Tag Archives: amendments

Villa Sendero Homeowners Association Inc v. Diana Costain: Arizona HOA Superior Court Case Guide

Posted on by

CC&R Amendments & Short-Term Rentals | Kalway v. Calabria Ranch | CV2022-004188

In this Maricopa County Superior Court case, homeowner Diana Costain challenged the Villa Sendero Homeowners Association’s authority to adopt a Fifth Amendment to its CC&Rs banning rentals of less than 30 days. Invoking Kalway v. Calabria Ranch HOA, she argued the original declaration — which allows “rent signs” and lets owners delegate common-area rights to tenants — gave no reasonable notice that short-term rentals could later be prohibited. The court denied her motion to dismiss because terms like “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent” are undefined in the CC&Rs and required factual development. The parties settled before the question was ever answered on the merits.

Last updated July 1, 2026. Case: Villa Sendero Homeowners Association Inc v. Diana Costain, Maricopa County Superior Court No. CV2022-004188.

Download motion-to-dismiss ruling

Scope note: This page covers Villa Sendero Homeowners Association Inc v. Diana Costain (Maricopa County Superior Court No. CV2022-004188) as a public Arizona superior-court HOA case guide. It is built from the court’s own filed minute entries, including the August 9, 2022 under-advisement ruling on the motion to dismiss; the complete set of collected minute entries is available in the source-document index below. Currency caveat: the last collected minute entry, dated December 14, 2022, shows the court accepted a notice of settlement and placed the case on the dismissal calendar for dismissal on or after February 14, 2023. The collected entries do not include a final dismissal order, and the terms of the settlement are not part of the court’s minute-entry record. The court never ruled on the merits of the amendment’s validity. Superior-court rulings bind only the parties and are not precedent. This page is educational and is not legal advice.

The takeaway

The superior court denied homeowner Diana Costain’s Rule 12(b)(6) motion to dismiss. Whether the Association’s 2020 Fifth Amendment to the CC&Rs — which prohibits rentals of less than 30 days — was properly adopted could not be decided on the pleadings, because key terms in the CC&Rs are undefined: “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent.” The court held that further development of those terms was appropriate during the case, and it noted that Kalway v. Calabria Ranch HOA — the Arizona Supreme Court amendment-notice decision both sides fought over — was initially addressed by the trial court on summary judgment, not a motion to dismiss. The court also held that a party need not file a declaratory judgment action to raise a defense regarding the terms of CC&Rs. The parties settled about four months later, so the validity of the short-term-rental ban was never decided on the merits.

Case Participants

Petitioner Side

  • Villa Sendero Homeowners Association, Inc. (Plaintiff)
    Homeowners association that adopted the Fifth Amendment to its CC&Rs in 2020 prohibiting rentals of less than 30 days; the named plaintiff in this action, which filed an Application for Preliminary Injunction on April 4, 2022.
  • Chandler W. Travis (Counsel)
    Counsel of record for Plaintiff Villa Sendero Homeowners Association, Inc. throughout the collected minute entries.

Respondent Side

  • Diana Costain (Defendant)
    Homeowner who purchased her Villa Sendero property in 2013 — a 35,000-square-foot lot containing a home, multiple buildings, and parking. She moved to dismiss, challenging the Association’s authority to adopt the short-term-rental restriction.
  • Mark Bainbridge (Counsel)
    Counsel of record for Defendant Diana Costain throughout the collected minute entries.

Neutral Parties

  • Joseph P. Mikitish (Judge)
    Maricopa County Superior Court judge who presided over the case and issued the August 9, 2022 under-advisement ruling denying the motion to dismiss.
  • John D. Lierman (Judge Pro Tempore)
    Judge pro tempore appointed through the court’s Alternative Dispute Resolution department; conducted the parties’ settlement conference and signed the Civil Settlement Conference Report reflected in the December 14, 2022 minute entry.

What happened

Villa Sendero is a homeowners-association community governed by a recorded declaration of covenants, conditions, and restrictions (CC&Rs). Diana Costain purchased her property there in 2013 — a 35,000-square-foot lot containing a home, multiple buildings, and parking — and the property has been subject to the CC&Rs since her purchase. In 2020 the Association adopted an amendment to the CC&Rs, the “Fifth Amendment,” prohibiting rentals of less than 30 days.

The dispute reached Maricopa County Superior Court in 2022 with the Association as the named plaintiff and Costain as the defendant; the Association filed an Application for Preliminary Injunction on April 4, 2022. At an April 22, 2022 return hearing before Judge Joseph P. Mikitish, the parties stipulated to a briefing schedule for a motion to dismiss from Costain, and the court held the Association’s preliminary-injunction application in abeyance until that motion could be argued. Costain filed her motion on May 19, 2022, and the court heard oral argument on June 17, 2022 — a virtual hearing that six residents of the Villa Sendero community also attended.

Costain’s motion framed the core question: could the Association validly adopt a new short-term-rental restriction by amendment? She argued that CC&Rs are contracts interpreted as a matter of law, and that under the Arizona Supreme Court’s decision in Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532 (2022), an original declaration must give owners sufficient notice of the possibility of a future amendment. Here, she argued, the original CC&Rs did not restrict rentals at all and in fact contemplated them — Article VIII allows “rent signs,” and Article III, Section 2 lets a homeowner delegate common-area enjoyment rights to tenants — so the general amendment provision gave her no reasonable notice that rentals under 30 days could later be banned. She also argued the restriction decreased her property’s value.

The Association responded on two fronts. Procedurally, it argued Costain’s Kalway theory failed because she had not filed a declaratory relief action, as the Kalway plaintiff had. Substantively, it argued the original CC&Rs already required each lot to be used only for a single-family residence and prohibited use of the premises for “business, professional, commercial or institutional purposes” — so residents had notice of use restrictions from the start, and the amendment merely clarified that prohibited commercial operations include short-term, bed-and-breakfast-style leases. Costain replied that no declaratory counterclaim is required to raise the defense, that the Association was not clarifying an existing restriction but adding a new one untethered to the original CC&Rs, and that a short-term rental is no more a business operation than a long-term rental is.

In an under-advisement ruling issued August 9, 2022, Judge Mikitish denied the motion to dismiss. The court agreed with Costain that a party need not file a declaratory judgment action to raise a defense regarding the terms of CC&Rs. But it found that key terms and provisions in the CC&Rs — “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent” — are not defined, and that further development of those terms was appropriate during the action to determine whether the Fifth Amendment was properly adopted. The court could not conclude at the pleading stage that the complaint failed to support the Association’s allegations, and it noted that Kalway itself was initially addressed by the trial court on motions for summary judgment rather than a motion to dismiss.

The case then moved toward resolution rather than trial. On September 27, 2022 the court adopted the parties’ stipulated scheduling order, referred the case to the court’s Alternative Dispute Resolution department for a mandatory settlement conference to be held by January 5, 2023, and set a trial setting conference for February 24, 2023. The settlement conference worked: after receiving the Civil Settlement Conference Report signed by Judge Pro Tempore John D. Lierman, the court on December 14, 2022 accepted the notice of settlement, deemed all pending matters moot, vacated the trial setting conference, and placed the case on the dismissal calendar for dismissal on or after February 14, 2023. The settlement’s terms do not appear in the minute-entry record, and the validity of the short-term-rental amendment was never decided.

Procedural timeline

Step 2020 The Association adopts the Fifth Amendment to the CC&Rs, prohibiting rentals of less than 30 days.
Step 2022-04-04 The Association files an Application for Preliminary Injunction in Maricopa County Superior Court (CV2022-004188).
Step 2022-04-22 Virtual return hearing before Judge Mikitish. By stipulation, the court sets a briefing schedule for Costain’s motion to dismiss, sets oral argument, and holds the preliminary-injunction application in abeyance.
Step 2022-05-19 Costain files her Motion to Dismiss; the Association responds June 3 and Costain replies June 9.
Step 2022-06-17 Virtual oral argument on the motion to dismiss, attended by six Villa Sendero residents; the court takes the motion under advisement.
Step 2022-08-09 Under-advisement ruling denies the motion to dismiss: key CC&R terms are undefined and require factual development before the Fifth Amendment’s validity can be determined.
Step 2022-09-27 The court adopts the parties’ stipulated scheduling order, orders a mandatory settlement conference (to be held by January 5, 2023), and sets a trial setting conference for February 24, 2023.
Step 2022-12-14 After a settlement conference before Judge Pro Tempore John D. Lierman, the court accepts the notice of settlement, deems pending matters moot, vacates the trial setting conference, and places the case on the dismissal calendar for dismissal on or after February 14, 2023.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/villa-sendero-homeowners-association-v-diana-costain/raw/: 5 PDFs. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2022-04-22

Oral Argument Set

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2022-04-22_001_oral-argument-set.pdf
Source 2 2022-06-17

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-06-17_002_minute-entry.pdf
Source 3 2022-08-09

Under Advisement Ruling

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-08-09_003_under-advisement-ruling.pdf
Source 4 2022-09-27

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-09-27_004_minute-entry.pdf
Source 5 2022-12-14

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-12-14_005_minute-entry.pdf

FAQ

What was this case about?

The validity of an HOA CC&R amendment restricting short-term rentals. In 2020 the Villa Sendero Homeowners Association adopted a Fifth Amendment to its CC&Rs prohibiting rentals of less than 30 days. Homeowner Diana Costain challenged the Association’s authority to adopt that restriction, arguing the original CC&Rs gave owners no notice that such a ban could later be imposed by amendment.

What is Kalway v. Calabria Ranch HOA and why did it matter here?

As described in the court’s ruling, Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532 (2022), is an Arizona Supreme Court decision holding that for CC&Rs to be amended, the original declaration must give sufficient notice of the possibility of a future amendment. Costain relied on it to argue the general amendment clause in Villa Sendero’s CC&Rs gave no reasonable notice that a sub-30-day rental ban could be adopted. The court noted that Kalway was initially addressed by the trial court on summary judgment — a stage with a developed factual record — rather than on a motion to dismiss.

Did the court decide whether the short-term-rental ban was valid?

No. The August 9, 2022 ruling decided only that the question could not be answered on the pleadings. Because the CC&Rs do not define key terms — “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent” — the court held further development of those terms was appropriate to determine whether the Fifth Amendment was properly adopted. The case settled in December 2022 before any merits ruling.

Does a homeowner have to file a declaratory judgment action to challenge a CC&R amendment?

Not to raise the issue defensively. The Association argued Costain’s challenge failed because, unlike the Kalway plaintiff, she had not filed a declaratory relief action. The court disagreed, holding that under the Arizona Rules of Civil Procedure a party need not file a declaratory judgment action to raise a defense regarding the terms of CC&Rs.

How did the case end?

By settlement. The court ordered a mandatory settlement conference in September 2022, and after Judge Pro Tempore John D. Lierman conducted the conference and submitted a Civil Settlement Conference Report, the court on December 14, 2022 accepted the notice of settlement, deemed all pending matters moot, vacated the trial setting conference, and placed the case on the dismissal calendar for dismissal on or after February 14, 2023. The settlement’s terms are not part of the minute-entry record.

Is this decision binding on other Arizona HOA disputes?

No. Superior-court rulings bind only the parties to the case and are not precedent — and here the court never even reached the merits of the amendment’s validity. The case is still useful reading: it shows how a Kalway notice challenge to a short-term-rental amendment is litigated, that undefined CC&R terms can keep such a dispute alive past the pleading stage, and that these fights often resolve through court-ordered settlement conferences rather than trial.

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 / citationCV2022-004188 (Maricopa County Superior Court)
Court / tribunalSuperior Court
Decision / key dateAugust 9, 2022
Judge / panelHon. Joseph P. Mikitish
PartiesVilla Sendero Homeowners Association, Inc. (Plaintiff, homeowners association) v. Diana Costain (Defendant, homeowner)
Topics
cc-and-rsprocedureamendmentscovenants
Outcome / holding

The superior court denied the homeowner’s Rule 12(b)(6) motion to dismiss, holding that a party need not file a declaratory judgment action to raise a defense regarding the terms of CC&Rs, but that whether the Fifth Amendment prohibiting rentals of less than 30 days was properly adopted could not be resolved on the pleadings because key CC&R terms — “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent” — are undefined and require further development; the case settled before any merits ruling.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package5 PDFs
Step-by-step docket roadmap8 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

In 2020 the Villa Sendero Homeowners Association adopted a Fifth Amendment to its CC&Rs prohibiting rentals of less than 30 days. The resulting Maricopa County Superior Court case — filed with the Association as plaintiff, which also applied for a preliminary injunction in April 2022 — turned on homeowner Diana Costain’s motion to dismiss, in which she challenged the Association’s authority to adopt the restriction. Relying on Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 532 (2022), Costain argued the original CC&Rs gave no reasonable notice that short-term rentals could later be banned: the declaration allows “rent signs” and lets owners delegate common-area rights to tenants. The Association countered that the original CC&Rs’ single-family-residence requirement and ban on “business, professional, commercial or institutional purposes” gave owners notice, and that the amendment merely clarified that prohibited commercial operations include short-term bed-and-breakfast-style leases. In an August 9, 2022 under-advisement ruling, the court denied the motion to dismiss because key CC&R terms are undefined and required factual development. The parties then settled at a court-ordered settlement conference, and on December 14, 2022 the court accepted the notice of settlement and placed the case on the dismissal calendar for dismissal on or after February 14, 2023.

Key Issues & Findings

The court applied the familiar Rule 12(b)(6) standard: a claim is dismissed only when the plaintiff is not entitled to relief under any interpretation of the facts, the court looks only to the pleading and its well-pled factual allegations, conclusory statements are insufficient, and factual allegations are assumed true in the light most favorable to the pleading party. Against that standard, Costain argued that CC&Rs are contracts interpreted as a matter of law and that under Kalway v. Calabria Ranch HOA an original declaration must give sufficient notice of the possibility of a future amendment. She pointed to features of the original CC&Rs that contemplate renting — Article VIII allows “rent signs” and Article III, Section 2 permits a homeowner to delegate common-area enjoyment rights to tenants — and argued the general amendment provision gave her no reasonable notice that rentals under 30 days could be prohibited, a restriction she said also decreased her property’s value.

The Association raised a threshold procedural objection — that Costain’s position failed because she had not filed a declaratory relief action, as the Kalway plaintiff had — and a substantive defense: the original CC&Rs required each lot to be used only for a single-family residence and prohibited use of the premises for “business, professional, commercial or institutional purposes,” so owners had notice of use restrictions and the amendment provisions could be used to clarify that prohibited commercial operations include short-term, bed-and-breakfast-style leases. Costain replied that the Association was not clarifying an existing restriction but adding a new one untethered to the original CC&Rs, that short-term rentals are consistent with single-family-residence use, and that a short-term rental is no more a business operation than a long-term rental.

The court resolved the motion on two grounds. It first rejected the Association’s procedural argument, holding that under the Arizona Rules of Civil Procedure a party need not file a declaratory judgment action to raise a defense regarding the terms of CC&Rs. It then found that key terms and provisions in the CC&Rs — “single-family residence,” “business, professional, commercial or institutional purposes,” and “rent” — are not defined, and that further development of those terms was appropriate during the course of the action to determine whether the Fifth Amendment was properly adopted. Because the court could not conclude at the pleading stage that the complaint failed to support the Association’s allegations, and because Kalway itself was initially addressed by the trial court on motions for summary judgment rather than a motion to dismiss, the motion was denied. The case never reached that developed record: after a September 27, 2022 scheduling order requiring a mandatory settlement conference, the parties settled before Judge Pro Tempore John D. Lierman, and on December 14, 2022 the court accepted the notice of settlement, deemed pending matters moot, and placed the case on the dismissal calendar.

Why It Matters

Short-term-rental amendments are one of the most contested moves an Arizona HOA can make, and this case shows how a Kalway notice challenge to such an amendment actually plays out in superior court. Two practical points emerge from the ruling. First, the procedural holding: a homeowner does not need to file her own declaratory judgment action to attack an amendment’s validity — she can raise it as a defense when the association litigates against her. Second, drafting matters: because Villa Sendero’s CC&Rs never defined “single-family residence,” “business, professional, commercial or institutional purposes,” or “rent,” the court could not resolve the amendment’s validity on the pleadings and sent the dispute into discovery.

The case also illustrates a common endgame. Rather than litigate through summary judgment the way Kalway itself was decided, the parties settled at a court-ordered settlement conference roughly four months after the motion to dismiss was denied, and the case went onto the dismissal calendar. That means the ruling offers no merits answer on whether the 30-day rental ban survives Kalway — and as a superior-court decision it binds only these parties in any event.

← Back to Superior Court cases

Michael Lyon v. Regency House Association: Arizona HOA Superior Court Case Guide

Posted on by

CC&R Amendments & Common Elements | Kalway Reasonable-Expectations Test | CV2020-008665

In this Maricopa County Superior Court case, an apartment owner at Regency House argued that his association could not alter the parking spaces identified on the community’s recorded plat — including spaces P-237 through P-246, among them his assigned space P-238 — without the 75% owner vote that Section 24 of the CC&Rs requires for amendments. The court initially held the board’s general use and maintenance powers made the question one for a jury, but on reconsideration it applied Kalway v. Calabria Ranch HOA, LLC and held the 2019 alterations were substantial and unforeseen changes a homeowner could not reasonably expect, granting the owner summary judgment.

