer Price Index, and its

17
purpose, which was to resolve possible assessment disputes
during the operation of the 1969 Declaration, its term can only
be seen as being that of the underlying 1969 Declaration.
¶29
Furthermore, we are not persuaded that omission of the
word “settlement” is significant. The Agreement was prepared
after Recreation Centers threatened to sue landowners who had
not paid the new assessments, and Wormsley then suggested $95
when the parties discussed adopting a flat fee subject to annual
adjustments. Accordingly, the 1979 Agreement was adopted in
settlement of a bona fide dispute, was enforceable, and was
subject to the same term as the 1969 Declaration.8
Legal Capacity of the Association

¶30
Recreation
Centers
alternatively
argues
that
the
Association was not a legally constituted organization, that the
1979 Agreement was void, and that only the Board could allocate
the maintenance assessments. Three parties executed the 1979
Agreement, including Pearce as the Association’s president and
Wormsley as Recreation Centers’ president.
¶31
Whether the Association was legally constituted is not
dispositive of its members’ rights under the 1979 Agreement.
“One who deals with an association as a legal entity capable of
transacting business and who thus receives money or value from

8Given this conclusion, we need not consider whether
Recreation Centers was estopped from terminating the Agreement.

18
that association, is estopped from denying the legality of its
existence or right to contract.” Assoc. Students of Univ. of
Ariz. v. Ariz. Bd. of Regents, 120 Ariz. 100, 103, 584 P.2d 564,
567 (App. 1978) (quoting State Farm Mut. Auto. Ins. Co. v.
Mackechnie, 114 F.2d 728 (8th Cir. 1940)); accord Spurlock v.
Santa Fe Pac. R.R., 143 Ariz. 469, 484, 694 P.2d 299, 314 (App.
1984) (parties who contract with an entity as a corporation are
estopped in later lawsuit from denying its corporate existence).
Therefore, because Recreation Centers treated the Association as
an entity capable of entering the 1979 Agreement and certainly
benefitted from assessments collected from Association members,
Recreation Centers cannot now complain about the Association’s
status.
¶32
Although
Recreation
Centers
cites Wolf
Corp. v.
Rollin, 17 Ariz. App. 250, 251, 497 P.2d 70, 71 (1972), for
support, that case invalidated a contract entered by a foreign
corporation that had not complied with corporate formalities or
registered to do business pursuant as required by Arizona law.
The Association is not a foreign corporation and does not face
such a barrier.
¶33
Recreation Centers’ alternative argument that the
Association lacked authority to allocate assessments finds no
support in the Declaration. The Declaration required lakefront
landowners to pay for maintenance but provided no assessment

19
formula. The Declaration also authorized the Board to levy
assessments but did not grant the Board exclusive power to
determine the allocation of costs. See Restatement (Third) of
Property (Servitudes) § 6.5(1)(a) (2000) (unless otherwise
limited by statute or declaration, “a common-interest community”
may raise reasonably necessary funds by levying assessments and
charging fees for services or use of common property). We
accordingly reject this argument and affirm summary judgment on
the assessment issue. We next address El Dorado’s contention
that the 1969 Declaration did not burden its property.
The 1969 Declaration and El Dorado’s Property
¶34
El Dorado challenges the superior court’s conclusion
that its property, which is within Tract C and borders Viewpoint
Lake, is subject to the 1969 Declaration. In 1969, Del Webb
owned both Tract A and C, and the 1969 Declaration stated:
These
restrictions
shall
be
made
an
encumbrance on and an obligation of the real
property adjacent to and contiguous with
Tract “A,” Sun City Unit Sixteen (16) by
reference
hereto
in
the
Declaration
of
Restrictions
recorded
in
connection
therewith.

The foregoing restrictions . . . run with
the land and shall be binding on all persons
owning the real property to which these
restrictions are made an encumbrance . . . .
Deeds of conveyance of said property . . .
may contain the above restrictive covenants
by reference to this document but whether or
not such reference is made in such deeds
. . ., each and all of such restrictive

20
covenants shall be valid and binding upon
the respective grantees.

