Tag Archives: cc-and-rs

Whitaker v. Holmes

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Whitaker v. Holmes

74 Ariz. 30, 243 P.2d 462 (1952) · Arizona Supreme Court · April 15, 1952

At a Glance

Parties Owners sought to stop a neighboring lot from being used to sell liquor in violation of a deed restriction.
Panel Justice Evo De Concini

Summary

Whitaker is a classic Arizona case on waiver, estoppel, and selective enforcement in covenant disputes. The recorded covenant prohibited sale of intoxicating liquor in a larger restricted area. Several liquor establishments had already appeared in another part of the area, and the defendants argued that the plaintiffs had lost any right to enforce the covenant because they had not sued those earlier violators. The Arizona Supreme Court disagreed. It held that owners do not necessarily waive enforcement just because they tolerated remote or less harmful violations. The court drew a practical line: an owner may ignore violations that cause no substantial injury and still act against a later violation that is materially harmful because of its location or impact. That rule has become part of Arizona HOA law whenever owners claim a board or neighbor cannot enforce restrictions after earlier uneven enforcement.

Holding

Failure to sue earlier or remote violators does not automatically waive the right to enforce a restrictive covenant against a later violation that causes substantial injury.

Reasoning

The court accepted that waiver, estoppel, and laches can defeat covenant enforcement in some cases, but it refused to apply those doctrines mechanically. Prior violations had occurred in a clustered area almost a mile away from the plaintiffs’ property and did not establish that the restricted plan had wholly collapsed.

The court also emphasized equity and injury. A person entitled to enforce a covenant need not sue every violator at once. He may proceed against the violation that substantially harms him, especially where earlier breaches were remote and not seriously damaging to his own property interests.

Why This Matters for HOAs

Whitaker is still a key answer to the common homeowner defense that the HOA or a neighbor missed other violations, so enforcement is now impossible. Arizona law is more nuanced than that.

Boards should still strive for consistent enforcement, but Whitaker helps explain why imperfect past enforcement does not always destroy present enforcement rights, particularly where the new violation is closer, more harmful, or meaningfully different.

Topics

selective-enforcementcc-and-rs

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Palermo v. Allen

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Palermo v. Allen

91 Ariz. 57, 369 P.2d 906 (1962) · Arizona Supreme Court · March 14, 1962

At a Glance

Parties Later landowners sought a declaration that deed restrictions were personal to the original grantor and not enforceable by neighboring owners.

Summary

Palermo is one of Arizona’s core cases on whether covenant rights actually run with land in a subdivision or rural tract. The court held that neighboring owners could not enforce certain deed restrictions because the record did not show a true general plan binding all lots for the benefit of one another. The deeds did not clearly say the restrictions were for the benefit of other parcels, did not identify a dominant estate, and did not require uniform restrictions in future conveyances. The court stressed that the grantor’s private intention was not enough. Creation of enforceable mutual rights in land requires mutual intent expressed in the written instruments or unmistakably shown by the circumstances tied to the deeds. Palermo is frequently cited when Arizona courts decide whether old private restrictions are part of a real common scheme or were merely personal promises between original grantor and grantee.

Holding

Restrictions are not enforceable among later owners as part of a general plan unless the deeds or related instruments clearly show a mutual intent to create rights benefiting other parcels.

Reasoning

The court emphasized contract basics. A general development plan cannot be created solely from what the grantor may have intended in the abstract. If later purchasers are supposed to gain enforcement rights against one another, that arrangement must appear in the written instruments in a way that gives notice and legal effect.

Because the deeds in Palermo lacked the needed signals, such as clear statements of benefit, defined property subject to the plan, or a promise to impose similar restrictions on future conveyances, the court treated the restrictions as personal rather than mutually enforceable servitudes.

Why This Matters for HOAs

Palermo remains highly useful in HOA and subdivision litigation where one side claims there was a broad neighborhood scheme but the documents are thin or inconsistent. It is a drafting and title case as much as an enforcement case.