Last updated July 1, 2026. Case: Michael Lyon v. Regency House Association, et al., Maricopa County Superior Court No. CV2020-008665.

Download summary-judgment ruling

Scope note: This page covers Michael Lyon v. Regency House Association, et al. (Maricopa County Superior Court No. CV2020-008665) as a public Arizona superior-court HOA case guide. It is built from the court’s own filed minute entries, including the April 15, 2022 under-advisement ruling and the September 6, 2022 ruling on reconsideration that granted the plaintiff summary judgment; the complete set of collected minute entries is available in the source-document index below. Currency caveat: the last collected minute entries show a Notice of Settlement filed October 21, 2022 and the case placed on the dismissal calendar for dismissal on or after January 25, 2023, with all pending motions deemed moot — the collected entries do not include the final dismissal order or any settlement terms. Superior-court rulings bind only the parties and are not precedent. This page is educational and is not legal advice.

The takeaway

On reconsideration, the superior court granted the homeowner summary judgment. Applying the Arizona Supreme Court’s decision in Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 523 (2022) — which the court acknowledged it had been unaware of when it originally denied the motion — the court held that the association’s 2019 alteration of the parking garage was a substantial and unforeseen change to parking spaces specifically identified on the recorded plat, which the CC&Rs incorporated by reference. The board’s general authority to “maintain, repair, replace, administer and operate the Property” under Section 4.2 did not extend to that completed alteration, especially where no homeowner vote was taken; changing the recorded plat required the Section 24 amendment process — an instrument signed by owners of at least 75% of the total ownership of the common elements and all institutional first mortgagees. The court also noted the plaintiff’s undisputed measurements showing three new spaces were illegal under the City of Phoenix Zoning Ordinance, observing that illegal parking spaces are not something a homeowner could reasonably expect.

Case Participants

Petitioner Side

  • Michael Lyon (Plaintiff)
    Owner at Regency House who was assigned parking space P-238 when he purchased his apartment in 2009; he challenged the September 2019 alteration of the community’s parking garage and won summary judgment on reconsideration.
  • Rachel Ellen Phillips (Counsel)
    Counsel for Plaintiff Michael Lyon in the early phase of the case; she argued the December 4, 2020 hearing on the defendants’ partial motion to dismiss. (Her surname appears as both “Phillips” and “Philips” in the minute entries.)
  • Damien R. Meyer (Counsel)
    Counsel of record for Plaintiff Michael Lyon in the later phase of the case; he argued the March 25, 2022 hearing on the motion for partial summary judgment. (His surname appears as both “Meyer” and “Myer” in the minute entries.)

Respondent Side

  • Regency House Association (Defendant)
    The community association governed by the Regency House CC&Rs and Bylaws; in September 2019 the community’s parking garage was altered with new parking spaces and loading zones. The minute entries caption the defendants collectively as “Regency House Association, et al.”
  • A A M, L.L.C. (Defendant)
    Co-defendant named in the case-party records, where it is listed as self-represented (“Pro Per”). The minute entries do not describe its role; they refer to the defendants collectively as “Regency House Association, et al.”
  • Augustus H. Shaw IV (Counsel)
    Counsel for the defendants throughout the collected minute entries; he argued both the December 2020 motion-to-dismiss hearing and the March 2022 summary-judgment hearing.

Neutral Parties

  • Joan M. Sinclair (Judge)
    Maricopa County Superior Court judge who issued the April 15, 2022 under-advisement ruling denying partial summary judgment and the September 6, 2022 ruling granting reconsideration and summary judgment for the plaintiff.
  • Andrew J. Russell (Judge)
    Judicial officer (signing as Commissioner) who presided over the December 4, 2020 argument on the partial motion to dismiss, dismissed the gross-negligence count, referred the parties to a settlement conference, and denied the defendants’ 2021 motion for reconsideration.
  • Daniel J. Kiley (Judge)
    Maricopa County Superior Court judge assigned early in the case; he set the December 2020 telephonic oral argument on the defendants’ partial motion to dismiss.

What happened

Regency House is a community governed by recorded covenants, conditions and restrictions (CC&Rs) under which the owners share ownership of common elements that include the parking garage and parking areas (Section 1.7). The plat recorded with the CC&Rs was incorporated into them by reference (Section 1.20) and specifically identified the individual parking spaces in the first and second basement plans as they existed in April 1979. Michael Lyon was assigned parking space P-238 when he purchased his apartment in 2009. In September 2019, the parking garage was altered with new parking spaces and loading zones. Lyon sued Regency House Association and a co-defendant in 2020, asserting claims that included breach of contract (Count 1), gross negligence (Count IV), and injunctive relief and/or specific performance (Count 6).

The defendants filed a partial motion to dismiss. After a virtual oral argument on December 4, 2020, Commissioner Andrew J. Russell granted the motion as to the gross-negligence count against all defendants and denied it as to every remaining count. The court then referred the parties to a mandatory settlement conference through its Alternative Dispute Resolution office. In June 2021 the defendants sought expedited reconsideration of the motion-to-dismiss ruling; Judge Joan M. Sinclair ordered briefing, noting “the confusion relative to the order in the minute entry filed on December 7, 2020 and the change in judicial officers,” and Commissioner Russell denied the motion on July 23, 2021.

In October 2021 Lyon moved for partial summary judgment on his breach-of-contract and injunctive-relief/specific-performance counts. His theory was that the parking spaces identified on the recorded plat could not be altered without following Section 24 of the CC&Rs, which requires any change, modification, or rescission of the Declaration to be made by a recorded instrument signed by owners of at least 75% of the total ownership of the common elements and by all institutional first mortgagees. After oral argument on March 25, 2022, Judge Sinclair denied the motion in an April 15, 2022 under-advisement ruling. Although the court observed that “[a]t first blush, it appears that the parking spaces cannot be altered without following the Section 24 requirements,” it pointed to the board’s authority over the “use” of parking under Sections 6, 7, and 21.9 of the CC&Rs and its power under the Bylaws to adopt rules and to provide for maintenance, repair, and replacement of the common elements, and concluded a reasonable juror could find no breach — so summary judgment was inappropriate.

Lyon moved for reconsideration on June 7, 2022, supported by exhibits and a declaration of Paul Bakalis. In its September 6, 2022 ruling, the court explained that it had been “unfortunately unaware” of Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 523 (2022), when it decided the original motion. In Kalway, the Arizona Supreme Court held that even a procedurally proper majority-vote amendment fails if the original declaration did not give homeowners sufficient notice of the change, because “allowing substantial, unforeseen, and unlimited amendments would alter the nature of the covenants to which the homeowners originally agreed.” The inquiry turns on the objective, reasonable expectations of homeowners based on the declaration in effect when they purchased.

Applying Kalway, the court found that no vote of 75% of the owners had been taken under Section 24; that the recorded plat — incorporated into the Declaration — specifically identified the parking spaces as they originally existed; and that “[a]dding parking spots within the already cramped parking structure was not contemplated within the CC&Rs.” Lyon’s spot and the other owners’ spots from P-237 to P-246 were disproportionally affected. The board’s general authority under Section 4.2 to “maintain, repair, replace, administer and operate the Property” did not extend to the completed alteration of the parking areas, because those changes were substantial and unforeseen — especially with no homeowners’ vote. The court added that the defendants did not dispute Lyon’s measurements showing the three parking spaces behind P-237 to P-246 were illegal under City of Phoenix Zoning Ordinance 702(B)(2)(a), and that “[i]llegal parking spaces are not something that a homeowner could reasonably expect.” It granted reconsideration, vacated the April ruling, granted Lyon’s motion for summary judgment, and directed him to file a proposed order by September 30, 2022.

The case then resolved by agreement. The court received a Notice of Settlement filed October 21, 2022, and on October 25, 2022 it placed the matter on the dismissal calendar for dismissal of all remaining claims and parties on or after January 25, 2023 — unless a judgment, stipulation of dismissal, or extension intervened — and deemed all pending motions moot. The collected minute entries end there; they do not show the final dismissal order or the settlement’s terms.

Procedural timeline

Step 2019-09 The Regency House parking garage is altered with new parking spaces and loading zones.
Step 2020 Michael Lyon sues Regency House Association, et al. in Maricopa County Superior Court (CV2020-008665); his claims include breach of contract, gross negligence, and injunctive relief and/or specific performance.
Step 2020-10-19 Judge Daniel J. Kiley sets a telephonic oral argument on the defendants’ partial motion to dismiss.
Step 2020-12-04 After oral argument, Commissioner Andrew J. Russell dismisses Count IV (gross negligence) as to all defendants and denies the motion to dismiss as to all remaining counts.
Step 2020-12-18 The court refers the parties to a mandatory settlement conference through the ADR office, to be held by April 16, 2021.
Step 2021-07-23 Commissioner Russell denies the defendants’ expedited motion for reconsideration of the motion-to-dismiss ruling (filed June 9, 2021; briefing ordered June 16, 2021).
Step 2021-10 Lyon files a motion for partial summary judgment on Count 1 (breach of contract) and Count 6 (injunctive relief and/or specific performance). The minute entries date the filing as both October 5 and October 15, 2021.
Step 2022-03-25 Virtual oral argument on the motion for partial summary judgment; Judge Joan M. Sinclair takes the matter under advisement.
Step 2022-04-15 Under-advisement ruling (filed April 19, 2022) denies partial summary judgment: a reasonable juror could find no breach given the board’s use and maintenance authority under the CC&Rs and Bylaws.
Step 2022-06-07 Lyon files a motion for reconsideration with supporting exhibits and the declaration of Paul Bakalis; the court sets a briefing schedule the next day.
Step 2022-09-06 Applying Kalway v. Calabria Ranch HOA, LLC, the court grants reconsideration, vacates the April ruling, and grants Lyon’s motion for summary judgment; a proposed order is due September 30, 2022.
Step 2022-10-25 After a Notice of Settlement (filed October 21, 2022), the court places the case on the dismissal calendar for dismissal on or after January 25, 2023 and deems all pending motions moot.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/michael-lyon-v-regency-house-association/raw/: 12 PDFs. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2020-10-19

Oral Argument Set

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2020-10-19_001_oral-argument-set.pdf
Source 2 2020-12-04

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2020-12-04_002_minute-entry.pdf
Source 3 2020-12-18

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2020-12-18_003_minute-entry.pdf
Source 4 2021-06-16

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2021-06-16_004_minute-entry.pdf
Source 5 2021-07-23

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2021-07-23_005_minute-entry.pdf
Source 6 2022-02-15

Oral Argument Set

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2022-02-15_006_oral-argument-set.pdf
Source 7 2022-03-03

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-03-03_007_minute-entry.pdf
Source 8 2022-03-25

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-03-25_008_minute-entry.pdf
Source 9 2022-04-15

Under Advisement Ruling

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-04-15_009_under-advisement-ruling.pdf
Source 10 2022-06-08

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-06-08_010_minute-entry.pdf
Source 11 2022-09-06

Under Advisement Ruling

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-09-06_011_under-advisement-ruling.pdf
Source 12 2022-10-25

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2022-10-25_012_minute-entry.pdf

FAQ

What was this lawsuit about?

Whether the Regency House Association could alter the community’s parking garage — adding new parking spaces and loading zones in September 2019 — without following the CC&Rs’ amendment process. The parking garage and parking areas are common elements under Section 1.7 of the CC&Rs, and the recorded plat, incorporated into the CC&Rs by Section 1.20, specifically identified the individual parking spaces as they existed in April 1979. Section 24 requires any change to the Declaration to be approved by owners of at least 75% of the total ownership of the common elements and all institutional first mortgagees. No such vote was taken before the 2019 alterations.

Why did the court deny summary judgment and then grant it five months later?

Because of a controlling Arizona Supreme Court decision that the court had not considered when it first ruled. In April 2022 the court held that the board’s authority over the “use” of parking (CC&Rs Sections 6, 7, and 21.9) and its Bylaws powers over rules and maintenance meant a reasonable juror could find no breach, so the dispute had to go to trial. Lyon then moved for reconsideration under Rule 7.1(e) of the Arizona Rules of Civil Procedure, and the court acknowledged it had been “unfortunately unaware” of Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 523 (2022), when it made the original ruling. Measured against Kalway, the court concluded its prior ruling was inconsistent with that decision, vacated it, and granted summary judgment for Lyon.

What is the Kalway decision and why did it control?

Kalway v. Calabria Ranch HOA, LLC is a 2022 Arizona Supreme Court decision that the superior court quoted as raising “issues of statewide importance regarding the scope of an HOA’s authority to amend CC&Rs.” It holds that changes imposed on homeowners are tested against the reasonable expectations of owners based on the declaration in effect when they purchased — an objective inquiry — because “allowing substantial, unforeseen, and unlimited amendments would alter the nature of the covenants to which the homeowners originally agreed.” Here, the court found that adding parking spots to the already cramped structure was not contemplated by the CC&Rs, that spaces P-237 through P-246 were disproportionally affected, and that the board’s general maintain-and-operate authority could not carry a substantial, unforeseen alteration made without any homeowner vote.

Did it matter that the new parking spaces were allegedly illegal?

Yes, as a supporting point. Lyon submitted measurements — through the declaration of Paul Bakalis — showing that the three parking spaces added behind spaces P-237 to P-246 were illegal under City of Phoenix Zoning Ordinance 702(B)(2)(a), and the defendants did not dispute those measurements. The court observed that “[i]llegal parking spaces are not something that a homeowner could reasonably expect,” reinforcing its conclusion under Kalway’s reasonable-expectations framework.

How did the case end?

The homeowner won the dispositive ruling, and the parties then settled. The September 6, 2022 ruling granted Lyon summary judgment on the counts he moved on and directed him to file a proposed order by September 30, 2022. A Notice of Settlement was filed October 21, 2022, and the court placed the case on the dismissal calendar for dismissal of all remaining claims and parties on or after January 25, 2023, deeming all pending motions moot. The collected minute entries do not include the final dismissal or any settlement terms. Earlier in the case, the court had also dismissed Lyon’s gross-negligence count.

Is this ruling binding on other Arizona HOA disputes?

No. Superior-court rulings bind only the parties to the case and are not precedent. The binding precedent here is Kalway v. Calabria Ranch HOA, LLC itself, which the Arizona Supreme Court decided in 2022. This case is still useful reading because it shows a trial court applying Kalway’s reasonable-expectations test to a board’s physical alteration of common elements — and shows that a board’s general use, maintenance, and operation powers are not a substitute for the declaration’s formal amendment process when the change is substantial and unforeseen.

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 / citationCV2020-008665 (Maricopa County Superior Court)
Court / tribunalSuperior Court
Decision / key dateSeptember 6, 2022
Judge / panelHon. Joan M. Sinclair, Hon. Andrew J. Russell, Hon. Daniel J. Kiley
PartiesMichael Lyon (Plaintiff, apartment owner assigned parking space P-238) v. Regency House Association and A A M, L.L.C. (Defendants)
Topics
cc-and-rsamendmentsboard-governanceprocedure
Outcome / holding

On reconsideration under Kalway v. Calabria Ranch HOA, LLC, the superior court granted the homeowner summary judgment, holding that the association’s 2019 alteration of the parking garage — adding spaces and loading zones that disproportionally affected spots P-237 to P-246 — was a substantial and unforeseen change to parking spaces specifically identified on the recorded plat, which the board’s general authority to maintain, repair, replace, administer, and operate the property could not authorize without the 75% owner vote required by Section 24 of the CC&Rs.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package12 PDFs
Step-by-step docket roadmap12 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

A Regency House apartment owner, assigned parking space P-238 when he purchased in 2009, sued his association after the community’s parking garage was altered in September 2019 with new parking spaces and loading zones. He argued that the parking spaces identified on the recorded plat — incorporated into the CC&Rs — could not be changed without the Section 24 amendment process, which requires a recorded instrument signed by owners of at least 75% of the total ownership of the common elements and all institutional first mortgagees. In December 2020 the court dismissed his gross-negligence count but let the rest of the case proceed. In April 2022 the court denied his motion for partial summary judgment on the breach-of-contract and injunctive-relief counts, reasoning that the board’s use and maintenance authority meant a reasonable juror could find no breach. On the owner’s motion for reconsideration, the court applied the Arizona Supreme Court’s decision in Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 523 (2022) — which it said it had been unaware of when deciding the original motion — vacated its April ruling, and on September 6, 2022 granted the owner summary judgment. The parties then settled, and in October 2022 the case was placed on the dismissal calendar with all pending motions deemed moot.

Key Issues & Findings

The court’s April 2022 under-advisement ruling initially treated the question as one for a jury. It acknowledged that “[a]t first blush, it appears that the parking spaces cannot be altered without following the Section 24 requirements,” since the recorded plat identifying each space was incorporated into the Declaration by Section 1.20. But it weighed the board’s countervailing powers — each owner’s right to use the common elements is “subject to and governed by” the governing documents (Section 6), parking spaces “may be assigned, rented or otherwise used in such a manner as the Board may prescribe” (Section 7), parking is subject to board rules (Section 21.9), and the Bylaws let the board adopt rules and provide for maintenance, repair, and replacement of the common elements (Bylaws Section 11) — and concluded a reasonable juror could find no breach of contract, so it denied the owner’s motion for partial summary judgment.

