Tag Archives: cc-and-rs

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Regency House is a community governed by recorded covenants, conditions and restrictions (CC&Rs) under which the owners share ownership of common elements that include the parking garage and parking areas (Section 1.7). The plat recorded with the CC&Rs was incorporated into them by reference (Section 1.20) and specifically identified the individual parking spaces in the first and second basement plans as they existed in April 1979. Michael Lyon was assigned parking space P-238 when he purchased his apartment in 2009. In September 2019, the parking garage was altered with new parking spaces and loading zones. Lyon sued Regency House Association and a co-defendant in 2020, asserting claims that included breach of contract (Count 1), gross negligence (Count IV), and injunctive relief and/or specific performance (Count 6).

The defendants filed a partial motion to dismiss. After a virtual oral argument on December 4, 2020, Commissioner Andrew J. Russell granted the motion as to the gross-negligence count against all defendants and denied it as to every remaining count. The court then referred the parties to a mandatory settlement conference through its Alternative Dispute Resolution office. In June 2021 the defendants sought expedited reconsideration of the motion-to-dismiss ruling; Judge Joan M. Sinclair ordered briefing, noting “the confusion relative to the order in the minute entry filed on December 7, 2020 and the change in judicial officers,” and Commissioner Russell denied the motion on July 23, 2021.

In October 2021 Lyon moved for partial summary judgment on his breach-of-contract and injunctive-relief/specific-performance counts. His theory was that the parking spaces identified on the recorded plat could not be altered without following Section 24 of the CC&Rs, which requires any change, modification, or rescission of the Declaration to be made by a recorded instrument signed by owners of at least 75% of the total ownership of the common elements and by all institutional first mortgagees. After oral argument on March 25, 2022, Judge Sinclair denied the motion in an April 15, 2022 under-advisement ruling. Although the court observed that “[a]t first blush, it appears that the parking spaces cannot be altered without following the Section 24 requirements,” it pointed to the board’s authority over the “use” of parking under Sections 6, 7, and 21.9 of the CC&Rs and its power under the Bylaws to adopt rules and to provide for maintenance, repair, and replacement of the common elements, and concluded a reasonable juror could find no breach — so summary judgment was inappropriate.

Lyon moved for reconsideration on June 7, 2022, supported by exhibits and a declaration of Paul Bakalis. In its September 6, 2022 ruling, the court explained that it had been “unfortunately unaware” of Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 523 (2022), when it decided the original motion. In Kalway, the Arizona Supreme Court held that even a procedurally proper majority-vote amendment fails if the original declaration did not give homeowners sufficient notice of the change, because “allowing substantial, unforeseen, and unlimited amendments would alter the nature of the covenants to which the homeowners originally agreed.” The inquiry turns on the objective, reasonable expectations of homeowners based on the declaration in effect when they purchased.

Applying Kalway, the court found that no vote of 75% of the owners had been taken under Section 24; that the recorded plat — incorporated into the Declaration — specifically identified the parking spaces as they originally existed; and that “[a]dding parking spots within the already cramped parking structure was not contemplated within the CC&Rs.” Lyon’s spot and the other owners’ spots from P-237 to P-246 were disproportionally affected. The board’s general authority under Section 4.2 to “maintain, repair, replace, administer and operate the Property” did not extend to the completed alteration of the parking areas, because those changes were substantial and unforeseen — especially with no homeowners’ vote. The court added that the defendants did not dispute Lyon’s measurements showing the three parking spaces behind P-237 to P-246 were illegal under City of Phoenix Zoning Ordinance 702(B)(2)(a), and that “[i]llegal parking spaces are not something that a homeowner could reasonably expect.” It granted reconsideration, vacated the April ruling, granted Lyon’s motion for summary judgment, and directed him to file a proposed order by September 30, 2022.

The case then resolved by agreement. The court received a Notice of Settlement filed October 21, 2022, and on October 25, 2022 it placed the matter on the dismissal calendar for dismissal of all remaining claims and parties on or after January 25, 2023 — unless a judgment, stipulation of dismissal, or extension intervened — and deemed all pending motions moot. The collected minute entries end there; they do not show the final dismissal order or the settlement’s terms.

