Tag Archives: attorneys-fees

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Homeowners across the unincorporated retirement community of Green Valley sued Green Valley Recreation, Inc. (GVR), a nonprofit recreational association formed in 1978, seeking to quiet title, obtain declaratory relief, and recover damages. They contended that recorded Master Deed Restrictions (MDR), private membership agreements, and CC&Rs compelling them to maintain GVR membership and pay its dues and assessments—including a 2000 ‘new member capital fee’—were unenforceable. The homeowners argued the covenants did not touch and concern the land, were unconscionable, and lacked mutuality of obligation. The Pima County Superior Court granted summary judgment to GVR and denied both the homeowners’ post-judgment motions and GVR’s request for attorney fees. The homeowners appealed and GVR cross-appealed the fee denial. Addressing what it described as a novel Arizona issue, the Court of Appeals, Division Two, held that covenants requiring membership in a recreational association touch and concern the burdened land and are enforceable as real covenants running with the land. The court rejected the homeowners’ unconscionability and mutuality arguments and declined to apply A.R.S. §§ 33-440 and 33-442 retroactively to covenants created before those statutes took effect. It affirmed summary judgment for GVR and, reviewing for abuse of discretion, affirmed the discretionary denial of GVR’s trial-court attorney fees, while awarding GVR its reasonable attorney fees on appeal under A.R.S. § 12-341.01.

The court first addressed the trial court’s use of its preliminary-injunction findings as ‘law of the case.’ Citing Powell-Cerkoney v. TCR-Montana Ranch, the court reaffirmed that legal conclusions reached at the preliminary-injunction stage do not constitute law of the case and do not bind the court at summary judgment. It held, however, that the homeowners had waived the point by not objecting until their motion for new trial, and that any error was harmless because the servitudes were valid on other grounds, so the trial court reached the correct result.

Turning to the central issue, the court applied the traditional four elements of a real covenant from Choisser v. Eyman and Federoff v. Pioneer Title & Trust: a writing satisfying the Statute of Frauds, intent that the covenant run with the land, a covenant that touches and concerns the land, and privity of estate. GVR urged that the touch-and-concern element had been superseded by the Restatement (Third) of Property (Servitudes) and by A.R.S. §§ 33-440 and 33-442. The court declined to resolve that question, holding those statutes could not be applied retroactively under A.R.S. § 1-244 because eliminating touch-and-concern would affect substantive rights established when the covenants were created (§ 33-440 effective September 2008; § 33-442 enacted 2010).

Applying the traditional test, the court concluded the GVR covenants do touch and concern the land: each burdened owner is entitled to the benefit of recreational facilities and services, and the homeowners offered no evidence any of them was denied those benefits. The court rejected the argument that ‘benefit’ and ‘value’ should be measured subjectively, analogized GVR membership to a community pool, and relied on out-of-state authority (Lowry, Streams Sports Club, Regency Homes, Four Seasons, Homsey) holding that mandatory recreational-association membership satisfies touch-and-concern. Because GVR offers full membership and access to owners throughout its vicinity, the absence of a single common subdivision scheme was inconsequential so long as access is not unreasonably impeded by distance. The recorded agreements and CC&Rs also showed clear intent to bind the land permanently, and the writing and privity elements were undisputed; even homeowner Guldan, whose restriction was unrecorded, was bound because he had actual notice under Federoff and A.R.S. § 33-412(B).

On unconscionability—a question of law under Maxwell v. Fidelity Financial Services—the court found neither procedural nor substantive unconscionability. There was no evidence of unfair surprise or bargaining defects; the recorded documents provided notice, and the homeowners’ claims of unequal bargaining power lacked factual support. Substantively, there was no evidence of a significant cost-price disparity, and GVR’s amendment power was tempered by its articles and bylaws, members’ voting rights, and the rule that an association may not unreasonably alter the nature of its covenants (Dreamland Villa; Shamrock). The court also rejected the illusory/mutuality argument under Gates and Carroll v. Lee, holding GVR provided consideration by being obligated to perform for its members. Finally, reviewing the fee ruling for abuse of discretion, the court upheld the trial court’s denial of GVR’s fees because it had a reasonable basis—the novel, close nature of the claims and the risk of chilling future servitude litigation—while awarding GVR its fees on appeal under A.R.S. § 12-341.01.

Nickerson is a published, precedential Division Two decision that answered what the court called a novel Arizona question: whether a recorded covenant requiring membership in, and payment of dues to, a recreational association ‘touches and concerns’ the land so that it runs with the land and binds successive owners. The court held that it does, aligning Arizona with courts in several other states and confirming that mandatory recreational-association membership can be a valid, enforceable real covenant even where the burdened homes are not all within a single subdivision and the facilities are dispersed throughout the community. The key consideration is reasonable access to the facilities from the burdened property, not a common platted scheme.

