Tag Archives: cc-and-rs

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Fisher’s home sat in a planned community governed by recorded CC&Rs that required owners to keep their property in a “clean and attractive condition” and allowed the HOA board to fine an owner who failed to cure a violation within thirty days of written notice.

Beginning in January 2014, the HOA sent Fisher a large number of violation notices—roughly ninety over about two years—complaining that she was using the home as a storage facility, that exterior components were broken, missing, or dilapidated, and that clutter visible from neighboring property blocked her blinds and posed a claimed health and safety concern. The HOA assessed fines at $25 per day.

In November 2015 the HOA sued in Maricopa County Superior Court (No. CV2015-095897) for breach of the CC&Rs, seeking an injunction to compel the repairs and a judgment for the accrued penalties.

At the evidentiary hearing, the HOA filed a pretrial statement and presented one witness (board member Ms. Curtiss) and five exhibits—photographs, a voluminous set of notice letters, a ledger of accrued fines, and the CC&Rs—but it did not put its written fine schedule into evidence. Fisher filed no pretrial statement and did not appear; her counsel attended, waived testimony, and offered no evidence, but argued that no fine schedule was in the record and that the HOA had not honored the thirty-day cure period.

The trial court entered an injunction requiring the exterior repairs and the interior changes (moving items that kept the blinds from closing and replacing dilapidated blinds), found the HOA had complied with the thirty-day notice requirement, and found the witness’s testimony sufficient to support the $25-per-day assessment. On its own motion the court reduced the requested $9,165.25 in penalties to $3,850—counting only fines that accrued after the HOA’s September 16, 2015 attorney letter—and awarded $10,839.70 in attorneys’ fees and $474 in costs under Rule 54(c).

Fisher appealed. Division One affirmed the injunction, including the interior items, holding that her interior-repair objection was raised for the first time on appeal and was therefore waived, and that the missing hearing transcript had to be presumed to support the trial court’s ruling.

The court reversed the penalties. It held that under A.R.S. § 33-1803(B) monetary penalties must be reasonable, that ad hoc fines are per se unreasonable under Villas at Hidden Lakes, and that an HOA must promulgate its fine schedule before imposing fines and prove reasonableness. Because no schedule was in evidence (best-evidence rule, Ariz. R. Evid. 1002) and the HOA bore the burden of proof, the $3,850 award could not stand, and the 58% reduction did not cure the defect. The attorneys’ fee award fell with the penalties, and the court awarded neither side fees on appeal. The Arizona Supreme Court later depublished the opinion, leaving it persuasive only.

For Arizona HOAs and homeowners, Turtle Rock III illustrates the practical difference between having the power to fine and being able to collect a fine. The decision reads A.R.S. § 33-1803(B) and Villas at Hidden Lakes together to require two things before a monetary penalty will hold up: the association must promulgate a written fine schedule before it imposes the fine, and, if the fine is challenged, it must prove both that the schedule existed and that the amount is reasonable. Because the association is the plaintiff in a collection or breach action, that burden is its own; a homeowner does not have to disprove the fines, and the best-evidence rule means the actual schedule (not a board member’s recollection) generally has to be in the record. The opinion also shows that a court’s willingness to cut an excessive fine does not rescue an otherwise unsupported penalty, and that daily or per-diem fines fixed in advance can look like an unenforceable penalty rather than a reasonable charge. An important caveat frames how much weight this case can carry: it was originally published at 243 Ariz. 294, 406 P.3d 824 (App. 2017), but the Arizona Supreme Court later ordered it depublished. A depublished opinion is not binding precedent and generally may not be cited as authority; it survives only as persuasive commentary and as a window into how one appellate panel applied the governing statute and the still-binding Villas decision. The underlying rule it relied on, however, comes from Villas at Hidden Lakes, which remains good law, so the core lesson about promulgating and proving a reasonable fine schedule continues to reflect Arizona law even though this particular opinion cannot be cited for it.

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Flying Diamond Airpark is an association of property owners in an Arizona development. A recorded declaration of covenants, conditions, and restrictions (CC&Rs), referenced in each owner’s deed, governs the parcels, and Jeffrey Meienberg is a mandatory member bound by those CC&Rs. Among other things, the CC&Rs prohibit ‘structures of more than 22 foot height.’

In 2004, Meienberg began building an aircraft hangar from prefabricated parts. The hangar was equipped with three roof vents, each ten feet long, sixteen inches high, and two feet wide, that attached to the roof. Measured from the ground to the top of the vents along the roof ridge, the hangar exceeded twenty-two feet; Meienberg ultimately conceded it violated the height restriction by eight-and-three-quarter to ten-and-three-quarter inches.

Before construction, Meienberg showed his plans to Larry Bramhall, another owner who had been asked to serve on a voluntary architectural advisory committee. Submission of plans was not mandatory, and the committee would not approve or disapprove plans. The plans Meienberg showed Bramhall did not state the hangar’s total height and did not include the roof-vent dimensions; the vents were never mentioned. Based on the eave height and roof pitch, Bramhall thought the roof itself would stay under twenty-two feet and simply reminded Meienberg to keep the building under the limit.

