CC&R Enforcement & Architectural Review | A.R.S. § 12-341.01 | 196 Ariz. 631 (1 CA-CV 98-0233)
Division One holds that enforcing CC&Rs and architectural-approval requirements by mandatory injunction is an equitable remedy, not a matter of right, and can be denied where the board acted arbitrarily and the violations caused no material harm.
Last updated July 1, 2026. Case: Ahwatukee Custom Estates Management Association, Inc. v. George M. Turner and Betty C. Turner; 196 Ariz. 631, 2 P.3d 1276 (App. 2000) (Nos. 1 CA-CV 98-0233, 1 CA-CV 98-0528).
Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.
The rule in one sentence
Although the homeowners violated the association’s CC&Rs and Architectural Committee Guidelines, the trial court did not abuse its equitable discretion in denying the association a mandatory retrospective injunction where the board had acted arbitrarily and unreasonably and the violations caused no irreparable harm. Because neither side was a prevailing party, the denial of attorneys’ fees was also affirmed.
Case Participants
Neutral Parties
- Ahwatukee Custom Estates Management Association, Inc. (Appellant)
Arizona non-profit homeowners association; plaintiff/appellant and cross-appellee that sought to enjoin the pool and compel correction of past CC&R violations. - George M. Turner (Appellee)
Owner of lot 6796; defendant/appellee and cross-appellant found to have violated the CC&Rs but against whom no mandatory injunction issued. - Betty C. Turner (Appellee)
Co-owner of lot 6796 with her husband; defendant/appellee and cross-appellant. - Neil Vincent Wake (Counsel)
Bryan Cave LLP
Counsel for Plaintiff/Appellant/Cross-Appellee ACEMA (Phoenix). - Sarah L. Chilton (Counsel)
Bryan Cave LLP
Counsel for Plaintiff/Appellant/Cross-Appellee ACEMA (Phoenix). - Roger R. Foote (Counsel)
Jackson, White, Gardner, Weech & Walker, P.C.
Counsel for Defendants/Appellees/Cross-Appellants the Turners (Mesa). - Patricia A. Terian (Counsel)
Jackson, White, Gardner, Weech & Walker, P.C.
Counsel for Defendants/Appellees/Cross-Appellants the Turners (Mesa); name reconstructed from OCR hyphenation ('Teri-an'). - Fidel (Judge)
Judge, Arizona Court of Appeals, Division One, Department E; authored the opinion. - Sheldon H. Weisberg (Judge)
Judge, Arizona Court of Appeals, Division One; concurred. - E.G. Noyes, Jr. (Judge)
Judge, Arizona Court of Appeals, Division One; concurred.
What happened and why it matters
The Ahwatukee Custom Estates Management Association, Inc. (ACEMA), an Arizona non-profit homeowners association, sued lot owners George and Betty Turner after the Turners were denied board permission to install a swimming pool and then threatened to build it without approval. ACEMA sought to enjoin the pool and also asked for a mandatory injunction directing the Turners to correct three past violations of the subdivision’s CC&Rs and Architectural Committee Guidelines: adding fill and grading their lot without board approval, and building two fences without board approval. A special master heard three days of testimony, visited the site, and found the Turners had violated the CC&Rs in each respect, but concluded ACEMA suffered no irreparable injury and was not entitled to corrective relief. The trial court adopted those findings and denied both sides’ attorneys’ fees for lack of a prevailing party. On appeal, Division One of the Arizona Court of Appeals treated the CC&Rs as a contract among the subdivision’s owners and reviewed the injunction and fee rulings for abuse of discretion. It affirmed. The court held that a mandatory retrospective injunction should not issue to enforce approval requirements the board had applied arbitrarily and unreasonably, especially where the interrelated, largely invisible violations caused no material harm and ACEMA had delayed until after construction. Invoking the maxim that one who seeks equity must do equity, the court left the board with prospective authority to require approval of any future pool, and affirmed the denial of fees under the CC&Rs’ fee clause and A.R.S. section 12-341.01 because neither party prevailed.
The court began with the governing framework: CC&Rs constitute a contract between the subdivision’s property owners as a whole and the individual lot owners, so their interpretation is a question of law reviewed de novo (Arizona Biltmore Estates Ass’n v. Tezak). Factual findings are binding unless clearly erroneous (Lee Dev. Co. v. Papp), and the grant or denial of both injunctive relief and attorneys’ fees rests in the sound discretion of the trial court (Financial Associates v. Hub Properties; A.R.S. section 12-341.01).