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Troon North Association is a homeowners association in Scottsdale. In 2014 it sued Ripson Holdings, LLC, 4AAR Holdings, LLC, and the City of Scottsdale in Maricopa County Superior Court (CV2014-094169), including a count to foreclose its assessment lien on a Scottsdale property. The court later found that the owner — referred to in the ruling as “Defendant Ripson,” with Michael Ripson personally present at the 2015 oral argument — became delinquent on assessment fees in 2009 and remained delinquent every year through 2014, when the delinquent assessments were finally paid off on August 4, 2014. The City of Scottsdale was dismissed early, on the association’s own notice, by an August 12, 2014 order, and after the association filed a notice of change of judge the case moved from Judge Mark F. Aceto to Judge David K. Udall in September 2014.

The defense answered with a counterattack. Ripson Holdings brought a special action and counterclaim under A.R.S. § 33-420 — Arizona’s wrongful-recording statute — seeking to hold the association and its attorney, Mark W. Waldron, responsible for failing to release a lis pendens that had been recorded against the property. Meanwhile, in December 2014 the association applied for default judgment against 4AAR Holdings; the assigned judge took no action on the e-filed application and directed that Rule 55(b) default proceedings be handled by Commissioner Margaret Benny, with the default packet hand-delivered as required by administrative order.

The case came to a head on cross-motions. The defendants moved for partial summary judgment against the association’s foreclosure count and on their counterclaim; the association and Waldron cross-moved for partial summary judgment. Judge Udall heard oral argument on April 3, 2015 — Charles Maxwell, Mark Waldron, and Paul Neil appearing for the association, Elijah Rosov for the defendants — ordered the defendants to respond to the association’s motion to strike, and took the matter under advisement.

The April 15, 2015 under-advisement ruling resolved everything in the association’s favor. The court first granted the motion to strike, finding the defendants had improperly cited a ruling by Judge Aceto, and refused to consider those references. It then dismissed the § 33-420 special action and counterclaim with prejudice: at the time the lis pendens took effect the defendant owed the association $1,682.00 and admitted owing it, so as a matter of law § 33-420 did not apply. On the foreclosure count, the defendants argued the association had no right to foreclose under A.R.S. § 33-1807(A) because the assessments had since been paid. The court disagreed, interpreting the statute’s “has been delinquent” phrase as a triggering mechanism — once an owner has been delinquent for over a year or for $1,200 or more, whichever occurs first, the statute applies, and the owner cannot later pay the full assessment fees to avoid its foreclosure provisions. The association’s lien, the court found, did not end with the payment of the regular-assessment portion of the debt.

The ruling also gave the association a second, independent path. Under Article 7 of the CC&Rs — Sections 7.02 and 7.04 — the association has the right to place liens on parcels and enforce them, along with the right to levy special assessments, and Section 7.07 confirms its contractual liens against delinquent homeowners and its ability to collect late charges, interest, and attorneys’ fees and costs. The court found the Planned Community Act does not preempt those contractual lien and foreclosure rights: while A.R.S. § 33-1807(K) contains language showing the legislature’s intent to preempt contractual or other statutory rights, no such language limits an association’s right to foreclose under § 33-1807(A). The court therefore denied the defendants’ motion, granted the association’s cross-motion — finding no genuine issues of material fact and a right to foreclose under both theories — and allowed the association to seek its attorneys’ fees and costs.

The endgame ran through June 2015. The court denied the association’s request for a hearing on the remaining issues in May and warned that the case would be dismissed if the parties did not submit the required joint report or a form of final judgment; in early June it granted short extensions for the defendants to respond to the fee application and proposed judgment, and on June 22 Samuel C. Richardson of Maxwell & Morgan, P.C. substituted in as the association’s counsel of record. On June 26, 2015 the court entered judgment: it denied 4AAR Holdings’ request to establish the amount subject to foreclosure under A.R.S. §§ 33-723 and 33-1807(A), granted the association’s application for attorneys’ fees, entered judgment for the association and against the defendants, and dismissed Ripson Holdings’ special action and counterclaim against the association and Waldron with prejudice. The court noted that no further matters remained and that the judgment was final under Rule 54(c).