After framing began, Bramhall saw the steel frame and the roof vents lying on the ground and told Meienberg that, counting the vents, the hangar would exceed the height restriction. He suggested lower-profile vents that would comply and offered to help find a buyer for the taller vents. Meienberg took the position that vents should not count toward the height calculation and completed the hangar anyway.

Flying Diamond sued in Pima County Superior Court seeking an injunction to bring the hangar into compliance. After an evidentiary hearing, and on the parties’ stipulation to decide the case on that record plus legal memoranda, the trial court (Hon. Charles V. Harrington) found that Meienberg knew of the restriction, knew of the violation, and knew of the association’s intent to enforce it. It concluded he could not claim hardship or estoppel, issued a mandatory injunction requiring him to lower the hangar, and awarded the association attorney fees under a CC&R provision. The court also denied Meienberg’s Rule 59(b) motion to reopen the case for additional evidence about the burden of compliance.

On appeal, Meienberg argued that his violation was not intentional (contending intent should be judged as of when he ordered parts and met Bramhall), that the trial court should have applied the doctrine of relative hardships, that it should have reopened the record for more hardship evidence, and that the association was equitably estopped from enforcing the covenant.

The Court of Appeals, Division Two, affirmed in full. It held that an owner with actual or constructive notice of a restriction who completes an offending structure after being told it will violate the covenant is an intentional violator who cannot invoke relative hardships; that the excluded Rule 59(b) hardship evidence was therefore irrelevant; and that substantial evidence supported rejecting estoppel because the voluntary committee lacked authority to approve plans and Meienberg’s reliance was not justifiable. The court granted Flying Diamond its appellate attorney fees under the CC&Rs.

For Arizona common-interest communities, the decision sharpens the definition of an ‘intentional’ covenant violator and strengthens an association’s ability to obtain a mandatory injunction rather than money damages. An owner cannot manufacture a relative-hardship defense by claiming he was ignorant when he bought materials or that he interpreted the restriction differently; once he is warned that completing a structure will breach the CC&Rs and he builds on anyway, he is an intentional wrongdoer who loses the right to have a court weigh his hardship against the neighbors’ benefit. The court framed this as protecting the uniformity of restrictions that every owner, including the violator, agreed to when buying into the community. The case is also a caution about architectural review and reliance. A purely advisory committee that lacks authority to approve or reject plans cannot create equitable estoppel against the association, so an owner’s informal ‘check-in’ with such a body confers no protection. Owners who want the shield of an approval should obtain formal, written approval where the CC&Rs require it and should fully disclose the relevant dimensions; associations, in turn, are reminded that fee-shifting clauses in the CC&Rs can make a successful enforcement action recoverable, including on appeal.

Video overview of the ruling

An AI-generated video overview of Flying Diamond Airpark, LLC v. Meienberg (215 Ariz. 44, 156 P.3d 1149 (App. 2007)). Affirming a mandatory injunction, the Court of Appeals held that a property owner who has actual or constructive… 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 Flying Diamond Airpark, LLC v. Meienberg. Generated from the case filings; verify against the linked ruling below.

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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.

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What happened

Camelback Del Este is a Phoenix subdivision of 83 single-family homes that borders East Camelback Road. Over the three decades before this case, the road was widened from two lanes to seven and its weekday traffic grew from about 15,200 vehicles to more than 50,500, the highest daily flow of any street in Phoenix. Despite that outside growth, the subdivision’s recorded deed restrictions still limited each lot to one detached single-family dwelling (plus a small garage and guest or servant quarters).

In September 1983 Ronald H. Warner, who knew of the deed restrictions, bought one lot in the subdivision and obtained options to buy eight more, offering the owners between $150,000 and $350,000 per home; the most any home in the subdivision had sold for in 1984 was $119,000. Warner assembled the nine lots to build a commercial garden-office complex and applied to the City of Phoenix for a zoning change.

Warner’s plan met resistance. A lawyer living in an adjoining subdivision warned him in August 1984 that even if the city approved the rezoning he still had to get around the deed restrictions. A poll Warner himself conducted on October 9, 1984 showed he lacked substantial support, and at the October 17, 1984 City Council hearing a homeowner declared in Warner’s presence, ‘we will not relinquish these deed restrictions without a fight.’

On December 5, 1984 the Camelback Del Este Homeowners Association sued for declaratory and injunctive relief to enforce the covenants. It later amended the complaint to add a count seeking a declaration that the restrictions could not be changed until February 25, 1987 and that any change had to apply to all lots uniformly unless 100% of the owners agreed; that count responded to Warner circulating a petition to lift the restrictions on only some lots. The trial court refused Warner’s request, filed less than two weeks before trial, to add a counterclaim against homeowners he said had failed to voice an intent to enforce.