On the grading-and-fill violation, the court agreed the Turners had filled and graded without board approval in breach of the CC&Rs and Guidelines, but held no equitable relief was warranted. The Turners had graded to conform to the developer’s FS-20 Grading and Drainage Plan; the CC&Rs did not clearly say whether the proper grade was the FS-20 plan or the condition at time of purchase, and ambiguities in restrictive covenants are resolved in favor of the free use of property. The board could not even establish the grade at time of purchase, the City had issued permits based on the FS-20 plan, ACEMA proved no drainage disruption or irreparable injury, and it waited until after the house and fences were built to sue. Enforcement of restrictive covenants by injunction is not a matter of right but is governed by equity, weighing relative hardships, the public interest, party misconduct, delay, and the adequacy of other remedies (McRae v. Lois Grunow Memorial Clinic). A mandatory injunction should not issue to enforce an approval requirement withheld arbitrarily and unreasonably (Young v. Tortoise Island; Donoghue v. Prynnwood), and ‘one who seeks equity must do equity.’ The board’s grading demands were arbitrary and unreasonable.
The fencing violations followed the same logic. The 6796/6795 fence had been restored to a height compliant with the Phoenix City Code (which measures pool-fence height from the higher adjacent lot); forcing the Turners to lower it would have reinstated a code violation, an arbitrary demand. The 6796/6794 fence atop the retaining wall was the closest question, and in isolation ACEMA might have shown adequate harm under Continental Oil Co. v. Fennemore by pointing to the diluted protection of the deed restrictions. But the court declined to view it in isolation: it was one of a cluster of interrelated violations arising from the arbitrary grading dispute, the changes were invisible to the public and caused no material harm, and the board’s future enforcement authority was adequately preserved by the judgment’s requirement that any future pool obtain board approval. The court also upheld denial of a new trial under Rule 59(A)(4) because ACEMA failed to show it could not have discovered the neighbors’ withdrawn consent with reasonable diligence. Finally, under CC&R Article IX and A.R.S. section 12-341.01, neither party prevailed: ACEMA established the violations and preserved prospective authority but lost its principal claim for retrospective relief, so each side bore its own fees.
The decision is a leading Arizona statement that enforcing CC&Rs and architectural-approval requirements through a mandatory injunction is an equitable remedy, not an automatic right. Even when a board proves that an owner technically violated the governing documents, a court may withhold retrospective relief where the board itself acted arbitrarily or unreasonably, where the violations caused no material or irreparable harm, and where the association delayed enforcement until after the improvements were built. The maxim that ‘one who seeks equity must do equity’ gives trial courts broad discretion to deny an order compelling removal of structures that are invisible to the community and harmless in fact.
For associations and owners alike, the case underscores several practical points: approval standards must be applied consistently and reasonably; a board that takes an unreasonable position on one issue may find its related enforcement demands treated as part of a single, tainted ‘cluster’; and prevailing-party fee clauses cut both ways, so a mixed result where the association proves violations but loses its main remedy can leave each side paying its own attorneys’ fees. Because the opinion is published, it remains citable precedent on the equitable limits of covenant enforcement and on when a homeowners association is, and is not, a ‘prevailing party.’
Video overview of the ruling
An AI-generated video overview of Ahwatukee Custom Estates Management Association, Inc. v. George M. Turner and Betty C. Turner (196 Ariz. 631, 2 P.3d 1276 (App. 2000) (Nos. 1 CA-CV 98-0233, 1 CA-CV 98-0528)). Although the homeowners violated the association’s CC&Rs and Architectural Committee Guidelines, the trial court did… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.
Listen: audio deep dive on the ruling
An AI-generated audio deep dive walking through the court’s reasoning and disposition in Ahwatukee Custom Estates Management Association, Inc. v. George M. Turner and Betty C. Turner. Generated from the case filings; verify against the linked ruling below.
Step-by-step litigation record
Complete source-document index
This index contains 0 PDFs, 1 other source file from the reviewed public source packet. Byte-identical copies are listed once. Files are ordered by the date and sequence in the public filename, and party filings or research materials are labeled separately from court rulings.
Cap Opinion
Type: Decision or judgment
Decision document; read it to understand the controlling result before moving to later filings.
FAQ
What was Ahwatukee Custom Estates Management Association v. Turner about?
