Tag Archives: cc-and-rs

Gordon Gross, et al. v. The Shores at Rainbow Lake Community Association

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Gordon Gross, et al. v. The Shores at Rainbow Lake Community Association

1 CA-CV 23-0394 · Court of Appeals · October 10, 2024

At a Glance

Parties Owners challenged a 2021 amendment that banned short-term rentals and limited occupancy by unrelated renters in a planned community.
Panel Presiding Judge Samuel A. Thumma, Judge Jennifer B. Campbell, Judge Michael J. Brown

Summary

Gross applied Kalway in a practical, highly relevant HOA setting: rental restrictions. The community amended its CC&Rs to prohibit rentals shorter than 30 days and to bar more than four unrelated individuals from leasing a property. The Court of Appeals split the amendment. It held the short-term rental ban was invalid because it prohibited conduct the earlier CC&Rs had allowed and was not reasonably foreseeable from the original declaration. But it upheld the unrelated-persons occupancy limit because that restriction was viewed as a clarification and refinement of existing use limits rather than a brand-new burden. The opinion is one of the clearest Arizona appellate examples of how courts separate an impermissible new use restriction from a permissible refinement of an existing one.

Holding

The court held that the new short-term rental ban was invalid under Arizona amendment-notice principles, but the cap on unrelated renters was valid because it was reasonably foreseeable from the existing CC&Rs.

Reasoning

The court framed the dispute as one about owner notice and reasonable expectations. A recorded declaration can be amended, but only within the fair scope of what the original declaration put buyers on notice might later be refined. Under that approach, an amendment cannot simply reverse an existing freedom and call the result a refinement.

Applying that rule, the short-term rental ban was too much because the preexisting documents had not warned owners that leasing could later be cut off in that way. The unrelated-occupants limit came out differently because the original scheme already contained structure about occupancy and residential use, making the later cap a closer fit with the bought-for framework.

Why This Matters for HOAs

Gross is one of the best Arizona Court of Appeals cases for short-term-rental disputes after Kalway. It gives both sides a usable analytic framework for asking whether an amendment is genuinely foreseeable or instead a new restriction in disguise.

Boards considering rental amendments should read it before drafting. Homeowners challenging new lease limits will cite it often.

Topics

cc-and-rsprocedure

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Jie Cao, et al. v. PFP Dorsey Investments, LLC, et al.

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Jie Cao, et al. v. PFP Dorsey Investments, LLC, et al.

1 CA-CV 21-0275 · Court of Appeals · July 7, 2022

At a Glance

Parties Minority condominium owners challenged a forced sale of their unit after a supermajority termination vote under the condominium statute.
Panel Presiding Judge Paul J. McMurdie, Chief Judge Kent E. Cattani, Vice Chief Judge David B. Gass
Statutes interpreted

Summary

This case addressed a forced condominium termination and sale in which the buyer had already acquired most of the units and then used its voting power to approve termination. The Court of Appeals held that Arizona’s condominium-termination statute is constitutional as applied when owners bought subject to a declaration that incorporated the statute. But the court also held that later substantive statutory changes cannot simply be folded into the declaration without fair notice. Because the trial court had applied the 2018 version of A.R.S. § 33-1228 instead of the earlier version in place when the owners bought, the Court of Appeals reversed and remanded. The opinion is one of the most important Arizona appellate cases on condo termination, minority-owner protections, and the use of Kalway-style notice principles outside classic HOA amendment disputes.

Holding

The court held that A.R.S. § 33-1228 was not unconstitutional as applied in principle, but the owners were entitled to application of the earlier statutory version in effect when they purchased because later substantive changes were not incorporated without adequate notice.

Reasoning

The panel first rejected the broad argument that every forced condominium termination under § 33-1228 is an unconstitutional private taking. It reasoned that the authority for termination came from contract as well as statute because buyers accepted a declaration incorporating condominium law.