Video overview of the ruling

An AI-generated video overview of Troon North Association v. Ripson Holdings, LLC (CV2014-094169 (Maricopa County Superior Court)). HOA foreclosure judgment quieted lien priority and rejected homeowner recording-penalty theories. 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 Troon North Association v. Ripson Holdings, LLC. Generated from the case filings; verify against the linked ruling below.

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Astragal is a Scottsdale condominium community governed by a Declaration. The Declaration includes a provision allowing 67% of the Association’s owners to vote to change the governing Declaration. Using that mechanism, the Astragal Condominium Unit Owners Association amended its Declaration to impose a six-month minimum rental period on all of its residences whenever owners lease or rent their units to third parties.

Richard J. Murtland and Barbara Bergfield, both owners of condominiums in the community, sued the Association in Maricopa County Superior Court (CV2015-091102). Their position was that they had been damaged because the amendment prevented them from generating income through short-term rentals. In July 2015 the court granted a notice of substitution of counsel within the plaintiffs’ firm, allowing attorney Erin S. Iungerich to substitute for J. Roger Wood as attorney of record.

The dispute was resolved on paper rather than at trial. The plaintiffs moved for summary judgment and the Association filed a cross-motion for summary judgment; the court found that neither party disputed the significant facts. After full briefing, the court set oral argument, which Judge David K. Udall heard on January 8, 2016, with Iungerich and Wood appearing for the plaintiffs and J. Gary Linder for the Association. The court took the matter under advisement.

In an under-advisement ruling issued January 12, 2016, the court rejected the owners’ central statutory argument. A.R.S. § 33-1227(D) provides that, except as expressly permitted or required elsewhere in the Condominium Act, an amendment may not “change the boundaries of any unit, the allocated interest of the unit or the use to which any unit is restricted, in the absence of unanimous consent of the unit owners.” The court found the rental restriction was not subject to that unanimous-consent requirement; it was instead subject to the 67% rule in A.R.S. § 33-1227(A) as adopted by the Astragal Declaration. The court also noted A.R.S. § 33-1260.01(A), under which “[a] unit owner may use the unit owner’s unit as a rental property unless prohibited in the Declaration and shall use it in accordance with the Declaration’s rental time period restrictions.”

The court then distinguished the plaintiffs’ lead case, Dreamland Villa Community Club Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411 (App. 2010). In Dreamland, a community used a majority vote to force non-members of a homeowners association to become members subject to its CC&Rs, fees, and assessments. Here, by contrast, the plaintiffs were already members of the Astragal Association and, in the court’s words, “knew full well their Declaration potentially could be amended by a 67% majority vote at some point in the future.” The court further found the six-month leasing restriction “is not unreasonable, and it has potential benefits for the community at large,” and that the plaintiffs’ due-process rights were not violated because they had ample notice of a potential change in short-term lease restrictions when they purchased their properties. It denied the plaintiffs’ motion for summary judgment, granted the Association’s cross-motion, and dismissed the case with prejudice.

The endgame was brief. On February 24, 2016, after reviewing the Association’s application for attorneys’ fees and the plaintiffs’ response, the court granted the application and awarded judgment in favor of the Association, in accordance with a formal written judgment signed February 22 and entered February 24, 2016. The court noted that no further matters remained in the case, making it a final judgment under Rule 54(c) of the Arizona Rules of Civil Procedure.

Video overview of the ruling

An AI-generated video overview of Richard J. Murtland, et al. v. Astragal Condominium Unit Owners Association (CV2015-091102 (Maricopa County Superior Court)). A declaration amendment imposing a six-month minimum rental period was not subject to the unanimous-consent… 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 Richard J. Murtland, et al. v. Astragal Condominium Unit Owners Association. Generated from the case filings; verify against the linked ruling below.