After a May-June 1985 bench trial, the court on January 30, 1986 granted the association declaratory and injunctive relief. It held the restrictions applied to all lots and were enforceable against Warner, restrained him from removing existing homes to build commercial or office buildings, and awarded the association $44,750 in attorneys’ fees (it had requested $63,688.50). The court did not rule on whether the covenants could be lifted as to only some lots without unanimous consent.

Warner appealed and the association cross-appealed. On September 29, 1987 Division Two of the Arizona Court of Appeals affirmed the enforcement of the covenants, the refusal to balance hardships, the rejection of estoppel, and the denial of the counterclaim, and it upheld the attorneys’ fee award under A.R.S. section 12-341.01(B). On the cross-appeal it modified the judgment to declare that any amendment to the covenants must apply uniformly to all lots absent unanimous consent, and it awarded the association its attorneys’ fees on appeal under Rule 21. The Arizona Supreme Court denied review on March 1, 1988.

Camelback Del Este v. Warner is a durable Arizona statement that recorded single-family deed restrictions can hold the line against commercial redevelopment even along a corridor that has exploded in traffic and land value. The ‘first tier of lots’ reasoning it adopts means the homes fronting a busy arterial must absorb the pressure of surrounding growth so that the interior of a subdivision stays protected; a developer cannot buy up the border lots, pay far above market, and expect a court to carve them out of the covenants one by one. For homeowners associations, the case remains a strong precedent that the changed-conditions defense looks to the whole neighborhood, not to a single lot’s highest-and-best commercial use. The decision is also a practical warning to buyers and developers: spending heavily on a project while knowing about restrictions and about opposition is a gamble, not a hardship a court will relieve, and neighbors’ failure to object early does not create an estoppel when the restrictions are a matter of public record equally available to everyone. Its cross-appeal holding is equally important for governance today. An amendment clause that lets a majority change covenants ‘in whole or in part’ does not authorize picking winners and losers lot by lot; absent unanimous consent, an amendment must apply uniformly across the subdivision. That uniformity principle still shapes how Arizona associations read and use their CC&R amendment powers.

Video overview of the ruling

An AI-generated video overview of Camelback Del Este Homeowners Ass’n v. Warner (156 Ariz. 21, 749 P.2d 930 (App. 1987)). Restrictive covenants limiting a subdivision to single-family residential use are enforceable against commercial… 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 Camelback Del Este Homeowners Ass’n v. Warner. Generated from the case filings; verify against the linked ruling below.

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Wagon Wheel Park is a platted, residential subdivision of 180 lots in Lakeside, Navajo County. In July 1960, Northern Arizona Title Company recorded a declaration of restrictions (the ‘1960 Declaration’) addressing the development and maintenance of lots. That declaration did not provide for the formation of a homeowners’ association to enforce the restrictions or to maintain common areas.

In 1971, six lot owners incorporated the Wagon Wheel Park Homeowners Association and recorded articles of incorporation with Navajo County. The articles stated that ownership of one or more lots would entitle the owner to membership in the corporation.

In 1980, upon a vote of a majority of lot owners, a revised declaration of restrictions (the ‘1980 Declaration’) was recorded. Its preamble acknowledged that an association had been formed and had reviewed the 1960 restrictions, but, like its predecessor, the 1980 Declaration did not provide for the formation of a homeowners’ association or require membership.

During the 1990s the Association recorded original and amended bylaws. The amended bylaws recorded in 1999 stated that all property owners in the Park were automatically members, that each member had to pay assessments levied by the Association, and that unpaid assessments-together with collection costs and attorneys’ fees-would become a lien against the member’s property.

In March 2001, a group of lot owners sued, claiming the Association was not a valid mandatory homeowners’ association. They sought a declaration that membership was voluntary and that the Association could not impose assessments on, or record liens against, non-member lot owners, along with corresponding injunctive relief. The Association counterclaimed for declaratory relief and, against one owner, for breach of contract based on his refusal to pay assessments.

On November 30, 2001, while the suit was pending and pursuant to a majority vote of lot owners, the Association recorded an amendment to the 1980 Declaration providing that the Association would administer the restrictions and maintain the common property and that lot owners would automatically be members. Meanwhile, the trial court granted the owners’ motion for summary judgment, ruled that all encumbrances the Association had recorded against Park lots were void from recording until November 30, 2001, held that A.R.S. § 10-3304 did not deprive the owners of standing, and awarded the owners attorneys’ fees.

On appeal, the Court of Appeals, Division One, affirmed the summary judgment. It held that mandatory membership could be imposed only by a recorded deed restriction, that neither the 1960 nor the 1980 Declaration required membership, and that the articles and bylaws did not effect a change in the recorded restrictions before the November 30, 2001 amendment. The court reversed and remanded the fee award for recalculation for the reasons stated in a companion memorandum decision, and it granted the owners their attorneys’ fees on appeal under A.R.S. § 12-341.01.