The harder issue was which version of the statute governed. Drawing on notice and reasonable-expectations principles, the court concluded that a declaration’s generic incorporation of laws ‘as amended from time to time’ does not automatically bind owners to later substantive changes that alter core property rights in an unforeseen way. Because the 2018 amendments changed how dissenting owners were treated, the earlier purchase-time version controlled.

Why This Matters for HOAs

Cao is unusually important for Arizona condominium practitioners. It limits after-the-fact use of statutory changes to restructure owners’ exit rights and compensation in termination deals.

For minority owners, the case provides serious appellate support for arguing that purchase-time expectations and fair notice still matter even when the declaration broadly references future statutory amendments.

Topics

cc-and-rsprocedurevoting-and-elections

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Richard B. Nolan and Patricia E. Nolan v. Starlight Pines Homeowners Association

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Richard B. Nolan and Patricia E. Nolan v. Starlight Pines Homeowners Association

1 CA-CV 06-0572 · Court of Appeals · October 9, 2007

At a Glance

Parties Homeowners sued the HOA claiming disability discrimination and breach of contract because certain common-area access points were not wheelchair accessible.
Panel Judge Johnsen
Statutes interpreted

Summary

The Nolans claimed their HOA discriminated against a wheelchair-bound owner by failing to make parts of the development’s common areas easier to access. They also argued the HOA breached the CC&Rs and created a nuisance. The Court of Appeals affirmed summary judgment for the HOA. The court recognized that Arizona fair-housing law can require accommodations in some settings, but it concluded the specific features challenged here did not create a viable claim on the record presented. It also held that the CC&R language granting owners a right to use common areas did not itself promise that the HOA would retrofit those areas to make them accessible in every circumstance. The opinion is useful because it shows the limits of access claims when the governing documents and the statutory theory do not fit the facts tightly enough.

Holding

The court held that the homeowners had not shown the HOA violated Arizona fair-housing law, breached the CC&Rs, or created a nuisance based on the common-area access conditions at issue.

Reasoning

On the contract claim, the court read the CC&Rs as granting a nonexclusive right to use common areas, not as an affirmative promise by the association to redesign or reconstruct those areas to accommodate every disability-related access problem. The language did not support the broader duty the homeowners urged.

On the statutory discrimination theory, the court distinguished earlier Arizona fair-housing cases in which an HOA had refused a specific accommodation request tied directly to housing access or occupancy. In this record, the challenged conditions and the requested changes did not establish the same kind of legally required accommodation claim. That left the nuisance theory unsupported as well.

Why This Matters for HOAs

This case matters because it shows that not every accessibility dispute in an HOA becomes a winning fair-housing or contract case. Plaintiffs still need a clear link between the requested accommodation, the statutory duty, and the actual housing-related barrier.

For boards, Nolan is not a license to ignore disability issues. It is a reminder that the analysis is fact-specific and that document language and the exact accommodation request matter.

Topics

fair-housingcc-and-rs

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John W. Shamrock, Arthur A. and Lois J. Gilcrease Family Trust, David H. Hemmings, The Pollard Family Trust, J.C. & C. Investments, L.L.C., Edward E. Smith and Margaret Smith, Lewis Revocable Trust, Joe Kaczmarski and Ada Kaczmarski, and William R. Detor v. Wagon Wheel Park Homeowners Association

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John W. Shamrock, Arthur A. and Lois J. Gilcrease Family Trust, David H. Hemmings, The Pollard Family Trust, J.C. & C. Investments, L.L.C., Edward E. Smith and Margaret Smith, Lewis Revocable Trust, Joe Kaczmarski and Ada Kaczmarski, and William R. Detor v. Wagon Wheel Park Homeowners Association

1 CA-CV 02-0403 · Court of Appeals · August 26, 2003

At a Glance

Parties Subdivision lot owners challenged a nonprofit association’s claim that ownership automatically made them mandatory members obligated to pay assessments.
Panel Judge Ann A. Scott Timmer, Presiding Judge Daniel A. Barker, Judge William F. Garbarino
Statutes interpreted