The decision also matters for how associations structure and defend their governing documents and assessments. It reinforces that unconscionability is a legal question examined at contract formation, that recorded CC&Rs and deed restrictions provide the notice needed to defeat an ‘unfair surprise’ claim, and that an association’s power to amend is not ‘unfettered’ because it is checked by its articles, bylaws, members’ voting rights, and the limit against unreasonably altering the nature of the covenants. At the same time, the court’s affirmance of the trial court’s discretionary refusal to award the prevailing association its trial-court fees—because the homeowners raised novel, close questions and fee-shifting could chill legitimate servitude litigation—illustrates that prevailing on the merits does not guarantee a fee award under A.R.S. § 12-341.01.

Video overview of the ruling

An AI-generated video overview of Nickerson v. Green Valley Recreation, Inc. (228 Ariz. 528, 269 P.3d 1179 (App. 2011) (2 CA-CV 2010-0197)). Covenants requiring homeowners to maintain membership in, and pay dues and assessments to, a recreational… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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An AI-generated audio deep dive walking through the court’s reasoning and disposition in Nickerson v. Green Valley Recreation, Inc.. Generated from the case filings; verify against the linked ruling below.

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Mountain View Condominiums Homeowners Association, doing business as Arbor Point Condominiums, sued Clifford and Valerie Scott, Lawyers Title of Arizona (as trustee and Declarant), Douglas Knoles, Superstition Homes, and Inca Investment to collect common-area assessments on condominium units on which no buildings had been constructed. The complex was created in 1984 under the Horizontal Property Regime Act, when a Declaration of CC&Rs was recorded and a plat divided the land into 76 units plus common areas. After a foreclosure and a series of deeds, the defendants held Units 22 through 76. They argued they owed no assessments because their units were still vacant land with no improvements, and the trial court agreed, granting them summary judgment and attorneys’ fees on the theory that the Declaration contemplated an erected structure before assessment liability arose. The Arizona Court of Appeals, Division Two, reversed. Reading the statute, the Declaration, and the bylaws together, the court held that a condominium unit is defined as airspace carrying a vested, undivided interest in the common elements, and that ownership of that interest, not the completion of a building, triggers the duty to pay assessments. Nothing in the Declaration, the former Horizontal Property Regime Act, or the Arizona Uniform Condominium Act distinguished completed from uncompleted units for assessment purposes. The court reversed the judgment and the fee award, remanded for entry of judgment for the Association and a determination of the amounts owed, and awarded the Association its appellate attorneys’ fees.

The court framed the sole question as whether a condominium unit owner must pay assessments when no improvements have been built on the unit, and answered yes. It began with the settled rule that the rights and obligations of condominium owners regarding the common elements come from three sources, the statute, the declaration, and the bylaws, which must be read together and harmonized where possible (citing American Savings Service Corp. v. Selby, Sun-Air Estates v. Manzari, and A.R.S. section 33-1201(B)). Because the property had been submitted to a horizontal property regime under former A.R.S. sections 33-551 to 33-561, the court explained that Arizona condominium ownership consists of individual ownership of a horizontal layer of cubic airspace subject to exclusive control, together with a fractional interest held in common in the common elements (Makeever v. Lyle). The defendants’ undivided Common Area interest was appurtenant to each unit, could not be severed, and was vested as a separate parcel of real property.

Turning to the documents, the court found nothing in the Declaration distinguishing owners of completed units from owners of uncompleted ones. Because an Arizona condominium owner owns only airspace and not the underlying land, the Declaration necessarily describes a unit by physical boundaries to mark the line between the owner’s exclusive area and the common area; that boundary description does not require a structure to exist before someone becomes a unit owner obligated to pay. The bylaws and Articles of Incorporation reinforced this by defining an owner as one holding fee simple to any unit (including contract purchasers) and a member as any unit owner, all obligated to pay assessments without reference to construction.

The court then rejected the argument that the Arizona Uniform Condominium Act applied only to condominiums created after January 1, 1986, holding that section 33-1201(B) extends the Act to earlier condominiums where not in conflict. Both the former Horizontal Property Regime Act, which defined a building as the principal structure “erected or to be erected,” and the Uniform Condominium Act assess against units by percentage interest in the common elements and draw no line between finished and unfinished units. The court found persuasive Bradley v. Mullenix, which reasoned that common expenses like landscaping, snow removal, and exterior upkeep accrue regardless of whether a unit is completed. It also noted that section 33-1255(F) permits only a limited reduction (to not less than twenty-five percent) of a declarant’s assessment on units not substantially completed, and only if the declaration so provides; absent such an amendment, the defendants owed the full assessment. Concluding that the defendants took the benefits and burdens of prior ownership, including the continuing duty to pay assessments, and that treating them otherwise would produce the absurd result of membership benefits without obligations, the court reversed the summary judgment and fee award and remanded.