Shamrock is a leading Arizona statement of a foundational rule: the owners of lots in an existing subdivision can be bound to mandatory HOA membership-and to the assessments and liens that come with it-only through a recorded deed restriction, meaning the declaration (CC&Rs) itself or a validly adopted amendment to it. Corporate documents such as articles of incorporation and bylaws, even when recorded and even when they state that membership is ‘automatic,’ cannot by themselves convert voluntary owners into mandatory members. The decision rests on two independent principles: nonprofit-corporation law requires consent to membership (A.R.S. § 10-3601(B)), and covenant law requires that burdens running with the land appear in a recorded instrument and be changed only in the manner the declaration allows. For Arizona homeowners and boards, the case shows why the source and the procedure of an obligation matter. An association seeking mandatory membership must secure it through the declaration-amendment process the CC&Rs specify-often a majority or supermajority vote of owners-rather than through internally adopted bylaws. The opinion also clarifies the limited role of the Planned Communities Act: it regulates mandatory-membership associations but does not itself create the obligation. Finally, the case illustrates that the standing gate in A.R.S. § 10-3304, which restricts who may challenge a nonprofit corporation’s acts, did not apply where the plaintiffs were not members; the court noted that the Legislature later amended § 10-3304 to exempt planned-community members’ challenges to board action, effective September 18, 2003. Because this is a published opinion, it is binding precedent in Arizona.

Video overview of the ruling

An AI-generated video overview of John W. Shamrock, et al. v. Wagon Wheel Park Homeowners Association (206 Ariz. 42, 75 P.3d 132 (App. 2003) (No. 1 CA-CV 02-0403)). Mandatory membership in a new HOA cannot be imposed without consent or original covenant notice. 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 John W. Shamrock, et al. v. Wagon Wheel Park Homeowners Association. Generated from the case filings; verify against the linked ruling below.

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Ahwatukee is a large master-planned community in the Phoenix area, roughly 5,200 homes developed around two golf courses, including the Ahwatukee Lakes course. Beginning in 1986 the original developer recorded deed restrictions on the golf-course land, and in 1992 those restrictions were memorialized in a Declaration of CC&Rs limiting the Lakes parcel to golf-course use. The restriction served the community twice over: it helped secure favorable Arizona golf-course property-tax valuation, and it protected the value and setting of the surrounding homes, whose owners were expressly named as enforcing “Benefitted Persons” under the Declaration.

In 2006 Bixby Village Golf Course, Inc. purchased both Ahwatukee golf courses. In 2013 Bixby closed the Ahwatukee Lakes course and dismantled it, draining the lakes, removing turf and irrigation, and installing barbed-wire fencing. What had been a manicured amenity backing dozens of homes became a fenced-off, weed-covered expanse, and the surrounding owners lost the golf-course views and setting they had relied on and, in some cases, paid a premium to obtain.

Homeowners Linda W. Swain and Eileen Breslin sued to enforce the CC&Rs, contending the Declaration obligated the owner not just to refrain from other uses but to actually operate a golf course on the Lakes parcel. Because the Declaration designated adjoining owners as “Benefitted Persons” with enforcement rights, the homeowners were able to bring the covenant-enforcement action directly, without an HOA entity as the named plaintiff.

While the litigation was pending, Bixby sold the Lakes parcel to TTLC Ahwatukee Lakes Investors, LLC, a development entity that wanted to redevelop the land for residential housing. The Declaration allowed the golf-course restriction to be modified only with the approval of at least 51% of the affected homeowners. TTLC could not obtain that approval. It instead counterclaimed, arguing that a “material change in circumstances” had rendered continued golf-course operation impractical and justified judicial modification or termination of the covenant.

The superior court sided with the homeowners. It granted summary judgment and entered a mandatory permanent injunction ordering the golf course to be restored and operated in compliance with the CC&Rs. The court rejected TTLC’s changed-circumstances theory and its constitutional defense, and TTLC and Bixby appealed to Division One of the Arizona Court of Appeals.

On September 19, 2019, Division One affirmed in a published opinion authored by Presiding Judge Randall M. Howe, joined by Judges Jennifer M. Perkins and David D. Weinzweig. The panel held the covenant imposed an affirmative operating duty under Powell v. Washburn; that under Decker v. Hendricks the owner’s self-created economic hardship was not a material change in circumstances; that compelling a buyer who took encumbered land with notice to comply did not violate the Thirteenth Amendment; and that the prevailing homeowners could recover attorneys’ fees under the Declaration. The United States Supreme Court denied certiorari on November 9, 2020.

