CC&R Enforcement & Amenity Covenants | Powell v. Washburn / Decker v. Hendricks | 247 Ariz. 405 (1 CA-CV 18-0397)
Division One holds that a recorded community covenant can compel an owner to affirmatively operate a golf course, and that self-created economic hardship is not a “material change in circumstances” that lets a buyer escape the restriction.
Arizona Court of Appeals | 247 Ariz. 405, 450 P.3d 270 (App. 2019) (No. 1 CA-CV 18-0397) | Decided 2019-09-19
Scope note: This educational page summarizes Swain v. Bixby Village Golf Course, Inc., a Arizona Court of Appeals HOA-related authority. It is not legal advice.
Source note: The page uses verified public opinion text or citation materials. No local ruling PDF is provided because no source PDF passed the file gate.
The takeaway
A restrictive covenant in a community declaration can impose an affirmative duty, here a duty to actually operate a golf course, and not merely prohibit other uses. Covenants are construed under Powell v. Washburn to effectuate the parties’ intent and the covenant’s purposes. A “material change in circumstances” is measured by the common-law standard of Decker v. Hendricks, which requires changes so fundamental that they defeat the covenant’s purpose; mere economic hardship, especially self-created hardship incurred by a buyer who took title with notice, is insufficient. The Court of Appeals affirmed a mandatory permanent injunction to restore and operate the course and rejected the owner’s Thirteenth Amendment involuntary-servitude challenge.
Case Participants
Petitioner Side
- Bixby Village Golf Course, Inc. (Defendant-Appellant)
Bought both Ahwatukee golf courses in 2006 and in 2013 closed and dismantled the Lakes course before selling the parcel to TTLC; defendant/appellant. - TTLC Ahwatukee Lakes Investors, LLC (Defendant-Appellant)
Development entity that bought the Lakes parcel with notice of the covenant and pending litigation, sought residential redevelopment, and counterclaimed material change in circumstances; defendant/appellant. - Chris R. Baniszewski (Counsel)
Warner, Angle, Hallam, Jackson & Formanek PLC
Counsel for defendants/appellants TTLC Ahwatukee Lakes Investors, LLC and Bixby Village Golf Course, Inc. (Phoenix).
Respondent Side
- Linda W. Swain (Plaintiff-Appellee)
Ahwatukee homeowner and enforcing “Benefitted Person” under the Declaration; sued to enforce the golf-course covenant. Reportedly paid roughly a $26,000 premium for a golf-course-adjacent lot. - Eileen Breslin (Plaintiff-Appellee)
Ahwatukee homeowner and co-plaintiff/appellee who joined Swain in the CC&R enforcement action. - Timothy H. Barnes (Counsel)
Timothy H. Barnes PC (now Fletcher Barnes Law)
Counsel for plaintiffs/appellees Swain and Breslin (Phoenix). - Daniel D. Maynard (Counsel)
Maynard, Cronin, Erickson, Curran & Reiter PLC
Counsel on the homeowner/appellee side (Phoenix); FindLaw lists him for a co-appellee, likely in connection with a cross-appeal.
Neutral Parties
- Randall M. Howe (Judge)
Presiding Judge, Arizona Court of Appeals, Division One; authored the opinion. - Jennifer M. Perkins (Judge)
Judge, Arizona Court of Appeals, Division One; joined the opinion. - David D. Weinzweig (Judge)
Judge, Arizona Court of Appeals, Division One; joined the opinion.
What happened
Ahwatukee is a large master-planned community in the Phoenix area, roughly 5,200 homes developed around two golf courses, including the Ahwatukee Lakes course. Beginning in 1986 the original developer recorded deed restrictions on the golf-course land, and in 1992 those restrictions were memorialized in a Declaration of CC&Rs limiting the Lakes parcel to golf-course use. The restriction served the community twice over: it helped secure favorable Arizona golf-course property-tax valuation, and it protected the value and setting of the surrounding homes, whose owners were expressly named as enforcing “Benefitted Persons” under the Declaration.
