Common-Element Maintenance | A.R.S. §§ 33-561, 33-556 | 2 CA-CIV 3815
Division Two affirms that a condominium association’s majority-adopted bylaw amendment validly placed roof maintenance on individual unit owners, defeating the owners’ claim for repair costs.
Last updated July 1, 2026. Case: Casita de Castilian, Inc. v. Kenneth K. Kamrath and Mary Elizabeth Kamrath; 129 Ariz. 146, 629 P.2d 562 (App. 1981).
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
A condominium council of co-owners may, through a validly adopted majority-vote bylaw amendment, shift responsibility for maintaining a general common element (here, the roof) from the association to the individual unit owners. Such an allocation satisfies A.R.S. Section 33-561’s requirement that the council ‘make provisions for the maintenance of the common elements,’ and, absent an inequitable or disproportionate result, it does not require the unanimous consent of all co-owners.
Case Participants
Neutral Parties
- Casita de Castilian, Inc. (Plaintiff/Appellee)
Arizona non-profit corporation serving as the Council of Co-owners (apartment owners' association) for the condominium; sued to recover unpaid assessments and penalties and prevailed on the owners' roof-maintenance counterclaim. - Kenneth K. Kamrath (Defendant/Appellant)
Owner (with his wife) of two units in the condominium; counterclaimed that the association was obligated to repair the roof. - Mary Elizabeth Kamrath (Defendant/Appellant)
Owner (with her husband) of two units in the condominium; counterclaimed that the association was obligated to repair the roof. - Scott L. Taylor (Counsel)
Zipf & Henderson (Tucson)
Counsel for plaintiff/appellee Casita de Castilian, Inc. - Norris L. Ganson (Counsel)
Norris L. Ganson (solo practitioner, Tucson)
Counsel for defendants/appellants Kenneth and Mary Elizabeth Kamrath. - Ben C. Birdsall (Judge)
Arizona Court of Appeals, Division Two
Authored the opinion of the court (surname 'Birdsall' as given in the opinion). - Hathaway, C.J. (Judge)
Arizona Court of Appeals, Division Two
Chief Judge; concurred in the opinion. - Howard, J. (Judge)
Arizona Court of Appeals, Division Two
Judge; concurred in the opinion.
What happened and why it matters
Casita de Castilian, Inc., the non-profit corporation serving as the Council of Co-owners for a condominium (horizontal property regime) created under A.R.S. Section 33-551 et seq., sued unit owners Kenneth and Mary Elizabeth Kamrath to recover $4,397 in unpaid assessments plus $765 in late-payment penalties. The Kamraths counterclaimed, asserting that the association was obligated to repair and maintain the roof over their units, a general common element, and was liable for the roughly $2,393 cost of the needed repairs. The case was tried to the court on stipulated facts. The association’s original 1970 bylaws had made the corporation responsible for maintaining all common elements, but a 1975 amendment, adopted by a 92-to-14 vote of the membership and recorded, shifted roof-maintenance responsibility to the individual unit owners. The trial court ruled for the association on both its complaint and the counterclaim and awarded assessments, penalties, and attorney fees; the owners appealed only the counterclaim ruling. The Court of Appeals, Division Two, affirmed. It held that bylaws are a proper instrument for allocating maintenance responsibility, that only a majority (not unanimous) vote was required, and that assigning roof upkeep to individual owners satisfied A.R.S. Section 33-561’s requirement that the council ‘make provisions for’ maintenance. Finding no inequitable or disproportionate burden, the court denied the owners’ claimed setoff.
The Court of Appeals framed three questions: whether the corporation’s bylaws are a proper instrument for providing for maintenance of common elements; if so, whether all co-owners must agree to such a provision; and whether requiring each owner to maintain his own roof satisfies A.R.S. Section 33-561. On the first question, the court observed that A.R.S. Section 33-551(6)(b) makes roofs ‘general common elements’ unless the recorded declaration provides otherwise, and that A.R.S. Section 33-553(4) requires the declaration to describe the common elements. Here the declaration described the common elements as all real property except the individual units, so the roofs were common elements, but neither the statutes nor the declaration fixed responsibility for maintaining them. The articles of incorporation were likewise silent. The bylaws, however, did fix responsibility: the original 1970 bylaws made the corporation responsible, and the amended 1975 bylaws made each member liable for the roof covering of the apartment owned. Rejecting the owners’ argument that Article IV(A) of the declaration (which obligates owners to pay assessments to meet common-element expenses) required the association to perform the work, the court held that the provision merely obligated owners to pay assessments and did not impose a maintenance duty on the council. It therefore held the bylaws were a proper instrument.