Summary

This case asks a basic but important HOA-law question: how do you turn a neighborhood with recorded restrictions into one with mandatory HOA membership and compulsory assessments? The court answered that it must be done through recorded deed restrictions, not just through articles of incorporation or bylaws of a nonprofit association. Wagon Wheel argued that its corporate documents and amended bylaws made all lot owners mandatory members. The Court of Appeals disagreed and held that owners in an existing subdivision cannot be forced into mandatory membership unless the recorded land restrictions themselves impose that burden in the manner allowed by the existing declaration. Because those recorded restrictions did not do so during the relevant period, the association’s assessments and related encumbrances against nonmembers were not valid for that period.

Holding

The court held that mandatory membership in a new HOA for owners in an existing subdivision can be imposed only through properly recorded deed restrictions, not by corporate articles or bylaws alone.

Reasoning

The court began with nonprofit-corporation law and the principle that membership cannot be imposed without consent. It then turned to real-property law and explained that mandatory membership and assessment duties must arise from recorded covenants that run with the land.

The association tried to combine old declarations, articles of incorporation, and later bylaws into a single functional declaration. The court rejected that approach. The Planned Communities Act defined which associations are covered, but it did not supply a shortcut for creating mandatory membership burdens. Because the existing recorded declaration had not yet been properly amended to require membership, the association’s internal corporate documents could not do the job.

Why This Matters for HOAs

This is a major Arizona authority on whether an association can bootstrap itself into mandatory status. It is especially useful in disputes involving older subdivisions, informal neighborhood associations, and retrofitted assessment schemes.

For boards and developers, the lesson is blunt: if the burden is supposed to run with the land, it must be created and amended through the recorded land documents, not by internal corporate paperwork.

Topics

cc-and-rsassessmentsboard-governance

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David C. Johnson and Wendee L. Johnson v. The Pointe Community Association, Inc., Patrick Boyle, and Carol Boyle

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David C. Johnson and Wendee L. Johnson v. The Pointe Community Association, Inc., Patrick Boyle, and Carol Boyle

205 Ariz. 485 (Ct. App. 2003), 1 CA-CV 02-0160 · Court of Appeals · July 31, 2003

At a Glance

Parties Homeowners sued their HOA and neighbors after the HOA declined to require compliance with architectural and exterior-maintenance restrictions in the declaration.
Panel Judge Snow

Summary

The Johnsons claimed their HOA should have required their neighbors to obtain approval for an exterior stucco change and should have enforced declaration provisions dealing with exposed wiring. The trial court sided with the HOA after deciding it should defer to the association’s choices so long as they were made in good faith. The Court of Appeals vacated that ruling. It explained that recorded restrictions are contracts and that courts do not simply hand off contract interpretation to an HOA board whenever the text can be judicially read and applied. The opinion is useful because it separates deference to discretionary community management from the court’s independent role in interpreting and enforcing governing documents. Associations are not free to treat clear restrictions as optional just because they believe a relaxed approach is sensible.

Holding

The court held that the superior court erred by deferring as a matter of public policy to the HOA’s good-faith decisions on declaration compliance instead of independently analyzing the governing documents and the claimed violations.

Reasoning

The court treated the declaration as a contract running with the land and emphasized that contract interpretation remains a judicial function. That meant the trial court first needed to decide what the governing language required before deciding whether the HOA or the neighbors had complied.

The opinion rejected a blanket rule that would insulate HOA enforcement decisions whenever the board claimed good faith. The court distinguished between areas where an HOA truly exercises granted discretion and situations where the declaration itself imposes concrete obligations. Where the document speaks clearly, a court must determine its meaning and then decide whether it was violated.

Why This Matters for HOAs

This is a foundational Arizona case for homeowners arguing selective or non-enforcement. It limits the idea that a board can avoid judicial review by labeling a dispute as an exercise of association discretion.