For modern communities, Palermo shows why declarations need clarity. If the document does not plainly create reciprocal rights and burdens, later enforcement can become difficult or impossible.

Topics

cc-and-rsdisclosure

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Federoff v. Pioneer Title & Trust Co.

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Federoff v. Pioneer Title & Trust Co.

166 Ariz. 383, 803 P.2d 104 (1990) · Arizona Supreme Court · December 6, 1990

At a Glance

Parties Owners within a restricted area sued a developer and others to enforce recorded land-use covenants against a denser subdivision plan.

Summary

Federoff is a major Arizona case on recorded restrictions, notice, and enforceability against later purchasers. The dispute involved restrictive covenants created by adjoining landowners and later challenged by developers whose deeds apparently did not repeat the restrictions. The Arizona Supreme Court held that the covenants were still enforceable. It classified them as mutual covenants running with the land and said that, in this setting, the failure to restate the restrictions in every later deed did not automatically make them personal or extinguish them. What mattered was that the original recorded agreement showed intent to bind successors and that later owners had constructive or actual notice of the restrictions. The court distinguished the common-grantor cases that require closer attention to deed language and held those authorities did not control here. Federoff remains important whenever HOA lawyers confront old recorded restrictions, title-report notice, or developer arguments that omitted deed language wiped the slate clean.

Holding

Recorded mutual restrictive covenants between adjoining landowners can remain enforceable against later owners with notice even if later deeds omit reference to the covenants.

Reasoning

The court relied on Arizona’s three-category framework for restrictive covenants and placed the case in the class involving mutual covenants between adjoining landowners. In that setting, the key questions were whether the original parties created enforceable land-related promises, intended them to bind successors, and whether later purchasers had notice.

The court rejected the developers’ attempt to import rules from common-grantor and common-scheme cases where the first deed and later deed language play a different role. Here, the restrictions were properly recorded, touched and concerned the land, and were known or chargeable to the later owners through title materials and record notice.

Why This Matters for HOAs

Federoff matters whenever a community is dealing with old restrictions and a buyer or developer claims the covenant disappeared because it was omitted from a later deed. In Arizona, omission alone is not always enough.

For HOA counsel, the case underscores the importance of title review and record notice. For owners, it confirms that older recorded covenants can still be very much alive if the original instrument and later notice support enforcement.

Topics

cc-and-rsdisclosure

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Powell v. Washburn

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Powell v. Washburn

211 Ariz. 553, 125 P.3d 373 (2006) · Arizona Supreme Court · January 5, 2006

At a Glance

Parties Subdivision owners sued other owners and the developer over whether the CC&Rs allowed RVs to be used as residences in an airpark community.
Panel Justice Michael D. Ryan

Summary

Powell is the Arizona Supreme Court’s foundational case on how to interpret restrictive covenants and CC&Rs. Owners in an aviation-themed planned community argued that the covenants barred the use of recreational vehicles as residences even though the county zoning ordinance later permitted them. The court used the case to reset Arizona law. It rejected the old habit of mechanically construing covenants against restrictions and in favor of free use whenever there was uncertainty. Instead, it adopted the Restatement approach: restrictive covenants should be read to carry out the parties’ intent, as shown by the document as a whole, the surrounding circumstances, and the purpose for which the covenants were created. Applying that standard, the court held the airpark covenants did not allow RV residences because that use conflicted with the development’s design and purpose. Powell still anchors Arizona HOA disputes over rentals, home use, architectural controls, and declaration meaning.

Holding

Arizona courts must interpret restrictive covenants to give effect to the parties’ intent and the purpose of the covenants, rather than reflexively resolving uncertainty in favor of unrestricted land use.

Reasoning

The court reviewed Arizona’s older covenant cases and concluded that the state’s real law had long been more intent-focused than some broad free-use language suggested. Because restrictive covenants are central to modern planned developments, the court found the Restatement’s purpose-and-intent approach better matched contemporary property practice.

Using that framework, the court read the airpark declaration as a whole. The community was designed around aviation-related residential and commercial uses, and the challenged interpretation would have undermined that plan. The court therefore enforced the covenant in a way that preserved the development’s intended character.