On unanimity, the court found nothing in the statute requiring agreement of all co-owners; the only statutory unanimity requirement (A.R.S. Section 33-556) concerns withdrawing property from the regime. The court distinguished Makeever v. Lyle, then the only reported Arizona decision interpreting the condominium law, in which a majority could not convert general common elements to one owner’s exclusive use because that amounted to a taking of the other co-owners’ interests. Reallocating upkeep of a single common element was not such a taking. Reading the declaration (which called for majority approval of decisions), the articles (which let a majority change bylaws), and the statute together, the court concluded a simple majority could adopt or amend maintenance bylaws.
On the third question, the court emphasized that A.R.S. Section 33-561 requires only that the council ‘make provisions for’ maintenance and does not itself make the council responsible for the work. Surveying the 1962 FHA Model Act, the 1977 Uniform Condominium Act (which Arizona did not adopt), and comparative state statutes, the court found nothing supporting the owners’ reading. It distinguished the Florida case Thiess v. Island House Association, where an amendment shifted a disproportionate repair burden onto a minority of owners; here the owners raised no claim that the amendment was unfair, disproportionate, or inequitable. Accordingly, absent such an inequitable result, the majority could place maintenance of a common element on the individual owners, and the counterclaim failed.
This 1981 published decision is one of the earliest Arizona appellate opinions interpreting the state’s condominium (horizontal property regime) statute, and it remains instructive on how maintenance duties are allocated within a community association. The key lesson is that, under Arizona’s particular statutory language, the law does not automatically make the association responsible for maintaining every common element. A.R.S. Section 33-561 requires only that the council of co-owners ‘make provisions for’ maintenance, and the court read that phrasing to permit an association to place upkeep of a specific common element, such as each unit’s roof, on the individual owners through the governing documents. Owners and boards reviewing who is responsible for a repair should therefore look closely at the declaration, articles, and especially the bylaws rather than assuming the association must perform all common-element work.
The decision also illustrates two recurring themes in association governance disputes. First, governing documents can generally be amended by the vote specified in those documents and the statute (here a simple majority), and unanimity is required only in narrow circumstances such as withdrawing property from the regime; a maintenance reallocation is not treated as a ‘taking’ of the other owners’ interests the way converting common area to one owner’s exclusive use would be. Second, the court signaled an equitable limit: an amendment that shifts a disproportionate or unfair burden onto a minority of owners (as in the Florida Thiess case) could be vulnerable, even though the reallocation here was upheld because no such inequity was shown. Because this is a published opinion in which the Arizona Supreme Court denied review, it is binding precedent for how these older condominium instruments and statutes are construed.
Video overview of the ruling
An AI-generated video overview of Casita de Castilian, Inc. v. Kenneth K. Kamrath and Mary Elizabeth Kamrath (129 Ariz. 146, 629 P.2d 562 (App. 1981)). A condominium council of co-owners may, through a validly adopted majority-vote bylaw amendment, shift… 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 Casita de Castilian, Inc. v. Kenneth K. Kamrath and Mary Elizabeth Kamrath. 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 this case about?
A condominium association (Casita de Castilian, Inc., acting as the Council of Co-owners) sued two unit owners, the Kamraths, for $4,397 in unpaid assessments and $765 in late penalties. The owners counterclaimed that the association was required to maintain and repair their roof, a general common element, and should pay the roughly $2,393 repair cost. The Court of Appeals decided whether the association or the individual owners were responsible for that roof.
Who was responsible for maintaining the roof, and why?