In 2006 Bixby Village Golf Course, Inc. purchased both Ahwatukee golf courses. In 2013 Bixby closed the Ahwatukee Lakes course and dismantled it, draining the lakes, removing turf and irrigation, and installing barbed-wire fencing. What had been a manicured amenity backing dozens of homes became a fenced-off, weed-covered expanse, and the surrounding owners lost the golf-course views and setting they had relied on and, in some cases, paid a premium to obtain.
Homeowners Linda W. Swain and Eileen Breslin sued to enforce the CC&Rs, contending the Declaration obligated the owner not just to refrain from other uses but to actually operate a golf course on the Lakes parcel. Because the Declaration designated adjoining owners as “Benefitted Persons” with enforcement rights, the homeowners were able to bring the covenant-enforcement action directly, without an HOA entity as the named plaintiff.
While the litigation was pending, Bixby sold the Lakes parcel to TTLC Ahwatukee Lakes Investors, LLC, a development entity that wanted to redevelop the land for residential housing. The Declaration allowed the golf-course restriction to be modified only with the approval of at least 51% of the affected homeowners. TTLC could not obtain that approval. It instead counterclaimed, arguing that a “material change in circumstances” had rendered continued golf-course operation impractical and justified judicial modification or termination of the covenant.
The superior court sided with the homeowners. It granted summary judgment and entered a mandatory permanent injunction ordering the golf course to be restored and operated in compliance with the CC&Rs. The court rejected TTLC’s changed-circumstances theory and its constitutional defense, and TTLC and Bixby appealed to Division One of the Arizona Court of Appeals.
On September 19, 2019, Division One affirmed in a published opinion authored by Presiding Judge Randall M. Howe, joined by Judges Jennifer M. Perkins and David D. Weinzweig. The panel held the covenant imposed an affirmative operating duty under Powell v. Washburn; that under Decker v. Hendricks the owner’s self-created economic hardship was not a material change in circumstances; that compelling a buyer who took encumbered land with notice to comply did not violate the Thirteenth Amendment; and that the prevailing homeowners could recover attorneys’ fees under the Declaration. The United States Supreme Court denied certiorari on November 9, 2020.
Swain confirms that Arizona restrictive covenants can compel affirmative action, not merely forbid it. An owner who takes land burdened by a recorded continuous-use or “shall operate” covenant may be ordered to actually perform, here to restore and run a shuttered golf course, rather than simply pay damages. For residents of communities built around amenities such as golf courses, lakes, open space, or clubhouses, the decision is a powerful tool: where the governing documents designate them as “Benefitted Persons,” individual owners can enforce amenity covenants directly, even when no HOA entity is a party to the suit. The case also narrows the “changed circumstances” escape hatch. A developer or investor cannot dismantle an amenity, declare that the market has changed, and expect a court to rewrite the covenant, particularly after buying with full notice and failing to secure the homeowner vote the documents require for an amendment. The ruling underscores that self-created economic hardship is not a material change, that recorded restrictions run with the land against successors, and that fee-shifting clauses can make covenant enforcement financially viable for ordinary owners. Boards and buyers alike should treat amenity-use covenants as durable, affirmative obligations that survive changes in ownership and market conditions.
Litigation record
The original developer records deed restrictions on the Ahwatukee golf-course land, limiting the Lakes parcel to golf-course use.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
The restrictions are memorialized in a Declaration of CC&Rs that ties the Lakes parcel to golf-course use, references favorable golf-course tax valuation, and designates adjoining homeowners as enforcing “Benefitted Persons.”
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Bixby Village Golf Course, Inc. purchases the two Ahwatukee golf courses.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Bixby closes and dismantles the Ahwatukee Lakes course, draining the lakes and installing barbed-wire fencing.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Homeowners Linda W. Swain and Eileen Breslin sue to enforce the CC&Rs; Bixby sells the Lakes parcel to TTLC Ahwatukee Lakes Investors, LLC, which seeks residential redevelopment.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
TTLC fails to obtain the 51% homeowner approval the Declaration requires to amend the golf-course covenant and counterclaims that a “material change in circumstances” justifies modifying it.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
The Maricopa County Superior Court grants summary judgment for the homeowners and enters a mandatory permanent injunction to restore and operate the course; TTLC and Bixby appeal (docketed 1 CA-CV 18-0397).