Swain confirms that Arizona restrictive covenants can compel affirmative action, not merely forbid it. An owner who takes land burdened by a recorded continuous-use or “shall operate” covenant may be ordered to actually perform, here to restore and run a shuttered golf course, rather than simply pay damages. For residents of communities built around amenities such as golf courses, lakes, open space, or clubhouses, the decision is a powerful tool: where the governing documents designate them as “Benefitted Persons,” individual owners can enforce amenity covenants directly, even when no HOA entity is a party to the suit. The case also narrows the “changed circumstances” escape hatch. A developer or investor cannot dismantle an amenity, declare that the market has changed, and expect a court to rewrite the covenant, particularly after buying with full notice and failing to secure the homeowner vote the documents require for an amendment. The ruling underscores that self-created economic hardship is not a material change, that recorded restrictions run with the land against successors, and that fee-shifting clauses can make covenant enforcement financially viable for ordinary owners. Boards and buyers alike should treat amenity-use covenants as durable, affirmative obligations that survive changes in ownership and market conditions.

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Dreamland Villa is a large retirement subdivision near Mesa, Arizona. For decades after it was first developed, the Dreamland Villa Community Club (DVCC) operated as a voluntary club with voluntary membership. Homeowners had no right, appurtenant to owning a lot, to club membership or to the recreational facilities; there were no common areas and no mandatory assessments, only voluntary dues paid by those who chose to use the facilities. Many owners chose not to join or participate.

DVCC later recorded amendments known as the “Second Amended Declarations” that purported to make membership and assessments mandatory for owners in six sections of the subdivision – sections 7, 14, 15, 16, 17, and 18 (the “Six Sections”). When some owners did not pay, DVCC filed collection actions in Maricopa County Superior Court (consolidated under Cause Nos. CC2006-211780 and related numbers), obtaining judgments against homeowners for unpaid assessments, late charges, and interest.

In the first appeal, Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411 (App. 2010), DVCC appealed the denial of its attorneys’ fees and the homeowners cross-appealed, arguing the Second Amended Declarations were invalid because the original declarations never alerted owners that they could be subjected to assessments. The Court of Appeals agreed with the homeowners, holding the Second Amended Declarations invalid and unenforceable and awarding the homeowners their appellate fees. The mandate directed the trial court to comply with the decision.

On remand, the parties disputed the scope of that ruling. DVCC argued the decision bound only the homeowners who had actually cross-appealed, while the homeowners argued the declarations were invalid as to everyone in the Six Sections. The trial court (the Honorable John Ditsworth) sided with DVCC, entering a judgment on mandate that invalidated the declarations only as to the cross-appellants and declined to address the homeowners’ requests for restitution and for their trial-court attorneys’ fees. The homeowners then filed this petition for special action.

The Court of Appeals first explained why it had jurisdiction: a special action, not an appeal, is the appropriate way to review a trial court’s judgment entered on remand under an appellate mandate, because such a judgment is based on the appellate court’s specific directions and is not itself appealable. Reviewing the trial court’s compliance with the Raimey mandate presented a pure question of law.

On the merits, the court held the trial court had erred. Deed restrictions are a contract among all lot owners and, absent contrary language, must apply uniformly to every lot; a covenant cannot be invalid as to some owners yet enforceable against others without creating a “patchwork quilt” of restrictions. Because Raimey conclusively held the declarations invalid, DVCC was collaterally estopped from enforcing them against anyone in the Six Sections – the court compared this to a facial invalidation of a statute, which bars all enforcement, not just enforcement against the challenger. The court rejected DVCC’s “voidable” theory and its reliance on the dicta in Armstrong v. Ledges about later purchasers with notice, holding the declarations invalid as to all owners regardless of purchase date, and correcting the trial court’s omission of section 18.

Finally, the court addressed remedies. It held that owners who had paid the vacated judgments were entitled to restitution with interest (subject to equitable reduction if DVCC could show a particular owner used the facilities); that petitioners could record a notice of invalidity so the public record would reflect the ruling; and that petitioners’ broadly worded appellate fee request preserved their right to seek the attorneys’ fees they had incurred in the superior court, warranting reconsideration of pre- and post-appellate fees on remand. The court awarded petitioners their fees for the special action and denied DVCC’s request for sanctions.

Raimey is one of the leading Arizona decisions – frequently paired with Kalway v. Calabria Ranch – limiting a community association’s power to use a generic amendment provision to impose new affirmative burdens, such as mandatory assessments, that owners were never alerted to when they bought. It confirms that once a court holds such an amendment invalid, the invalidity runs to the whole affected community: the association cannot enforce the covenant against later purchasers or against neighbors who sat out the litigation, because deed restrictions must be applied uniformly and an invalid restriction is not cured by the timing of a lot purchase. The decision is also a practical roadmap for what happens after a homeowner wins. It confirms that a special action – not an appeal – is the proper vehicle to police a trial court that misreads an appellate mandate on remand; that owners who already paid assessments under the invalidated declarations are entitled to restitution with interest; that owners may record a notice of invalidity so the title record reflects the ruling; and that a broadly worded appellate fee request can preserve the right to recover trial-court fees, even where the specific pre-appellate fees were not itemized. For associations and owners alike, it underscores that CC&R amendments creating new financial obligations are vulnerable, and that the consequences of losing extend community-wide.