This published Division Two decision establishes a foundational Arizona rule that assessment liability in a condominium flows from ownership of the unit and its inseparable undivided interest in the common elements, not from whether a building has been constructed. For associations and boards, it confirms that owners of vacant or unbuilt condominium lots cannot escape common-area assessments by pointing to the absence of improvements; the grass still grows, the roads and shared systems still deteriorate, and every unit owner shares those costs in proportion to the interest fixed by the recorded documents. The opinion reads the declaration, bylaws, articles, and the governing statutes as a harmonized whole, a method that continues to guide Arizona courts interpreting community documents.

For developers, contract purchasers, and investors who acquire undeveloped condominium units, the case is a caution that taking title carries the previous owner’s continuing assessment obligations, without interruption, from the moment assessments commence. It also clarifies that the Arizona Uniform Condominium Act reaches condominiums created before its 1986 effective date where it does not conflict with the older Horizontal Property Regime Act or the recorded documents, and that the only relief for unbuilt units is the narrow statutory reduction under A.R.S. section 33-1255(F), which applies solely to declarants and only if the declaration provides for it. The reversal of the fee award further signals that a party who prevails at trial on an erroneous reading of the documents can lose both the judgment and its fees on appeal.

Video overview of the case record

An AI-generated video overview of Mountain View Condominiums Homeowners Ass’n v. Scott (No. 2 CA-CV 93-0288; 180 Ariz. 216, 883 P.2d 453 (App. 1994)). A condominium unit owner’s obligation to pay association assessments arises from unit ownership itself, which… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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An AI-generated audio deep dive walking through the court record and procedural posture in Mountain View Condominiums Homeowners Ass’n v. Scott. Generated from the case filings; verify against the linked case records below.

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The rule in one sentence

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McDowell Mountain Ranch Community Association, an Arizona nonprofit homeowners association in Scottsdale, sued homeowner James F. Simons in January 2004 for injunctive relief after he began a construction project at the rear of his home without the architectural approval his community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) required. Simons did not answer the complaint or appear at the injunction hearings; the trial court entered a permanent injunction, and the association pursued contempt proceedings until Simons began moving toward compliance. The association then sought its attorneys’ fees under CC&R Article XV, Section 15.14, which obligated an offending owner to pay “all attorney fees and court costs incurred” by the association in enforcing the CC&Rs, and it requested $8,000 in fees plus costs. Without holding the hearing Simons had asked for, the trial court crossed out the requested figure and awarded only $4,000, giving no explanation. On appeal, Division One held that CC&Rs are a contract and that a court generally must enforce a contractual fee provision, reducing the amount only where the fees are clearly or “obviously” excessive—a showing the objecting owner bears the burden to make. Finding no record support for the 50% reduction, the court vacated the fee award and remanded. Judge Orozco dissented.

The Court of Appeals began from the settled principle that a community’s CC&Rs “constitute a contract between the subdivision’s property owners as a whole and individual lot owners” (Ahwatukee Custom Estates Mgmt. Ass’n v. Turner). It distinguished contractual fee provisions from the discretionary fee statute, A.R.S. § 12-341.01(A): unlike statutory fees, a court “lacks discretion to refuse to award fees under a contractual provision” (Chase Bank of Ariz. v. Acosta), and contracts for the payment of attorneys’ fees are enforced according to their terms (Heritage Heights Home Owners Ass’n v. Esser). In Heritage Heights, the court had held that a homeowner became contractually bound to a deed provision requiring the offending owner to pay all attorneys’ fees and costs the enforcing party incurred, and that recovery of all such fees, including on appeal, had to be granted.

The court then recognized a limit drawn from Elson Development Co. v. Arizona Savings & Loan Ass’n: a contractual fee provision is “binding only to the extent that it is reasonable,” but “where the services have been rendered, and the amount stipulated is not obviously excessive, the stipulation as to the amount should govern.” Reading Section 15.14 as closer to the “all fees” language of Heritage Heights than to the fixed percentage in Elson, the court held that the association was entitled to all of its fees except those that are obviously or clearly excessive. Surveying decisions from other jurisdictions, it adopted the rule that fees fixed by a fee-shifting contract are presumptively reasonable and that the party challenging them bears the burden of proving excessiveness. Because the association had submitted two fee applications satisfying Schweiger v. China Doll Restaurant, it made a prima facie showing, and the burden shifted to Simons to demonstrate that the requested fees were clearly excessive.

Applying those rules, the court found the trial court had erred. By cutting the request in half without explanation—and without holding the hearing Simons requested—the trial court appeared to have placed the burden of proving reasonableness on the association and to have exercised the broad discretion that applies to statutory fee awards under A.R.S. § 12-341.01 and § 12-2030. That discretion is more narrowly circumscribed when the parties have contractually agreed that the prevailing party recovers all of its fees. The record did not support a determination that 50% of the association’s fees were clearly excessive, so the award was vacated. On remand, the trial court may hold a hearing to consider any evidence Simons offers and then award all fees properly incurred except those it expressly finds clearly excessive (noting that a $200 charge for a demand letter about an unrelated recreational-vehicle violation not pleaded in the complaint should be subtracted). The court also awarded the association its fees and costs on appeal under the CC&Rs and A.R.S. § 12-342, upon compliance with Ariz. R. Civ. App. P. 21.