On the owner’s Rule 7.1(e) motion for reconsideration, the court confronted Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 523 (2022), which it said it had been “unfortunately unaware” of when deciding the original motion. Kalway tests changes against homeowners’ objective, reasonable expectations based on the declaration in effect at purchase, because “allowing substantial, unforeseen, and unlimited amendments would alter the nature of the covenants to which the homeowners originally agreed.” Measured against that framework, the court found its earlier ruling could not stand: no 75% owner vote was taken under Section 24; the plat specifically identified the parking spaces as they originally existed; adding spots “within the already cramped parking structure was not contemplated within the CC&Rs”; and the owners of spots P-237 to P-246 were disproportionally affected. The board’s general Section 4.2 authority to “maintain, repair, replace, administer and operate the Property” did not reach a completed alteration that was substantial and unforeseen, especially with no homeowners’ vote.

The court bolstered the conclusion with the owner’s undisputed measurements — supported by the declaration of Paul Bakalis — showing the three parking spaces added behind P-237 to P-246 were illegal under City of Phoenix Zoning Ordinance 702(B)(2)(a): “Illegal parking spaces are not something that a homeowner could reasonably expect.” It granted reconsideration, vacated the April ruling, and granted the owner’s motion for summary judgment. A Notice of Settlement followed within weeks, and the court placed the case on the dismissal calendar for dismissal on or after January 25, 2023, deeming all pending motions moot.

Why It Matters

This case shows the Arizona Supreme Court’s Kalway decision working in real time at the trial-court level. The superior court had already denied the homeowner summary judgment on conventional contract-interpretation grounds; once Kalway’s reasonable-expectations framework was brought to its attention, the same record produced the opposite result — the court expressly determined that its prior ruling was inconsistent with Kalway and reversed itself on a Rule 7.1(e) motion for reconsideration.

For associations, the ruling illustrates a hard boundary on board power over common elements: general authority to maintain, repair, replace, administer, and operate the property does not authorize substantial, unforeseen physical alterations to features specifically identified in the recorded plat and declaration. If a change of that kind is not put to the owners under the declaration’s amendment provision — here, a 75% vote plus all institutional first mortgagees — a court may find the board acted beyond its authority. For homeowners, the case shows the value of concrete, undisputed evidence (the plaintiff’s zoning-ordinance measurements went unchallenged) and of persistence: the winning argument arrived on reconsideration. As a superior-court decision it binds only the parties, and the case ultimately ended in a settlement rather than a final litigated judgment.

← Back to Superior Court cases

Richard J. Murtland v. Astragal Condominium Unit Owners Association: Arizona HOA Superior Court Case Guide

Posted on by

CC&R Amendments & Rental Restrictions | A.R.S. §§ 33-1227, 33-1260.01 | CV2015-091102

In this Maricopa County Superior Court case, condominium owners in the Scottsdale Astragal community argued that an amendment imposing a six-month minimum rental period changed the use to which their units were restricted and therefore required the unanimous consent of all unit owners under A.R.S. § 33-1227(D). The court held the rental restriction was instead subject to the 67% amendment rule of A.R.S. § 33-1227(A) as adopted by the Declaration, noted that A.R.S. § 33-1260.01(A) lets owners rent their units only “unless prohibited in the Declaration” and in accordance with the Declaration’s rental time period restrictions, found the six-month rule not unreasonable, and dismissed the case with prejudice.

Last updated July 1, 2026. Case: Richard J. Murtland, et al. v. Astragal Condominium Unit Owners Association, Maricopa County Superior Court No. CV2015-091102.

Download summary-judgment ruling

Scope note: This page covers Richard J. Murtland, et al. v. Astragal Condominium Unit Owners Association (Maricopa County Superior Court No. CV2015-091102) as a public Arizona superior-court HOA case guide. It is built from the court’s own filed minute entries, including the January 12, 2016 under-advisement ruling on the cross-motions for summary judgment (downloadable above) and the February 24, 2016 judgment entry; the procedural timeline below tracks each collected minute entry. Currency caveat: the court entered a final judgment under Rule 54(c) on February 24, 2016, stating that no further matters remained in the case, and the collected minute entries show no later activity — this page does not track whether any appeal was taken. Superior-court rulings bind only the parties and are not precedent. This page is educational and is not legal advice.

The takeaway

The superior court upheld the Association’s amendment imposing a six-month minimum rental period on all residences. It held the rental restriction was not subject to the unanimous-consent requirement of A.R.S. § 33-1227(D) — which applies to amendments that, among other things, change “the use to which any unit is restricted” — but instead to the 67% amendment rule of A.R.S. § 33-1227(A) as adopted by the Astragal Declaration. The court also pointed to A.R.S. § 33-1260.01(A), which lets a unit owner rent a unit only “unless prohibited in the Declaration” and in accordance with the Declaration’s rental time period restrictions. Finding the six-month restriction not unreasonable, with potential benefits for the community at large, and finding no due-process violation because the owners had ample notice the Declaration could be amended, the court denied the owners’ motion for summary judgment, granted the Association’s cross-motion, and dismissed the case with prejudice. Final judgment including the Association’s attorneys’ fees followed in February 2016.

Case Participants

Petitioner Side

  • Richard J. Murtland (Plaintiff)
    Condominium owner in the Scottsdale Astragal community who challenged the six-month minimum rental amendment, contending he was damaged because he could not generate income through short-term rentals.
  • Barbara Bergfield (Plaintiff)
    Co-plaintiff condominium owner. The court found both plaintiffs owned condominiums in the Scottsdale Astragal Condominium Unit Owners Association.
  • Erin Selene Iungerich (Counsel)
    Substituted in as the plaintiffs’ attorney of record in July 2015 (a substitution within the same firm as J. Roger Wood) and appeared for the plaintiffs at the January 8, 2016 oral argument.
  • J. Roger Wood (Counsel)
    The plaintiffs’ original attorney of record, replaced by Erin S. Iungerich in a within-firm substitution in July 2015; he also appeared for the plaintiffs at the January 8, 2016 oral argument.

Respondent Side

  • Astragal Condominium Unit Owners Association (Defendant)
    Scottsdale condominium association whose owners voted, under the Declaration’s 67% amendment provision, to impose a six-month minimum rental period on all residences; it prevailed on cross-summary judgment and recovered its attorneys’ fees.
  • J. Gary Linder (Counsel)
    Counsel for the Association, appearing on its behalf at the January 8, 2016 oral argument.

Neutral Parties

  • David K. Udall (Judge)
    Maricopa County Superior Court judge who heard the cross-motions for summary judgment, issued the January 12, 2016 under-advisement ruling, and signed the February 2016 final judgment.

What happened

Astragal is a Scottsdale condominium community governed by a Declaration. The Declaration includes a provision allowing 67% of the Association’s owners to vote to change the governing Declaration. Using that mechanism, the Astragal Condominium Unit Owners Association amended its Declaration to impose a six-month minimum rental period on all of its residences whenever owners lease or rent their units to third parties.

Richard J. Murtland and Barbara Bergfield, both owners of condominiums in the community, sued the Association in Maricopa County Superior Court (CV2015-091102). Their position was that they had been damaged because the amendment prevented them from generating income through short-term rentals. In July 2015 the court granted a notice of substitution of counsel within the plaintiffs’ firm, allowing attorney Erin S. Iungerich to substitute for J. Roger Wood as attorney of record.

The dispute was resolved on paper rather than at trial. The plaintiffs moved for summary judgment and the Association filed a cross-motion for summary judgment; the court found that neither party disputed the significant facts. After full briefing, the court set oral argument, which Judge David K. Udall heard on January 8, 2016, with Iungerich and Wood appearing for the plaintiffs and J. Gary Linder for the Association. The court took the matter under advisement.

In an under-advisement ruling issued January 12, 2016, the court rejected the owners’ central statutory argument. A.R.S. § 33-1227(D) provides that, except as expressly permitted or required elsewhere in the Condominium Act, an amendment may not “change the boundaries of any unit, the allocated interest of the unit or the use to which any unit is restricted, in the absence of unanimous consent of the unit owners.” The court found the rental restriction was not subject to that unanimous-consent requirement; it was instead subject to the 67% rule in A.R.S. § 33-1227(A) as adopted by the Astragal Declaration. The court also noted A.R.S. § 33-1260.01(A), under which “[a] unit owner may use the unit owner’s unit as a rental property unless prohibited in the Declaration and shall use it in accordance with the Declaration’s rental time period restrictions.”

The court then distinguished the plaintiffs’ lead case, Dreamland Villa Community Club Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411 (App. 2010). In Dreamland, a community used a majority vote to force non-members of a homeowners association to become members subject to its CC&Rs, fees, and assessments. Here, by contrast, the plaintiffs were already members of the Astragal Association and, in the court’s words, “knew full well their Declaration potentially could be amended by a 67% majority vote at some point in the future.” The court further found the six-month leasing restriction “is not unreasonable, and it has potential benefits for the community at large,” and that the plaintiffs’ due-process rights were not violated because they had ample notice of a potential change in short-term lease restrictions when they purchased their properties. It denied the plaintiffs’ motion for summary judgment, granted the Association’s cross-motion, and dismissed the case with prejudice.

The endgame was brief. On February 24, 2016, after reviewing the Association’s application for attorneys’ fees and the plaintiffs’ response, the court granted the application and awarded judgment in favor of the Association, in accordance with a formal written judgment signed February 22 and entered February 24, 2016. The court noted that no further matters remained in the case, making it a final judgment under Rule 54(c) of the Arizona Rules of Civil Procedure.

Procedural timeline

Step Before suit The Astragal Condominium Unit Owners Association amends its Declaration — under the Declaration’s provision allowing amendment by a 67% vote of owners — to impose a six-month minimum rental period on all residences leased or rented to third parties.
Step 2015 Condominium owners Richard J. Murtland and Barbara Bergfield sue the Association in Maricopa County Superior Court (CV2015-091102), claiming damages because they cannot generate income through short-term rentals.
Step 2015-07-06 The court grants the plaintiffs’ notice of substitution of counsel (within firm), allowing Erin S. Iungerich to substitute for J. Roger Wood as attorney of record.
Step 2015-10-23 With the plaintiffs’ motion for summary judgment and the Association’s cross-motion fully briefed, the court sets oral argument for January 8, 2016 before Judge David K. Udall.
Step 2016-01-08 Oral argument is held on the cross-motions for summary judgment; the court takes the matter under advisement.
Step 2016-01-12 Under-advisement ruling: the rental restriction is not subject to A.R.S. § 33-1227(D)’s unanimous-consent requirement but to the 67% rule of § 33-1227(A) as adopted by the Declaration; Dreamland Villa is distinguished; the plaintiffs’ motion is denied, the Association’s cross-motion is granted, and the case is dismissed with prejudice.
Step 2016-02-24 The court grants the Association’s application for attorneys’ fees and awards judgment in its favor; the formal written judgment, signed February 22 and entered February 24, 2016, is a final judgment under Rule 54(c), with no further matters remaining.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/richard-j-murtland-v-astragal-condominium-unit-owners-association/raw/: 5 PDFs. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2015-07-06

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2015-07-06_001_minute-entry.pdf
Source 2 2015-10-23

Oral Argument Set

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2015-10-23_002_oral-argument-set.pdf
Source 3 2016-01-08

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2016-01-08_003_minute-entry.pdf
Source 4 2016-01-12

Under Advisement Ruling

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2016-01-12_004_under-advisement-ruling.pdf
Source 5 2016-02-24

Minute Entry

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2016-02-24_005_minute-entry.pdf

FAQ

Can a condominium association restrict short-term rentals by amending its CC&Rs?

In this case, yes. The Astragal Declaration allowed 67% of the Association’s owners to vote to change the governing Declaration, and the owners used that provision to impose a six-month minimum rental period on all residences. The court upheld the amendment, holding it was subject to the 67% rule of A.R.S. § 33-1227(A) as adopted by the Declaration, and found the six-month restriction was not unreasonable and had potential benefits for the community at large.

Didn’t changing how units can be used require unanimous consent under A.R.S. § 33-1227(D)?

That was the owners’ central argument. Section 33-1227(D) requires the unanimous consent of unit owners for amendments that create or increase special declarant rights, increase the number of units, or change unit boundaries, allocated interests, or “the use to which any unit is restricted.” The court found the six-month rental restriction was not subject to that unanimous-consent requirement — it fell under the 67% amendment rule in A.R.S. § 33-1227(A) as the Astragal Declaration adopted it.

What role did A.R.S. § 33-1260.01 play in the ruling?

The court quoted A.R.S. § 33-1260.01(A): “A unit owner may use the unit owner’s unit as a rental property unless prohibited in the Declaration and shall use it in accordance with the Declaration’s rental time period restrictions.” In other words, the statute itself contemplates that a declaration can prohibit rentals or set rental time period restrictions — which is what the Astragal amendment did.

Why didn’t Dreamland Villa v. Raimey help the owners?

The plaintiffs relied on Dreamland Villa Community Club Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411 (App. 2010), but the court found it distinguishable. In Dreamland, a community used a majority vote to require non-members of a homeowners association to become members subject to its CC&Rs, fees, and assessments. The Astragal plaintiffs, by contrast, were already members of the Association and knew when they bought their units that the Declaration could be amended by a 67% majority vote in the future. The court held the Dreamland holding did not apply.

Did the owners recover anything?

No. The court denied their motion for summary judgment, granted the Association’s cross-motion, and dismissed the case with prejudice on January 12, 2016. It then granted the Association’s application for attorneys’ fees and, on February 24, 2016, entered a final judgment in the Association’s favor under Rule 54(c).

Is this decision binding on other Arizona HOA disputes?

No. Superior-court rulings bind only the parties to the case and are not precedent. The case is still useful reading: it shows how a Maricopa County judge applied the Condominium Act’s amendment rules — the 67% supermajority in A.R.S. § 33-1227(A) versus the unanimous-consent triggers in § 33-1227(D) — to a rental-restriction amendment, and it illustrates the fee-shifting risk owners face when a challenge to a CC&R amendment fails.

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 / citationCV2015-091102 (Maricopa County Superior Court)
Court / tribunalSuperior Court
Decision / key dateJanuary 12, 2016
Judge / panelHon. David K. Udall
PartiesRichard J. Murtland and Barbara Bergfield (Plaintiffs, condominium owners) v. Astragal Condominium Unit Owners Association (Defendant)
Governing law
Topics
amendmentscc-and-rscovenantsrental-restrictionsattorneys-fees
Outcome / holding

The superior court granted the association summary judgment on its cross-motion and dismissed the owners’ case with prejudice, holding that a declaration amendment imposing a six-month minimum rental period was not subject to the unanimous-consent requirement of A.R.S. § 33-1227(D) but to the 67% amendment rule of A.R.S. § 33-1227(A) as adopted by the declaration, that the restriction was not unreasonable, and that the owners’ due-process rights were not violated because they had ample notice the declaration could be amended.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package5 PDFs
Step-by-step docket roadmap7 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

Two owners of condominiums in the Scottsdale Astragal community sued their association after the owners amended the Declaration, under its 67%-vote amendment provision, to impose a six-month minimum rental period on all residences leased or rented to third parties. The owners claimed they were damaged because they could not generate income through short-term rentals, and argued the amendment changed the use to which their units were restricted and therefore required unanimous consent under A.R.S. § 33-1227(D). On cross-motions for summary judgment, with the significant facts undisputed, the court held in a January 12, 2016 under-advisement ruling that the rental restriction was not subject to the unanimous-consent requirement but to the 67% rule of A.R.S. § 33-1227(A) as adopted by the Declaration. It distinguished Dreamland Villa Community Club Inc. v. Raimey, found the six-month restriction not unreasonable, denied the owners’ motion, granted the association’s cross-motion, and dismissed the case with prejudice. A final Rule 54(c) judgment awarding the association its attorneys’ fees was entered February 24, 2016.

Key Issues & Findings

The court began from undisputed facts: both plaintiffs owned condominiums in the Scottsdale Astragal community, the Declaration allowed 67% of the Association’s owners to vote to change the governing Declaration, and the Association used that provision to amend the Declaration to impose a six-month minimum rental period on all residences leased or rented to third parties. The plaintiffs claimed damage because they could not generate income through short-term rentals. The court set the statutory frame with A.R.S. § 33-1227(D), which — except as expressly permitted or required elsewhere in the Condominium Act — bars amendments that create or increase special declarant rights, increase the number of units, or change unit boundaries, allocated interests, or “the use to which any unit is restricted” absent the unanimous consent of the unit owners. It also quoted A.R.S. § 33-1260.01(A): a unit owner may use the unit as a rental property “unless prohibited in the Declaration and shall use it in accordance with the Declaration’s rental time period restrictions.” On that framework the court found the rental restriction was not subject to § 33-1227(D)’s unanimous-consent requirement; it was instead subject to the 67% rule in § 33-1227(A) as adopted by the Astragal Declaration.