El Dorado contends that this provision created a “subsequent
filing requirement” as a condition to imposing the Declaration’s
burdens on lakefront property.
¶35
We will not construe a contractual provision as a
condition
precedent
absent
clear
and
unequivocal language
requiring such a construction. E.g., L. Harvey Concrete, Inc.
v. Agro Constr. & Supply Co., 189 Ariz. 178, 182, 939 P.2d 811,
815 (App. 1997) (finding no condition precedent absent proof of
intent to make payment only from one fund and not otherwise).
No language in the 1969 Declaration reveals such an intent.
Moreover, the 1971 amendment indicates that Del Webb and Arizona
Title understood that Tract C was a burdened estate under the
1969 Declaration before any subsequent filing could occur.
¶36
El Dorado contends that the trial court’s decision
renders the subsequent filing language meaningless. To the
contrary, a subsequent filing is required, but it is not a
condition
precedent
to
burdening
Tract
C
with
the
1969
Declaration.
¶37
El Dorado alternatively argues that the Declaration
imposed no servitude because it cannot satisfy the statute of
frauds. According to the Restatement, a writing “must identify
the parties . . ., describe the burdened estate and it must set

21
forth the nature of the servitude, or the essential terms of the
obligation.” Restatement (Third) of Property: Servitudes § 2.7
cmt. f. The 1969 Declaration created restrictions with respect
to Viewpoint Lake and parcels “adjacent to and contiguous with”
the lake. El Dorado concedes that its property is contiguous
with the lake. Furthermore, the 1971 Amendment defined Tract C
as being in common ownership with Tract A and contiguous to it.
Because paragraph 12 of the 1969 Declaration extended the
restrictions and covenants to property adjacent to the lake, El
Dorado’s arguments fail.
¶38
El Dorado nonetheless cites Dunlap Investors Ltd. v.
Hogan, 133 Ariz. 130, 650 P.2d 432 (1982), but that case held
that a legal description “requires a certainty such that a
surveyor can go upon the land and locate the easement from such
description.” Id. at 132, 650 P.2d at 434 (quoting Vrabel v.
Donahoe Creek Watershed Auth., 545 S.W.2d 53, 54 (Tex. Ct. Civ.
App. 1977)). The deed described the servient estate as “any
adjoining property owned by the Grantor . . . either by direct
ownership or as beneficiary of a real estate trust.” Id. at
131, 650 P.2d at 433. One could not determine from the
description which parcels the grantor owned as beneficiary of a
real estate trust. Id. at 132, 650 P.2d at 434. Moreover, the
individual granting the easement to the adjoining property was
not the property’s record owner. Id.

22
¶39
Here, no specialized knowledge is needed to determine
which parcels were subjected to the 1969 Declaration. The
Declaration expressly encumbered Viewpoint Lake (Tract A) and
all parcels adjacent to and contiguous with it (including Tract
C). The 1971 Declaration also clarified that Tract C was
contiguous to A. Therefore, it gave constructive notice by
identifying the burdened property with reasonable certainty and
by accurately stating its terms, purpose, and the nature of the
right claimed. See Villas at Hidden Lakes Condo. Ass’n v.
Geupel Constr. Co., Inc., 174 Ariz. 72, 76-77, 847 P.2d 117,
121-22 (App. 1992) (recorded amendment incorrectly referred to
revoked
declaration
but
could
impart
notice
because
it
identified its purpose and the property). As Recreation Centers
observes, anyone tracing the ownership of Tract C would discover
the 1969 Declaration, that Arizona Title beneficially owned
Tracts A and C in July 1969, and that the property burdened by
the 1969 Declaration included Tract A and all contiguous
property.
¶40
Accordingly, the 1969 Declaration can be enforced
against El Dorado’s property and Tract C was burdened from the
execution of the 1969 Declaration.
CONCLUSION
¶41
We affirm the grants of summary judgment. Pursuant to
A.R.S. § 12-341.01(A)(2003), we award the Class Plaintiffs’

23
their reasonable attorneys’ fees incurred on appeal as well as
their costs subject to compliance with Arizona Rule of Civil
Appellate Procedure 21. We also award Recreation Centers its
reasonable attorneys’ fees pursuant to the same statute but
limit the fees and costs to those incurred in responding to El
Dorado’s appeal. See Pinetop Lakes Ass’n v. Hatch, 135 Ariz.
196, 198, 659 P.2d 1341, 1343 (App. 1983) (action to enforce
deed restriction arose out of contract for purposes of fee award
under § 12-341.01). El Dorado has not prevailed, and thus we
decline its request for attorney’s fees.

/s/__________________________

SHELDON H. WEISBERG, Judge

CONCURRING:

/s/_________________________________
PHILIP HALL, Presiding Judge

/s/_________________________________
DIANE M. JOHNSEN, Judge