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William M. Wilson owned a townhouse in Playa de Serrano, a 1969 Pima County subdivision whose recorded Declaration called it “an adult townhouse development” and gave an association control over common areas. In 2002 the owners voted 25 to 6 to amend the bylaws to declare the community age-restricted, imposing a requirement that each unit be occupied by at least one person fifty-five or older and creating a process for the Board to verify compliance. After a complaint, the U.S. Department of Housing and Urban Development (HUD) found the community’s policies complied with the federal Housing for Older Persons Act (HOPA). Wilson sued in 2004 for a declaratory judgment that the restriction was invalid and for injunctive relief. On cross-motions, the Pima County Superior Court granted summary judgment to the association, reasoning that HOPA compliance validated the restriction. The Arizona Court of Appeals, Division Two, reversed. Reviewing the summary judgment and the deed restrictions de novo, the court treated the Declaration as a contract among the owners and held that, absent specific authorization in the recorded Declaration, neither the Board nor a majority of owners could restrict occupancy of individually owned units. The court explained that HOPA compliance shows only that enforcing an age restriction would not be illegal, not that the association had the contractual right to impose one. The judgment was reversed and remanded for entry of judgment for Wilson, including reasonable attorney fees at trial and on appeal.

The court reviewed both the grant of summary judgment and the interpretation of the deed restrictions de novo, viewing the evidence in the light most favorable to Wilson as the nonmoving party. It began from the settled Arizona rule that deed restrictions constitute a contract between the subdivision’s property owners as a whole and the individual lot owners, and that to bind a lot owner a restriction generally must appear in the recorded declaration. Citing Shamrock v. Wagon Wheel Park Homeowners Ass’n, the court reiterated that if the recorded declaration does not contain, or provide for the later adoption of, a particular restriction, that restriction is invalid.

Turning to the association’s reliance on the Restatement (Third) of Property: Servitudes, the court found the association’s cited sections concerned only common areas, while Section 6.7(3) squarely supported Wilson: absent specific authorization in the declaration, a common-interest community lacks the power to adopt rules restricting the use or occupancy of individually owned lots. The court held Section 6.7(3) consistent with Shamrock and Arizona law. The Declaration here did not expressly restrict occupancy to persons fifty-five or older, nor grant the Board power to do so; its allocated powers concerned constructing, managing, and maintaining common areas and enforcing existing restrictions.

The association argued that authority to adopt “rules and regulations governing the properties” supplied the power. Construing the Declaration as a matter of law and giving words their ordinary meaning, the court looked to former A.R.S. § 33-561 and current A.R.S. § 33-1242 for the ordinary meaning of “regulation,” finding those powers pertained to common elements and housekeeping, not to a fundamental change in unit occupancy; bylaws, in turn, typically address internal corporate governance. The 2002 amendment itself extended rulemaking only to “the use of, and conduct in, the common areas.” The court therefore held “regulation” was not a specific authorization to impose an occupancy restriction, and ambiguities must be construed against the restriction and in favor of the free use of property. The “adult townhouse” label did not help, because at formation “adult” meant twenty-one or older and adult-only covenants had become illegal under the 1988 FHAA. Finally, the association’s HOPA compliance was “fatally flawed” as a source of authority: it established only that enforcement would not be illegal, not that the association had the contractual right to impose the restriction in the first instance.

This published Division Two opinion draws a bright line that is central to Arizona common-interest community law: the authority to restrict what an owner may do inside an individually owned unit—including who may occupy it—must come from the recorded Declaration, not from a later bylaws amendment or a general power to adopt “rules and regulations.” By adopting Restatement (Third) of Property: Servitudes § 6.7(3) alongside Shamrock, the court confirmed that boards and even majorities of owners cannot unilaterally impose fundamental new use or occupancy restrictions unless the CC&Rs specifically authorize them, so that purchasers are on notice of such limits when they buy.

The decision also clarifies the relationship between fair-housing law and association authority. Complying with the FHAA and HOPA—and even obtaining a favorable HUD determination—addresses only whether an age restriction would be lawful to enforce; it does not create the contractual power to adopt one. For homeowners, boards, and practitioners, the case is a reminder that converting a community to age-restricted “55-and-older” status generally requires a properly authorized amendment to the Declaration itself, and that owners who prevail in challenging an unauthorized restriction may recover their reasonable attorney fees.