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Sunland Village Community Association formerly allocated its annual assessment among members using a formula based in part on the number of residents in each unit. Rene Bishop was one of the members who benefitted from that formula — her share of the common expenses was less than what some of her neighbors paid. In late 2014 the Association’s board adopted a resolution placing on the annual ballot an amendment to the community’s CC&Rs under which every residential unit would pay the same amount regardless of the number of occupants. A “ballot document” explained the effect: using the 2015 budget, a single residential unit’s assessment would be about $414, meaning a single occupant would pay roughly $86 more per year (about $7 per month) and a two-occupant unit about $59 less. Copies went to every member who requested an early ballot and were placed in each voting booth. The members approved the resolution by majority vote in January 2015.

The reallocated assessment was collected for the first time in January 2016, and Bishop’s payment rose about thirty percent, from $328 to $425. She sued the Association and thirteen individually named defendants in Maricopa County Superior Court, alleging breach of the CC&Rs — Article XI, Section 3, which refers any per-unit regular assessment increase of more than ten percent to a vote of the members — along with breach of the implied duty of good faith and fair dealing and violation of A.R.S. § 33-1803, which bars a regular assessment more than twenty percent greater than the prior year’s without majority member approval. In her view, those rules required the board to determine her specific payment amount before the vote, to put that specific amount on the ballot, and to put the increase into effect immediately upon approval.

The early motion practice split. On May 26, 2016, after oral argument, Judge John R. Hannah Jr. denied the Association’s motion to dismiss, finding that homeowners who are not similarly situated to Bishop were proper parties who could appear and argue their position if they chose, but were not necessary parties. On August 15, 2016, however, the court dismissed all claims against the defendants other than the Association. The contract claim failed against the directors individually because they are not parties to the contract between the plaintiff and the Association, and the statutory claim failed because A.R.S. § 33-1803 limits the power of the association but creates no cause of action against individual directors. The court acknowledged that an HOA director can be personally liable for dishonest or bad-faith actions on behalf of the association, citing Albers v. Edelson Technology Partners L.P., but found the amended complaint alleged no specific facts supporting an inference of dishonesty or bad faith — a letter from the plaintiff’s lawyer opining that the directors’ actions were illegal was “not enough.”

In January 2017 the court referred the parties to a mandatory settlement conference and set oral argument on the Association’s motion for summary judgment and Bishop’s cross-motion for summary judgment; in March it added Bishop’s motion to certify the case as a class action to the same hearing. On April 14, 2017 the court heard argument on all three motions and took them under advisement.

The June 12, 2017 under-advisement ruling resolved the case. Assuming for the sake of discussion that A.R.S. § 33-1803(A) and Article XI, Section 3 applied at all — the Association had argued that merely reallocating the existing assessment is not an “increase,” a question the court found unnecessary to decide — the 2015 resolution satisfied both provisions. The statute’s plain language requires only “the approval of the majority of the members of the association,” which the HOA obtained, and it says nothing about the timing of the vote, the ballot language, or board approval of the ballot document; Bishop cited nothing in election law or Title 33 mandating the steps she said were required. The contract and good-faith claims failed for lack of any evidence of a material breach: the reasonable expectation under the CC&Rs was that a substantial assessment increase would be submitted to a fair vote of adequately informed members, which is what happened, and nothing in the ballot document was incorrect or materially misleading. The one-year delay before the new allocation took effect, if anything, benefitted Bishop, and the refund she sought would have forced the Association to disgorge revenues already received and spent — an outcome the court called tantamount to a forfeiture. The court granted the Association summary judgment, denied Bishop’s cross-motion, and denied the class-certification motion as moot.

The endgame was brief. On July 6, 2017 the court noted a joint notice of settlement and a stipulation extending the attorneys’-fees application deadline, placed the case on the dismissal calendar, and vacated all pending hearings. On August 28, 2017 the court approved and entered a formal stipulated judgment against Plaintiff Rene Bishop — the final entry in the collected minute-entry record.