For boards, the case is a warning that they need a document-based reason for enforcement choices, especially when the declaration imposes specific exterior-control or maintenance rules.

Topics

cc-and-rsarchitectural-reviewselective-enforcement

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Scott Canady, Ralph and Margaret Canady, and Pamela Garapich v. Prescott Canyon Estates Homeowners Association, Prescott Canyon Estates Homeowners Association Board of Directors, and Don Larson, President

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Scott Canady, Ralph and Margaret Canady, and Pamela Garapich v. Prescott Canyon Estates Homeowners Association, Prescott Canyon Estates Homeowners Association Board of Directors, and Don Larson, President

204 Ariz. 91 (Ct. App. 2002), 1 CA-CV 02-0138 · Court of Appeals · November 26, 2002

At a Glance

Parties Disabled adult son and his parents, plus a seller, sued the HOA after the HOA refused to waive an age-restriction rule in a senior community.
Panel Judge Ehrlich, Presiding Judge William F. Garbarino, Judge Jon W. Thompson
Statutes interpreted

Summary

This case arose after a 55-plus community refused to let a severely developmentally disabled 26-year-old live with his qualifying parents because the community’s CC&Rs separately barred residents under age 35. The Court of Appeals held that Arizona and federal fair-housing law required the association to make a reasonable accommodation. The court rejected the HOA’s argument that allowing the son to live there would destroy the community’s lawful status as housing for older persons. It explained that the older-housing exemption protects age-based occupancy rules from familial-status claims, but it does not erase the separate duty to accommodate disability. The court also emphasized that accommodation law can require changing an otherwise valid rule when that change is necessary to give a disabled person an equal opportunity to use and enjoy housing.

Holding

The court held that the HOA violated Arizona fair-housing law by refusing a reasonable disability accommodation and that granting the accommodation would not jeopardize the community’s 55-plus status.

Reasoning

The court started with the disability-accommodation provisions in the Arizona Fair Housing Act and the parallel federal statute. It treated federal case law as persuasive because the Arizona provisions are materially similar. Under those statutes, a facially neutral rule can still be unlawful if the association refuses a reasonable exception that is necessary for a disabled person to use and enjoy housing on equal terms.

The HOA argued that its age restriction was lawful and that a waiver would undercut the development’s status as housing for older persons. The court disagreed. Because at least one occupant in the household would still be over 55, the statutory occupancy threshold stayed intact. And making an exception to comply with disability law did not show abandonment of the community’s senior-housing purpose. The accommodation was therefore both legally required and practically compatible with the governing scheme.

Why This Matters for HOAs

This is one of the clearest Arizona HOA cases on disability accommodations. Boards cannot assume that a valid CC&R or age restriction automatically ends the analysis when a disability-related request is made.

For homeowners and counsel, the case is a strong reminder that fair-housing duties can override otherwise enforceable private-use restrictions when a targeted exception is necessary and reasonable.

Topics

fair-housingcc-and-rs

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State of Arizona, et al. v. Foothills Reserve Master Owners Association, Inc.

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State of Arizona, et al. v. Foothills Reserve Master Owners Association, Inc.

CV-23-0292-PR · Arizona Supreme Court · January 28, 2025

At a Glance

Parties The State and a master-planned-community HOA disputed compensation after condemnation of homeowners’ easement rights in common areas.
Panel Chief Justice Ann A. Scott Timmer, Vice Chief Justice John R. Lopez IV, Justice Clint Bolick, Justice James P. Beene, Justice William G. Montgomery, Justice Kathryn H. King, Justice John Pelander
Statutes interpreted

Summary

Foothills Reserve is a recent Arizona Supreme Court HOA case involving condemnation of community rights in common areas. The homeowners in a master-planned community held appurtenant easements in HOA-owned open-space parcels. When the State condemned those easements for the South Mountain Freeway project, the key dispute became whether the homeowners could recover not just the value of the easements themselves, but also severance or proximity damages for the reduced value of their homes. The Arizona Supreme Court said yes. It held that appurtenant easements are part of the owners’ larger parcel for condemnation purposes and that A.R.S. § 12-1122(A)(2) allows severance damages in those circumstances. The case is not a typical internal-governance dispute, but it is directly useful whenever an HOA represents owners concerning common-area easement rights created by a declaration, plat, or master-plan structure.