The court then rejected the plaintiffs’ reliance on Dreamland Villa Community Club Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411 (App. 2010). In Dreamland, a community used a majority vote to require non-members of a homeowners association to become members subject to its CC&Rs, fees, and assessments. The Astragal plaintiffs, by contrast, were already members of the Association and “knew full well their Declaration potentially could be amended by a 67% majority vote at some point in the future,” so the Dreamland holding did not apply. The court further found the six-month leasing restriction not unreasonable, with potential benefits for the community at large, and found no due-process violation because the plaintiffs had ample notice of a potential change in short-term lease restrictions when they purchased their properties.

On those findings the court denied the plaintiffs’ motion for summary judgment, granted judgment for the Association on its cross-motion, and dismissed the case with prejudice. After reviewing the Association’s application for attorneys’ fees and the plaintiffs’ response, the court granted the application and awarded judgment in the Association’s favor in a formal written judgment signed February 22 and entered February 24, 2016 — a final judgment under Rule 54(c), with no further matters remaining in the case.

Why It Matters

Short-term-rental restrictions are one of the most common flashpoints in Arizona condominium communities, and this case shows how a Maricopa County judge sorted the key statutory question: which amendments require every owner’s consent under A.R.S. § 33-1227(D), and which need only the supermajority the declaration itself sets under § 33-1227(A). Owners challenging a rental-restriction amendment often assume that limiting rentals “changes the use to which the unit is restricted” and so demands unanimity; here the court held a six-month minimum rental period adopted by the Declaration’s 67% vote was valid without unanimous consent.

The ruling also illustrates two recurring themes. First, courts weigh what buyers signed up for: because the plaintiffs bought into a community whose Declaration could be amended by a 67% vote, the court found they had ample notice that rental rules could change, and it distinguished Dreamland Villa, where a majority vote forced obligations onto people who had never joined the association. Second, losing a challenge like this can be expensive — the case ended with a final judgment awarding the association its attorneys’ fees. As a superior-court decision, the ruling binds only the parties and is not precedent, but it is a clean, compact example of how these disputes get resolved on cross-motions for summary judgment.

← Back to Superior Court cases

Camelback Del Este Homeowners Ass’n v. Warner: HOA Court Case Guide

Posted on by

Arizona HOA Case Explainer

How Arizona’s Court of Appeals held single-family deed restrictions against commercial encroachment and clarified that CC&R amendments must apply uniformly to every lot.

Arizona Court of Appeals | 156 Ariz. 21, 749 P.2d 930 (App. 1987) | Decided 1987-09-29

Read the source opinion FAQ

Scope note: This educational page summarizes Camelback Del Este Homeowners Ass’n v. Warner, 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

Restrictive covenants limiting a subdivision to single-family residential use are enforceable against commercial encroachment, and a court will not sever individual border lots from the covenants where the neighborhood’s residential character remains substantially intact. A landowner who knowingly spends large sums gambling that restrictions will not be enforced cannot obtain a balancing of hardships or invoke estoppel against the association, and a covenant permitting amendment ‘in whole or in part’ still requires that any amendment apply uniformly to all lots absent unanimous consent.

Case Participants

Petitioner Side

  • Ronald H. Warner (Defendant/Appellant/Cross-Appellee)
    Lot owner who assembled nine lots and sought to build a commercial garden-office complex; challenged enforcement of the covenants.
  • Carolyn Warner (Defendant/Appellant/Cross-Appellee)
    Co-defendant with Ronald H. Warner.
  • Arthur P. Greenfield (Counsel)
    Winston & Strawn
    Counsel for the Warners (defendants/appellants/cross-appellees).
  • Danial D. Maynard (Counsel)
    Winston & Strawn
    Counsel for the Warners; ‘Danial’ spelling is per the reporter.
  • Donald J. Cleary (Counsel)
    Winston & Strawn
    Counsel for the Warners (defendants/appellants/cross-appellees).
  • Frank S. Bangs, Jr. (Counsel)
    Winston & Strawn
    Counsel for the Warners (defendants/appellants/cross-appellees).

Respondent Side

  • Camelback Del Este Homeowners Association (Plaintiff/Appellee/Cross-Appellant)
    Association representing the owners of the 83 single-family residences; sued to enforce the recorded deed restrictions.
  • Philip A. Robbins (Counsel)
    Robbins & Green, P.A.
    Counsel for the homeowners association (plaintiffs/appellees/cross-appellants).
  • Charlotte A. Ortlund (Counsel)
    Robbins & Green, P.A.
    Counsel for the homeowners association (plaintiffs/appellees/cross-appellants).

Neutral Parties

  • Roll, J. (Judge)
    Authored the opinion for the Court of Appeals, Division Two.
  • Livermore, P.J. (Judge)
    Presiding Judge; concurred.
  • Howard, J. (Judge)
    Judge; concurred.

What happened

Camelback Del Este is a Phoenix subdivision of 83 single-family homes that borders East Camelback Road. Over the three decades before this case, the road was widened from two lanes to seven and its weekday traffic grew from about 15,200 vehicles to more than 50,500, the highest daily flow of any street in Phoenix. Despite that outside growth, the subdivision’s recorded deed restrictions still limited each lot to one detached single-family dwelling (plus a small garage and guest or servant quarters).

In September 1983 Ronald H. Warner, who knew of the deed restrictions, bought one lot in the subdivision and obtained options to buy eight more, offering the owners between $150,000 and $350,000 per home; the most any home in the subdivision had sold for in 1984 was $119,000. Warner assembled the nine lots to build a commercial garden-office complex and applied to the City of Phoenix for a zoning change.

Warner’s plan met resistance. A lawyer living in an adjoining subdivision warned him in August 1984 that even if the city approved the rezoning he still had to get around the deed restrictions. A poll Warner himself conducted on October 9, 1984 showed he lacked substantial support, and at the October 17, 1984 City Council hearing a homeowner declared in Warner’s presence, ‘we will not relinquish these deed restrictions without a fight.’

On December 5, 1984 the Camelback Del Este Homeowners Association sued for declaratory and injunctive relief to enforce the covenants. It later amended the complaint to add a count seeking a declaration that the restrictions could not be changed until February 25, 1987 and that any change had to apply to all lots uniformly unless 100% of the owners agreed; that count responded to Warner circulating a petition to lift the restrictions on only some lots. The trial court refused Warner’s request, filed less than two weeks before trial, to add a counterclaim against homeowners he said had failed to voice an intent to enforce.

After a May-June 1985 bench trial, the court on January 30, 1986 granted the association declaratory and injunctive relief. It held the restrictions applied to all lots and were enforceable against Warner, restrained him from removing existing homes to build commercial or office buildings, and awarded the association $44,750 in attorneys’ fees (it had requested $63,688.50). The court did not rule on whether the covenants could be lifted as to only some lots without unanimous consent.

Warner appealed and the association cross-appealed. On September 29, 1987 Division Two of the Arizona Court of Appeals affirmed the enforcement of the covenants, the refusal to balance hardships, the rejection of estoppel, and the denial of the counterclaim, and it upheld the attorneys’ fee award under A.R.S. section 12-341.01(B). On the cross-appeal it modified the judgment to declare that any amendment to the covenants must apply uniformly to all lots absent unanimous consent, and it awarded the association its attorneys’ fees on appeal under Rule 21. The Arizona Supreme Court denied review on March 1, 1988.

Camelback Del Este v. Warner is a durable Arizona statement that recorded single-family deed restrictions can hold the line against commercial redevelopment even along a corridor that has exploded in traffic and land value. The ‘first tier of lots’ reasoning it adopts means the homes fronting a busy arterial must absorb the pressure of surrounding growth so that the interior of a subdivision stays protected; a developer cannot buy up the border lots, pay far above market, and expect a court to carve them out of the covenants one by one. For homeowners associations, the case remains a strong precedent that the changed-conditions defense looks to the whole neighborhood, not to a single lot’s highest-and-best commercial use. The decision is also a practical warning to buyers and developers: spending heavily on a project while knowing about restrictions and about opposition is a gamble, not a hardship a court will relieve, and neighbors’ failure to object early does not create an estoppel when the restrictions are a matter of public record equally available to everyone. Its cross-appeal holding is equally important for governance today. An amendment clause that lets a majority change covenants ‘in whole or in part’ does not authorize picking winners and losers lot by lot; absent unanimous consent, an amendment must apply uniformly across the subdivision. That uniformity principle still shapes how Arizona associations read and use their CC&R amendment powers.

Litigation record

Step 1 1983-09

Ronald H. Warner buys one lot in Camelback Del Este and options eight more (at $150,000-$350,000 each) to assemble a site for a commercial garden-office complex.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 1984-08-12

Warner meets with some subdivision owners about the project; he later claims none said they would enforce the restrictions.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 1984-08

A lawyer from an adjoining subdivision warns Warner that even with a rezoning he still faces the deed restrictions.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 1984-10-09

Warner’s own poll of all homeowners shows he lacks substantial support for lifting the restrictions.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 5 1984-10-17

At the Phoenix City Council zoning hearing, a homeowner declares in Warner’s presence that they ‘will not relinquish these deed restrictions without a fight.’

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 6 1984-12-05

Camelback Del Este Homeowners Association files suit for declaratory and injunctive relief to enforce the covenants.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 7 1985-04-24

The association files an amended complaint adding a count on the timing and uniformity of any covenant amendment.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 8 1985-05-03

Warner moves for leave to file a counterclaim against certain homeowners, less than two weeks before trial.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 9 1985-05

Bench trial held before the superior court (May and June 1985).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 10 1986-01-30

Trial court grants the association declaratory and injunctive relief, enjoins Warner, and awards $44,750 in attorneys’ fees.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 11 1987-09-29

Arizona Court of Appeals, Division Two, affirms as modified and grants the association appellate fees.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 12 1988-03-01

Arizona Supreme Court denies review.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What was Camelback Del Este Homeowners Ass’n v. Warner about?

It was a 1987 Arizona Court of Appeals case in which a Phoenix homeowners association sued to enforce recorded single-family deed restrictions against Ronald Warner, who had assembled nine subdivision lots to build a commercial garden-office complex along Camelback Road. The court affirmed enforcement of the covenants and refused to release Warner’s lots from them.

Why wouldn’t the court release Warner’s lots from the covenants?

Under Continental Oil Co. v. Fennemore and the Decker v. Hendricks line, a court will not sever border lots from subdivision covenants where the neighborhood’s residential character remains substantially intact. The trial court found that although Camelback Road had grown enormously, 80 of the 83 lots were still desirable single-family homes, so the covenants’ purpose had not been frustrated. Releasing the front lots would invite gradual, unstoppable commercial encroachment.

Why didn’t the court weigh Warner’s financial loss as a hardship?

Warner claimed he would lose $350,000 to $400,000, but the court found he incurred nearly all of that after he knew about the restrictions and about homeowners’ intent to enforce them. Equity will not relieve a party who spends money gambling that covenants will go unenforced, so the trial court properly declined to balance the hardships.

Why did Warner’s estoppel argument fail?

Estoppel requires that the party claiming it lacked knowledge and the means to acquire knowledge of the relevant facts. A party’s silence does not create an estoppel when both sides have equal access to the facts. The deed restrictions were recorded and publicly available, and a homeowner had openly vowed to fight, so the association’s conduct did not estop it from enforcing the covenants.

What did the case decide about amending CC&Rs ‘in whole or in part’?

On the association’s cross-appeal, the court held that a clause letting a majority of owners change the covenants ‘in whole or in part’ does not allow lifting restrictions on only some lots. Absent unanimous consent, any amendment must apply uniformly to every lot in the subdivision. The court modified the judgment to grant that declaratory relief.

Is Camelback Del Este v. Warner still good law in Arizona?

Yes. It is a published, precedential Court of Appeals decision (the Arizona Supreme Court denied review in 1988) and was not depublished. It remains cited for the ‘first tier of lots’ changed-conditions analysis and for the rule that CC&R amendments must apply uniformly absent unanimous consent. This summary is educational and is not legal advice; consult a qualified Arizona attorney about a specific situation.

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 / citation156 Ariz. 21, 749 P.2d 930 (App. 1987)
Court / tribunalCourt of Appeals
Decision / key dateSeptember 29, 1987
Judge / panelRoll, J. (author), Livermore, P.J., Howard, J.
PartiesA homeowners association enforcing single-family deed restrictions against a lot owner who assembled nine lots for a commercial office complex.
Governing law
Topics
covenantscc-and-rsamendmentsattorneys-feesprocedure
Outcome / holding

Restrictive covenants limiting a subdivision to single-family residential use are enforceable against commercial encroachment, and a court will not sever individual border lots from the covenants where the neighborhood’s residential character remains substantially intact. A landowner who knowingly spends large sums gambling that restrictions will not be enforced cannot obtain a balancing of hardships or invoke estoppel against the association, and a covenant permitting amendment ‘in whole or in part’ still requires that any amendment apply uniformly to all lots absent unanimous consent.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap12 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

Camelback Del Este is a Phoenix subdivision of 83 single-family homes bordering the increasingly busy Camelback Road. The recorded deed restrictions limited every lot to one detached single-family dwelling. In September 1983 Ronald H. Warner bought one lot and optioned eight more, paying between $150,000 and $350,000 per home (well above the neighborhood’s roughly $119,000 top sale price), to assemble a site for a commercial garden-office complex, and then sought a City of Phoenix rezoning. When homeowners made clear they would fight, the Camelback Del Este Homeowners Association sued in December 1984 to enforce the covenants. After a bench trial, the superior court granted declaratory and injunctive relief, enforced the restrictions against Warner, enjoined him from removing homes to build offices, and awarded the association $44,750 in attorneys’ fees. Division Two of the Arizona Court of Appeals affirmed. It refused to sever the nine lots from the subdivision covenants because the neighborhood’s residential character remained substantially intact, following Continental Oil Co. v. Fennemore and the Decker v. Hendricks line and the ‘first tier of lots’ rationale. It held the trial court properly declined to balance the hardships because Warner spent his money knowingly, gambling that the restrictions would not be enforced. It rejected his estoppel defense, since homeowner silence cannot estop a party where both sides had equal means of knowledge, and upheld the Rule 13(f) denial of his last-minute counterclaim. On the association’s cross-appeal, the court modified the judgment to declare that the amendment clause allowing change ‘in whole or in part’ still requires any amendment to apply uniformly to all lots, and it affirmed the fee award while granting the association its appellate fees.

Key Issues & Findings

The court applied the settled Arizona rule from Continental Oil Co. v. Fennemore (1931) and the Decker v. Hendricks decisions: where the residential character of the whole neighborhood remains substantially intact, a court will not engage in a lot-by-lot analysis to release border lots from subdivision covenants. The trial court, which viewed the subdivision by day and night, found that although Camelback Road itself had grown from two lanes to seven and now carried the city’s heaviest traffic, the interior streets stayed quiet and 80 of the 83 lots remained desirable single-family homes, so the covenants’ purpose had not been frustrated. Releasing the three road-front lots (and the nine Warner assembled) would let the ‘first tier’ of defensive lots fall and invite gradual, unstoppable commercial encroachment on the rest. The court refused to balance hardships because Warner incurred nearly all of his claimed $350,000-$400,000 loss after learning of the restrictions and of homeowners’ intent to enforce them; equity will not relieve a party who gambles that covenants will go unenforced. Estoppel failed because a party’s silence cannot estop it where both sides had equal means of knowledge, and here a homeowner had publicly vowed to fight. Denial of Warner’s counterclaim, filed under two weeks before trial, was within the trial court’s Rule 13(f) discretion. Finally, reading the amendment clause (change ‘in whole or in part’) in light of La Esperanza and Montoya v. Barreras, the court held any amendment must apply uniformly to all lots absent unanimous consent, and it affirmed the discretionary fee award under A.R.S. section 12-341.01(B).

Why It Matters

Camelback Del Este v. Warner is a durable Arizona statement that recorded single-family deed restrictions can hold the line against commercial redevelopment even along a corridor that has exploded in traffic and land value. The ‘first tier of lots’ reasoning it adopts means the homes fronting a busy arterial must absorb the pressure of surrounding growth so that the interior of a subdivision stays protected; a developer cannot buy up the border lots, pay far above market, and expect a court to carve them out of the covenants one by one. For homeowners associations, the case remains a strong precedent that the changed-conditions defense looks to the whole neighborhood, not to a single lot’s highest-and-best commercial use.

The decision is also a practical warning to buyers and developers: spending heavily on a project while knowing about restrictions and about opposition is a gamble, not a hardship a court will relieve, and neighbors’ failure to object early does not create an estoppel when the restrictions are a matter of public record equally available to everyone. Its cross-appeal holding is equally important for governance today. An amendment clause that lets a majority change covenants ‘in whole or in part’ does not authorize picking winners and losers lot by lot; absent unanimous consent, an amendment must apply uniformly across the subdivision. That uniformity principle still shapes how Arizona associations read and use their CC&R amendment powers.