Video overview of the ruling

An AI-generated video overview of Rene Bishop v. Sunland Village Community Association (CV2016-051857 (Maricopa County Superior Court)). Member vote validly approved equalizing annual assessments under A.R.S. § 33-1803 and the CC&Rs. 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 Rene Bishop v. Sunland Village Community Association. Generated from the case filings; verify against the linked ruling below.

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Edward Trenton Albarracin and Gretchen Marie Zamjahn own a home in Scottsdale inside the Troon Fairways Homeowners Association; the complaint alleged the property is also part of Troon Village Association and subject to its CC&Rs. Under the governing CC&Rs, the association is contractually obligated to maintain the common areas, including the gate at the community’s entrance off Happy Valley Road. On February 18, 2023, Douglas J. Cordano went to the residence to administer IV injections to the owners. Security cameras recorded Patrick Gruchala — who in the preceding days had entered a business deal regarding his own home with Mr. Albarracin or Mr. Albarracin’s company — walking southbound past the driveway, then running into the driveway and shooting into Mr. Cordano’s driver’s-side window eight times at point-blank range before fleeing north on foot and, moments later, riding a bicycle south on Alma School Road. It is undisputed that the entrance gate was not functioning that day, had been inoperative for days or weeks, and had been left open at the direction of board president Jeffrey Kinney.

Merrick Avenue Management, LLC, Mr. Albarracin, and Ms. Zamjahn sued Troon Village Association, Cornerstone Properties, Inc., Troon Fairways Homeowners’ Association, individual owners and board members, and Amcor Property Professionals, Inc. in Maricopa County Superior Court (CV2023-008406), asserting negligence claims that all related to the open gate. Mr. Cordano brought his own case (CV2023-012338), in which Mr. Albarracin and Ms. Zamjahn appeared as defendants. The originally assigned judge, Jay Ryan Adleman, disqualified himself in September 2023, and the case was reassigned to Judge Katherine Cooper. On September 18, 2023, Judge Cooper denied Troon Village Association and Cornerstone’s motion to dismiss, finding the complaint adequately alleged that the TVA CC&Rs are the source of a contractual duty to maintain Common Areas, including the gates. On October 12, 2023, she denied Amcor’s Rule 12(b)(6) motion as well, while noting the ruling did not decide that Amcor actually owed a duty and did not preclude a later summary-judgment motion. In January 2024, all counsel stipulated to consolidating the two cases under CV2023-008406.

Through 2024 the case moved through amended scheduling orders: the trial-setting conference originally set for November 2024 was reset several times, ultimately to August 12, 2025, and Judge Scott Minder assumed the calendar effective June 21, 2024. Meanwhile, default applications against consolidated defendants Patrick Gruchala and Carrie A. Luikens were referred to Commissioner Richard Albrecht, and at a December 2024 order-to-show-cause hearing Ms. Luikens was ordered to appear for a deposition the following January.

On January 29, 2025, Troon Fairways Homeowners’ Association and individual defendants Kinney, North, Friedman, Weintraub, Jaffe, and Gold moved for summary judgment on all counts. After oral argument on April 30, 2025, Judge Minder granted the motion the same day in an under-advisement ruling. The court explained that the inoperative gate underlay every claim, so the plaintiffs had to be able to show a jury that Mr. Gruchala entered the community through the Happy Valley Road gate. The undisputed video evidence pointed the other way: he approached the residence from the north, fled north after the shooting, and was recorded moments later on a bicycle on Alma School Road. The plaintiffs admitted they had no evidence he came through the gate and relied on a jury inference, but the court walked through the implausible alternative scenarios such an inference would require and concluded it was not reasonable on the record. A fallback theory — that the long-open gate let the shooter scout the area on an earlier date — was rejected as pure speculation.