For Arizona homeowners associations and the owners they regulate, this published opinion clarifies how much control a trial court has over attorneys’ fees when the governing documents contain an “all fees” enforcement clause. The court treats such CC&R provisions as an enforceable contract: if the association prevails and documents its fees properly, it is presumptively entitled to the full amount, and the court may not simply trim the request as it might under the discretionary fee statute. The practical effect is that the burden shifts to the objecting owner, who must come forward with evidence that specific fees are clearly or obviously excessive rather than relying on the court to police reasonableness on its own.

At the same time, the decision is not a blank check for associations. Fees must still be documented in a proper China Doll application, work unrelated to the pleaded violations can be excluded (as with the $200 recreational-vehicle demand letter here), and an owner who requests a hearing on excessiveness is generally entitled to be heard before the court rules. The opinion also drew a dissent from Judge Orozco, who read Heritage Heights and Elson to preserve the trial court’s duty to assess reasonableness and who would have affirmed the 50% reduction as an implicit finding that the fees were excessive—illustrating that the scope of judicial review over contractual fee awards remained genuinely contested.

Video overview of the case record

An AI-generated video overview of McDowell Mountain Ranch Community Association, Inc. v. James F. Simons (216 Ariz. 266, 165 P.3d 667 (App. 2007)). Mandatory CC&R fee clauses must be enforced according to their terms after covenant litigation. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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An AI-generated audio deep dive walking through the court record and procedural posture in McDowell Mountain Ranch Community Association, Inc. v. James F. Simons. Generated from the case filings; verify against the linked case records below.

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The rule in one sentence

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Three former board members and past presidents of the Val Vista Lakes Master-Planned Community Association in Gilbert, Arizona — Cheryl Marie McCoy, Marcianne Johnson, and Melissa Wilson (Scovel) — sued a group of fellow community members and former board members for defamation, false light invasion of privacy, intentional infliction of emotional distress, an Arizona Fair Housing Act violation, and private nuisance. Their claims arose from an online ‘hate and disinformation campaign’ surrounding a November 2019 board election and a June 2020 recall election that removed two of them from the Board. The Maricopa County Superior Court dismissed all counts under Rule 12(b)(6) and entered Rule 54(b) judgments. On appeal, the plaintiffs challenged only the dismissal of their defamation and false-light claims against Ken Hassen, the Kartageners, the Maidens, and Samantha Kelley (and her spouse William Suttell); the Kartageners cross-appealed the denial of their request for attorneys’ fees, expenses, and sanctions. Division One of the Arizona Court of Appeals affirmed the dismissals, holding that because the plaintiffs had run for and held the presidency of an unusually large (2,280-member) community association, they were ‘limited purpose public figures’ who had to plead falsity and actual malice — which they failed to do — and that many of the challenged statements were non-actionable opinion or political speech about contested board elections. On the cross-appeal, the court held the superior court erred in summarily denying the Kartageners’ fee-and-sanctions request and remanded for reconsideration. Because it is an unpublished memorandum decision under Rule 111(c), it is not precedential.

Reviewing the Rule 12(b)(6) dismissals de novo, the panel first rejected the plaintiffs’ procedural argument that the trial court should have converted the motions into summary judgment. Because the full text of the allegedly defamatory statements — which the defendants attached to their motions — was central to a complaint that otherwise offered only the plaintiffs’ own summaries, the court could consider those statements without conversion, consistent with Coleman v. City of Mesa and Strategic Development & Construction v. 7th & Roosevelt Partners.

The court then affirmed the threshold ruling that the plaintiffs were limited-purpose public figures. Each had not merely served on the Board but had run in elections for it and achieved the presidency of an unusually large association — the complaint alleged 2,280 members. Following the New Jersey decision Verna v. Links at Valleybrook Neighborhood Ass’n and decisions from California, Minnesota, and Wyoming, the court reasoned that HOA boards perform ‘quasi-municipal functions’ and that the Board’s composition was a matter of public concern to the community’s members. It rejected the argument that HOA governance is not of general public concern, explaining that protected speech need only concern matters interesting to ‘even a relatively small segment’ of the public, and it distinguished HOA boards from purely private boards because the legislature has extended First Amendment-type protections to association members through A.R.S. §§ 33-1804 and 33-1808. The court also found unavailing the plaintiffs’ reliance on the Planned Communities Act and their ‘private contract’ argument.