← Back to Court of Appeals cases

John W. Shamrock, et al. v. Wagon Wheel Park Homeowners Association: HOA Court Case Guide

Posted on by

Membership & CC&Rs | A.R.S. §§ 10-3601, 33-1801 to -1808 | 206 Ariz. 42

Division One affirms summary judgment for lot owners, holding that mandatory HOA membership must come from a recorded deed restriction-the declaration or a validly adopted amendment-and not from a corporation’s articles or bylaws.

Arizona Court of Appeals | 206 Ariz. 42, 75 P.3d 132 (App. 2003) (No. 1 CA-CV 02-0403) | Decided 2003-08-26

Read the source opinion FAQ

Scope note: This educational page summarizes John W. Shamrock, et al. v. Wagon Wheel Park Homeowners Association, 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

Mandatory membership in a newly created homeowners’ association can be imposed on owners of lots within an existing subdivision only through a deed restriction contained in a recorded instrument-a declaration or a validly adopted amendment to it. Articles of incorporation and bylaws purporting to compel membership are insufficient, because a nonprofit corporation cannot impose membership without consent under A.R.S. § 10-3601(B), and the Planned Communities Act (A.R.S. §§ 33-1801 to -1808) defines but does not create such associations. Because no recorded restriction required membership before the November 30, 2001 amendment, the plaintiff lot owners were not members, A.R.S. § 10-3304’s member-standing threshold did not bar their declaratory-judgment action, and summary judgment for the owners was affirmed.

Case Participants

Petitioner Side

  • Wagon Wheel Park Homeowners Association (Appellant)
    Nonprofit Arizona corporation and defendant-appellant; incorporated in 1971 by six lot owners and later sought to impose mandatory membership, assessments, and liens on Park lot owners.
  • Jonathan J. Olcott (Counsel)
    Olcott & Shore, PLLC
    Counsel for the Association (defendant-appellant), Olcott & Shore, PLLC, Phoenix.
  • William F. Shore, III (Counsel)
    Olcott & Shore, PLLC
    Counsel for the Association (defendant-appellant), Olcott & Shore, PLLC, Phoenix.

Respondent Side

  • John W. Shamrock, et al. (Wagon Wheel Park lot owners) (Appellee)
    Plaintiffs-appellees; a group of Park lot owners (including the Gilcrease Family Trust, David H. Hemmings, the Pollard Family Trust, J.C. & C. Investments, Edward and Margaret Smith, the Lewis Revocable Trust, Joe and Ada Kaczmarski, and William R. Detor) who sought a declaration that membership was voluntary.
  • James L. Tanner (Counsel)
    Jackson White, P.C.
    Counsel for the lot owners (plaintiffs-appellees), Jackson White, P.C., Mesa.

Neutral Parties

  • Ann A. Scott Timmer (Judge)
    Arizona Court of Appeals, Division One
    Authored the opinion of the Court.
  • Daniel A. Barker (Judge)
    Arizona Court of Appeals, Division One
    Presiding Judge; concurred in the opinion.
  • William F. Garbarino (Judge)
    Arizona Court of Appeals, Division One
    Judge; concurred in the opinion.

What happened

Wagon Wheel Park is a platted, residential subdivision of 180 lots in Lakeside, Navajo County. In July 1960, Northern Arizona Title Company recorded a declaration of restrictions (the ‘1960 Declaration’) addressing the development and maintenance of lots. That declaration did not provide for the formation of a homeowners’ association to enforce the restrictions or to maintain common areas.

In 1971, six lot owners incorporated the Wagon Wheel Park Homeowners Association and recorded articles of incorporation with Navajo County. The articles stated that ownership of one or more lots would entitle the owner to membership in the corporation.

In 1980, upon a vote of a majority of lot owners, a revised declaration of restrictions (the ‘1980 Declaration’) was recorded. Its preamble acknowledged that an association had been formed and had reviewed the 1960 restrictions, but, like its predecessor, the 1980 Declaration did not provide for the formation of a homeowners’ association or require membership.

During the 1990s the Association recorded original and amended bylaws. The amended bylaws recorded in 1999 stated that all property owners in the Park were automatically members, that each member had to pay assessments levied by the Association, and that unpaid assessments-together with collection costs and attorneys’ fees-would become a lien against the member’s property.

In March 2001, a group of lot owners sued, claiming the Association was not a valid mandatory homeowners’ association. They sought a declaration that membership was voluntary and that the Association could not impose assessments on, or record liens against, non-member lot owners, along with corresponding injunctive relief. The Association counterclaimed for declaratory relief and, against one owner, for breach of contract based on his refusal to pay assessments.

On November 30, 2001, while the suit was pending and pursuant to a majority vote of lot owners, the Association recorded an amendment to the 1980 Declaration providing that the Association would administer the restrictions and maintain the common property and that lot owners would automatically be members. Meanwhile, the trial court granted the owners’ motion for summary judgment, ruled that all encumbrances the Association had recorded against Park lots were void from recording until November 30, 2001, held that A.R.S. § 10-3304 did not deprive the owners of standing, and awarded the owners attorneys’ fees.

On appeal, the Court of Appeals, Division One, affirmed the summary judgment. It held that mandatory membership could be imposed only by a recorded deed restriction, that neither the 1960 nor the 1980 Declaration required membership, and that the articles and bylaws did not effect a change in the recorded restrictions before the November 30, 2001 amendment. The court reversed and remanded the fee award for recalculation for the reasons stated in a companion memorandum decision, and it granted the owners their attorneys’ fees on appeal under A.R.S. § 12-341.01.

Shamrock is a leading Arizona statement of a foundational rule: the owners of lots in an existing subdivision can be bound to mandatory HOA membership-and to the assessments and liens that come with it-only through a recorded deed restriction, meaning the declaration (CC&Rs) itself or a validly adopted amendment to it. Corporate documents such as articles of incorporation and bylaws, even when recorded and even when they state that membership is ‘automatic,’ cannot by themselves convert voluntary owners into mandatory members. The decision rests on two independent principles: nonprofit-corporation law requires consent to membership (A.R.S. § 10-3601(B)), and covenant law requires that burdens running with the land appear in a recorded instrument and be changed only in the manner the declaration allows. For Arizona homeowners and boards, the case shows why the source and the procedure of an obligation matter. An association seeking mandatory membership must secure it through the declaration-amendment process the CC&Rs specify-often a majority or supermajority vote of owners-rather than through internally adopted bylaws. The opinion also clarifies the limited role of the Planned Communities Act: it regulates mandatory-membership associations but does not itself create the obligation. Finally, the case illustrates that the standing gate in A.R.S. § 10-3304, which restricts who may challenge a nonprofit corporation’s acts, did not apply where the plaintiffs were not members; the court noted that the Legislature later amended § 10-3304 to exempt planned-community members’ challenges to board action, effective September 18, 2003. Because this is a published opinion, it is binding precedent in Arizona.

Litigation record

Step 1 1960-07

Northern Arizona Title Company records the 1960 Declaration of Restrictions for Wagon Wheel Park; it does not create or require a homeowners’ association.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 1971

Six lot owners incorporate the Wagon Wheel Park Homeowners Association and record articles of incorporation stating that lot ownership entitles the owner to membership.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 1980

By majority vote of lot owners, a revised 1980 Declaration of Restrictions is recorded; like its predecessor, it does not provide for or require an association.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 1999

The Association records amended bylaws providing for automatic membership, mandatory assessments, and liens for unpaid assessments.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 5 2001-03

A group of lot owners files a complaint seeking a declaration that membership is voluntary and that the Association cannot assess or lien non-members; the Association counterclaims.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 6 2001-11-30

By majority vote, the Association records an amendment to the 1980 Declaration providing for automatic membership and Association administration of the restrictions.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 7 2002

The trial court grants summary judgment for the owners, voids encumbrances recorded before November 30, 2001, rules § 10-3304 inapplicable, and awards the owners fees; the Association appeals (No. 1 CA-CV 02-0403).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 8 2003-08-26

The Arizona Court of Appeals, Division One, affirms summary judgment, reverses and remands the fee award per a companion memorandum decision, and grants the owners fees on appeal.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What did Shamrock v. Wagon Wheel Park HOA decide?

The Arizona Court of Appeals held that mandatory membership in a newly created homeowners’ association can be imposed on owners of lots in an existing subdivision only through a deed restriction contained in a recorded instrument-that is, the declaration (CC&Rs) or a validly adopted amendment to it. The Association’s articles of incorporation and bylaws, standing alone, could not make the owners mandatory members. Because no recorded restriction required membership until a November 30, 2001 amendment, the plaintiff owners were not members, and the court affirmed summary judgment in their favor.

Can an HOA make membership mandatory just by adopting or recording bylaws?

No. The court explained that a nonprofit corporation cannot admit a member without that person’s express or implied consent under A.R.S. § 10-3601(B), so recorded bylaws stating that every owner is ‘automatically’ a member do not, by themselves, create membership. Mandatory membership that runs with the land must appear in a recorded deed restriction (the declaration or a proper amendment), and a declaration can be changed only in the manner it prescribes-here, by a vote of the majority of lot owners.

What role does the Arizona Planned Communities Act play in this decision?

The court held that the Planned Communities Act (A.R.S. §§ 33-1801 to -1808) defines the kinds of associations it governs-those with mandatory membership and required assessments-but does not prescribe how to create such an association. In other words, the Act regulates mandatory-membership associations; it does not itself impose mandatory membership. To decide whether membership existed, the court therefore looked to common-law restrictive-covenant principles.

What is A.R.S. § 10-3304, and why didn’t it bar the owners’ lawsuit?

A.R.S. § 10-3304 provides that a nonprofit corporation’s power to act may generally be challenged only by members holding at least ten percent of the voting power or by at least fifty members. The Association argued the owners fell below that threshold. The court held the statute did not apply because the owners were not members-neither involuntarily (no recorded restriction required membership) nor voluntarily-so the standing limit never came into play.

What happened to the assessments and liens the Association had recorded?

The trial court ruled that all encumbrances the Association had recorded against Park lots were void from the date of recording until November 30, 2001-the date the owners adopted an amendment to the 1980 Declaration providing for automatic membership. The Court of Appeals affirmed the summary judgment on membership. The court did not decide the validity or effect of the November 30, 2001 amendment, because that issue was not raised in the complaint or ruled on below.

Is this decision binding precedent in Arizona?

Yes. Shamrock v. Wagon Wheel Park Homeowners Association is a published opinion of the Arizona Court of Appeals, Division One (206 Ariz. 42, 75 P.3d 132 (App. 2003)), so it is citable, binding authority on the point it decides. A separate, unpublished companion memorandum decision addressed the attorneys’-fee award and does not create precedent.

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 / citation206 Ariz. 42, 75 P.3d 132 (App. 2003) (No. 1 CA-CV 02-0403)
Court / tribunalCourt of Appeals
Decision / key dateAugust 26, 2003
Judge / panelAnn A. Scott Timmer (author), Daniel A. Barker (Presiding Judge), William F. Garbarino
PartiesJohn W. Shamrock and other Wagon Wheel Park lot owners (Plaintiffs-Appellees) v. Wagon Wheel Park Homeowners Association (Defendant-Appellant)
Governing law
Topics
membershipcc-and-rsassessmentscovenantsamendments
Outcome / holding

Mandatory membership in a newly created homeowners’ association can be imposed on owners of lots within an existing subdivision only through a deed restriction contained in a recorded instrument-a declaration or a validly adopted amendment to it. Articles of incorporation and bylaws purporting to compel membership are insufficient, because a nonprofit corporation cannot impose membership without consent under A.R.S. § 10-3601(B), and the Planned Communities Act (A.R.S. §§ 33-1801 to -1808) defines but does not create such associations. Because no recorded restriction required membership before the November 30, 2001 amendment, the plaintiff lot owners were not members, A.R.S. § 10-3304’s member-standing threshold did not bar their declaratory-judgment action, and summary judgment for the owners was affirmed.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap8 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

Wagon Wheel Park is a 180-lot platted subdivision in Lakeside, Navajo County. A recorded 1960 declaration of restrictions, replaced in 1980 by a majority-approved revised declaration, governed the lots; neither declaration provided for a homeowners’ association or required membership in one. Six lot owners incorporated the Wagon Wheel Park Homeowners Association in 1971, and in the 1990s the Association recorded bylaws-amended in 1999-stating that every lot owner was automatically a member obligated to pay assessments, with unpaid assessments becoming liens against the owner’s property. In March 2001, a group of lot owners sued for a declaration that membership was voluntary and that the Association could not levy assessments or record liens against non-members. The Association counterclaimed and argued the owners lacked standing under A.R.S. § 10-3304, which allows only members holding at least ten percent of the voting power, or at least fifty members, to challenge corporate action. The Court of Appeals, Division One, affirmed summary judgment for the owners. A nonprofit corporation cannot impose membership without consent (A.R.S. § 10-3601(B)); the Planned Communities Act defines but does not create mandatory-membership associations; and under common-law covenant principles, automatic membership must appear in a recorded deed restriction, changeable only as the declaration allows. Because no such restriction existed until the November 30, 2001 recorded amendment, § 10-3304 did not bar the owners’ suit.

Key Issues & Findings

The court framed the dispositive question as whether any facts supported finding the owners to be involuntary or voluntary members of the Association, because A.R.S. § 10-3304’s standing limit applies only to members. It first held that under A.R.S. § 10-3601(B) a nonprofit corporation cannot admit a member without that person’s express or implied consent, so the Association’s 1999 amended bylaws could not, standing alone, confer membership on the owners.

The court then rejected the Association’s argument that Arizona’s Planned Communities Act supplied mandatory membership. The Act’s definitions in A.R.S. § 33-1802 merely identify the kinds of associations the Act governs-those with mandatory membership and required assessments-but the Act does not prescribe how to create such an association. The court therefore looked to common-law restrictive-covenant principles, under which automatic membership must appear in a deed restriction embodied in a recorded instrument, citing Duffy v. Sunburst Farms, Hueg v. Sunburst Farms, and Horton v. Mitchell (quoting Arizona Biltmore Estates Ass’n v. Tezak).

Because the 1960 and 1980 Declarations contained no membership requirement, and because a declaration may be modified only in the manner it prescribes-here, by a vote of the majority of lot owners under the 1980 Declaration’s amendment clause-the Association’s articles of incorporation and amended bylaws never effected that change. The record reflected no majority amendment requiring membership until November 30, 2001. The owners’ awareness that the bylaws purported to confer membership, and their counsel’s uncertainty at a hearing, did not create a genuine issue of material fact. Accordingly, § 10-3304 did not deprive the owners of standing, and summary judgment was affirmed; the court reversed and remanded the attorneys’-fee award for the reasons stated in a companion memorandum decision and granted the owners their fees on appeal under A.R.S. § 12-341.01.

Why It Matters

Shamrock is a leading Arizona statement of a foundational rule: the owners of lots in an existing subdivision can be bound to mandatory HOA membership-and to the assessments and liens that come with it-only through a recorded deed restriction, meaning the declaration (CC&Rs) itself or a validly adopted amendment to it. Corporate documents such as articles of incorporation and bylaws, even when recorded and even when they state that membership is ‘automatic,’ cannot by themselves convert voluntary owners into mandatory members. The decision rests on two independent principles: nonprofit-corporation law requires consent to membership (A.R.S. § 10-3601(B)), and covenant law requires that burdens running with the land appear in a recorded instrument and be changed only in the manner the declaration allows.

For Arizona homeowners and boards, the case shows why the source and the procedure of an obligation matter. An association seeking mandatory membership must secure it through the declaration-amendment process the CC&Rs specify-often a majority or supermajority vote of owners-rather than through internally adopted bylaws. The opinion also clarifies the limited role of the Planned Communities Act: it regulates mandatory-membership associations but does not itself create the obligation. Finally, the case illustrates that the standing gate in A.R.S. § 10-3304, which restricts who may challenge a nonprofit corporation’s acts, did not apply where the plaintiffs were not members; the court noted that the Legislature later amended § 10-3304 to exempt planned-community members’ challenges to board action, effective September 18, 2003. Because this is a published opinion, it is binding precedent in Arizona.

← Back to Court of Appeals cases

Swain v. Bixby Village Golf Course, Inc.: HOA Court Case Guide

Posted on by

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

Read the source opinion FAQ

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

Step 1 1986

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.

Step 2 1992

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.

Step 3 2006

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.

Step 4 2013

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.

Step 5 2015

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.

Step 6

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.

Step 7 2018

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.

Step 8 2019-09-19

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.

Step 9 2020-11-09

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 / citation247 Ariz. 405, 450 P.3d 270 (App. 2019) (No. 1 CA-CV 18-0397)
Court / tribunalCourt of Appeals
Decision / key dateSeptember 19, 2019
Judge / panelRandall M. Howe (Presiding Judge, author), Jennifer M. Perkins, David D. Weinzweig
PartiesLinda 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
  • A.R.S. §§ 42-13151 to -13154 (golf-course property-tax valuation; referenced in the CC&Rs)
  • U.S. Const. amend. XIII (involuntary servitude)
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 sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap9 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

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.

Key Issues & Findings

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.

Why It Matters

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.