Video overview of the ruling

An AI-generated video overview of Wilson v. Playa de Serrano (211 Ariz. 511, 123 P.3d 1148 (App. 2005); No. 2 CA-CV 2005-0072). Absent specific authorization in the recorded Declaration (CC&Rs), a common-interest homeowners’ association cannot… 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 Wilson v. Playa de Serrano. 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

The Villas at Hidden Lakes Condominiums Association, a group of condominium owners organized under a recorded declaration of horizontal property regime, sued its developer, Geupel Construction Company, Inc. and R.G.W. Investment Co., Inc. (together the joint venture Paradise Isle Associates, referred to as the “Developer”), to collect delinquent monthly assessments, retroactive late-payment penalties, and interest, and to foreclose an assessment lien on a lot the Developer still owned. The Developer answered that it owed no assessments on twenty-three of the original fifty-three units because it had recorded an amendment temporarily withdrawing those units into a separate phase, and that the late fees, which had grown to more than $47,000, were unenforceable because they were imposed retroactively and exceeded the twelve percent interest set by the bylaws. The trial court granted the Association summary judgment on both counts and awarded attorney’s fees. Division One of the Arizona Court of Appeals reversed. It held that the Developer had the votes and authority under the declaration to amend it and withdraw the Phase Two units, that the Association had contractual and statutory authority under the Uniform Condominium Act to impose late fees but exercised that power unreasonably by making them retroactive, and that the Association’s supporting affidavit was conclusory and relied on inadmissible hearsay, so it failed to establish a prima facie case. The court also found disputed fact issues on the Lot Six lien and the Developer’s tender of payment, reversed the fee award, and remanded.

The court analyzed each issue against the text of the recorded declaration (“Declaration Two”) and the Uniform Condominium Act. On the withdrawal question, it explained that the dispute was not whether the Developer had a “unilateral” right to amend, but whether it satisfied the declaration’s amendment procedure. Article Fourteen allowed amendment at any time by owners holding at least sixty-seven percent of the votes, and Article Six gave the Developer three votes per owned unit, yielding 144 votes against the five votes of the other owners, far more than enough. Mortgage-holder consent was unnecessary because those owners held under four percent of the votes, and the declaration’s own language (‘until or unless changed’) permitted altering the fractional common-element interests. The court rejected the argument that the recording mistake (a reference to the revoked Declaration One) invalidated the amendment, because the document clearly identified the property and its phasing purpose, gave constructive notice under A.R.S. section 33-416, and was re-recorded to fix the error. Distinguishing Camelback Del Este, Riley, and La Esperanza, the court held that the uniform-treatment rule applies only where the declaration so limits amendments; here the amendment merely provided for phased development and did not alter any covenant. Withdrawal of property (67 percent) was also distinct from termination of the regime (100 percent). On estoppel, the Association showed neither justifiable reliance nor injury, so no prima facie case existed. Turning to late fees, the court held the Association had power to impose them under Article Five and A.R.S. section 33-1242(11), and that the fees were a personal obligation, but that condominium associations must exercise such powers reasonably. Because no penalty schedule existed when the assessments became delinquent, owners never had the chance to choose timely payment over a known penalty; imposing the charge retroactively was therefore unreasonable, arbitrary, and an abuse of discretion. Finally, applying Rule 56(e) and the rules of evidence, the court found the Neal affidavit conclusory and built on computer-generated exhibits that were unauthenticated inadmissible hearsay, defeating the prima facie showing, and it found disputed facts on the Lot Six lien and the Developer’s $600 tender.

For Arizona homeowners and condominium associations, the decision is a leading illustration of two limits on association power. First, the powers a board holds under its declaration and under the Uniform Condominium Act, including the express statutory authority in A.R.S. section 33-1242(11) to impose late-payment charges, must still be exercised reasonably. An association cannot adopt a penalty and then reach backward to punish assessments that were already delinquent before any penalty schedule existed, because owners never had a chance to avoid a charge they could not have known about. Retroactive late fees, the court held, are unreasonable, arbitrary, and an abuse of discretion as a matter of law.

Second, the case underscores that assessment-collection and lien-foreclosure claims are ordinary civil actions in which the association carries the burden of proof. To win summary judgment an association must offer admissible evidence, not a conclusory affidavit attaching computer printouts with no foundation. A ledger or account summary must qualify under the business-records exception and be authenticated by someone with personal knowledge. The opinion also confirms that a developer or owner may validly amend a declaration to phase a project if the voting and recording requirements are met, and it flags the penalties in A.R.S. section 33-420 for recording a groundless lien, reminding associations to verify the amount actually owed before recording.

Video overview of the case record

An AI-generated video overview of The Villas at Hidden Lakes Condominiums Association v. Geupel Construction Co. (No. 1 CA-CV 90-263; 174 Ariz. 72, 847 P.2d 117 (App. 1992)). Developer authority over assessments survived if supported by the declaration and admissible records. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the case record

An AI-generated audio deep dive walking through the court record and procedural posture in The Villas at Hidden Lakes Condominiums Association v. Geupel Construction Co.. Generated from the case filings; verify against the linked case records below.