The ruling is notable for what the defense did not win. On duty, the court followed Gfeller v. Scottsdale Vista North Townhomes Association and held that the CC&Rs’ allocation of common-area maintenance to the association creates a negligence duty — the association owed the owner plaintiffs, and their invitees, a duty to maintain the gate as part of the common areas. Citing Perez v. Circle K, the court refused the defendants’ invitation to define the duty narrowly as one to prevent an unforeseeable shooting, because that would intertwine duty with breach and causation. It rejected Mr. Cordano’s separate business-invitee theory against the association, since the association had not invited him for business purposes, but still extended the maintenance duty to residents’ invitees. On causation, the court said that if there had been a reasonable basis to conclude the shooter came through the gate, causation would have been for the jury — evidence suggested the association knew of prior security incidents potentially related to the open gate. And among the individual defendants, only Mr. Kinney and Shari Weintraub served on the board on the day of the shooting; the evidence linked only Mr. Kinney to the decision to leave the gate open, so all individual defendants except Mr. Kinney (and Ms. North as his spouse) would have been dismissed in any event. The court also observed that no complaint pleaded a negligent-infliction-of-emotional-distress claim.

The collected minute entries end in mid-2025 with the case still active. The Troon Fairways defendants filed motions for entry of judgment and attorneys’ fees in May 2025 but withdrew them in June. On June 19, 2025, after an evidentiary default hearing at which Mr. Cordano testified, Commissioner Albrecht entered default judgments against Mr. Gruchala and Ms. Luikens. The claims involving Troon Village Association, Cornerstone Properties, and Amcor — whose own summary-judgment motion had been noted at the April 30 argument — were not resolved in the collected minute entries.

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Canterra at Squaw Peak is a Phoenix condominium community governed by a recorded Declaration (CC&Rs). Some units have balconies and walk decks, which the Declaration classifies as limited common elements serving a single unit; other units, including Pat Mah’s, have patios instead. Under Section 4.2 of the Declaration, the Association is responsible for maintaining, repairing, and replacing the limited common elements as part of the community’s Common Expenses, and under Section 6.7 all regular assessments are fixed at an equal amount for every unit.

In 2020 the Association performed repair work on certain balconies and walk decks and assessed the cost against all unit owners. Mah sued the Association in late 2021. She sought a declaratory judgment that she could not be assessed for balcony repairs — arguing that a 1996 amendment to the CC&Rs limited those costs to the owners who actually benefit from the balconies — and that the work should have been funded through a special assessment on the benefited owners.

The Association moved to dismiss. After full briefing and an oral argument at which the court struck improper attachments from both sides, Judge Scott Blaney issued an under-advisement ruling on September 26, 2022. The court found that the Declaration allocates limited-common-element repair costs to all owners as a Common Expense, and that this deviation from the default allocation in A.R.S. § 33-1255(C) — which would assign such costs to the benefited units — is expressly permitted by the statute’s opening qualifier, “[u]nless otherwise provided for in the declaration.” The court dismissed the 1996-amendment claim and ordered the parties to meet and confer or mediate.

In February 2024 the court granted Mah leave to file a first amended complaint, but only in part: the dismissed 1996-amendment claim could not be revived. The amended complaint asserted declaratory relief, breach of contract, breach of the implied covenant of good faith and fair dealing, and a claim that the Association violated A.R.S. § 33-1258 by failing to allow reasonable access to association records. The claims rested on allegations that the Association paid for balcony repairs without authority, owed her reimbursement for window and door maintenance, and used improper budgeting to create a “slush fund.”

The Association moved for summary judgment on all remaining claims. After an October 29, 2025 oral argument, the court granted the motion in a December 29, 2025 under-advisement ruling. It found the 2020 balcony work was “repair, maintenance, and/or replacement” rather than a structural alteration or addition, so the Association was authorized to pay for it with regular assessments; the contract and good-faith claims failed for the same reasons, and the slush-fund arguments were “confusing and unsupported by the record.” On the records claim, the court held that A.R.S. § 33-1258 does not create a private right of action, that most of the requested documents had already been disclosed before and during the litigation, and that Mah identified no specific document the Association improperly withheld.

The endgame ran through spring 2026. The court denied Mah’s Rule 60(b)(6) motion for relief in January, rejected her attempt to supplement it in February, and on April 30, 2026 entered a formal judgment against her that included the Association’s attorneys’ fees and costs. In May 2026 the court denied her motion for a stay pending appeal and to set a bond, and her appeal remained pending when this page was last updated.

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