← Back to Court of Appeals cases

Raimey v. Ditsworth (Dreamland Villa Community Club, Inc.): HOA Court Case Guide

Posted on by

Arizona Court of Appeals – Division One

A special-action ruling confirming that an invalid CC&R amendment fails community-wide, entitling homeowners to restitution and fee recovery.

Arizona Court of Appeals | 227 Ariz. 552, 261 P.3d 436 (App. 2011) | Decided 2011-07-21

Download the ruling PDF FAQ

Scope note: This educational page summarizes Raimey v. Ditsworth (Dreamland Villa Community Club, Inc.), a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Publication note: Raimey v. Ditsworth is a published, precedential Arizona Court of Appeals opinion; it is not memo.

The takeaway

On special-action review of a judgment entered on remand, the Court of Appeals held that the Dreamland Villa Second Amended Declarations are invalid and unenforceable as to all homeowners in sections 7, 14, 15, 16, 17, and 18 – regardless of each owner’s purchase date or whether the owner participated in the prior cross-appeal – because deed restrictions must be enforced uniformly and DVCC, as a party to the earlier suit, is precluded from enforcing covenants already declared invalid. The court further held that owners who paid assessments under the invalid declarations are entitled to restitution with interest, that petitioners may record a notice of invalidity, and that they may pursue their pre- and post-appellate attorneys’ fees.

Case Participants

Petitioner Side

  • Daryle G. Raimey, et al. (Dreamland Villa homeowners) (Petitioners)
    Homeowners in the Six Sections who brought the special action to enforce the Raimey mandate community-wide; prevailed.
  • Steven W. Cheifetz (Counsel)
    Cheifetz Iannitelli Marcolini, P.C.
    Counsel for petitioners (homeowners); Phoenix.
  • Stuart F. Gross (Counsel)
    Cheifetz Iannitelli Marcolini, P.C.
    Counsel for petitioners (homeowners); Phoenix.

Respondent Side

  • Dreamland Villa Community Club, Inc. (Real Party in Interest)
    Arizona non-profit community association that recorded and sought to enforce the Second Amended Declarations; aligned with the respondent and opposed the petition.
  • Charles E. Maxwell (Counsel)
    Maxwell and Morgan, P.C.
    Counsel for real party in interest DVCC; Mesa.
  • Brian W. Morgan (Counsel)
    Maxwell and Morgan, P.C.
    Counsel for real party in interest DVCC; Mesa.

Neutral Parties

  • Hon. John Ditsworth (Judge)
    Maricopa County Superior Court judge named as nominal respondent; entered the judgment on mandate under review.
  • Michael J. Brown (Judge)
    Court of Appeals judge; authored the opinion.
  • Diane M. Johnsen (Judge)
    Presiding Judge; concurred.
  • John C. Gemmill (Judge)
    Court of Appeals judge; concurred.

What happened

Dreamland Villa is a large retirement subdivision near Mesa, Arizona. For decades after it was first developed, the Dreamland Villa Community Club (DVCC) operated as a voluntary club with voluntary membership. Homeowners had no right, appurtenant to owning a lot, to club membership or to the recreational facilities; there were no common areas and no mandatory assessments, only voluntary dues paid by those who chose to use the facilities. Many owners chose not to join or participate.

DVCC later recorded amendments known as the “Second Amended Declarations” that purported to make membership and assessments mandatory for owners in six sections of the subdivision – sections 7, 14, 15, 16, 17, and 18 (the “Six Sections”). When some owners did not pay, DVCC filed collection actions in Maricopa County Superior Court (consolidated under Cause Nos. CC2006-211780 and related numbers), obtaining judgments against homeowners for unpaid assessments, late charges, and interest.

In the first appeal, Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411 (App. 2010), DVCC appealed the denial of its attorneys’ fees and the homeowners cross-appealed, arguing the Second Amended Declarations were invalid because the original declarations never alerted owners that they could be subjected to assessments. The Court of Appeals agreed with the homeowners, holding the Second Amended Declarations invalid and unenforceable and awarding the homeowners their appellate fees. The mandate directed the trial court to comply with the decision.

On remand, the parties disputed the scope of that ruling. DVCC argued the decision bound only the homeowners who had actually cross-appealed, while the homeowners argued the declarations were invalid as to everyone in the Six Sections. The trial court (the Honorable John Ditsworth) sided with DVCC, entering a judgment on mandate that invalidated the declarations only as to the cross-appellants and declined to address the homeowners’ requests for restitution and for their trial-court attorneys’ fees. The homeowners then filed this petition for special action.

The Court of Appeals first explained why it had jurisdiction: a special action, not an appeal, is the appropriate way to review a trial court’s judgment entered on remand under an appellate mandate, because such a judgment is based on the appellate court’s specific directions and is not itself appealable. Reviewing the trial court’s compliance with the Raimey mandate presented a pure question of law.

On the merits, the court held the trial court had erred. Deed restrictions are a contract among all lot owners and, absent contrary language, must apply uniformly to every lot; a covenant cannot be invalid as to some owners yet enforceable against others without creating a “patchwork quilt” of restrictions. Because Raimey conclusively held the declarations invalid, DVCC was collaterally estopped from enforcing them against anyone in the Six Sections – the court compared this to a facial invalidation of a statute, which bars all enforcement, not just enforcement against the challenger. The court rejected DVCC’s “voidable” theory and its reliance on the dicta in Armstrong v. Ledges about later purchasers with notice, holding the declarations invalid as to all owners regardless of purchase date, and correcting the trial court’s omission of section 18.

Finally, the court addressed remedies. It held that owners who had paid the vacated judgments were entitled to restitution with interest (subject to equitable reduction if DVCC could show a particular owner used the facilities); that petitioners could record a notice of invalidity so the public record would reflect the ruling; and that petitioners’ broadly worded appellate fee request preserved their right to seek the attorneys’ fees they had incurred in the superior court, warranting reconsideration of pre- and post-appellate fees on remand. The court awarded petitioners their fees for the special action and denied DVCC’s request for sanctions.

Raimey is one of the leading Arizona decisions – frequently paired with Kalway v. Calabria Ranch – limiting a community association’s power to use a generic amendment provision to impose new affirmative burdens, such as mandatory assessments, that owners were never alerted to when they bought. It confirms that once a court holds such an amendment invalid, the invalidity runs to the whole affected community: the association cannot enforce the covenant against later purchasers or against neighbors who sat out the litigation, because deed restrictions must be applied uniformly and an invalid restriction is not cured by the timing of a lot purchase. The decision is also a practical roadmap for what happens after a homeowner wins. It confirms that a special action – not an appeal – is the proper vehicle to police a trial court that misreads an appellate mandate on remand; that owners who already paid assessments under the invalidated declarations are entitled to restitution with interest; that owners may record a notice of invalidity so the title record reflects the ruling; and that a broadly worded appellate fee request can preserve the right to recover trial-court fees, even where the specific pre-appellate fees were not itemized. For associations and owners alike, it underscores that CC&R amendments creating new financial obligations are vulnerable, and that the consequences of losing extend community-wide.

Litigation record

Step 1 2006

DVCC files collection actions in Maricopa County Superior Court against Dreamland Villa homeowners for unpaid assessments under the Second Amended Declarations (consolidated Cause Nos. CC2006-211780 et al.).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 2007

A related action (Cause No. CC2007-090680) is filed; the cases are consolidated – 27 cases in all.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 2010

In Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411, the Court of Appeals holds the Second Amended Declarations invalid and unenforceable and awards the homeowners their appellate attorneys’ fees.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 2010

On remand, the trial court (Hon. John Ditsworth) enters a judgment on mandate that invalidates the declarations only as to the homeowners who cross-appealed and declines to address restitution and trial-court fees.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 5 2010

The homeowners file this petition for special action (No. 1 CA-SA 10-0255, Department B).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 6 2011-07-21

The Court of Appeals, Division One, accepts special-action jurisdiction and grants relief, holding the declarations invalid as to all homeowners in sections 7, 14, 15, 16, 17, and 18.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Download source
2026-07-01_001_opinion.pdf

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/raimey-v-ditsworth/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2026-07-01

Opinion

Type: Decision or judgment

Decision document; read it to understand the controlling result before moving to later filings.

Download source file
2026-07-01_001_opinion.pdf

FAQ

What did Raimey v. Ditsworth decide?

The Court of Appeals held that the Dreamland Villa “Second Amended Declarations” – amendments that tried to impose mandatory association membership and assessments – are invalid and unenforceable as to all homeowners in sections 7, 14, 15, 16, 17, and 18, not just the homeowners who had previously cross-appealed. It also directed restitution for owners who had paid, allowed a recorded notice of invalidity, and permitted recovery of trial-court attorneys’ fees.

Does the ruling protect homeowners who never joined the lawsuit?

Yes. The court reasoned that deed restrictions are a contract among all lot owners and must be applied uniformly. Because the association was a party to the earlier case and the amendments were declared invalid, it is collaterally estopped from enforcing them against anyone in the affected sections – the invalidation deprives the association of the power to enforce, rather than conferring a benefit on nonparties.

Does it matter when a homeowner bought their lot?

No. The court held the Second Amended Declarations invalid as to all homeowners regardless of purchase date. It declined to follow dicta from the North Carolina case Armstrong v. Ledges suggesting an amendment could bind later buyers who purchase with notice, holding that an invalid restriction does not become valid based on the timing of a lot purchase.

Why was this brought as a “special action” instead of an appeal?

A judgment a trial court enters on remand, to carry out an appellate court’s specific directions, is generally not itself appealable. The court explained that a special action is the appropriate vehicle to review whether the trial court correctly followed the appellate mandate, and that the scope of the prior ruling was a pure question of law.

Could the homeowners get their money and attorneys’ fees back?

Yes. Owners who had paid the vacated judgments were entitled to restitution with interest, subject to equitable reduction if the association could show a particular owner used the facilities. The court also held that the homeowners’ broadly worded appellate fee request preserved their right to seek the attorneys’ fees they had incurred in the superior court, and it awarded them their fees for the special action.

Is Raimey v. Ditsworth a binding, published decision?

Yes. It is a published, precedential opinion of the Arizona Court of Appeals, Division One, reported at 227 Ariz. 552, 261 P.3d 436 (App. 2011). It is one of the leading Arizona authorities – often discussed alongside Kalway v. Calabria Ranch – limiting an association’s power to impose new assessment obligations through generic amendment provisions.

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 / citation227 Ariz. 552, 261 P.3d 436 (App. 2011)
Court / tribunalCourt of Appeals
Decision / key dateJuly 21, 2011
Judge / panelMichael J. Brown (author), Diane M. Johnsen (Presiding Judge, concurring), John C. Gemmill (concurring)
PartiesDreamland Villa homeowners (petitioners) v. Dreamland Villa Community Club, Inc. (real party in interest), on special-action review of a Maricopa County Superior Court judgment entered on remand (Hon. John Ditsworth, respondent judge).
Governing law
Topics
covenantscc-and-rsamendmentsassessmentsattorneys-fees
Outcome / holding

On special-action review of a judgment entered on remand, the Court of Appeals held that the Dreamland Villa Second Amended Declarations are invalid and unenforceable as to all homeowners in sections 7, 14, 15, 16, 17, and 18 – regardless of each owner’s purchase date or whether the owner participated in the prior cross-appeal – because deed restrictions must be enforced uniformly and DVCC, as a party to the earlier suit, is precluded from enforcing covenants already declared invalid. The court further held that owners who paid assessments under the invalid declarations are entitled to restitution with interest, that petitioners may record a notice of invalidity, and that they may pursue their pre- and post-appellate attorneys’ fees.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap6 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

Raimey v. Ditsworth arose from a long-running dispute in the Dreamland Villa retirement community near Mesa, Arizona, over whether recorded amendments called the “Second Amended Declarations” could impose mandatory association assessments on homeowners in six sections of the subdivision (sections 7, 14, 15, 16, 17, and 18). In an earlier appeal, Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42 (App. 2010), the Court of Appeals held those amendments invalid because owners had never been alerted, when they took title, that they could be subjected to such assessments. On remand, the trial court read the appellate mandate narrowly, invalidating the declarations only as to the homeowners who had actually cross-appealed. A group of homeowners then brought this special action. The Court of Appeals accepted special-action jurisdiction, explaining that a special action, not an appeal, is the proper way to review a judgment entered on remand under an appellate mandate. On the merits, it held that because deed restrictions operate as mutual, community-wide servitudes that must be applied uniformly, the invalidity reaches every homeowner in the six sections regardless of purchase date or participation in the prior case. The court also directed restitution to owners who had paid assessments under the invalid declarations, permitted them to record a notice of invalidity, and allowed them to seek the attorneys’ fees they incurred in the superior court.

Key Issues & Findings

The court reasoned that deed restrictions constitute a contract among all lot owners in a subdivision and, absent contrary language, must apply uniformly to every lot; allowing a covenant to be invalid as to the cross-appellants yet enforceable against their neighbors would create an impermissible “patchwork quilt” of restrictions. Because Raimey conclusively held the Second Amended Declarations invalid, DVCC – a party to that suit – is collaterally estopped from enforcing them against anyone in the Six Sections. The court analogized this to a facial invalidation of a statute, which bars the government from enforcing the law at all, not merely against the challenger. It rejected DVCC’s argument that the declarations were merely “voidable” and therefore enforceable against nonparties absent a timely challenge, treating “invalid” as meaning the covenants simply cannot be enforced, and it rejected reliance on the dicta in Armstrong v. Ledges about subsequent purchasers who buy with notice, holding that an invalid restriction does not become valid based on the timing of a lot purchase.

Why It Matters

Raimey is one of the leading Arizona decisions – frequently paired with Kalway v. Calabria Ranch – limiting a community association’s power to use a generic amendment provision to impose new affirmative burdens, such as mandatory assessments, that owners were never alerted to when they bought. It confirms that once a court holds such an amendment invalid, the invalidity runs to the whole affected community: the association cannot enforce the covenant against later purchasers or against neighbors who sat out the litigation, because deed restrictions must be applied uniformly and an invalid restriction is not cured by the timing of a lot purchase.

The decision is also a practical roadmap for what happens after a homeowner wins. It confirms that a special action – not an appeal – is the proper vehicle to police a trial court that misreads an appellate mandate on remand; that owners who already paid assessments under the invalidated declarations are entitled to restitution with interest; that owners may record a notice of invalidity so the title record reflects the ruling; and that a broadly worded appellate fee request can preserve the right to recover trial-court fees, even where the specific pre-appellate fees were not itemized. For associations and owners alike, it underscores that CC&R amendments creating new financial obligations are vulnerable, and that the consequences of losing extend community-wide.

← Back to Court of Appeals cases

Dreamland Villa Community Club, Inc. v. Raimey: HOA Court Case Guide

Posted on by

Arizona HOA Case Explainer

The Court of Appeals held that a broad majority-amendment clause is not a blank check to impose brand-new membership and assessment burdens on owners who had no notice of them, especially in a community with no common areas.

Arizona Court of Appeals | 224 Ariz. 42, 226 P.3d 411 (App. 2010) | Decided 2010-03-16

Read the source opinion FAQ

Scope note: This educational page summarizes Dreamland Villa Community Club, Inc. v. Raimey, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Source note: This page links to the public opinion record and does not provide a local PDF download.

The takeaway

A generic provision allowing recorded deed restrictions to be amended “in whole or in part” by a majority vote of lot owners cannot be used to impose substantial, previously unforeseeable new affirmative obligations – here, mandatory homeowners’-association membership and lienable assessments – on a community that has no common areas and where club membership had always been voluntary, because such owners took title without notice that these servitudes could be imposed non-consensually. The Second Amended Declarations were therefore invalid and unenforceable, and the trial court’s summary judgment for the association was reversed.

Case Participants

Petitioner Side

  • Dreamland Villa Community Club, Inc. (Plaintiff-Appellant/Cross-Appellee)
    Arizona nonprofit corporation; originally a voluntary recreational club that sought to become a mandatory homeowners’ association through amended declarations.
  • Charles E. Maxwell (Counsel)
    Maxwell & Morgan, PC (Mesa)
    Counsel for DVCC (association).
  • Brian W. Morgan (Counsel)
    Maxwell & Morgan, PC (Mesa)
    Counsel for DVCC (association).

Respondent Side

  • Daryle G. Raimey (and other Dreamland Villa homeowners in sections 7, 14, 15, 16, 17, and 18) (Defendant-Appellee/Cross-Appellant)
    Named lead among the dissenting homeowners who refused to pay the new assessments; prevailed on appeal.
  • Steven W. Cheifetz (Counsel)
    Cheifetz Iannitelli Marcolini, PC (Phoenix)
    Counsel for the homeowners.
  • Stewart F. Gross (Counsel)
    Cheifetz Iannitelli Marcolini, PC (Phoenix)
    Counsel for the homeowners.
  • Matthew A. Klopp (Counsel)
    Cheifetz Iannitelli Marcolini, PC (Phoenix)
    Counsel for the homeowners.

Neutral Parties

  • Jon W. Thompson (Judge)
    Presiding Judge; authored the opinion.
  • Daniel A. Barker (Judge)
    Concurred.
  • Ann A. Scott Timmer (Judge)
    Chief Judge; concurred.