Why This Matters for HOAs

If Kalway is Arizona’s leading amendment case, Powell is its leading interpretation case. Lawyers still start with Powell when arguing what a declaration means.

For boards and owners, the practical lesson is simple: Arizona courts will not read CC&Rs sentence by sentence in a vacuum. They will ask what the covenants were trying to accomplish. That can help both sides, depending on the text, the overall plan, and the property’s recorded purpose.

Topics

cc-and-rs

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Duffy v. Sunburst Farms East Mutual Water & Agricultural Co.

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Duffy v. Sunburst Farms East Mutual Water & Agricultural Co.

124 Ariz. 413, 604 P.2d 1124 (1979) · Arizona Supreme Court · November 28, 1979

At a Glance

Parties Subdivision owners and a mutual association disputed the validity of an amendment to recorded restrictions.

Summary

Duffy is an important Arizona Supreme Court decision on how amendment clauses in recorded restrictions actually work. The dispute centered on whether subdivision restrictions could be changed or revoked by a vote of the lot owners under the amendment language in the declaration, and whether extra meeting procedures found elsewhere in association documents had to be layered onto that process. The court enforced the amendment framework written into the recorded restrictions themselves. It treated the declaration as controlling and did not let separate bylaws override the declaration’s stated amendment mechanism. The opinion is also widely cited for two broader propositions: courts read restrictive covenants by looking at both the words used and the surrounding circumstances, and changes to restrictions must be grounded in the recorded document rather than in later procedural improvisation. Arizona courts and HOA lawyers still cite Duffy whenever the validity of a covenant amendment process is at issue.

Holding

When a recorded declaration expressly authorizes amendment or revocation by the specified vote of owners, Arizona courts will generally enforce that mechanism, and separate bylaws do not add requirements that the declaration itself does not impose.

Reasoning

The court approached the recorded restrictions as the operative contract running with the land. Because the declaration itself spelled out how amendments could occur, that language controlled the analysis. The court would not rewrite the amendment clause by importing additional procedural conditions from other association documents unless the declaration itself required that result.

The opinion also read restrictive covenants in context, not by isolated words alone. That contextual approach later fed into Arizona’s broader covenant-interpretation cases and remains important in disputes about amendment power, owner voting rights, and the relationship between declarations and bylaws.

Why This Matters for HOAs

Duffy is still useful in modern HOA litigation whenever parties argue over whether an amendment was adopted under the right document and by the right vote. It reminds boards that the declaration usually sits at the top of the governing-document hierarchy for land-use restrictions.

For homeowners, Duffy cuts both ways. It can support enforcement of a clearly written amendment clause, but it also limits boards from inventing amendment authority or procedures that the declaration never gave them.

Topics

cc-and-rsboard-governancevoting-and-elections

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State of Arizona ex rel. John Halikowski, Director, Department of Transportation v. Foothills Reserve Master Owners’ Association, Inc.

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State of Arizona ex rel. John Halikowski, Director, Department of Transportation v. Foothills Reserve Master Owners’ Association, Inc.

CV2017-010359 · Superior Court · March 4, 2022

At a Glance

Parties The State condemned community property for the South Mountain Freeway, and the HOA litigated in a representative capacity on behalf of 589 homeowners claiming damages tied to lost easement rights and freeway proximity.
Panel Hon. Timothy Thomason
Statutes interpreted

Summary

Although this is an eminent-domain case rather than a classic assessment or records dispute, it is still a valuable Arizona Superior Court HOA ruling because it directly addresses an association’s power to litigate for owners in a representative capacity. The court entered a detailed final judgment after earlier rulings recognizing that 589 Foothills Reserve homeowners had damage claims tied to the State’s taking of common-area rights for construction of the Loop 202 South Mountain Freeway. The judgment states that the HOA, acting only in a representative capacity, could maintain those homeowner claims in the same case without naming all 589 owners as parties and without requiring counterclaims. The court further held that the proceeds belonged to the homeowners, not to the HOA as its own asset. The judgment awarded $18 million plus interest and costs, required immediate payment of $6 million plus interest, and preserved the State’s appellate challenge to the larger proximity-damages component.