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Division One of the Arizona Court of Appeals affirms in a published opinion by Presiding Judge Howe, joined by Judges Perkins and Weinzweig.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
The United States Supreme Court denies certiorari, leaving the affirmed injunction in place.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
FAQ
What was Swain v. Bixby Village Golf Course about?
It was a dispute over the Ahwatukee Lakes golf course in Phoenix. Recorded CC&Rs limited the parcel to golf-course use and named surrounding homeowners as enforcing “Benefitted Persons.” After the course was closed and dismantled in 2013, homeowners Linda Swain and Eileen Breslin sued to enforce the covenant. The parcel’s new owner, TTLC Ahwatukee Lakes Investors, wanted to build housing and argued the covenant should be modified. The courts ordered the course restored and operated.
Can an Arizona covenant force a property owner to actually operate an amenity?
Yes. The Court of Appeals held that a properly drafted, recorded covenant can impose an affirmative duty, such as a duty to operate a golf course, not just prohibit other uses. Reading the Declaration under Powell v. Washburn to effectuate the drafters’ intent and purposes, the court affirmed a mandatory injunction requiring the owner to restore and run the course.
Why didn’t the “material change in circumstances” argument work?
Under the common-law standard from Decker v. Hendricks, only changes so fundamental that they defeat the covenant’s purpose will excuse performance. The court found continued golf-course operation remained economically feasible, and TTLC’s hardship was economic and largely self-created: it bought the land with notice of the covenant and pending litigation and failed to obtain the 51% homeowner approval the Declaration required to amend the restriction.
How could individual homeowners sue when no HOA was a party?
The Declaration expressly designated adjoining owners as enforcing “Benefitted Persons.” That gave individual homeowners the right to enforce the golf-course covenant directly, so Swain and Breslin could bring the action themselves without an HOA entity as the named plaintiff.
Did the Thirteenth Amendment prevent the court from ordering the owner to operate the course?
No. The court rejected TTLC’s involuntary-servitude argument. Because TTLC voluntarily acquired land already encumbered by the recorded covenant, and with notice of it, an order compelling compliance with the restriction did not amount to involuntary servitude under the Thirteenth Amendment.
Is Swain v. Bixby Village binding precedent, and who paid the attorneys’ fees?
Yes. It is a published opinion of the Arizona Court of Appeals, reported at 247 Ariz. 405, 450 P.3d 270 (App. 2019), and the U.S. Supreme Court denied certiorari in November 2020, so it remains citable authority. The court confirmed that the prevailing homeowners were entitled to recover their attorneys’ fees under the fee-shifting provision in the Declaration.
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 | 247 Ariz. 405, 450 P.3d 270 (App. 2019) (No. 1 CA-CV 18-0397) |
|---|---|
| Court / tribunal | Court of Appeals |
| Decision / key date | September 19, 2019 |
| Judge / panel | Randall M. Howe (Presiding Judge, author), Jennifer M. Perkins, David D. Weinzweig |
| Parties | Linda W. Swain and Eileen Breslin (neighboring homeowners / CC&R “Benefitted Persons”; Plaintiffs/Appellees) v. Bixby Village Golf Course, Inc. and TTLC Ahwatukee Lakes Investors, LLC (golf-course/property owners; Defendants/Appellants) |
| Governing law |
|
| Topics | cc-and-rscovenantsamendmentsgood-faith-and-fair-dealingattorneys-fees |
| Outcome / holding | A restrictive covenant in a community declaration can impose an affirmative duty, here a duty to actually operate a golf course, and not merely prohibit other uses. Covenants are construed under Powell v. Washburn to effectuate the parties’ intent and the covenant’s purposes. A “material change in circumstances” is measured by the common-law standard of Decker v. Hendricks, which requires changes so fundamental that they defeat the covenant’s purpose; mere economic hardship, especially self-created hardship incurred by a buyer who took title with notice, is insufficient. The Court of Appeals affirmed a mandatory permanent injunction to restore and operate the course and rejected the owner’s Thirteenth Amendment involuntary-servitude challenge. |
| 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 | 9 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