The individual owners were responsible. Although a roof is a ‘general common element’ under A.R.S. Section 33-551(6)(b), neither the statute nor the declaration fixed who had to maintain it. The association’s 1975 amended bylaws made each member responsible for the roof covering of the apartment owned. The court held the bylaws were a proper place to allocate that responsibility, so the owners, not the association, had to pay for their roof repairs.
Did the association need a unanimous vote to shift roof maintenance to owners?
No. The court found nothing in the condominium statute requiring unanimous agreement to allocate maintenance duties; the only statutory unanimity requirement (A.R.S. Section 33-556) applies to withdrawing property from the regime. Reading the declaration, articles, and statute together, the court held a simple majority could adopt or amend the maintenance bylaws. Here the amendment passed 92 to 14.
Why didn't the case Makeever v. Lyle help the owners?
In Makeever v. Lyle, a majority could not convert general common elements to one owner’s exclusive use because that amounted to a taking of the other co-owners’ shared interests. This case was different: reallocating who maintains a single common element (the roof) did not take away anyone’s ownership interest, so the court held Makeever was not controlling.
What does it mean that A.R.S. Section 33-561 says the council must 'make provisions for' maintenance?
The court stressed that Arizona’s statute does not make the association responsible for doing the maintenance; it requires only that the council ‘make provisions for’ it. Comparing the FHA Model Act, the Uniform Condominium Act (which Arizona did not adopt), and other states’ laws, the court concluded that assigning roof upkeep to individual owners was a valid way to ‘make provisions for’ maintenance.
Is there any limit on shifting maintenance costs to certain owners?
Yes, an equitable one. The court distinguished the Florida case Thiess v. Island House Association, where an amendment shifted a disproportionate repair burden onto a minority of owners. The court noted the Kamraths raised no claim that the amendment here was unfair, disproportionate, or inequitable, and held that absent such an inequitable result, a majority may place maintenance of a common element on the individual owners.
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 | 129 Ariz. 146, 629 P.2d 562 (App. 1981) |
|---|---|
| Court / tribunal | Court of Appeals |
| Decision / key date | April 7, 1981 |
| Judge / panel | Birdsall, J. (author), Hathaway, C.J. (concurring), Howard, J. (concurring) |
| Parties | Casita de Castilian, Inc. (condominium council of co-owners; plaintiff/appellee) v. Kenneth K. and Mary Elizabeth Kamrath (unit owners; defendants/appellants). |
| Governing law |
|
| Topics | AssessmentsCC&RsAttorney FeesCovenants |
| Outcome / holding | A condominium council of co-owners may, through a validly adopted majority-vote bylaw amendment, shift responsibility for maintaining a general common element (here, the roof) from the association to the individual unit owners. Such an allocation satisfies A.R.S. Section 33-561's requirement that the council 'make provisions for the maintenance of the common elements,' and, absent an inequitable or disproportionate result, it does not require the unanimous consent of all co-owners. |
| Primary public source | View source opinion/order |
Parties, Court, and Research Coverage
| Reviewed source package | 1 other source file |
|---|---|
| Step-by-step docket roadmap | 8 roadmap entries |
| Video overview | Casita de Castilian, Inc. v. Kenneth K. Kamrath and Mary Elizabeth Kamrath |
| Study / briefing material | 1 section |
| FAQ / homeowner questions | 6 questions |
| Featured download links | 0 download links |
Key Issues & Findings
Casita de Castilian, Inc., the non-profit corporation serving as the Council of Co-owners for a condominium (horizontal property regime) created under A.R.S. Section 33-551 et seq., sued unit owners Kenneth and Mary Elizabeth Kamrath to recover $4,397 in unpaid assessments plus $765 in late-payment penalties. The Kamraths counterclaimed, asserting that the association was obligated to repair and maintain the roof over their units, a general common element, and was liable for the roughly $2,393 cost of the needed repairs. The case was tried to the court on stipulated facts. The association's original 1970 bylaws had made the corporation responsible for maintaining all common elements, but a 1975 amendment, adopted by a 92-to-14 vote of the membership and recorded, shifted roof-maintenance responsibility to the individual unit owners. The trial court ruled for the association on both its complaint and the counterclaim and awarded assessments, penalties, and attorney fees; the owners appealed only the counterclaim ruling. The Court of Appeals, Division Two, affirmed. It held that bylaws are a proper instrument for allocating maintenance responsibility, that only a majority (not unanimous) vote was required, and that assigning roof upkeep to individual owners satisfied A.R.S. Section 33-561's requirement that the council 'make provisions for' maintenance. Finding no inequitable or disproportionate burden, the court denied the owners' claimed setoff.