Holding

The superior court entered judgment for the HOA in a representative capacity on behalf of 589 homeowners, awarded $18 million plus interest and costs, and structured the judgment so the proceeds belonged to the homeowners rather than to the HOA itself.

Reasoning

The judgment rested on a series of representative-capacity findings that are unusually useful in HOA litigation. The court expressly recited that the homeowners’ damage claims could be maintained by the HOA in the same case without joinder of all affected owners, and that the HOA was required under the governing covenants and easement structure to represent those claims, but only as a representative and not as the beneficial owner of the recovery.

The court also fixed the valuation framework. It treated the July 3, 2018 order of immediate possession as the date of taking and the date for valuation. It preserved a bifurcated track for separately appearing intervenors, kept the HOA’s own common-area compensation separate from the owners’ claims, and made clear that any recovery for the 589 owners was their property, not part of the HOA’s general assets. The judgment further acknowledged the court’s earlier decision that the owners were entitled to pursue proximity damages under Arizona condemnation law, while preserving the State’s right to appeal that legal conclusion.

Why This Matters for HOAs

For HOA lawyers, this is one of the stronger Arizona Superior Court examples of a court allowing an association to prosecute owner claims collectively when the governing documents and the underlying property rights make representative litigation sensible. It is especially useful in disputes involving shared easements, common-area rights, or injuries that hit many owners in a uniform way.

The case also shows how to structure a judgment so that the HOA can act as litigation representative without absorbing the owners’ money as association property. That distinction matters in any Arizona case where an HOA is pressing claims that belong economically to individual owners.

Topics

procedurecc-and-rs

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Gelb v. Department of Fire, Building and Life Safety

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Gelb v. Department of Fire, Building and Life Safety

No. 1 CA-CV 09-0744 (Ariz. App. Oct. 28, 2010) · Court of Appeals · October 28, 2010

At a Glance

Parties Chris Gelb (homeowner/plaintiff-appellant) v. Department of Fire, Building and Life Safety and Sedona Casa Contenta Homeowners Association, Inc. (defendants-appellees).
Panel Judge Samuel A. Thumma, Presiding Judge Lawrence F. Winthrop, Judge Patrick Irvine
Statutes interpreted

Summary

This case addressed Arizona’s old administrative hearing system for planned-community disputes. A homeowner used that process to challenge her HOA’s conduct before the Department of Fire, Building and Life Safety and the Office of Administrative Hearings. The court of appeals held that the administrative process, as applied to planned-community disputes, violated Arizona’s separation-of-powers doctrine. The key problem was that the agency had no real regulatory authority or subject-matter expertise over planned communities, their governing documents, or HOA disputes. It was essentially adjudicating private CC&R fights without being part of a genuine regulatory program tied to that subject. The court therefore vacated the superior court’s judgment upholding the administrative result and ordered the complaint dismissed without prejudice for lack of jurisdiction.

Holding

Arizona’s former administrative hearing process for planned-community HOA disputes was unconstitutional because it gave an agency adjudicative authority over private CC&R disputes without the regulatory nexus required by separation-of-powers principles.

Reasoning

The court applied Arizona’s established separation-of-powers analysis, which asks what power is being exercised, how much control the agency has, what the legislature’s regulatory objective is, and what practical effects the arrangement creates. It found that deciding private HOA document disputes is a judicial function and that the Department’s statutory mission concerned fire, building, and manufactured-housing matters, not planned communities.

Because the agency had no real regulatory authority over HOAs, it could not claim the sort of specialized oversight that sometimes justifies agency adjudication. The lack of a genuine nexus between the agency’s mission and planned-community disputes made the scheme constitutionally defective. The court therefore ordered dismissal for lack of jurisdiction rather than reaching the merits of the landscaping dispute.