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Case Participants

What happened and why it matters

Joan Tober, a mandatory member of the Civano 1: Neighborhood Association, a Tucson planned community, sued the association and the members of its board of directors after the 2011 board election was conducted exclusively by mail-in ballots that were counted before the association’s annual meeting. She alleged the board breached its statutory obligations under A.R.S. section 33-1812 by not allowing votes to be cast in person and by absentee ballot, and she sought injunctive relief under A.R.S. section 10-3304 after withdrawing her breach-of-contract and breach-of-fiduciary-duty claims. The trial court granted summary judgment for the association and board and awarded them attorney fees and costs, and Tober appealed only the ruling on her breach-of-statutory-duty claim. Division Two of the Arizona Court of Appeals affirmed. It held that Tober’s claim against the individual board members was derivative and could not proceed as a direct action because she alleged no injury unique to herself, that neither the CC&Rs nor section 10-3304 authorized her particular statutory claim as pleaded, and that her challenge to the completed 2011 election and to speculative future elections presented no justiciable controversy for injunctive relief. The court added that, in any event, section 33-1812 does not require in-person voting at every election or that elections be held at the annual meeting. It also upheld the attorney-fee award and awarded the association its fees and costs on appeal.

The court reviewed the summary judgment de novo because the material facts were undisputed, and it treated capacity to sue as a question of law. It first held that Tober’s claim against the individual board members was derivative rather than direct. An action by an association member is derivative when the gravamen is injury to the corporation or to the whole body of members without any severance among individual holders. A member may sue directly only if she has a relationship with the wrongdoer apart from her membership, the wrongdoer owes her a duty for a reason other than membership, or her injury is unique to her rather than shared by the association. Tober alleged none of these; she asserted only a “personal stake in how her community is run,” and her theory was that Civano members as a whole were disadvantaged by the mail-in procedure. Because she did not follow the demand and standing requirements for a derivative suit under A.R.S. sections 10-3631 and 10-3632, that claim was properly dismissed.

The court next rejected the two authorities Tober said permitted her direct statutory claim. The CC&Rs’ section 16.1 gives owners a right to enforce the community documents, but Tober conceded her statutory claim was independent of the contract, and A.R.S. section 33-1812 could not be read into the CC&Rs because it was enacted after the CC&Rs were executed. A.R.S. section 10-3304 does let a planned community member sue the association to enjoin an ultra vires act, and the court agreed Tober could in theory bring such a claim. But injunctive relief was unavailable: she did not try to enjoin the 2011 election before it was finalized, and a completed election cannot be undone on that ground; her request to control future elections was speculative, unsupported by any showing of likely future harm, and therefore not a justiciable controversy.

Finally, and in any event, the court held the mail-in procedure did not violate section 33-1812. The statute’s phrase “if absentee ballots are used” shows absentee voting is optional, and the statute expressly allows voting by “some other form of delivery” such as mail; it does not require in-person voting at every election or that elections occur at the annual meeting, and section 33-1804 requires only that meetings be open, not that elections happen at them. The court affirmed the attorney-fee award under A.R.S. section 12-341.01 and section 16.2 of the CC&Rs, noting that voluntarily dismissing the contract claims did not defeat a contract-based fee award and that the missing hearing transcripts were presumed to support the trial court’s discretion.

For Arizona homeowners and boards, the decision illustrates how planned community election procedures are measured against A.R.S. section 33-1812 and the open-meeting law, A.R.S. section 33-1804. The court read section 33-1812 to permit an association to elect directors entirely by mail-in ballot, with ballots counted before the annual meeting, and concluded the statute does not compel in-person voting at every election or require that the election itself take place at the annual meeting. It also underscores a practical timing lesson: a member who believes an election procedure is unlawful generally must seek to enjoin it before the vote is finalized, because courts are reluctant to unwind a completed election or to issue advisory relief about future, speculative elections.

The opinion is an unpublished memorandum decision, so under Rule 28 of the Arizona Rules of Civil Appellate Procedure it is not precedent and generally may not be cited as legal authority; it is offered here only as a neutral, educational illustration of how these HOA-governance statutes have been applied. The decision also highlights procedural mechanics that recur in HOA disputes, including the derivative-versus-direct distinction for suits against a board and the risk that a member who loses such a suit may owe the association’s attorney fees under A.R.S. section 12-341.01 and a fee-shifting provision in the CC&Rs. The homeowner was represented by Elizabeth D. Bushell of Elizabeth D. Bushell, P.L.C., and the association and its board by Carolyn B. Goldschmidt of Monroe, McDonough, Goldschmidt & Molla, P.L.L.C.

Video overview of the ruling

An AI-generated video overview of Joan Tober, Plaintiff/Appellant, v. Civano 1: Neighborhood Association, Inc., an Arizona nonprofit corporation; and Rick Hanson, Mark Levine, George Luis, Lee Rayburn, Bob Small, Chris Shipley, and Les Shipley, Defendants/Appellees (2 CA-CV 2012-0129). Under A.R.S. § 33-1812, a planned community association may conduct its board election exclusively by mail-in… 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 Joan Tober, Plaintiff/Appellant, v. Civano 1: Neighborhood Association, Inc., an Arizona nonprofit corporation; and Rick Hanson, Mark Levine, George Luis, Lee Rayburn, Bob Small, Chris Shipley, and Les Shipley, Defendants/Appellees. Generated from the case filings; verify against the linked ruling below.

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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