Because the plaintiffs were public figures, they had to prove — by clear and convincing evidence — falsity and actual malice under New York Times v. Sullivan, Gertz v. Robert Welch, and Dombey v. Phoenix Newspapers. The complaint, consisting largely of conclusory characterizations rather than the actual statements, failed that heightened standard under BLK III, LLC v. Skelton. Independently, the court held the statements attached to the motions were non-actionable opinion or political speech about hotly contested board elections, incapable of being proven objectively true or false, and that many were not ‘of and concerning’ all three plaintiffs. It distinguished Tarter v. Bendt because Sharon Maiden’s comment about a ‘secret’ scheme referred to ‘ex-board members,’ not a secret Board meeting. The plaintiffs conceded that their false-light claims failed if they were public figures.

On the cross-appeal, reviewed de novo, the court held the superior court erred in summarily denying the Kartageners’ request for fees and sanctions. Under A.R.S. § 12-349 a court must assess reasonable fees and expenses (and may award limited double damages) against a party who brings a claim without substantial justification — meaning groundless and not made in good faith — proven by a preponderance of the evidence; under A.R.S. § 41-1491.36 a prevailing defendant may recover fees where the complaint was frivolous, unreasonable, or without foundation. The court found McCoy’s claims against the Kartageners had no factual basis and were groundless; the Fair Housing Act claim was frivolous and was not withdrawn as to the Kartageners for roughly five months; and the private-nuisance claim had no factual or legal basis. It declined to find Johnson’s and Wilson’s public-figure arguments irrational, and remanded for the trial court to reconsider the fee-and-sanctions request in light of the decision.

This memorandum decision is a clear Arizona illustration that people who run for and serve on a homeowners’ or community association board — especially as president of a large community — can be treated as ‘limited purpose public figures’ for defamation purposes. That status matters enormously: instead of the ordinary negligence standard available to private plaintiffs, a public-figure board member must plead and prove, by clear and convincing evidence, that a challenged statement was both false and made with ‘actual malice’ (knowledge of falsity or conscious disregard of the truth). Statements of opinion and political speech about contested board elections generally cannot support a defamation claim at all. For board members bruised by online campaigns and recall fights, the case signals that heated criticism of association leadership enjoys strong First Amendment protection.

The decision also underscores the fee-and-sanctions exposure that comes with filing thin defamation and related claims. The court reversed the trial court’s routine denial of the Kartageners’ request under A.R.S. §§ 12-349 and 41-1491.36, emphasizing that a claim brought without any factual basis — such as McCoy’s claims against the Kartageners, the unfounded Fair Housing Act count, and the novel private-nuisance theory — can be ‘groundless and not made in good faith,’ exposing the filing party to attorneys’ fees, expenses, and even limited sanctions. Community-association litigants and their counsel should note both the substantive hurdle (public-figure/actual-malice) and the downside risk (mandatory fee-shifting) before suing neighbors over election-season speech.

Video overview of the ruling

An AI-generated video overview of Cheryl Marie McCoy, et al. v. Ken Hassen, et al. (1 CA-CV 21-0524). Affirmed in part, reversed in part, and remanded. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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An AI-generated audio deep dive walking through the court’s reasoning and disposition in Cheryl Marie McCoy, et al. v. Ken Hassen, et al.. Generated from the case filings; verify against the linked ruling below.

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The rule in one sentence

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Homeowner Robert Jashinsky sued his homeowners’ association, Dorada Estates Community Association, Inc., after its Design Review Committee (DRC) repeatedly denied his proposal to build an 879-square-foot backyard casita with an attached pergola. The community’s recorded Declaration gave the DRC “sole and absolute discretion” over design proposals, but internal board emails suggested the committee was searching for a reason to deny the project and ultimately relied on Design Guidelines adopted after Jashinsky’s submission. A three-day Maricopa County jury trial produced a $52,740 damages award for breach of the covenant of good faith and fair dealing and breach of the association’s duty to act reasonably, and the superior court separately granted equitable and declaratory relief ordering the association to permit the construction. On appeal, Division One affirmed. It held that the homeowner’s testimony about estimated building costs was admissible (not hearsay under State v. Printz); that the court lacked jurisdiction to review the sufficiency of the evidence because the association never moved for a new trial or renewed judgment as a matter of law (A.R.S. section 12-2102(C)); that whether the HOA acted reasonably was a fact question for the jury; that the failure to plead injunctive relief was cured by raising the issue in the joint pretrial statement; and that the equitable remedy was within the trial court’s discretion. This is an unpublished memorandum decision and is not precedential under Ariz. R. Sup. Ct. 111(c).

The Court of Appeals addressed five arguments. First, on the evidentiary challenge, the court reviewed for abuse of discretion and held that Jashinsky’s testimony about the casita’s estimated $200-per-square-foot building cost was not inadmissible hearsay. Applying State v. Printz, 125 Ariz. 300 (1980), the court explained that knowledge of value does not necessarily rest on hearsay; when a witness acquires first-hand knowledge of value through multiple negotiations or consultations rather than a single out-of-court assertion offered for its truth, the resulting estimate is admissible. Because Jashinsky derived his estimate from consultations with an architect and a contractor, the superior court did not abuse its discretion in overruling the hearsay objection.