Why This Matters for HOAs

This is the key Arizona appellate case for understanding older OAH-style HOA rulings and why that earlier administrative structure collapsed. If a dispute involves historic DFBLS or OAH HOA orders, Gelb is essential.

More broadly, the case is useful whenever parties argue that some agency forum can or cannot decide HOA fights. It teaches that jurisdiction in HOA disputes is not just a policy choice; the legislature must tie adjudicative power to a real regulatory framework and a proper constitutional role.

Topics

procedurecc-and-rs

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Tierra Ranchos Homeowners Association v. Kitchukov

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Tierra Ranchos Homeowners Association v. Kitchukov

No. 1 CA-CV 06-0474 (Ariz. App. Aug. 9, 2007) · Court of Appeals · August 9, 2007

At a Glance

Parties Tierra Ranchos Homeowners Association (plaintiff-appellant) v. Todor and Mariana Kitchukov (homeowners/defendants-appellees).
Panel Judge Philip Hall, Presiding Judge Diane M. Johnsen, Judge Lawrence F. Winthrop

Summary

This is Arizona’s leading architectural-review reasonableness case. Homeowners sought approval for the location of a detached garage, and the HOA’s architectural committee rejected the proposal. The trial court granted summary judgment for the homeowners, holding the association acted unreasonably. The court of appeals reversed. It adopted an objective reasonableness framework for discretionary architectural-control decisions and held the summary-judgment record could support either side. That meant neither side was entitled to automatic victory at that stage. The case is important because it rejects both extremes: the HOA does not get blind deference just because the declaration gives the committee discretion, but owners do not win merely by showing the committee said no. The real question is whether the decision was reasonable and made in good faith under the governing standards and facts.

Holding

When an HOA exercises discretionary architectural-review power, its decision is judged by an objective reasonableness standard. Because the record could support competing views on reasonableness, summary judgment for the homeowners was improper.

Reasoning

The court drew from the Restatement approach to property servitudes and held that discretionary design-control authority is not unchecked. An HOA must exercise that authority reasonably and in good faith, based on legitimate community standards rather than arbitrary preference. The court therefore rejected any notion that a committee’s decision becomes unreviewable simply because the declaration grants discretion.

At the same time, the court found the evidentiary record was not one-sided. Community aesthetics, lot layout, and the association’s stated concerns could support a finding that the denial was reasonable, even though a factfinder might also conclude otherwise. Because both outcomes were possible on the record, the dispute had to go back for further proceedings.

Why This Matters for HOAs

If an Arizona HOA dispute is about a denied architectural request, this case should be on the list. It gives boards a lawful path to say no, but only if they can articulate objective, fact-based reasons connected to the governing standards.

For homeowners, Tierra Ranchos is equally valuable because it confirms architectural committees are reviewable. Owners challenging a denial should build evidence on inconsistency, arbitrariness, comparable approvals, site conditions, and lack of actual harm. Boards that fail to document their reasons or apply standards consistently are vulnerable under this case.

Topics

architectural-reviewcc-and-rs

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Dreamland Villa Community Club, Inc. v. Raimey

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Dreamland Villa Community Club, Inc. v. Raimey

No. 1 CA-CV 08-0388 (Ariz. App. Mar. 16, 2010) · Court of Appeals · March 16, 2010

At a Glance

Parties Dreamland Villa Community Club, Inc. (plaintiff-appellant) v. Raimey and other homeowners (defendants-appellees).
Panel Presiding Judge Jon W. Thompson, Judge Daniel A. Barker, Chief Judge Ann A. Scott Timmer
Statutes interpreted

Summary

This is a landmark Arizona case on surprise HOA-style obligations. In Dreamland Villa, a voluntary recreation club tried to use majority-vote amendments to recorded restrictions to force homeowners in several sections to become mandatory members and pay dues and assessments, even though those sections had no common areas and no original deed-based right to the club’s facilities. The court held the amendments could not be enforced against the objecting owners. Membership in a nonprofit corporation requires consent, and a generic amendment clause in old deed restrictions was not enough notice to let a majority impose entirely new mandatory club obligations on a minority later on. The court rejected the idea that broad amendment power equals consent to any future burden the majority wants to create.