The Ahwatukee Custom Estates Management Association (ACEMA) sued homeowners George and Betty Turner after they were denied permission to build a swimming pool and threatened to build it anyway. ACEMA also sought a mandatory injunction ordering the Turners to undo three past violations of the CC&Rs and architectural guidelines: unapproved grading and fill, and two fences built without board approval. A special master and the trial court found the violations occurred but denied corrective relief.
What did the Arizona Court of Appeals decide?
Division One affirmed the trial court in full. It held the Turners did violate the CC&Rs, but that the trial court did not abuse its discretion in denying ACEMA a mandatory retrospective injunction, because the board had acted arbitrarily and unreasonably and the violations caused no irreparable or material harm. It also affirmed the denial of attorneys’ fees to both sides.
Why didn't the HOA get an injunction even though it won on the violations?
Because enforcing restrictive covenants by injunction is an equitable remedy, not an automatic right. Courts weigh relative hardship, the public interest, party misconduct, delay, and the adequacy of other remedies. The court found the board’s grading demands arbitrary and unreasonable, the changes largely invisible and harmless, and that ACEMA had waited until after construction to sue. Under the maxim that ‘one who seeks equity must do equity,’ the trial court could deny retrospective relief.
What happened with the two fences?
The court treated both fences as part of a single cluster of interrelated violations tied to the arbitrary grading dispute. Forcing the Turners to lower the 6796/6795 fence would have reinstated a Phoenix pool-fence code violation. The 6796/6794 fence atop the retaining wall was a closer call, but because it was invisible from the street, caused no material harm, and the board’s future authority was preserved, the court declined to order its removal.
Did either party recover attorneys' fees?
No. The CC&Rs’ Article IX fee clause and A.R.S. section 12-341.01 award fees to a prevailing party, but the trial court found, and the Court of Appeals agreed, that neither side prevailed. ACEMA established the violations and preserved its future enforcement authority but lost its principal claim for a mandatory injunction, so each party bore its own fees and costs, including on appeal.
Is this decision binding precedent in Arizona?
Yes. Unlike an unpublished memorandum decision, this is a published opinion of the Arizona Court of Appeals, reported at 196 Ariz. 631 and 2 P.3d 1276. It remains citable authority on the equitable limits of enforcing CC&Rs and architectural-approval requirements and on when a homeowners association is a ‘prevailing party.’
Case Dossier
This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.
Case Summary
| Case ID / citation | 196 Ariz. 631, 2 P.3d 1276 (App. 2000) (Nos. 1 CA-CV 98-0233, 1 CA-CV 98-0528) |
|---|---|
| Court / tribunal | Court of Appeals |
| Decision / key date | June 6, 2000 |
| Judge / panel | Fidel (author), Sheldon H. Weisberg, E.G. Noyes, Jr. |
| Parties | Ahwatukee Custom Estates Management Association, Inc. (Plaintiff/Appellant/Cross-Appellee) v. George M. and Betty C. Turner (Defendants/Appellees/Cross-Appellants) |
| Governing law |
|
| Topics | CC&RsArchitectural ReviewAttorney FeesProcedure |
| Outcome / holding | Although the homeowners violated the association's CC&Rs and Architectural Committee Guidelines, the trial court did not abuse its equitable discretion in denying the association a mandatory retrospective injunction where the board had acted arbitrarily and unreasonably and the violations caused no irreparable harm. Because neither side was a prevailing party, the denial of attorneys' fees was also affirmed. |
| Primary public source | View source opinion/order |
Parties, Court, and Research Coverage
| Reviewed source package | 1 other source file |
|---|---|
| Step-by-step docket roadmap | 6 roadmap entries |
| Video overview | Ahwatukee Custom Estates Management Association, Inc. v. George M. Turner and Betty C. Turner |
| Study / briefing material | 1 section |
| FAQ / homeowner questions | 6 questions |
| Featured download links | 0 download links |
Key Issues & Findings
The Ahwatukee Custom Estates Management Association, Inc. (ACEMA), an Arizona non-profit homeowners association, sued lot owners George and Betty Turner after the Turners were denied board permission to install a swimming pool and then threatened to build it without approval. ACEMA sought to enjoin the pool and also asked for a mandatory injunction directing the Turners to correct three past violations of the subdivision's CC&Rs and Architectural Committee Guidelines: adding fill and grading their lot without board approval, and building two fences without board approval. A special master heard three days of testimony, visited the site, and found the Turners had violated the CC&Rs in each respect, but concluded ACEMA suffered no irreparable injury and was not entitled to corrective relief. The trial court adopted those findings and denied both sides' attorneys' fees for lack of a prevailing party. On appeal, Division One of the Arizona Court of Appeals treated the CC&Rs as a contract among the subdivision's owners and reviewed the injunction and fee rulings for abuse of discretion. It affirmed. The court held that a mandatory retrospective injunction should not issue to enforce approval requirements the board had applied arbitrarily and unreasonably, especially where the interrelated, largely invisible violations caused no material harm and ACEMA had delayed until after construction. Invoking the maxim that one who seeks equity must do equity, the court left the board with prospective authority to require approval of any future pool, and affirmed the denial of fees under the CC&Rs' fee clause and A.R.S. section 12-341.01 because neither party prevailed.