Second, the court held it lacked jurisdiction to review the sufficiency of the evidence supporting the damages award. Under A.R.S. section 12-2102(C) and Marquette Venture Partners II, L.P. v. Leonesio, an appellant who made a Rule 50(a) motion at the close of evidence must move for a new trial or for renewed judgment as a matter of law to preserve a sufficiency challenge on appeal. Because Dorada Estates did neither, appellate jurisdiction over that issue was absent.

Third, and most significant for HOA law, the court held that whether the association acted reasonably was a factual question reserved for the jury. Even where governing documents afford broad discretion, that discretion is constrained by duties the association owes its members: the implied covenant of good faith and fair dealing (Restatement (Second) of Contracts section 205; Restatement (Third) of Property (Servitudes) section 4.1) and the duty under Restatement (Third) of Property (Servitudes) section 6.13(1)(b), (c) to treat members fairly and act reasonably in exercising discretionary powers, including design-control powers. Arizona adopted this approach in Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195 (App. 2007), and whether an association breached those duties is a question of fact (Maleki; Est. of Reinen). By awarding damages, the jury implicitly found Dorada Estates breached both duties, and the record supported that finding: the jury could have concluded the DRC gave only pretextual reasons and denied the revised request based on Design Guidelines not in effect when Jashinsky submitted it.

Fourth, the court rejected the argument that Jashinsky’s failure to plead injunctive relief barred his equitable recovery. Under Murphy Farrell Development and Carlton v. Emhardt, listing a claim as a material contested issue in the joint pretrial statement effectively amends the complaint; Jashinsky’s estoppel questions in the joint pretrial statement asked for essentially the relief he obtained. Fifth, the court held the equitable remedy was not an abuse of discretion. Whether to decline enforcement of a covenant turns on equitable considerations such as relative hardship, misconduct, the public interest, and the adequacy of other remedies (Swain; Ahwatukee; Loiselle). The court could weigh the association’s misconduct and the inadequacy of damages, because Jashinsky’s ultimate goal was permission to build, not money. The declaratory and equitable-estoppel judgment ordering the association to allow the construction was therefore affirmed, and the court awarded Jashinsky his appellate attorneys’ fees and costs under the Declaration and A.R.S. section 12-341.

This decision is a clear application of the principle that an HOA’s architectural-review discretion, even when the governing documents describe it as “sole and absolute,” is not unlimited. Division One reaffirmed that Arizona associations owe their members an implied duty of good faith and fair dealing and a duty to act reasonably in exercising design-control powers, and that a jury may find those duties breached where the record shows pretextual denials or reliance on guidelines adopted after a member’s application. For boards and design committees, the practical lesson is that broad discretionary language does not immunize a denial that a factfinder could view as arbitrary, unreasonable, or applied retroactively.

The case also illustrates important procedural and remedial points. On the procedural side, it shows that a Rule 50(a) motion alone does not preserve a sufficiency-of-the-evidence challenge for appeal; a party must also move for a new trial or renewed judgment as a matter of law under A.R.S. section 12-2102(C). On the remedial side, it shows that a court may order an association to permit a proposed modification as equitable relief, and that failing to formally plead injunctive relief is not fatal when the issue is raised in the joint pretrial statement. Although unpublished and non-precedential under Ariz. R. Sup. Ct. 111(c), the decision is a useful illustration of how Arizona courts police the outer limits of HOA architectural discretion.

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What happened and why it matters

Linda Greenberg and her neighbors, John and Eileen McGowan, own adjoining two-acre parcels in Inscription Canyon Ranch, a residential community in Williamson Valley, Arizona, that is governed by longstanding recorded Covenants, Conditions and Restrictions (CC&Rs). After the Inscription Canyon Ranch Architectural Review Committee (ICR ARC) approved the McGowans’ construction of a structure, Greenberg sued the McGowans, the ARC, and the ICR Water Users Association, Inc. The dispute centered on whether the structure was a permitted barn or a prohibited garage and whether the McGowans could keep two donkeys and a foal on their parcel. Greenberg’s operative complaint alleged breach of the CC&Rs and a violation of the homeowners’-association open-meetings statute, A.R.S. § 33-1804, and sought declaratory and injunctive relief and damages. The Yavapai County Superior Court granted summary judgment to all defendants, denied Greenberg’s requests to file a third amended complaint and for reconsideration, and awarded the defendants attorneys’ fees under the CC&Rs and A.R.S. § 12-341.01. On appeal, Division One reviewed the summary judgment de novo and affirmed, finding no genuine issue of material fact, no abuse of discretion in the procedural rulings, and no error in the fee award. The court also awarded the prevailing defendants their reasonable fees and taxable costs on appeal under the CC&Rs. The decision is an unpublished memorandum decision and is not precedential.