Holding

A generic majority-amendment clause did not authorize homeowners in a community with no original common-area or mandatory-club obligations to impose mandatory association membership, assessments, and liens on dissenting owners. The amendments were unenforceable.

Reasoning

The court looked at the original bargain reflected in the recorded restrictions. For the sections before it, ownership did not automatically include appurtenant rights in common amenities, and club membership had historically been voluntary. That mattered because the proposed amendments would fundamentally change the burdens running with the land.

Relying on notice and reasonable-expectations principles, the court held that owners who buy subject to an amendment clause do not thereby consent to any new servitude the majority later dreams up. The court distinguished earlier cases where common amenities were part of the community from the start. Here, the amendments created new affirmative obligations for optional amenities, which was too large a change to force through a generic amendment provision.

Why This Matters for HOAs

Dreamland remains one of the most cited Arizona HOA cases because it stopped a board or majority from using amendment boilerplate to rewrite the ownership deal after the fact. It is especially useful where the dispute involves new dues, mandatory memberships, recreation-club tie-ins, or other burdens not clearly embedded in the original declaration.

The case also laid the groundwork for Kalway. If a board is trying to justify a new payment obligation or mandatory membership arrangement by saying the declaration can be amended by majority vote, Dreamland is a core answer to that argument.

Topics

assessmentscc-and-rsboard-governance

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Turtle Rock III Homeowners Association v. Fisher

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Turtle Rock III Homeowners Association v. Fisher

No. 1 CA-CV 16-0455 (Ariz. App. Oct. 26, 2017) · Court of Appeals · October 26, 2017

At a Glance

Parties Turtle Rock III Homeowners Association (plaintiff-appellee) v. Lynne A. Fisher (homeowner/defendant-appellant).
Panel Judge Jon W. Thompson, Presiding Judge Kent E. Cattani, Judge Paul J. McMurdie
Statutes interpreted

Summary

The HOA sued over visible property-condition violations and obtained both an injunction and monetary penalties. The court of appeals split the result. It upheld the injunction requiring cleanup and repair work but reversed the penalty award and the related fee award. The reason was straightforward: Arizona law allows HOA boards to impose reasonable monetary penalties after notice and an opportunity to be heard, but the HOA failed to prove it had adopted and properly promulgated a preexisting fine schedule. Instead, the record showed only ad hoc penalty amounts. Arizona appellate law treats ad hoc fines as per se unreasonable. So even though the homeowner could still be ordered to comply with the CC&Rs, the HOA could not keep the money judgment for penalties without competent proof that its fines were set in advance and reasonably established.

Holding

An HOA may obtain injunctive relief to enforce CC&Rs, but monetary penalties under A.R.S. section 33-1803 must be supported by a reasonable, preexisting, promulgated fine schedule. Ad hoc fines are per se unreasonable and cannot stand.

Reasoning

The court separated substantive enforcement from monetary punishment. On the injunction, the homeowner had not preserved a meaningful challenge to several ordered repairs, and the trial court had sufficient basis to require compliance. That part of the judgment remained in place.

The fines were different. Section 33-1803 requires monetary penalties to be reasonable, and prior Arizona authority had already said retroactive or ad hoc fee schemes are not reasonable. The HOA produced ledgers and testimony, but it did not prove that a valid fine schedule had been adopted and in force before the penalties were imposed. Without that foundational proof, the penalty award failed as a matter of law, and the fee award tied to that result failed too.

Why This Matters for HOAs

For Arizona HOA fine disputes, this case is extremely practical. It tells boards that they need more than a violation letter and a ledger. They need an actual adopted fine schedule, notice, and evidence that the schedule existed before the fines started.

For homeowners, Turtle Rock is a strong challenge tool. If the association cannot produce the written fine policy and proof of adoption, the penalties may be vulnerable even when the owner still has to correct the violation itself.

Topics

finescc-and-rsattorneys-fees

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