What happened

Dreamland Villa is an age-restricted residential community of eighteen sections near Mesa, Arizona. The first section was platted in 1958 and the last in 1972, and every residence must be occupied by at least one person aged fifty-five or older. Critically, the community had no common areas – no shared park, roads, or amenities owned collectively by the lot owners.

Dreamland Villa Community Club, Inc. (DVCC) was incorporated in 1961 as a nonprofit corporation formed by volunteers to provide recreational facilities – clubhouses, a recreation center with swimming pools, shuffleboard courts, and a ballroom – to those who chose to join. Membership was voluntary, the facilities were open only to members, and the club was funded by voluntary dues. Many homeowners never joined or used the facilities.

Each section was governed by a separate recorded Declaration of Restrictions from the 1960s and 1970s. With the exception of section 18, none mentioned DVCC, membership, or assessments; they addressed appearance and maintenance matters like single-family use, minimum floor area, and signs. Each contained a generic amendment clause allowing the covenants to be ‘changed in whole or in part or revoked in their entirety by a vote of the owners of a majority of the lots.’ Section 18’s declaration did reference an assessment, but it imposed that charge only on non-members and did not grant membership rights.

In 2003 and 2004, DVCC recorded a Second Amended Declaration of Restrictions for each section. Each Second Amended Declaration required lot owners to pay annual and special assessments to DVCC, reciting purposes including the improvement, maintenance, and replacement of ‘Common Areas’ – even though the community had none. Beginning in December 2006, DVCC filed a series of lawsuits against homeowners who refused to pay, and the suits were consolidated.

Homeowners in sections 7, 14, 15, 16, 17, and 18 answered and counterclaimed, arguing that the Second Amended Declarations were void and that they could not be forced into membership in a nonprofit corporation or made to pay assessments. On cross-motions, the trial court granted summary judgment for DVCC in September 2007, reasoning that under A.R.S. section 10-3601(B) and Shamrock v. Wagon Wheel Park HOA, a homeowner who takes a deed with a majority-amendment clause impliedly consents to a later majority vote making association membership mandatory.

On the collateral money and fee questions, the trial court declined to award DVCC its attorneys’ fees, citing the homeowners’ good-faith defenses, the novel and complex issues presented, and undue hardship. After an evidentiary hearing it capped late fees at $15 per year under A.R.S. section 33-1803(A) and applied eighteen-percent interest to unpaid assessments. The court signed twenty-five separate judgments; DVCC appealed the fee and damages rulings, and the homeowners cross-appealed the validity of the amendments.

The Court of Appeals addressed the cross-appeal first and reversed. It held that Shamrock left open whether a majority could amend to create mandatory membership, that its prior citation to Colorado’s Evergreen Highlands was not an adoption of that permissive rule, and that Evergreen was distinguishable because it involved pre-existing common areas all owners had always used. Following the Lakeland line and Armstrong v. Ledges HOA, the court held that a generic amendment power could not force the dissenting minority into a voluntary club and lien their lots, because they had no notice such servitudes could be imposed non-consensually. Having found the Second Amended Declarations invalid and unenforceable, the court did not reach DVCC’s fee and late-charge claims, and it awarded the homeowners their attorneys’ fees on appeal.

Dreamland Villa v. Raimey is a foundational Arizona authority on the outer limits of an HOA’s power to amend its governing documents. It draws a sharp line between amendments that adjust or extend obligations the community already bargained for and amendments that impose wholly new, substantial, and unforeseeable burdens – such as compulsory membership in a formerly voluntary club and lienable assessments – on owners who never had notice such servitudes could be added. The decision teaches that a broad ‘may be changed in whole or in part’ clause is not a blank check, and that the presence or absence of common areas that all owners have always used can be decisive in whether new assessments are enforceable. The case matters for boards, managers, and homeowners because it frames a recurring dispute: can a bare majority convert a voluntary arrangement into a mandatory, assessment-bearing association over the objection of a dissenting minority? Raimey answers no on these facts and situates Arizona within the Lakeland/Armstrong line rather than the more permissive Evergreen approach. Its reasoning was later reinforced at the highest level by the Arizona Supreme Court in Kalway v. Calabria Ranch HOA (2022), which held that owners must have notice of the kinds of restrictions that may be added by amendment. Practitioners should read Raimey as a caution to build any expansive assessment or membership authority into the recorded declaration from the outset, and homeowners should read it as support for challenging after-the-fact amendments that create obligations they never bargained for.

Litigation record

Step 1 1958

First section of Dreamland Villa is platted near Mesa, Arizona; the community will grow to eighteen sections by 1972, with no common areas.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 1961

Dreamland Villa Community Club, Inc. (DVCC) is incorporated as a nonprofit to provide recreational facilities to voluntary members.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 1963-1978

Separate Declarations of Restrictions are recorded for the sections (section 7 in 1963; sections 14-17 in 1970-1972; section 18 in 1978), each with a generic majority-amendment clause.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 2003-2004

DVCC records a Second Amended Declaration of Restrictions for each section, purporting to require every lot owner to pay annual and special assessments.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 5 2006-12

DVCC begins filing lawsuits against homeowners who refuse to pay the new assessments; the cases are later consolidated.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 6 2007-05

Homeowners move for summary judgment, arguing DVCC cannot impose membership or assessments without consent.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 7 2007-09

Trial court grants DVCC’s motions for summary judgment, relying on A.R.S. section 10-3601(B) and Shamrock, and denies the homeowners’ Rule 56(f) request.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 8 2007-10

Trial court declines to award DVCC attorneys’ fees, citing good-faith defenses, novel issues, and undue hardship; later caps late fees at $15/year under A.R.S. section 33-1803(A).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 9 2008

Twenty-five separate judgments are entered; DVCC appeals and the homeowners cross-appeal (No. 1 CA-CV 08-0388).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 10 2010-03-16

Court of Appeals, Division One, reverses and remands, holding the Second Amended Declarations invalid and unenforceable and awarding the homeowners appellate fees.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 11 2010-06-07

Reconsideration denied.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What did Dreamland Villa v. Raimey decide?

The Arizona Court of Appeals held that a generic clause letting deed restrictions be ‘changed in whole or in part’ by a majority vote could not be used to impose brand-new, substantial obligations – mandatory HOA membership and lienable assessments – on owners in a community with no common areas where membership had always been voluntary. The Second Amended Declarations were declared invalid and unenforceable, and the trial court’s summary judgment for the association was reversed.

Why did the fact that Dreamland Villa had no common areas matter so much?

The absence of common areas was decisive. Courts (including Colorado’s Evergreen Highlands) have upheld new assessments where owners had always used shared amenities, reasoning the duty to pay for them was implicit in the original bargain. Dreamland Villa had no shared park, roads, or amenities owned in common, and the club’s facilities were open only to voluntary members. Without common areas that everyone used, there was no implicit obligation to support, so a majority could not manufacture one through amendment.

Doesn’t accepting a deed with an amendment clause mean owners consented to whatever the majority later adds?

Not automatically. The court recognized that buyers who accept recorded restrictions are generally bound by them, and that A.R.S. section 10-3601(B) allows implied consent to nonprofit membership. But it held a generic ‘amend in whole or in part’ clause is not notice that a majority could later impose compulsory membership and assessments never mentioned in the original documents. Owners can only be bound by what they had notice of, so this particular new burden was not something they impliedly consented to.

What is the ‘Lakeland line’ versus the ‘Evergreen’ approach the court discussed?

The Lakeland line (including Lakeland Property Owners Ass’n v. Larson and Armstrong v. Ledges HOA) refuses to enforce amendments that impose substantial, unforeseeable new burdens on objecting owners without proper notice. Colorado’s Evergreen Highlands took a more permissive view, allowing a modification clause to add mandatory assessments – but there the association maintained pre-existing common areas all owners used. Raimey aligned Arizona with the Lakeland line on these facts, distinguishing Evergreen because Dreamland Villa had no common areas.

Is Dreamland Villa v. Raimey still good law, and how does it relate to Kalway v. Calabria Ranch?

Yes. Raimey is a published, precedential Arizona Court of Appeals decision. Its notice-based reasoning was reinforced in 2022 by the Arizona Supreme Court in Kalway v. Calabria Ranch HOA, which held that owners must have notice of the kinds of restrictions that may be added by amendment and that a general amendment power does not authorize entirely new and unforeseen restrictions. Read together, the cases limit an HOA’s ability to use a broad amendment clause to create obligations owners never bargained for.

What happened with attorneys’ fees and late charges in the case?

The trial court had declined to award DVCC its fees, citing the homeowners’ good-faith defenses, novel and complex issues, and undue hardship, and it capped late fees at $15 per year under A.R.S. section 33-1803(A). Because the Court of Appeals found the amended declarations invalid and vacated the judgments for DVCC, it did not need to reach DVCC’s fee and late-charge arguments. Instead, it awarded the prevailing homeowners their reasonable attorneys’ fees on appeal under A.R.S. section 12-341.01, subject to compliance with the appellate rules.

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 / citation224 Ariz. 42, 226 P.3d 411 (App. 2010)
Court / tribunalCourt of Appeals
Decision / key dateMarch 16, 2010
Judge / panelJon W. Thompson (Presiding Judge, author), Daniel A. Barker (Judge, concurring), Ann A. Scott Timmer (Chief Judge, concurring)
PartiesA voluntary community recreational club turned homeowners’ association (DVCC) sued dissenting homeowners in six sections to enforce mandatory membership and assessments imposed by amended deed restrictions.
Governing law
Topics
amendmentscc-and-rsassessmentscovenantsmembership
Outcome / holding

A generic provision allowing recorded deed restrictions to be amended “in whole or in part” by a majority vote of lot owners cannot be used to impose substantial, previously unforeseeable new affirmative obligations – here, mandatory homeowners’-association membership and lienable assessments – on a community that has no common areas and where club membership had always been voluntary, because such owners took title without notice that these servitudes could be imposed non-consensually. The Second Amended Declarations were therefore invalid and unenforceable, and the trial court’s summary judgment for the association was reversed.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF, 19 other source files
Step-by-step docket roadmap11 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

Dreamland Villa is an age-restricted residential community of eighteen sections near Mesa, Arizona, built between 1958 and 1972, with no common areas. Dreamland Villa Community Club, Inc. (DVCC) was incorporated in 1961 as a voluntary nonprofit recreational club, offering clubhouses, pools, shuffleboard courts, and a ballroom funded by voluntary dues. The original recorded Declarations of Restrictions for the sections at issue said nothing about DVCC, membership, or assessments; they did, however, allow amendment “in whole or in part” by a majority vote of lot owners. In 2003 and 2004, DVCC recorded Second Amended Declarations requiring every lot owner to pay annual and special assessments. When homeowners in sections 7, 14, 15, 16, 17, and 18 refused, DVCC sued and won summary judgment; the trial court reasoned that by accepting deeds with a majority-amendment clause, the owners impliedly consented to mandatory membership under A.R.S. section 10-3601(B) and Shamrock v. Wagon Wheel Park HOA. The Court of Appeals reversed. It concluded Shamrock left open whether a majority could amend to create such new obligations, distinguished Colorado’s Evergreen Highlands (which involved pre-existing common areas), and followed the Lakeland/Armstrong line of authority: because Dreamland Villa had no common areas and membership had always been voluntary, a generic amendment power could not force the objecting minority into association membership and lienable assessments they never bargained for and had no notice of. The court also rejected DVCC’s claim that section 18’s original declaration mandated membership, finding it assessed only non-members. The Second Amended Declarations were declared invalid and unenforceable, and the homeowners were awarded appellate attorneys’ fees.

Key Issues & Findings

The court reviewed the summary judgment de novo. It began with A.R.S. section 10-3601(B), which provides that no person may be admitted as a member of a nonprofit corporation without that person’s express or implied consent. While a grantee who accepts a deed subject to recorded restrictions ordinarily assents to those restrictions, the court held that a generic clause allowing amendment “in whole or in part” by majority vote does not, standing alone, supply consent to entirely new affirmative burdens. The court read Shamrock v. Wagon Wheel Park HOA as establishing only that mandatory membership must appear in a recorded declaration (not merely in bylaws), and as leaving open whether a majority could amend a declaration to create such membership. It declined to treat its earlier favorable citation to Colorado’s Evergreen Highlands as an adoption of that approach, noting Evergreen itself distinguished the Lakeland line based on ‘the differing factual scenarios and severity of consequences.’ In Evergreen the association maintained pre-existing common areas that all lot owners had always used, so an assessment was implicit in the original bargain; Dreamland Villa, by contrast, had no common areas, membership had always been voluntary, and many owners never joined. Following Lakeland and Armstrong v. Ledges HOA, the court held a majority could not force the dissenting 49% into a club they had chosen against and lien their lots for it, because the circumstances showed no proper notice that such servitudes could be imposed non-consensually under a generic amendment power. Rather than rest on the breadth of the amendment language, the court grounded its holding on the lack of notice and the substantial, unforeseeable nature of the new obligations. It also rejected DVCC’s contention that section 18’s original declaration required membership, finding that declaration assessed only non-members and conferred no membership rights.

Why It Matters

Dreamland Villa v. Raimey is a foundational Arizona authority on the outer limits of an HOA’s power to amend its governing documents. It draws a sharp line between amendments that adjust or extend obligations the community already bargained for and amendments that impose wholly new, substantial, and unforeseeable burdens – such as compulsory membership in a formerly voluntary club and lienable assessments – on owners who never had notice such servitudes could be added. The decision teaches that a broad ‘may be changed in whole or in part’ clause is not a blank check, and that the presence or absence of common areas that all owners have always used can be decisive in whether new assessments are enforceable.

The case matters for boards, managers, and homeowners because it frames a recurring dispute: can a bare majority convert a voluntary arrangement into a mandatory, assessment-bearing association over the objection of a dissenting minority? Raimey answers no on these facts and situates Arizona within the Lakeland/Armstrong line rather than the more permissive Evergreen approach. Its reasoning was later reinforced at the highest level by the Arizona Supreme Court in Kalway v. Calabria Ranch HOA (2022), which held that owners must have notice of the kinds of restrictions that may be added by amendment. Practitioners should read Raimey as a caution to build any expansive assessment or membership authority into the recorded declaration from the outset, and homeowners should read it as support for challenging after-the-fact amendments that create obligations they never bargained for.

← Back to Court of Appeals cases

Kalway v. Calabria Ranch HOA, LLC: HOA Court Case Guide

Posted on by

Arizona Supreme Court · CC&R Amendments

How a five-lot Tucson subdivision’s fight over majority-vote amendments produced Arizona’s leading rule on the limits of an HOA’s power to change its CC&Rs.

Arizona Supreme Court | 252 Ariz. 532; 506 P.3d 18 (2022) | Decided 2022-03-22

Download the ruling PDF FAQ

Scope note: This educational page summarizes Kalway v. Calabria Ranch HOA, LLC, a Arizona Supreme Court HOA-related authority. It is not legal advice.

The takeaway

A general-amendment-power provision in an HOA’s CC&Rs may be used to amend only those restrictions for which the original declaration provided sufficient notice. Because restrictive covenants are construed narrowly to reflect homeowners’ reasonable expectations, non-consensual amendments adopted by majority vote must be reasonable and foreseeable, and A.R.S. § 33-1817(A)—which permits majority-vote amendment when the declaration so provides—does not displace this common-law notice limitation. New restrictions that are entirely different in character from the original covenants and adopted without notice are invalid; the Court blue-penciled the CC&Rs to strike the severable unforeseeable provisions.

Case Participants

Petitioner Side

  • Maarten Kalway (Plaintiff/Appellant/Petitioner)
    Owner of Lot 2, the largest lot (nearly 23 acres); sued to invalidate the 2018 CC&R amendments and prevailed on review, obtaining an award of attorney fees.
  • Gerard R. O’Meara (Counsel)
    Gust Rosenfeld P.L.C.
    Counsel for petitioner Maarten Kalway.
  • Charles W. Wirken (Counsel)
    Gust Rosenfeld P.L.C.
    Counsel for petitioner Maarten Kalway; argued the case.

Respondent Side

  • Calabria Ranch HOA, LLC (Defendant/Appellee/Respondent)
    Arizona limited liability company; the homeowners’ association whose members adopted the challenged CC&R amendments.
  • Mark A. Reid (Defendant/Appellee/Respondent)
    One of the other Calabria Ranch lot owners who voted for the amendments; sued with his wife Florence J. Clark.
  • Florence J. Clark (Defendant/Appellee/Respondent)
    Other Calabria Ranch lot owner; wife of Mark A. Reid.
  • Edward A. Phlaum (Defendant/Appellee/Respondent)
    Other Calabria Ranch lot owner, individually and as co-trustee of the Edward A. and Diane Lyn Phlaum Revocable Trust dated April 10, 2017.
  • Diane Lyn Phlaum (Defendant/Appellee/Respondent)
    Other Calabria Ranch lot owner, individually and as co-trustee of the Edward A. and Diane Lyn Phlaum Revocable Trust dated April 10, 2017.
  • Stuart J. Scibetta (Defendant/Appellee/Respondent)
    Other Calabria Ranch lot owner, individually and as trustee of the Stuart J. Scibetta Living Trust dated April 1, 2015.
  • Craig L. Cline (Counsel)
    Thompson Krone P.L.C.
    Counsel for respondents Calabria Ranch HOA, LLC and the other lot owners; argued the case.