The Court of Appeals framed three questions: whether the corporation's bylaws are a proper instrument for providing for maintenance of common elements; if so, whether all co-owners must agree to such a provision; and whether requiring each owner to maintain his own roof satisfies A.R.S. Section 33-561. On the first question, the court observed that A.R.S. Section 33-551(6)(b) makes roofs 'general common elements' unless the recorded declaration provides otherwise, and that A.R.S. Section 33-553(4) requires the declaration to describe the common elements. Here the declaration described the common elements as all real property except the individual units, so the roofs were common elements, but neither the statutes nor the declaration fixed responsibility for maintaining them. The articles of incorporation were likewise silent. The bylaws, however, did fix responsibility: the original 1970 bylaws made the corporation responsible, and the amended 1975 bylaws made each member liable for the roof covering of the apartment owned. Rejecting the owners' argument that Article IV(A) of the declaration (which obligates owners to pay assessments to meet common-element expenses) required the association to perform the work, the court held that the provision merely obligated owners to pay assessments and did not impose a maintenance duty on the council. It therefore held the bylaws were a proper instrument.
On unanimity, the court found nothing in the statute requiring agreement of all co-owners; the only statutory unanimity requirement (A.R.S. Section 33-556) concerns withdrawing property from the regime. The court distinguished Makeever v. Lyle, then the only reported Arizona decision interpreting the condominium law, in which a majority could not convert general common elements to one owner's exclusive use because that amounted to a taking of the other co-owners' interests. Reallocating upkeep of a single common element was not such a taking. Reading the declaration (which called for majority approval of decisions), the articles (which let a majority change bylaws), and the statute together, the court concluded a simple majority could adopt or amend maintenance bylaws.
On the third question, the court emphasized that A.R.S. Section 33-561 requires only that the council 'make provisions for' maintenance and does not itself make the council responsible for the work. Surveying the 1962 FHA Model Act, the 1977 Uniform Condominium Act (which Arizona did not adopt), and comparative state statutes, the court found nothing supporting the owners' reading. It distinguished the Florida case Thiess v. Island House Association, where an amendment shifted a disproportionate repair burden onto a minority of owners; here the owners raised no claim that the amendment was unfair, disproportionate, or inequitable. Accordingly, absent such an inequitable result, the majority could place maintenance of a common element on the individual owners, and the counterclaim failed.
This 1981 published decision is one of the earliest Arizona appellate opinions interpreting the state's condominium (horizontal property regime) statute, and it remains instructive on how maintenance duties are allocated within a community association. The key lesson is that, under Arizona's particular statutory language, the law does not automatically make the association responsible for maintaining every common element. A.R.S. Section 33-561 requires only that the council of co-owners 'make provisions for' maintenance, and the court read that phrasing to permit an association to place upkeep of a specific common element, such as each unit's roof, on the individual owners through the governing documents. Owners and boards reviewing who is responsible for a repair should therefore look closely at the declaration, articles, and especially the bylaws rather than assuming the association must perform all common-element work.
The decision also illustrates two recurring themes in association governance disputes. First, governing documents can generally be amended by the vote specified in those documents and the statute (here a simple majority), and unanimity is required only in narrow circumstances such as withdrawing property from the regime; a maintenance reallocation is not treated as a 'taking' of the other owners' interests the way converting common area to one owner's exclusive use would be. Second, the court signaled an equitable limit: an amendment that shifts a disproportionate or unfair burden onto a minority of owners (as in the Florida Thiess case) could be vulnerable, even though the reallocation here was upheld because no such inequity was shown. Because this is a published opinion in which the Arizona Supreme Court denied review, it is binding precedent for how these older condominium instruments and statutes are construed.