Reviewing the grant of summary judgment de novo, the court treated the interpretation of the CC&Rs as a question of law, giving effect to the parties’ intent as shown by the language of the document read in its entirety and the purpose for which the covenants were created (Powell v. Washburn). On the central animal question, the court rejected Greenberg’s premise that Paragraph 10 (“Livestock and Poultry”) created an exclusive list of permitted animals. Paragraph 10 expressly prohibits poultry, fowl, and swine and expressly permits horses and 4-H animal projects, but it never mentions donkeys and contains no catch-all establishing that the listed animals are the only ones allowed. Because the paragraph does not describe a class of prohibited animals, the maxim expressio unius est exclusio alterius did not apply, and reading the covenant to bar donkeys would improperly render its broad references to “livestock,” “animals,” fences, and corrals superfluous. The court reinforced this reading with other provisions: Paragraphs 1, 3, and 4 contemplate barns and outbuildings for animals of all kinds; Paragraph 6 describes a bridle path expressly for horses, mules, and donkeys; and Paragraphs 8, 13, and 19 show the drafters knew how to write comprehensive, all-encompassing prohibitions when they intended one — something Paragraph 10 conspicuously lacks. The court also noted A.R.S. § 3-1201’s definition of “equine” as including donkeys. On the barn-versus-garage issue, Greenberg conceded the structure had to date been used only as a barn (the approved use), so her theory that it might later be used as a garage presented an unripe, hypothetical dispute on which courts do not issue advisory opinions. Her breach-of-contract claim independently failed because she never disclosed a computation or measure of damages as required by Rule 26.1(a)(7); merely stating she would testify at trial could not create a triable issue under Rule 56(e). The court found no abuse of discretion in denying leave to file a third amended complaint filed 20 months into the case after discovery closed and summary judgment was entered — the amendment came late, sought to add long-known parties, would have reopened discovery, and was partly futile — and no error in denying reconsideration that merely repackaged rejected CC&R arguments. Finally, because the CC&Rs entitle the prevailing party to reasonable fees and costs and A.R.S. § 12-341.01 also applies, and because the defendants’ fee affidavits complied with Rule 54(g)(4), the fee award (including to the ARC) was proper.

For Arizona homeowners’ associations and their members, the decision illustrates a recurring principle of covenant interpretation: restrictions on the use of land are construed from the text of the recorded document as a whole, and a list of prohibited or permitted items is not treated as exhaustive unless the drafters said so. Because Paragraph 10 barred only certain animals and lacked any catch-all, the court would not read it to prohibit donkeys, and it pointed to the drafters’ use of sweeping language elsewhere in the CC&Rs as proof they knew how to impose a comprehensive ban when they wanted one. Boards, architectural committees, and owners drafting or enforcing covenants should note that ambiguity and omission tend to be resolved in favor of the free use of property, and that courts will avoid readings that render covenant language superfluous.

The case is also a practical reminder about litigation mechanics in HOA disputes. A breach-of-contract claim, even one tied to CC&Rs, still requires the plaintiff to disclose a computation and measure of damages; a promise to testify at trial will not defeat summary judgment. Motions to amend brought late — after discovery has closed and judgment entered — face steep odds, especially when they add previously known parties and would reopen discovery. And most owners bringing or defending covenant suits should anticipate that the CC&Rs’ prevailing-party fee clause, reinforced by A.R.S. § 12-341.01, can shift substantial attorneys’ fees to the losing side both in the trial court and on appeal. As an unpublished memorandum decision, however, the ruling is not precedential and may be cited only as authorized by rule.

Video overview of the ruling

An AI-generated video overview of Greenberg v. McGowan (1 CA-CV 19-0061). Greenberg showed no error in the interpretation and enforcement of the recorded CC&Rs — the covenants did not… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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An AI-generated audio deep dive walking through the court’s reasoning and disposition in Greenberg v. McGowan. Generated from the case filings; verify against the linked ruling below.

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What happened and why it matters

Viewpoint Lake sits in Sun City, Arizona, ringed by eighty-one single-family lots, the El Dorado of Sun City Condominiums, a recreation center, and a medical facility. A 1969 recorded Declaration of Restrictions made lake maintenance the responsibility of the surrounding lakefront owners but never specified how those costs should be split. After Recreation Centers of Sun City, Inc. took title to the lake and nearby golf courses in 1975 and agreed to pay half of maintenance, disputes arose over the rest. In 1979, Del Webb, Recreation Centers, and the Viewpoint Lake Homeowners Association signed an unrecorded agreement setting a $95 per-lot fee adjusted annually by the Consumer Price Index, and the parties followed that formula for nearly thirty years. In late 2008, Recreation Centers announced it would reduce its funding and proposed a lakeshore-frontage formula that more than tripled homeowner assessments. Six owners filed a certified class action, and El Dorado intervened, arguing the 1969 Declaration did not burden its condominium tract. The superior court granted summary judgment for the class and for Recreation Centers against El Dorado. On appeal, Division One of the Arizona Court of Appeals affirmed. It held that Recreation Centers had waived any challenge to the 1979 Agreement through decades of acquiescence, that A.R.S. section 33-440 did not invalidate the agreement, that the agreement lasted as long as the 1969 Declaration, and that the recorded 1969 Declaration burdened El Dorado’s contiguous land. The court awarded the class its appellate attorneys’ fees. This is an unpublished memorandum decision and is not precedent.