Ahwatukee is a Phoenix master-planned community of roughly 5,200 homes built around two golf courses. Starting in 1986 the developer recorded deed restrictions, later memorialized in a 1992 Declaration of Covenants, Conditions & Restrictions, limiting the Ahwatukee Lakes parcel to golf-course use. The restriction served two purposes: it secured favorable Arizona golf-course property-tax valuation, and it protected adjoining homeowners, who were expressly designated as enforcing “Benefitted Persons.” In 2006 Bixby Village Golf Course, Inc. bought both courses, and in 2013 it closed and dismantled the Lakes course, draining its lakes and installing barbed-wire fencing. Homeowners Linda W. Swain and Eileen Breslin sued for breach of the CC&Rs. Bixby then sold the parcel to TTLC Ahwatukee Lakes Investors, LLC, which wanted to redevelop the land for housing. After failing to obtain the 51% homeowner approval needed to amend the covenant, TTLC counterclaimed that a “material change in circumstances” justified modifying it. The trial court granted summary judgment to the homeowners and entered a mandatory permanent injunction ordering the course restored and operated. Division One of the Arizona Court of Appeals affirmed. It held the covenant imposed an affirmative duty to operate the course, construed under Powell v. Washburn to effectuate the drafters’ intent and purposes. Applying Decker v. Hendricks, it rejected the material-change defense because operation remained feasible and TTLC bought with notice of the restriction and pending litigation. The court also rejected a Thirteenth Amendment involuntary-servitude challenge and confirmed the prevailing homeowners’ right to recover attorneys’ fees under the Declaration.
The court construed the covenant under Powell v. Washburn, reading the Declaration as a whole to give effect to the drafters’ intent and the covenant’s purposes. Because the restriction existed to preserve golf-course use for the benefit of adjoining owners and to secure favorable golf-course tax valuation, it imposed an affirmative duty to operate the course, not merely a passive limitation on other uses. The court rejected the argument that a covenant can only forbid conduct: nothing in Arizona law prevents a properly drafted, recorded covenant from compelling an owner to maintain and run an amenity.
On the counterclaim, the court applied the common-law changed-conditions standard from Decker v. Hendricks. Only changes so radical that they defeat the essential purpose of the restriction will excuse performance. Continued operation of the Lakes course remained economically feasible, and the hardship TTLC identified was economic and largely self-created: it bought the parcel with record notice of the golf-course covenant and with the homeowners’ enforcement litigation already pending, and it failed to obtain the 51% homeowner approval the Declaration required to amend the restriction. Self-inflicted economic disadvantage is not a material change in circumstances.
Equitable considerations supported the mandatory injunction. The homeowners had reasonably relied on the golf-course setting and paid for it, with one plaintiff having paid roughly a $26,000 premium for a golf-course-adjacent lot, and Arizona policy protects reasonable reliance on recorded residential restrictions. Finally, because TTLC voluntarily acquired encumbered land with notice, an order compelling compliance did not amount to involuntary servitude under the Thirteenth Amendment, and the fee-shifting provision in the Declaration entitled the prevailing homeowners to recover their attorneys’ fees.
Swain confirms that Arizona restrictive covenants can compel affirmative action, not merely forbid it. An owner who takes land burdened by a recorded continuous-use or “shall operate” covenant may be ordered to actually perform, here to restore and run a shuttered golf course, rather than simply pay damages. For residents of communities built around amenities such as golf courses, lakes, open space, or clubhouses, the decision is a powerful tool: where the governing documents designate them as “Benefitted Persons,” individual owners can enforce amenity covenants directly, even when no HOA entity is a party to the suit.
The case also narrows the “changed circumstances” escape hatch. A developer or investor cannot dismantle an amenity, declare that the market has changed, and expect a court to rewrite the covenant, particularly after buying with full notice and failing to secure the homeowner vote the documents require for an amendment. The ruling underscores that self-created economic hardship is not a material change, that recorded restrictions run with the land against successors, and that fee-shifting clauses can make covenant enforcement financially viable for ordinary owners. Boards and buyers alike should treat amenity-use covenants as durable, affirmative obligations that survive changes in ownership and market conditions.