Holding

Homeowners may recover severance-type damages when appurtenant easements in HOA common areas are condemned, because those easements are part of the owners’ larger parcel for purposes of A.R.S. § 12-1122(A)(2).

Reasoning

The court treated the owners’ easements as real property interests attached to and running with their homes. Because the homes and the easement rights form one integrated property package, taking the easements can damage the remaining homes even when the State does not physically take the lots themselves.

The court also relied on the declaration and plat structure of the community. The homeowners had both positive and negative easement interests in the common areas, and the HOA was authorized to represent them in condemnation proceedings. That framework supported a damages analysis that looked beyond the common-area parcel alone.

Why This Matters for HOAs

For Arizona HOAs, the case confirms that owner easement rights in common areas are not abstract amenities. They are compensable property interests. That matters in condemnation, utility, roadway, and infrastructure disputes involving common-area burdens.

The decision also reinforces the representative role of an HOA when the declaration authorizes the association to act on behalf of owners whose appurtenant rights are at stake.

Topics

procedurecc-and-rs

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Condos v. Home Development Co.

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Condos v. Home Development Co.

77 Ariz. 129, 267 P.2d 1069 (1954) · Arizona Supreme Court · March 15, 1954

At a Glance

Parties A developer and subdivision owners sought to stop a lot owner from selling liquor in violation of subdivision restrictions.
Panel Chief Justice Phelps

Summary

Condos is another leading Arizona case on abandonment and selective enforcement of deed restrictions. The challenged covenant barred liquor sales on lots in a subdivision except for one specifically permitted lot. The defendants argued that many other restrictions had been violated over time and that the overall scheme had therefore been abandoned, making the liquor restriction unenforceable. The Supreme Court rejected that argument. It explained that each material restriction can remain separately enforceable unless the violations are so broad and severe that they show abandonment of the entire general plan. Tolerating breaches of other, different restrictions does not automatically waive a distinct covenant that still has substantial value to residents. The court also said a government-issued liquor license did not override the private covenant. This opinion remains helpful when an HOA or homeowner needs to distinguish unrelated past violations from the specific covenant currently being enforced.

Holding

Violations of some subdivision restrictions do not automatically destroy a separate covenant, and a private restriction can still be enforced unless the evidence shows abandonment of the entire plan.

Reasoning

The court examined the actual violations and concluded they were not so extensive or so closely tied to the liquor covenant as to prove abandonment of the whole scheme. Minor or different departures from other restrictions did not impair the continued value of the no-liquor restriction to neighboring residents.

The court also reaffirmed the hierarchy between private covenants and regulatory approvals. A liquor license granted by the state did not override the private property rights created by the restrictive covenant, which remained enforceable in equity by the grantor and lot owners.

Why This Matters for HOAs

Condos is valuable whenever a homeowner defends a violation by pointing to unrelated noncompliance elsewhere in the community. Arizona courts look for abandonment of the relevant plan, not just a grab bag of different violations.

The case is also a reminder that public permits and licenses do not automatically cure a private deed-restriction problem. An HOA can still enforce its documents even when a governmental body approved the use.

Topics

selective-enforcementcc-and-rs

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Murphey v. Gray

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Murphey v. Gray

84 Ariz. 299, 327 P.2d 751 (1958) · Arizona Supreme Court · July 15, 1958

At a Glance

Parties Original developers and their company disputed with a successor owner over whether deed restrictions in the Catalina Foothills area remained enforceable.