Neutral Parties

  • Chief Justice Robert M. Brutinel (Judge)
    Authored the unanimous opinion of the Court.
  • Vice Chief Justice Ann A. Timmer (Judge)
    Joined the opinion.
  • Justice Clint Bolick (Judge)
    Joined the opinion.
  • Justice John R. Lopez IV (Judge)
    Joined the opinion.
  • Justice James P. Beene (Judge)
    Joined the opinion.
  • Justice Bill Montgomery (Judge)
    Joined the opinion.
  • Justice Andrew W. Gould (Ret.) (Judge)
    Participated in oral argument but retired before issuance and did not take part in drafting the opinion.

What happened

Calabria Ranch Estates is a residential subdivision of five lots located east of Tucson in Pima County. Maarten Kalway owned Lot 2, which at nearly twenty-three acres was the largest lot; the remaining lots ranged from about 3.3 to 6.6 acres, with two of them jointly owned and together comprising 11.65 acres. All of the lots were subject to CC&Rs first recorded in an original declaration in 2015.

The 2015 original declaration stated that its purpose was to “protect[] the value, desirability, attractiveness and natural character of the Property,” and it allowed the CC&Rs to be amended “at any time by an instrument executed and acknowledged by the [m]ajority [v]ote of the owners.” A majority vote consisted of at least four of the six possible votes; each lot had one vote except Kalway’s lot, which had two.

In January 2018, the other property owners amended the CC&Rs by majority vote without Kalway’s consent or knowledge. The amendments changed some definitions and added others, created new restrictions—including limits on owners’ ability to convey or subdivide their lots, restrictions on the size and number of buildings on each lot, and reductions in the permitted livestock—and enacted new enforcement measures against owners who violated the covenants.

Kalway sued Calabria Ranch and the other owners in Pima County Superior Court, seeking a declaratory judgment to invalidate the amendments. The parties filed cross-motions for summary judgment. The superior court granted them in part and denied them in part, invalidating two sections in their entirety and partially invalidating two more, and found the invalid provisions severable from the rest of the CC&Rs. No party challenged the trial court’s ruling striking those particular provisions.

Kalway appealed, arguing that all of the amendments were invalid without unanimous consent. In a memorandum decision filed March 13, 2020, the Court of Appeals, Division Two, affirmed in a 2-1 decision, relying on Dreamland Villa Community Club, Inc. v. Raimey. The majority concluded that the general-purpose statement in the original declaration was enough to give notice of the amendments. Judge Brearcliffe, concurring in part and dissenting in part, warned that letting a “gauzy statement of purpose” justify any new amendment would render Dreamland’s notice requirement a nullity.

The Arizona Supreme Court granted review because the case raised issues of statewide importance regarding the scope of an HOA’s authority to amend CC&Rs. Reviewing questions of law de novo, the Court held that A.R.S. § 33-1817(A) allows majority-vote amendments but does not displace the common law: the original declaration must give sufficient notice of a future amendment, meaning amendments must be reasonable and foreseeable. It reasoned that CC&Rs are a special type of contract not enforced as to terms beyond the range of reasonable expectation, and that a broad amendment clause and subjective purpose statement could not supply the required notice.

Applying these principles and the “blue pencil” rule, the Court examined each challenged amendment separately. It upheld provisions that merely refined restrictions already foreshadowed (for example, defining “Garage,” which the original declaration had referenced) and struck those that imposed wholly new obligations—dwelling-size limits, an expanded “Improvement” definition affecting setbacks, non-dwelling-structure caps, a mandatory improvement-plan approval process, subdivision and building-sequencing restrictions, a drastic redefinition of “livestock,” and new fire-hazard maintenance duties. The Court reversed in part and remanded, vacated the Court of Appeals’ decision, and awarded Kalway his attorney fees in the Supreme Court and the Court of Appeals.

Kalway is a landmark decision on the outer limits of an HOA’s power to amend its CC&Rs by majority vote. It establishes a statewide common-law rule: a general grant of amendment authority, no matter how broadly worded, lets a majority amend only those restrictions of which the original declaration gave the affected owners fair notice, and any amendment must be reasonable and foreseeable. A vague statement of purpose cannot bootstrap brand-new, non-consensual burdens onto a dissenting minority. The decision cements the notice principle first articulated by the Court of Appeals in Dreamland Villa v. Raimey and confirms that A.R.S. § 33-1817(A)’s authorization of majority-vote amendments does not override that common-law protection. For homeowners, boards, and drafters, the practical takeaway is that amendments introducing categories of restriction the original declaration never mentioned—new architectural-review approval processes, building-size or building-count caps, subdivision prohibitions, or entirely redefined use limits—are vulnerable to challenge if adopted without unanimous consent. Associations that want flexibility to add such restrictions later should say so clearly in the original declaration, and boards should assess whether a proposed amendment merely refines an existing covenant or creates a new one. The Court’s use of the “blue pencil” rule also signals that courts may surgically strike the offending, severable portions of an amendment rather than voiding an entire amendment package, and the fee award to the prevailing owner underscores the litigation exposure of overreaching amendments.

Litigation record

Step 1 2015

Original declaration of CC&Rs recorded for Calabria Ranch Estates, a five-lot subdivision east of Tucson; it includes a general-purpose statement and a general-amendment-power provision permitting amendment by majority vote.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 2018-01

The other lot owners amend the CC&Rs by majority vote, without Kalway’s consent or knowledge, adding new use restrictions, definitions, and enforcement measures.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 2018

Kalway files a declaratory-judgment action in Pima County Superior Court (No. C20181284) seeking to invalidate the amendments.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 2019

On cross-motions for summary judgment, the superior court invalidates two sections entirely and partially invalidates two more, finding the invalid provisions severable; Kalway appeals to the Court of Appeals, Division Two (No. 2 CA-CV 2019-0106).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 5 2020-03-13

The Court of Appeals, Division Two, affirms in a 2-1 memorandum decision, with Judge Brearcliffe concurring in part and dissenting in part.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 6 2022-03-22

The Arizona Supreme Court issues its opinion, adopting the notice/foreseeability requirement, blue-penciling the CC&Rs, reversing in part and remanding, vacating the Court of Appeals’ decision, and awarding Kalway his attorney fees.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Download source
2026-07-01_001_opinion.pdf

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/kalway-v-calabria-ranch-hoa/raw/: 28 PDFs. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2019-07-09

Civil Fees Order

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2019-07-09_001_civil-fees-order.pdf
Source 2 2019-07-10

Appellant Fee Receipt

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2019-07-10_002_appellant-fee-receipt.pdf
Source 3 2019-07-16

Notice Of Appearance

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2019-07-16_003_notice-of-appearance.pdf
Source 4 2019-08-29

Opening Brief

Type: Briefing paper

Opening merits brief; this is where the appellant or moving party frames the legal argument.

Download source file
2019-08-29_004_opening-brief.pdf
Source 5 2019-09-04

Cross Appellant Fee Receipt

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2019-09-04_005_cross-appellant-fee-receipt.pdf
Source 8 2019-11-08

Answering Brief

Type: Responsive pleading

Responding party’s first substantive response to the complaint or petition.

Download source file
2019-11-08_008_answering-brief.pdf
Source 9 2019-12-02

Reply Brief

Type: Briefing paper

Reply paper; usually the final written response before the court takes the issue under advisement.

Download source file
2019-12-02_009_reply-brief.pdf
Source 10 2019-12-02

Request For Oral Argument

Type: Motion/application

A request for a specific ruling or procedural action; the next document is often a response or order.

Download source file
2019-12-02_010_request-for-oral-argument.pdf
Source 11 2020-01-09

Order Setting Oral Argument

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2020-01-09_011_order-setting-oral-argument.pdf
Source 12 2020-01-09

Order Oral Argument Granted

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2020-01-09_012_order-oral-argument-granted.pdf
Source 13 2020-01-10

Oral Argument Acknowledgment

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2020-01-10_013_oral-argument-acknowledgment.pdf
Source 14 2020-02-05

Oral Argument Sign In Sheet

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2020-02-05_014_oral-argument-sign-in-sheet.pdf
Source 16 2020-03-23

Statement Of Costs

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2020-03-23_016_statement-of-costs.pdf
Source 17 2020-03-23

Cline Affidavit Supporting Costs

Type: Procedural/service filing

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2020-03-23_017_cline-affidavit-supporting-costs.pdf
Source 18 2020-03-27

Motion For Publication

Type: Motion/application

A request for a specific ruling or procedural action; the next document is often a response or order.

Download source file
2020-03-27_018_motion-for-publication.pdf
Source 21 2020-04-03

Reply Supporting Costs

Type: Briefing paper

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2020-04-03_021_reply-supporting-costs.pdf
Source 25 2020-05-06

Order Denying Publication

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2020-05-06_025_order-denying-publication.pdf
Source 26 2020-05-12

Order Awarding Fees And Costs

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2020-05-12_026_order-awarding-fees-and-costs.pdf
Source 27 2022-03-22

Arizona Supreme Court Opinion

Type: Decision or judgment

Decision document; read it to understand the controlling result before moving to later filings.

Download source file
2022-03-22_110_arizona-supreme-court-opinion.pdf
Source 28 2026-07-01

Opinion

Type: Decision or judgment

Decision document; read it to understand the controlling result before moving to later filings.

Download source file
2026-07-01_001_opinion.pdf

FAQ

What did the Arizona Supreme Court decide in Kalway v. Calabria Ranch HOA?

The Court held that a general-amendment-power provision in an HOA’s CC&Rs lets a majority amend only those restrictions for which the original declaration gave owners sufficient notice. Amendments must be reasonable and foreseeable, so wholly new restrictions adopted by majority vote without notice are invalid. The Court struck the offending amendments and awarded the challenging owner his attorney fees.

Can an HOA add any new restriction it wants by majority vote?

No. Even a broad “amend at any time by majority vote” clause does not let a majority impose brand-new burdens on a dissenting minority. Under Kalway, an amendment must refine, correct, fill a gap in, or change a covenant the original declaration already put owners on notice of; it cannot be “entirely new and different in character” and untethered to an existing covenant.

What is A.R.S. § 33-1817(A), and did it decide the case?

A.R.S. § 33-1817(A) permits amending CC&Rs by majority vote when the original declaration provides for that voting scheme. The Court held the statute does not displace the common law, which still bars some amendments even if the required majority approves. So the statute authorizes majority-vote amendments but does not eliminate the notice-and-foreseeability requirement.

What is the “blue pencil” rule the Court used?

Blue-penciling means a court strikes the grammatically severable, unreasonable portions of a restrictive covenant while leaving the valid language intact, rather than voiding an entire amendment. The Court used it to delete the unforeseeable words and whole sections from several Calabria Ranch amendments while preserving the parts that were valid.

Which amendments survived and which were struck?

The Court upheld amendments that merely refined restrictions already foreshadowed—for example, defining “Garage,” a term the original declaration had referenced. It struck new, unforeseeable provisions, including dwelling-size limits, an expanded “Improvement” definition affecting setbacks, non-dwelling-structure caps, mandatory improvement-plan approval, subdivision restrictions, a drastic redefinition of “livestock,” and new fire-hazard maintenance duties.

What does Kalway mean for Arizona homeowners and HOA boards?

Homeowners gained a strong defense against non-consensual amendments that introduce restrictions the original CC&Rs never mentioned. Boards and drafters should state clearly in the original declaration if they want the ability to add particular restrictions later, and should assess whether a proposed amendment refines an existing covenant or creates a new one. Because the prevailing owner was awarded attorney fees, overreaching amendments also carry litigation risk. This is general information, not legal advice.

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 / citation252 Ariz. 532; 506 P.3d 18 (2022)
Court / tribunalArizona Supreme Court
Decision / key dateMarch 22, 2022
Judge / panelChief Justice Robert M. Brutinel (author), Vice Chief Justice Ann A. Timmer, Justice Clint Bolick, Justice John R. Lopez IV, Justice James P. Beene, Justice Bill Montgomery, Justice Andrew W. Gould (Ret.) (participated at oral argument only; retired before issuance and did not join the opinion)
PartiesIndividual lot owner Maarten Kalway challenged Calabria Ranch HOA, LLC and the other lot owners over whether they could impose new CC&R restrictions on him by majority vote without his consent.
Governing law
Topics
cc-and-rsamendmentscovenantsattorneys-feesprocedure
Outcome / holding

A general-amendment-power provision in an HOA’s CC&Rs may be used to amend only those restrictions for which the original declaration provided sufficient notice. Because restrictive covenants are construed narrowly to reflect homeowners’ reasonable expectations, non-consensual amendments adopted by majority vote must be reasonable and foreseeable, and A.R.S. § 33-1817(A)—which permits majority-vote amendment when the declaration so provides—does not displace this common-law notice limitation. New restrictions that are entirely different in character from the original covenants and adopted without notice are invalid; the Court blue-penciled the CC&Rs to strike the severable unforeseeable provisions.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package28 PDFs
Step-by-step docket roadmap6 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

Kalway v. Calabria Ranch HOA, LLC arose from Calabria Ranch Estates, a five-lot residential subdivision east of Tucson governed by covenants, conditions, and restrictions (CC&Rs) first recorded in a 2015 original declaration. That declaration allowed the CC&Rs to be amended “at any time” by a majority vote of the owners. In January 2018, the other lot owners amended the CC&Rs by majority vote, without the consent or knowledge of Maarten Kalway, who owned Lot 2, the largest lot at nearly twenty-three acres. The amendments changed and added definitions, created new use restrictions—limiting owners’ ability to subdivide or convey lots, restricting the size and number of buildings, and reducing permitted livestock—and added new enforcement measures. Kalway sued for a declaratory judgment to invalidate the amendments, arguing they required unanimous consent. On cross-motions for summary judgment the superior court struck some provisions and upheld others, and a divided Court of Appeals largely affirmed. The Arizona Supreme Court granted review to resolve the statewide question of an HOA’s authority to amend CC&Rs. Construing restrictive covenants narrowly to reflect homeowners’ reasonable expectations, the Court held that a general-amendment-power provision permits amendment only of restrictions for which the original declaration gave sufficient notice; amendments must be reasonable and foreseeable, and a broad general-purpose statement does not supply notice of wholly new restrictions. The Court reaffirmed the notice principle of Dreamland Villa v. Raimey and confirmed that A.R.S. § 33-1817(A) does not displace this common-law limitation. Applying the “blue pencil” rule, it struck the severable unforeseeable restrictions, reversed in part, remanded, vacated the Court of Appeals’ decision, and awarded Kalway his attorney fees.

Key Issues & Findings

The Court reasoned that CC&Rs form a contract among all landowners bound by the restrictions, but they are a special type of contract that will not be enforced as to “unknown terms which are beyond the range of reasonable expectation.” Although A.R.S. § 33-1817(A) permits majority-vote amendment when the original declaration provides for it, that statute does not displace the common law, which bars some amendments even when passed by the required majority. Notice turns on the original declaration in effect when the owner purchased: an amendment must give notice that a covenant exists and can be refined, corrected, or changed in a particular way, but it cannot be “entirely new and different in character” and untethered to an original covenant. Because a broad general-amendment-power provision and a subjective general-purpose statement (to “protect the value, desirability, attractiveness and natural character of the Property”) would supply limitless justification for new restrictions, they cannot alone provide the required notice. Applying an objective test, the Court analyzed each challenged amendment individually, striking those that imposed wholly new obligations—expanded setback and “Improvement” definitions, non-dwelling-structure caps, a mandatory improvement-plan approval process, subdivision restrictions, a drastic redefinition of “livestock,” and new fire-hazard duties—while upholding amendments, such as the definition of “Garage,” that merely refined restrictions already foreshadowed by the original declaration.

Why It Matters

Kalway is a landmark decision on the outer limits of an HOA’s power to amend its CC&Rs by majority vote. It establishes a statewide common-law rule: a general grant of amendment authority, no matter how broadly worded, lets a majority amend only those restrictions of which the original declaration gave the affected owners fair notice, and any amendment must be reasonable and foreseeable. A vague statement of purpose cannot bootstrap brand-new, non-consensual burdens onto a dissenting minority. The decision cements the notice principle first articulated by the Court of Appeals in Dreamland Villa v. Raimey and confirms that A.R.S. § 33-1817(A)’s authorization of majority-vote amendments does not override that common-law protection.

For homeowners, boards, and drafters, the practical takeaway is that amendments introducing categories of restriction the original declaration never mentioned—new architectural-review approval processes, building-size or building-count caps, subdivision prohibitions, or entirely redefined use limits—are vulnerable to challenge if adopted without unanimous consent. Associations that want flexibility to add such restrictions later should say so clearly in the original declaration, and boards should assess whether a proposed amendment merely refines an existing covenant or creates a new one. The Court’s use of the “blue pencil” rule also signals that courts may surgically strike the offending, severable portions of an amendment rather than voiding an entire amendment package, and the fee award to the prevailing owner underscores the litigation exposure of overreaching amendments.

← Back to Arizona Supreme Court cases