The court began with the governing framework: CC&Rs constitute a contract between the subdivision's property owners as a whole and the individual lot owners, so their interpretation is a question of law reviewed de novo (Arizona Biltmore Estates Ass'n v. Tezak). Factual findings are binding unless clearly erroneous (Lee Dev. Co. v. Papp), and the grant or denial of both injunctive relief and attorneys' fees rests in the sound discretion of the trial court (Financial Associates v. Hub Properties; A.R.S. section 12-341.01).
On the grading-and-fill violation, the court agreed the Turners had filled and graded without board approval in breach of the CC&Rs and Guidelines, but held no equitable relief was warranted. The Turners had graded to conform to the developer's FS-20 Grading and Drainage Plan; the CC&Rs did not clearly say whether the proper grade was the FS-20 plan or the condition at time of purchase, and ambiguities in restrictive covenants are resolved in favor of the free use of property. The board could not even establish the grade at time of purchase, the City had issued permits based on the FS-20 plan, ACEMA proved no drainage disruption or irreparable injury, and it waited until after the house and fences were built to sue. Enforcement of restrictive covenants by injunction is not a matter of right but is governed by equity, weighing relative hardships, the public interest, party misconduct, delay, and the adequacy of other remedies (McRae v. Lois Grunow Memorial Clinic). A mandatory injunction should not issue to enforce an approval requirement withheld arbitrarily and unreasonably (Young v. Tortoise Island; Donoghue v. Prynnwood), and 'one who seeks equity must do equity.' The board's grading demands were arbitrary and unreasonable.
The fencing violations followed the same logic. The 6796/6795 fence had been restored to a height compliant with the Phoenix City Code (which measures pool-fence height from the higher adjacent lot); forcing the Turners to lower it would have reinstated a code violation, an arbitrary demand. The 6796/6794 fence atop the retaining wall was the closest question, and in isolation ACEMA might have shown adequate harm under Continental Oil Co. v. Fennemore by pointing to the diluted protection of the deed restrictions. But the court declined to view it in isolation: it was one of a cluster of interrelated violations arising from the arbitrary grading dispute, the changes were invisible to the public and caused no material harm, and the board's future enforcement authority was adequately preserved by the judgment's requirement that any future pool obtain board approval. The court also upheld denial of a new trial under Rule 59(A)(4) because ACEMA failed to show it could not have discovered the neighbors' withdrawn consent with reasonable diligence. Finally, under CC&R Article IX and A.R.S. section 12-341.01, neither party prevailed: ACEMA established the violations and preserved prospective authority but lost its principal claim for retrospective relief, so each side bore its own fees.
The decision is a leading Arizona statement that enforcing CC&Rs and architectural-approval requirements through a mandatory injunction is an equitable remedy, not an automatic right. Even when a board proves that an owner technically violated the governing documents, a court may withhold retrospective relief where the board itself acted arbitrarily or unreasonably, where the violations caused no material or irreparable harm, and where the association delayed enforcement until after the improvements were built. The maxim that 'one who seeks equity must do equity' gives trial courts broad discretion to deny an order compelling removal of structures that are invisible to the community and harmless in fact.
For associations and owners alike, the case underscores several practical points: approval standards must be applied consistently and reasonably; a board that takes an unreasonable position on one issue may find its related enforcement demands treated as part of a single, tainted 'cluster'; and prevailing-party fee clauses cut both ways, so a mixed result where the association proves violations but loses its main remedy can leave each side paying its own attorneys' fees. Because the opinion is published, it remains citable precedent on the equitable limits of covenant enforcement and on when a homeowners association is, and is not, a 'prevailing party.'