Summary

Murphey is an important Arizona Supreme Court case on changed conditions, equitable servitudes, and successor notice. The court enforced deed restrictions limiting density and requiring approval of building plans even though the restricted land had become much more valuable and development pressure had increased. It said that change in value alone does not defeat restrictive covenants. The controlling question is whether the surrounding changes are so fundamental that the original purpose of the restrictions has been frustrated. The court also reaffirmed that equity can enforce restrictive promises against a successor who took with notice, even if there is debate over whether the covenant technically runs with the land at law. Finally, the court noted that zoning is not a substitute for private land-use covenants because public zoning can change and does not erase private rights created by deed restrictions.

Holding

Restrictive covenants remain enforceable despite increased land value or zoning overlap unless surrounding changes fundamentally defeat the original purpose of the restrictions, and successors with notice remain bound in equity.

Reasoning

The court looked at the purpose behind the restrictions, which was to preserve a high-quality residential character that benefited retained land as well as conveyed parcels. Development pressure and increased value did not show that purpose had failed. Instead, they often proved why the covenants mattered.

The court also separated public regulation from private ordering. Even if zoning served similar functions, zoning could change and did not nullify private restrictions. And because the deed language showed an intention to bind future owners, equity could enforce the servitude against successors who had actual or constructive notice.

Why This Matters for HOAs

Murphey is still useful in HOA cases where an owner argues that the neighborhood has changed, the property would be more valuable if unburdened, or current zoning makes the covenant unnecessary. Arizona law does not treat those points as enough by themselves.

The case also remains significant for architectural-review and use-control disputes because it recognizes the continuing force of deed-based design and density limits against later owners who bought with notice.

Topics

cc-and-rsarchitectural-review

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Decker v. Hendricks

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Decker v. Hendricks

97 Ariz. 36, 396 P.2d 609 (1964) · Arizona Supreme Court · November 13, 1964

At a Glance

Parties Subdivision owners sued a lot owner who built a warehouse in a residential-only restricted area.
Panel Justice Struckmeyer

Summary

In Decker, the Arizona Supreme Court affirmed a mandatory injunction ordering removal of a warehouse built in violation of residential subdivision restrictions. The defendants argued that the plaintiffs waited too long, that nearby commercial development had changed the neighborhood, and that the hardship of tearing down the building outweighed any benefit of enforcement. The court rejected those defenses. It found no unreasonable delay after the defendants resumed construction, no radical change within the restricted area that defeated the purpose of the plan, and no basis for an intentional violator to ask equity for special mercy. The opinion is especially important because it shows Arizona courts will grant strong injunctive relief, including removal, when an owner knowingly builds against clear restrictions. In HOA litigation, Decker is still cited on laches, changed conditions, and the limited value of a hardship defense when the violator proceeded with notice.

Holding

Arizona courts may order removal of a knowingly noncompliant structure, and defenses based on delay, outside-area change, or relative hardship fail when the violation was intentional and the restricted plan remains viable.

Reasoning

The court treated each equitable defense separately. On laches, it found the plaintiffs’ delay was not unreasonable because construction had first stopped and only later resumed in a form that clearly violated the restrictions. On changed conditions, the court focused on the restricted tract itself and required a fundamental change that defeated the restriction’s original purpose.

The court was most direct on hardship. Equity does not favor a party who knowingly builds in violation of covenants and then argues that compliance is now too expensive. Because the defendants had actual notice and forged ahead anyway, the trial court acted within its discretion in granting a mandatory injunction.

Why This Matters for HOAs

Decker is one of Arizona’s strongest pro-enforcement covenant cases. It warns owners and builders that charging ahead after notice can lead to demolition-type remedies, not just damages.

For boards and counsel, the case is useful when a violator argues that the surrounding area has become more commercial or that tearing out the improvement would be too harsh. In Arizona, those arguments are weak when the community’s basic restrictive plan still works and the violation was deliberate.

Topics

cc-and-rsselective-enforcementprocedure

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