Reviewing the summary judgments de novo, the court declined to resolve whether the 1979 Agreement was a substantive amendment to the 1969 Declaration that would have required the majority owner vote prescribed for amendments. It instead affirmed on the alternative ground that Recreation Centers had waived any right to challenge the agreement’s validity. Waiver is the intentional relinquishment of a known right, and a party’s persistent failure to object to conduct under a covenant can result in waiver or abandonment of the restriction. Here Recreation Centers had knowingly performed under the 1979 Agreement for nearly thirty years — paying its share and accepting the CPI-based allocation without objection — so no remand for factfinding was necessary. The court reinforced this with the contract principle that a course of performance accepted or acquiesced in without objection is given great weight in interpreting an agreement (Abrams v. Horizon Corp.; Restatement (Second) of Contracts section 202(4)).

The court next rejected Recreation Centers’ argument that A.R.S. section 33-440, governing private covenants, precluded the 1979 Agreement. Because no statute is retroactive unless expressly declared (A.R.S. section 1-244) and section 33-440 took effect on September 26, 2008, the statute did not control a 1979 agreement. Even assuming it applied, the court found no conflict: the 1979 Agreement is a private covenant affecting real property under section 33-440(C)(2) and is expressly validated by section 33-440(A)(1), which recognizes pre-statute covenants and precludes only later covenants inconsistent with them. The court also declined to read section 33-440 as limited to planned communities; although declaration is defined by reference to the Planned Communities Act (section 33-1802), the separate definition of private covenant is not so limited.

Interpreting the 1979 Agreement as a question of law, the court held it was a binding settlement of a bona fide dispute rather than a terminable-at-will, short-term arrangement. The agreement adjusted assessments for any succeeding year, incorporated a Consumer Price Index escalator showing the parties contemplated future increases, and rested on the 1969 Declaration, which itself ran for thirty years with automatic ten-year renewals; the court therefore tied the agreement’s duration to that of the Declaration. The court also rejected the contention that the Viewpoint Lake Homeowners Association lacked legal capacity: a party that deals with an association as an entity and accepts value from it is estopped from later denying its capacity to contract, and nothing in the Declaration gave the Management Board the exclusive power to allocate maintenance costs.

Finally, the court held the recorded 1969 Declaration burdened El Dorado’s Tract C property. It refused to read the Declaration’s reference to future deed language as a condition precedent to imposing the burden absent clear and unequivocal language, and it found the Declaration satisfied the statute of frauds because it identified the burdened estate — Viewpoint Lake (Tract A) and all parcels adjacent to and contiguous with it — with sufficient certainty. Because Del Webb owned both tracts in 1969 and the 1971 amendment confirmed Tract C’s contiguity, anyone tracing title would have constructive notice that the Declaration encumbered Tract C from the moment of its execution.

For Arizona homeowners and associations, this decision illustrates how a long-standing course of conduct can lock in a cost-sharing arrangement even when the original governing documents are silent or arguably require a formal amendment. Recreation Centers could not escape the 1979 assessment formula it had followed for three decades: by knowingly performing under the agreement year after year, it waived any argument that the agreement was an invalid amendment or was terminable at will. The case is a reminder that boards and owners who want to preserve the right to challenge a governing arrangement must object promptly rather than acquiesce, because Arizona courts give great weight to a settled course of performance and may treat decades of acceptance as an intentional relinquishment of the right to complain.

The decision also shows how recorded declarations can bind property that never received a separate, tailored recording. The 1969 Declaration encumbered every parcel adjacent to and contiguous with Viewpoint Lake, and the court held that this description gave constructive notice to anyone tracing title to El Dorado’s condominium tract — so the burden attached from the Declaration’s execution, not from some later filing. For buyers, associations, and title examiners, the case underscores the importance of tracing the full chain of title for recorded lake-, common-area-, or subdivision-wide restrictions, and it confirms that A.R.S. section 33-440 (effective in 2008) does not retroactively unsettle covenants and agreements that predate it. Because the opinion is an unpublished memorandum decision, it is not binding precedent, but it is a useful educational example of assessment, covenant, and waiver principles in the HOA context.

Video overview of the ruling

An AI-generated video overview of Cropley v. Recreation Centers of Sun City, Inc. (1 CA-CV 10-0034). Affirmed. Recreation Centers waived any right to challenge the validity or interpretation of the 1979 Agreement… 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 Cropley v. Recreation Centers of Sun City, Inc.. Generated from the case filings; verify against the linked ruling below.

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The rule in one sentence

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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

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

Parties, Court, and Research Coverage

Key Issues & Findings